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Justice Kennedy

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Missouri v. Jenkins

https://www.courtlistener.com/opinion/112414/missouri-v-jenkins/

https://www.courtlistener.com/api/rest/v3/clusters/112414/

1989-065

In agreement with the Court that we have jurisdiction to decide this case, I join Parts I and II of the opinion. I agree also that the District Court exceeded its authority by attempting to impose a tax. The Court is unanimous in its holding, that the Court of Appeals' judgment affirming "the actions that the [district] court has taken to this point," 855 F.2d 1295, 1314 (CA8 1988), must be reversed. This is consistent with our precedents and the basic principles defining judicial power. In my view, however, the Court transgresses these same principles when it goes further, much further, to embrace by broad dictum an expansion of power in the Federal Judiciary beyond all precedent. Today's casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards *59 fundamental precepts for the democratic control of public institutions. I cannot acquiesce in the majority's statements on this point, and should there arise an actual dispute over the collection of taxes as here contemplated in a case that is not, like this one, premature, we should not confirm the outcome of premises adopted with so little constitutional justification. The Court's statements, in my view, cannot be seen as necessary for its judgment, or as precedent for the future, and I cannot join Parts III and IV of the Court's opinion. I Some essential litigation history is necessary for a full understanding of what is at stake here and what will be wrought if the implications of all the Court's statements are followed to the full extent. The District Court's remedial plan was proposed for the most part by the Kansas City, Missouri, School District (KCMSD) itself, which is in name a defendant in the suit. Defendants, and above all defendants that are public entities, act in the highest and best tradition of our legal system when they acknowledge fault and cooperate to suggest remedies. But in the context of this dispute, it is of vital importance to note the KCMSD demonstrated little concern for the fiscal consequences of the remedy that it helped design. As the District Court acknowledged, the plaintiffs and the KCMSD pursued a "friendly adversary" relationship. Throughout the remedial phase of the litigation, the KCMSD proposed ever more expensive capital improvements with the agreement of the plaintiffs, and the State objected. Some of these improvements involved basic repairs to deteriorating facilities within the school system. The KCMSD, however, devised a broader concept for districtwide improvement, and the District Court approved it. The plan involved a variation of the magnet school concept. Magnet schools, as the majority opinion notes, ante, at 40, n. 6, offer special programs, *60 often used to encourage voluntary movement of students within the district in a pattern that aids desegregation. Although we have approved desegregation plans involving magnet schools of this conventional definition, see Milliken v. Bradley, 433 U.S. 267, 272 (1977), the District Court found this insufficient. App. to Pet. for Cert. 122a. Instead, the court and the KCMSD decided to make a magnet of the district as a whole. The hope was to draw new nonminority students from outside the district. The KCMSD plan adopted by the court provided that "every senior high school, every middle school, and approximately one-half of the elementary schools in the KCMSD will become magnet schools by the school year 1991-92." Id., at 121a. The plan was intended to "improve the quality of education of all KCMSD students." Id., at 103a. The District Court was candid to acknowledge that the "long term goal of this Court's remedial order is to make available to all KCMSD students educational opportunities equal to or greater than those presently available in the average Kansas City, Missouri metropolitan suburban school district." Id., at 145a-146a (emphasis in original). It comes as no surprise that the cost of this approach to the remedy far exceeded KCMSD's budget, or for that matter, its authority to tax. A few examples are illustrative. Programs such as a "performing arts middle school," id., at 118a, a "technical magnet high school" that "will offer programs ranging from heating and air conditioning to cosmetology to robotics," id., at 75a, were approved. The plan also included a "25 acre farm and 25 acre wildland area" for science study. Id., at 20a. The court rejected various proposals by the State to make "capital improvements necessary to eliminate health and safety hazards and to provide a good learning environment," because these proposals failed to "consider the criteria of suburban comparability." Id., at 70a. The District Court stated: "This `patch and repair' approach proposed by the State would not achieve suburban comparability or the *61 visual attractiveness sought by the Court as it would result in floor coverings with unsightly sections of mismatched carpeting and tile, and individual walls possessing different shades of paint." Id., at 70a. Finding that construction of new schools would result in more "attractive" facilities than renovation of existing ones, the District Court approved new construction at a cost ranging from $61.80 per square foot to $95.70 per square foot as distinct from renovation at $45 per square foot. Id., at 76a. By the time of the order at issue here, the District Court's remedies included some "$260 million in capital improvements and a magnet-school plan costing over $200 million." Missouri v. Jenkins, 491 U.S. 274 (1989). And the remedial orders grew more expensive as shortfalls in revenue became more severe. As the Eighth Circuit judges dissenting from denial of rehearing in banc put it: "The remedies ordered go far beyond anything previously seen in a school desegregation case. The sheer immensity of the programs encompassed by the district court's order — the large number of magnet schools and the quantity of capital renovations and new construction — are concededly without parallel in any other school district in the country." 855 F.2d, at 1318-1319. The judicial taxation approved by the Eighth Circuit is also without parallel. Other Circuits that have faced funding problems arising from remedial decrees have concluded that, while courts have undoubted power to order that schools operate in compliance with the Constitution, the manner and methods of school financing are beyond federal judicial authority. See National City Bank v. Battisti, 581 F.2d 565 (CA6 1977); Plaquemines Parish School Bd. v. United States, 415 F.2d 817 (CA5 1969). The Third Circuit, while leaving open the possibility that in some situation a court-ordered tax might be appropriate, has also declined to approve judicial interference in taxation. Evans v. Buchanan, 582 F.2d 750 (1978), cert. denied sub nom. Alexis I. du Pont *62 School Dist. v. Evans, 446 U.S. 923 (1980). The Sixth Circuit, in a somewhat different context, has recognized the severe intrusion caused by federal court interference in state and local financing. Kelley v. Metropolitan County Bd. of Education of Nashville and Davidson County, Tenn., 836 F.2d 986 (1987), cert. denied, 487 U.S. 1206 (1988). Unlike these other courts, the Eighth Circuit has endorsed judicial taxation, first in dicta from cases in which taxation orders were in fact disapproved. United States v. Missouri, 515 F.2d 1365, 1372-1373 (1975) (District Court may "implement its desegregation order by directing that provision be made for the levying of taxes"); Liddell v. Missouri, 731 F.2d 1294, 1320, cert. denied sub nom. Leggett v. Liddell, 469 U.S. 816 (1984) (District Court may impose tax "after exploration of every other fiscal alternative"). The case before us represents the first in which a lower federal court has in fact upheld taxation to fund a remedial decree. For reasons explained below, I agree with the Court that the Eighth Circuit's judgment affirming the District Court's direct levy of a property tax must be reversed. I cannot agree, however, that we "stand on different ground when we review the modifications to the District Court's order made by the Court of Appeals," ante, at 52. At the outset, it must be noted that the Court of Appeals made no "modifications" to the District Court's order. Rather, it affirmed "the actions that the court has taken to this point." 855 F.2d, at 1314. It is true that the Court of Appeals went on "to consider the procedures which the district court should use in the future." Ibid. (emphasis added). But the Court of Appeals' entire discussion of "a preferable method for future funding," ibid., can be considered no more than dictum, the court itself having already upheld the District Court's actions to date. No other order of the District Court was before the Court of Appeals. The Court states that the Court of Appeals' discussion of future taxation was not dictum because although the Court of *63 Appeals "did not require the District Court to reverse the tax increase that it had imposed for prior fiscal years," it "required the District Court to use the less obtrusive procedures beginning with the fiscal year commencing after the remand." Ante, at 52-53, n. 18. But no such distinction is found in the Court of Appeals' opinion. Rather, the court "affirm[ed] the actions that the [district] court has taken to this point," which included the District Court's October 27, 1987, order increasing property taxes in the KCMSD through the end of fiscal year 1991-1992. The District Court's January 3, 1989, order does not support, but refutes, the Court's characterization. The District Court rejected a request by the KCMSD to increase the property tax rate using the method endorsed by the Eighth Circuit from $4 to $4.23 per $100 of assessed valuation. The District Court reasoned that an increase in 1988 property taxes would be difficult to administer and cause resentment among taxpayers, and that an increase in 1989 property taxes would be premature because it was not yet known whether an increase would be necessary to fund expenditures. App. 511-512. In rejecting the KCMSD's request, the District Court left in effect the $4 rate it had established in its October 27, 1987, order. Whatever the Court thinks of the Court of Appeals' opinion, the District Court on remand appears to have thought it was under no compulsion to disturb its existing order establishing the $4 property tax rate through fiscal year 1991-1992 unless and until it became necessary to raise property taxes even higher. The Court's discussion today, and its stated approval of the "method for future funding" found "preferable" by the Court of Appeals, is unnecessary for the decision in this case. As the Court chooses to discuss the question of future taxation, however, I must state my respectful disagreement with its analysis and conclusions on this vital question. The premise of the Court's analysis, I submit, is infirm. Any purported distinction between direct imposition of a tax *64 by the federal court and an order commanding the school district to impose the tax is but a convenient formalism where the court's action is predicated on elimination of state-law limitations on the school district's taxing authority. As the Court describes it, the local KCMSD possesses plenary taxing powers, which allow it to impose any tax it chooses if not "hinder[ed]" by the Missouri Constitution and state statutes. Ante, at 57. This puts the conclusion before the premise. Local government bodies in Missouri, as elsewhere, must derive their power from a sovereign, and that sovereign is the State of Missouri. See Mo. Const., Art. X, § 1 (political subdivisions may exercise only "[tax] power granted to them" by Missouri General Assembly). Under Missouri law, the KCMSD has power to impose a limited property tax levy up to $1.25 per $100 of assessed value. The power to exact a higher rate of property tax remains with the people, a majority of whom must agree to empower the KCMSD to increase the levy up to $3.75 per $100, and two-thirds of whom must agree for the levy to go higher. See Mo. Const., Art. X, §§ 11(b),(c). The Missouri Constitution states that "[p]roperty taxes and other local taxes . . . may not be increased above the limitations specified herein without direct voter approval as provided by this constitution." Mo. Const., Art. X, § 16. For this reason, I reject the artificial suggestion that the District Court may, by "prevent[ing] . . . officials from applying state law that would interfere with the willing levy of property taxes by KCMSD," ante, at 56, n. 20, cause the KCMSD to exercise power under state law. State laws, including taxation provisions legitimate and constitutional in themselves, define the power of the KCMSD. Cf. Washington v. Washington Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 695 (1979) (whether a state agency "may be ordered actually to promulgate regulations having effect as a matter of state law may well be doubtful"). Absent a change in state law, no increase in property taxes could take *65 place in the KCMSD without a federal court order. It makes no difference that the KCMSD stands "ready, willing, and . . . able" to impose a tax not authorized by state law. Ante, at 51. Whatever taxing power the KCMSD may exercise outside the boundaries of state law would derive from the federal court. The Court never confronts the judicial authority to issue an order for this purpose. Absent a change in state law, the tax is imposed by federal authority under a federal decree. The question is whether a district court possesses a power to tax under federal law, either directly or through delegation to the KCMSD. II Article III of the Constitution states that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The description of the judicial power nowhere includes the word "tax" or anything that resembles it. This reflects the Framers' understanding that taxation was not a proper area for judicial involvement. "The judiciary . . . has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever." The Federalist No. 78, p. 523 (J. Cooke ed. 1961) (A. Hamilton). Our cases throughout the years leave no doubt that taxation is not a judicial function. Last Term we rejected the invitation to cure an unconstitutional tax scheme by broadening the class of those taxed. We said that such a remedy "could be construed as the direct imposition of a state tax, a remedy beyond the power of a federal court." Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 818 (1989). Our statement in Davis rested on the explicit holding in Moses Lake Homes, Inc. v. Grant County, 365 U.S. 744 (1961), in which we reversed a judgment directing a District Court to decree a valid tax in place of an invalid one that the State had attempted to enforce: *66 "The effect of the Court's remand was to direct the District Court to decree a valid tax for the invalid one which the State had attempted to exact. The District Court has no power so to decree. Federal courts may not assess or levy taxes. Only the appropriate taxing officials of Grant County may assess and levy taxes on these leaseholds, and the federal courts may determine, within their jurisdiction, only whether the tax levied by those officials is or is not a valid one." Id., at 752. The nature of the District Court's order here reveals that it is not a proper exercise of the judicial power. The exercise of judicial power involves adjudication of controversies and imposition of burdens on those who are parties before the Court. The order at issue here is not of this character. It binds the broad class of all KCMSD taxpayers. It has the purpose and direct effect of extracting money from persons who have had no presence or representation in the suit. For this reason, the District Court's direct order imposing a tax was more than an abuse of discretion, for any attempt to collect the taxes from the citizens would have been a blatant denial of due process. Taxation by a legislature raises no due process concerns, for the citizens' "rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule." Bi-Metallic Co. v. Colorado State Bd. of Equalization, 239 U.S. 441, 445 (1915). The citizens who are taxed are given notice and a hearing through their representatives, whose power is a direct manifestation of the citizens' consent. A true exercise of judicial power provides due process of another sort. Where money is extracted from parties by a court's judgment, the adjudication itself provides the notice and opportunity to be heard that due process demands before a citizen may be deprived of property. The order here provides neither of these protections. Where a tax is imposed by a governmental body other than *67 the legislature, even an administrative agency to which the legislature has delegated taxing authority, due process requires notice to the citizens to be taxed and some opportunity to be heard. See, e. g., Londoner v. Denver, 210 U.S. 373, 385-386 (1908). The citizens whose tax bills would have been doubled under the District Court's direct tax order would not have had these protections. The taxes were imposed by a District Court that was not "representative" in any sense, and the individual citizens of the KCMSD whose property (they later learned) was at stake were neither served with process nor heard in court. The method of taxation endorsed by today's dicta suffers the same flaw, for a district court order that overrides the citizens' state-law protection against taxation without referendum approval can in no sense provide representational due process. No one suggests the KCMSD taxpayers are parties. A judicial taxation order is but an attempt to exercise a power that always has been thought legislative in nature. The location of the federal taxing power sheds light on today's attempt to approve judicial taxation at the local level. Article I, § 1, states that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (Emphasis added.) The list of legislative powers in Article I, § 8, cl. 1, begins with the statement that "[t]he Congress shall have Power To lay and collect Taxes. . . ." As we have said, "[t]axation is a legislative function, and Congress . . . is the sole organ for levying taxes." National Cable Television Assn., Inc. v. United States, 415 U.S. 336, 340 (1974) (citing Article I, § 8, cl. 1). True, today's case is not an instance of one branch of the Federal Government invading the province of another. It is instead one that brings the weight of federal authority upon a local government and a State. This does not detract, however, from the fundamental point that the Judiciary is not free to exercise all federal power; it may exercise only the *68 judicial power. And the important effects of the taxation order discussed here raise additional federalism concerns that counsel against the Court's analysis. In perhaps the leading case concerning desegregation remedies, Milliken v. Bradley, 433 U.S. 267 (1977), we upheld a prospective remedial plan, not a "money judgment," ante, at 54, against a State's claim that principles of federalism had been ignored in the plan's implementation. In so doing the Court emphasized that the District Court had "neither attempted to restructure local governmental entities nor to mandate a particular method or structure of state or local financing." 433 U.S., at 291. No such assurances emerge from today's decision, which endorses federal-court intrusion into these precise matters. Our statement in a case decided more than 100 years ago should apply here. "This power to impose burdens and raise money is the highest attribute of sovereignty, and is exercised, first, to raise money for public purposes only; and, second, by the power of legislative authority only. It is a power that has not been extended to the judiciary. Especially is it beyond the power of the Federal judiciary to assume the place of a State in the exercise of this authority at once so delicate and so important." Rees v. City of Watertown, 19 Wall. 107, 116-117 (1874). The confinement of taxation to the legislative branches, both in our Federal and State Governments, was not random. It reflected our ideal that the power of taxation must be under the control of those who are taxed. This truth animated all our colonial and revolutionary history. "Your Memorialists conceive it to be a fundamental Principle. . . without which Freedom can no Where exist, that the People are not subject to any Taxes but such as are laid on them by their own Consent, or by those who are legally appointed to represent them: Property must become too precarious for the Genius of a free People *69 which can be taken from them at the Will of others, who cannot know what Taxes such people can bear, or the easiest Mode of raising them; and who are not under that Restraint, which is the greatest Security against a burthensome Taxation, when the Representatives themselves must be affected by every tax imposed on the People." Virginia Petitions to King and Parliament, December 18, 1764, reprinted in The Stamp Act Crisis 41 (E. Morgan ed. 1952). The power of taxation is one that the Federal Judiciary does not possess. In our system "the legislative department alone has access to the pockets of the people," The Federalist No. 48, p. 334 (J. Cooke ed. 1961) (J. Madison), for it is the Legislature that is accountable to them and represents their will. The authority that would levy the tax at issue here shares none of these qualities. Our Federal Judiciary, by design, is not representative or responsible to the people in a political sense; it is independent. Federal judges do not depend on the popular will for their office. They may not even share the burden of taxes they attempt to impose, for they may live outside the jurisdiction their orders affect. And federal judges have no fear that the competition for scarce public resources could result in a diminution of their salaries. It is not surprising that imposition of taxes by an authority so insulated from public communication or control can lead to deep feelings of frustration, powerlessness, and anger on the part of taxpaying citizens. The operation of tax systems is among the most difficult aspects of public administration. It is not a function the Judiciary as an institution is designed to exercise. Unlike legislative bodies, which may hold hearings on how best to raise revenues, all subject to the views of constituents to whom the Legislature is accountable, the Judiciary must grope ahead with only the assistance of the parties, or perhaps random amici curiae. Those hearings would be without principled direction, for there exists no body of juridical axioms by *70 which to guide or review them. On this questionable basis, the Court today would give authority for decisions that affect the life plans of local citizens, the revenue available for competing public needs, and the health of the local economy. Day-to-day administration of the tax must be accomplished by judicial trial and error, requisitioning the staff of the existing tax authority, or the hiring of a staff under the direction of the judge. The District Court orders in this case suggest the pitfalls of the first course. See App. to Pet. for Cert. 55a (correcting order for assessment of penalties for nonpayment that "mistakenly" assessed penalties on an extra tax year); id., at 57a ("clarify[ing]" the inclusion of savings and loan institutions, estates, trusts, and beneficiaries in the court's income tax surcharge and enforcement procedures). Forcing citizens to make financial decisions in fear of the fledgling judicial tax collector's next misstep must detract from the dignity and independence of the federal courts. The function of hiring and supervising a staff for what is essentially a political function has other complications. As part of its remedial order, for example, the District Court ordered the hiring of a "public information specialist," at a cost of $30,000. The purpose of the position was to "solicit community support and involvement" in the District Court's desegregation plan. See id., at 191a. This type of order raises a substantial question whether a district court may extract taxes from citizens who have no right of representation and then use the funds for expression with which the citizens may disagree. Cf. Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977). The Court relies on dicta from Griffin v. Prince Edward County School Bd., 377 U.S. 218 (1964), to support its statements on judicial taxation. In Griffin, the Court faced an unrepentent and recalcitrant school board that attempted to provide financial support for white schools while refusing to operate schools for black schoolchildren. We stated that the District Court could "require the Supervisors to exercise the *71 power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system." Id., at 233 (emphasis added). There is no occasion in this case to discuss the full implications of Griffin's observation, for it has no application here. Griffin endorsed the power of a federal court to order the local authority to exercise existing authority to tax. This case does not involve an order to a local government with plenary taxing power to impose a tax, or an order directed at one whose taxing power has been limited by a state law enacted in order to thwart a federal court order. An order of this type would find support in the Griffin dicta and present a closer question than the one before us. Yet that order might implicate as well the "perversion of the normal legislative process" that we have found troubling in other contexts. See Spallone v. United States, 493 U.S. 265, 280 (1990). A legislative vote taken under judicial compulsion blurs lines of accountability by making it appear that a decision was reached by elected representatives when the reality is otherwise. For this reason, it is difficult to see the difference between an order to tax and direct judicial imposition of a tax. The Court asserts that its understanding of Griffin follows from cases in which the Court upheld the use of mandamus to compel local officials to collect taxes that were authorized under state law in order to meet bond obligations. See ante, at 55-57. But as discussed supra, at 63-65, there was no state authority in this case for the KCMSD to exercise. In this situation, there could be no authority for a judicial order touching on taxation. See United States v. County of Macon, 99 U.S. 582, 591 (1879) (where the statute empowering the corporation to issue bonds contains a limit on the taxing power, federal court has no power of mandamus to compel a levy in excess of that power; "We have no power by mandamus to compel a municipal corporation to levy a tax which the law does not authorize. We cannot create new *72 rights or confer new powers. All we can do is to bring existing powers into operation"). The Court cites a single case, Von Hoffman v. City of Quincy, 4 Wall. 535 (1867), for the proposition that a federal court may set aside state taxation limits that interfere with the remedy sought by the district court. But the Court does not heed Von Hoffman's holding. There a municipality had authorized a tax levy in support of a specific bond obligation, but later limited the taxation authority in a way that impaired the bond obligation. The Court held the subsequent limitation itself unconstitutional, a violation of the Contracts Clause. Once the limitation was held invalid, the original specific grant of authority remained. There is no allegation here, nor could there be, that the neutral tax limitations imposed by the people of Missouri are unconstitutional. Compare Tr. of Oral Arg. 41 ("nothing in the record to suggest" that tax limitation was intended to frustrate desegregation) with Griffin, supra, at 221 (State Constitution amended as part of state and school district plan to resist desegregation). The majority appears to concede that the Missouri tax law does not violate a specific provision of the Constitution, stating instead that state laws may be disregarded on the basis of a vague "reason based in the Constitution." Ante, at 57. But this broad suggestion does not follow from the holding in Von Hoffman. Examination of the "long and venerable line of cases," ante, at 55, cited by the Court to endorse judicial taxation reveals the lack of real support for the Court's rationale. One group of these cases holds simply that the common-law writ of mandamus lies to compel a local official to perform a clear duty imposed by state law. See United States v. New Orleans, 98 U.S. 381 (1879) (reaffirming legislative nature of the taxing power and the availability of mandamus to compel officers to levy a tax where they were required by state law to do so); City of Galena v. Amy, 5 Wall. 705 (1867) (mandamus to state officials to collect a tax authorized by state law *73 in order to fund a state bond obligation); Board of Commissioners of Knox County v. Aspinwall, 24 How. 376 (1861) (state statute gave tax officials authority to levy the tax needed to satisfy a bond obligation and explicitly required them to do so; mandamus was proper to compel performance of this "plain duty" under state law). These common-law mandamus decisions do not purport to involve the Federal Constitution or remedial powers. A second set of cases, including the Von Hoffman case relied upon by the Court, invalidates on Contracts Clause grounds statutory limitations on taxation power passed subsequent to grants of tax authority in support of bond obligations. See Louisiana ex rel. Hubert v. Mayor and Council of New Orleans, 215 U.S. 170 (1909) (state law authorized municipal tax in support of bond obligation; subsequent legislation removing the authority is invalid under Contracts Clause, and mandamus will lie against municipal official to collect the tax); Graham v. Folsom, 200 U.S. 248 (1906) (where state municipality enters into a bond obligation based on delegated state power to collect a tax, State may not by subsequent abolition of the municipality remove the taxing power; such an act is itself invalid as a violation of the Contracts Clause); Wolff v. New Orleans, 103 U.S. 358 (1881) (same). These cases, like Von Hoffman, are inapposite because there is no colorable argument that the provision of the Missouri Constitution limiting property tax assessments itself violates the Federal Constitution. A third group of cases involving taxation and municipal bonds is more relevant. These cases hold that where there is no state or municipal taxation authority that the federal court may by mandamus command the officials to exercise, the court is itself without authority to order taxation. In some of these cases, the officials charged with administering the tax resigned their positions, and the Court held that no judicial remedy was available. See Heine v. Levee Commissioners, 19 Wall. 655 (1874) (where the levee commissioners *74 had resigned their office no one remained on whom the mandamus could operate). In Heine, the Court held that it had no equitable power to impose a tax in order to prevent the plaintiff's right from going without a remedy. "The power we are here asked to exercise is the very delicate one of taxation. This power belongs in this country to the legislative sovereignty, State or National.. . . It certainly is not vested, as in the exercise of an original jurisdiction, in any Federal court. It is unreasonable to suppose that the legislature would ever select a Federal court for that purpose. It is not only not one of the inherent powers of the court to levy and collect taxes, but it is an invasion by the judiciary of the Federal government of the legislative functions of the State government. It is a most extraordinary request, and a compliance with it would involve consequences no less out of the way of judicial procedure, the end of which no wisdom can foresee." Id., at 660-661. Other cases state more broadly that absent state authority for a tax levy, the exercise of which may be compelled by mandamus, the federal court is without power to impose any tax. See Meriwether v. Garrett, 102 U.S. 472 (1880) (where State repealed municipal charter, federal court had no authority to impose taxes, which may be collected only under authority from the legislature); id., at 515 (Field, J., concurring in judgment) ("The levying of taxes is not a judicial act. It has no elements of one"); United States v. County of Macon, 99 U.S. 582 (1879) (no authority to compel a levy higher than state law allowed outside situation where a subsequent limitation violated Contracts Clause); Rees v. City of Watertown, 19 Wall. 107 (1874) (holding mandamus unavailable where officials have resigned, and that tax limitation in effect when bond obligation was undertaken may not be exceeded by court order). With all respect, it is this third group of cases that applies. The majority would limit these authorities to a narrow "exceptio[n]" *75 for cases where local officers resigned. Ante, at 56, n. 20. This is not an accurate description. Rather, the cases show that where a limitation on the local authority's taxing power is not a subsequent enactment itself in violation of the Contracts Clause, a federal court is without power to order a tax levy that goes beyond the authority granted by state law. The Court states that the KCMSD was "invested with authority to collect and disburse the property tax." Ibid. Invested by whom? It is plain that the KCMSD had no such power under state law. That being so, the authority to levy a higher tax would have to come from the federal court. The very cases cited by the majority show that a federal court has no such authority. At bottom, today's discussion seems motivated by the fear that failure to endorse judicial taxation power might in some extreme circumstance leave a court unable to remedy a constitutional violation. As I discuss below, I do not think this possibility is in reality a significant one. More important, this possibility is nothing more or less than the necessary consequence of any limit on judicial power. If, however, judicial discretion is to provide the sole limit on judicial remedies, that discretion must counsel restraint. Ill-considered entry into the volatile field of taxation is a step that may place at risk the legitimacy that justifies judicial independence. III One of the most troubling aspects of the Court's opinion is that discussion of the important constitutional issues of judicial authority to tax need never have been undertaken to decide this case. Even were I willing to accept the Court's proposition that a federal court might in some extreme case authorize taxation, this case is not the one. The suggestion that failure to approve judicial taxation here would leave constitutional rights unvindicated rests on a presumption that the District Court's remedy is the only possible cure for the constitutional violations it found. Neither our precedents *76 nor the record support this view. In fact, the taxation power is sought here on behalf of a remedial order unlike any before seen. It cannot be contended that interdistrict comparability, which was the ultimate goal of the District Court's orders, is itself a constitutional command. We have long since determined that "unequal expenditures between children who happen to reside in different districts" do not violate the Equal Protection Clause. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 54-55 (1973). The District Court in this case found, and the Court of Appeals affirmed, that there was no interdistrict constitutional violation that would support mandatory interdistrict relief. See Jenkins v. Missouri, 807 F.2d 657 (CA8 1986). Instead, the District Court's conclusion that desegregation might be easier if more nonminority students could be attracted into the KCMSD was used as the hook on which to hang numerous policy choices about improving the quality of education in general within the KCMSD. The State's complaint that this suit represents the attempt of a school district that could not obtain public support for increased spending to enlist the District Court to finance its educational policy cannot be dismissed out of hand. The plaintiffs and KCMSD might well be seen as parties that have "joined forces apparently for the purpose of extracting funds from the state treasury." Milliken v. Bradley, 433 U. S., at 293 (Powell, J., concurring in judgment). This Court has never approved a remedy of the type adopted by the District Court. There are strong arguments against the validity of such a plan. A remedy that uses the quality of education as a lure to attract nonminority students will place the District Court at the center of controversies over educational philosophy that by tradition are left to this Nation's communities. Such a plan as a practical matter raises many of the concerns involved in interdistrict desegregation remedies. Cf. Milliken v. Bradley, 418 U.S. 717 *77 (1974) (invalidating interdistrict remedial plan). District courts can and must take needed steps to eliminate racial discrimination and ensure the operation of unitary school systems. But it is discrimination, not the ineptitude of educators or the indifference of the public, that is the evil to be remedied. An initial finding of discrimination cannot be used as the basis for a wholesale shift of authority over day-to-day school operations from parents, teachers, and elected officials to an unaccountable district judge whose province is law, not education. Perhaps it is good educational policy to provide a school district with the items included in the KCMSD capital improvement plan, for example: high schools in which every classroom will have air conditioning, an alarm system, and 15 microcomputers; a 2,000-square-foot planetarium; greenhouses and vivariums; a 25-acre farm with an air-conditioned meeting room for 104 people; a Model United Nations wired for language translation; broadcast capable radio and television studios with an editing and animation lab; a temperature controlled art gallery; movie editing and screening rooms; a 3,500-square-foot dust-free diesel mechanics room; 1,875-square-foot elementary school animal rooms for use in a zoo project; swimming pools; and numerous other facilities. But these items are a part of legitimate political debate over educational policy and spending priorities, not the Constitution's command of racial equality. Indeed, it may be that a mere 12-acre petting farm, or other corresponding reductions in court-ordered spending, might satisfy constitutional requirements, while preserving scarce public funds for legislative allocation to other public needs, such as paving streets, feeding the poor, building prisons, or housing the homeless. Perhaps the KCMSD's Classical Greek theme schools emphasizing forensics and self-government will provide exemplary training in participatory democracy. But if today's dicta become law, such lessons will be of little use to students who grow up to become taxpayers in the KCMSD. *78 I am required in light of our limited grant of certiorari to assume that the remedy chosen by the District Court was a permissible exercise of its remedial discretion. But it is misleading to suggest that a failure to fund this particular remedy would leave constitutional rights without a remedy. In fact, the District Court acknowledged in its very first remedial order that the development of a remedy in this case would involve "a choice among a wide range of possibilities." App. to Pet. for Cert. 153a. Its observation was consistent with our cases concerning the scope of equitable remedies, which have recognized that "equity has been characterized by a practical flexibility in shaping its remedies." Brown v. Board of Education, 349 U.S. 294, 300 (1955). Any argument that the remedy chosen by the District Court was the only one possible is in fact unsupportable in light of our previous cases. We have approved desegregation orders using assignment changes and some ancillary education programs to ensure the operation of a unitary school system for the district's children. See, e. g., Columbus Bd. of Education v. Penick, 443 U.S. 449 (1979); Dayton Bd. of Education v. Brinkman, 433 U.S. 406 (1977). To suggest that a constitutional violation will go unremedied if a district does not, though capital improvements or other means, turn every school into a magnet school, and the entire district into a magnet district, is to suggest that the remedies approved in our past cases should have been disapproved as insufficient to deal with the violations. The truth of the matter is that the remedies in those cases were permissible choices among the many that might be adopted by a district court. The prudence we have required in other areas touching on federal court intrusion in local government, see, e. g., Spallone v. United States, 493 U.S. 265 (1990), is missing here. Even on the assumption that a federal court might order taxation in an extreme case, the unique nature of the taxing power would demand that this remedy be used as a last resort. In my view, a taxation order should not even be *79 considered, and this Court need never have addressed the question, unless there has been a finding that without the particular remedy at issue the constitutional violation will go unremedied. By this I do not mean that the remedy is, as we assume this one was, within the broad discretion of the district court. Rather, as a prerequisite to considering a taxation order, I would require a finding that that any remedy less costly than the one at issue would so plainly leave the violation unremedied that its implementation would itself be an abuse of discretion. There is no showing in this record that, faced with the revenue shortfall, the District Court gave due consideration to the possibility that another remedy among the "wide range of possibilities" would have addressed the constitutional violations without giving rise to a funding crisis. The District Court here did consider alternatives to the taxing measures it imposed, but only funding alternatives. See, e. g., App. to Pet. for Cert. 86a. There is no indication in the record that the District Court gave any consideration to the possibility that an alternative remedial plan, while less attractive from an educational policy viewpoint, might nonetheless suffice to cure the constitutional violation. Rather, it found only that the taxation orders were necessary to fund the particular remedy it had devised. This Court, with full justification, has given latitude to the district judges that must deal with persisting problems of desegregation. Even when faced with open defiance of the mandate of educational equality, however, no court has ever found necessary a remedy of the scope presented here. For this reason, no order of taxation has ever been approved. The Court fails to provide any explanation why this case presents the need to endorse by dictum so drastic a step. The suggestion that our limited grant of certiorari requires us to decide this case blinkered as to the actual remedy underlying it, ante, at 53, is ill founded. A limited grant of certiorari is not a means by which the Court can pose for itself *80 an abstract question. Our jurisdiction is limited to particular cases and controversies. U. S. Const., Art. III, § 2, cl. 1. The only question this Court has authority to address is whether a judicial tax was appropriate in this case. Moreover, the petition for certiorari in this case included the contention that the District Court should not have considered the power to tax before considering whether its choice of remedy was the only possible way to achieve desegregation as a part of its argument on Question 2, which the Court granted. Pet. for Cert. 27. Far from being an improper invitation to go outside the question presented, attention to the extraordinary remedy here is the Court's duty. This would be a far more prudent course than recharacterizing the case in an attempt to reach premature decision on an important question. If the Court is to take upon itself the power to tax, respect for its own integrity demands that the power be exercised in support of true constitutional principle, not "suburban comparability" and "visual attractiveness." IV This case is a stark illustration of the ever-present question whether ends justify means. Few ends are more important than enforcing the guarantee of equal educational opportunity for our Nation's children. But rules of taxation that override state political structures not themselves subject to any constitutional infirmity raise serious questions of federal authority, questions compounded by the odd posture of a case in which the Court assumes the validity of a novel conception of desegregation remedies we never before have approved. The historical record of voluntary compliance with the decree of Brown v. Board of Education is not a proud chapter in our constitutional history, and the judges of the District Courts and Courts of Appeals have been courageous and skillful in implementing its mandate. But courage and skill must be exercised with due regard for the proper and historic role of the courts. *81 I do not acknowledge the troubling departures in today's majority opinion as either necessary or appropriate to ensure full compliance with the Equal Protection Clause and its mandate to eliminate the cause and effects of racial discrimination in the schools. Indeed, while this case happens to arise in the compelling context of school desegregation, the principles involved are not limited to that context. There is no obvious limit to today's discussion that would prevent judicial taxation in cases involving prisons, hospitals, or other public institutions, or indeed to pay a large damages award levied against a municipality under 42 U.S. C. § 1983. This assertion of judicial power in one of the most sensitive of policy areas, that involving taxation, begins a process that over time could threaten fundamental alteration of the form of government our Constitution embodies. James Madison observed: "Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit." The Federalist, No. 51, p. 352 (J. Cooke ed. 1961). In pursuing the demand of justice for racial equality, I fear that the Court today loses sight of other basic political liberties guaranteed by our constitutional system, liberties that can coexist with a proper exercise of judicial remedial powers adequate to correct constitutional violations.

In agreement with the Court that we have jurisdiction to decide this case, I join Parts I and II of the opinion. I agree also that the District Court exceeded its authority by attempting to impose a tax. The Court is unanimous in its holding, that the Court of Appeals' judgment affirming "the actions that the [district] court has taken to this point," must be reversed. This is consistent with our precedents and the basic principles defining judicial power. In my view, however, the Court transgresses these same principles when it goes further, much further, to embrace by broad dictum an expansion of power in the Federal Judiciary beyond all precedent. Today's casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards *59 fundamental precepts for the democratic control of public institutions. I cannot acquiesce in the majority's statements on this point, and should there arise an actual dispute over the collection of taxes as here contemplated in a case that is not, like this one, premature, we should not confirm the outcome of premises adopted with so little constitutional justification. The Court's statements, in my view, cannot be seen as necessary for its judgment, or as precedent for the future, and I cannot join Parts III and IV of the Court's opinion. I Some essential litigation history is necessary for a full understanding of what is at stake here and what will be wrought if the implications of all the Court's statements are followed to the full extent. The District Court's remedial plan was proposed for the most part by the Kansas City, Missouri, School District (KCMSD) itself, which is in name a defendant in the suit. Defendants, and above all defendants that are public entities, act in the highest and best tradition of our legal system when they acknowledge fault and cooperate to suggest remedies. But in the context of this dispute, it is of vital importance to note the KCMSD demonstrated little concern for the fiscal consequences of the remedy that it helped design. As the District Court acknowledged, the plaintiffs and the KCMSD pursued a "friendly adversary" relationship. Throughout the remedial phase of the litigation, the KCMSD proposed ever more expensive capital improvements with the agreement of the plaintiffs, and the State objected. Some of these improvements involved basic repairs to deteriorating facilities within the school system. The KCMSD, however, devised a broader concept for districtwide improvement, and the District Court approved it. The plan involved a variation of the magnet school concept. Magnet schools, as the majority opinion notes, ante, at 40, n. 6, offer special programs, *60 often used to encourage voluntary movement of students within the district in a pattern that aids desegregation. Although we have approved desegregation plans involving magnet schools of this conventional definition, see the District Court found this insufficient. App. to Pet. for Cert. 122a. Instead, the court and the KCMSD decided to make a magnet of the district as a whole. The hope was to draw new nonminority students from outside the district. The KCMSD plan adopted by the court provided that "every senior high school, every middle school, and approximately one-half of the elementary schools in the KCMSD will become magnet schools by the school year 1991-92." at 121a. The plan was intended to "improve the quality of education of all KCMSD students." at 103a. The District Court was candid to acknowledge that the "long term goal of this Court's remedial order is to make available to all KCMSD students educational opportunities equal to or greater than those presently available in the average Kansas City, Missouri metropolitan suburban school district." at 145a-146a (emphasis in original). It comes as no surprise that the cost of this approach to the remedy far exceeded KCMSD's budget, or for that matter, its authority to tax. A few examples are illustrative. Programs such as a "performing arts middle school," at 118a, a "technical magnet high school" that "will offer programs ranging from heating and air conditioning to cosmetology to robotics," at 75a, were approved. The plan also included a "25 acre farm and 25 acre wildland area" for science study. at 20a. The court rejected various proposals by the State to make "capital improvements necessary to eliminate health and safety hazards and to provide a good learning environment," because these proposals failed to "consider the criteria of suburban comparability." at 70a. The District Court stated: "This `patch and repair' approach proposed by the State would not achieve suburban comparability or the *61 visual attractiveness sought by the Court as it would result in floor coverings with unsightly sections of mismatched carpeting and tile, and individual walls possessing different shades of paint." at 70a. Finding that construction of new schools would result in more "attractive" facilities than renovation of existing ones, the District Court approved new construction at a cost ranging from $61.80 per square foot to $95.70 per square foot as distinct from renovation at $45 per square foot. at 76a. By the time of the order at issue here, the District Court's remedies included some "$260 million in capital improvements and a magnet-school plan costing over $200 million." And the remedial orders grew more expensive as shortfalls in revenue became more severe. As the Eighth Circuit judges dissenting from denial of rehearing in banc put it: "The remedies ordered go far beyond anything previously seen in a school desegregation case. The sheer immensity of the programs encompassed by the district court's order — the large number of magnet schools and the quantity of capital renovations and new construction — are concededly without parallel in any other school district in the country." -1319. The judicial taxation approved by the Eighth Circuit is also without parallel. Other Circuits that have faced funding problems arising from remedial decrees have concluded that, while courts have undoubted power to order that schools operate in compliance with the Constitution, the manner and methods of school financing are beyond federal judicial authority. See National City ; Plaquemines Parish School The Third Circuit, while leaving open the possibility that in some situation a court-ordered tax might be appropriate, has also declined to approve judicial interference in taxation. cert. denied sub nom. Alexis I. du Pont *62 School The Sixth Circuit, in a somewhat different context, has recognized the severe intrusion caused by federal court interference in state and local financing. cert. denied, Unlike these other courts, the Eighth Circuit has endorsed judicial taxation, first in dicta from cases in which taxation orders were in fact disapproved. United ; The case before us represents the first in which a lower federal court has in fact upheld taxation to fund a remedial decree. For reasons explained below, I agree with the Court that the Eighth Circuit's judgment affirming the District Court's direct levy of a property tax must be reversed. I cannot agree, however, that we "stand on different ground when we review the modifications to the District Court's order made by the Court of Appeals," ante, at 52. At the outset, it must be noted that the Court of Appeals made no "modifications" to the District Court's order. Rather, it affirmed "the actions that the court has taken to this point." 855 F.2d, at It is true that the Court of Appeals went on "to consider the procedures which the district court should use in the future." But the Court of Appeals' entire discussion of "a preferable method for future funding," ib can be considered no more than dictum, the court itself having already upheld the District Court's actions to date. No other order of the District Court was before the Court of Appeals. The Court states that the Court of Appeals' discussion of future taxation was not dictum because although the Court of *63 Appeals "did not require the District Court to reverse the tax increase that it had imposed for prior fiscal years," it "required the District Court to use the less obtrusive procedures beginning with the fiscal year commencing after the remand." Ante, at 52-53, n. 18. But no such distinction is found in the Court of Appeals' opinion. Rather, the court "affirm[ed] the actions that the [district] court has taken to this point," which included the District Court's October 27, order increasing property taxes in the KCMSD through the end of fiscal year 1991-1992. The District Court's January 3, 1989, order does not support, but refutes, the Court's characterization. The District Court rejected a request by the KCMSD to increase the property tax rate using the method endorsed by the Eighth Circuit from $4 to $4.23 per $100 of assessed valuation. The District Court reasoned that an increase in property taxes would be difficult to administer and cause resentment among taxpayers, and that an increase in 1989 property taxes would be premature because it was not yet known whether an increase would be necessary to fund expenditures. App. 511-512. In rejecting the KCMSD's request, the District Court left in effect the $4 rate it had established in its October 27, order. Whatever the Court thinks of the Court of Appeals' opinion, the District Court on remand appears to have thought it was under no compulsion to disturb its existing order establishing the $4 property tax rate through fiscal year 1991-1992 unless and until it became necessary to raise property taxes even higher. The Court's discussion today, and its stated approval of the "method for future funding" found "preferable" by the Court of Appeals, is unnecessary for the decision in this case. As the Court chooses to discuss the question of future taxation, however, I must state my respectful disagreement with its analysis and conclusions on this vital question. The premise of the Court's analysis, I submit, is infirm. Any purported distinction between direct imposition of a tax *64 by the federal court and an order commanding the school district to impose the tax is but a convenient formalism where the court's action is predicated on elimination of state-law limitations on the school district's taxing authority. As the Court describes it, the local KCMSD possesses plenary taxing powers, which allow it to impose any tax it chooses if not "hinder[ed]" by the Missouri Constitution and state statutes. Ante, at 57. This puts the conclusion before the premise. Local government bodies in Missouri, as elsewhere, must derive their power from a sovereign, and that sovereign is the State of Missouri. See Mo. Const., Art. X, 1 (political subdivisions may exercise only "[tax] power granted to them" by Missouri General Assembly). Under Missouri law, the KCMSD has power to impose a limited property tax levy up to $1.25 per $100 of assessed value. The power to exact a higher rate of property tax remains with the people, a majority of whom must agree to empower the KCMSD to increase the levy up to $3.75 per $100, and two-thirds of whom must agree for the levy to go higher. See Mo. Const., Art. X, 11(b),(c). The Missouri Constitution states that "[p]roperty taxes and other local taxes may not be increased above the limitations specified herein without direct voter approval as provided by this constitution." Mo. Const., Art. X, 16. For this reason, I reject the artificial suggestion that the District Court may, by "prevent[ing] officials from applying state law that would interfere with the willing levy of property taxes by KCMSD," ante, at 56, n. 20, cause the KCMSD to exercise power under state law. State laws, including taxation provisions legitimate and constitutional in themselves, define the power of the KCMSD. Cf. Absent a change in state law, no increase in property taxes could take *65 place in the KCMSD without a federal court order. It makes no difference that the KCMSD stands "ready, willing, and able" to impose a tax not authorized by state law. Ante, at 51. Whatever taxing power the KCMSD may exercise outside the boundaries of state law would derive from the federal court. The Court never confronts the judicial authority to issue an order for this purpose. Absent a change in state law, the tax is imposed by federal authority under a federal decree. The question is whether a district court possesses a power to tax under federal law, either directly or through delegation to the KCMSD. II Article III of the Constitution states that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The description of the judicial power nowhere includes the word "tax" or anything that resembles it. This reflects the Framers' understanding that taxation was not a proper area for judicial involvement. "The judiciary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever." The Federalist No. 78, p. 523 (A. Hamilton). Our cases throughout the years leave no doubt that taxation is not a judicial function. Last Term we rejected the invitation to cure an unconstitutional tax scheme by broadening the class of those taxed. We said that such a remedy "could be construed as the direct imposition of a state tax, a remedy beyond the power of a federal court." Our statement in Davis rested on the explicit holding in Moses Lake Homes, in which we reversed a judgment directing a District Court to decree a valid tax in place of an invalid one that the State had attempted to enforce: *66 "The effect of the Court's remand was to direct the District Court to decree a valid tax for the invalid one which the State had attempted to exact. The District Court has no power so to decree. Federal courts may not assess or levy taxes. Only the appropriate taxing officials of Grant County may assess and levy taxes on these leaseholds, and the federal courts may determine, within their jurisdiction, only whether the tax levied by those officials is or is not a valid one." The nature of the District Court's order here reveals that it is not a proper exercise of the judicial power. The exercise of judicial power involves adjudication of controversies and imposition of burdens on those who are parties before the Court. The order at issue here is not of this character. It binds the broad class of all KCMSD taxpayers. It has the purpose and direct effect of extracting money from persons who have had no presence or representation in the suit. For this reason, the District Court's direct order imposing a tax was more than an abuse of discretion, for any attempt to collect the taxes from the citizens would have been a blatant denial of due process. Taxation by a legislature raises no due process concerns, for the citizens' "rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule." Bi-Metallic The citizens who are taxed are given notice and a hearing through their representatives, whose power is a direct manifestation of the citizens' consent. A true exercise of judicial power provides due process of another sort. Where money is extracted from parties by a court's judgment, the adjudication itself provides the notice and opportunity to be heard that due process demands before a citizen may be deprived of property. The order here provides neither of these protections. Where a tax is imposed by a governmental body other than *67 the legislature, even an administrative agency to which the legislature has delegated taxing authority, due process requires notice to the citizens to be taxed and some opportunity to be heard. See, e. g., The citizens whose tax bills would have been doubled under the District Court's direct tax order would not have had these protections. The taxes were imposed by a District Court that was not "representative" in any sense, and the individual citizens of the KCMSD whose property (they later learned) was at stake were neither served with process nor heard in court. The method of taxation endorsed by today's dicta suffers the same flaw, for a district court order that overrides the citizens' state-law protection against taxation without referendum approval can in no sense provide representational due process. No one suggests the KCMSD taxpayers are parties. A judicial taxation order is but an attempt to exercise a power that always has been thought legislative in nature. The location of the federal taxing power sheds light on today's attempt to approve judicial taxation at the local level. Article I, 1, states that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (Emphasis added.) The list of legislative powers in Article I, 8, cl. 1, begins with the statement that "[t]he Congress shall have Power To lay and collect Taxes." As we have said, "[t]axation is a legislative function, and Congress is the sole organ for levying taxes." National Cable Television Assn., (citing Article I, 8, cl. 1). True, today's case is not an instance of one branch of the Federal Government invading the province of another. It is instead one that brings the weight of federal authority upon a local government and a State. This does not detract, however, from the fundamental point that the Judiciary is not free to exercise all federal power; it may exercise only the *68 judicial power. And the important effects of the taxation order here raise additional federalism concerns that counsel against the Court's analysis. In perhaps the leading case concerning desegregation remedies, we upheld a prospective remedial plan, not a "money judgment," ante, at 54, against a State's claim that principles of federalism had been ignored in the plan's implementation. In so doing the Court emphasized that the District Court had "neither attempted to restructure local governmental entities nor to mandate a particular method or structure of state or local financing." No such assurances emerge from today's decision, which endorses federal-court intrusion into these precise matters. Our statement in a case decided more than 100 years ago should apply here. "This power to impose burdens and raise money is the highest attribute of sovereignty, and is exercised, first, to raise money for public purposes only; and, second, by the power of legislative authority only. It is a power that has not been extended to the judiciary. Especially is it beyond the power of the Federal judiciary to assume the place of a State in the exercise of this authority at once so delicate and so important." The confinement of taxation to the legislative branches, both in our Federal and State Governments, was not random. It reflected our ideal that the power of taxation must be under the control of those who are taxed. This truth animated all our colonial and revolutionary history. "Your Memorialists conceive it to be a fundamental Principle. without which Freedom can no Where exist, that the People are not subject to any Taxes but such as are laid on them by their own Consent, or by those who are legally appointed to represent them: Property must become too precarious for the Genius of a free People *69 which can be taken from them at the Will of others, who cannot know what Taxes such people can bear, or the easiest Mode of raising them; and who are not under that Restraint, which is the greatest Security against a burthensome Taxation, when the Representatives themselves must be affected by every tax imposed on the People." Virginia Petitions to King and Parliament, December 18, 1764, reprinted in The Stamp Act Crisis 41 (E. Morgan ed. 1952). The power of taxation is one that the Federal Judiciary does not possess. In our system "the legislative department alone has access to the pockets of the people," The Federalist No. 48, p. 334 (J. Madison), for it is the Legislature that is accountable to them and represents their will. The authority that would levy the tax at issue here shares none of these qualities. Our Federal Judiciary, by design, is not representative or responsible to the people in a political sense; it is independent. Federal judges do not depend on the popular will for their office. They may not even share the burden of taxes they attempt to impose, for they may live outside the jurisdiction their orders affect. And federal judges have no fear that the competition for scarce public resources could result in a diminution of their salaries. It is not surprising that imposition of taxes by an authority so insulated from public communication or control can lead to deep feelings of frustration, powerlessness, and anger on the part of taxpaying citizens. The operation of tax systems is among the most difficult aspects of public administration. It is not a function the Judiciary as an institution is designed to exercise. Unlike legislative bodies, which may hold hearings on how best to raise revenues, all subject to the views of constituents to whom the Legislature is accountable, the Judiciary must grope ahead with only the assistance of the parties, or perhaps random amici curiae. Those hearings would be without principled direction, for there exists no body of juridical axioms by *70 which to guide or review them. On this questionable basis, the Court today would give authority for decisions that affect the life plans of local citizens, the revenue available for competing public needs, and the health of the local economy. Day-to-day administration of the tax must be accomplished by judicial trial and error, requisitioning the staff of the existing tax authority, or the hiring of a staff under the direction of the judge. The District Court orders in this case suggest the pitfalls of the first course. See App. to Pet. for Cert. 55a (correcting order for assessment of penalties for nonpayment that "mistakenly" assessed penalties on an extra tax year); at 57a ("clarify[ing]" the inclusion of savings and loan institutions, estates, trusts, and beneficiaries in the court's income tax surcharge and enforcement procedures). Forcing citizens to make financial decisions in fear of the fledgling judicial tax collector's next misstep must detract from the dignity and independence of the federal courts. The function of hiring and supervising a staff for what is essentially a political function has other complications. As part of its remedial order, for example, the District Court ordered the hiring of a "public information specialist," at a cost of $30,000. The purpose of the position was to "solicit community support and involvement" in the District Court's desegregation plan. See at 191a. This type of order raises a substantial question whether a district court may extract taxes from citizens who have no right of representation and then use the funds for expression with which the citizens may disagree. Cf. The Court relies on dicta from to support its statements on judicial taxation. In the Court faced an unrepentent and recalcitrant school board that attempted to provide financial support for white schools while refusing to operate schools for black schoolchildren. We stated that the District Court could "require the Supervisors to exercise the *71 power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system." There is no occasion in this case to discuss the full implications of 's observation, for it has no application here. endorsed the power of a federal court to order the local authority to exercise existing authority to tax. This case does not involve an order to a local government with plenary taxing power to impose a tax, or an order directed at one whose taxing power has been limited by a state law enacted in order to thwart a federal court order. An order of this type would find support in the dicta and present a closer question than the one before us. Yet that order might implicate as well the "perversion of the normal legislative process" that we have found troubling in other contexts. See A legislative vote taken under judicial compulsion blurs lines of accountability by making it appear that a decision was reached by elected representatives when the reality is otherwise. For this reason, it is difficult to see the difference between an order to tax and direct judicial imposition of a tax. The Court asserts that its understanding of follows from cases in which the Court upheld the use of mandamus to compel local officials to collect taxes that were authorized under state law in order to meet bond obligations. See ante, at 55-57. But as there was no state authority in this case for the KCMSD to exercise. In this situation, there could be no authority for a judicial order touching on taxation. See United (where the statute empowering the corporation to issue bonds contains a limit on the taxing power, federal court has no power of mandamus to compel a levy in excess of that power; "We have no power by mandamus to compel a municipal corporation to levy a tax which the law does not authorize. We cannot create new *72 rights or confer new powers. All we can do is to bring existing powers into operation"). The Court cites a single case, Von for the proposition that a federal court may set aside state taxation limits that interfere with the remedy sought by the district court. But the Court does not heed Von Hoffman's holding. There a municipality had authorized a tax levy in support of a specific bond obligation, but later limited the taxation authority in a way that impaired the bond obligation. The Court held the subsequent limitation itself unconstitutional, a violation of the Contracts Clause. Once the limitation was held invalid, the original specific grant of authority remained. There is no allegation here, nor could there be, that the neutral tax limitations imposed by the people of Missouri are unconstitutional. Compare Tr. of Oral Arg. 41 ("nothing in the record to suggest" that tax limitation was intended to frustrate desegregation) with The majority appears to concede that the Missouri tax law does not violate a specific provision of the Constitution, stating instead that state laws may be disregarded on the basis of a vague "reason based in the Constitution." Ante, at 57. But this broad suggestion does not follow from the holding in Von Hoffman. Examination of the "long and venerable line of cases," ante, at 55, cited by the Court to endorse judicial taxation reveals the lack of real support for the Court's rationale. One group of these cases holds simply that the common-law writ of mandamus lies to compel a local official to perform a clear duty imposed by state law. See United ; City of ; Board of Commissioners of Knox These common-law mandamus decisions do not purport to involve the Federal Constitution or remedial powers. A second set of cases, including the Von Hoffman case relied upon by the Court, invalidates on Contracts Clause grounds statutory limitations on taxation power passed subsequent to grants of tax authority in support of bond obligations. See Louisiana ex rel. ; ; These cases, like Von Hoffman, are inapposite because there is no colorable argument that the provision of the Missouri Constitution limiting property tax assessments itself violates the Federal Constitution. A third group of cases involving taxation and municipal bonds is more relevant. These cases hold that where there is no state or municipal taxation authority that the federal court may by mandamus command the officials to exercise, the court is itself without authority to order taxation. In some of these cases, the officials charged with administering the tax resigned their positions, and the Court held that no judicial remedy was available. See In Heine, the Court held that it had no equitable power to impose a tax in order to prevent the plaintiff's right from going without a remedy. "The power we are here asked to exercise is the very delicate one of taxation. This power belongs in this country to the legislative sovereignty, State or National. It certainly is not vested, as in the exercise of an original jurisdiction, in any Federal court. It is unreasonable to suppose that the legislature would ever select a Federal court for that purpose. It is not only not one of the inherent powers of the court to levy and collect taxes, but it is an invasion by the judiciary of the Federal government of the legislative functions of the State government. It is a most extraordinary request, and a compliance with it would involve consequences no less out of the way of judicial procedure, the end of which no wisdom can foresee." Other cases state more broadly that absent state authority for a tax levy, the exercise of which may be compelled by mandamus, the federal court is without power to impose any tax. See ; ("The levying of taxes is not a judicial act. It has no elements of one"); United ; With all respect, it is this third group of cases that applies. The majority would limit these authorities to a narrow "exceptio[n]" *75 for cases where local officers resigned. Ante, at 56, n. 20. This is not an accurate description. Rather, the cases show that where a limitation on the local authority's taxing power is not a subsequent enactment itself in violation of the Contracts Clause, a federal court is without power to order a tax levy that goes beyond the authority granted by state law. The Court states that the KCMSD was "invested with authority to collect and disburse the property tax." Invested by whom? It is plain that the KCMSD had no such power under state law. That being so, the authority to levy a higher tax would have to come from the federal court. The very cases cited by the majority show that a federal court has no such authority. At bottom, today's discussion seems motivated by the fear that failure to endorse judicial taxation power might in some extreme circumstance leave a court unable to remedy a constitutional violation. As I discuss below, I do not think this possibility is in reality a significant one. More important, this possibility is nothing more or less than the necessary consequence of any limit on judicial power. If, however, judicial discretion is to provide the sole limit on judicial remedies, that discretion must counsel restraint. Ill-considered entry into the volatile field of taxation is a step that may place at risk the legitimacy that justifies judicial independence. III One of the most troubling aspects of the Court's opinion is that discussion of the important constitutional issues of judicial authority to tax need never have been undertaken to decide this case. Even were I willing to accept the Court's proposition that a federal court might in some extreme case authorize taxation, this case is not the one. The suggestion that failure to approve judicial taxation here would leave constitutional rights unvindicated rests on a presumption that the District Court's remedy is the only possible cure for the constitutional violations it found. Neither our precedents *76 nor the record support this view. In fact, the taxation power is sought here on behalf of a remedial order unlike any before seen. It cannot be contended that interdistrict comparability, which was the ultimate goal of the District Court's orders, is itself a constitutional command. We have long since determined that "unequal expenditures between children who happen to reside in different districts" do not violate the Equal Protection Clause. San Antonio Independent School The District Court in this case found, and the Court of Appeals affirmed, that there was no interdistrict constitutional violation that would support mandatory interdistrict relief. See Instead, the District Court's conclusion that desegregation might be easier if more nonminority students could be attracted into the KCMSD was used as the hook on which to hang numerous policy choices about improving the quality of education in general within the KCMSD. The State's complaint that this suit represents the attempt of a school district that could not obtain public support for increased spending to enlist the District Court to finance its educational policy cannot be dismissed out of hand. The plaintiffs and KCMSD might well be seen as parties that have "joined forces apparently for the purpose of extracting funds from the state treasury." This Court has never approved a remedy of the type adopted by the District Court. There are strong arguments against the validity of such a plan. A remedy that uses the quality of education as a lure to attract nonminority students will place the District Court at the center of controversies over educational philosophy that by tradition are left to this Nation's communities. Such a plan as a practical matter raises many of the concerns involved in interdistrict desegregation remedies. Cf. District courts can and must take needed steps to eliminate racial discrimination and ensure the operation of unitary school systems. But it is discrimination, not the ineptitude of educators or the indifference of the public, that is the evil to be remedied. An initial finding of discrimination cannot be used as the basis for a wholesale shift of authority over day-to-day school operations from parents, teachers, and elected officials to an unaccountable district judge whose province is law, not education. Perhaps it is good educational policy to provide a school district with the items included in the KCMSD capital improvement plan, for example: high schools in which every classroom will have air conditioning, an alarm system, and 15 microcomputers; a 2,000-square-foot planetarium; greenhouses and vivariums; a 25-acre farm with an air-conditioned meeting room for 104 people; a Model United Nations wired for language translation; broadcast capable radio and television studios with an editing and animation lab; a temperature controlled art gallery; movie editing and screening rooms; a 3,500-square-foot dust-free diesel mechanics room; 1,875-square-foot elementary school animal rooms for use in a zoo project; swimming pools; and numerous other facilities. But these items are a part of legitimate political debate over educational policy and spending priorities, not the Constitution's command of racial equality. Indeed, it may be that a mere 12-acre petting farm, or other corresponding reductions in court-ordered spending, might satisfy constitutional requirements, while preserving scarce public funds for legislative allocation to other public needs, such as paving streets, feeding the poor, building prisons, or housing the homeless. Perhaps the KCMSD's Classical Greek theme schools emphasizing forensics and self-government will provide exemplary training in participatory democracy. But if today's dicta become law, such lessons will be of little use to students who grow up to become taxpayers in the KCMSD. *78 I am required in light of our limited grant of certiorari to assume that the remedy chosen by the District Court was a permissible exercise of its remedial discretion. But it is misleading to suggest that a failure to fund this particular remedy would leave constitutional rights without a remedy. In fact, the District Court acknowledged in its very first remedial order that the development of a remedy in this case would involve "a choice among a wide range of possibilities." App. to Pet. for Cert. 153a. Its observation was consistent with our cases concerning the scope of equitable remedies, which have recognized that "equity has been characterized by a practical flexibility in shaping its remedies." Any argument that the remedy chosen by the District Court was the only one possible is in fact unsupportable in light of our previous cases. We have approved desegregation orders using assignment changes and some ancillary education programs to ensure the operation of a unitary school system for the district's children. See, e. g., Columbus Bd. of ; Dayton Bd. of To suggest that a constitutional violation will go unremedied if a district does not, though capital improvements or other means, turn every school into a magnet school, and the entire district into a magnet district, is to suggest that the remedies approved in our past cases should have been disapproved as insufficient to deal with the violations. The truth of the matter is that the remedies in those cases were permissible choices among the many that might be adopted by a district court. The prudence we have required in other areas touching on federal court intrusion in local government, see, e. g., is missing here. Even on the assumption that a federal court might order taxation in an extreme case, the unique nature of the taxing power would demand that this remedy be used as a last resort. In my view, a taxation order should not even be *79 considered, and this Court need never have addressed the question, unless there has been a finding that without the particular remedy at issue the constitutional violation will go unremedied. By this I do not mean that the remedy is, as we assume this one was, within the broad discretion of the district court. Rather, as a prerequisite to considering a taxation order, I would require a finding that that any remedy less costly than the one at issue would so plainly leave the violation unremedied that its implementation would itself be an abuse of discretion. There is no showing in this record that, faced with the revenue shortfall, the District Court gave due consideration to the possibility that another remedy among the "wide range of possibilities" would have addressed the constitutional violations without giving rise to a funding crisis. The District Court here did consider alternatives to the taxing measures it imposed, but only funding alternatives. See, e. g., App. to Pet. for Cert. 86a. There is no indication in the record that the District Court gave any consideration to the possibility that an alternative remedial plan, while less attractive from an educational policy viewpoint, might nonetheless suffice to cure the constitutional violation. Rather, it found only that the taxation orders were necessary to fund the particular remedy it had devised. This Court, with full justification, has given latitude to the district judges that must deal with persisting problems of desegregation. Even when faced with open defiance of the mandate of educational equality, however, no court has ever found necessary a remedy of the scope presented here. For this reason, no order of taxation has ever been approved. The Court fails to provide any explanation why this case presents the need to endorse by dictum so drastic a step. The suggestion that our limited grant of certiorari requires us to decide this case blinkered as to the actual remedy underlying it, ante, at 53, is ill founded. A limited grant of certiorari is not a means by which the Court can pose for itself *80 an abstract question. Our jurisdiction is limited to particular cases and controversies. U. S. Const., Art. III, 2, cl. 1. The only question this Court has authority to address is whether a judicial tax was appropriate in this case. Moreover, the petition for certiorari in this case included the contention that the District Court should not have considered the power to tax before considering whether its choice of remedy was the only possible way to achieve desegregation as a part of its argument on Question 2, which the Court granted. Pet. for Cert. 27. Far from being an improper invitation to go outside the question presented, attention to the extraordinary remedy here is the Court's duty. This would be a far more prudent course than recharacterizing the case in an attempt to reach premature decision on an important question. If the Court is to take upon itself the power to tax, respect for its own integrity demands that the power be exercised in support of true constitutional principle, not "suburban comparability" and "visual attractiveness." IV This case is a stark illustration of the ever-present question whether ends justify means. Few ends are more important than enforcing the guarantee of equal educational opportunity for our Nation's children. But rules of taxation that override state political structures not themselves subject to any constitutional infirmity raise serious questions of federal authority, questions compounded by the odd posture of a case in which the Court assumes the validity of a novel conception of desegregation remedies we never before have approved. The historical record of voluntary compliance with the decree of is not a proud chapter in our constitutional history, and the judges of the District Courts and Courts of Appeals have been courageous and skillful in implementing its mandate. But courage and skill must be exercised with due regard for the proper and historic role of the courts. *81 I do not acknowledge the troubling departures in today's majority opinion as either necessary or appropriate to ensure full compliance with the Equal Protection Clause and its mandate to eliminate the cause and effects of racial discrimination in the schools. Indeed, while this case happens to arise in the compelling context of school desegregation, the principles involved are not limited to that context. There is no obvious limit to today's discussion that would prevent judicial taxation in cases involving prisons, hospitals, or other public institutions, or indeed to pay a large damages award levied against a municipality under 42 U.S. C. 1983. This assertion of judicial power in one of the most sensitive of policy areas, that involving taxation, begins a process that over time could threaten fundamental alteration of the form of government our Constitution embodies. James Madison observed: "Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit." The Federalist, No. 51, p. 352 In pursuing the demand of justice for racial equality, I fear that the Court today loses sight of other basic political liberties guaranteed by our constitutional system, liberties that can coexist with a proper exercise of judicial remedial powers adequate to correct constitutional violations.

Justice Brennan

dissenting

Walters v. National Assn. of Radiation Survivors

https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/

https://www.courtlistener.com/api/rest/v3/clusters/111504/

1984-155

The Court today concludes that it has mandatory jurisdiction pursuant to 28 U.S. C. § 1252 directly to review the District Court's entry of a preliminary injunction restraining the Government from enforcing the provisions of 38 U.S. C. §§ 3404 and 3405 pending a full trial on the merits of appellees' contention that those statutes violate the First and *339 Fifth Amendments. Ante, at 316-319.[1] The Court then proceeds to sustain the constitutionality of those statutes on the ground that "the process allows a claimant to make a meaningful presentation" on behalf of his claim for service-connected death and disability benefits even without the assistance of his attorney. Ante, at 335. The Court having reached this issue, I feel constrained to note my strong disagreement on the merits for the reasons eloquently set forth in JUSTICE STEVENS' dissent, which I join. I write separately, however, because I believe the Court's exercise of appellate jurisdiction in this case is not authorized by § 1252. Because the District Court's interlocutory order granting a preliminary injunction did not constitute a decision striking down the challenged statutes on constitutional grounds, appellate review of the propriety and scope of the preliminary injunction instead rests initially in the Court of Appeals for the Ninth Circuit pursuant to 28 U.S. C. § 1292(a)(1), from which review in this Court could then be sought through a petition for a writ of certiorari. The Court's decision to the contrary is wholly inconsistent with the purpose and history of § 1252, well-established principles respecting interlocutory review of preliminary injunctions, and common sense. I The District Court did not hold that §§ 3404 and 3405 are unconstitutional either on their face or as applied. Instead, for purposes of considering the appellees' motion for a pretrial preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure, it found that appellees had *340 "demonstrated a high likelihood of prevailing" on the merits of their due process and First Amendment challenges. 589 F. Supp. 1302, 1323 (ND Cal. 1984); see also id., at 1307, 1327, 1329. The court then weighed the potential for irreparable injury and the balance of hardships in light of this likelihood of success. It found that the appellees had "shown the irreparable injury necessary to obtain injunctive relief" and concluded that "the balance of hardship also weighs heavily in [their] favor." Id., at 1329.[2] Accordingly, the court entered a broad preliminary injunction restraining enforcement of the challenged statutes "pending a trial on the merits of the above-entitled action." Ibid. As this Court was advised at oral argument, the appellees contemplate further extensive *341 discovery and a full trial on the underlying First and Fifth Amendment issues. Tr. of Oral Arg. 31-32.[3] Contrary to the Court's assertion, there is much more than a "semantic difference" between a finding of likelihood of success sufficient to support preliminary relief and a final holding on the merits. Ante, at 317. Until today, the Court always has recognized that district court findings on "likelihood of success on the merits" are not "tantamount to decisions on the underlying merits"; the two are "significantly different." University of Texas v. Camenisch, 451 U.S. 390, 393-394 (1981). Preliminary injunctions are granted on the basis of a broad "balance of factors" determined through "procedures that are less formal and evidence that is less complete than in a trial on the merits," and the parties are accorded neither "a full opportunity to present their cases nor . . . a final judicial decision based on the actual merits of a controversy." Id., at 395-396 (emphasis added). District court orders granting preliminary injunctions may therefore be reviewed only on an abuse-of-discretion standard: an appellate court may conclude that the district court's preliminary relief sweeps too broadly, or is based on an improper balancing of hardships, or even that the likelihood of success has been overdrawn. See generally Doran v. Salem Inn, Inc., 422 U.S. 922, 931-932 (1975); Brown v. Chote, 411 U.S. 452, 457 (1973). But under the abuse-of-discretion standard, appellate courts obviously may "intimate no view as to the ultimate merits" of the underlying controversy. Doran v. Salem Inn, Inc., supra, at 934; Brown v. Chote, supra, at 457.[4] For several reasons, this is particularly true *342 where "grave, far-reaching constitutional questions" are presented: the records developed in preliminary-injunction cases are "simply insufficient" to allow a final decision on the merits; as a matter of fairness the litigants are entitled to a full evidentiary presentation before a final decision is reached; and where question of constitutional law turn on disputed fact,[5] such decisions must initially be rendered by a district court factfinder. Brown v. Chote, supra, at 457. Section 1252 does not empower this Court directly to police the preliminary-injunctive process in the district courts. Instead, it was enacted to ensure the "prompt determination by the court of last resort of disputed questions of the constitutionality of acts of the Congress."[6] Whether one relies on *343 the codified language — permitting a direct appeal from a lower-court decision "holding an Act of Congress unconstitutional"[7] — or on the original language of the statute — permitting a direct appeal where "the decision is against the constitutionality of any Act of Congress"[8] — it is obvious that *344 § 1252 contemplates a fully consummated lower-court decision of unconstitutionality so that this Court may carry out the statutory purpose of rendering a prompt and dispositive determination respecting the constitutionality of the challenged legislation. Jurisdiction pursuant to § 1252 accordingly is proper only where "the basis of the decision below in fact was that the Act of Congress was unconstitutional," United States v. Raines, 362 U.S. 17, 20 (1960) (emphasis added)[9] — and "likelihood" simply does not equate with "in fact." Where a district court merely has concluded that there is a "likelihood" of unconstitutionality sufficient to support temporary relief, § 1252's underlying purpose cannot be fulfilled because this Court (if faithful to precedent) cannot resolve the "ultimate merits" of the underlying constitutional issue. Doran v. Salem Inn, Inc., 422 U. S., at 934; Brown v. Chote, 411 U. S., at 457. Instead, all the Court could do would be to consider whether the nature or scope of preliminary relief constituted abuses of discretion, and perhaps to disagree with the district court respecting the "likelihood" that the appellees ultimately would prevail. In my opinion, these questions relating to the supervision of the injunctive process are not subsumed in § 1252 and properly are left in the first instance to the courts of appeals. The Court argues, however, that because § 1252 explicitly grants jurisdiction to this Court "from an interlocutory or final judgment" of unconstitutionality, Congress surely intended to include preliminary injunctions granted on "likelihood of success" within the scope of § 1252. Ante, at 316-317, 318-319. The Court reinforces this argument by noting *345 that all interlocutory decisions, even if cast in dispositive terms, "are subject to revision" before entry of final judgment. Ante, at 317. This argument is wholly unpersuasive. As demonstrated by the large body of precedent applying 28 U.S. C. §§ 1291 and 1292(a), there is a substantial difference between interlocutory decisions that are "tentative, informal or incomplete"[10] and those that for all practical purposes "conclusively determine the disputed question."[11] Interlocutory decisions falling within the latter category may, in a small set of circumstances, be immediately appealed because they represent "fully consummated decisions" on the matter in question that are capable of being reviewed and dispositively affirmed or reversed.[12] The "bare fact"[13] that every order short of a final decree is theoretically "subject to reopening at the discretion of the district judge" is insufficient to preclude review in these circumstances.[14] Instead, interlocutory appeals to the courts of appeals pursuant to §§ 1291 and 1292(a) are proper when no further consideration of the disputed issue is contemplated by the district court and when, as a practical matter, there is "no basis to suppose" that the resolution is anything less than definite.[15] Where the disputed decision "remains open, unfinished or inconclusive," on the other hand, it is well established that under §§ 1291 and 1292(a) "there may be no instrusion by appeal" of the unresolved issue.[16] The reasons are manifest. If the appellate court addressed the issue in such an inconclusive *346 posture, it either would render an advisory opinion that had no binding effect or, if binding effect were intended, would usurp the authority of the district court to pass on the issue in the first instance. "Appeal gives the upper court a power of review, not one of intervention."[17] This elementary distinction applies with direct force to appeals pursuant to § 1252.[18] Where a district court issues an interlocutory order based on a fully consummated determination that a federal statute is unconstitutional, an appeal is proper because the constitutional question can authoritatively be decided with dispatch. Thus in Fleming v. Rhodes, 331 U.S. 100, 102 (1947), the District Court had denied preliminary relief enjoining the eviction of tenants on the ground that the federal statute prohibiting the evictions was unconstitutional. And in McLucas v. DeChamplain, 421 U.S. 21, 26-27 (1975), the District Court for the District of Columbia had preliminary enjoined the enforcement of a statute in reliance on a decision by the Court of Appeals for the District of Columbia Circuit that the statute was unconstitutional — "a decision," we noted, that was "binding on the District Court," id., at 28. In neither case was there any basis to believe that the interlocutory holding of unconstitutionality was anything but final. On the other hand, we have never in the 48-year history of § 1252 assumed jurisdiction where the district court had done no more than simply determine that there was a "likelihood" of unconstitutionality sufficient to support temporary relief pending a final decision on the merits. Because such determinations *347 are inherently "open, unfinished [and] inconclusive,"[19] the only proper questions for immediate appellate consideration would be whether the entry and scope of preliminary relief were abuses of discretion. But such review is not the purpose of § 1252 because, as the Court today concedes, "it was the constitutional question that Congress wished this Court to decide." Ante, at 318 (emphasis added).[20] If the Court did address the constitutional issue in these circumstances, it either would be rendering an advisory opinion subject to revision once the district court reached the merits or, to the extent it purported to pass on the issue with finality, would be exercising a forbidden "power . . . of intervention" rather than of review.[21] We have long recognized that such intervention is barred under §§ 1291 and 1292(a), and should have so recognized here as well.[22] *348 The Court contends, however, that the District Court in this case enjoined the challenged statute "across the country and under all circumstances," and that immediate mandatory appeal to this Court therefore "is in accord with the purpose of the statutory grant" — provision of "an expeditious means for ensuring certainty and uniformity in the enforcement of such an Act." Ante, at 318-319. See also ante, at 336-337 (O'CONNOR, J., concurring). Congress unquestionably intended by § 1252 to provide an "expeditious" means for resolving constitutional questions,[23] but an appeal is proper only when it is those questions themselves that have been decided — a condition not met in preliminary-injunction cases where, as here, we may "intimate no view as to the ultimate merits" of the underlying controversy. Doran v. Salem Inn, Inc., 422 U. S., at 934. Moreover, the Court's reasoning sweeps both too narrowly and too broadly. It sweeps too narrowly because mandatory jurisdiction pursuant to § 1252 is not confined to district court decisions striking down statutes "across the country and under all circumstances." Ante, at 319. See also ante, at 336 (O'CONNOR, J., concurring). We have instead long recognized that § 1252 requires that we review decisions that simply invalidate challenged statutes even as applied only to particular individuals in particular circumstances.[24] Allowing *349 an immediate appeal in these circumstances is thought to further the "great public interest" in securing "prompt determinations" of the validity of lower court precedent that might have binding effect in cases beyond the one at hand.[25] Where a district court simply has granted a preliminary injunction — or for that matter a temporary restraining order[26] — barring enforcement of a statute as applied to certain individuals, the precedential effect is far more obscure. Such orders are based on a case-specific balancing of the equities that may well not carry over into other situations. It is simply too burdensome for this Court to bear mandatory direct jurisdiction over every preliminary injunction, temporary restraining order, and other pretrial order in cases potentially implicating the constitutionality of federal statutes. The Court might respond that § 1252 appeals in this context can be limited to preliminary relief having nationwide impact, but this would be bootstrap reasoning without support in our precedents: the propriety of an appeal under § 1252 turns not on the scope of the potential impact, but on the underlying nature of the district court's determination.[27] *350 The Court's reasoning sweeps too broadly because there are means other than an expansive reading of § 1252 to ensure that improvident district court injunctions based on "likelihood of success" do not impede the effective functioning of the Federal Government. As Congress has emphasized, "[s]wift judicial review can be had in cases where the public interest requires it" through means short of mandatory appeals jurisdiction.[28] Pursuant to 28 U.S. C. § 1292(a), for example, the courts of appeals may promptly review district court orders granting or denying preliminary injunctions. Courts of appeals routinely supervise the trial-court injunctive process and are therefore in a far superior position to pass initially on questions of irreparable injury, balance of hardships, and abuse of discretion.[29] Moreover, if the question whether a district court abused its discretion in issuing preliminary relief "is of such imperative public importance as to justify the deviation from normal appellate practice and to require immediate settlement in this Court," this Court's Rule 18, certiorari review can be obtained before the court of appeals renders judgment. See 28 U.S. C. § 2101(e). This Court has not hesitated to exercise this power of swift intervention in cases of extraordinary constitutional moment and *351 in cases demanding prompt resolution for other reasons.[30] Under this procedure, the Court has discretion to limit immediate review to exceptional cases and to leave initial review of most matters in the courts of appeals — which of course "recognize the vital importance of the time element" in constitutional challenges involving the granting or denial of interlocutory relief.[31] Under today's construction of § 1252, however, the Court has no such discretion and accordingly has, I respectfully submit, expanded its mandatory docket to matters that we have no business resolving in the first instance. One final consideration, based on the history of § 1252 and related provisions, sheds further light on the fallacy of the Court's jurisdictional reasoning. Section 1252 originally was enacted as § 2 of the Judiciary Act of 1937, 50 Stat. 752. Section 3 of that Act created the since-repealed three-judge district court provisions of 28 U.S. C. § 2282 (1970 ed.). Section 3 provided that "[n]o interlocutory or permanent injunction suspending or restraining the enforcement, operation, or execution of, or setting aside, in whole or in part, any Act of Congress" in cases challenging the constitutionality of the Act could be granted unless presented to and resolved by a three-judge district court. That section also contained its own built-in jurisdictional authorization for direct Supreme Court review of any "order, decree, or judgment" issued by *352 such a court granting or denying "an interlocutory or permanent injunction in such case." Moreover, § 3 provided that a single district judge could enter a "temporary stay or suspension, in whole or in part," of the enforcement of the challenged statute "until decision upon the application," provided that the applicant made a sufficient showing of, inter alia, "irreparable loss or damage."[32] *353 The history of § 3 is relevant to the instant question in two respects. First, this Court has held flatly that temporary relief granted by a single district judge pending the convening of a three-judge court is reviewable in the first instance by the courts of appeals and not on direct appeal to this Court. See, e. g., Hicks v. Pleasure House, Inc., 404 U.S. 1, 3 (1971) (per curiam) (preliminary relief "issued pursuant to [28 U.S. C.] § 2284(3) is reviewable in a court of appeals to the extent that any such order is reviewable under 28 U.S. C. §§ 1291 and 1292(a)").[33] It would have made no sense to channel appeals of such orders under § 3 to the courts of appeals while channeling appeals of identical preliminary orders in cases that might ultimately fall within § 2 to this Court in the first instance. Second, when Congress repealed § 2282 in 1976[34] it specifically considered the question of the best means for policing the injunctive process in constitutional challenges pending decision on the underlying merits. Whereas review of three-judge interlocutory orders in such cases formerly had been routed directly to this Court, see §§ 2282, 2283 (1970 ed.), Congress believed that interlocutory review in the courts of *354 appeals pursuant to §§ 1291 and 1292(a) would be most consistent with sound judicial administration. "One other concern of the committee was the review of the granting, or the denial, of a stay of an injunction by a district court. The committee believes that with appeals of these cases clearly vested in the 11 Circuit Courts of Appeal, they will be more able than the Supreme Court to carefully consider and evaluate requests for a stay in these cases and that ample procedures exist to act effectively in these cases. See, 3 Barron and Holtzoff (Wright ed.) §§ 1371-78." S. Rep. No. 94-204, p. 11 (1975).[35] Congress thereby indicated its firm intention to leave monitoring of the equitable injunctive process to the courts of appeals in the first instance, and to reserve mandatory direct Supreme Court review for those cases in which this Court properly could resolve the underlying merits of the constitutional challenges themselves.[36] II Although deciding that a direct appeal of this preliminary injunction is proper, the six Members of today's majority appear to be sharply divided over the nature of the issues before us and the proper scope of our authority on review. JUSTICE O'CONNOR, joined by JUSTICE BLACKMUN, eschews any attempt to resolve the underlying merits of the constitutional challenge. She properly recognizes that, because *355 "[t]he merits of these claims are difficult to evaluate on the record of affidavits and depositions developed at the preliminary injunction stage," it would be improper to express any views on the merits of the appellees' as-applied challenges. Ante, at 338 (concurring opinion). Nor, properly, does JUSTICE O'CONNOR purport to determine the facial validity of the challenged statutes, given that the District Court has never reached a fully consummated determination on that question. Instead, she simply observes that "the record falls short of establishing any likelihood of such sweeping facial invalidity." Ante, at 337 (emphasis added). JUSTICE O'CONNOR accordingly limits her analysis to application of the abuse-of-discretion standard that governs review of preliminary-injunction orders, concluding that "the District Court abused its discretion in issuing a nationwide preliminary injunction." Ante, at 336. Although I find this approach far preferable to that taken by the opinion for the Court, I respectfully submit that it is inconsistent with § 1252 for two reasons: First, as set forth above, application of the abuse-of-discretion standard to the equitable process of granting preliminary relief is not subsumed in § 1252 and properly is left to the courts of appeals in the first instance. Second, this approach, by properly avoiding the ultimate resolution of the facial and as-applied constitutional challenges, has not in the slightest way furthered the underlying purpose of § 1252 — ensuring the prompt and dispositive resolution of the merits of facial and as-applied constitutional challenges to federal statutes.[37] The opinion for the Court appears to take a very different tack. To be sure, the Court notes two or three times that the District Court simply found a "likelihood" that the appellees *356 after a full trial would be able to demonstrate the unconstitutionality of the challenged statutes, and it states once in passing that the District Court "abused its discretion" in so finding. Ante, at 312-313, 315, 334. But that is not the essence of the Court's approach. The Court repeatedly seeks to cast doubt on the bona fides of the District Court's entry of preliminary relief pursuant to Rule 65 by describing that relief in quotation marks: the District Court did not really grant a preliminary injunction, but a "preliminary injunction." Ante, at 308, 312, 316. Having thus suggested that the matter is one of "semantic[s]" making "little difference," ante, at 317, the Court proceeds to assert, repeatedly, that the District Court actually "held that [the $10] limit violates the Due Process Clause of the Fifth Amendment, and the First Amendment," ante, at 307 (emphasis added).[38] Having thus mischaracterized the District Court's decision, the Court then purports "to decide this case on the merits," ante, at 312, n. 5 — bootstrapping its way past the rule that we may "intimate no view as to the ultimate merits" in preliminary-injunction cases[39] by observing that, under § 1252, "it was the constitutional question that Congress wished this Court to decide," ante, at 318 (emphasis added). Having thus paved the way for its consideration of the constitutional merits, the Court then proceeds to "review" the District Court's "holding" in light of the record evidence and the three-part Mathews v. Eldridge, 424 U.S. 319 (1976), balancing test. The Court focuses on the Mathews factors of the risk of an erroneous decision through the current procedures and the probable value of additional safeguards. The Court rummages through the partially developed record and seizes upon scattered evidence introduced by the Government on the eve of the preliminary-injunction hearing — evidence that never has been tested in a trial on the merits — and pronounces that evidence "reliable" and compelling. See, *357 e. g., ante, at 331.[40] Moreover, the Court excoriates the appellees and the District Court repeatedly for failing to muster sufficient evidence to support the "holding" of unconstitutionality: the appellees made "no such" sufficient presentation of evidence, introduced "nothing" to support the "holding," and "failed to make the very difficult factual showing" necessary to support the "holding" of unconstitutionality. Ante, at 326, 329, 330.[41] The conclusion is preordained: the statutes give the appellees "an opportunity under the present claims process" to "make a meaningful presentation" without an attorney's assistance, and the District Court's "holding" of unconstitutionality must therefore be reversed. Ante, at 335. This brand of constitutional adjudication is extraordinary. Whereas JUSTICE O'CONNOR faithfully adheres to the limited role of appellate judges in reviewing preliminary injunctions and thereby departs from the purposes of § 1252, the opinion for the Court seizes upon the underlying purposes of § 1252 in order to evade the well-established rule prohibiting appellate courts from even purporting to "intimate . . . view[s]" on the ultimate merits when reviewing preliminary injunctions granted on likelihood of success. Doran v. Salem Inn, Inc., 422 U. S., at 934. If the opinion for the Court turns out to be more than an unfortunate aberration, it will threaten a fundamental transformation of the equitable process of granting preliminary relief in cases challenging the constitutionality of Government action.[42] Individual litigants seeking such *358A relief on grounds of irreparable injury and a balancing of hardships will essentially be required to confront the Government with both hands tied behind their backs: if they successfully obtain such relief, this Court will immediately intervene pursuant to § 1252 to review the "holding" of unconstitutionality, will make de novo findings that selected evidence is "reliable," will castigate the individuals for failing to adduce sufficient evidence to support the "merits" of the "holding," and will issue a ringing proclamation that the challenged statute is constitutional. III I believe that § 1252 should have been construed to permit a direct appeal to this Court only from a lower court decision that represents a fully consummated determination that an Act of Congress is unconstitutional so as to permit this Court properly to resolve the constitutional question on the merits. Unlike JUSTICE O'CONNOR, I do not believe that § 1252 requires this Court directly to police the injunctive process in constitutional challenges in the first instance. Unlike the opinion for the Court, I do not believe that § 1252 may be invoked in such cases to short-circuit the process of orderly and principled constitutional adjudication. Accordingly, I believe the Court should have vacated the judgment and remanded to the District Court for the entry of a fresh decree, so that the Government could take a proper appeal of the preliminary-injunction order to the Court of Appeals for the Ninth Circuit. See, e. g., United States v. Christian Echoes National Ministry, 404 U.S. 561, 566 (1972) (per curiam). The Court having decided to the contrary and having reached the merits, I join JUSTICE STEVENS' dissent.

The Court today concludes that it has mandatory jurisdiction pursuant to 28 U.S. C. 1252 directly to review the District Court's entry of a preliminary injunction restraining the Government from enforcing the provisions of 8 U.S. C. 404 and 405 pending a full trial on the merits of appellees' contention that those statutes violate the First and *9 Fifth Amendments. Ante, at 16-19.[1] The Court then proceeds to sustain the constitutionality of those statutes on the ground that "the process allows a claimant to make a meaningful presentation" on behalf of his claim for service-connected death and disability benefits even without the assistance of his attorney. Ante, at 5. The Court having reached this issue, I feel constrained to note my strong disagreement on the merits for the reasons eloquently set forth in JUSTICE STEVENS' dissent, which I join. I write separately, however, because I believe the Court's exercise of appellate jurisdiction in this case is not authorized by 1252. Because the District Court's interlocutory order granting a preliminary injunction did not constitute a decision striking down the challenged statutes on constitutional grounds, appellate review of the propriety and scope of the preliminary injunction instead rests initially in the Court of Appeals for the Ninth Circuit pursuant to 28 U.S. C. 1292(a)(1), from which review in this Court could then be sought through a petition for a writ of certiorari. The Court's decision to the contrary is wholly inconsistent with the purpose and history of 1252, well-established principles respecting interlocutory review of preliminary injunctions, and common sense. I The District Court did not hold that 404 and 405 are unconstitutional either on their face or as applied. Instead, for purposes of considering the appellees' motion for a pretrial preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure, it found that appellees had *40 "demonstrated a high likelihood of prevailing" on the merits of their due process and First Amendment challenges. ; see also The court then weighed the potential for irreparable injury and the balance of hardships in light of this likelihood of success. It found that the appellees had "shown the irreparable injury necessary to obtain injunctive relief" and concluded that "the balance of hardship also weighs heavily in [their] favor."[2] Accordingly, the court entered a broad preliminary injunction restraining enforcement of the challenged statutes "pending a trial on the merits of the above-entitled action." As this Court was advised at oral argument, the appellees contemplate further extensive *41 discovery and a full trial on the underlying First and Fifth Amendment issues. Tr. of Oral Arg. 1-2.[] Contrary to the Court's assertion, there is much more than a "semantic difference" between a finding of likelihood of success sufficient to support preliminary relief and a final holding on the merits. Ante, at 17. Until today, the Court always has recognized that district court findings on "likelihood of success on the merits" are not "tantamount to decisions on the underlying merits"; the two are "significantly different." University of Preliminary injunctions are granted on the basis of a broad "balance of factors" determined through "procedures that are less formal and evidence that is less complete than in a trial on the merits," and the parties are accorded neither "a full opportunity to present their cases nor a final judicial decision based on the actual merits of a controversy." District court orders granting preliminary injunctions may therefore be reviewed only on an abuse-of-discretion standard: an appellate court may conclude that the district court's preliminary relief sweeps too broadly, or is based on an improper balancing of hardships, or even that the likelihood of success has been overdrawn. See generally ; But under the abuse-of-discretion standard, appellate courts obviously may "intimate no view as to the ultimate merits" of the underlying controversy. ; at[4] For several reasons, this is particularly true *42 where "grave, far-reaching constitutional questions" are presented: the records developed in preliminary-injunction cases are "simply insufficient" to allow a final decision on the merits; as a matter of fairness the litigants are entitled to a full evidentiary presentation before a final decision is reached; and where question of constitutional law turn on disputed fact,[5] such decisions must initially be rendered by a district court factfinder. at Section 1252 does not empower this Court directly to police the preliminary-injunctive process in the district courts. Instead, it was enacted to ensure the "prompt determination by the court of last resort of disputed questions of the constitutionality of acts of the Congress."[6] Whether one relies on *4 the codified language — permitting a direct appeal from a lower-court decision "holding an Act of Congress unconstitutional"[7] — or on the original language of the statute — permitting a direct appeal where "the decision is against the constitutionality of any Act of Congress"[8] — it is obvious that *44 1252 contemplates a fully consummated lower-court decision of unconstitutionality so that this Court may carry out the statutory purpose of rendering a prompt and dispositive determination respecting the constitutionality of the challenged legislation. Jurisdiction pursuant to 1252 accordingly is proper only where "the basis of the decision below in fact was that the Act of Congress was unconstitutional," United [9] — and "likelihood" simply does not equate with "in fact." Where a district court merely has concluded that there is a "likelihood" of unconstitutionality sufficient to support temporary relief, 1252's underlying purpose cannot be fulfilled because this Court (if faithful to precedent) cannot resolve the "ultimate merits" of the underlying constitutional issue. 422 U. S., ; 411 U. S., at Instead, all the Court could do would be to consider whether the nature or scope of preliminary relief constituted abuses of discretion, and perhaps to disagree with the district court respecting the "likelihood" that the appellees ultimately would prevail. In my opinion, these questions relating to the supervision of the injunctive process are not subsumed in 1252 and properly are left in the first instance to the courts of appeals. The Court argues, however, that because 1252 explicitly grants jurisdiction to this Court "from an interlocutory or final judgment" of unconstitutionality, Congress surely intended to include preliminary injunctions granted on "likelihood of success" within the scope of 1252. Ante, at 16-17, 18-19. The Court reinforces this argument by noting *45 that all interlocutory decisions, even if cast in dispositive terms, "are subject to revision" before entry of final judgment. Ante, at 17. This argument is wholly unpersuasive. As demonstrated by the large body of precedent applying 28 U.S. C. 1291 and 1292(a), there is a substantial difference between interlocutory decisions that are "tentative, informal or incomplete"[10] and those that for all practical purposes "conclusively determine the disputed question."[11] Interlocutory decisions falling within the latter category may, in a small set of circumstances, be immediately appealed because they represent "fully consummated decisions" on the matter in question that are capable of being reviewed and dispositively affirmed or reversed.[12] The "bare fact"[1] that every order short of a final decree is theoretically "subject to reopening at the discretion of the district judge" is insufficient to preclude review in these circumstances.[14] Instead, interlocutory appeals to the courts of appeals pursuant to 1291 and 1292(a) are proper when no further consideration of the disputed issue is contemplated by the district court and when, as a practical matter, there is "no basis to suppose" that the resolution is anything less than definite.[15] Where the disputed decision "remains open, unfinished or inconclusive," on the other hand, it is well established that under 1291 and 1292(a) "there may be no instrusion by appeal" of the unresolved issue.[16] The reasons are manifest. If the appellate court addressed the issue in such an inconclusive *46 posture, it either would render an advisory opinion that had no binding effect or, if binding effect were intended, would usurp the authority of the district court to pass on the issue in the first instance. "Appeal gives the upper court a power of review, not one of intervention."[17] This elementary distinction applies with direct force to appeals pursuant to 1252.[18] Where a district court issues an interlocutory order based on a fully consummated determination that a federal statute is unconstitutional, an appeal is proper because the constitutional question can authoritatively be decided with dispatch. Thus in the District Court had denied preliminary relief enjoining the eviction of tenants on the ground that the federal statute prohibiting the evictions was unconstitutional. And in the District Court for the District of Columbia had preliminary enjoined the enforcement of a statute in reliance on a decision by the Court of Appeals for the District of Columbia Circuit that the statute was unconstitutional — "a decision," we noted, that was "binding on the District Court," In neither case was there any basis to believe that the interlocutory holding of unconstitutionality was anything but final. On the other hand, we have never in the 48-year history of 1252 assumed jurisdiction where the district court had done no more than simply determine that there was a "likelihood" of unconstitutionality sufficient to support temporary relief pending a final decision on the merits. Because such determinations *47 are inherently "open, unfinished [and] inconclusive,"[19] the only proper questions for immediate appellate consideration would be whether the entry and scope of preliminary relief were abuses of discretion. But such review is not the purpose of 1252 because, as the Court today concedes, "it was the constitutional question that Congress wished this Court to decide." Ante, at 18[] If the Court did address the constitutional issue in these circumstances, it either would be rendering an advisory opinion subject to revision once the district court reached the merits or, to the extent it purported to pass on the issue with finality, would be exercising a forbidden "power of intervention" rather than of review.[21] We have long recognized that such intervention is barred under 1291 and 1292(a), and should have so recognized here as well.[22] *48 The Court contends, however, that the District Court in this case enjoined the challenged statute "across the country and under all circumstances," and that immediate mandatory appeal to this Court therefore "is in accord with the purpose of the statutory grant" — provision of "an expeditious means for ensuring certainty and uniformity in the enforcement of such an Act." Ante, at 18-19. See also ante, at 6-7 (O'CONNOR, J., concurring). Congress unquestionably intended by 1252 to provide an "expeditious" means for resolving constitutional questions,[2] but an appeal is proper only when it is those questions themselves that have been decided — a condition not met in preliminary-injunction cases where, as here, we may "intimate no view as to the ultimate merits" of the underlying controversy. 422 U. S., Moreover, the Court's reasoning sweeps both too narrowly and too broadly. It sweeps too narrowly because mandatory jurisdiction pursuant to 1252 is not confined to district court decisions striking down statutes "across the country and under all circumstances." Ante, at 19. See also ante, at 6 (O'CONNOR, J., concurring). We have instead long recognized that 1252 requires that we review decisions that simply invalidate challenged statutes even as applied only to particular individuals in particular circumstances.[24] Allowing *49 an immediate appeal in these circumstances is thought to further the "great public interest" in securing "prompt determinations" of the validity of lower court precedent that might have binding effect in cases beyond the one at hand.[25] Where a district court simply has granted a preliminary injunction — or for that matter a temporary restraining order[26] — barring enforcement of a statute as applied to certain individuals, the precedential effect is far more obscure. Such orders are based on a case-specific balancing of the equities that may well not carry over into other situations. It is simply too burdensome for this Court to bear mandatory direct jurisdiction over every preliminary injunction, temporary restraining order, and other pretrial order in cases potentially implicating the constitutionality of federal statutes. The Court might respond that 1252 appeals in this context can be limited to preliminary relief having nationwide impact, but this would be bootstrap reasoning without support in our precedents: the propriety of an appeal under 1252 turns not on the scope of the potential impact, but on the underlying nature of the district court's determination.[27] *50 The Court's reasoning sweeps too broadly because there are means other than an expansive reading of 1252 to ensure that improvident district court injunctions based on "likelihood of success" do not impede the effective functioning of the Federal Government. As Congress has emphasized, "[s]wift judicial review can be had in cases where the public interest requires it" through means short of mandatory appeals jurisdiction.[28] Pursuant to 28 U.S. C. 1292(a), for example, the courts of appeals may promptly review district court orders granting or denying preliminary injunctions. Courts of appeals routinely supervise the trial-court injunctive process and are therefore in a far superior position to pass initially on questions of irreparable injury, balance of hardships, and abuse of discretion.[29] Moreover, if the question whether a district court abused its discretion in issuing preliminary relief "is of such imperative public importance as to justify the deviation from normal appellate practice and to require immediate settlement in this Court," this Court's Rule 18, certiorari review can be obtained before the court of appeals renders judgment. See 28 U.S. C. 2101(e). This Court has not hesitated to exercise this power of swift intervention in cases of extraordinary constitutional moment and *51 in cases demanding prompt resolution for other reasons.[0] Under this procedure, the Court has discretion to limit immediate review to exceptional cases and to leave initial review of most matters in the courts of appeals — which of course "recognize the vital importance of the time element" in constitutional challenges involving the granting or denial of interlocutory relief.[1] Under today's construction of 1252, however, the Court has no such discretion and accordingly has, I respectfully submit, expanded its mandatory docket to matters that we have no business resolving in the first instance. One final consideration, based on the history of 1252 and related provisions, sheds further light on the fallacy of the Court's jurisdictional reasoning. Section 1252 originally was enacted as 2 of the Judiciary Act of 197, Section of that Act created the since-repealed three-judge district court provisions of 28 U.S. C. 2282 (1970 ed.). Section provided that "[n]o interlocutory or permanent injunction suspending or restraining the enforcement, operation, or execution of, or setting aside, in whole or in part, any Act of Congress" in cases challenging the constitutionality of the Act could be granted unless presented to and resolved by a three-judge district court. That section also contained its own built-in jurisdictional authorization for direct Supreme Court review of any "order, decree, or judgment" issued by *52 such a court granting or denying "an interlocutory or permanent injunction in such case." Moreover, provided that a single district judge could enter a "temporary stay or suspension, in whole or in part," of the enforcement of the challenged statute "until decision upon the application," provided that the applicant made a sufficient showing of, inter alia, "irreparable loss or damage."[2] *5 The history of is relevant to the instant question in two respects. First, this Court has held flatly that temporary relief granted by a single district judge pending the convening of a three-judge court is reviewable in the first instance by the courts of appeals and not on direct appeal to this Court. See, e. g., Hicks v. Pleasure House, (preliminary relief "issued pursuant to [28 U.S. C.] 2284() is reviewable in a court of appeals to the extent that any such order is reviewable under 28 U.S. C. 1291 and 1292(a)").[] It would have made no sense to channel appeals of such orders under to the courts of appeals while channeling appeals of identical preliminary orders in cases that might ultimately fall within 2 to this Court in the first instance. Second, when Congress repealed 2282 in 1976[4] it specifically considered the question of the best means for policing the injunctive process in constitutional challenges pending decision on the underlying merits. Whereas review of three-judge interlocutory orders in such cases formerly had been routed directly to this Court, see 2282, 228 (1970 ed.), Congress believed that interlocutory review in the courts of *54 appeals pursuant to 1291 and 1292(a) would be most consistent with sound judicial administration. "One other concern of the committee was the review of the granting, or the denial, of a stay of an injunction by a district court. The committee believes that with appeals of these cases clearly vested in the 11 Circuit Courts of Appeal, they will be more able than the Supreme Court to carefully consider and evaluate requests for a stay in these cases and that ample procedures exist to act effectively in these cases. See, Barron and Holtzoff (Wright ed.) 171-78." S. Rep. No. 94-4, p. 11[5] Congress thereby indicated its firm intention to leave monitoring of the equitable injunctive process to the courts of appeals in the first instance, and to reserve mandatory direct Supreme Court review for those cases in which this Court properly could resolve the underlying merits of the constitutional challenges themselves.[6] II Although deciding that a direct appeal of this preliminary injunction is proper, the six Members of today's majority appear to be sharply divided over the nature of the issues before us and the proper scope of our authority on review. JUSTICE O'CONNOR, joined by JUSTICE BLACKMUN, eschews any attempt to resolve the underlying merits of the constitutional challenge. She properly recognizes that, because *55 "[t]he merits of these claims are difficult to evaluate on the record of affidavits and depositions developed at the preliminary injunction stage," it would be improper to express any views on the merits of the appellees' as-applied challenges. Ante, at 8 (concurring opinion). Nor, properly, does JUSTICE O'CONNOR purport to determine the facial validity of the challenged statutes, given that the District Court has never reached a fully consummated determination on that question. Instead, she simply observes that "the record falls short of establishing any likelihood of such sweeping facial invalidity." Ante, at 7 JUSTICE O'CONNOR accordingly limits her analysis to application of the abuse-of-discretion standard that governs review of preliminary-injunction orders, concluding that "the District Court abused its discretion in issuing a nationwide preliminary injunction." Ante, at 6. Although I find this approach far preferable to that taken by the opinion for the Court, I respectfully submit that it is inconsistent with 1252 for two reasons: First, as set forth above, application of the abuse-of-discretion standard to the equitable process of granting preliminary relief is not subsumed in 1252 and properly is left to the courts of appeals in the first instance. Second, this approach, by properly avoiding the ultimate resolution of the facial and as-applied constitutional challenges, has not in the slightest way furthered the underlying purpose of 1252 — ensuring the prompt and dispositive resolution of the merits of facial and as-applied constitutional challenges to federal statutes.[7] The opinion for the Court appears to take a very different tack. To be sure, the Court notes two or three times that the District Court simply found a "likelihood" that the appellees *56 after a full trial would be able to demonstrate the unconstitutionality of the challenged statutes, and it states once in passing that the District Court "abused its discretion" in so finding. Ante, at 12-1, 15, 4. But that is not the essence of the Court's approach. The Court repeatedly seeks to cast doubt on the bona fides of the District Court's entry of preliminary relief pursuant to Rule 65 by describing that relief in quotation marks: the District Court did not really grant a preliminary injunction, but a "preliminary injunction." Ante, at 08, 12, 16. Having thus suggested that the matter is one of "semantic[s]" making "little difference," ante, at 17, the Court proceeds to assert, repeatedly, that the District Court actually "held that [the $10] limit violates the Due Process Clause of the Fifth Amendment, and the First Amendment," ante, at 07[8] Having thus mischaracterized the District Court's decision, the Court then purports "to decide this case on the merits," ante, at 12, n. 5 — bootstrapping its way past the rule that we may "intimate no view as to the ultimate merits" in preliminary-injunction cases[9] by observing that, under 1252, "it was the constitutional question that Congress wished this Court to decide," ante, at 18 Having thus paved the way for its consideration of the constitutional merits, the Court then proceeds to "review" the District Court's "holding" in light of the record evidence and the three-part 424 U.S. 19 balancing test. The Court focuses on the Mathews factors of the risk of an erroneous decision through the current procedures and the probable value of additional safeguards. The Court rummages through the partially developed record and seizes upon scattered evidence introduced by the Government on the eve of the preliminary-injunction hearing — evidence that never has been tested in a trial on the merits — and pronounces that evidence "reliable" and compelling. See, *57 e. g., ante, at 1.[40] Moreover, the Court excoriates the appellees and the District Court repeatedly for failing to muster sufficient evidence to support the "holding" of unconstitutionality: the appellees made "no such" sufficient presentation of evidence, introduced "nothing" to support the "holding," and "failed to make the very difficult factual showing" necessary to support the "holding" of unconstitutionality. Ante, at 26, 29, 0.[41] The conclusion is preordained: the statutes give the appellees "an opportunity under the present claims process" to "make a meaningful presentation" without an attorney's assistance, and the District Court's "holding" of unconstitutionality must therefore be reversed. Ante, at 5. This brand of constitutional adjudication is extraordinary. Whereas JUSTICE O'CONNOR faithfully adheres to the limited role of appellate judges in reviewing preliminary injunctions and thereby departs from the purposes of 1252, the opinion for the Court seizes upon the underlying purposes of 1252 in order to evade the well-established rule prohibiting appellate courts from even purporting to "intimate view[s]" on the ultimate merits when reviewing preliminary injunctions granted on likelihood of success. 422 U. S., If the opinion for the Court turns out to be more than an unfortunate aberration, it will threaten a fundamental transformation of the equitable process of granting preliminary relief in cases challenging the constitutionality of Government action.[42] Individual litigants seeking such *58A relief on grounds of irreparable injury and a balancing of hardships will essentially be required to confront the Government with both hands tied behind their backs: if they successfully obtain such relief, this Court will immediately intervene pursuant to 1252 to review the "holding" of unconstitutionality, will make de novo findings that selected evidence is "reliable," will castigate the individuals for failing to adduce sufficient evidence to support the "merits" of the "holding," and will issue a ringing proclamation that the challenged statute is constitutional. III I believe that 1252 should have been construed to permit a direct appeal to this Court only from a lower court decision that represents a fully consummated determination that an Act of Congress is unconstitutional so as to permit this Court properly to resolve the constitutional question on the merits. Unlike JUSTICE O'CONNOR, I do not believe that 1252 requires this Court directly to police the injunctive process in constitutional challenges in the first instance. Unlike the opinion for the Court, I do not believe that 1252 may be invoked in such cases to short-circuit the process of orderly and principled constitutional adjudication. Accordingly, I believe the Court should have vacated the judgment and remanded to the District Court for the entry of a fresh decree, so that the Government could take a proper appeal of the preliminary-injunction order to the Court of Appeals for the Ninth Circuit. See, e. g., United The Court having decided to the contrary and having reached the merits, I join JUSTICE STEVENS' dissent.

Justice Rehnquist

concurring

Sandstrom v. Montana

https://www.courtlistener.com/opinion/110109/sandstrom-v-montana/

https://www.courtlistener.com/api/rest/v3/clusters/110109/

1978-125

The Fourteenth Amendment to the United States Constitution prohibits any State from depriving a person of liberty without due process of law, and in Mullaney v. Wilbur, 421 U.S. 684 (1975), this Court held that the Fourteenth Amendment's guarantees prohibit a State from shifting to the defendant the burden of disproving an element of the crime charged. I am loath to see this Court go into the business of parsing jury instructions given by state trial courts, for as we have consistently recognized, "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-147 (1973). And surely if this charge had, in the words of the Court, "merely described a permissive inference," ante, at 514, it could not conceivably have run afoul of the constitutional decisions cited by the Court in its opinion. But a majority of my Brethren conclude that "it is clear that a reasonable juror could easily have viewed such an instruction as mandatory," ante, at 515, and counsel for the State admitted in oral argument "that `it's possible' that the jury believed they were required to apply the presumption." Ante, at 514-515. *528 While I continue to have doubts as to whether this particular jury was so attentively attuned to the instructions of the trial court that it divined the difference recognized by lawyers between "infer" and "presume," I defer to the judgment of the majority of the Court that this difference in meaning may have been critical in its effect on the jury. I therefore concur in the Court's opinion and judgment.

The Fourteenth Amendment to the United States Constitution prohibits any State from depriving a person of liberty without due process of law, and in this Court held that the Fourteenth Amendment's guarantees prohibit a State from shifting to the defendant the burden of disproving an element of the crime charged. I am loath to see this Court go into the business of parsing jury instructions given by state trial courts, for as we have consistently recognized, "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." And surely if this charge had, in the words of the Court, "merely described a permissive inference," ante, at 514, it could not conceivably have run afoul of the constitutional decisions cited by the Court in its opinion. But a majority of my Brethren conclude that "it is clear that a reasonable juror could easily have viewed such an instruction as mandatory," ante, at 515, and counsel for the State admitted in oral argument "that `it's possible' that the jury believed they were required to apply the presumption." Ante, at 514-515. *528 While I continue to have doubts as to whether this particular jury was so attentively attuned to the instructions of the trial court that it divined the difference recognized by lawyers between "infer" and "presume," I defer to the judgment of the majority of the Court that this difference in meaning may have been critical in its effect on the jury. I therefore concur in the Court's opinion and judgment.

Justice Burger

majority

Department of Treasury, Bureau of Alcohol, Tobacco and Firearms v. Galioto

https://www.courtlistener.com/opinion/111729/department-of-treasury-bureau-of-alcohol-tobacco-and-firearms-v-galioto/

https://www.courtlistener.com/api/rest/v3/clusters/111729/

1985-135

We noted probable jurisdiction to decide whether Congress may, consistent with the Fifth Amendment, forbid all involuntarily committed former mental patients to purchase firearms while permitting some felons to do so. In 1982 appellee attempted to purchase a firearm at Ray's Sport Shop in North Plainfield, New Jersey. The Sport Shop gave appellee a standard questionnaire, which asked, inter alia: "Have you ever been adjudicated mentally defective or have you ever been committed to a mental institution?" Appellee had been involuntarily committed to a mental hospital for a period of several days in 1971, and accordingly answered "yes" to this question. The store then refused to sell him a gun by reason of 18 U.S. C. § 922(d)(4), which makes it unlawful for a licensed dealer in firearms "to sell . . . any firearm . . . to any person knowing or having reasonable cause to believe that such person . . . has been adjudicated as a mental defective or had been committed to any mental institution." Federal firearms laws also forbid "any person . . . who has been adjudicated as a mental defective or who has been committed to a mental institution . . . to ship or transport any firearm or ammunition in interstate or foreign commerce," 18 U.S. C. § 922(g), or to "receive any firearm or ammunition which has been shipped or transported in interstate *558 or foreign commerce," § 922(h). Partially overlapping provisions of 18 U.S. C. App. §§ 1202(a)(1) and (3) prohibit any person who has "been adjudged by a court . . . of being mentally incompetent" from receiving, possessing, or transporting firearms. After unsuccessfully seeking a special exemption from the Bureau of Alcohol, Tobacco and Firearms, appellee brought suit in the United States District Court for the District of New Jersey, challenging the constitutionality of the firearms legislation. The District Court concluded that those portions of the federal firearms statutes that deprived appellee of his ability to purchase a firearm were constitutionally infirm. 602 F. Supp. 682, 683 (1985). Both felons and persons who have been committed to mental institutions, inter alia, are subject to the firearms disabilities contained in 18 U.S. C. § 922(d). Under 18 U.S. C. § 925(c), however, felons who have committed crimes not involving firearms may apply to the Bureau for administrative relief from these disabilities. No such relief is permitted for former mental patients. Section 925(c) provides in relevant part: "A person who has been convicted for a crime punishable by imprisonment for a term exceeding one year (other than a crime involving the use of a firearm or other weapon or a violation of this chapter or of the National Firearms Act) may make application to the Secretary for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, or possession of firearms and incurred by reason of such conviction, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding the conviction, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." *559 The District Court held that this scheme violated equal protection principles because, in its view, "[t]here is no rational basis for thus singling out mental patients for permanent disabled status, particularly as compared to convicts." 602 F. Supp., at 689. The court also concluded that the statutory scheme was unconstitutional because it "in effect creates an irrebuttable presumption that one who has been committed, no matter the circumstances, is forever mentally ill and dangerous." Id., at 690. We noted probable jurisdiction over the Government's appeal, 474 U.S. 943 (1985), and the case was argued on March 26, 1986. Meanwhile, Congress came to the conclusion, as a matter of legislative policy, that the firearms statutes should be redrafted. On May 19, 1986, while this case was under consideration here, the President signed into law Pub. L. 99-308, 100 Stat. 449. Section 105 of the statute amends the provision providing for administrative relief from firearms disabilities, 18 U.S. C. § 925(c), by striking out the language limiting the provision to certain felons and changing the statute to read that any person who "is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition" may apply to the Secretary of the Treasury for relief. Section 110 of the statute provides that the amendment made by § 105 "shall be applicable to any action, petition, or appellate proceeding pending on the date of the enactment of this Act." This enactment significantly alters the posture of this case. The new statutory scheme permits the Secretary to grant relief in some circumstances to former involuntarily committed mental patients such as appellee. The new approach affords an administrative remedy to former mental patients like that Congress provided for others prima facie ineligible to purchase firearms. Thus, it can no longer be contended that such persons have been "singled out." Also, no "irrebuttable presumption" now exists since a hearing is afforded to anyone subject to firearms disabilities. Accordingly, the equal protection and "irrebuttable presumption" issues discussed *560 by the District Court are now moot. See United Building and Construction Trades Council of Camden County and Vicinity v. Mayor and Council of Camden, 465 U.S. 208, 213 (1984). In such circumstances, "it is the duty of the appellate court to set aside the decree below . . . ." Duke Power Co. v. Greenwood County, 299 U.S. 259, 267 (1936); see also United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950). We therefore vacate the judgment of the District Court. However, since appellee's complaint appears to raise other issues best addressed in the first instance by the District Court, we also remand the case for further proceedings consistent with this opinion. Vacated and remanded.

We noted probable jurisdiction to decide whether Congress may, consistent with the Fifth Amendment, forbid all involuntarily committed former mental patients to purchase firearms while permitting some felons to do so. In 1982 appellee attempted to purchase a firearm at Ray's Sport Shop in North Plainfield, New Jersey. The Sport Shop gave appellee a standard questionnaire, which asked, inter alia: "Have you ever been adjudicated mentally defective or have you ever been committed to a mental institution?" Appellee had been involuntarily committed to a mental hospital for a period of several days in 1971, and accordingly answered "yes" to this question. The store then refused to sell him a gun by reason of 18 U.S. C. 922(d)(4), which makes it unlawful for a licensed dealer in firearms "to sell any firearm to any person knowing or having reasonable cause to believe that such person has been adjudicated as a mental defective or had been committed to any mental institution." Federal firearms laws also forbid "any person who has been adjudicated as a mental defective or who has been committed to a mental institution to ship or transport any firearm or ammunition in interstate or foreign commerce," 18 U.S. C. 922(g), or to "receive any firearm or ammunition which has been shipped or transported in interstate *558 or foreign commerce," 922(h). Partially overlapping provisions of 18 U.S. C. App. 1202(a)(1) and (3) prohibit any person who has "been adjudged by a court of being mentally incompetent" from receiving, possessing, or transporting firearms. After unsuccessfully seeking a special exemption from the Bureau of Alcohol, Tobacco and Firearms, appellee brought suit in the United States District Court for the District of New Jersey, challenging the constitutionality of the firearms legislation. The District Court concluded that those portions of the federal firearms statutes that deprived appellee of his ability to purchase a firearm were constitutionally infirm. Both felons and persons who have been committed to mental institutions, inter alia, are subject to the firearms disabilities contained in 18 U.S. C. 922(d). Under 18 U.S. C. 925(c), however, felons who have committed crimes not involving firearms may apply to the Bureau for administrative relief from these disabilities. No such relief is permitted for former mental patients. Section 925(c) provides in relevant part: "A person who has been convicted for a crime punishable by imprisonment for a term exceeding one year (other than a crime involving the use of a firearm or other weapon or a violation of this chapter or of the National Firearms Act) may make application to the Secretary for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, or possession of firearms and incurred by reason of such conviction, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding the conviction, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." *559 The District Court held that this scheme violated equal protection principles because, in its view, "[t]here is no rational basis for thus singling out mental patients for permanent disabled status, particularly as compared to convicts." The court also concluded that the statutory scheme was unconstitutional because it "in effect creates an irrebuttable presumption that one who has been committed, no matter the circumstances, is forever mentally ill and dangerous." We noted probable jurisdiction over the Government's appeal, and the case was argued on March 26, 1986. Meanwhile, Congress came to the conclusion, as a matter of legislative policy, that the firearms statutes should be redrafted. On May 19, 1986, while this case was under consideration here, the President signed into law Stat. 449. Section 105 of the statute amends the provision providing for administrative relief from firearms disabilities, 18 U.S. C. 925(c), by striking out the language limiting the provision to certain felons and changing the statute to read that any person who "is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition" may apply to the Secretary of the Treasury for relief. Section 110 of the statute provides that the amendment made by 105 "shall be applicable to any action, petition, or appellate proceeding pending on the date of the enactment of this Act." This enactment significantly alters the posture of this case. The new statutory scheme permits the Secretary to grant relief in some circumstances to former involuntarily committed mental patients such as appellee. The new approach affords an administrative remedy to former mental patients like that Congress provided for others prima facie ineligible to purchase firearms. Thus, it can no longer be contended that such persons have been "singled out." Also, no "irrebuttable presumption" now exists since a hearing is afforded to anyone subject to firearms disabilities. Accordingly, the equal protection and "irrebuttable presumption" issues discussed *560 by the District Court are now moot. See United Building and Construction Trades Council of Camden County and In such circumstances, "it is the duty of the appellate court to set aside the decree below" Duke Power ; see also United We therefore vacate the judgment of the District Court. However, since appellee's complaint appears to raise other issues best addressed in the first instance by the District Court, we also remand the case for further proceedings consistent with this opinion. Vacated and remanded.

Justice Burger

dissenting

Steelworkers v. Weber

https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/

https://www.courtlistener.com/api/rest/v3/clusters/110135/

1978-147

The Court reaches a result I would be inclined to vote for were I a Member of Congress considering a proposed amendment of Title VII. I cannot join the Court's judgment, however, because it is contrary to the explicit language of the statute and arrived at by means wholly incompatible with long-established principles of separation of powers. Under the guise of statutory "construction," the Court effectively rewrites Title VII to achieve what it regards as a desirable result. It "amends" the statute to do precisely what both its sponsors and its opponents agreed the statute was not intended to do. When Congress enacted Title VII after long study and searching debate, it produced a statute of extraordinary clarity, which speaks directly to the issue we consider in this case. In § 703 (d) Congress provided: "It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or *217 retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training." 42 U.S. C. § 2000e-2 (d). Often we have difficulty interpreting statutes either because of imprecise drafting or because legislative compromises have produced genuine ambiguities. But here there is no lack of clarity, no ambiguity. The quota embodied in the collective-bargaining agreement between Kaiser and the Steelworkers unquestionably discriminates on the basis of race against individual employees seeking admission to on-the-job training programs. And, under the plain language of § 703 (d), that is "an unlawful employment practice." Oddly, the Court seizes upon the very clarity of the statute almost as a justification for evading the unavoidable impact of its language. The Court blandly tells us that Congress could not really have meant what it said, for a "literal construction" would defeat the "purpose" of the statute—at least the congressional "purpose" as five Justices divine it today. But how are judges supposed to ascertain the purpose of a statute except through the words Congress used and the legislative history of the statute's evolution? One need not even resort to the legislative history to recognize what is apparent from the face of Title VII—that it is specious to suggest that § 703 (j) contains a negative pregnant that permits employers to do what §§ 703 (a) and (d) unambiguously and unequivocally forbid employers from doing. Moreover, as MR. JUSTICE REHNQUIST'S opinion—which I join—conclusively demonstrates, the legislative history makes equally clear that the supporters and opponents of Title VII reached an agreement about the statute's intended effect. That agreement, expressed so clearly in the language of the statute that no one should doubt its meaning, forecloses the reading which the Court gives the statute today. *218 Arguably, Congress may not have gone far enough in correcting the effects of past discrimination when it enacted Title VII. The gross discrimination against minorities to which the Court adverts—particularly against Negroes in the building trades and craft unions—is one of the dark chapters in the otherwise great history of the American labor movement. And, I do not question the importance of encouraging voluntary compliance with the purposes and policies of Title VII. But that statute was conceived and enacted to make discrimination against any individual illegal, and I fail to see how "voluntary compliance" with the no-discrimination principle that is the heart and soul of Title VII as currently written will be achieved by permitting employers to discriminate against some individuals to give preferential treatment to others. Until today, I had thought the Court was of the unanimous view that "[d]iscriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed" in Title VII. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). Had Congress intended otherwise, it very easily could have drafted language allowing what the Court permits today. Far from doing so, Congress expressly prohibited in §§ 703 (a) and (d) the very discrimination against Brian Weber which the Court today approves. If "affirmative action" programs such as the one presented in this case are to be permitted, it is for Congress, not this Court, to so direct. It is often observed that hard cases make bad law. I suspect there is some truth to that adage, for the "hard" cases always tempt judges to exceed the limits of their authority, as the Court does today by totally rewriting a crucial part of Title VII to reach a "desirable" result. Cardozo no doubt had this type of case in mind when he wrote: "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knighterrant, roaming at will in pursuit of his own ideal of *219 beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to `the primordial necessity of order in the social life.' Wide enough in all conscience is the field of discretion that remains." The Nature of the Judicial Process 141 (1921). What Cardozo tells us is beware the "good result," achieved by judicially unauthorized or intellectually dishonest means on the appealing notion that the desirable ends justify the improper judicial means. For there is always the danger that the seeds of precedent sown by good men for the best of motives will yield a rich harvest of unprincipled acts of others also aiming at "good ends." MR.

The Court reaches a result I would be inclined to vote for were I a Member of Congress considering a proposed amendment of Title VII. I cannot join the Court's judgment, however, because it is contrary to the explicit language of the statute and arrived at by means wholly incompatible with long-established principles of separation of powers. Under the guise of statutory "construction," the Court effectively rewrites Title VII to achieve what it regards as a desirable result. It "amends" the statute to do precisely what both its sponsors and its opponents agreed the statute was not intended to do. When Congress enacted Title VII after long study and searching debate, it produced a statute of extraordinary clarity, which speaks directly to the issue we consider in this case. In 703 (d) Congress provided: "It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or *217 retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training." 42 U.S. C. 2000e-2 (d). Often we have difficulty interpreting statutes either because of imprecise drafting or because legislative compromises have produced genuine ambiguities. But here there is no lack of clarity, no ambiguity. The quota embodied in the collective-bargaining agreement between Kaiser and the Steelworkers unquestionably discriminates on the basis of race against individual employees seeking admission to on-the-job training programs. And, under the plain language of 703 (d), that is "an unlawful employment practice." Oddly, the Court seizes upon the very clarity of the statute almost as a justification for evading the unavoidable impact of its language. The Court blandly tells us that Congress could not really have meant what it said, for a "literal construction" would defeat the "purpose" of the statute—at least the congressional "purpose" as five Justices divine it today. But how are judges supposed to ascertain the purpose of a statute except through the words Congress used and the legislative history of the statute's evolution? One need not even resort to the legislative history to recognize what is apparent from the face of Title VII—that it is specious to suggest that 703 (j) contains a negative pregnant that permits employers to do what 703 (a) and (d) unambiguously and unequivocally forbid employers from doing. Moreover, as MR. JUSTICE REHNQUIST'S opinion—which I join—conclusively demonstrates, the legislative history makes equally clear that the supporters and opponents of Title VII reached an agreement about the statute's intended effect. That agreement, expressed so clearly in the language of the statute that no one should doubt its meaning, forecloses the reading which the Court gives the statute today. *218 Arguably, Congress may not have gone far enough in correcting the effects of past discrimination when it enacted Title VII. The gross discrimination against minorities to which the Court adverts—particularly against Negroes in the building trades and craft unions—is one of the dark chapters in the otherwise great history of the American labor movement. And, I do not question the importance of encouraging voluntary compliance with the purposes and policies of Title VII. But that statute was conceived and enacted to make discrimination against any individual illegal, and I fail to see how "voluntary compliance" with the no-discrimination principle that is the heart and soul of Title VII as currently written will be achieved by permitting employers to discriminate against some individuals to give preferential treatment to others. Until today, I had thought the Court was of the unanimous view that "[d]iscriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed" in Title VII. Had Congress intended otherwise, it very easily could have drafted language allowing what the Court permits today. Far from doing so, Congress expressly prohibited in 703 (a) and (d) the very discrimination against Brian Weber which the Court today approves. If "affirmative action" programs such as the one presented in this case are to be permitted, it is for Congress, not this Court, to so direct. It is often observed that hard cases make bad law. I suspect there is some truth to that adage, for the "hard" cases always tempt judges to exceed the limits of their authority, as the Court does today by totally rewriting a crucial part of Title VII to reach a "desirable" result. Cardozo no doubt had this type of case in mind when he wrote: "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knighterrant, roaming at will in pursuit of his own ideal of *219 beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to `the primordial necessity of order in the social life.' Wide enough in all conscience is the field of discretion that remains." The Nature of the Judicial Process 141 (1921). What Cardozo tells us is beware the "good result," achieved by judicially unauthorized or intellectually dishonest means on the appealing notion that the desirable ends justify the improper judicial means. For there is always the danger that the seeds of precedent sown by good men for the best of motives will yield a rich harvest of unprincipled acts of others also aiming at "good ends." MR.

Justice White

majority

United States v. Leon

https://www.courtlistener.com/opinion/111262/united-states-v-leon/

https://www.courtlistener.com/api/rest/v3/clusters/111262/

1983-170

This case presents the question whether the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. To resolve this question, we must consider once again the tension between the sometimes competing goals of, on the one hand, deterring official misconduct and removing inducements to unreasonable invasions of privacy and, on the other, establishing procedures under which criminal defendants are "acquitted *901 or convicted on the basis of all the evidence which exposes the truth." Alderman v. United States, 394 U.S. 165, 175 (1969). I In August 1981, a confidential informant of unproven reliability informed an officer of the Burbank Police Department that two persons known to him as "Armando" and "Patsy" were selling large quantities of cocaine and methaqualone from their residence at 620 Price Drive in Burbank, Cal. The informant also indicated that he had witnessed a sale of methaqualone by "Patsy" at the residence approximately five months earlier and had observed at that time a shoebox containing a large amount of cash that belonged to "Patsy." He further declared that "Armando" and "Patsy" generally kept only small quantities of drugs at their residence and stored the remainder at another location in Burbank. On the basis of this information, the Burbank police initiated an extensive investigation focusing first on the Price Drive residence and later on two other residences as well. Cars parked at the Price Drive residence were determined to belong to respondents Armando Sanchez, who had previously been arrested for possession of marihuana, and Patsy Stewart, who had no criminal record. During the course of the investigation, officers observed an automobile belonging to respondent Ricardo Del Castillo, who had previously been arrested for possession of 50 pounds of marihuana, arrive at the Price Drive residence. The driver of that car entered the house, exited shortly thereafter carrying a small paper sack, and drove away. A check of Del Castillo's probation records led the officers to respondent Alberto Leon, whose telephone number Del Castillo had listed as his employer's. Leon had been arrested in 1980 on drug charges, and a companion had informed the police at that time that Leon was heavily involved in the importation of drugs into this country. Before the current investigation began, the Burbank officers had *902 learned that an informant had told a Glendale police officer that Leon stored a large quantity of methaqualone at his residence in Glendale. During the course of this investigation, the Burbank officers learned that Leon was living at 716 South Sunset Canyon in Burbank. Subsequently, the officers observed several persons, at least one of whom had prior drug involvement, arriving at the Price Drive residence and leaving with small packages; observed a variety of other material activity at the two residences as well as at a condominium at 7902 Via Magdalena; and witnessed a variety of relevant activity involving respondents' automobiles. The officers also observed respondents Sanchez and Stewart board separate flights for Miami. The pair later returned to Los Angeles together, consented to a search of their luggage that revealed only a small amount of marihuana, and left the airport. Based on these and other observations summarized in the affidavit, App. 34, Officer Cyril Rombach of the Burbank Police Department, an experienced and well-trained narcotics investigator, prepared an application for a warrant to search 620 Price Drive, 716 South Sunset Canyon, 7902 Via Magdalena, and automobiles registered to each of the respondents for an extensive list of items believed to be related to respondents' drug-trafficking activities. Officer Rombach's extensive application was reviewed by several Deputy District Attorneys. A facially valid search warrant was issued in September 1981 by a State Superior Court Judge. The ensuing searches produced large quantities of drugs at the Via Magdalena and Sunset Canyon addresses and a small quantity at the Price Drive residence. Other evidence was discovered at each of the residences and in Stewart's and Del Castillo's automobiles. Respondents were indicted by a grand jury in the District Court for the Central District of California and charged with conspiracy to possess and distribute cocaine and a variety of substantive counts. *903 The respondents then filed motions to suppress the evidence seized pursuant to the warrant.[1] The District Court held an evidentiary hearing and, while recognizing that the case was a close one, see id., at 131, granted the motions to suppress in part. It concluded that the affidavit was insufficient to establish probable cause,[2] but did not suppress all of the evidence as to all of the respondents because none of the respondents had standing to challenge all of the searches.[3] In *904 response to a request from the Government, the court made clear that Officer Rombach had acted in good faith, but it rejected the Government's suggestion that the Fourth Amendment exclusionary rule should not apply where evidence is seized in reasonable, good-faith reliance on a search warrant.[4] The District Court denied the Government's motion for reconsideration, id., at 147, and a divided panel of the Court of Appeals for the Ninth Circuit affirmed, judgt. order reported at 701 F.2d 187 (1983). The Court of Appeals first concluded that Officer Rombach's affidavit could not establish probable cause to search the Price Drive residence. To the extent that the affidavit set forth facts demonstrating the basis of the informant's knowledge of criminal activity, the information included was fatally stale. The affidavit, moreover, failed to establish the informant's credibility. Accordingly, the Court of Appeals concluded that the information provided by the informant was inadequate under both prongs of the two-part test established in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969).[5] The officers' independent investigation neither cured the staleness nor corroborated the details of the informant's declarations. The Court of Appeals then considered whether the affidavit formed a proper basis for the *905 search of the Sunset Canyon residence. In its view, the affidavit included no facts indicating the basis for the informants' statements concerning respondent Leon's criminal activities and was devoid of information establishing the informants' reliability. Because these deficiencies had not been cured by the police investigation, the District Court properly suppressed the fruits of the search. The Court of Appeals refused the Government's invitation to recognize a good-faith exception to the Fourth Amendment exclusionary rule. App. to Pet. for Cert. 4a. The Government's petition for certiorari expressly declined to seek review of the lower courts' determinations that the search warrant was unsupported by probable cause and presented only the question "[w]hether the Fourth Amendment exclusionary rule should be modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective." We granted certiorari to consider the propriety of such a modification. 463 U.S. 1206 (1983). Although it undoubtedly is within our power to consider the question whether probable cause existed under the "totality of the circumstances" test announced last Term in Illinois v. Gates, 462 U.S. 213 (1983), that question has not been briefed or argued; and it is also within our authority, which we choose to exercise, to take the case as it comes to us, accepting the Court of Appeals' conclusion that probable cause was lacking under the prevailing legal standards. See this Court's Rule 21.1(a). We have concluded that, in the Fourth Amendment context, the exclusionary rule can be modified somewhat without jeopardizing its ability to perform its intended functions. Accordingly, we reverse the judgment of the Court of Appeals. II Language in opinions of this Court and of individual Justices has sometimes implied that the exclusionary rule is a necessary corollary of the Fourth Amendment, Mapp v. *906 Ohio, 367 U.S. 643, 651, 655-657 (1961); Olmstead v. United States, 277 U.S. 438, 462-463 (1928), or that the rule is required by the conjunction of the Fourth and Fifth Amendments. Mapp v. Ohio, supra, at 661-662 (Black, J., concurring); Agnello v. United States, 269 U.S. 20, 33-34 (1925). These implications need not detain us long. The Fifth Amendment theory has not withstood critical analysis or the test of time, see Andresen v. Maryland, 427 U.S. 463 (1976), and the Fourth Amendment "has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons." Stone v. Powell, 428 U.S. 465, 486 (1976). A The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, and an examination of its origin and purposes makes clear that the use of fruits of a past unlawful search or seizure "work[s] no new Fourth Amendment wrong." United States v. Calandra, 414 U.S. 338, 354 (1974). The wrong condemned by the Amendment is "fully accomplished" by the unlawful search or seizure itself, ibid., and the exclusionary rule is neither intended nor able to "cure the invasion of the defendant's rights which he has already suffered." Stone v. Powell, supra, at 540 (WHITE, J., dissenting). The rule thus operates as "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra, supra, at 348. Whether the exclusionary sanction is appropriately imposed in a particular case, our decisions make clear, is "an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct." Illinois v. Gates, supra, at 223. Only the former question is currently before us, and it must *907 be resolved by weighing the costs and benefits of preventing the use in the prosecution's case in chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective. The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern. "Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury." United States v. Payner, 447 U.S. 727, 734 (1980). An objectionable collateral consequence of this interference with the criminal justice system's truth-finding function is that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains.[6] Particularly *908 when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system. Stone v. Powell, 428 U. S., at 490. Indiscriminate application of the exclusionary rule, therefore, may well "generat[e] disrespect for the law and administration of justice." Id., at 491. Accordingly, "[a]s with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra, supra, at 348; see Stone v. Powell, supra, at 486-487; United States v. Janis, 428 U.S. 433, 447 (1976). B Close attention to those remedial objectives has characterized our recent decisions concerning the scope of the Fourth Amendment exclusionary rule. The Court has, to be sure, not seriously questioned, "in the absence of a more efficacious sanction, the continued application of the rule to suppress evidence *909 from the [prosecution's] case where a Fourth Amendment violation has been substantial and deliberate. . . ." Franks v. Delaware, 438 U.S. 154, 171 (1978); Stone v. Powell, supra, at 492. Nevertheless, the balancing approach that has evolved in various contexts — including criminal trials — "forcefully suggest[s] that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment." Illinois v. Gates, 462 U. S., at 255 (WHITE, J., concurring in judgment). In Stone v. Powell, supra, the Court emphasized the costs of the exclusionary rule, expressed its view that limiting the circumstances under which Fourth Amendment claims could be raised in federal habeas corpus proceedings would not reduce the rule's deterrent effect, id., at 489-495, and held that a state prisoner who has been afforded a full and fair opportunity to litigate a Fourth Amendment claim may not obtain federal habeas relief on the ground that unlawfully obtained evidence had been introduced at his trial. Cf. Rose v. Mitchell, 443 U.S. 545, 560-563 (1979). Proposed extensions of the exclusionary rule to proceedings other than the criminal trial itself have been evaluated and rejected under the same analytic approach. In United States v. Calandra, for example, we declined to allow grand jury witnesses to refuse to answer questions based on evidence obtained from an unlawful search or seizure since "[a]ny incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best." 414 U.S., at 348. Similarly, in United States v. Janis, supra, we permitted the use in federal civil proceedings of evidence illegally seized by state officials since the likelihood of deterring police misconduct through such an extension of the exclusionary rule was insufficient to outweigh its substantial social costs. In so doing, we declared that, "[i]f . . . the exclusionary rule does not result in appreciable deterrence, then, clearly, its use in the instant situation is unwarranted." Id., at 454. *910 As cases considering the use of unlawfully obtained evidence in criminal trials themselves make clear, it does not follow from the emphasis on the exclusionary rule's deterrent value that "anything which deters illegal searches is thereby commanded by the Fourth Amendment." Alderman v. United States, 394 U. S., at 174. In determining whether persons aggrieved solely by the introduction of damaging evidence unlawfully obtained from their co-conspirators or codefendants could seek suppression, for example, we found that the additional benefits of such an extension of the exclusionary rule would not outweigh its costs. Id., at 174-175. Standing to invoke the rule has thus been limited to cases in which the prosecution seeks to use the fruits of an illegal search or seizure against the victim of police misconduct. Rakas v. Illinois, 439 U.S. 128 (1978); Brown v. United States, 411 U.S. 223 (1973); Wong Sun v. United States, 371 U.S. 471, 491-492 (1963). Cf. United States v. Payner, 447 U.S. 727 (1980). Even defendants with standing to challenge the introduction in their criminal trials of unlawfully obtained evidence cannot prevent every conceivable use of such evidence. Evidence obtained in violation of the Fourth Amendment and inadmissible in the prosecution's case in chief may be used to impeach a defendant's direct testimony. Walder v. United States, 347 U.S. 62 (1954). See also Oregon v. Hass, 420 U.S. 714 (1975); Harris v. New York, 401 U.S. 222 (1971). A similar assessment of the "incremental furthering" of the ends of the exclusionary rule led us to conclude in United States v. Havens, 446 U.S. 620, 627 (1980), that evidence inadmissible in the prosecution's case in chief or otherwise as substantive evidence of guilt may be used to impeach statements made by a defendant in response to "proper cross-examination reasonably suggested by the defendant's direct examination." Id., at 627-628. When considering the use of evidence obtained in violation of the Fourth Amendment in the prosecution's case in chief, moreover, we have declined to adopt a per se or "but for" rule *911 that would render inadmissible any evidence that came to light through a chain of causation that began with an illegal arrest. Brown v. Illinois, 422 U.S. 590 (1975); Wong Sun v. United States, supra, at 487-488. We also have held that a witness' testimony may be admitted even when his identity was discovered in an unconstitutional search. United States v. Ceccolini, 435 U.S. 268 (1978). The perception underlying these decisions — that the connection between police misconduct and evidence of crime may be sufficiently attenuated to permit the use of that evidence at trial — is a product of considerations relating to the exclusionary rule and the constitutional principles it is designed to protect. Dunaway v. New York, 442 U.S. 200, 217-218 (1979); United States v. Ceccolini, supra, at 279.[7] In short, the "dissipation of the taint" concept that the Court has applied in deciding whether exclusion is appropriate in a particular case "attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost." Brown v. Illinois, supra, at 609 (POWELL, J., concurring in part). Not surprisingly in view of this purpose, an assessment of the flagrancy of the police misconduct constitutes an important step in the calculus. Dunaway v. New York, supra, at 218; Brown v. Illinois, supra, at 603-604. The same attention to the purposes underlying the exclusionary rule also has characterized decisions not involving the scope of the rule itself. We have not required suppression of the fruits of a search incident to an arrest made in good-faith reliance on a substantive criminal statute that subsequently *912 is declared unconstitutional. Michigan v. DeFillippo, 443 U.S. 31 (1979).[8] Similarly, although the Court has been unwilling to conclude that new Fourth Amendment principles are always to have only prospective effect, United States v. Johnson, 457 U.S. 537, 560 (1982),[9] no Fourth Amendment decision marking a "clear break with the past" has been applied retroactively. See United States v. Peltier, 422 U.S. 531 (1975); Desist v. United States, 394 U.S. 244 (1969); Linkletter v. Walker, 381 U.S. 618 (1965).[10] The propriety *913 of retroactive application of a newly announced Fourth Amendment principle, moreover, has been assessed largely in terms of the contribution retroactivity might make to the deterrence of police misconduct. United States v. Johnson, supra, at 560-561; United States v. Peltier, supra, at 536-539, 542. As yet, we have not recognized any form of good-faith exception to the Fourth Amendment exclusionary rule.[11] But the balancing approach that has evolved during the years of experience with the rule provides strong support for the modification currently urged upon us. As we discuss below, our evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible in the prosecution's case in chief. III A Because a search warrant "provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard *914 against improper searches than the hurried judgment of a law enforcement officer `engaged in the often competitive enterprise of ferreting out crime,' " United States v. Chadwick, 433 U.S. 1, 9 (1977) (quoting Johnson v. United States, 333 U.S. 10, 14 (1948)), we have expressed a strong preference for warrants and declared that "in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall." United States v. Ventresca, 380 U.S. 102, 106 (1965). See Aguilar v. Texas, 378 U. S., at 111. Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according "great deference" to a magistrate's determination. Spinelli v. United States, 393 U. S., at 419. See Illinois v. Gates, 462 U. S., at 236; United States v. Ventresca, supra, at 108-109. Deference to the magistrate, however, is not boundless. It is clear, first, that the deference accorded to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. Franks v. Delaware, 438 U.S. 154 (1978).[12] Second, the courts must also insist that the magistrate purport to "perform his `neutral and detached' function and not serve merely as a rubber stamp for the police." Aguilar v. Texas, supra, at 111. See Illinois v. Gates, supra, at 239. A magistrate failing to "manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application" and who acts instead as "an adjunct law enforcement officer" cannot provide valid authorization for an otherwise unconstitutional search. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-327 (1979). *915 Third, reviewing courts will not defer to a warrant based on an affidavit that does not "provide the magistrate with a substantial basis for determining the existence of probable cause." Illinois v. Gates, 462 U. S., at 239. "Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others." Ibid. See Aguilar v. Texas, supra, at 114-115; Giordenello v. United States, 357 U.S. 480 (1958); Nathanson v. United States, 290 U.S. 41 (1933).[13] Even if the warrant application was supported by more than a "bare bones" affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant was invalid because the magistrate's probable-cause determination reflected an improper analysis of the totality of the circumstances, Illinois v. Gates, supra, at 238-239, or because the form of the warrant was improper in some respect. Only in the first of these three situations, however, has the Court set forth a rationale for suppressing evidence obtained pursuant to a search warrant; in the other areas, it has simply excluded such evidence without considering whether *916 Fourth Amendment interests will be advanced. To the extent that proponents of exclusion rely on its behavioral effects on judges and magistrates in these areas, their reliance is misplaced. First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.[14] Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate.[15] Many of the factors *917 that indicate that the exclusionary rule cannot provide an effective "special" or "general" deterrent for individual offending law enforcement officers[16] apply as well to judges or magistrates. And, to the extent that the rule is thought to operate as a "systemic" deterrent on a wider audience,[17] it clearly can have no such effect on individuals empowered to issue search warrants. Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions. The threat of exclusion thus cannot be expected significantly to deter them. Imposition of the exclusionary sanction is not necessary meaningfully to inform judicial officers of their errors, and we cannot conclude that admitting evidence obtained pursuant to a warrant while at the same time declaring that the warrant was somehow defective will in any way reduce judicial officers' professional incentives to comply with the Fourth Amendment, encourage them to repeat their mistakes, or lead to the granting of all colorable warrant requests.[18] *918 B If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect, therefore, it must alter the behavior of individual law enforcement officers or the policies of their departments. One could argue that applying the exclusionary rule in cases where the police failed to demonstrate probable cause in the warrant application deters future inadequate presentations or "magistrate shopping" and thus promotes the ends of the Fourth Amendment. Suppressing evidence obtained pursuant to a technically defective warrant supported by probable cause also might encourage officers to scrutinize more closely the form of the warrant and to point out suspected judicial errors. We find such arguments speculative and conclude that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.[19] We have frequently questioned whether the exclusionary rule can have any deterrent effect when the offending officers acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment. "No empirical researcher, proponent or opponent of the rule, has yet been able to establish with any assurance whether the rule has a deterrent effect . . . ." United States v. Janis, 428 U. S., at 452, n. 22. But even assuming that the rule effectively *919 deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity. As we observed in Michigan v. Tucker, 417 U.S. 433, 447 (1974), and reiterated in United States v. Peltier, 422 U. S., at 539: "The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force." The Peltier Court continued, id., at 542: "If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." See also Illinois v. Gates, 462 U. S., at 260-261 (WHITE, J., concurring in judgment); United States v. Janis, supra, at 459; Brown v. Illinois, 422 U. S., at 610-611 (POWELL, J., concurring in part).[20] In short, where the officer's conduct is objectively reasonable, *920 "excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that . . . the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty." Stone v. Powell, 428 U. S., at 539-540 (WHITE, J., dissenting). This is particularly true, we believe, when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.[21] In most *921 such cases, there is no police illegality and thus nothing to deter. It is the magistrate's responsibility to determine whether the officer's allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient. "[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law." Id., at 498 (BURGER, C. J., concurring). Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.[22] *922 C We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. We do not suggest, however, that exclusion is always inappropriate in cases where an officer has obtained a warrant and abided by its terms. "[S]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness," Illinois v. Gates, 462 U. S., at 267 (WHITE, J., concurring in judgment), for "a warrant issued by a magistrate normally suffices to establish" that a law enforcement officer has "acted in good faith in conducting the search." United States v. Ross, 456 U.S. 798, 823, n. 32 (1982). Nevertheless, the officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, cf. Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1982),[23] and it is clear that in some circumstances *923 the officer[24] will have no reasonable grounds for believing that the warrant was properly issued. Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware, 438 U.S. 154 (1978). The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979); in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Brown v. Illinois, 422 U. S., at 610-611 (POWELL, J., concurring in part); see Illinois v. Gates, supra, at 263-264 (WHITE, J., concurring in judgment). Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient — i. e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid. Cf. Massachusetts v. Sheppard, post, at 988-991. In so limiting the suppression remedy, we leave untouched the probable-cause standard and the various requirements for a valid warrant. Other objections to the modification of *924 the Fourth Amendment exclusionary rule we consider to be insubstantial. The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect. As we have already suggested, the good-faith exception, turning as it does on objective reasonableness, should not be difficult to apply in practice. When officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time. Nor are we persuaded that application of a good-faith exception to searches conducted pursuant to warrants will preclude review of the constitutionality of the search or seizure, deny needed guidance from the courts, or freeze Fourth Amendment law in its present state.[25] There is no need for courts to adopt the inflexible practice of always deciding whether the officers' conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated. Defendants seeking suppression of the fruits of allegedly unconstitutional searches or seizures undoubtedly raise live controversies which Art. III empowers federal courts to adjudicate. As cases addressing questions of good-faith immunity under 42 U.S. C. § 1983, compare O'Connor v. Donaldson, 422 U.S. 563 (1975), with Procunier v. Navarette, 434 U.S. 555, 566, n. 14 (1978), and cases involving the harmless-error doctrine, compare Milton v. Wainwright, 407 U.S. 371, 372 (1972), with Coleman v. Alabama, 399 U.S. 1 (1970), make clear, courts have considerable *925 discretion in conforming their decisionmaking processes to the exigencies of particular cases. If the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers and magistrates, nothing will prevent reviewing courts from deciding that question before turning to the good-faith issue.[26] Indeed, it frequently will be difficult to determine whether the officers acted reasonably without resolving the Fourth Amendment issue. Even if the Fourth Amendment question is not one of broad import, reviewing courts could decide in particular cases that magistrates under their supervision need to be informed of their errors and so evaluate the officers' good faith only after finding a violation. In other circumstances, those courts could reject suppression motions posing no important Fourth Amendment questions by turning immediately to a consideration of the officers' good faith. We have no reason to believe that our Fourth Amendment jurisprudence would suffer by allowing reviewing courts to exercise an informed discretion in making this choice. IV When the principles we have enunciated today are applied to the facts of this case, it is apparent that the judgment of the Court of Appeals cannot stand. The Court of Appeals applied the prevailing legal standards to Officer Rombach's warrant application and concluded that the application could not support the magistrate's probable-cause determination. In so doing, the court clearly informed the magistrate that he *926 had erred in issuing the challenged warrant. This aspect of the court's judgment is not under attack in this proceeding. Having determined that the warrant should not have issued, the Court of Appeals understandably declined to adopt a modification of the Fourth Amendment exclusionary rule that this Court had not previously sanctioned. Although the modification finds strong support in our previous cases, the Court of Appeals' commendable self-restraint is not to be criticized. We have now reexamined the purposes of the exclusionary rule and the propriety of its application in cases where officers have relied on a subsequently invalidated search warrant. Our conclusion is that the rule's purposes will only rarely be served by applying it in such circumstances. In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. Only respondent Leon has contended that no reasonably well trained police officer could have believed that there existed probable cause to search his house; significantly, the other respondents advance no comparable argument. Officer Rombach's application for a warrant clearly was supported by much more than a "bare bones" affidavit. The affidavit related the results of an extensive investigation and, as the opinions of the divided panel of the Court of Appeals make clear, provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause. Under these circumstances, the officers' reliance on the magistrate's determination of probable cause was objectively reasonable, and application of the extreme sanction of exclusion is inappropriate. Accordingly, the judgment of the Court of Appeals is Reversed.

This case presents the question whether the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. To resolve this question, we must consider once again the tension between the sometimes competing goals of, on the one hand, deterring official misconduct and removing inducements to unreasonable invasions of privacy and, on the other, establishing procedures under which criminal defendants are "acquitted *01 or convicted on the basis of all the evidence which exposes the truth." I In August 181, a confidential informant of unproven reliability informed an officer of the Burbank Police Department that two persons known to him as "Armando" and "Patsy" were selling large quantities of cocaine and methaqualone from their residence at 620 Price Drive in Burbank, Cal. The informant also indicated that he had witnessed a sale of methaqualone by "Patsy" at the residence approximately five months earlier and had observed at that time a shoebox containing a large amount of cash that belonged to "Patsy." He further declared that "Armando" and "Patsy" generally kept only small quantities of drugs at their residence and stored the remainder at another location in Burbank. On the basis of this information, the Burbank police initiated an extensive investigation focusing first on the Price Drive residence and later on two other residences as well. Cars parked at the Price Drive residence were determined to belong to respondents Armando Sanchez, who had previously been arrested for possession of marihuana, and Patsy Stewart, who had no criminal record. During the course of the investigation, officers observed an automobile belonging to respondent Ricardo Del Castillo, who had previously been arrested for possession of 50 pounds of marihuana, arrive at the Price Drive residence. The driver of that car entered the house, exited shortly thereafter carrying a small paper sack, and drove away. A check of Del Castillo's probation records led the officers to respondent Alberto Leon, whose telephone number Del Castillo had listed as his employer's. Leon had been arrested in 180 on drug charges, and a companion had informed the police at that time that Leon was heavily involved in the importation of drugs into this country. Before the current investigation began, the Burbank officers had *02 learned that an informant had told a Glendale police officer that Leon stored a large quantity of methaqualone at his residence in Glendale. During the course of this investigation, the Burbank officers learned that Leon was living at 716 South Sunset Canyon in Burbank. Subsequently, the officers observed several persons, at least one of whom had prior drug involvement, arriving at the Price Drive residence and leaving with small packages; observed a variety of other material activity at the two residences as well as at a condominium at 702 Via Magdalena; and witnessed a variety of relevant activity involving respondents' automobiles. The officers also observed respondents Sanchez and Stewart board separate flights for Miami. The pair later returned to Los Angeles together, consented to a search of their luggage that revealed only a small amount of marihuana, and left the airport. Based on these and other observations summarized in the affidavit, App. 34, Officer Cyril Rombach of the Burbank Police Department, an experienced and well-trained narcotics investigator, prepared an application for a warrant to search 620 Price Drive, 716 South Sunset Canyon, 702 Via Magdalena, and automobiles registered to each of the respondents for an extensive list of items believed to be related to respondents' drug-trafficking activities. Officer Rombach's extensive application was reviewed by several Deputy District Attorneys. A facially valid search warrant was issued in September 181 by a State Superior Court Judge. The ensuing searches produced large quantities of drugs at the Via Magdalena and Sunset Canyon addresses and a small quantity at the Price Drive residence. Other evidence was discovered at each of the residences and in Stewart's and Del Castillo's automobiles. Respondents were indicted by a grand jury in the District Court for the Central District of California and charged with conspiracy to possess and distribute cocaine and a variety of substantive counts. *03 The respondents then filed motions to suppress the evidence seized pursuant to the warrant.[1] The District Court held an evidentiary hearing and, while recognizing that the case was a close one, see granted the motions to suppress in part. It concluded that the affidavit was insufficient to establish probable cause,[2] but did not suppress all of the evidence as to all of the respondents because none of the respondents had standing to challenge all of the searches.[3] In *04 response to a request from the Government, the court made clear that Officer Rombach had acted in good faith, but it rejected the Government's suggestion that the Fourth Amendment exclusionary rule should not apply where evidence is seized in reasonable, good-faith reliance on a search warrant.[4] The District Court denied the Government's motion for reconsideration, and a divided panel of the Court of Appeals for the Ninth Circuit affirmed, judgt. order reported at The Court of Appeals first concluded that Officer Rombach's affidavit could not establish probable cause to search the Price Drive residence. To the extent that the affidavit set forth facts demonstrating the basis of the informant's knowledge of criminal activity, the information included was fatally stale. The affidavit, moreover, failed to establish the informant's credibility. Accordingly, the Court of Appeals concluded that the information provided by the informant was inadequate under both prongs of the two-part test established in and[5] The officers' independent investigation neither cured the staleness nor corroborated the details of the informant's declarations. The Court of Appeals then considered whether the affidavit formed a proper basis for the *05 search of the Sunset Canyon residence. In its view, the affidavit included no facts indicating the basis for the informants' statements concerning respondent Leon's criminal activities and was devoid of information establishing the informants' reliability. Because these deficiencies had not been cured by the police investigation, the District Court properly suppressed the fruits of the search. The Court of Appeals refused the Government's invitation to recognize a good-faith exception to the Fourth Amendment exclusionary rule. App. to Pet. for Cert. 4a. The Government's petition for certiorari expressly declined to seek review of the lower courts' determinations that the search warrant was unsupported by probable cause and presented only the question "[w]hether the Fourth Amendment exclusionary rule should be modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective." We granted certiorari to consider the propriety of such a modification. Although it undoubtedly is within our power to consider the question whether probable cause existed under the "totality of the circumstances" test announced last Term in that question has not been briefed or argued; and it is also within our authority, which we choose to exercise, to take the case as it comes to us, accepting the Court of Appeals' conclusion that probable cause was lacking under the prevailing legal standards. See this Court's Rule 21.1(a). We have concluded that, in the Fourth Amendment context, the exclusionary rule can be modified somewhat without jeopardizing its ability to perform its intended functions. Accordingly, we reverse the judgment of the Court of Appeals. II Language in opinions of this Court and of individual Justices has sometimes implied that the exclusionary rule is a necessary corollary of the Fourth Amendment, ; or that the rule is required by the conjunction of the Fourth and Fifth Amendments. Mapp v. ; These implications need not detain us long. The Fifth Amendment theory has not withstood critical analysis or the test of time, see and the Fourth Amendment "has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons." A The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, and an examination of its origin and purposes makes clear that the use of fruits of a past unlawful search or seizure "work[s] no new Fourth Amendment wrong." United The wrong condemned by the Amendment is "fully accomplished" by the unlawful search or seizure itself, ib and the exclusionary rule is neither intended nor able to "cure the invasion of the defendant's rights which he has already suffered." The rule thus operates as "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United Whether the exclusionary sanction is appropriately imposed in a particular case, our decisions make clear, is "an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct." Only the former question is currently before us, and it must *07 be resolved by weighing the costs and benefits of preventing the use in the prosecution's case in chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective. The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern. "Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury." United An objectionable collateral consequence of this interference with the criminal justice system's truth-finding function is that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains.[6] Particularly *08 when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system. Indiscriminate application of the exclusionary rule, therefore, may well "generat[e] disrespect for the law and administration of justice." Accordingly, "[a]s with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." United ; see at -487; United B Close attention to those remedial objectives has characterized our recent decisions concerning the scope of the Fourth Amendment exclusionary rule. The Court has, to be sure, not seriously questioned, "in the absence of a more efficacious sanction, the continued application of the rule to suppress evidence *0 from the [prosecution's] case where a Fourth Amendment violation has been substantial and deliberate." ; Nevertheless, the balancing approach that has evolved in various contexts — including criminal trials — "forcefully suggest[s] that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment." In the Court emphasized the costs of the exclusionary rule, expressed its view that limiting the circumstances under which Fourth Amendment claims could be raised in federal habeas corpus proceedings would not reduce the rule's deterrent effect, and held that a state prisoner who has been afforded a full and fair opportunity to litigate a Fourth Amendment claim may not obtain federal habeas relief on the ground that unlawfully obtained evidence had been introduced at his trial. Cf. Proposed extensions of the exclusionary rule to proceedings other than the criminal trial itself have been evaluated and rejected under the same analytic approach. In United for example, we declined to allow grand jury witnesses to refuse to answer questions based on evidence obtained from an unlawful search or seizure since "[a]ny incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best." 4 U.S., Similarly, in United we permitted the use in federal civil proceedings of evidence illegally seized by state officials since the likelihood of deterring police misconduct through such an extension of the exclusionary rule was insufficient to outweigh its substantial social costs. In so doing, we declared that, "[i]f the exclusionary rule does not result in appreciable deterrence, then, clearly, its use in the instant situation is unwarranted." *10 As cases considering the use of unlawfully obtained evidence in criminal trials themselves make clear, it does not follow from the emphasis on the exclusionary rule's deterrent value that "anything which deters illegal searches is thereby commanded by the Fourth Amendment." In determining whether persons aggrieved solely by the introduction of damaging evidence unlawfully obtained from their co-conspirators or codefendants could seek suppression, for example, we found that the additional benefits of such an extension of the exclusionary rule would not outweigh its costs. at 174-. Standing to invoke the rule has thus been limited to cases in which the prosecution seeks to use the fruits of an illegal search or seizure against the victim of police misconduct. ; Brown v. United ; Wong Sun v. United Cf. United Even defendants with standing to challenge the introduction in their criminal trials of unlawfully obtained evidence cannot prevent every conceivable use of such evidence. Evidence obtained in violation of the Fourth Amendment and inadmissible in the prosecution's case in chief may be used to impeach a defendant's direct testimony. Walder v. United See also ; A similar assessment of the "incremental furthering" of the ends of the exclusionary rule led us to conclude in United v. Havens, that evidence inadmissible in the prosecution's case in chief or otherwise as substantive evidence of guilt may be used to impeach statements made by a defendant in response to "proper cross-examination reasonably suggested by the defendant's direct examination." at -628. When considering the use of evidence obtained in violation of the Fourth Amendment in the prosecution's case in chief, moreover, we have declined to adopt a per se or "but for" rule *11 that would render inadmissible any evidence that came to light through a chain of causation that began with an illegal arrest. ; Wong Sun v. United We also have held that a witness' testimony may be admitted even when his identity was discovered in an unconstitutional search. United v. The perception underlying these decisions — that the connection between police misconduct and evidence of crime may be sufficiently attenuated to permit the use of that evidence at trial — is a product of considerations relating to the exclusionary rule and the constitutional principles it is designed to protect. ; United v.[7] In short, the "dissipation of the taint" concept that the Court has applied in deciding whether exclusion is appropriate in a particular case "attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost." Not surprisingly in view of this purpose, an assessment of the flagrancy of the police misconduct constitutes an important step in the calculus. ; The same attention to the purposes underlying the exclusionary rule also has characterized decisions not involving the scope of the rule itself. We have not required suppression of the fruits of a search incident to an arrest made in good-faith reliance on a substantive criminal statute that subsequently *12 is declared unconstitutional.[8] Similarly, although the Court has been unwilling to conclude that new Fourth Amendment principles are always to have only prospective effect, United v.[] no Fourth Amendment decision marking a "clear break with the past" has been applied retroactively. See United v. ; Desist v. United ;[10] The propriety *13 of retroactive application of a newly announced Fourth Amendment principle, moreover, has been assessed largely in terms of the contribution retroactivity might make to the deterrence of police misconduct. United v. at -561; United v. As yet, we have not recognized any form of good-faith exception to the Fourth Amendment exclusionary rule.[11] But the balancing approach that has evolved during the years of experience with the rule provides strong support for the modification currently urged upon us. As we discuss below, our evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible in the prosecution's case in chief. III A Because a search warrant "provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard * against improper searches than the hurried judgment of a law enforcement officer `engaged in the often competitive enterprise of ferreting out crime,' " United v. Chadwick, (quoting v. United (8)), we have expressed a strong preference for warrants and declared that "in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall." United v. See Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according "great deference" to a magistrate's determination. 33 U. S., at 41. See ; United v. at 108-10. Deference to the magistrate, however, is not boundless. It is clear, first, that the deference accorded to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based.[12] Second, the courts must also insist that the magistrate purport to "perform his `neutral and detached' function and not serve merely as a rubber stamp for the police." See at 23. A magistrate failing to "manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application" and who acts instead as "an adjunct law enforcement officer" cannot provide valid authorization for an otherwise unconstitutional search. Lo-Ji Sales, Inc. v. New 442 U.S. 31, *15 Third, reviewing courts will not defer to a warrant based on an affidavit that does not "provide the magistrate with a substantial basis for determining the existence of probable cause." 462 U. S., at 23. "Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others." See at 1-115; Giordenello v. United (158); Nathanson v. United 20 U.S. 41 (133).[13] Even if the warrant application was supported by more than a "bare bones" affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant was invalid because the magistrate's probable-cause determination reflected an improper analysis of the totality of the circumstances, at 238-23, or because the form of the warrant was improper in some respect. Only in the first of these three situations, however, has the Court set forth a rationale for suppressing evidence obtained pursuant to a search warrant; in the other areas, it has simply excluded such evidence without considering whether *16 Fourth Amendment interests will be advanced. To the extent that proponents of exclusion rely on its behavioral effects on judges and magistrates in these areas, their reliance is misplaced. First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.[] Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate.[15] Many of the factors *17 that indicate that the exclusionary rule cannot provide an effective "special" or "general" deterrent for individual offending law enforcement officers[16] apply as well to judges or magistrates. And, to the extent that the rule is thought to operate as a "systemic" deterrent on a wider audience,[17] it clearly can have no such effect on individuals empowered to issue search warrants. Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions. The threat of exclusion thus cannot be expected significantly to deter them. Imposition of the exclusionary sanction is not necessary meaningfully to inform judicial officers of their errors, and we cannot conclude that admitting evidence obtained pursuant to a warrant while at the same time declaring that the warrant was somehow defective will in any way reduce judicial officers' professional incentives to comply with the Fourth Amendment, encourage them to repeat their mistakes, or lead to the granting of all colorable warrant requests.[18] *18 B If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect, therefore, it must alter the behavior of individual law enforcement officers or the policies of their departments. One could argue that applying the exclusionary rule in cases where the police failed to demonstrate probable cause in the warrant application deters future inadequate presentations or "magistrate shopping" and thus promotes the ends of the Fourth Amendment. Suppressing evidence obtained pursuant to a technically defective warrant supported by probable cause also might encourage officers to scrutinize more closely the form of the warrant and to point out suspected judicial errors. We find such arguments speculative and conclude that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.[1] We have frequently questioned whether the exclusionary rule can have any deterrent effect when the offending officers acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment. "No empirical researcher, proponent or opponent of the rule, has yet been able to establish with any assurance whether the rule has a deterrent effect" United n. 22. But even assuming that the rule effectively *1 deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity. As we observed in and reiterated in United v. 422 U. S., at 53: "The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force." The Court continued, at 542: "If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." See also -261 ; United at 45; -611[20] In short, where the officer's conduct is objectively reasonable, *20 "excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty." 428 U. S., at 53-540 This is particularly true, we believe, when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.[21] In most *21 such cases, there is no police illegality and thus nothing to deter. It is the magistrate's responsibility to determine whether the officer's allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient. "[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law." at 48 Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.[22] *22 C We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. We do not suggest, however, that exclusion is always inappropriate in cases where an officer has obtained a warrant and abided by its terms. "[S]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness," for "a warrant issued by a magistrate normally suffices to establish" that a law enforcement officer has "acted in good faith in conducting the search." United v. Ross, 456 U.S. 78, Nevertheless, the officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, cf. 815-81[23] and it is clear that in some circumstances *23 the officer[24] will have no reasonable grounds for believing that the warrant was properly issued. Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New 442 U.S. 31 ; in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." -611 ; see Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient — i. e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid. Cf. Massachusetts v. Sheppard, post, at 88-1. In so limiting the suppression remedy, we leave untouched the probable-cause standard and the various requirements for a valid warrant. Other objections to the modification of *24 the Fourth Amendment exclusionary rule we consider to be insubstantial. The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect. As we have already suggested, the good-faith exception, turning as it does on objective reasonableness, should not be difficult to apply in practice. When officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time. Nor are we persuaded that application of a good-faith exception to searches conducted pursuant to warrants will preclude review of the constitutionality of the search or seizure, deny needed guidance from the courts, or freeze Fourth Amendment law in its present state.[25] There is no need for courts to adopt the inflexible practice of always deciding whether the officers' conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated. Defendants seeking suppression of the fruits of allegedly unconstitutional searches or seizures undoubtedly raise live controversies which Art. III empowers federal courts to adjudicate. As cases addressing questions of good-faith immunity under 42 U.S. C. compare with 566, n. and cases involving the harmless-error doctrine, compare (172), with 3 U.S. 1 (170), make clear, courts have considerable *25 discretion in conforming their decisionmaking processes to the exigencies of particular cases. If the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers and magistrates, nothing will prevent reviewing courts from deciding that question before turning to the good-faith issue.[26] Indeed, it frequently will be difficult to determine whether the officers acted reasonably without resolving the Fourth Amendment issue. Even if the Fourth Amendment question is not one of broad import, reviewing courts could decide in particular cases that magistrates under their supervision need to be informed of their errors and so evaluate the officers' good faith only after finding a violation. In other circumstances, those courts could reject suppression motions posing no important Fourth Amendment questions by turning immediately to a consideration of the officers' good faith. We have no reason to believe that our Fourth Amendment jurisprudence would suffer by allowing reviewing courts to exercise an informed discretion in making this choice. IV When the principles we have enunciated today are applied to the facts of this case, it is apparent that the judgment of the Court of Appeals cannot stand. The Court of Appeals applied the prevailing legal standards to Officer Rombach's warrant application and concluded that the application could not support the magistrate's probable-cause determination. In so doing, the court clearly informed the magistrate that he *26 had erred in issuing the challenged warrant. This aspect of the court's judgment is not under attack in this proceeding. Having determined that the warrant should not have issued, the Court of Appeals understandably declined to adopt a modification of the Fourth Amendment exclusionary rule that this Court had not previously sanctioned. Although the modification finds strong support in our previous cases, the Court of Appeals' commendable self-restraint is not to be criticized. We have now reexamined the purposes of the exclusionary rule and the propriety of its application in cases where officers have relied on a subsequently invalidated search warrant. Our conclusion is that the rule's purposes will only rarely be served by applying it in such circumstances. In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. Only respondent Leon has contended that no reasonably well trained police officer could have believed that there existed probable cause to search his house; significantly, the other respondents advance no comparable argument. Officer Rombach's application for a warrant clearly was supported by much more than a "bare bones" affidavit. The affidavit related the results of an extensive investigation and, as the opinions of the divided panel of the Court of Appeals make clear, provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause. Under these circumstances, the officers' reliance on the magistrate's determination of probable cause was objectively reasonable, and application of the extreme sanction of exclusion is inappropriate. Accordingly, the judgment of the Court of Appeals is Reversed.

Justice Stevens

majority

Jones v. RR Donnelley & Sons Co.

https://www.courtlistener.com/opinion/134736/jones-v-rr-donnelley-sons-co/

https://www.courtlistener.com/api/rest/v3/clusters/134736/

2003-052

Like many federal statutes, 42 U.S. C. § 1981 does not contain a statute of limitations. We held in Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987), that federal courts should apply "the most appropriate or analogous state statute of limitations" to claims based on asserted violations of § 1981. Three years after our decision in Goodman, Congress enacted a catchall 4-year statute of limitations for actions arising under federal statutes enacted after December 1, 1990. 28 U.S.C. § 1658. The question in this case is whether petitioners' causes of action, which allege violations of § 1981, as amended by the Civil Rights Act of 1991 (1991 Act), 105 Stat. 1071, are governed by § 1658 or by the personal injury statute of limitations of the forum State. I Petitioners are African-American former employees of respondent's Chicago manufacturing division. On November *372 25, 1996, petitioners filed this class action alleging violations of their rights under § 1981, as amended by the 1991 Act. Specifically, the three classes of plaintiffs alleged that they were subjected to a racially hostile work environment, given an inferior employee status, and wrongfully terminated or denied a transfer in connection with the closing of the Chicago plant. Respondent sought summary judgment on the ground that petitioners' claims are barred by the applicable Illinois statute of limitations because they arose more than two years before the complaint was filed. Petitioners responded that their claims are governed by § 1658, which provides: "Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues."[1] Section 1658 was enacted on December 1, 1990. Thus, petitioners' claims are subject to the 4-year statute of limitations if they arose under an Act of Congress enacted after that date. The original version of the statute now codified at Rev. Stat. § 1977, 42 U.S. C. § 1981, was enacted as § 1 of the Civil Rights Act of 1866, 14 Stat. 27. It was amended in minor respects in 1870 and recodified in 1874, see Runyon v. McCrary, 427 U.S. 160, 168-169, n. 8 (1976), but its basic coverage did not change prior to 1991. As first enacted, § 1981 provided in relevant part that "all persons [within the jurisdiction of the United States] shall have the same right, in every State and Territory . . . to make and enforce contracts . . . as is enjoyed by white citizens." 14 Stat. 27. We held in Patterson v. McLean Credit Union, 491 U.S. 164 (1989), *373 that the statutory right "to make and enforce contracts" did not protect against harassing conduct that occurred after the formation of the contract. Under that holding, it is clear that petitioners' hostile work environment, wrongful discharge, and refusal to transfer claims do not state violations of the original version of § 1981. In 1991, however, Congress responded to Patterson by adding a new subsection to § 1981 that defines the term "`make and enforce contracts'" to include the "termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S. C. § 1981(b).[2] It is undisputed that petitioners have alleged violations of the amended statute. The critical question, then, is whether petitioners' causes of action "ar[ose] under" the 1991 Act or under § 1981 as originally enacted. The District Court determined that petitioners' wrongful termination, refusal to transfer, and hostile work environment claims arose under the 1991 Act and therefore are governed by § 1658. Adams v. R. R. Donnelley & Sons, 149 *374 F. Supp. 2d 459 (ND Ill. 2001).[3] In its view, the plain text of § 1658 compels the conclusion that, "whenever Congress, after December 1990, passes legislation that creates a new cause of action, the catch-all statute of limitations applies to that cause of action." Id., at 464. The 1991 amendment to § 1981 falls within that category, the court reasoned, because it opened the door to claims of postcontract discrimination that, under Patterson, could not have been brought under § 1981 as enacted. 149 F. Supp. 2d, at 464. The District Court certified its ruling for an interlocutory appeal pursuant to 28 U.S. C. § 1292(b), and the Court of Appeals reversed. 305 F.3d 717 (CA7 2002). It concluded that § 1658 "applies only when an act of Congress creates a wholly new cause of action, one that does not depend on the continued existence of a statutory cause of action previously enacted and kept in force by the amendment." Id., at 726. The 1991 amendment does not satisfy that test, the court explained, because the text of § 1981(b) "simply cannot stand on its own"; instead, it merely redefines a term in the original statute without altering the text that "provides the basic right of recovery for an individual whose constitutional rights have been violated." Id., at 727. The Court of Appeals' conclusion that § 1658 does not apply to a cause of action based on a post-1990 amendment to a pre-existing statute is consistent with decisions from the Third and Eighth Circuits. See Zubi v. AT&T Corp., 219 F.3d 220, 224 (CA3 2000); Madison v. IBP, Inc., 257 F.3d 780, 798 (CA8 2001). Conversely, the Courts of Appeals for the Sixth and Tenth Circuits have held that § 1658 applies "whenever Congress, after December 1990, passes legislation *375 that creates a new cause of action," whether or not the legislation amends a pre-existing statute. Harris v. Allstate Insurance Co., 300 F.3d 1183, 1190 (CA10 2002); accord, Anthony v. BTR Automotive Sealing Systems, Inc., 339 F.3d 506, 514 (CA6 2003). We granted certiorari to resolve the conflict in the Circuits, 538 U.S. 1030 (2003), and now reverse. II Petitioners, supported by the United States as amicus curiae, argue that reversal is required by the "plain language" of § 1658, which prescribes a 4-year statute of limitations for "civil action[s] arising under an Act of Congress enacted after" December 1, 1990. They point out that the 1991 Act is, by its own terms, an "Act" of Congress that was "enacted" after December 1, 1990. See Pub. L. 102-166, 105 Stat. 1071. Moreover, citing our interpretations of the term "arising under" in other federal statutes and in Article III of the Constitution, petitioners maintain that their causes of action arose under the 1991 Act. Respondent concedes that the 1991 Act qualifies as an "Act of Congress enacted" after 1991, but argues that the meaning of the term "arising under" is not so clear. We agree. Although our expositions of the "arising under" concept in other contexts are helpful in interpreting the term as it is used in § 1658, they do not point the way to one obvious answer. For example, Chief Justice Marshall's statement that a case arises under federal law for purposes of Article III jurisdiction whenever federal law "forms an ingredient of the original cause," Osborn v. Bank of United States, 9 Wheat. 738, 823 (1824), supports petitioners' view that their causes of action arose under the 1991 amendment to § 1981, because the 1991 Act clearly "forms an ingredient" of petitioners' claims.[4] But the same could be said of the *376 original version of § 1981. Thus, reliance on Osborn would suggest that petitioners' causes of action arose under the pre-1991 version of § 1981 as well as under the 1991 Act, just as a cause of action may arise under both state and federal law. As the Court of Appeals observed, however, § 1658 does not expressly "address the eventuality when a cause of action `aris[es] under' two different `Acts,' one enacted before and one enacted after the effective date of § 1658." 305 F.3d, at 724. Petitioners argue that we should look not at Article III, but at how Congress has used the term "arising under" in federal legislation. They point in particular to the statutes in Title 28 that define the scope of federal subject-matter jurisdiction.[5] We have interpreted those statutes to mean that a claim arises under federal law if federal law provides a necessary element of the plaintiff's claim for relief.[6] Petitioners recognize that we have construed the term more broadly in other statutes,[7] but argue that the placement of § 1658 in Title 28 suggests that Congress meant to invoke our interpretation of the neighboring jurisdictional rules. We hesitate to place too much significance on the location of a statute in the United States Code. But even if we accepted *377 the proposition that Congress intended the term "arising under" to have the same meaning in § 1658 as in other sections of Title 28, it would not follow that the text is unambiguous. We have said that "[t]he most familiar definition of the statutory `arising under' limitation" is the statement by Justice Holmes that a suit "`arises under the law that creates the cause of action,'" Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 8-9 (1983) (quoting American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916)). On one hand, that statement could support petitioners' view that their causes of action arose under the 1991 Act, which created a statutory right that did not previously exist. On the other hand, it also could support respondent's claim that petitioners' causes of action arose under the original version of § 1981, which contains the operative language setting forth the elements of their claims. Justice Holmes' formulation even could support the view that petitioners' claims arose under both versions of the statute. Cf. T. B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (CA2 1964) (Friendly, J.) ("It has come to be realized that Mr. Justice Holmes' formula is more useful for inclusion than for the exclusion for which it was intended"). In order to ascertain Congress' intent, therefore, we must look beyond the bare text of § 1658 to the context in which it was enacted and the purposes it was designed to accomplish. III In Board of Regents of Univ. of State of N. Y. v. Tomanio, 446 U.S. 478, 483 (1980), we observed that Congress' failure to enact a uniform statute of limitations applicable to federal causes of action created a "void which is commonplace in federal statutory law." Over the years that void has spawned a vast amount of litigation. Prior to the enactment of § 1658, the "settled practice [was] to adopt a local time limitation as federal law if it [was] not inconsistent with federal law or policy to do so." Wilson v. Garcia, 471 U.S. 261, *378 266-267 (1985). Such "[l]imitation borrowing," Board of Regents v. Tomanio, 446 U. S., at 484, generated a host of issues that required resolution on a statute-by-statute basis. For example, it often was difficult to determine which of the forum State's statutes of limitations was the most appropriate to apply to the federal claim. We wrestled with that issue in Wilson v. Garcia, in which we considered which state statute provided the most appropriate limitations principle for claims arising under 42 U.S. C. § 1983. 471 U.S., at 268, 276-279 (resolving split of authority over whether the closest state analogue to an action brought under § 1983 was an action for tortious injury to the rights of another, an action on an unwritten contract, or an action for a liability on a statute). Before reaching that question, however, we first had to determine whether the characterization of a § 1983 claim for statute of limitations purposes was an issue of state or federal law and whether all such claims should be characterized in the same way. Ibid. Two years later, in Goodman v. Lukens Steel Co., we answered the same three questions for claims arising under § 1981. 482 U.S., at 660, 661-662. Both decisions provoked dissent[8] and further litigation.[9] The practice of borrowing state statutes of limitations also forced courts to address the "frequently present problem of a conflict of laws in determining which State statute [was] controlling, the law of the forum or that of the situs of the injury." S. Rep. No. 619, 84th Cong., 1st Sess., 4-6 (1955) (discussing problems caused by borrowing state statutes of *379 limitations for antitrust claims).[10] Even when courts were able to identify the appropriate state statute, limitations borrowing resulted in uncertainty for both plaintiffs and defendants, as a plaintiff alleging a federal claim in State A would find herself barred by the local statute of limitations while a plaintiff raising precisely the same claim in State B would be permitted to proceed. Ibid. Interstate variances of that sort could be especially confounding in class actions because they often posed problems for joint resolution. See Memorandum from R. Marcus, Assoc. Reporter to Workload Subcommittee (Sept. 1, 1989), reprinted in App. to Vol. 1 Federal Courts Study Committee, Working Papers and Subcommittee Reports (1990), Doc. No. 5, p. 10 (hereinafter Marcus Memorandum). Courts also were forced to grapple with questions such as whether federal or state law governed when an action was "commenced," or when service of process had to be effectuated. See Sentry Corp. v. Harris, 802 F.2d 229 (CA7 1986) (addressing those issues in the wake of our decision in Wilson). And the absence of a uniform federal limitations period complicated the development of federal law on the question when, or under what circumstances, a statute of limitations could be tolled. See 802 F.2d, at 234-242 (discussing conflicting authority on whether tolling was a matter of state or federal law); Board of Regents v. Tomanio, 446 U. S., at 485 (explaining that "`borrowing' logically included [state] rules of tolling"). Those problems led both courts and commentators to "cal[l] upon Congress to eliminate these complex cases, that do much to consume the time and energies of judges but that *380 do little to advance the cause of justice, by enacting federal limitations periods for all federal causes of action." Sentry Corp. v. Harris, 802 F. 2d, at 246.[11] Congress answered that call by creating the Federal Courts Study Committee, which recommended the enactment of a retroactive, uniform federal statute of limitations.[12] As we have noted, § 1658 applies only to claims arising under statutes enacted after December 1, 1990, but it otherwise follows the Committee's recommendation. The House Report accompanying the final bill confirms that Congress was keenly aware of the problems associated with the practice of borrowing state statutes of limitations, and that a central purpose of § 1658 was to minimize the occasions for that practice.[13] The history that led to the enactment of § 1658 strongly supports an interpretation that fills more rather than less of the void that has created so much unnecessary work for federal judges.[14] The interpretation favored by respondent *381 and the Court of Appeals subverts that goal by restricting § 1658 to cases in which the plaintiff's cause of action is based solely on a post-1990 statute that "`establishes a new cause of action without reference to preexisting law.'" 305 F.3d, at 727 (quoting Zubi v. AT&T Corp., 219 F. 3d, at 225). On that view, § 1658 would apply only to a small fraction of post-1990 enactments. Congress routinely creates new rights of action by amending existing statutes, and "[a]ltering statutory definitions, or adding new definitions of terms previously undefined, is a common way of amending statutes." Rivers v. Roadway Express, Inc., 511 U.S. 298, 308 (1994). Nothing in the text or history of § 1658 supports an interpretation that would limit its reach to entirely new sections of the United States Code. An amendment to an existing statute is no less an "Act of Congress" than a new, stand-alone statute. What matters is the substantive effect of an enactment—the creation of new rights of action and corresponding liabilities—not the format in which it appears in the Code. The Court of Appeals reasoned that § 1658 must be given a narrow scope lest it disrupt litigants' settled expectations. The court observed that Congress refused to make § 1658 retroactive because, "`with respect to many statutes that have no explicit limitations provision, the relevant limitations period has long since been resolved by judicial decision,'" and "`retroactively imposing a four year statute of limitations on legislation that the courts have previously ruled is subject to a six month limitations period in one [State], and a ten year period in another, would threaten to disrupt the settled expectations of . . . many parties.'" 305 F.3d, at 725-726 (quoting H. R. Rep. No. 101-734, p. 24 (1990)). Concerns about settled expectations provide a valid reason to reject an interpretation of § 1658 under which *382 any new amendment to federal law would suffice to trigger the 4-year statute of limitations, regardless of whether the plaintiff's claim would have been available—and subject to a state statute of limitations—prior to December 1, 1990. Such concerns do not, however, carry any weight against the reading of § 1658 adopted by the District Court and urged by petitioners, under which the catchall limitations period applies only to causes of action that were not available until after § 1658 was enacted. If a cause of action did not exist prior to 1990, potential litigants could not have formed settled expectations as to the relevant statute of limitations that would then be disrupted by application of § 1658. We conclude that a cause of action "aris[es] under an Act of Congress enacted" after December 1, 1990—and therefore is governed by § 1658's 4-year statute of limitations—if the plaintiff's claim against the defendant was made possible by a post-1990 enactment. That construction best serves Congress' interest in alleviating the uncertainty inherent in the practice of borrowing state statutes of limitations while at the same time protecting settled interests. It spares federal judges and litigants the need to identify the appropriate state statute of limitations to apply to new claims but leaves in place the "borrowed" limitations periods for pre-existing causes of action, with respect to which the difficult work already has been done. Interpreting § 1658 to apply whenever a post-1990 enactment creates a new right to maintain an action also is consistent with the common usage of the word "arise" to mean "come into being; originate"[15] or "spring up."[16] Finally, that construction is consistent with our interpretations of *383 the term "arising under" as it is used in statutes governing the scope of federal subject-matter jurisdiction. By contrast, nothing in our case law supports an interpretation as narrow as that endorsed by the Court of Appeals, under which "arising under" means something akin to "based solely upon." We should avoid reading § 1658 in such a way as to give the familiar statutory language a meaning foreign to every other context in which it is used. IV In this case, petitioners' hostile work environment, wrongful termination, and failure to transfer claims "ar[ose] under" the 1991 Act in the sense that petitioners' causes of action were made possible by that Act. Patterson held that "racial harassment relating to the conditions of employment is not actionable under § 1981." 491 U.S., at 171 (emphasis added). The 1991 Act overturned Patterson by defining the key "make and enforce contracts" language in § 1981 to include the "termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S. C. § 1981(b). In Rivers v. Roadway Express, Inc., we recognized that the 1991 amendment "enlarged the category of conduct that is subject to § 1981 liability," 511 U.S., at 303, and we therefore held that the amendment does not apply "to a case that arose before it was enacted," id., at 300. Our reasoning in Rivers supports the conclusion that the 1991 Act fully qualifies as "an Act of Congress enacted after [December 1, 1990]" within the meaning of § 1658. Because petitioners' hostile work environment, wrongful termination, and failure to transfer claims did not allege a violation of the pre-1990 version of § 1981 but did allege violations of the amended statute, those claims "ar[ose] under" the amendment to § 1981 contained in the 1991 Act. *384 While that conclusion seems eminently clear in this case,[17] respondent has posited various hypothetical cases in which it might be difficult to determine whether a particular claim arose under the amended or the unamended version of a statute. Similarly, the Court of Appeals reasoned that applying § 1658 to post-1990 amendments could be problematic in some cases because "`the line between an amendment that modifies an existing right and one that creates a new right is often difficult to draw.'" 305 F.3d, at 725 (quoting Zubi v. AT&T Corp., 219 F. 3d, at 224). We are not persuaded that any "guess work," 305 F.3d, at 725, is required to determine whether the plaintiff has alleged a violation of the relevant statute as it stood prior to December 1, 1990, or whether her claims necessarily depend on a subsequent amendment. Courts routinely make such determinations when dealing with amendments (such as the 1991 amendment to § 1981) that do not apply retroactively.[18] In any event, such hypothetical problems pale in comparison with the difficulties that federal courts faced for decades in trying *385 to answer all the questions raised by borrowing appropriate limitations rules from state statutes. 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.

Like many federal statutes, 42 U.S. C. 1981 does not contain a statute of limitations. We held in that federal courts should apply "the most appropriate or analogous state statute of limitations" to claims based on asserted violations of Three years after our decision in Goodman, Congress enacted a catchall 4-year statute of limitations for actions arising under federal statutes enacted after December 1, 1990. 28 U.S.C. 1658. The question in this case is whether petitioners' causes of action, which allege violations of 1981, as amended by the Civil Rights Act of 1991 (1991 Act), are governed by 1658 or by the personal injury statute of limitations of the forum State. I Petitioners are African-American former employees of respondent's Chicago manufacturing division. On November *372 25, 1996, petitioners filed this class action alleging violations of their rights under 1981, as amended by the 1991 Act. Specifically, the three classes of plaintiffs alleged that they were subjected to a racially hostile work environment, given an inferior employee status, and wrongfully terminated or denied a transfer in connection with the closing of the Chicago plant. Respondent sought summary judgment on the ground that petitioners' claims are barred by the applicable Illinois statute of limitations because they arose more than two years before the complaint was filed. Petitioners responded that their claims are governed by 1658, which provides: "Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues."[1] Section 1658 was enacted on December 1, 1990. Thus, petitioners' claims are subject to the 4-year statute of limitations if they arose under an Act of Congress enacted after that date. The original version of the statute now codified at Rev. Stat. 1977, 42 U.S. C. 1981, was enacted as 1 of the Civil Rights Act of 1866, It was amended in minor respects in 1870 and recodified in 1874, see but its basic coverage did not change prior to 1991. As first enacted, 1981 provided in relevant part that "all persons [within the jurisdiction of the United States] shall have the same right, in every State and Territory to make and enforce contracts as is enjoyed by white citizens." We held in *373 that the statutory right "to make and enforce contracts" did not protect against harassing conduct that occurred after the formation of the contract. Under that holding, it is clear that petitioners' hostile work environment, wrongful discharge, and refusal to transfer claims do not state violations of the original version of In 1991, however, Congress responded to Patterson by adding a new subsection to 1981 that defines the term "`make and enforce contracts'" to include the "termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S. C. 1981(b).[2] It is undisputed that petitioners have alleged violations of the amended statute. The critical question, then, is whether petitioners' causes of action "ar[ose] under" the 1991 Act or under 1981 as originally The District Court determined that petitioners' wrongful termination, refusal to transfer, and hostile work environment claims arose under the 1991 Act and therefore are governed by 1658.[3] In its view, the plain text of 1658 compels the conclusion that, "whenever Congress, after December 1990, passes legislation that creates a new cause of action, the catch-all statute of limitations applies to that cause of action." The 1991 amendment to 1981 falls within that category, the court reasoned, because it opened the door to claims of postcontract discrimination that, under Patterson, could not have been brought under 1981 as 149 F. Supp. 2d, The District Court certified its ruling for an interlocutory appeal pursuant to 28 U.S. C. 1292(b), and the Court of Appeals reversed. It concluded that 1658 "applies only when an act of Congress creates a wholly new cause of action, one that does not depend on the continued existence of a statutory cause of action previously enacted and kept in force by the amendment." The 1991 amendment does not satisfy that test, the court explained, because the text of 1981(b) "simply cannot stand on its own"; instead, it merely redefines a term in the original statute without altering the text that "provides the basic right of recovery for an individual whose constitutional rights have been violated." The Court of Appeals' conclusion that 1658 does not apply to a cause of action based on a post-1990 amendment to a pre-existing statute is consistent with decisions from the Third and Eighth Circuits. See ; Conversely, the Courts of Appeals for the Sixth and Tenth Circuits have held that 1658 applies "whenever Congress, after December 1990, passes legislation *375 that creates a new cause of action," whether or not the legislation amends a pre-existing statute. ; accord, We granted certiorari to resolve the conflict in the Circuits, and now reverse. II Petitioners, supported by the United States as amicus curiae, argue that reversal is required by the "plain language" of 1658, which prescribes a 4-year statute of limitations for "civil action[s] arising under an Act of Congress enacted after" December 1, 1990. They point out that the 1991 Act is, by its own terms, an "Act" of Congress that was "enacted" after December 1, 1990. See Pub. L. 102-166, Moreover, citing our interpretations of the term "arising under" in other federal statutes and in Article III of the Constitution, petitioners maintain that their causes of action arose under the 1991 Act. Respondent concedes that the 1991 Act qualifies as an "Act of Congress enacted" after 1991, but argues that the meaning of the term "arising under" is not so clear. We agree. Although our expositions of the "arising under" concept in other contexts are helpful in interpreting the term as it is used in 1658, they do not point the way to one obvious answer. For example, Chief Justice Marshall's statement that a case arises under federal law for purposes of Article III jurisdiction whenever federal law "forms an ingredient of the original cause," supports petitioners' view that their causes of action arose under the 1991 amendment to 1981, because the 1991 Act clearly "forms an ingredient" of petitioners' claims.[4] But the same could be said of the *376 original version of Thus, reliance on Osborn would suggest that petitioners' causes of action arose under the pre-1991 version of 1981 as well as under the 1991 Act, just as a cause of action may arise under both state and federal law. As the Court of Appeals observed, however, 1658 does not expressly "address the eventuality when a cause of action `aris[es] under' two different `Acts,' one enacted before and one enacted after the effective date of 1658." Petitioners argue that we should look not at Article III, but at how Congress has used the term "arising under" in federal legislation. They point in particular to the statutes in Title 28 that define the scope of federal subject-matter jurisdiction.[5] We have interpreted those statutes to mean that a claim arises under federal law if federal law provides a necessary element of the plaintiff's claim for relief.[6] Petitioners recognize that we have construed the term more broadly in other statutes,[7] but argue that the placement of 1658 in Title 28 suggests that Congress meant to invoke our interpretation of the neighboring jurisdictional rules. We hesitate to place too much significance on the location of a statute in the United States Code. But even if we accepted *377 the proposition that Congress intended the term "arising under" to have the same meaning in 1658 as in other sections of Title 28, it would not follow that the text is unambiguous. We have said that "[t]he most familiar definition of the statutory `arising under' limitation" is the statement by Justice Holmes that a suit "`arises under the law that creates the cause of action,'" Franchise Tax Bd. of On one hand, that statement could support petitioners' view that their causes of action arose under the 1991 Act, which created a statutory right that did not previously exist. On the other hand, it also could support respondent's claim that petitioners' causes of action arose under the original version of 1981, which contains the operative language setting forth the elements of their claims. Justice Holmes' formulation even could support the view that petitioners' claims arose under both versions of the statute. Cf. T. B. Harms 339 F.2d ("It has come to be realized that Mr. Justice Holmes' formula is more useful for inclusion than for the exclusion for which it was intended"). In order to ascertain Congress' intent, therefore, we must look beyond the bare text of 1658 to the context in which it was enacted and the purposes it was designed to accomplish. III In Board of Regents of Univ. of State of N. we observed that Congress' failure to enact a uniform statute of limitations applicable to federal causes of action created a "void which is commonplace in federal statutory law." Over the years that void has spawned a vast amount of litigation. Prior to the enactment of 1658, the "settled practice [was] to adopt a local time limitation as federal law if it [was] not inconsistent with federal law or policy to do so." Such "[l]imitation borrowing," Board of Regents v. generated a host of issues that required resolution on a statute-by-statute basis. For example, it often was difficult to determine which of the forum State's statutes of limitations was the most appropriate to apply to the federal claim. We wrestled with that issue in in which we considered which state statute provided the most appropriate limitations principle for claims arising under 42 U.S. C. 276-279 (resolving split of authority over whether the closest state analogue to an action brought under 1983 was an action for tortious injury to the rights of another, an action on an unwritten contract, or an action for a liability on a statute). Before reaching that question, however, we first had to determine whether the characterization of a 1983 claim for statute of limitations purposes was an issue of state or federal law and whether all such claims should be characterized in the same way. Two years later, in we answered the same three questions for claims arising under 482 U.S., at 661-662. Both decisions provoked dissent[8] and further litigation.[9] The practice of borrowing state statutes of limitations also forced courts to address the "frequently present problem of a conflict of laws in determining which State statute [was] controlling, the law of the forum or that of the situs of the injury." S. Rep. No. 619, 84th Cong., 1st Sess., 4-6 (1955) (discussing problems caused by borrowing state statutes of *379 limitations for antitrust claims).[10] Even when courts were able to identify the appropriate state statute, limitations borrowing resulted in uncertainty for both plaintiffs and defendants, as a plaintiff alleging a federal claim in State A would find herself barred by the local statute of limitations while a plaintiff raising precisely the same claim in State B would be permitted to proceed. Interstate variances of that sort could be especially confounding in class actions because they often posed problems for joint resolution. See Memorandum from R. Marcus, Assoc. Reporter to Workload Subcommittee reprinted in App. to Vol. 1 Federal Courts Study Committee, Working Papers and Subcommittee Reports (1990), Doc. No. 5, p. 10 (hereinafter Marcus Memorandum). Courts also were forced to grapple with questions such as whether federal or state law governed when an action was "commenced," or when service of process had to be effectuated. See Sentry And the absence of a uniform federal limitations period complicated the development of federal law on the question when, or under what circumstances, a statute of limitations could be tolled. See -242 ; Board of Regents v. Those problems led both courts and commentators to "cal[l] upon Congress to eliminate these complex cases, that do much to consume the time and energies of judges but that *380 do little to advance the cause of justice, by enacting federal limitations periods for all federal causes of action." Sentry 802 F. 2d, at 246.[11] Congress answered that call by creating the Federal Courts Study Committee, which recommended the enactment of a retroactive, uniform federal statute of limitations.[12] As we have noted, 1658 applies only to claims arising under statutes enacted after December 1, 1990, but it otherwise follows the Committee's recommendation. The House Report accompanying the final bill confirms that Congress was keenly aware of the problems associated with the practice of borrowing state statutes of limitations, and that a central purpose of 1658 was to minimize the occasions for that practice.[13] The history that led to the enactment of 1658 strongly supports an interpretation that fills more rather than less of the void that has created so much unnecessary work for federal judges.[14] The interpretation favored by respondent *381 and the Court of Appeals subverts that goal by restricting 1658 to cases in which the plaintiff's cause of action is based solely on a post-1990 statute that "`establishes a new cause of action without reference to preexisting law.'" 305 F.3d, (quoting ). On that view, 1658 would apply only to a small fraction of post-1990 enactments. Congress routinely creates new rights of action by amending existing statutes, and "[a]ltering statutory definitions, or adding new definitions of terms previously undefined, is a common way of amending statutes." Nothing in the text or history of 1658 supports an interpretation that would limit its reach to entirely new sections of the United States Code. An amendment to an existing statute is no less an "Act of Congress" than a new, stand-alone statute. What matters is the substantive effect of an enactment—the creation of new rights of action and corresponding liabilities—not the format in which it appears in the Code. The Court of Appeals reasoned that 1658 must be given a narrow scope lest it disrupt litigants' settled expectations. The court observed that Congress refused to make 1658 retroactive because, "`with respect to many statutes that have no explicit limitations provision, the relevant limitations period has long since been resolved by judicial decision,'" and "`retroactively imposing a four year statute of limitations on legislation that the courts have previously ruled is subject to a six month limitations period in one [State], and a ten year period in another, would threaten to disrupt the settled expectations of many parties.'" -726 Concerns about settled expectations provide a valid reason to reject an interpretation of 1658 under which *382 any new amendment to federal law would suffice to trigger the 4-year statute of limitations, regardless of whether the plaintiff's claim would have been available—and subject to a state statute of limitations—prior to December 1, 1990. Such concerns do not, however, carry any weight against the reading of 1658 adopted by the District Court and urged by petitioners, under which the catchall limitations period applies only to causes of action that were not available until after 1658 was If a cause of action did not exist prior to 1990, potential litigants could not have formed settled expectations as to the relevant statute of limitations that would then be disrupted by application of 1658. We conclude that a cause of action "aris[es] under an Act of Congress enacted" after December 1, 1990—and therefore is governed by 1658's 4-year statute of limitations—if the plaintiff's claim against the defendant was made possible by a post-1990 enactment. That construction best serves Congress' interest in alleviating the uncertainty inherent in the practice of borrowing state statutes of limitations while at the same time protecting settled interests. It spares federal judges and litigants the need to identify the appropriate state statute of limitations to apply to new claims but leaves in place the "borrowed" limitations periods for pre-existing causes of action, with respect to which the difficult work already has been done. Interpreting 1658 to apply whenever a post-1990 enactment creates a new right to maintain an action also is consistent with the common usage of the word "arise" to mean "come into being; originate"[15] or "spring up."[16] Finally, that construction is consistent with our interpretations of *383 the term "arising under" as it is used in statutes governing the scope of federal subject-matter jurisdiction. By contrast, nothing in our case law supports an interpretation as narrow as that endorsed by the Court of Appeals, under which "arising under" means something akin to "based solely upon." We should avoid reading 1658 in such a way as to give the familiar statutory language a meaning foreign to every other context in which it is used. IV In this case, petitioners' hostile work environment, wrongful termination, and failure to transfer claims "ar[ose] under" the 1991 Act in the sense that petitioners' causes of action were made possible by that Act. Patterson held that "racial harassment relating to the conditions of employment is not actionable under " The 1991 Act overturned Patterson by defining the key "make and enforce contracts" language in 1981 to include the "termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S. C. 1981(b). In we recognized that the 1991 amendment "enlarged the category of conduct that is subject to 1981 liability," and we therefore held that the amendment does not apply "to a case that arose before it was enacted," Our reasoning in Rivers supports the conclusion that the 1991 Act fully qualifies as "an Act of Congress enacted after [December 1, 1990]" within the meaning of 1658. Because petitioners' hostile work environment, wrongful termination, and failure to transfer claims did not allege a violation of the pre-1990 version of 1981 but did allege violations of the amended statute, those claims "ar[ose] under" the amendment to 1981 contained in the 1991 Act. *384 While that conclusion seems eminently clear in this case,[17] respondent has posited various hypothetical cases in which it might be difficult to determine whether a particular claim arose under the amended or the unamended version of a statute. Similarly, the Court of Appeals reasoned that applying 1658 to post-1990 amendments could be problematic in some cases because "`the line between an amendment that modifies an existing right and one that creates a new right is often difficult to draw.'" (quoting 219 F. 3d, at ). We are not persuaded that any "guess work," is required to determine whether the plaintiff has alleged a violation of the relevant statute as it stood prior to December 1, 1990, or whether her claims necessarily depend on a subsequent amendment. Courts routinely make such determinations when dealing with amendments (such as the 1991 amendment to 1981) that do not apply retroactively.[18] In any event, such hypothetical problems pale in comparison with the difficulties that federal courts faced for decades in trying *385 to answer all the questions raised by borrowing appropriate limitations rules from state statutes. 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 Kagan

concurring

Florida v. Jardines

https://www.courtlistener.com/opinion/856347/florida-v-jardines/

https://www.courtlistener.com/api/rest/v3/clusters/856347/

2012-030

For me, a simple analogy clinches this case—and does so on privacy as well as property grounds. A stranger comes to the front door of your home carrying super-high- powered binoculars. See ante, at 7, n. 3. He doesn’t knock or say hello. Instead, he stands on the porch and uses the binoculars to peer through your windows, into your home’s furthest corners. It doesn’t take long (the binoculars are really very fine): In just a couple of minutes, his uncom- mon behavior allows him to learn details of your life you disclose to no one. Has your “visitor” trespassed on your property, exceeding the license you have granted to mem- bers of the public to, say, drop off the mail or distribute campaign flyers? Yes, he has. And has he also invaded your “reasonable expectation of privacy,” by nosing into intimacies you sensibly thought protected from disclosure? Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). Yes, of course, he has done that too. That case is this case in every way that matters. Here, police officers came to Joelis Jardines’ door with a super- sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted. The equip- ment they used was animal, not mineral. But contra the dissent, see post, at 2 (opinion of ALITO, J.) (noting the ubiquity of dogs in American households), that is of no 2 FLORIDA v. JARDINES KAGAN, J., concurring significance in determining whether a search occurred. Detective Bartelt’s dog was not your neighbor’s pet, come to your porch on a leisurely stroll. As this Court discussed earlier this Term, drug-detection dogs are highly trained tools of law enforcement, geared to respond in distinctive ways to specific scents so as to convey clear and reliable information to their human partners. See Florida v. Harris, 568 U. S. ___ (2013) (slip op. at 2–3, 7–8). They are to the poodle down the street as high-powered binocu- lars are to a piece of plain glass. Like the binoculars, a drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell). And as in the hypothetical above, that device was aimed here at a home—the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects. Was this activity a trespass? Yes, as the Court holds to- day. Was it also an invasion of privacy? Yes, that as well. The Court today treats this case under a property ru- bric; I write separately to note that I could just as happily have decided it by looking to Jardines’ privacy interests. A decision along those lines would have looked . . . well, much like this one. It would have talked about “ ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ” Ante, at 4 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). It would have insisted on maintaining the “prac- tical value” of that right by preventing police officers from standing in an adjacent space and “trawl[ing] for evidence with impunity.” Ante, at 4. It would have explained that “ ‘privacy expectations are most heightened’ ” in the home and the surrounding area. Ante, at 4–5 (quoting Califor- nia v. Ciraolo, 476 U.S. 207, 213 (1986)). And it would have determined that police officers invade those shared expectations when they use trained canine assistants to reveal within the confines of a home what they could not otherwise have found there. See ante, at 6–7, and nn. 2–3. Cite as: 569 U. S. ____ (2013) 3 KAGAN, J., concurring It is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align. The law of property “naturally enough influence[s]” our “shared social expectations” of what places should be free from governmental incursions. Georgia v. Randolph, 547 U.S. 103, 111 (2006); see Rakas v. Illinois, 439 U.S. 128, 143, n. 12 (1978). And so the sentiment “my home is my own,” while originating in property law, now also denotes a common understanding—extending even beyond that law’s formal protections—about an especially private sphere. Jardines’ home was his property; it was also his most intimate and familiar space. The analysis proceed- ing from each of those facts, as today’s decision reveals, runs mostly along the same path. I can think of only one divergence: If we had decided this case on privacy grounds, we would have realized that Kyllo v. United States, 533 U.S. 27 (2001), already re- solved it.1 The Kyllo Court held that police officers con- ducted a search when they used a thermal-imaging device to detect heat emanating from a private home, even though they committed no trespass. Highlighting our intention to draw both a “firm” and a “bright” line at “the entrance to the house,” id., at 40, we announced the fol- lowing rule: “Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable —————— 1 The dissent claims, alternatively, that Illinois v. Caballes, 543 U.S. 405, 409–410 (2005), controls this case (or nearly does). See post, at 9, 11. But Caballes concerned a drug-detection dog’s sniff of an automo- bile during a traffic stop. See also Florida v. Harris, 568 U. S. ___ (2013). And we have held, over and over again, that people’s expecta- tions of privacy are much lower in their cars than in their homes. See, e.g., Arizona v. Gant, 556 U.S. 332, 345 (2009); Wyoming v. Houghton, 526 U.S. 295, 303 (1999); New York v. Class, 475 U.S. 106, 115 (1986); Cardwell v. Lewis, 417 U.S. 583, 590–591 (1974) (plurality opinion). 4 FLORIDA v. JARDINES KAGAN, J., concurring without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” Ibid. That “firm” and “bright” rule governs this case: The police officers here conducted a search because they used a “device . . . not in general public use” (a trained drug- detection dog) to “explore details of the home” (the pres- ence of certain substances) that they would not otherwise have discovered without entering the premises. And again, the dissent’s argument that the device is just a dog cannot change the equation. As Kyllo made clear, the “sense-enhancing” tool at issue may be “crude” or “sophisticated,” may be old or new (drug-detection dogs actually go back not “12,000 years” or “centuries,” post, at 2, 8, 12, but only a few decades), may be either smaller or bigger than a breadbox; still, “at least where (as here)” the device is not “in general public use,” training it on a home violates our “minimal expectation of privacy”—an expecta- tion “that exists, and that is acknowledged to be reasona- ble.” 533 U. S., at 34, 36.2 That does not mean the device —————— 2 The dissent’s other principal reason for concluding that no violation of privacy occurred in this case—that police officers themselves might detect an aroma wafting from a house—works no better. If officers can smell drugs coming from a house, they can use that information; a human sniff is not a search, we can all agree. But it does not follow that a person loses his expectation of privacy in the many scents within his home that (his own nose capably tells him) are not usually detecti- ble by humans standing outside. And indeed, Kyllo already decided as much. In response to an identical argument from the dissent in that case, see 533 U. S., at 43 (Stevens, J., dissenting) (noting that humans can sometimes detect “heat emanating from a building”), the Kyllo Court stated: “The dissent’s comparison of the thermal imaging to various circumstances in which outside observers might be able to perceive, without technology, the heat of the home . . . is quite irrele- vant. The fact that equivalent information could sometimes be ob- tained by other means does not make lawful the use of means that violate the Fourth Amendment. . . . In any event, [at the time in question,] no outside observer could have discerned the relative heat of Cite as: 569 U. S. ____ (2013) 5 KAGAN, J., concurring is off-limits, as the dissent implies, see post, at 11–12; it just means police officers cannot use it to examine a home without a warrant or exigent circumstance. See Brigham City v. Stuart, 547 U.S. 398, 403–404 (2006) (describing exigencies allowing the warrantless search of a home). With these further thoughts, suggesting that a focus on Jardines’ privacy interests would make an “easy cas[e] easy” twice over, ante, at 9, I join the Court’s opinion in full. —————— Kyllo’s home without thermal imaging.” Id., at 35, n. 2. Cite as: 569 U. S. ____ (2013) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 11–564 _________________ FLORIDA, PETITIONER v.

For me, a simple analogy clinches this case—and does so on privacy as well as property grounds. A stranger comes to the front door of your home carrying super-high- powered binoculars. See ante, at 7, n. 3. He doesn’t knock or say hello. Instead, he stands on the porch and uses the binoculars to peer through your windows, into your home’s furthest corners. It doesn’t take long (the binoculars are really very fine): In just a couple of minutes, his uncom- mon behavior allows him to learn details of your life you disclose to no one. Has your “visitor” trespassed on your property, exceeding the license you have granted to mem- bers of the public to, say, drop off the mail or distribute campaign flyers? Yes, he has. And has he also invaded your “reasonable expectation of privacy,” by nosing into intimacies you sensibly thought protected from disclosure? (Harlan, J., concurring). Yes, of course, he has done that too. That case is this case in every way that matters. Here, police officers came to Joelis Jardines’ door with a super- sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted. The equip- ment they used was animal, not mineral. But contra the dissent, see post, at 2 (opinion of ALITO, J.) (noting the ubiquity of dogs in American households), that is of no 2 FLORIDA v. JARDINES KAGAN, J., concurring significance in determining whether a search occurred. Detective Bartelt’s dog was not your neighbor’s pet, come to your porch on a leisurely stroll. As this Court discussed earlier this Term, drug-detection dogs are highly trained tools of law enforcement, geared to respond in distinctive ways to specific scents so as to convey clear and reliable information to their human partners. See Florida v. Harris, 568 U. S. (2013) (slip op. at 2–3, 7–8). They are to the poodle down the street as high-powered binocu- lars are to a piece of plain glass. Like the binoculars, a drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell). And as in the hypothetical above, that device was aimed here at a home—the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects. Was this activity a trespass? Yes, as the Court holds to- day. Was it also an invasion of privacy? Yes, that as well. The Court today treats this case under a property ru- bric; I write separately to note that I could just as happily have decided it by looking to Jardines’ privacy interests. A decision along those lines would have looked well, much like this one. It would have talked about “ ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ” Ante, at 4 (quoting (1961)). It would have insisted on maintaining the “prac- tical value” of that right by preventing police officers from standing in an adjacent space and “trawl[ing] for evidence with impunity.” Ante, at 4. It would have explained that “ ‘privacy expectations are most heightened’ ” in the home and the surrounding area. Ante, at 4–5 ). And it would have determined that police officers invade those shared expectations when they use trained canine assistants to reveal within the confines of a home what they could not otherwise have found there. See ante, at 6–7, and nn. 2–3. Cite as: 569 U. S. (2013) 3 KAGAN, J., concurring It is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align. The law of property “naturally enough influence[s]” our “shared social expectations” of what places should be free from governmental incursions. ; see Rakas v. Illinois, 439 U.S. 128, 143, n. 12 (1978). And so the sentiment “my home is my own,” while originating in property law, now also denotes a common understanding—extending even beyond that law’s formal protections—about an especially private sphere. Jardines’ home was his property; it was also his most intimate and familiar space. The analysis proceed- ing from each of those facts, as today’s decision reveals, runs mostly along the same path. I can think of only one divergence: If we had decided this case on privacy grounds, we would have realized that already re- solved it.1 The Kyllo Court held that police officers con- ducted a search when they used a thermal-imaging device to detect heat emanating from a private home, even though they committed no trespass. Highlighting our intention to draw both a “firm” and a “bright” line at “the entrance to the house,” we announced the fol- lowing rule: “Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable —————— 1 The dissent claims, alternatively, that Illinois v. Caballes, 543 U.S. 405, 409–410 (2005), controls this case (or nearly does). See post, at 9, 11. But Caballes concerned a drug-detection dog’s sniff of an automo- bile during a traffic stop. See also Florida v. Harris, 568 U. S. (2013). And we have held, over and over again, that people’s expecta- tions of privacy are much lower in their cars than in their homes. See, e.g., ; ; New ; 4 FLORIDA v. JARDINES KAGAN, J., concurring without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” That “firm” and “bright” rule governs this case: The police officers here conducted a search because they used a “device not in general public use” (a trained drug- detection dog) to “explore details of the home” (the pres- ence of certain substances) that they would not otherwise have discovered without entering the premises. And again, the dissent’s argument that the device is just a dog cannot change the equation. As Kyllo made clear, the “sense-enhancing” tool at issue may be “crude” or “sophisticated,” may be old or new (drug-detection dogs actually go back not “12,000 years” or “centuries,” post, at 2, 8, 12, but only a few decades), may be either smaller or bigger than a breadbox; still, “at least where (as here)” the device is not “in general public use,” training it on a home violates our “minimal expectation of privacy”—an expecta- tion “that exists, and that is acknowledged to be reasona- ble.” 36.2 That does not mean the device —————— 2 The dissent’s other principal reason for concluding that no violation of privacy occurred in this case—that police officers themselves might detect an aroma wafting from a house—works no better. If officers can smell drugs coming from a house, they can use that information; a human sniff is not a search, we can all agree. But it does not follow that a person loses his expectation of privacy in the many scents within his home that (his own nose capably tells him) are not usually detecti- ble by humans standing outside. And indeed, Kyllo already decided as much. In response to an identical argument from the dissent in that case, see (noting that humans can sometimes detect “heat emanating from a building”), the Kyllo Court stated: “The dissent’s comparison of the thermal imaging to various circumstances in which outside observers might be able to perceive, without technology, the heat of the home is quite irrele- vant. The fact that equivalent information could sometimes be ob- tained by other means does not make lawful the use of means that violate the Fourth Amendment. In any event, [at the time in question,] no outside observer could have discerned the relative heat of Cite as: 569 U. S. (2013) 5 KAGAN, J., concurring is off-limits, as the dissent implies, see post, at 11–12; it just means police officers cannot use it to examine a home without a warrant or exigent circumstance. See Brigham (describing exigencies allowing the warrantless search of a home). With these further thoughts, suggesting that a focus on Jardines’ privacy interests would make an “easy cas[e] easy” twice over, ante, at 9, I join the Court’s opinion in full. —————— Kyllo’s home without thermal imaging.” Cite as: 569 U. S. (2013) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 11–564 FLORIDA, PETITIONER v.

Justice Thomas

majority

Mont v. United States

https://www.courtlistener.com/opinion/4625690/mont-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4625690/

2018-049

This case requires the Court to decide whether a con- victed criminal’s period of supervised release is tolled—in effect, paused—during his pretrial detention for a new criminal offense. Specifically, the question is whether that pretrial detention qualifies as “imprison[ment] in connec- tion with a conviction for a Federal, State, or local crime.” 18 U.S. C. §3624(e). Given the text and statutory context of §3624(e), we conclude that if the court’s later imposed sentence credits the period of pretrial detention as time served for the new offense, then the pretrial detention also tolls the supervised-release period. I A In 2004, petitioner Jason Mont began distributing co- caine and crack cocaine in northern Ohio. After substan- tial drug sales to a confidential informant and a search of his home that uncovered handguns and $2,700 in cash, a federal grand jury indicted Mont for multiple drug and firearm offenses. He later pleaded guilty to conspiring to possess with intent to distribute cocaine, and to possessing a firearm and ammunition after having been convicted of a 2 MONT v. UNITED STATES Opinion of the Court felony. See 18 U.S. C. §922(g)(1) (2000 ed.); 21 U.S. C. §§841(a)(1), 846 (2000 ed.). The District Court sentenced Mont to 120 months’ im- prisonment, later reduced to 84 months, to be followed by 5 years of supervised release. Mont was released from federal prison on March 6, 2012, and his supervised re- lease was “slated to end on March 6, 2017.” 723 Fed. Appx. 325, 326 (CA6 2018); see 18 U.S. C. §3624(e) (a “term of supervised release commences on the day the person is released from imprisonment”). Among other standard conditions, Mont’s supervised release required that he “not commit another federal, state, or local crime,” “not illegally possess a controlled substance,” and “refrain from any unlawful use of a controlled substance.” Judg- ment in No. 4:05–cr–00229 (ND Ohio), Doc. 37, p. 111. Mont did not succeed on supervised release. In March 2015, an Ohio grand jury charged him with two counts of marijuana trafficking in a sealed indictment. Mont was arrested and released on bond while awaiting trial for those charges. Things only got worse from there. In October 2015, Mont tested positive for cocaine and oxyco- done during a routine drug test conducted as part of his supervised release. But Mont’s probation officer did not immediately report these violations to the District Court; instead, the officer referred him for additional substance- abuse counseling. Mont proceeded to test positive in five more random drug tests over the next few months. He also used an “ ‘unknown’ liquid to try to pass two subse- quent drug tests.” 723 Fed. Appx., at 326. In Jan- uary 2016, Mont’s probation officer finally reported the supervised-release violations, including Mont’s use of drugs and attempts to adulterate his urine samples. The violation report also informed the District Court about the pending state charges and the anticipated trial date of March 2016 in state court. The District Court declined to issue an arrest warrant at that time, but it asked to “ ‘be notified of Cite as: 587 U. S. ____ (2019) 3 Opinion of the Court the resolution of the state charges.’ ” Ibid.; see 18 U.S. C. §3606 (explaining that the District Court “may issue a warrant for the arrest” of the releasee for “violation of a condition of release”). On June 1, 2016, approximately four years and three months into his 5-year term of supervised release, Mont was arrested again on new state charges of trafficking in cocaine, and his bond was revoked on the earlier marijuana- trafficking charges. He was incarcerated in the Ma- honing County Jail and has remained in state custody since that date. Mont’s probation officer filed a report with the District Court stating that he had violated the terms of his release based on these new state offenses. The officer later advised the court that because Mont’s incarceration rendered him unavailable for supervision, the Probation Office was “toll[ing]” his federal supervision. App. 21. The officer promised to keep the court apprised of the pending state charges and stated that, if Mont were convicted, the officer would ask the court to take action at that time. In October 2016, Mont entered into plea agreements with state prosecutors in exchange for a predetermined 6-year sentence. The state trial court accepted Mont’s guilty pleas on October 6, 2016, and set the cases for sentencing in December 2016. Three weeks later, Mont filed a written admission in the District Court “acknowledg[ing]” that he had violated his conditions of supervised release “by virtue of his conviction following guilty pleas to certain felony offenses” in state court. Record in No. 4:05–cr–00229 (ND Ohio), Doc. 92, p. 419. Even though he had yet to be sentenced for the state offenses, Mont sought a hearing on the supervised-release violations at the court’s “earliest convenience.” Ibid. The court initially scheduled a hearing for November 9, 2016, but then, over Mont’s objection, rescheduled the hearing several times to allow for “the conclusion of the State 4 MONT v. UNITED STATES Opinion of the Court sentencing.” App. 8; 723 Fed. Appx., at 327. On March 21, 2017, Mont was sentenced in state court to six years’ imprisonment. The judge “credited the roughly ten months that Mont had already been incarcerated pending a disposition as time served.” Id., at 327. The District Court issued a warrant on March 30, 2017, and ultimately set a supervised-release hearing for June 28, 2017. B Two days before that hearing, Mont challenged the jurisdiction of the District Court based on the fact that his supervised release had initially been set to expire on March 6, 2017. The court concluded that it had authority to supervise Mont, revoked his supervised release, and ordered him to serve an additional 42 months’ imprison- ment to run consecutive to his state sentence. The court held that it retained jurisdiction to revoke the release under 18 U.S. C. §3583(i), which preserves, for a “reason- ably necessary” period of time, the court’s power to adjudi- cate violations and revoke a term of supervised release after the term has expired “if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.” The court further held that it retained authority to revoke Mont’s term of supervised release because it gave “notice by way of a summons” on November 1, 2016, when it originally scheduled the hear- ing. App. 22. The court also concluded that the delay between the guilty pleas in October 2016 and the hearing date in June 2017 was “reasonably necessary.” Id., at 24. The Sixth Circuit affirmed on alternative grounds. The court could find no evidence in the record that a summons had issued within the meaning of §3583(i). 723 Fed. Appx., at 329, n. 5. But because Circuit precedent pro- vided an alternative basis for affirmance, the court did not further consider the Government’s argument that the Cite as: 587 U. S. ____ (2019) 5 Opinion of the Court District Court retained jurisdiction under §3583(i). In- stead, the court held that Mont’s supervised-release period was tolled while he was held in pretrial detention in state custody under §3624(e), which provides: “(e) Supervision After Release.— . . . The term of su- pervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release. A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the impris- onment is for a period of less than 30 consecutive days.” (Emphasis added.) Relying on Circuit precedent, the Sixth Circuit ex- plained that when a defendant is convicted of the offense for which he was held in pretrial detention for longer than 30 days and “ ‘his pretrial detention is credited as time served toward his sentence, then the pretrial detention is “in connection with” a conviction and tolls the period of supervised release under §3624.’ ” Id., at 328 (quoting United States v. Goins, 516 F.3d 416, 417 (2008)). Be- cause Mont’s term of supervised release had been tolled between June 2016 and March 2017, there was ample time left on his supervised-release term when the warrant issued on March 30, 2017. The Courts of Appeals disagree on whether §3624(e) tolls supervised release for periods of pretrial detention lasting longer than 30 days when that incarceration is later credited as time served on a conviction. Compare United States v. Ide, 624 F.3d 666, 667 (CA4 2010) (supervised-release period tolls); United States v. Molina- Gazca, 571 F.3d 470, 474 (CA5 2009) (same); United 6 MONT v. UNITED STATES Opinion of the Court States v. Johnson, 581 F.3d 1310, 1312–1313 (CA11 2009) (same); Goins, supra, at 417 (same), with United States v. Marsh, 829 F.3d 705, 709 (CADC 2016) (supervised- release period does not toll); United States v. Morales- Alejo, 193 F.3d 1102, 1106 (CA9 1999) (same). We granted certiorari to resolve this split of authority. 586 U. S. ___ (2018). II We hold that pretrial detention later credited as time served for a new conviction is “imprison[ment] in connec- tion with a conviction” and thus tolls the supervised- release term under §3624(e). This is so even if the court must make the tolling calculation after learning whether the time will be credited. In our view, this reading is compelled by the text and statutory context of §3624(e). A Section 3624(e) provides for tolling when a person “is imprisoned in connection with a conviction.” This phrase, sensibly read, includes pretrial detention credited toward another sentence for a new conviction. First, the definition of “is imprisoned” may well include pretrial detention. Both now and at the time Congress created supervised release, see §212(a)(2), 98 Stat. 1999– 2000, the term “imprison” has meant “[t]o put in a prison,” “to incarcerate,” “[t]o confine a person, or restrain his liberty, in any way.” Black’s Law Dictionary 681 (5th ed. 1979); 5 Oxford English Dictionary 113 (1933); accord, Black’s Law Dictionary 875 (10th ed. 2014). These defini- tions encompass pretrial detention, and, despite the dis- sent’s reliance on a narrower definition, post, at 5–7 (opin- ion of SOTOMAYOR, J.), even Mont has not pressed any serious argument to the contrary. As the Sixth Circuit previously recognized, if imprisonment referred only to “confinement that is the result of a penalty or sentence, Cite as: 587 U. S. ____ (2019) 7 Opinion of the Court then the phrase ‘in connection with a conviction’ [would] becom[e] entirely superfluous.” Goins, supra, at 421. Second, the phrase “in connection with a conviction” encompasses a period of pretrial detention for which a defendant receives credit against the sentence ultimately imposed. The Court has often recognized that “in connec- tion with” can bear a “broad interpretation.” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85 (2006) (interpreting “in connection with the purchase or sale” broadly in the context of §10(b) of the Securities Exchange Act of 1934, 15 U.S. C. §78j(b)); see, e.g., United States v. American Union Transport, Inc., 327 U.S. 437, 443 (1946) (describing the phrase “in connection with” in the Shipping Act, 1916, 39 Stat. 728, as “broad and gen- eral”). The Court has also recognized that “ ‘ in connection with’ is essentially indeterminate because connections, like relations, stop nowhere.” Maracich v. Spears, 570 U.S. 48, 59 (2013) (quotation altered). Here, however, we need not consider the outer bounds of the term “in connec- tion with,” as pretrial incarceration is directly tied to the conviction when it is credited toward the new sentence. The judgment of the state court stated as much, crediting the pretrial detention that Mont served while awaiting trial and sentencing for his crimes against his ultimate sentence for those same crimes. This reading of “imprison[ment] in connection with a conviction” is buttressed by the fact that Congress, like most States, instructs courts calculating a term of impris- onment to credit pretrial detention as time served on a subsequent conviction. See 18 U.S. C. §3585(b)(1); Tr. of Oral Arg. 54 (statement of the Assistant Solicitor General representing that the same rule applies in 45 States and the District of Columbia). Thus, it makes sense that the phrase “imprison[ment] in connection with a conviction” would include pretrial detention later credited as time served, especially since both provisions were passed as 8 MONT v. UNITED STATES Opinion of the Court part of the Sentencing Reform Act of 1984. See §212(a)(2), 98 Stat. 2008–2009. If Congress intended a narrower interpretation, it could have easily used narrower lan- guage, such as “after a conviction” or “following a convic- tion.” See e.g., Bail Reform Act of 1984, §209(d)(4), 98 Stat. 1987 (adding Federal Rule of Criminal Procedure 46(h), allowing courts to direct forfeiture of property “after conviction of the offense charged” (emphasis added)). We cannot override Congress’ choice to employ the more capa- cious phrase “in connection with.” Third, the text undeniably requires courts to retrospec- tively calculate whether a period of pretrial detention should toll a period of supervised release. Whereas §3624(e) instructs courts precisely when the supervised- release clock begins—“on the day the person is released”— the statute does not require courts to make a tolling de- termination as soon as a defendant is arrested on new charges or to continually reassess the tolling calculation throughout the period of his pretrial detention. Congress contemplated the opposite by including a minimum- incarceration threshold: tolling occurs “unless the impris- onment is for a period of less than 30 consecutive days.” §3624(e). This calculation must be made after either release from custody or entry of judgment; there is no way for a court to know on day 5 of a defendant’s pretrial detention whether the period of custody will extend be- yond 30 days. Thus, at least some uncertainty as to whether supervised release is tolled is built into §3624(e) by legislative design. This fact confirms that courts should make the tolling calculation upon the defendant’s release from custody or upon entry of judgment. B The statutory context also supports our reading. Super- vised release is “a form of postconfinement monitoring” that permits a defendant a kind of conditional liberty by Cite as: 587 U. S. ____ (2019) 9 Opinion of the Court allowing him to serve part of his sentence outside of prison. Johnson v. United States, 529 U.S. 694, 697 (2000). Recognizing that Congress provided for supervised release to facilitate a “transition to community life,” we have declined to offset a term of supervised release by the amount of excess time a defendant spent in prison after two of his convictions were declared invalid. United States v. Johnson, 529 U.S. 53, 59–60 (2000). As we explained: “The objectives of supervised release would be unfulfilled if excess prison time were to offset and reduce terms of supervised release” because “[s]upervised release has no statutory function until confinement ends.” Id., at 59. This understanding of supervised release informs our reading of the tolling provision. Consider §3624(e) itself. The sentence preceding the one at issue here specifies that supervised release “runs concurrently” with “probation or supervised release or parole for another offense.” §3624(e) (emphasis added). But the next sentence (the one at issue here) excludes periods of “imprison[ment]” served “in connection with a conviction.” The juxtaposition of these two sentences reinforces the fact that prison time is “not interchange- able” with supervised release. Id., at 59. Permitting a period of probation or parole to count toward supervised release but excluding a period of incarceration furthers the statutory design of “successful[ly] transition[ing]” a de- fendant from “prison to liberty.” Johnson, supra, at 708– 709. Allowing pretrial detention credited toward another sentence to toll the period of supervised release is con- sistent with that design. Cf. A. Scalia & B. Garner, Reading Law 167 (2012) (explaining that “the whole-text canon” requires consideration of “the entire text, in view of its structure” and “logical relation of its many parts”). Second, it would be an exceedingly odd construction of the statute to give a defendant the windfall of satisfying a new sentence of imprisonment and an old sentence of 10 MONT v. UNITED STATES Opinion of the Court supervised release with the same period of pretrial deten- tion. Supervised release is a form of punishment that Congress prescribes along with a term of imprisonment as part of the same sentence. See generally §3583. And Congress denies defendants credit for time served if the detention time has already “been credited against another sentence.” §3585(b). Yet Mont’s reading of §3624(e) would deprive the Government of its lawfully imposed sentence of supervised release while the defendant is serving a separate sentence of incarceration—one often imposed by a different sovereign. Under our view, in contrast, time in pretrial detention constitutes supervised release only if the charges against the defendant are dismissed or the defendant is acquitted. This ensures that the defendant is not faulted for conduct he might not have committed, while otherwise giving full effect to the lawful judgment previously imposed on the defendant.1 C In response to these points, Mont follows the D. C. Circuit in arguing that the present tense of the statute (“ ‘is imprisoned’ ”) forbids any backward looking tolling analysis. See Marsh, 829 F.3d, at 709. Mont contends that, when a defendant is held in pretrial detention, a court cannot say at that moment that he “is imprisoned in connection with a conviction.” He relies on the Dictionary Act, which provides that “[i]n determining the meaning of any Act of Congress, unless the context indicates other- wise[,] words used in the present tense include the future —————— 1 Our reading leaves intact a district court’s ability to preserve its authority by issuing an arrest warrant or summons under §3583(i) based on the conduct at issue in the new charges, irrespective of whether the defendant is later convicted or acquitted of those offenses. But preserving jurisdiction through §3583(i) is not a prerequisite to a court maintaining authority under §3624(e), nor does it impact the tolling calculation under §3624(e). Cite as: 587 U. S. ____ (2019) 11 Opinion of the Court as well as the present.” 1 U.S. C. §1. Mont’s argument confuses the rule (“any period in which the person is imprisoned in connection with a conviction”) with a court’s analysis of whether that rule was satisfied. Of course, the determination whether supervised release has been tolled cannot be made at the exact moment when the defendant is held in pretrial detention. Rather, the court must await the outcome of those separate proceed- ings before it will know whether “imprison[ment]” is tied to a conviction. But the statute does not require the court to make a contemporaneous assessment. Quite the oppo- site: As discussed, the statute undeniably contemplates that there will be uncertainty about the status of super- vised release when a defendant has been held for a short period of time and it is unclear whether the imprisonment will exceed 30 days. There is no reason the statute would preclude postponing calculation just because the custody period extends beyond 30 days. Once the court makes the calculation, it will determine whether the relevant period ultimately qualified as a period “in which the person is imprisoned in connection with a conviction” for 30 or more days. In short, the present-tense phrasing of the statute does not address whether a judge must be able to make a supervised-release determination at any given time. Moreover, any uncertainty about whether supervised release is tolled matters little from either the court’s or the defendant’s perspective. As for the court, the defendant need not be supervised when he is held in custody, so it does not strike us as “odd” to make a delayed determina- tion concerning tolling. Marsh, supra, at 710. The court need not monitor the defendant’s progress in transitioning back into the community because the defendant is not in the community. And if the court is concerned about losing authority over the defendant because of an impending conclusion to supervised release, it can simply issue a summons or warrant under §3583(i) for alleged violations. 12 MONT v. UNITED STATES Opinion of the Court As for the defendant, there is nothing unfair about not knowing during pretrial detention whether he is also subject to court supervision. The answer to that question cannot meaningfully influence his behavior. A defendant in custody will be unable to comply with many ordinary conditions of supervised release intended to reacclimate him to society—for example, making restitution payments, attending substance-abuse counseling, meeting curfews, or participating in job training. The rules he can “comply” with are generally mandated by virtue of being in prison— for example, no new offenses or use of drugs. See §§3563(a)–(b) (listing mandatory and discretionary condi- tions). In this case, Mont’s supervised-release conditions required that he “work regularly at a lawful occupation” and “support his . . . dependants and meet other family responsibilities.” Judgment in No. 4:05–cr–00229 (ND Ohio), Doc. 37, at 111. Mont could not fulfill these condi- tions while sitting in an Ohio jail, and his probation officer correctly deemed him “unavailable for supervision.”2 App. 21. III Applying §3624(e) to Mont, the pretrial-detention period tolled his supervised release beginning in June 2016. Mont therefore had about nine months remaining on his term of supervised release when the District Court re- voked his supervised release and sentenced him to an —————— 2 Although a defendant in pretrial detention is unable to be super- vised, it does not necessarily follow that the defendant will be punished by his inability to comply with the terms of his supervised release if the detention period is not later credited as time served for a conviction. In that circumstance, the district court may always modify the terms of his supervision. See 18 U.S. C. §3583(e)(2). And, as the Government explained at oral argument, modification of supervised release may not be necessary to the extent that “the defendant can’t be deemed to have been required to” comply with the terms of supervised release while in custody. Tr. of Oral Arg. 45. Cite as: 587 U. S. ____ (2019) 13 Opinion of the Court additional 42 months’ imprisonment. And because §3624(e) independently tolled the supervised-release period, it is immaterial whether the District Court could have issued a summons or warrant under §3583(i) to preserve its authority. * * * In light of the statutory text and context of §3624(e), pretrial detention qualifies as “imprison[ment] in connec- tion with a conviction” if a later imposed sentence credits that detention as time served for the new offense. Such pretrial detention tolls the supervised-release period, even though the District Court may need to make the tolling determination after the conviction. Accordingly, we affirm the judgment of the Sixth Circuit. It is so ordered. Cite as: 587 U. S. ____ (2019) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 17–8995 _________________ JASON J. MONT, PETITIONER v.

This case requires the Court to decide whether a con- victed criminal’s period of supervised release is tolled—in effect, paused—during his pretrial detention for a new criminal offense. Specifically, the question is whether that pretrial detention qualifies as “imprison[ment] in connec- tion with a conviction for a Federal, State, or local crime.” 18 U.S. C. Given the text and statutory context of we conclude that if the court’s later imposed sentence credits the period of pretrial detention as time served for the new offense, then the pretrial detention also tolls the supervised-release period. I A In 2004, petitioner Jason Mont began distributing co- caine and crack cocaine in northern Ohio. After substan- tial drug sales to a confidential informant and a search of his home that uncovered handguns and $2,700 in cash, a federal grand jury indicted Mont for multiple drug and firearm offenses. He later pleaded guilty to conspiring to possess with intent to distribute cocaine, and to possessing a firearm and ammunition after having been convicted of a 2 MONT v. UNITED STATES Opinion of the Court felony. See 18 U.S. C. (2000 ed.); 21 U.S. C. 846 (2000 ed.). The District Court sentenced Mont to 120 months’ im- prisonment, later reduced to 84 months, to be followed by 5 years of supervised release. Mont was released from federal prison on March 6, 2012, and his supervised re- lease was “slated to end on March 6, 2017.” 723 Fed. Appx. 325, 326 (CA6 2018); see 18 U.S. C. (a “term of supervised release commences on the day the person is released from imprisonment”). Among other standard conditions, Mont’s supervised release required that he “not commit another federal, state, or local crime,” “not illegally possess a controlled substance,” and “refrain from any unlawful use of a controlled substance.” Judg- ment in No. 4:05–cr–00229 (ND Ohio), Doc. 37, p. 111. Mont did not succeed on supervised release. In March 2015, an Ohio grand jury charged him with two counts of marijuana trafficking in a sealed indictment. Mont was arrested and released on bond while awaiting trial for those charges. Things only got worse from there. In October 2015, Mont tested positive for cocaine and oxyco- done during a routine drug test conducted as part of his supervised release. But Mont’s probation officer did not immediately report these violations to the District Court; instead, the officer referred him for additional substance- abuse counseling. Mont proceeded to test positive in five more random drug tests over the next few months. He also used an “ ‘unknown’ liquid to try to pass two subse- quent drug tests.” In Jan- uary Mont’s probation officer finally reported the supervised-release violations, including Mont’s use of drugs and attempts to adulterate his urine samples. The violation report also informed the District Court about the pending state charges and the anticipated trial date of March in state court. The District Court declined to issue an arrest warrant at that time, but it asked to “ ‘be notified of Cite as: 587 U. S. (2019) 3 Opinion of the Court the resolution of the state charges.’ ” ; see 18 U.S. C. (explaining that the District Court “may issue a warrant for the arrest” of the releasee for “violation of a condition of release”). On June 1, approximately four years and three months into his 5-year term of supervised release, Mont was arrested again on new state charges of trafficking in cocaine, and his bond was revoked on the earlier marijuana- trafficking charges. He was incarcerated in the Ma- honing County Jail and has remained in state custody since that date. Mont’s probation officer filed a report with the District Court stating that he had violated the terms of his release based on these new state offenses. The officer later advised the court that because Mont’s incarceration rendered him unavailable for supervision, the Probation Office was “toll[ing]” his federal supervision. App. 21. The officer promised to keep the court apprised of the pending state charges and stated that, if Mont were convicted, the officer would ask the court to take action at that time. In October Mont entered into plea agreements with state prosecutors in exchange for a predetermined 6-year sentence. The state trial court accepted Mont’s guilty pleas on October 6, and set the cases for sentencing in December Three weeks later, Mont filed a written admission in the District Court “acknowledg[ing]” that he had violated his conditions of supervised release “by virtue of his conviction following guilty pleas to certain felony offenses” in state court. Record in No. 4:05–cr–00229 (ND Ohio), Doc. 92, p. 419. Even though he had yet to be sentenced for the state offenses, Mont sought a hearing on the supervised-release violations at the court’s “earliest convenience.” The court initially scheduled a hearing for November 9, but then, over Mont’s objection, rescheduled the hearing several times to allow for “the conclusion of the State 4 MONT v. UNITED STATES Opinion of the Court sentencing.” App. 8; On March 21, 2017, Mont was sentenced in state court to six years’ imprisonment. The judge “credited the roughly ten months that Mont had already been incarcerated pending a disposition as time served.” The District Court issued a warrant on March 30, 2017, and ultimately set a supervised-release hearing for June 28, 2017. B Two days before that hearing, Mont challenged the jurisdiction of the District Court based on the fact that his supervised release had initially been set to expire on March 6, 2017. The court concluded that it had authority to supervise Mont, revoked his supervised release, and ordered him to serve an additional 42 months’ imprison- ment to run consecutive to his state sentence. The court held that it retained jurisdiction to revoke the release under 18 U.S. C. which preserves, for a “reason- ably necessary” period of time, the court’s power to adjudi- cate violations and revoke a term of supervised release after the term has expired “if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.” The court further held that it retained authority to revoke Mont’s term of supervised release because it gave “notice by way of a summons” on November 1, when it originally scheduled the hear- ing. App. 22. The court also concluded that the delay between the guilty pleas in October and the hearing date in June 2017 was “reasonably necessary.” The Sixth Circuit affirmed on alternative grounds. The court could find no evidence in the record that a summons had issued within the meaning of 723 Fed. Appx., at 329, n. 5. But because Circuit precedent pro- vided an alternative basis for affirmance, the court did not further consider the Government’s argument that the Cite as: 587 U. S. (2019) 5 Opinion of the Court District Court retained jurisdiction under In- stead, the court held that Mont’s supervised-release period was tolled while he was held in pretrial detention in state custody under which provides: “(e) Supervision After Release.— The term of su- pervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release. A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the impris- onment is for a period of less than 30 consecutive days.” (Emphasis added.) Relying on Circuit precedent, the Sixth Circuit ex- plained that when a defendant is convicted of the offense for which he was held in pretrial detention for longer than 30 days and “ ‘his pretrial detention is credited as time served toward his sentence, then the pretrial detention is “in connection with” a conviction and tolls the period of supervised release under ” ). Be- cause Mont’s term of supervised release had been tolled between June and March 2017, there was ample time left on his supervised-release term when the warrant issued on March 30, 2017. The Courts of Appeals disagree on whether tolls supervised release for periods of pretrial detention lasting longer than 30 days when that incarceration is later credited as time served on a conviction. Compare United (supervised-release period tolls); United ; United 6 MONT v. UNITED STATES Opinion of the Court ; at with United States v. (supervised- release period does not toll); United We granted certiorari to resolve this split of authority. 586 U. S. (2018). II We hold that pretrial detention later credited as time served for a new conviction is “imprison[ment] in connec- tion with a conviction” and thus tolls the supervised- release term under This is so even if the court must make the tolling calculation after learning whether the time will be credited. In our view, this reading is compelled by the text and statutory context of A Section 3624(e) provides for tolling when a person “is imprisoned in connection with a conviction.” This phrase, sensibly read, includes pretrial detention credited toward another sentence for a new conviction. First, the definition of “is imprisoned” may well include pretrial detention. Both now and at the time Congress created supervised release, see 98 Stat. – 2000, the term “imprison” has meant “[t]o put in a prison,” “to incarcerate,” “[t]o confine a person, or restrain his liberty, in any way.” Black’s Law Dictionary 681 (5th ed. 1979); 5 Oxford English Dictionary 113 (1933); accord, Black’s Law Dictionary 875 (10th ed. 2014). These defini- tions encompass pretrial detention, and, despite the dis- sent’s reliance on a narrower definition, post, at 5–7 (opin- ion of SOTOMAYOR, J.), even Mont has not pressed any serious argument to the contrary. As the Sixth Circuit previously recognized, if imprisonment referred only to “confinement that is the result of a penalty or sentence, Cite as: 587 U. S. (2019) 7 Opinion of the Court then the phrase ‘in connection with a conviction’ [would] becom[e] entirely superfluous.” Second, the phrase “in connection with a conviction” encompasses a period of pretrial detention for which a defendant receives credit against the sentence ultimately imposed. The Court has often recognized that “in connec- tion with” can bear a “broad interpretation.” Merrill Lynch, Pierce, Fenner & Smith 85 (2006) (interpreting “in connection with the purchase or sale” broadly in the context of of the Securities Exchange Act of 1934, 15 U.S. C. see, e.g., United 443 (1946) (describing the phrase “in connection with” in the Shipping Act, 1916, as “broad and gen- eral”). The Court has also recognized that “ ‘ in connection with’ is essentially indeterminate because connections, like relations, stop nowhere.” Maracich v. Spears, 570 U.S. 48, 59 (2013) (quotation altered). Here, however, we need not consider the outer bounds of the term “in connec- tion with,” as pretrial incarceration is directly tied to the conviction when it is credited toward the new sentence. The judgment of the state court stated as much, crediting the pretrial detention that Mont served while awaiting trial and sentencing for his crimes against his ultimate sentence for those same crimes. This reading of “imprison[ment] in connection with a conviction” is buttressed by the fact that Congress, like most States, instructs courts calculating a term of impris- onment to credit pretrial detention as time served on a subsequent conviction. See 18 U.S. C. Tr. of Oral Arg. 54 (statement of the Assistant Solicitor General representing that the same rule applies in 45 States and the District of Columbia). Thus, it makes sense that the phrase “imprison[ment] in connection with a conviction” would include pretrial detention later credited as time served, especially since both provisions were passed as 8 MONT v. UNITED STATES Opinion of the Court part of the Sentencing Reform Act of 1984. See 98 Stat. –. If Congress intended a narrower interpretation, it could have easily used narrower lan- guage, such as “after a conviction” or “following a convic- tion.” See e.g., Bail Reform Act of 1984, 98 Stat. 1987 (adding Federal Rule of Criminal Procedure 46(h), allowing courts to direct forfeiture of property “after conviction of the offense charged” (emphasis added)). We cannot override Congress’ choice to employ the more capa- cious phrase “in connection with.” Third, the text undeniably requires courts to retrospec- tively calculate whether a period of pretrial detention should toll a period of supervised release. Whereas instructs courts precisely when the supervised- release clock begins—“on the day the person is released”— the statute does not require courts to make a tolling de- termination as soon as a defendant is arrested on new charges or to continually reassess the tolling calculation throughout the period of his pretrial detention. Congress contemplated the opposite by including a minimum- incarceration threshold: tolling occurs “unless the impris- onment is for a period of less than 30 consecutive days.” This calculation must be made after either release from custody or entry of judgment; there is no way for a court to know on day 5 of a defendant’s pretrial detention whether the period of custody will extend be- yond 30 days. Thus, at least some uncertainty as to whether supervised release is tolled is built into by legislative design. This fact confirms that courts should make the tolling calculation upon the defendant’s release from custody or upon entry of judgment. B The statutory context also supports our reading. Super- vised release is “a form of postconfinement monitoring” that permits a defendant a kind of conditional liberty by Cite as: 587 U. S. (2019) 9 Opinion of the Court allowing him to serve part of his sentence outside of prison. Recognizing that Congress provided for supervised release to facilitate a “transition to community life,” we have declined to offset a term of supervised release by the amount of excess time a defendant spent in prison after two of his convictions were declared invalid. United States v. As we explained: “The objectives of supervised release would be unfulfilled if excess prison time were to offset and reduce terms of supervised release” because “[s]upervised release has no statutory function until confinement ends.” This understanding of supervised release informs our reading of the tolling provision. Consider itself. The sentence preceding the one at issue here specifies that supervised release “runs concurrently” with “probation or supervised release or parole for another offense.” (emphasis added). But the next sentence (the one at issue here) excludes periods of “imprison[ment]” served “in connection with a conviction.” The juxtaposition of these two sentences reinforces the fact that prison time is “not interchange- able” with supervised release. Permitting a period of probation or parole to count toward supervised release but excluding a period of incarceration furthers the statutory design of “successful[ly] transition[ing]” a de- fendant from “prison to liberty.” at 708– Allowing pretrial detention credited toward another sentence to toll the period of supervised release is con- sistent with that design. Cf. A. Scalia & B. Garner, Reading Law 167 (2012) (explaining that “the whole-text canon” requires consideration of “the entire text, in view of its structure” and “logical relation of its many parts”). Second, it would be an exceedingly odd construction of the statute to give a defendant the windfall of satisfying a new sentence of imprisonment and an old sentence of 10 MONT v. UNITED STATES Opinion of the Court supervised release with the same period of pretrial deten- tion. Supervised release is a form of punishment that Congress prescribes along with a term of imprisonment as part of the same sentence. See generally And Congress denies defendants credit for time served if the detention time has already “been credited against another sentence.” Yet Mont’s reading of would deprive the Government of its lawfully imposed sentence of supervised release while the defendant is serving a separate sentence of incarceration—one often imposed by a different sovereign. Under our view, in contrast, time in pretrial detention constitutes supervised release only if the charges against the defendant are dismissed or the defendant is acquitted. This ensures that the defendant is not faulted for conduct he might not have committed, while otherwise giving full effect to the lawful judgment previously imposed on the defendant.1 C In response to these points, Mont follows the D. C. Circuit in arguing that the present tense of the statute (“ ‘is imprisoned’ ”) forbids any backward looking tolling analysis. See 829 F.3d, at Mont contends that, when a defendant is held in pretrial detention, a court cannot say at that moment that he “is imprisoned in connection with a conviction.” He relies on the Dictionary Act, which provides that “[i]n determining the meaning of any Act of Congress, unless the context indicates other- wise[,] words used in the present tense include the future —————— 1 Our reading leaves intact a district court’s ability to preserve its authority by issuing an arrest warrant or summons under based on the conduct at issue in the new charges, irrespective of whether the defendant is later convicted or acquitted of those offenses. But preserving jurisdiction through is not a prerequisite to a court maintaining authority under nor does it impact the tolling calculation under Cite as: 587 U. S. (2019) 11 Opinion of the Court as well as the present.” 1 U.S. C. Mont’s argument confuses the rule (“any period in which the person is imprisoned in connection with a conviction”) with a court’s analysis of whether that rule was satisfied. Of course, the determination whether supervised release has been tolled cannot be made at the exact moment when the defendant is held in pretrial detention. Rather, the court must await the outcome of those separate proceed- ings before it will know whether “imprison[ment]” is tied to a conviction. But the statute does not require the court to make a contemporaneous assessment. Quite the oppo- site: As discussed, the statute undeniably contemplates that there will be uncertainty about the status of super- vised release when a defendant has been held for a short period of time and it is unclear whether the imprisonment will exceed 30 days. There is no reason the statute would preclude postponing calculation just because the custody period extends beyond 30 days. Once the court makes the calculation, it will determine whether the relevant period ultimately qualified as a period “in which the person is imprisoned in connection with a conviction” for 30 or more days. In short, the present-tense phrasing of the statute does not address whether a judge must be able to make a supervised-release determination at any given time. Moreover, any uncertainty about whether supervised release is tolled matters little from either the court’s or the defendant’s perspective. As for the court, the defendant need not be supervised when he is held in custody, so it does not strike us as “odd” to make a delayed determina- tion concerning tolling. The court need not monitor the defendant’s progress in transitioning back into the community because the defendant is not in the community. And if the court is concerned about losing authority over the defendant because of an impending conclusion to supervised release, it can simply issue a summons or warrant under for alleged violations. 12 MONT v. UNITED STATES Opinion of the Court As for the defendant, there is nothing unfair about not knowing during pretrial detention whether he is also subject to court supervision. The answer to that question cannot meaningfully influence his behavior. A defendant in custody will be unable to comply with many ordinary conditions of supervised release intended to reacclimate him to society—for example, making restitution payments, attending substance-abuse counseling, meeting curfews, or participating in job training. The rules he can “comply” with are generally mandated by virtue of being in prison— for example, no new offenses or use of drugs. See (listing mandatory and discretionary condi- tions). In this case, Mont’s supervised-release conditions required that he “work regularly at a lawful occupation” and “support his dependants and meet other family responsibilities.” Judgment in No. 4:05–cr–00229 (ND Ohio), Doc. 37, at 111. Mont could not fulfill these condi- tions while sitting in an Ohio jail, and his probation officer correctly deemed him “unavailable for supervision.”2 App. 21. III Applying to Mont, the pretrial-detention period tolled his supervised release beginning in June Mont therefore had about nine months remaining on his term of supervised release when the District Court re- voked his supervised release and sentenced him to an —————— 2 Although a defendant in pretrial detention is unable to be super- vised, it does not necessarily follow that the defendant will be punished by his inability to comply with the terms of his supervised release if the detention period is not later credited as time served for a conviction. In that circumstance, the district court may always modify the terms of his supervision. See 18 U.S. C. And, as the Government explained at oral argument, modification of supervised release may not be necessary to the extent that “the defendant can’t be deemed to have been required to” comply with the terms of supervised release while in custody. Tr. of Oral Arg. 45. Cite as: 587 U. S. (2019) 13 Opinion of the Court additional 42 months’ imprisonment. And because independently tolled the supervised-release period, it is immaterial whether the District Court could have issued a summons or warrant under to preserve its authority. * * * In light of the statutory text and context of pretrial detention qualifies as “imprison[ment] in connec- tion with a conviction” if a later imposed sentence credits that detention as time served for the new offense. Such pretrial detention tolls the supervised-release period, even though the District Court may need to make the tolling determination after the conviction. Accordingly, we affirm the judgment of the Sixth Circuit. It is so ordered. Cite as: 587 U. S. (2019) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–8995 JASON J. MONT, PETITIONER v.

Justice Scalia

majority

Republic of Iraq v. Beaty

https://www.courtlistener.com/opinion/145868/republic-of-iraq-v-beaty/

https://www.courtlistener.com/api/rest/v3/clusters/145868/

2008-063

We consider in these cases whether the Republic of Iraq remains subject to suit in American courts pursuant to the terrorism exception to foreign sovereign immunity, now repealed, that had been codified at 28 U.S. C. §1605(a)(7). I A Under the venerable principle of foreign sovereign im munity, foreign states are ordinarily “immune from the jurisdiction of the courts of the United States and of the States,” §1604. See generally Schooner Exchange v. McFaddon, 7 Cranch 116 (1812). But the statute embody ing that principle—the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S. C. §1602 et seq.—recognizes a number of exceptions; if any of these is applicable, the state is subject to suit, and federal district courts have 2 REPUBLIC OF IRAQ v. BEATY Opinion of the Court jurisdiction to adjudicate the claim. §1330(a); Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 489 (1983). In 1996, Congress added to the list of statutory excep tions one for state sponsors of terrorism, which was codi fied at 28 U.S. C. §1605(a)(7). Subject to limitations not relevant here, that exception stripped immunity in any suit for money damages “against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial kill ing, aircraft sabotage, hostage taking, or the provision of material support or resources . . . for such an act . . . except that the court shall decline to hear a claim un der this paragraph— “(A) if the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Ex port Administration Act of 1979 (50 U.S. C. App. 2405(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U.S. C. 2371) at the time the act occurred . . . .” In brief, §1605(a)(7) stripped immunity from a foreign state for claims arising from particular acts, if those acts were taken at a time when the state was designated as a sponsor of terrorism. B In September 1990, Acting Secretary of State Lawrence Eagleburger formally designated Iraq, pursuant to §6(j) of the Export Administration Act of 1979, as redesignated and amended, 99 Stat. 135, 50 U.S. C. App. §2405(j), as “a country which has repeatedly provided support for acts of international terrorism,” 55 Fed. Reg. 37793. Over a decade later, in March 2003, the United States and a coalition of allies initiated military action against that country. In a matter of weeks, the regime of Iraqi dictator Saddam Hussein collapsed and coalition forces occupied Cite as: 556 U. S. ____ (2009) 3 Opinion of the Court Baghdad. American attention soon shifted from combat operations to the longer term project of rebuilding Iraq, with the ultimate goal of creating a stable ally in the region. Toward that end, Congress enacted in April 2003 the Emergency Wartime Supplemental Appropriations Act (EWSAA), 117 Stat. 559. Section 1503 of that Act author ized the President to “make inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism.” Id., at 579. President George W. Bush exercised that authority to its fullest extent in May 2003, declaring “inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 . . . and any other provision of law that applies to countries that have supported terrorism.” 68 Fed. Reg. 26459. Shortly thereafter, the United States Court of Appeals for the District of Columbia Circuit had occasion to con sider whether that Presidential action had the effect of rendering inapplicable to Iraq the terrorism exception to foreign sovereign immunity. The Court concluded in a divided panel decision that the President’s EWSAA au thority did not permit him to waive §1605(a)(7), and thereby restore sovereign immunity to Iraq, for claims arising from acts it had taken while designated as a spon sor of terror. Acree v. Republic of Iraq, 370 F.3d 41, 48 (2004). Because Iraq succeeded in having the claims against it dismissed on other grounds, id., at 59–60, it could not seek certiorari to challenge the D. C. Circuit’s interpretation of the EWSAA. C There is yet another legislative enactment, and yet another corresponding executive waiver, that bear on the question presented. The National Defense Authorization Act for Fiscal Year 2008 (NDAA), 122 Stat. 3, was passed 4 REPUBLIC OF IRAQ v. BEATY Opinion of the Court in January 2008. That Act (1) repealed the FSIA’s terror ism exception, §1083(b)(1)(A)(iii); (2) replaced it with a new, roughly similar exception, §1083(a); (3) declared that nothing in §1503 of the EWSAA had “ever authorized, directly or indirectly, the making inapplicable of any provision of chapter 97 of title 28, United States Code, or the removal of the jurisdiction of any court of the United States” (thus purporting to ratify the Court of Appeals’ Acree decision), §1083(c)(4), 122 Stat. 343; and (4) author ized the President to waive “any provision of this section with respect to Iraq” so long as he made certain findings and so notified Congress within 30 days, §1083(d), id., at 343–344. The last provision was added to the NDAA after the President vetoed an earlier version of the bill, which did not include the waiver authority. The President’s veto message said that the bill “would imperil billions of dollars of Iraqi assets at a crucial juncture in that nation’s recon struction efforts.” Memorandum to the House of Repre sentatives Returning Without Approval the “National Defense Authorization Act for Fiscal Year 2008,” 43 Weekly Comp. of Pres. Doc. 1641 (2007). Only when Con gress added the waiver authority to the NDAA did the President agree to approve it; and on the same day he signed it into law he also officially waived “all provisions of section 1083 of the Act with respect to Iraq,” 73 Fed. Reg. 6571 (2008). II We consider today two cases that have been navigating their way through the lower courts against the backdrop of the above-described congressional, military, Presidential, and judicial actions. Respondents in the Simon case are American nationals (and relatives of those nationals) who allege that they were captured and cruelly mistreated by Iraqi officials during the 1991 Gulf War. The Beaty re Cite as: 556 U. S. ____ (2009) 5 Opinion of the Court spondents are the children of two other Americans, Ken neth Beaty and William Barloon, who are alleged to have been similarly abused by the regime of Saddam Hussein in the aftermath of that war. Each set of respondents filed suit in early 2003 against Iraq in the United States Dis trict Court for the District of Columbia, alleging violations of local, federal, and international law. Respondents invoked the terrorism exception to foreign sovereign immunity, and given Acree’s holding that the President had not rendered that statutory provision inap plicable to Iraq, the District Court refused to dismiss either case on jurisdictional grounds. In Beaty, after the District Court denied Iraq’s motion to dismiss, 480 F. Supp. 2d 60, 70 (2007), Iraq invoked the collateral order doctrine to support an interlocutory appeal. See Mitchell v. Forsyth, 472 U.S. 511, 524–529 (1985). In Simon, the District Court determined that the claims were time barred and dismissed on that alternative basis, Vine v. Republic of Iraq, 459 F. Supp. 2d 10, 25 (2006), after which the Simon respondents appealed. In the Beaty appeal, Iraq (supported by the United States as amicus) requested that the Court of Appeals for the District of Columbia Circuit reconsider Acree’s holding en banc. The Court denied that request over the dissent of Judges Brown and Kavanaugh, and a panel then summa rily affirmed in an unpublished order the District Court’s denial of Iraq’s motion to dismiss. No. 07–7057 (Nov. 21, 2007) (per curiam), App. to Pet. for Cert. 1a–2a. While the Simon appeal was still pending, Congress enacted the NDAA, and the Court of Appeals requested supplemental briefing addressing the impact of that legis lation on the court’s jurisdiction. Iraq contended, as an alternative argument to its position that Acree was wrongly decided, that even if 28 U.S. C. §1605(a)(7)’s application to Iraq survived the President’s EWSAA waiver, the provision was repealed by §1083(b)(1)(A)(iii) of 6 REPUBLIC OF IRAQ v. BEATY Opinion of the Court the NDAA, 122 Stat. 341; and that the new terrorism exception to sovereign immunity—which was created by the NDAA and codified at 28 U.S. C. A. §1605A (July 2008 Supp.)—was waived by the President with respect to Iraq pursuant to his NDAA authority. The Court of Appeals rejected that argument, holding instead, based on a close reading of the statutory text, that “the NDAA leaves intact our jurisdiction over cases . . . that were pending against Iraq when the Congress en acted the NDAA.” 529 F.3d 1187, 1194 (2008). The panel then reversed the District Court’s determination that the Simon respondents’ claims were untimely, id., at 1195– 1196, and rebuffed Iraq’s request for dismissal under the political question doctrine, id., at 1196–1198. Iraq sought this Court’s review of both cases, asking us to determine whether under current law it remains sub ject to suit in the federal courts. We granted certiorari, 555 U. S. ___ (2009), and consolidated the cases. III A Section 1503 of the EWSAA consists of a principal clause, followed by eight separate proviso clauses. The dispute in these cases concerns the second of the provisos. The principal clause and that proviso read: “The President may suspend the application of any provision of the Iraq Sanctions Act of 1990: . . . Pro vided further, That the President may make inappli cable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terror ism . . . .” 117 Stat. 579. Iraq and the United States both read the quoted proviso’s residual clause as sweeping in the terrorism exception to foreign sovereign immunity. Certainly that reading is, as Cite as: 556 U. S. ____ (2009) 7 Opinion of the Court even the Acree Court acknowledged, “straightforward.” 370 F.3d, at 52. Title 28 U.S. C. §1605(a)(7)’s exception to sovereign immunity for state sponsors of terrorism stripped jurisdic tional immunity from a country unless “the foreign state was not designated as a state sponsor of terrorism.” This is a “provision of law” (indisputably) that “applies to” (strips immunity from) “countries that have supported terrorism” (as designated pursuant to certain statutory provisions). Of course the word “any” (in the phrase “any other provision of law”) has an “expansive meaning,” United States v. Gonzales, 520 U.S. 1, 5 (1997), giving us no warrant to limit the class of provisions of law that the President may waive. Because the President exercised his authority with respect to “all” provisions of law encom passed by the second proviso, his actions made §1605(a)(7) “inapplicable” to Iraq. To a layperson, the notion of the President’s suspending the operation of a valid law might seem strange. But the practice is well established, at least in the sphere of for eign affairs. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 322–324 (1936) (canvassing prece dents from as early as the “inception of the national gov ernment”). The granting of Presidential waiver authority is particularly apt with respect to congressional elimina tion of foreign sovereign immunity, since the granting or denial of that immunity was historically the case-by-case prerogative of the Executive Branch. See, e.g., Ex parte Peru, 318 U.S. 578, 586–590 (1943). It is entirely unre markable that Congress, having taken upon itself in the FSIA to “free the Government” from the diplomatic pres sures engendered by the case-by-case approach, Verlinden, 461 U.S., at 488, would nonetheless think it prudent to afford the President some flexibility in unique circum stances such as these. 8 REPUBLIC OF IRAQ v. BEATY Opinion of the Court B The Court of Appeals in Acree resisted the above con struction, primarily on the ground that the relevant text is found in a proviso. We have said that, at least presump tively, the “grammatical and logical scope [of a proviso] is confined to the subject-matter of the principal clause.” United States v. Morrow, 266 U.S. 531, 534–535 (1925). Using that proposition as a guide, the Acree panel strove mightily to construe the proviso as somehow restricting the principal clause of EWSAA §1503, which authorized the President to suspend “any provision of the Iraq Sanc tions Act of 1990,” 117 Stat. 579. In the Court of Appeals’ view, the second proviso related to that subsection of the Iraq Sanctions Act (referred to in the principal provision) which dictated that certain enu merated statutory provisions, including §620A of the Foreign Assistance Act of 1961 and “all other provisions of law that impose sanctions against a country which has repeatedly provided support for acts of international ter rorism,” shall be fully enforced against Iraq. §586F(c), 104 Stat. 2051 (emphasis added). The panel understood the second EWSAA proviso as doing nothing more than clari fying that the authority granted by the principal clause (to suspend any part of the Iraq Sanctions Act) included the power to make inapplicable to Iraq the various independ ent provisions of law that §586F(c) of the Iraq Sanctions Act instructed to be enforced against Iraq—which might otherwise continue to apply of their own force even with out the Iraq Sanctions Act. However, the residual clause of §586F(c) encompasses only provisions that “impose sanctions”; and, in the Court of Appeals’ view, that ex cludes §1605(a)(7), which is a rule going instead to the jurisdiction of the federal courts. Thus, the EWSAA pro viso swept only as broadly as §586F(c), and therefore did not permit the President to waive the FSIA terrorism exception. Cite as: 556 U. S. ____ (2009) 9 Opinion of the Court This is a highly sophisticated effort to construe the proviso as a limitation upon the principal clause. Ulti mately, however, we think that effort neither necessary nor successful. It is true that the “general office of a pro viso is to except something from the enacting clause, or to qualify and restrain its generality.” Morrow, supra, at 534. But its general (and perhaps appropriate) office is not, alas, its exclusive use. Use of a proviso “to state a general, independent rule,” Alaska v. United States, 545 U.S. 75, 106 (2005), may be lazy drafting, but is hardly a novelty. See, e.g., McDonald v. United States, 279 U.S. 12, 21 (1929). Morrow itself came with the caveat that a proviso is sometimes used “to introduce independent legislation.” 266 U.S., at 535. We think that was its office here. The principal clause granted the President a power; the second proviso purported to grant him an additional power. It was not, on any fair reading, an exception to, qualification of, or restraint on the principal power. Contrasting the second EWSAA proviso to some of the other provisos illustrates the point. For example, the first proviso cautioned that “nothing in this section shall affect the applicability of the Iran-Iraq Arms Non-Proliferation Act of 1992,” 117 Stat. 579, and the third forbade the export of certain military equipment “under the authority of this section.” Ibid. Both of these plainly sought to define and limit the authority granted by the principal clause. The fourth proviso, however, mandated that “sec tion 307 of the Foreign Assistance Act of 1961 shall not apply with respect to programs of international organiza tions for Iraq,” ibid., and it is impossible to see how that self-executing suspension of a distinct statute in any way cabined or clarified the principal clause’s authorization to suspend the Iraq Sanctions Act. There are other indications that the second proviso’s waiver authority was not limited to the statutory provi 10 REPUBLIC OF IRAQ v. BEATY Opinion of the Court sions embraced by §586F(c) of the Iraq Sanctions Act. If that is all it was meant to accomplish, why would Con gress not simply have tracked §586F(c)’s residual clause? Instead of restricting the President’s authority to statutes that “impose sanctions” on sponsors of terror, the EWSAA extended it to any statute that “applies” to such states. That is undoubtedly a broader class. Even if the best reading of the EWSAA proviso were that it encompassed only statutes that impose sanctions or prohibit assistance to state sponsors of terrorism, see Acree, 370 F.3d, at 54, we would disagree with the Court of Appeals’ conclusion that the FSIA exception is not such a law. Allowing lawsuits to proceed certainly has the extra benefit of facilitating the compensation of injured victims, but the fact that §1605(a)(7) targeted only foreign states designated as sponsors of terrorism suggests that the law was intended as a sanction, to punish and deter undesirable conduct. Stripping the immunity that foreign sovereigns ordinarily enjoy is as much a sanction as elimi nating bilateral assistance or prohibiting export of muni tions (both of which are explicitly mandated by §586F(c) of the Iraq Sanctions Act). The application of this sanction affects the jurisdiction of the federal courts, but that fact alone does not deprive it of its character as a sanction. It may well be that when Congress enacted the EWSAA it did not have specifically in mind the terrorism exception to sovereign immunity. The Court of Appeals evidently found that to be of some importance. Id., at 56 (noting there is “no reference in the legislative history to the FSIA”). But the whole value of a generally phrased resid ual clause, like the one used in the second proviso, is that it serves as a catchall for matters not specifically contem plated—known unknowns, in the happy phrase coined by Secretary of Defense Donald Rumsfeld. Pieces of Intelli gence: The Existential Poetry of Donald H. Rumsfeld 2 (H. Seely comp. 2003). If Congress wanted to limit the waiver Cite as: 556 U. S. ____ (2009) 11 Opinion of the Court authority to particular statutes that it had in mind, it could have enumerated them individually. We cannot say with any certainty (for those who think this matters) whether the Congress that passed the EWSAA would have wanted the President to be permitted to waive §1605(a)(7). Certainly the exposure of Iraq to billions of dollars in damages could be thought to jeopard ize the statute’s goal of speedy reconstruction of that country. At least the President thought so. And in the “vast external realm, with its important, complicated, delicate and manifold problems,” Curtiss-Wright Export Corp., 299 U.S., at 319, courts ought to be especially wary of overriding apparent statutory text supported by execu tive interpretation in favor of speculation about a law’s true purpose.1 C Respondents advance two other objections to the straightforward interpretation of the EWSAA proviso. First, in a less compelling variant of the D. C. Circuit’s approach, the Simon respondents argue that “section 620A of the Foreign Assistance Act of 1961 or any other provi sion of law that applies to countries that have supported terrorism” means section 620A of the Foreign Assistance Act or any other provision of law cited therein. The provi sion would thus allow the President to make inapplicable to Iraq the statutes that §620A precludes from being used to provide support to terror-sponsoring nations. Not to put too fine a point upon it, that is an absurd reading, not —————— 1 The eighth proviso of EWSAA §1503 says that absent further con gressional action, “the authorities contained in this section shall expire on September 30, 2004.” 117 Stat. 579. The Court of Appeals ex pressed doubt that Congress would have wanted federal-court jurisdic tion to disappear for a year and then suddenly return. Acree v. Repub lic of Iraq, 370 F.3d 41, 56–57 (CADC 2004). Our analysis of the sunset provision, see Part V, infra, disposes of that concern. 12 REPUBLIC OF IRAQ v. BEATY Opinion of the Court only textually but in the result it produces: It would mean that the effect of the EWSAA was to permit the President to exclude Iraq from, rather than include it within, such beneficent legislation as the Food for Peace Act of 1966, 7 U.S. C. §1691 et seq. Both respondents also invoke the canon against implied repeals, TVA v. Hill, 437 U.S. 153, 190 (1978), but that canon has no force here. Iraq’s construction of the statute neither rests on implication nor effects a repeal. The EWSAA proviso expressly allowed the President to render certain statutes inapplicable; the only question is its scope. And it did not repeal anything, but merely granted the President authority to waive the application of par ticular statutes to a single foreign nation. Cf. Clinton v. City of New York, 524 U.S. 417, 443–445 (1998). D We must consider whether anything in the subsequent NDAA legislation changes the above analysis. In particu lar, §1083(c)(4) of that statute specifically says that “[n]othing in section 1503 of the [EWSAA] has ever au thorized, directly or indirectly, the making inapplicable of any provision of chapter 97 of title 28, United States Code, or the removal of the jurisdiction of any court of the United States.” 122 Stat. 343. This looks like a ratifica tion by Congress of the conclusion reached in the Acree decision. Is such a ratification effective? The NDAA is not subse quent legislative history, as Iraq claims, cf. Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990) (SCALIA, J., concur ring in part); rather, it is binding law, approved by the Legislature and signed by the President. Subsequent legislation can of course alter the meaning of an existing law for the future; and it can even alter the past operation of an existing law (constitutional objections aside) if it makes that retroactive operation clear. Landgraf v. USI Cite as: 556 U. S. ____ (2009) 13 Opinion of the Court Film Products, 511 U.S. 244, 267–268 (1994). To tell the truth, however, we are unaware of any case dealing with the retroactive amendment of a law that had already expired, as the EWSAA had here. And it is doubtful whether Congress can retroactively claw back power it has given to the Executive, invalidating Presidential action that was valid when it was taken. Thankfully, however, we need not explore these difficulties here. In §1083(d)(1) of the NDAA, the President was given authority to “waive any provision of this section with respect to Iraq.” 122 Stat. 343. The President proceeded to waive “all” provisions of that section as to Iraq, includ ing (presumably) §1083(c)(4). 73 Fed. Reg. 6571. The Act can therefore add nothing to our analysis of the EWSAA. Respondent Beaty objects that the President cannot waive a fact. But neither can Congress legislate a fact. Section 1083(c)(4) could change our interpretation of the disputed EWSAA language only if it has some substantive effect, changing what would otherwise be the law. And if the President’s waiver does anything, it eliminates any sub stantive effect that the NDAA would otherwise have on cases to which Iraq is a party.2 IV Having concluded that the President did render 28 U.S. C. §1605(a)(7) “inapplicable with respect to Iraq,” and that such action was within his assigned powers, we consider respondents’ argument that the inapplicability of —————— 2 Respondents contend that the NDAA waiver is irrelevant because the President’s veto of the initial version of the bill—which did not include the waiver authority—was defective. We need not inquire into that point, since Congress (evidently thinking the veto effective) en acted a new bill that was identical in all material respects but for the addition of presidential waiver authority. Since that authority would be nugatory, and the rest of the new law utterly redundant, if a law resulting from the former bill remained in effect, that law would have been effectively repealed. 14 REPUBLIC OF IRAQ v. BEATY Opinion of the Court the provision does not bar their claims, since they arise from Iraq’s conduct prior to the President’s waiver. Any other interpretation, they say, would cause the law to operate in a disfavored retroactive fashion. This argument proceeds as follows: The FSIA exception becomes “applicable” to a foreign state when that foreign state is designated as a sponsor of terrorism. In parallel fashion, rendering the exception “inapplicable” should be equivalent to removing the state’s designation. And under §1605(a)(7), jurisdiction turned on the foreign state’s designation “at the time the act [giving rise to the claim] occurred.” On this reading, the President’s waiver meant only that Iraq could not be sued pursuant to §1605(a)(7) for any future conduct, even though it technically re mained designated as a state sponsor of terrorism. Respondents support this interpretation with a policy argument and a canon of construction. First, why would Congress have sought to give Iraq better treatment than any other state that saw the error of its ways, reformed its behavior, and was accordingly removed from the list of terror-sponsoring regimes? See Acree, 370 F.3d, at 56 (calling such a result “perplexing”). Providing immunity for future acts is one thing, but wiping the slate clean is quite another. Second, this Court has often applied a presumption that, absent clear indication to the contrary, statutory amendments do not apply to pending cases. Landgraf, supra, at 280. A narrow reading of “inapplica ble” would better comport with that presumption. As a textual matter, the proffered definition of “inappli cable” is unpersuasive. If a provision of law is “inapplica ble” then it cannot be applied; to “apply” a statute is “[t]o put [it] to use.” Webster’s New International Dictionary 131 (2d ed. 1954). When the District Court exercised jurisdiction over these cases against Iraq, it surely was putting §1605(a)(7) to use with respect to that country. Without the application of that provision, there was no Cite as: 556 U. S. ____ (2009) 15 Opinion of the Court basis for subject-matter jurisdiction. 28 U.S. C. §§1604, 1330(a). If Congress had wanted to authorize the Presi dent merely to cancel Iraq’s designation as a state sponsor of terrorism, then Congress could have done so. As a policy matter, moreover, we do not find that result particularly “perplexing.” As then-Judge Roberts ex plained in his separate opinion in Acree, Congress in 2003 “for the first time confronted the prospect that a friendly successor government would, in its infancy, be vulnerable under Section 1605(a)(7) to crushing liability for the ac tions of its renounced predecessor.” 370 F.3d, at 61 (opin ion concurring in part and concurring in judgment) (em phasis in original). The Government was at the time spending considerable sums of money to rebuild Iraq, see Rogers, Congress Gives Initial Approval for War Funding, Airline Aid, Wall Street Journal, Apr. 4, 2003, p. A10. What would seem perplexing is converting a billion-dollar reconstruction project into a compensation scheme for a few of Saddam’s victims. As for the judicial presumption against retroactivity, that does not induce us to read the EWSAA proviso more narrowly. Laws that merely alter the rules of foreign sovereign immunity, rather than modify substantive rights, are not operating retroactively when applied to pending cases. Foreign sovereign immunity “reflects current political realities and relationships,” and its avail ability (or lack thereof) generally is not something on which parties can rely “in shaping their primary conduct.” Republic of Austria v. Altmann, 541 U.S. 677, 696 (2004); see also id., at 703 (SCALIA, J., concurring). In any event, the primary conduct by Iraq that forms the basis for these suits actually occurred prior to the enactment of the FSIA terrorism exception in 1996. See Saudi Arabia v. Nelson, 507 U.S. 349, 351 (1993). That is, Iraq was immune from suit at the time it is alleged to have harmed respondents. The President’s elimination of 16 REPUBLIC OF IRAQ v. BEATY Opinion of the Court Iraq’s later subjection to suit could hardly have deprived respondents of any expectation they held at the time of their injury that they would be able to sue Iraq in United States courts. V Accordingly, the District Court lost jurisdiction over both suits in May 2003, when the President exercised his authority to make §1605(a)(7) inapplicable with respect to Iraq. At that point, immunity kicked back in and the cases ought to have been dismissed, “the only function remaining to the court [being] that of announcing the fact and dismissing the cause.” Ex parte McCardle, 7 Wall. 506, 514 (1869). In respondents’ view, that is not fatal to their claims. They point to the eighth proviso in §1503 of the EWSAA: “Provided further, That the authorities contained in this section shall expire on September 30, 2004, or on the date of enactment of a subsequent Act authorizing assistance for Iraq and that specifically amends, re peals or otherwise makes inapplicable the authorities of this section, whichever occurs first.” 117 Stat. 579. The effect of this provision, they contend, is that the EWSAA waiver expired in 2005,3 and that when it did so §1605(a)(7) was revived, immunity was again stripped, and jurisdiction was restored. If that is true, then at the very least they ought to be permitted to refile their suits and claim equitable tolling for the period between 2005 and the present, during which time they understandably relied on Acree’s holding. The premise, however, is flawed. It is true that the “authorities contained in” §1503 of the EWSAA expired, but expiration of the authorities (viz., the President’s —————— 3 The sunset date was extended by one year in a later bill. 108–106, §2204(2), 117 Stat. 1230. Cite as: 556 U. S. ____ (2009) 17 Opinion of the Court powers to suspend and make inapplicable certain laws) is not the same as cancellation of the effect of the President’s prior valid exercise of those authorities (viz., the restora tion of sovereign immunity). As Iraq points out, Congress has in other statutes provided explicitly that both the authorities granted and the effects of their exercise sunset on a particular date. E.g., 19 U.S. C. §2432(c)(3) (“A waiver with respect to any country shall terminate on the day after the waiver authority granted by this subsection ceases to be effective with respect to such country”). The EWSAA contains no such language. We think the better reading of the eighth EWSAA pro viso (the sunset clause) is that the powers granted by the section could be exercised only for a limited time, but that actions taken by the President pursuant to those powers (e.g., suspension of the Iraq Sanctions Act) would not lapse on the sunset date. If it were otherwise, then the Iraq Sanctions Act—which has never been repealed, and which imposes a whole host of restrictions on relations with Iraq—would have returned to force in September 2005. Nobody believes that is so. * * * When the President exercised his authority to make inapplicable with respect to Iraq all provisions of law that apply to countries that have supported terrorism, the exception to foreign sovereign immunity for state sponsors of terrorism became inoperative as against Iraq. As a result, the courts below lacked jurisdiction; we therefore need not reach Iraq’s alternative argument that the NDAA subsequently stripped jurisdiction over the cases. The judgments of the Court of Appeals are reversed. It is so ordered

We consider in these cases whether the Republic of Iraq remains subject to suit in American courts pursuant to the terrorism exception to foreign sovereign immunity, now repealed, that had been codified at 28 U.S. C. I A Under the venerable principle of foreign sovereign im munity, foreign states are ordinarily “immune from the jurisdiction of the courts of the United States and of the States,” See generally Schooner Exchange v. McFaddon, But the statute embody ing that principle—the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S. C. et seq.—recognizes a number of exceptions; if any of these is applicable, the state is subject to suit, and federal district courts have 2 REPUBLIC OF IRAQ v. BEATY Opinion of the Court jurisdiction to adjudicate the claim. Verlinden B. V. v. Central Bank of Nigeria, In 1996, Congress added to the list of statutory excep tions one for state sponsors of terrorism, which was codi fied at 28 U.S. C. Subject to limitations not relevant here, that exception stripped immunity in any suit for money damages “against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial kill ing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act except that the court shall decline to hear a claim un der this paragraph— “(A) if the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Ex port Administration Act of 1979 (0 U.S. C. App. 240(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U.S. C. 2371) at the time the act occurred” In brief, stripped immunity from a foreign state for claims arising from particular acts, if those acts were taken at a time when the state was designated as a sponsor of terrorism. B In September 1990, Acting Secretary of State Lawrence Eagleburger formally designated Iraq, pursuant to of the Export Administration Act of 1979, as redesignated and amended, 0 U.S. C. App. as “a country which has repeatedly provided support for acts of international terrorism,” Over a decade later, in March 2003, the United States and a coalition of allies initiated military action against that country. In a matter of weeks, the regime of Iraqi dictator Saddam Hussein collapsed and coalition forces occupied Cite as: 6 U. S. (2009) 3 Opinion of the Court Baghdad. American attention soon shifted from combat operations to the longer term project of rebuilding Iraq, with the ultimate goal of creating a stable ally in the region. Toward that end, Congress enacted in April 2003 the Emergency Wartime Supplemental Appropriations Act (EWSAA), Section 103 of that Act author ized the President to “make inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism.” President George W. Bush exercised that authority to its fullest extent in May 2003, declaring “inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 and any other provision of law that applies to countries that have supported terrorism.” Shortly thereafter, the United States Court of Appeals for the District of Columbia Circuit had occasion to con sider whether that Presidential action had the effect of rendering inapplicable to Iraq the terrorism exception to foreign sovereign immunity. The Court concluded in a divided panel decision that the President’s EWSAA au thority did not permit him to waive and thereby restore sovereign immunity to Iraq, for claims arising from acts it had taken while designated as a spon sor of terror. Because Iraq succeeded in having the claims against it dismissed on other grounds, at 9–60, it could not seek certiorari to challenge the D. C. Circuit’s interpretation of the EWSAA. C There is yet another legislative enactment, and yet another corresponding executive waiver, that bear on the question presented. The National Defense Authorization Act for Fiscal Year (NDAA), was passed 4 REPUBLIC OF IRAQ v. BEATY Opinion of the Court in January That Act (1) repealed the FSIA’s terror ism exception, (2) replaced it with a new, roughly similar exception, (3) declared that nothing in of the EWSAA had “ever authorized, directly or indirectly, the making inapplicable of any provision of chapter 97 of title 28, United States Code, or the removal of the jurisdiction of any court of the United States” (thus purporting to ratify the Court of Appeals’ decision), 43; and (4) author ized the President to waive “any provision of this section with respect to Iraq” so long as he made certain findings and so notified Congress within 30 days, at 343–344. The last provision was added to the NDAA after the President vetoed an earlier version of the bill, which did not include the waiver authority. The President’s veto message said that the bill “would imperil billions of dollars of Iraqi assets at a crucial juncture in that nation’s recon struction efforts.” Memorandum to the House of Repre sentatives Returning Without Approval the “National Defense Authorization Act for Fiscal Year” 43 Weekly Comp. of Pres. Doc. 1641 (2007). Only when Con gress added the waiver authority to the NDAA did the President agree to approve it; and on the same day he signed it into law he also officially waived “all provisions of section 1083 of the Act with respect to Iraq,” 73 Fed. Reg. 671 II We consider today two cases that have been navigating their way through the lower courts against the backdrop of the above-described congressional, military, Presidential, and judicial actions. Respondents in the Simon case are American nationals (and relatives of those nationals) who allege that they were captured and cruelly mistreated by Iraqi officials during the 1991 Gulf War. The Beaty re Cite as: 6 U. S. (2009) Opinion of the Court spondents are the children of two other Americans, Ken neth Beaty and William Barloon, who are alleged to have been similarly abused by the regime of Saddam Hussein in the aftermath of that war. Each set of respondents filed suit in early 2003 against Iraq in the United States Dis trict Court for the District of Columbia, alleging violations of local, federal, and international law. Respondents invoked the terrorism exception to foreign sovereign immunity, and given ’s holding that the President had not rendered that statutory provision inap plicable to Iraq, the District Court refused to dismiss either case on jurisdictional grounds. In Beaty, after the District Court denied Iraq’s motion to dismiss, 0 F. Supp. 2d 60, 70 (2007), Iraq invoked the collateral order doctrine to support an interlocutory appeal. See Mitchell v. Forsyth, In Simon, the District Court determined that the claims were time barred and dismissed on that alternative basis, Vine v. Republic of Iraq, after which the Simon respondents appealed. In the Beaty appeal, Iraq (supported by the United States as amicus) requested that the Court of Appeals for the District of Columbia Circuit reconsider ’s holding en banc. The Court denied that request over the dissent of Judges Brown and Kavanaugh, and a panel then summa rily affirmed in an unpublished order the District Court’s denial of Iraq’s motion to dismiss. No. 07–707 (Nov. 21, 2007) (per curiam), App. to Pet. for Cert. 1a–2a. While the Simon appeal was still pending, Congress enacted the NDAA, and the Court of Appeals requested supplemental briefing addressing the impact of that legis lation on the court’s jurisdiction. Iraq contended, as an alternative argument to its position that was wrongly decided, that even if 28 U.S. C. ’s application to Iraq survived the President’s EWSAA waiver, the provision was repealed by of 6 REPUBLIC OF IRAQ v. BEATY Opinion of the Court the NDAA, 41; and that the new terrorism exception to sovereign immunity—which was created by the NDAA and codified at 28 U.S. C. A. (July Supp.)—was waived by the President with respect to Iraq pursuant to his NDAA authority. The Court of Appeals rejected that argument, holding instead, based on a close reading of the statutory text, that “the NDAA leaves intact our jurisdiction over cases that were pending against Iraq when the Congress en acted the NDAA.” The panel then reversed the District Court’s determination that the Simon respondents’ claims were untimely, at 119– 1196, and rebuffed Iraq’s request for dismissal under the political question doctrine, at 1196–1198. Iraq sought this Court’s review of both cases, asking us to determine whether under current law it remains sub ject to suit in the federal courts. We granted certiorari, U. S. (2009), and consolidated the cases. III A Section 103 of the EWSAA consists of a principal clause, followed by eight separate proviso clauses. The dispute in these cases concerns the second of the provisos. The principal clause and that proviso read: “The President may suspend the application of any provision of the Iraq Sanctions Act of 1990: Pro vided further, That the President may make inappli cable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terror ism” Iraq and the United States both read the quoted proviso’s residual clause as sweeping in the terrorism exception to foreign sovereign immunity. Certainly that reading is, as Cite as: 6 U. S. (2009) 7 Opinion of the Court even the Court acknowledged, “straightforward.” Title 28 U.S. C. ’s exception to sovereign immunity for state sponsors of terrorism stripped jurisdic tional immunity from a country unless “the foreign state was not designated as a state sponsor of terrorism.” This is a “provision of law” (indisputably) that “applies to” (strips immunity from) “countries that have supported terrorism” (as designated pursuant to certain statutory provisions). Of course the word “any” (in the phrase “any other provision of law”) has an “expansive meaning,” United giving us no warrant to limit the class of provisions of law that the President may waive. Because the President exercised his authority with respect to “all” provisions of law encom passed by the second proviso, his actions made “inapplicable” to Iraq. To a layperson, the notion of the President’s suspending the operation of a valid law might seem strange. But the practice is well established, at least in the sphere of for eign affairs. See United (canvassing prece dents from as early as the “inception of the national gov ernment”). The granting of Presidential waiver authority is particularly apt with respect to congressional elimina tion of foreign sovereign immunity, since the granting or denial of that immunity was historically the case-by-case prerogative of the Executive Branch. See, e.g., Ex parte Peru, 318 U.S. 78, 86–90 It is entirely unre markable that Congress, having taken upon itself in the FSIA to “free the Government” from the diplomatic pres sures engendered by the case-by-case approach, Verlinden, 461 U.S., at 8, would nonetheless think it prudent to afford the President some flexibility in unique circum stances such as these. 8 REPUBLIC OF IRAQ v. BEATY Opinion of the Court B The Court of Appeals in resisted the above con struction, primarily on the ground that the relevant text is found in a proviso. We have said that, at least presump tively, the “grammatical and logical scope [of a proviso] is confined to the subject-matter of the principal clause.” United 266 U.S. 31, 34–3 (19). Using that proposition as a guide, the panel strove mightily to construe the proviso as somehow restricting the principal clause of EWSAA which authorized the President to suspend “any provision of the Iraq Sanc tions Act of 1990,” In the Court of Appeals’ view, the second proviso related to that subsection of the Iraq Sanctions Act (referred to in the principal provision) which dictated that certain enu merated statutory provisions, including of the Foreign Assistance Act of 1961 and “all other provisions of law that impose sanctions against a country which has repeatedly provided support for acts of international ter rorism,” shall be fully enforced against Iraq. §86F(c), 104 Stat. 201 (emphasis added). The panel understood the second EWSAA proviso as doing nothing more than clari fying that the authority granted by the principal clause (to suspend any part of the Iraq Sanctions Act) included the power to make inapplicable to Iraq the various independ ent provisions of law that §86F(c) of the Iraq Sanctions Act instructed to be enforced against Iraq—which might otherwise continue to apply of their own force even with out the Iraq Sanctions Act. However, the residual clause of §86F(c) encompasses only provisions that “impose sanctions”; and, in the Court of Appeals’ view, that ex cludes which is a rule going instead to the jurisdiction of the federal courts. Thus, the EWSAA pro viso swept only as broadly as §86F(c), and therefore did not permit the President to waive the FSIA terrorism exception. Cite as: 6 U. S. (2009) 9 Opinion of the Court This is a highly sophisticated effort to construe the proviso as a limitation upon the principal clause. Ulti mately, however, we think that effort neither necessary nor successful. It is true that the “general office of a pro viso is to except something from the enacting clause, or to qualify and restrain its generality.” at 34. But its general (and perhaps appropriate) office is not, alas, its exclusive use. Use of a proviso “to state a general, independent rule,” Alaska v. United States, 4 U.S. 7, 106 (200), may be lazy drafting, but is hardly a novelty. See, e.g., McDonald v. United States, 279 U.S. 12, 21 (1929). itself came with the caveat that a proviso is sometimes used “to introduce independent legislation.” 266 U.S., at 3. We think that was its office here. The principal clause granted the President a power; the second proviso purported to grant him an additional power. It was not, on any fair reading, an exception to, qualification of, or restraint on the principal power. Contrasting the second EWSAA proviso to some of the other provisos illustrates the point. For example, the first proviso cautioned that “nothing in this section shall affect the applicability of the Iran-Iraq Arms Non-Proliferation Act of 1992,” and the third forbade the export of certain military equipment “under the authority of this section.” Both of these plainly sought to define and limit the authority granted by the principal clause. The fourth proviso, however, mandated that “sec tion 307 of the Foreign Assistance Act of 1961 shall not apply with respect to programs of international organiza tions for Iraq,” ib and it is impossible to see how that self-executing suspension of a distinct statute in any way cabined or clarified the principal clause’s authorization to suspend the Iraq Sanctions Act. There are other indications that the second proviso’s waiver authority was not limited to the statutory provi 10 REPUBLIC OF IRAQ v. BEATY Opinion of the Court sions embraced by §86F(c) of the Iraq Sanctions Act. If that is all it was meant to accomplish, why would Con gress not simply have tracked §86F(c)’s residual clause? Instead of restricting the President’s authority to statutes that “impose sanctions” on sponsors of terror, the EWSAA extended it to any statute that “applies” to such states. That is undoubtedly a broader class. Even if the best reading of the EWSAA proviso were that it encompassed only statutes that impose sanctions or prohibit assistance to state sponsors of terrorism, see 370 F.3d, at 4, we would disagree with the Court of Appeals’ conclusion that the FSIA exception is not such a law. Allowing lawsuits to proceed certainly has the extra benefit of facilitating the compensation of injured victims, but the fact that targeted only foreign states designated as sponsors of terrorism suggests that the law was intended as a sanction, to punish and deter undesirable conduct. Stripping the immunity that foreign sovereigns ordinarily enjoy is as much a sanction as elimi nating bilateral assistance or prohibiting export of muni tions (both of which are explicitly mandated by §86F(c) of the Iraq Sanctions Act). The application of this sanction affects the jurisdiction of the federal courts, but that fact alone does not deprive it of its character as a sanction. It may well be that when Congress enacted the EWSAA it did not have specifically in mind the terrorism exception to sovereign immunity. The Court of Appeals evidently found that to be of some importance. at 6 (noting there is “no reference in the legislative history to the FSIA”). But the whole value of a generally phrased resid ual clause, like the one used in the second proviso, is that it serves as a catchall for matters not specifically contem plated—known unknowns, in the happy phrase coined by Secretary of Defense Donald Rumsfeld. Pieces of Intelli gence: The Existential Poetry of Donald H. Rumsfeld 2 (H. Seely comp. 2003). If Congress wanted to limit the waiver Cite as: 6 U. S. (2009) 11 Opinion of the Court authority to particular statutes that it had in mind, it could have enumerated them individually. We cannot say with any certainty (for those who think this matters) whether the Congress that passed the EWSAA would have wanted the President to be permitted to waive Certainly the exposure of Iraq to billions of dollars in damages could be thought to jeopard ize the statute’s goal of speedy reconstruction of that country. At least the President thought so. And in the “vast external realm, with its important, complicated, delicate and manifold problems,” Curtiss-Wright Export courts ought to be especially wary of overriding apparent statutory text supported by execu tive interpretation in favor of speculation about a law’s true purpose.1 C Respondents advance two other objections to the straightforward interpretation of the EWSAA proviso. First, in a less compelling variant of the D. C. Circuit’s approach, the Simon respondents argue that “section 620A of the Foreign Assistance Act of 1961 or any other provi sion of law that applies to countries that have supported terrorism” means section 620A of the Foreign Assistance Act or any other provision of law cited therein. The provi sion would thus allow the President to make inapplicable to Iraq the statutes that precludes from being used to provide support to terror-sponsoring nations. Not to put too fine a point upon it, that is an absurd reading, not —————— 1 The eighth proviso of EWSAA says that absent further con gressional action, “the authorities contained in this section shall expire on September 30,” The Court of Appeals ex pressed doubt that Congress would have wanted federal-court jurisdic tion to disappear for a year and then suddenly return. v. Repub lic of Iraq, 6–7 Our analysis of the sunset provision, see Part V, infra, disposes of that concern. 12 REPUBLIC OF IRAQ v. BEATY Opinion of the Court only textually but in the result it produces: It would mean that the effect of the EWSAA was to permit the President to exclude Iraq from, rather than include it within, such beneficent legislation as the Food for Peace Act of 1966, 7 U.S. C. et seq. Both respondents also invoke the canon against implied repeals, 437 U.S. 13, but that canon has no force here. Iraq’s construction of the statute neither rests on implication nor effects a repeal. The EWSAA proviso expressly allowed the President to render certain statutes inapplicable; the only question is its scope. And it did not repeal anything, but merely granted the President authority to waive the application of par ticular statutes to a single foreign nation. Cf. Clinton v. City of New York, 24 U.S. 417, 443–44 D We must consider whether anything in the subsequent NDAA legislation changes the above analysis. In particu lar, of that statute specifically says that “[n]othing in section 103 of the [EWSAA] has ever au thorized, directly or indirectly, the making inapplicable of any provision of chapter 97 of title 28, United States Code, or the removal of the jurisdiction of any court of the United States.” 43. This looks like a ratifica tion by Congress of the conclusion reached in the decision. Is such a ratification effective? The NDAA is not subse quent legislative history, as Iraq claims, cf. Sullivan v. Finkelstein, (SCALIA, J., concur ring in part); rather, it is binding law, approved by the Legislature and signed by the President. Subsequent legislation can of course alter the meaning of an existing law for the future; and it can even alter the past operation of an existing law (constitutional objections aside) if it makes that retroactive operation clear. v. USI Cite as: 6 U. S. (2009) 13 Opinion of the Court Film Products, 11 U.S. 244, To tell the truth, however, we are unaware of any case dealing with the retroactive amendment of a law that had already expired, as the EWSAA had here. And it is doubtful whether Congress can retroactively claw back power it has given to the Executive, invalidating Presidential action that was valid when it was taken. Thankfully, however, we need not explore these difficulties here. In of the NDAA, the President was given authority to “waive any provision of this section with respect to Iraq.” 43. The President proceeded to waive “all” provisions of that section as to Iraq, includ ing (presumably) 73 Fed. Reg. 671. The Act can therefore add nothing to our analysis of the EWSAA. Respondent Beaty objects that the President cannot waive a fact. But neither can Congress legislate a fact. Section 1083(c)(4) could change our interpretation of the disputed EWSAA language only if it has some substantive effect, changing what would otherwise be the law. And if the President’s waiver does anything, it eliminates any sub stantive effect that the NDAA would otherwise have on cases to which Iraq is a party.2 IV Having concluded that the President did render 28 U.S. C. “inapplicable with respect to Iraq,” and that such action was within his assigned powers, we consider respondents’ argument that the inapplicability of —————— 2 Respondents contend that the NDAA waiver is irrelevant because the President’s veto of the initial version of the bill—which did not include the waiver authority—was defective. We need not inquire into that point, since Congress (evidently thinking the veto effective) en acted a new bill that was identical in all material respects but for the addition of presidential waiver authority. Since that authority would be nugatory, and the rest of the new law utterly redundant, if a law resulting from the former bill remained in effect, that law would have been effectively repealed. 14 REPUBLIC OF IRAQ v. BEATY Opinion of the Court the provision does not bar their claims, since they arise from Iraq’s conduct prior to the President’s waiver. Any other interpretation, they say, would cause the law to operate in a disfavored retroactive fashion. This argument proceeds as follows: The FSIA exception becomes “applicable” to a foreign state when that foreign state is designated as a sponsor of terrorism. In parallel fashion, rendering the exception “inapplicable” should be equivalent to removing the state’s designation. And under jurisdiction turned on the foreign state’s designation “at the time the act [giving rise to the claim] occurred.” On this reading, the President’s waiver meant only that Iraq could not be sued pursuant to for any future conduct, even though it technically re mained designated as a state sponsor of terrorism. Respondents support this interpretation with a policy argument and a canon of construction. First, why would Congress have sought to give Iraq better treatment than any other state that saw the error of its ways, reformed its behavior, and was accordingly removed from the list of terror-sponsoring regimes? See 370 F.3d, at 6 (calling such a result “perplexing”). Providing immunity for future acts is one thing, but wiping the slate clean is quite another. Second, this Court has often applied a presumption that, absent clear indication to the contrary, statutory amendments do not apply to pending cases. A narrow reading of “inapplica ble” would better comport with that presumption. As a textual matter, the proffered definition of “inappli cable” is unpersuasive. If a provision of law is “inapplica ble” then it cannot be applied; to “apply” a statute is “[t]o put [it] to use.” Webster’s New International Dictionary 131 (2d ed. 194). When the District Court exercised jurisdiction over these cases against Iraq, it surely was putting to use with respect to that country. Without the application of that provision, there was no Cite as: 6 U. S. (2009) 1 Opinion of the Court basis for subject-matter jurisdiction. 28 U.S. C. 1330(a). If Congress had wanted to authorize the Presi dent merely to cancel Iraq’s designation as a state sponsor of terrorism, then Congress could have done so. As a policy matter, moreover, we do not find that result particularly “perplexing.” As then-Judge Roberts ex plained in his separate opinion in Congress in 2003 “for the first time confronted the prospect that a friendly successor government would, in its infancy, be vulnerable under Section 160(a)(7) to crushing liability for the ac tions of its renounced predecessor.” (opin ion concurring in part and concurring in judgment) (em phasis in original). The Government was at the time spending considerable sums of money to rebuild Iraq, see Rogers, Congress Gives Initial Approval for War Funding, Airline Aid, Wall Street Journal, Apr. 4, 2003, p. A10. What would seem perplexing is converting a billion-dollar reconstruction project into a compensation scheme for a few of Saddam’s victims. As for the judicial presumption against retroactivity, that does not induce us to read the EWSAA proviso more narrowly. Laws that merely alter the rules of foreign sovereign immunity, rather than modify substantive rights, are not operating retroactively when applied to pending cases. Foreign sovereign immunity “reflects current political realities and relationships,” and its avail ability (or lack thereof) generally is not something on which parties can rely “in shaping their primary conduct.” Republic of 41 U.S. 677, ; see also In any event, the primary conduct by Iraq that forms the basis for these suits actually occurred prior to the enactment of the FSIA terrorism exception in 1996. See Saudi 07 U.S. 349, 31 That is, Iraq was immune from suit at the time it is alleged to have harmed respondents. The President’s elimination of 16 REPUBLIC OF IRAQ v. BEATY Opinion of the Court Iraq’s later subjection to suit could hardly have deprived respondents of any expectation they held at the time of their injury that they would be able to sue Iraq in United States courts. V Accordingly, the District Court lost jurisdiction over both suits in May 2003, when the President exercised his authority to make inapplicable with respect to Iraq. At that point, immunity kicked back in and the cases ought to have been dismissed, “the only function remaining to the court [being] that of announcing the fact and dismissing the cause.” Ex parte McCardle, 7 Wall. 06, 14 (1869). In respondents’ view, that is not fatal to their claims. They point to the eighth proviso in of the EWSAA: “Provided further, That the authorities contained in this section shall expire on September 30, or on the date of enactment of a subsequent Act authorizing assistance for Iraq and that specifically amends, re peals or otherwise makes inapplicable the authorities of this section, whichever occurs first.” The effect of this provision, they contend, is that the EWSAA waiver expired in 200,3 and that when it did so was revived, immunity was again stripped, and jurisdiction was restored. If that is true, then at the very least they ought to be permitted to refile their suits and claim equitable tolling for the period between 200 and the present, during which time they understandably relied on ’s holding. The premise, however, is flawed. It is true that the “authorities contained in” of the EWSAA expired, but expiration of the authorities (viz., the President’s —————— 3 The sunset date was extended by one year in a later bill. 108–106, Cite as: 6 U. S. (2009) 17 Opinion of the Court powers to suspend and make inapplicable certain laws) is not the same as cancellation of the effect of the President’s prior valid exercise of those authorities (viz., the restora tion of sovereign immunity). As Iraq points out, Congress has in other statutes provided explicitly that both the authorities granted and the effects of their exercise sunset on a particular date. E.g., 19 U.S. C. (“A waiver with respect to any country shall terminate on the day after the waiver authority granted by this subsection ceases to be effective with respect to such country”). The EWSAA contains no such language. We think the better reading of the eighth EWSAA pro viso (the sunset clause) is that the powers granted by the section could be exercised only for a limited time, but that actions taken by the President pursuant to those powers (e.g., suspension of the Iraq Sanctions Act) would not lapse on the sunset date. If it were otherwise, then the Iraq Sanctions Act—which has never been repealed, and which imposes a whole host of restrictions on relations with Iraq—would have returned to force in September 200. Nobody believes that is so. * * * When the President exercised his authority to make inapplicable with respect to Iraq all provisions of law that apply to countries that have supported terrorism, the exception to foreign sovereign immunity for state sponsors of terrorism became inoperative as against Iraq. As a result, the courts below lacked jurisdiction; we therefore need not reach Iraq’s alternative argument that the NDAA subsequently stripped jurisdiction over the cases. The judgments of the Court of Appeals are reversed. It is so ordered

Justice Stevens

majority

McNeil v. United States

https://www.courtlistener.com/opinion/112858/mcneil-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/112858/

1992-070

The Federal Tort Claims Act (FTCA) provides that an "action shall not be instituted upon a claim against the United States for money damages" unless the claimant has first exhausted his administrative remedies.[1] The question presented is whether such an action may be maintained when the claimant failed to exhaust his administrative remedies prior to filing suit, but did so before substantial progress was made in the litigation. I On March 6, 1989, petitioner, proceeding without counsel, lodged a complaint in the United States District Court for the Northern District of Illinois, alleging that the United States Public Health Service had caused him serious injuries while "conducting human research and experimentation on prisoners" in the custody of the Illinois Department of Corrections. *108 He invoked the federal court's jurisdiction under the FTCA and prayed for a judgment of $20 million. App. 3-7. Four months later, on July 7, 1989, petitioner submitted a claim for damages to the Department of Health and Human Services.[2] The Department denied the claim on July 21, 1989. On August 7, 1989, petitioner sent a letter to the District Court enclosing a copy of the Department's denial of his administrative claim and an affidavit in support of an earlier motion for appointment of counsel. Petitioner asked that the court accept the letter "as a proper request, whereas plaintiff can properly commence his legal action accordingly." Id., at 10. For reasons that are not entirely clear, the United States was not served with a copy of petitioner's complaint until July 30, 1990.[3]Id., at 2. On September 19, 1990, the United States moved to dismiss the complaint on the ground that petitioner's action was barred by the 6-month statute of limitation.[4] The motion was based on the assumption that *109 the complaint had been filed on April 15, 1990, when petitioner paid the court filing fees, and that that date was more than six months after the denial of petitioner's administrative claim. In response to the motion, petitioner submitted that the complaint was timely because his action had been commenced on March 6, 1989, the date when he actually lodged his complaint and the Clerk assigned it a docket number. The District Court accepted March 6, 1989, as the operative date of filing, but nonetheless granted the Government's motion to dismiss. Petitioner's suit was not out of time, the District Court reasoned, but, rather, premature. The court concluded that it lacked jurisdiction to entertain an action "commenced before satisfaction of the administrative exhaustion requirement under § 2675(a)." Id., at 21. The Court of Appeals for the Seventh Circuit affirmed. The court explained: "According to 28 U.S. C. § 2401(b), a tort claim against the United States must be `begun within six months after the date of mailing . . . of notice of final denial of the claim by the agency to which it was presented.' The administrative denial was mailed on July 21, 1989, so McNeil had between then and January 21, 1990, to begin his action. The complaint filed in March 1989 was too early. This left two options. Perhaps the document filed in March 1989 loitered on the docket, springing into force when the agency acted. Or perhaps the request for counsel in August 1989, during the six-month period, marks the real `beginning' of the action. The district court rejected both options, and McNeil, with the assistance of counsel appointed by this court, renews the arguments here. . . . . . *110 "March 1989 was too early. The suit did not linger, awaiting administrative action. Unless McNeil began a fresh suit within six months after July 21, 1989, he loses." 964 F.2d 647, 648-649 (1992). The court reviewed the materials filed in August 1989 and concluded that the District Court had not committed plain error in refusing to construe them as having commenced a new action.[5] Because decisions in other Circuits permit a prematurely filed FTCA action to proceed if no substantial progress has taken place in the litigation before the administrative remedies are exhausted, see Kubrick v. United States, 581 F.2d 1092, 1098 (CA3 1978), rev'd on other grounds, 444 U.S. 111 (1979), and Celestine v. Veterans Administration Hospital, 746 F.2d 1360, 1363 (CA8 1984),[6] we granted certiorari to resolve the conflict. 506 U.S. 1074 (1993). II As the case comes to us, we assume that the Court of Appeals correctly held that nothing done by petitioner after the denial of his administrative claim on July 21, 1989, constituted the commencement of a new action. The narrow question before us is whether his action was timely either because *111 it was commenced when he lodged his complaint with the District Court on March 6,1989, or because it should be viewed as having been "instituted" on the date when his administrative claim was denied. The text of the statute requires rejection of the first possibility. The command that an "action shall not be instituted. .. unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail" is unambiguous. We are not free to rewrite the statutory text. As of March 6, 1989, petitioner had neither presented his claim to the Public Health Service, nor had his claim been "finally denied" by that agency. As the Court of Appeals held, petitioner's complaint was filed too early. The statutory text does not speak with equal clarity to the argument that petitioner's subsequent receipt of a formal denial from the agency might be treated as the event that "instituted" his action. Petitioner argues the word "instituted" that is used in § 2675(a), see n. 1, supra, is not synonymous with the word "begun" in § 2401(b), see n. 4, supra, or with the word "commence" as used in certain other statutes and rules. See, e. g., Hallstrom v. Tillamook County, 493 U.S. 20 (1989). He suggests that an action is not "instituted" until the occurrence of the events that are necessary predicates to the invocation of the court's jurisdiction— namely, the filing of his complaint and the formal denial of the administrative claim. This construction, he argues, is consistent with the underlying purpose of § 2675(a): As long as no substantial progress has been made in the litigation by the time the claimant has exhausted his administrative remedies, the federal agency will have had a fair opportunity to investigate and possibly settle the claim before the parties *112 must assume the burden of costly and time-consuming litigation.[7] We find this argument unpersuasive. In its statutory context, we think the normal interpretation of the word "institute" is synonymous with the words "begin" and "commence." The most natural reading of the statute indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process. Every premature filing of an action under the FTCA imposes some burden on the judicial system[8] and on the Department of Justice which must assume the defense of such actions. Although the burden may be slight in an individual case, the statute governs the processing of a vast multitude of claims. The interest in orderly administration of this body of litigation is best served by adherence to the straightforward statutory command. *113 Moreover, given the clarity of the statutory text, it is certainly not a "trap for the unwary." It is no doubt true that there are cases in which a litigant proceeding without counsel may make a fatal procedural error, but the risk that a lawyer will be unable to understand the exhaustion requirement is virtually nonexistent. Our rules of procedure are based on the assumption that litigation is normally conducted by lawyers. While we have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed, see Haines v. Kerner, 404 U.S. 519 (1972); Estelle v. Gamble, 429 U.S. 97, 106 (1976),[9] and have held that some procedural rules must give way because of the unique circumstance of incarceration, see Houston v. Lack, 487 U.S. 266 (1988) (pro se prisoner's notice of appeal deemed filed at time of delivery to prison authorities), we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.[10] As we have noted before, "in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980). The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies. Because petitioner failed to heed that clear statutory command, the District Court properly dismissed his suit. The judgment of the Court of Appeals is Affirmed.

The Federal Tort Claims Act (FTCA) provides that an "action shall not be instituted upon a claim against the United States for money damages" unless the claimant has first exhausted his administrative remedies.[] The question presented is whether such an action may be maintained when the claimant failed to exhaust his administrative remedies prior to filing suit, but did so before substantial progress was made in the litigation. I On March 6, 989, petitioner, proceeding without counsel, lodged a complaint in the United States District Court for the Northern District of Illinois, alleging that the United States Public Health Service had caused him serious injuries while "conducting human research and experimentation on prisoners" in the custody of the Illinois Department of Corrections. *08 He invoked the federal court's jurisdiction under the FTCA and prayed for a judgment of $20 million. App. 3-7. Four months later, on July 7, 989, petitioner submitted a claim for damages to the Department of Health and Human Services.[2] The Department denied the claim on July 2, 989. On August 7, 989, petitioner sent a letter to the District Court enclosing a copy of the Department's denial of his administrative claim and an affidavit in support of an earlier motion for appointment of counsel. Petitioner asked that the court accept the letter "as a proper request, whereas plaintiff can properly commence his legal action accordingly." For reasons that are not entirely clear, the United States was not served with a copy of petitioner's complaint until July 30, 990.[3] at 2. On September 9, 990, the United States moved to dismiss the complaint on the ground that petitioner's action was barred by the 6-month statute of limitation.[] The motion was based on the assumption that *09 the complaint had been filed on April 5, 990, when petitioner paid the court filing fees, and that that date was more than six months after the denial of petitioner's administrative claim. In response to the motion, petitioner submitted that the complaint was timely because his action had been commenced on March 6, 989, the date when he actually lodged his complaint and the Clerk assigned it a docket number. The District Court accepted March 6, 989, as the operative date of filing, but nonetheless granted the Government's motion to dismiss. Petitioner's suit was not out of time, the District Court reasoned, but, rather, premature. The court concluded that it lacked jurisdiction to entertain an action "commenced before satisfaction of the administrative exhaustion requirement under 2675(a)." The Court of Appeals for the Seventh Circuit affirmed. The court explained: "According to 28 U.S. C. 20(b), a tort claim against the United States must be `begun within six months after the date of mailing of notice of final denial of the claim by the agency to which it was presented.' The administrative denial was mailed on July 2, 989, so McNeil had between then and January 2, 990, to begin his action. The complaint filed in March 989 was too early. This left two options. Perhaps the document filed in March 989 loitered on the docket, springing into force when the agency acted. Or perhaps the request for counsel in August 989, during the six-month period, marks the real `beginning' of the action. The district court rejected both options, and McNeil, with the assistance of counsel appointed by this court, renews the arguments here. *0 "March 989 was too early. The suit did not linger, awaiting administrative action. Unless McNeil began a fresh suit within six months after July 2, 989, he loses." The court reviewed the materials filed in August 989 and concluded that the District Court had not committed plain error in refusing to construe them as having commenced a new action.[5] Because decisions in other Circuits permit a prematurely filed FTCA action to proceed if no substantial progress has taken place in the litigation before the administrative remedies are exhausted, see rev'd on other grounds, and[6] we granted certiorari to resolve the conflict. II As the case comes to us, we assume that the Court of Appeals correctly held that nothing done by petitioner after the denial of his administrative claim on July 2, 989, constituted the commencement of a new action. The narrow question before us is whether his action was timely either because * it was commenced when he lodged his complaint with the District Court on March 6,989, or because it should be viewed as having been "instituted" on the date when his administrative claim was denied. The text of the statute requires rejection of the first possibility. The command that an "action shall not be instituted. unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail" is unambiguous. We are not free to rewrite the statutory text. As of March 6, 989, petitioner had neither presented his claim to the Public Health Service, nor had his claim been "finally denied" by that agency. As the Court of Appeals held, petitioner's complaint was filed too early. The statutory text does not speak with equal clarity to the argument that petitioner's subsequent receipt of a formal denial from the agency might be treated as the event that "instituted" his action. Petitioner argues the word "instituted" that is used in 2675(a), see n. is not synonymous with the word "begun" in 20(b), see n. or with the word "commence" as used in certain other statutes and rules. See, e. g., 93 U.S. 20 (989). He suggests that an action is not "instituted" until the occurrence of the events that are necessary predicates to the invocation of the court's jurisdiction— namely, the filing of his complaint and the formal denial of the administrative claim. This construction, he argues, is consistent with the underlying purpose of 2675(a): As long as no substantial progress has been made in the litigation by the time the claimant has exhausted his administrative remedies, the federal agency will have had a fair opportunity to investigate and possibly settle the claim before the parties *2 must assume the burden of costly and time-consuming litigation.[7] We find this argument unpersuasive. In its statutory context, we think the normal interpretation of the word "institute" is synonymous with the words "begin" and "commence." The most natural reading of the statute indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process. Every premature filing of an action under the FTCA imposes some burden on the judicial system[8] and on the Department of Justice which must assume the defense of such actions. Although the burden may be slight in an individual case, the statute governs the processing of a vast multitude of claims. The interest in orderly administration of this body of litigation is best served by adherence to the straightforward statutory command. *3 Moreover, given the clarity of the statutory text, it is certainly not a "trap for the unwary." It is no doubt true that there are cases in which a litigant proceeding without counsel may make a fatal procedural error, but the risk that a lawyer will be unable to understand the exhaustion requirement is virtually nonexistent. Our rules of procedure are based on the assumption that litigation is normally conducted by lawyers. While we have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed, see 0 U.S. 59 (972); 29 U.S. 97, 06 (976),[9] and have held that some procedural rules must give way because of the unique circumstance of incarceration, see 87 U.S. 266 (988) we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.[0] As we have noted before, "in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." Mohasco 7 U.S. 807, (980). The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies. Because petitioner failed to heed that clear statutory command, the District Court properly dismissed his suit. The judgment of the Court of Appeals is Affirmed.

Justice Alito

dissenting

Bostock v. Clayton County

https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/

https://www.courtlistener.com/api/rest/v3/clusters/4760997/

There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive. 2 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting Title VII of the Civil Rights Act of 1964 prohibits employ- ment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U.S. C. §2000e–2(a)(1). Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orienta- tion” to the list,1 and in recent years, bills have included “gender identity” as well.2 But to date, none has passed both Houses. Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to in- clude both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but con- tains provisions to protect religious liberty.3 This bill re- mains before a House Subcommittee. Because no such amendment of Title VII has been en- acted in accordance with the requirements in the Constitu- tion (passage in both Houses and presentment to the Pres- ident, Art. I, §7, cl. 2), Title VII’s prohibition of —————— 1 E.g., H. R. 166, 94th Cong., 1st Sess., §6 (1975); H. R. 451, 95th Cong., 1st Sess., §6 (1977); S. 2081, 96th Cong., 1st Sess. (1979); S. 1708, 97th Cong., 1st Sess. (1981); S. 430, 98th Cong., 1st Sess. (1983); S. 1432, 99th Cong., 1st Sess., §5 (1985); S. 464, 100th Cong., 1st Sess., §5 (1987); H. R. 655, 101st Cong., 1st Sess., §2 (1989); S. 574, 102d Cong., 1st Sess., §5 (1991); H. R. 423, 103d Cong., 1st Sess., §2 (1993); S. 932, 104th Cong., 1st Sess. (1995); H. R. 365, 105th Cong., 1st Sess., §2 (1997); H. R. 311, 106th Cong., 1st Sess., §2 (1999); H. R. 217, 107th Cong., 1st Sess., §2 (2001); S. 16, 108th Cong., 1st Sess., §§701–704 (2003); H. R. 288, 109th Cong., 1st Sess., §2 (2005). 2 See, e.g., H. R. 2015, 110th Cong., 1st Sess. (2007); H. R. 3017, 111th Cong., 1st Sess. (2009); H. R. 1397, 112th Cong., 1st Sess. (2011); H. R. 1755, 113th Cong., 1st Sess. (2013); H. R. 3185, 114th Cong., 1st Sess., §7 (2015); H. R. 2282, 115th Cong., 1st Sess., §7 (2017); H. R. 5, 116th Cong., 1st Sess. (2019). 3 H. R. 5331, 116th Cong., 1st Sess., §§4(b), (c) (2019). Cite as: 590 U. S. ____ (2020) 3 ALITO, J., dissenting discrimination because of “sex” still means what it has al- ways meant. But the Court is not deterred by these consti- tutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation.4 A more brazen abuse of our authority to interpret statutes is hard to recall. The Court tries to convince readers that it is merely en- forcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination be- cause of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were writ- ten.” A. Scalia & B. Garner, Reading Law: The Interpreta- tion of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual ori- entation––not to mention gender identity, a concept that was essentially unknown at the time. The Court attempts to pass off its decision as the inevita- ble product of the textualist school of statutory interpreta- tion championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Jus- tice Scalia excoriated––the theory that courts should “up- date” old statutes so that they better reflect the current val- ues of society. See A. Scalia, A Matter of Interpretation 22 —————— 4 Section 7(b) of H. R. 5 strikes the term “sex” in 42 U.S. C. §2000e–2 and inserts: “SEX (INCLUDING SEXUAL ORIENTATION AND GENDER IDENTITY).” 4 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting (1997). If the Court finds it appropriate to adopt this the- ory, it should own up to what it is doing.5 Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not. I A Title VII, as noted, prohibits discrimination “because of . . . sex,” §2000e–2(a)(1), and in 1964, it was as clear as clear could be that this meant discrimination because of the ge- netic and anatomical characteristics that men and women have at the time of birth. Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender status.”6 Ante, at 2. (Appendix A, infra, to —————— 5 That is what Judge Posner did in the Seventh Circuit case holding that Title VII prohibits discrimination because of sexual orientation. See Hively v. Ivy Tech Community College of Ind., 853 F.3d 339 (2017) (en banc). Judge Posner agreed with that result but wrote: “I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century- old statute a meaning of ‘sex discrimination’ that the Congress that en- acted it would not have accepted.” Id., at 357 (concurring opinion) (em- phasis added). 6 The Court does not define what it means by “transgender status,” but the American Psychological Association describes “transgender” as “[a]n umbrella term encompassing those whose gender identities or gender roles differ from those typically associated with the sex they were as- signed at birth.” A Glossary: Defining Transgender Terms, 49 Monitor on Psychology 32 (Sept. 2018), https://www.apa.org/monitor/2018/09/ce- corner-glossary. It defines “gender identity” as “[a]n internal sense of being male, female or something else, which may or may not correspond Cite as: 590 U. S. ____ (2020) 5 ALITO, J., dissenting this opinion includes the full definitions of “sex” in the un- abridged dictionaries in use in the 1960s.) In all those dictionaries, the primary definition of “sex” was essentially the same as that in the then-most recent edition of Webster’s New International Dictionary 2296 (def. 1) (2d ed. 1953): “[o]ne of the two divisions of organisms formed on the distinction of male and female.” See also American Heritage Dictionary 1187 (def. 1(a)) (1969) (“The property or quality by which organisms are classified ac- cording to their reproductive functions”); Random House Dictionary of the English Language 1307 (def. 1) (1966) (Random House Dictionary) (“the fact or character of being either male or female”); 9 Oxford English Dictionary 577 (def. 1) (1933) (“Either of the two divisions of organic beings distinguished as male and female respectively”). The Court does not dispute that this is what “sex” means in Title VII, although it coyly suggests that there is at least some support for a different and potentially relevant defi- nition. Ante, at 5. (I address alternative definitions below. See Part I–B–3, infra.) But the Court declines to stand on that ground and instead “proceed[s] on the assumption that ‘sex’ . . . refer[s] only to biological distinctions between male and female.” Ante, at 5. If that is so, it should be perfectly clear that Title VII does not reach discrimination because of sexual orientation or gender identity. If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologi- cally male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender. How then does the Court claim to avoid that conclusion? —————— to an individual’s sex assigned at birth or sex characteristics.” Ibid. Un- der these definitions, there is no apparent difference between discrimi- nation because of transgender status and discrimination because of gen- der identity. 6 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting The Court tries to cloud the issue by spending many pages discussing matters that are beside the point. The Court ob- serves that a Title VII plaintiff need not show that “sex” was the sole or primary motive for a challenged employ- ment decision or its sole or primary cause; that Title VII is limited to discrimination with respect to a list of specified actions (such as hiring, firing, etc.); and that Title VII protects individual rights, not group rights. See ante, at 5– 9, 11. All that is true, but so what? In cases like those before us, a plaintiff must show that sex was a “motivating factor” in the challenged employment action, 42 U.S. C. §2000e– 2(m), so the question we must decide comes down to this: if an individual employee or applicant for employment shows that his or her sexual orientation or gender identity was a “motivating factor” in a hiring or discharge decision, for ex- ample, is that enough to establish that the employer dis- criminated “because of . . . sex”? Or, to put the same ques- tion in different terms, if an employer takes an employment action solely because of the sexual orientation or gender identity of an employee or applicant, has that employer nec- essarily discriminated because of biological sex? The answers to those questions must be no, unless dis- crimination because of sexual orientation or gender identity inherently constitutes discrimination because of sex. The Court attempts to prove that point, and it argues, not merely that the terms of Title VII can be interpreted that way but that they cannot reasonably be interpreted any other way. According to the Court, the text is unambiguous. See ante, at 24, 27, 30. The arrogance of this argument is breathtaking. As I will show, there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Ti- tle VII was enacted. See Part III–B, infra. But the Court apparently thinks that this was because the Members were not “smart enough to realize” what its language means. Cite as: 590 U. S. ____ (2020) 7 ALITO, J., dissenting Hively v. Ivy Tech Community College of Ind., 853 F.3d 339, 357 (CA7 2017) (Posner, J., concurring). The Court seem- ingly has the same opinion about our colleagues on the Courts of Appeals, because until 2017, every single Court of Appeals to consider the question interpreted Title VII’s pro- hibition against sex discrimination to mean discrimination on the basis of biological sex. See Part III–C, infra. And for good measure, the Court’s conclusion that Title VII unam- biguously reaches discrimination on the basis of sexual ori- entation and gender identity necessarily means that the EEOC failed to see the obvious for the first 48 years after Title VII became law.7 Day in and day out, the Commission enforced Title VII but did not grasp what discrimination “because of . . . sex” unambiguously means. See Part III–C, infra. The Court’s argument is not only arrogant, it is wrong. It fails on its own terms. “Sex,” “sexual orientation,” and “gen- der identity” are different concepts, as the Court concedes. Ante, at 19 (“homosexuality and transgender status are dis- tinct concepts from sex”). And neither “sexual orientation” nor “gender identity” is tied to either of the two biological sexes. See ante, at 10 (recognizing that “discrimination on these bases” does not have “some disparate impact on one sex or another”). Both men and women may be attracted to members of the opposite sex, members of the same sex, or members of both sexes.8 And individuals who are born with —————— 7 The EEOC first held that “discrimination against a transgender indi- vidual because that person is transgender” violates Title VII in 2012 in Macy v. Holder, 2012 WL 1435995, *11 (Apr. 20, 2012), though it earlier advanced that position in an amicus brief in Federal District Court in 2011, ibid., n. 16. It did not hold that discrimination on the basis of sex- ual orientation violated Title VII until 2015. See Baldwin v. Foxx, 2015 WL 4397641 (July 15, 2015). 8 “Sexual orientation refers to a person’s erotic response tendency or sexual attractions, be they directed toward individuals of the same sex (homosexual), the other sex (heterosexual), or both sexes (bisexual).” 1 Barb. 8 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting the genes and organs of either biological sex may identify with a different gender.9 Using slightly different terms, the Court asserts again and again that discrimination because of sexual orientation or gender identity inherently or necessarily entails discrim- ination because of sex. See ante, at 2 (When an employer “fires an individual for being homosexual or transgender,” “[s]ex plays a necessary and undisguisable role in the deci- sion”); ante, at 9 (“[I]t is impossible to discriminate against a person for being homosexual or transgender without dis- criminating against that individual based on sex”); ante, at 11 (“[W]hen an employer discriminates against homosexual or transgender employees, [the] employer . . . inescapably intends to rely on sex in its decisionmaking”); ante, at 12 (“For an employer to discriminate against employees for be- ing homosexual or transgender, the employer must inten- tionally discriminate against individual men and women in part because of sex”); ante, at 14 (“When an employer fires an employee for being homosexual or transgender, it neces- sarily and intentionally discriminates against that individ- ual in part because of sex”); ante, at 19 (“[D]iscrimination based on homosexuality or transgender status necessarily entails discrimination based on sex”). But repetition of an assertion does not make it so, and the Court’s repeated as- sertion is demonstrably untrue. Contrary to the Court’s contention, discrimination be- cause of sexual orientation or gender identity does not in —————— Sadock, V. Sadock, & P. Ruiz, Comprehensive Textbook of Psychiatry 2061 (9th ed. 2009); see also American Heritage Dictionary 1607 (5th ed. 2011) (defining “sexual orientation” as “[t]he direction of a person’s sex- ual interest, as toward people of the opposite sex, the same sex, or both sexes”); Webster’s New College Dictionary 1036 (3d ed. 2008) (defining “sexual orientation” as “[t]he direction of one’s sexual interest toward members of the same, opposite, or both sexes”). 9 See n. 6, supra; see also Sadock, supra, at 2063 (“transgender” refers to “any individual who identifies with and adopts the gender role of a member of the other biological sex”). Cite as: 590 U. S. ____ (2020) 9 ALITO, J., dissenting and of itself entail discrimination because of sex. We can see this because it is quite possible for an employer to dis- criminate on those grounds without taking the sex of an in- dividual applicant or employee into account. An employer can have a policy that says: “We do not hire gays, lesbians, or transgender individuals.” And an employer can imple- ment this policy without paying any attention to or even knowing the biological sex of gay, lesbian, and transgender applicants. In fact, at the time of the enactment of Title VII, the United States military had a blanket policy of re- fusing to enlist gays or lesbians, and under this policy for years thereafter, applicants for enlistment were required to complete a form that asked whether they were “homosex- ual.” Appendix D, infra, at 88, 101. At oral argument, the attorney representing the employ- ees, a prominent professor of constitutional law, was asked if there would be discrimination because of sex if an em- ployer with a blanket policy against hiring gays, lesbians, and transgender individuals implemented that policy with- out knowing the biological sex of any job applicants. Her candid answer was that this would “not” be sex discrimina- tion.10 And she was right. The attorney’s concession was necessary, but it is fatal to the Court’s interpretation, for if an employer discriminates against individual applicants or employees without even knowing whether they are male or female, it is impossible to argue that the employer intentionally discriminated be- cause of sex. Contra, ante, at 19. An employer cannot in- tentionally discriminate on the basis of a characteristic of which the employer has no knowledge. And if an employer does not violate Title VII by discriminating on the basis of —————— 10 See Tr. of Oral Arg. in Nos. 17–1618, 17–1623, pp. 69–70 (“If there was that case, it might be the rare case in which sexual orientation dis- crimination is not a subset of sex”); see also id., at 69 (“Somebody who comes in and says I’m not going to tell you what my sex is, but, believe me, I was fired for my sexual orientation, that person will lose”). 10 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting sexual orientation or gender identity without knowing the sex of the affected individuals, there is no reason why the same employer could not lawfully implement the same pol- icy even if it knows the sex of these individuals. If an em- ployer takes an adverse employment action for a perfectly legitimate reason—for example, because an employee stole company property—that action is not converted into sex discrimination simply because the employer knows the em- ployee’s sex. As explained, a disparate treatment case re- quires proof of intent—i.e., that the employee’s sex moti- vated the firing. In short, what this example shows is that discrimination because of sexual orientation or gender iden- tity does not inherently or necessarily entail discrimination because of sex, and for that reason, the Court’s chief argu- ment collapses. Trying to escape the consequences of the attorney’s con- cession, the Court offers its own hypothetical: “Suppose an employer’s application form offered a sin- gle box to check if the applicant is either black or Cath- olic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not.” Ante, at 18. How this hypothetical proves the Court’s point is a mys- tery. A person who checked that box would presumably be black, Catholic, or both, and refusing to hire an applicant because of race or religion is prohibited by Title VII. Re- jecting applicants who checked a box indicating that they are homosexual is entirely different because it is impossible to tell from that answer whether an applicant is male or female. The Court follows this strange hypothetical with an even stranger argument. The Court argues that an applicant Cite as: 590 U. S. ____ (2020) 11 ALITO, J., dissenting could not answer the question whether he or she is homo- sexual without knowing something about sex. If the appli- cant was unfamiliar with the term “homosexual,” the appli- cant would have to look it up or ask what the term means. And because this applicant would have to take into account his or her sex and that of the persons to whom he or she is sexually attracted to answer the question, it follows, the Court reasons, that an employer could not reject this appli- cant without taking the applicant’s sex into account. See ante, at 18–19. This is illogical. Just because an applicant cannot say whether he or she is homosexual without knowing his or her own sex and that of the persons to whom the applicant is attracted, it does not follow that an employer cannot re- ject an applicant based on homosexuality without knowing the applicant’s sex. While the Court’s imagined application form proves noth- ing, another hypothetical case offered by the Court is tell- ing. But what it proves is not what the Court thinks. The Court posits: “Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and in- troduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the em- ployer intends, the answer depends entirely on whether the model employee is a man or a woman.” Ante, at 11. This example disproves the Court’s argument because it is perfectly clear that the employer’s motivation in firing the female employee had nothing to do with that employee’s sex. The employer presumably knew that this employee was a woman before she was invited to the fateful party. Yet the employer, far from holding her biological sex 12 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting against her, rated her a “model employee.” At the party, the employer learned something new, her sexual orienta- tion, and it was this new information that motivated her discharge. So this is another example showing that dis- crimination because of sexual orientation does not inher- ently involve discrimination because of sex. In addition to the failed argument just discussed, the Court makes two other arguments, more or less in passing. The first of these is essentially that sexual orientation and gender identity are closely related to sex. The Court argues that sexual orientation and gender identity are “inextrica- bly bound up with sex,” ante, at 10, and that discrimination on the basis of sexual orientation or gender identity in- volves the application of “sex-based rules,” ante, at 17. This is a variant of an argument found in many of the briefs filed in support of the employees and in the lower court decisions that agreed with the Court’s interpretation. All these vari- ants stress that sex, sexual orientation, and gender identity are related concepts. The Seventh Circuit observed that “[i]t would require considerable calisthenics to remove ‘sex’ from ‘sexual orientation.’ ” Hively, 853 F.3d, at 350.11 The Second Circuit wrote that sex is necessarily “a factor in sex- ual orientation” and further concluded that “sexual orien- tation is a function of sex.” 883 F.3d 100, 112–113 (CA2 2018) (en banc). Bostock’s brief and those of amici support- ing his position contend that sexual orientation is “a sex- based consideration.”12 Other briefs state that sexual ori- entation is “a function of sex”13 or is “intrinsically related to —————— 11 See also Brief for William N. Eskridge Jr. et al. as Amici Curiae 2 (“[T]here is no reasonable way to disentangle sex from same-sex attrac- tion or transgender status”). 12 Brief for Petitioner in No. 17–1618, at 14; see also Brief for Southern Poverty Law Center et al. as Amici Curiae 7–8. 13 Brief for Scholars Who Study the LGB Population as Amici Curiae in Nos. 17–1618, 17–1623, p. 10. Cite as: 590 U. S. ____ (2020) 13 ALITO, J., dissenting sex.”14 Similarly, Stephens argues that sex and gender identity are necessarily intertwined: “By definition, a transgender person is someone who lives and identifies with a sex different than the sex assigned to the person at birth.”15 It is curious to see this argument in an opinion that pur- ports to apply the purest and highest form of textualism be- cause the argument effectively amends the statutory text. Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with ref- erence to, “sex.” Many things are related to sex. Think of all the nouns other than “orientation” that are commonly modified by the adjective “sexual.” Some examples yielded by a quick computer search are “sexual harassment,” “sex- ual assault, “sexual violence,” “sexual intercourse,” and “sexual content.” Does the Court really think that Title VII prohibits dis- crimination on all these grounds? Is it unlawful for an em- ployer to refuse to hire an employee with a record of sexual harassment in prior jobs? Or a record of sexual assault or violence? To be fair, the Court does not claim that Title VII prohib- its discrimination because of everything that is related to sex. The Court draws a distinction between things that are “inextricably” related and those that are related in “some vague sense.” Ante, at 10. Apparently the Court would graft onto Title VII some arbitrary line separating the things that are related closely enough and those that are not.16 And it would do this in the name of high textualism. —————— 14 Brief for American Psychological Association et al. as Amici Curiae 11. 15 Reply Brief for Respondent Aimee Stephens in No. 18–107, p. 5. 16 Notably, Title VII itself already suggests a line, which the Court ig- nores. The statute specifies that the terms “because of sex” and “on the basis of sex” cover certain conditions that are biologically tied to sex, 14 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting An additional argument made in passing also fights the text of Title VII and the policy it reflects. The Court pro- claims that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.” Ante, at 9. That is the policy view of many people in 2020, and perhaps Congress would have amended Title VII to implement it if this Court had not intervened. But that is not the policy embodied in Title VII in its current form. Title VII prohib- its discrimination based on five specified grounds, and nei- ther sexual orientation nor gender identity is on the list. As long as an employer does not discriminate based on one of the listed grounds, the employer is free to decide for itself which characteristics are “relevant to [its] employment de- cisions.” Ibid. By proclaiming that sexual orientation and gender identity are “not relevant to employment decisions,” the Court updates Title VII to reflect what it regards as 2020 values. The Court’s remaining argument is based on a hypothet- ical that the Court finds instructive. In this hypothetical, an employer has two employees who are “attracted to men,” and “to the employer’s mind” the two employees are “mate- rially identical” except that one is a man and the other is a woman. Ante, at 9 (emphasis added). The Court reasons that if the employer fires the man but not the woman, the employer is necessarily motivated by the man’s biological sex. Ante, at 9–10. After all, if two employees are identical in every respect but sex, and the employer fires only one, what other reason could there be? The problem with this argument is that the Court loads the dice. That is so because in the mind of an employer who does not want to employ individuals who are attracted to —————— namely, “pregnancy, childbirth, [and] related medical conditions.” 42 U.S. C. §2000e(k). This definition should inform the meaning of “be- cause of sex” in Title VII more generally. Unlike pregnancy, neither sex- ual orientation nor gender identity is biologically linked to women or men. Cite as: 590 U. S. ____ (2020) 15 ALITO, J., dissenting members of the same sex, these two employees are not ma- terially identical in every respect but sex. On the contrary, they differ in another way that the employer thinks is quite material. And until Title VII is amended to add sexual ori- entation as a prohibited ground, this is a view that an em- ployer is permitted to implement. As noted, other than pro- hibiting discrimination on any of five specified grounds, “race, color, religion, sex, [and] national origin.” 42 U.S. C. §2000e–2(a)(1), Title VII allows employers to decide whether two employees are “materially identical.” Even id- iosyncratic criteria are permitted; if an employer thinks that Scorpios make bad employees, the employer can refuse to hire Scorpios. Such a policy would be unfair and foolish, but under Title VII, it is permitted. And until Title VII is amended, so is a policy against employing gays, lesbians, or transgender individuals. Once this is recognized, what we have in the Court’s hy- pothetical case are two employees who differ in two ways–– sex and sexual orientation––and if the employer fires one and keeps the other, all that can be inferred is that the em- ployer was motivated either entirely by sexual orientation, entirely by sex, or in part by both. We cannot infer with any certainty, as the hypothetical is apparently meant to suggest, that the employer was motivated even in part by sex. The Court harps on the fact that under Title VII a pro- hibited ground need not be the sole motivation for an ad- verse employment action, see ante, at 10–11, 14–15, 21, but its example does not show that sex necessarily played any part in the employer’s thinking. The Court tries to avoid this inescapable conclusion by arguing that sex is really the only difference between the two employees. This is so, the Court maintains, because both employees “are attracted to men.” Ante, at 9–10. Of course, the employer would couch its objection to the man differently. It would say that its objection was his sexual orientation. So this may appear to leave us with a battle of 16 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting labels. If the employer’s objection to the male employee is characterized as attraction to men, it seems that he is just like the woman in all respects except sex and that the em- ployer’s disparate treatment must be based on that one dif- ference. On the other hand, if the employer’s objection is sexual orientation or homosexuality, the two employees dif- fer in two respects, and it cannot be inferred that the dis- parate treatment was due even in part to sex. The Court insists that its label is the right one, and that presumably is why it makes such a point of arguing that an employer cannot escape liability under Title VII by giving sex discrimination some other name. See ante, at 14, 17. That is certainly true, but so is the opposite. Something that is not sex discrimination cannot be converted into sex discrimination by slapping on that label. So the Court can- not prove its point simply by labeling the employer’s objec- tion as “attract[ion] to men.” Ante, at 9–10. Rather, the Court needs to show that its label is the correct one. And a labeling standoff would not help the Court because that would mean that the bare text of Title VII does not unambiguously show that its interpretation is right. The Court would have no justification for its stubborn refusal to look any further. As it turns out, however, there is no standoff. It can eas- ily be shown that the employer’s real objection is not “at- tract[ion] to men” but homosexual orientation. In an effort to prove its point, the Court carefully includes in its example just two employees, a homosexual man and a heterosexual woman, but suppose we add two more indi- viduals, a woman who is attracted to women and a man who is attracted to women. (A large employer will likely have applicants and employees who fall into all four categories, and a small employer can potentially have all four as well.) We now have the four exemplars listed below, with the dis- charged employees crossed out: Cite as: 590 U. S. ____ (2020) 17 ALITO, J., dissenting Man attracted to men Woman attracted to men Woman attracted to women Man attracted to women The discharged employees have one thing in common. It is not biological sex, attraction to men, or attraction to women. It is attraction to members of their own sex—in a word, sexual orientation. And that, we can infer, is the em- ployer’s real motive. In sum, the Court’s textual arguments fail on their own terms. The Court tries to prove that “it is impossible to dis- criminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” ante, at 9, but as has been shown, it is en- tirely possible for an employer to do just that. “[H]omosex- uality and transgender status are distinct concepts from sex,” ante, at 19, and discrimination because of sexual ori- entation or transgender status does not inherently or nec- essarily constitute discrimination because of sex. The Court’s arguments are squarely contrary to the statutory text. But even if the words of Title VII did not definitively re- fute the Court’s interpretation, that would not justify the Court’s refusal to consider alternative interpretations. The Court’s excuse for ignoring everything other than the bare statutory text is that the text is unambiguous and therefore no one can reasonably interpret the text in any way other than the Court does. Unless the Court has met that high standard, it has no justification for its blinkered approach. And to say that the Court’s interpretation is the only possi- ble reading is indefensible. B Although the Court relies solely on the arguments dis- cussed above, several other arguments figure prominently in the decisions of the lower courts and in briefs submitted 18 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting by or in support of the employees. The Court apparently finds these arguments unpersuasive, and so do I, but for the sake of completeness, I will address them briefly. 1 One argument, which relies on our decision in Price Wa- terhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opin- ion), is that discrimination because of sexual orientation or gender identity violates Title VII because it constitutes pro- hibited discrimination on the basis of sex stereotypes. See 883 F.3d, at 119–123; Hively, 853 F.3d, at 346; 884 F.3d 560, 576–577 (CA6 2018). The argument goes like this. Ti- tle VII prohibits discrimination based on stereotypes about the way men and women should behave; the belief that a person should be attracted only to persons of the opposite sex and the belief that a person should identify with his or her biological sex are examples of such stereotypes; there- fore, discrimination on either of these grounds is unlawful. This argument fails because it is based on a faulty prem- ise, namely, that Title VII forbids discrimination based on sex stereotypes. It does not. It prohibits discrimination be- cause of “sex,” and the two concepts are not the same. See Price Waterhouse, 490 U.S., at 251. That does not mean, however, that an employee or applicant for employment cannot prevail by showing that a challenged decision was based on a sex stereotype. Such evidence is relevant to prove discrimination because of sex, and it may be convinc- ing where the trait that is inconsistent with the stereotype is one that would be tolerated and perhaps even valued in a person of the opposite sex. See ibid. Much of the plaintiff ’s evidence in Price Waterhouse was of this nature. The plaintiff was a woman who was passed over for partnership at an accounting firm, and some of the adverse comments about her work appeared to criticize her for being forceful and insufficiently “feminin[e].” Id., at 235–236. Cite as: 590 U. S. ____ (2020) 19 ALITO, J., dissenting The main issue in Price Waterhouse––the proper alloca- tion of the burdens of proof in a so-called mixed motives Ti- tle VII case—is not relevant here, but the plurality opinion, endorsed by four Justices, commented on the issue of sex stereotypes. The plurality observed that “sex stereotypes do not inevitably prove that gender played a part in a par- ticular employment decision” but “can certainly be evidence that gender played a part.” Id., at 251.17 And the plurality made it clear that “[t]he plaintiff must show that the em- ployer actually relied on her gender in making its decision.” Ibid. Plaintiffs who allege that they were treated unfavorably because of their sexual orientation or gender identity are not in the same position as the plaintiff in Price Water- house. In cases involving discrimination based on sexual orientation or gender identity, the grounds for the em- ployer’s decision—that individuals should be sexually at- tracted only to persons of the opposite biological sex or should identify with their biological sex—apply equally to men and women. “[H]eterosexuality is not a female stereo- type; it not a male stereotype; it is not a sex- specific stereotype at all.” Hively, 853 F.3d, at 370 (Sykes, J., dissenting). To be sure, there may be cases in which a gay, lesbian, or transgender individual can make a claim like the one in Price Waterhouse. That is, there may be cases where traits or behaviors that some people associate with gays, lesbians, or transgender individuals are tolerated or valued in per- sons of one biological sex but not the other. But that is a —————— 17 Two other Justices concurred in the judgment but did not comment on the issue of stereotypes. See id., at 258–261 (opinion of White, J.); id., at 261–279 (opinion of O’Connor, J.). And Justice Kennedy reiterated on behalf of the three Justices in dissent that “Title VII creates no independ- ent cause of action for sex stereotyping,” but he added that “[e]vidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent.” Id., at 294. 20 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting different matter. 2 A second prominent argument made in support of the re- sult that the Court now reaches analogizes discrimination against gays and lesbians to discrimination against a per- son who is married to or has an intimate relationship with a person of a different race. Several lower court cases have held that discrimination on this ground violates Title VII. See, e.g., Holcomb v. Iona College, 521 F.3d 130 (CA2 2008); Parr v. Woodmen of World Life Ins. Co., 791 F.2d 888 (CA11 1986). And the logic of these decisions, it is argued, applies equally where an employee or applicant is treated unfavor- ably because he or she is married to, or has an intimate re- lationship with, a person of the same sex. This argument totally ignores the historically rooted rea- son why discrimination on the basis of an interracial rela- tionship constitutes race discrimination. And without tak- ing history into account, it is not easy to see how the decisions in question fit the terms of Title VII. Recall that Title VII makes it unlawful for an employer to discriminate against an individual “because of such indi- vidual’s race.” 42 U.S. C. §2000e–2(a) (emphasis added). So if an employer is happy to employ whites and blacks but will not employ any employee in an interracial relationship, how can it be said that the employer is discriminating against either whites or blacks “because of such individual’s race”? This employer would be applying the same rule to all its employees regardless of their race. The answer is that this employer is discriminating on a ground that history tells us is a core form of race discrimi- nation.18 “It would require absolute blindness to the history —————— 18 Notably, Title VII recognizes that in light of history distinctions on the basis of race are always disadvantageous, but it permits certain dis- Cite as: 590 U. S. ____ (2020) 21 ALITO, J., dissenting of racial discrimination in this country not to understand what is at stake in such cases . . . . A prohibition on ‘race- mixing’ was . . . grounded in bigotry against a particular race and was an integral part of preserving the rigid hier- archical distinction that denominated members of the black race as inferior to whites.” 883 F.3d, at 158–159 (Lynch, J., dissenting). Discrimination because of sexual orientation is different. It cannot be regarded as a form of sex discrimination on the ground that applies in race cases since discrimination be- cause of sexual orientation is not historically tied to a pro- ject that aims to subjugate either men or women. An em- ployer who discriminates on this ground might be called “homophobic” or “transphobic,” but not sexist. See Wittmer v. Phillips 66 Co., 915 F.3d 328, 338 (CA5 2019) (Ho, J., concurring). 3 The opinion of the Court intimates that the term “sex” was not universally understood in 1964 to refer just to the categories of male and female, see ante, at 5, and while the Court does not take up any alternative definition as a ground for its decision, I will say a word on this subject. As previously noted, the definitions of “sex” in the una- bridged dictionaries in use in the 1960s are reproduced in Appendix A, infra. Anyone who examines those definitions can see that the primary definition in every one of them re- fers to the division of living things into two groups, male and female, based on biology, and most of the definitions further down the list are the same or very similar. In addi- tion, some definitions refer to heterosexual sex acts. See —————— tinctions based on sex. Title 42 U.S. C. §2000e–2(e)(1) allows for “in- stances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of [a] partic- ular business or enterprise.” Race is wholly absent from this list. 22 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting Random House Dictionary 1307 (“coitus,” “sexual inter- course” (defs. 5–6)); American Heritage Dictionary, at 1187 (“sexual intercourse” (def. 5)).19 Aside from these, what is there? One definition, “to neck passionately,” Random House Dictionary 1307 (def. 8), re- fers to sexual conduct that is not necessarily heterosexual. But can it be seriously argued that one of the aims of Title VII is to outlaw employment discrimination against em- ployees, whether heterosexual or homosexual, who engage in necking? And even if Title VII had that effect, that is not what is at issue in cases like those before us. That brings us to the two remaining subsidiary defini- tions, both of which refer to sexual urges or instincts and their manifestations. See the fourth definition in the Amer- ican Heritage Dictionary, at 1187 (“the sexual urge or in- stinct as it manifests itself in behavior”), and the fourth def- inition in both Webster’s Second and Third (“[p]henomena of sexual instincts and their manifestations,” Webster’s New International Dictionary, at 2296 (2d ed.); Webster’s Third New International Dictionary 2081 (1966)). Since both of these come after three prior definitions that refer to men and women, they are most naturally read to have the same association, and in any event, is it plausible that Title VII prohibits discrimination based on any sexual urge or instinct and its manifestations? The urge to rape? Viewing all these definitions, the overwhelming impact is that discrimination because of “sex” was understood during the era when Title VII was enacted to refer to men and women. (The same is true of current definitions, which are reproduced in Appendix B, infra.) This no doubt explains why neither this Court nor any of the lower courts have tried to make much of the dictionary definitions of sex just —————— 19 See American Heritage Dictionary 1188 (1969) (defining “sexual in- tercourse”); Webster’s Third New International Dictionary 2082 (1966) (same); Random House Dictionary of the English Language 1308 (1966) (same). Cite as: 590 U. S. ____ (2020) 23 ALITO, J., dissenting discussed. II A So far, I have not looked beyond dictionary definitions of “sex,” but textualists like Justice Scalia do not confine their inquiry to the scrutiny of dictionaries. See Manning, Tex- tualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 109 (2001). Dictionary definitions are valuable because they are evidence of what people at the time of a statute’s enactment would have understood its words to mean. Ibid. But they are not the only source of relevant evidence, and what matters in the end is the answer to the question that the evidence is gathered to resolve: How would the terms of a statute have been understood by ordinary people at the time of enactment? Justice Scalia was perfectly clear on this point. The words of a law, he insisted, “mean what they conveyed to reasonable people at the time.” Reading Law, at 16 (empha- sis added).20 Leading proponents of Justice Scalia’s school of textual- ism have expounded on this principle and explained that it is grounded on an understanding of the way language works. As Dean John F. Manning explains, “the meaning of language depends on the way a linguistic community uses words and phrases in context.” What Divides Textu- alists From Purposivists? 106 Colum. L. Rev. 70, 78 (2006). “[O]ne can make sense of others’ communications only by placing them in their appropriate social and linguistic con- text,” id., at 79–80, and this is no less true of statutes than any other verbal communications. “[S]tatutes convey meaning only because members of a relevant linguistic —————— 20 See also Chisom v. Roemer, 501 U.S. 380, 405 (1991) (Scalia, J., dis- senting) (“We are to read the words of [a statutory] text as any ordinary Member of Congress would have read them . . . and apply the meaning so determined”). 24 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting community apply shared background conventions for un- derstanding how particular words are used in particular contexts.” Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2457 (2003). Therefore, judges should ascribe to the words of a statute “what a reasonable person conver- sant with applicable social conventions would have under- stood them to be adopting.” Manning, 106 Colum. L. Rev., at 77. Or, to put the point in slightly different terms, a judge interpreting a statute should ask “ ‘what one would ordinarily be understood as saying, given the circumstances in which one said it.’ ” Manning, 116 Harv. L. Rev., at 2397– 2398. Judge Frank Easterbrook has made the same points: “Words are arbitrary signs, having meaning only to the extent writers and readers share an understanding. . . . Language in general, and legislation in particular, is a social enterprise to which both speakers and listeners contribute, drawing on background understandings and the structure and circumstances of the utterance.” Herrmann v. Cencom Cable Assocs., Inc., 978 F.2d 978, 982 (CA7 1992). Consequently, “[s]licing a statute into phrases while ig- noring . . . the setting of the enactment . . . is a formula for disaster.” Ibid.; see also Continental Can Co. v. Chicago Truck Drivers, Helpers and Warehouse Workers Union (In- dependent) Pension Fund, 916 F.2d 1154, 1157 (CA7 1990) (“You don’t have to be Ludwig Wittgenstein or Hans-Georg Gadamer to know that successful communication depends on meanings shared by interpretive communities”). Thus, when textualism is properly understood, it calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what its words were understood to mean at the time of en- actment. Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a Cite as: 590 U. S. ____ (2020) 25 ALITO, J., dissenting distant and utterly unknown civilization. Statutes consist of communications between members of a particular lin- guistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time. For this reason, it is imperative to consider how Ameri- cans in 1964 would have understood Title VII’s prohibition of discrimination because of sex. To get a picture of this, we may imagine this scene. Suppose that, while Title VII was under consideration in Congress, a group of average Amer- icans decided to read the text of the bill with the aim of writing or calling their representatives in Congress and conveying their approval or disapproval. What would these ordinary citizens have taken “discrimination because of sex” to mean? Would they have thought that this language prohibited discrimination because of sexual orientation or gender identity? B The answer could not be clearer. In 1964, ordinary Amer- icans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination be- cause of sexual orientation, much less gender identity. The ordinary meaning of discrimination because of “sex” was discrimination because of a person’s biological sex, not sex- ual orientation or gender identity. The possibility that dis- crimination on either of these grounds might fit within some exotic understanding of sex discrimination would not have crossed their minds. 1 In 1964, the concept of prohibiting discrimination “be- cause of sex” was no novelty. It was a familiar and well- understood concept, and what it meant was equal treat- ment for men and women. 26 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting Long before Title VII was adopted, many pioneering state and federal laws had used language substantively indistin- guishable from Title VII’s critical phrase, “discrimination because of sex.” For example, the California Constitution of 1879 stipulated that no one, “on account of sex, [could] be disqualified from entering upon or pursuing any lawful business, vocation, or profession.” Art. XX, §18 (emphasis added). It also prohibited a student’s exclusion from any state university department “on account of sex.” Art. IX, §9; accord, Mont. Const., Art. XI, §9 (1889). Wyoming’s first Constitution proclaimed broadly that “[b]oth male and female citizens of this state shall equally enjoy all civil, political and religious rights and privileges,” Art. VI, §1 (1890), and then provided specifically that “[i]n none of the public schools . . . shall distinction or discrimi- nation be made on account of sex,” Art. VII, §10 (emphasis added); see also §16 (the “university shall be equally open to students of both sexes”). Washington’s Constitution like- wise required “ample provision for the education of all chil- dren . . . without distinction or preference on account of . . . sex.” Art. IX, §1 (1889) (emphasis added). The Constitution of Utah, adopted in 1895, provided that the right to vote and hold public office “shall not be denied or abridged on account of sex.” Art. IV, §1 (emphasis added). And in the next sentence it made clear what “on account of sex” meant, stating that “[b]oth male and female citizens . . . shall enjoy equally all civil, political and religious rights and privileges.” Ibid. The most prominent example of a provision using this language was the Nineteenth Amendment, ratified in 1920, which bans the denial or abridgment of the right to vote “on account of sex.” U. S. Const., Amdt. 19. Similar language appeared in the proposal of the National Woman’s Party for an Equal Rights Amendment. As framed in 1921, this pro- posal forbade all “political, civil or legal disabilities or ine- qualities on account of sex, [o]r on account of marriage.” Cite as: 590 U. S. ____ (2020) 27 ALITO, J., dissenting Women Lawyers Meet: Representatives of 20 States En- dorse Proposed Equal Rights Amendment, N. Y. Times, Sept. 16, 1921, p. 10. Similar terms were used in the precursor to the Equal Pay Act. Introduced in 1944 by Congresswoman Winifred C. Stanley, it proclaimed that “[d]iscrimination against em- ployees, in rates of compensation paid, on account of sex” was “contrary to the public interest.” H. R. 5056, 78th Cong., 2d Sess. In 1952, the new Constitution for Puerto Rico, which was approved by Congress, 66 Stat. 327, prohibited all “discrim- ination . . . on account of . . . sex,” Art. II, Bill of Rights §1 (emphasis added), and in the landmark Immigration and Nationality Act of 1952, Congress outlawed discrimination in naturalization “because of . . . sex.” 8 U.S. C. §1422 (em- phasis added). In 1958, the International Labour Organisation, a United Nations agency of which the United States is a member, recommended that nations bar employment discrimination “made on the basis of . . . sex.” Convention (No. 111) Con- cerning Discrimination in Respect of Employment and Oc- cupation, Art. 1(a), June 25, 1958, 362 U. N. T. S. 32 (em- phasis added). In 1961, President Kennedy ordered the Civil Service Commission to review and modify personnel policies “to as- sure that selection for any career position is hereinafter made solely on the basis of individual merit and fitness, without regard to sex.”21 He concurrently established a “Commission on the Status of Women” and directed it to recommend policies “for overcoming discriminations in gov- ernment and private employment on the basis of sex.” Exec. Order No. 10980, 3 CFR 138 (1961 Supp.) (emphasis —————— 21 J. Kennedy, Statement by the President on the Establishment of the President’s Commission on the Status of Women 3 (Dec. 14, 1961) (emphasis added), https://www.jfklibrary.org/asset-viewer/archives/ JFKPOF/093/JFKPOF-093-004. 28 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting added). In short, the concept of discrimination “because of,” “on account of,” or “on the basis of ” sex was well understood. It was part of the campaign for equality that had been waged by women’s rights advocates for more than a century, and what it meant was equal treatment for men and women.22 2 Discrimination “because of sex” was not understood as having anything to do with discrimination because of sex- ual orientation or transgender status. Any such notion would have clashed in spectacular fashion with the societal norms of the day. For most 21st-century Americans, it is painful to be re- minded of the way our society once treated gays and lesbi- ans, but any honest effort to understand what the terms of Title VII were understood to mean when enacted must take into account the societal norms of that time. And the plain truth is that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment. —————— 22 Analysis of the way Title VII’s key language was used in books and articles during the relevant time period supports this conclusion. A study searched a vast database of documents from that time to determine how the phrase “discriminate against . . . because of [some trait]” was used. Phillips, The Overlooked Evidence in the Title VII Cases: The Lin- guistic (and Therefore Textualist) Principle of Compositionality (manu- script, at 3) (May 11, 2020) (brackets in original), https://ssrn.com/ abstract=3585940. The study found that the phrase was used to denote discrimination against “someone . . . motivated by prejudice, or biased ideas or attitudes . . . directed at people with that trait in particular.” Id., at 7 (emphasis deleted). In other words, “discriminate against” was “associated with negative treatment directed at members of a discrete group.” Id., at 5. Thus, as used in 1964, “discrimination because of sex” would have been understood to mean discrimination against a woman or a man based on “unfair beliefs or attitudes” about members of that par- ticular sex. Id., at 7. Cite as: 590 U. S. ____ (2020) 29 ALITO, J., dissenting In its then-most recent Diagnostic and Statistical Manual of Mental Disorders (1952) (DSM–I), the American Psychi- atric Association (APA) classified same-sex attraction as a “sexual deviation,” a particular type of “sociopathic person- ality disturbance,” id., at 38–39, and the next edition, is- sued in 1968, similarly classified homosexuality as a “sex- ual deviatio[n],” Diagnostic and Statistical Manual of Mental Disorders 44 (2d ed.) (DSM–II). It was not until the sixth printing of the DSM–II in 1973 that this was changed.23 Society’s treatment of homosexuality and homosexual conduct was consistent with this understanding. Sodomy was a crime in every State but Illinois, see W. Eskridge, Dishonorable Passions 387–407 (2008), and in the District of Columbia, a law enacted by Congress made sodomy a fel- ony punishable by imprisonment for up to 10 years and per- mitted the indefinite civil commitment of “sexual psycho- path[s],” Act of June 9, 1948, §§104, 201–207, 62 Stat. 347– 349.24 —————— 23 APA, Homosexuality and Sexual Orientation Disturbance: Proposed Change in DSM–II, 6th Printing, p. 44 (APA Doc. Ref. No. 730008, 1973) (reclassifying “homosexuality” as a “[s]exual orientation disturbance,” a category “for individuals whose sexual interests are directed primarily toward people of the same sex and who are either disturbed by . . . or wish to change their sexual orientation,” and explaining that “homosex- uality . . . by itself does not constitute a psychiatric disorder”); see also APA, Diagnostic and Statistical Manual of Mental Disorders 281–282 (3d ed. 1980) (DSM–III) (similarly creating category of “Ego-dystonic Homo- sexuality” for “homosexuals for whom changing sexual orientation is a persistent concern,” while observing that “homosexuality itself is not con- sidered a mental disorder”); Obergefell v. Hodges, 576 U.S. 644, 661 (2015). 24 In 1981, after achieving home rule, the District attempted to decrim- inalize sodomy, see D. C. Act No. 4–69, but the House of Representatives vetoed the bill, H. Res. 208, 97th Cong., 1st Sess. (1981); 127 Cong. Rec. 22764–22779 (1981). Sodomy was not decriminalized in the District un- til 1995. See Anti-Sexual Abuse Act of 1994, §501(b), 41 Dall. C. Reg. 53 (1995), enacted as D. C. Law 10–257. 30 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting This view of homosexuality was reflected in the rules gov- erning the federal work force. In 1964, federal “[a]gencies could deny homosexual men and women employment be- cause of their sexual orientation,” and this practice contin- ued until 1975. GAO, D. Heivilin, Security Clearances: Consideration of Sexual Orientation in the Clearance Pro- cess 2 (GAO/NSIAD–95–21, 1995). See, e.g., Anonymous v. Macy, 398 F.2d 317, 318 (CA5 1968) (affirming dismissal of postal employee for homosexual acts). In 1964, individuals who were known to be homosexual could not obtain security clearances, and any who possessed clearances were likely to lose them if their orientation was discovered. A 1953 Executive Order provided that back- ground investigations should look for evidence of “sexual perversion,” as well as “[a]ny criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct.” Exec. Order No. 10450, §8(a)(1)(iii), 3 CFR 938 (1949–1953 Comp.). “Until about 1991, when agencies began to change their se- curity policies and practices regarding sexual orientation, there were a number of documented cases where defense civilian or contractor employees’ security clearances were denied or revoked because of their sexual orientation.” GAO, Security Clearances, at 2. See, e.g., Adams v. Laird, 420 F.2d 230, 240 (CADC 1969) (upholding denial of secu- rity clearance to defense contractor employee because he had “engaged in repeated homosexual acts”); see also Web- ster v. Doe, 486 U.S. 592, 595, 601 (1988) (concluding that decision to fire a particular individual because he was ho- mosexual fell within the “discretion” of the Director of Cen- tral Intelligence under the National Security Act of 1947 and thus was unreviewable under the APA). The picture in state employment was similar. In 1964, it was common for States to bar homosexuals from serving as teachers. An article summarizing the situation 15 years af- ter Title VII became law reported that “[a]ll states have statutes that permit the revocation of teaching certificates Cite as: 590 U. S. ____ (2020) 31 ALITO, J., dissenting (or credentials) for immorality, moral turpitude, or unpro- fessionalism,” and, the survey added, “[h]omosexuality is considered to fall within all three categories.”25 The situation in California is illustrative. California laws prohibited individuals who engaged in “immoral conduct” (which was construed to include homosexual behavior), as well as those convicted of “sex offenses” (like sodomy), from employment as teachers. Cal. Educ. Code Ann. §§13202, 13207, 13209, 13218, 13255 (West 1960). The teaching cer- tificates of individuals convicted of engaging in homosexual acts were revoked. See, e.g., Sarac v. State Bd. of Ed., 249 Cal. App. 2d 58, 62–64, 57 Cal. Rptr. 69, 72–73 (1967) (up- holding revocation of secondary teaching credential from teacher who was convicted of engaging in homosexual con- duct on public beach), overruled in part, Morrison v. State Bd. of Ed., 1 Cal. 3d 214, 461 P.2d 375 (1969). In Florida, the legislature enacted laws authorizing the revocation of teaching certificates for “misconduct involving moral turpitude,” Fla. Stat. Ann. §229.08(16) (1961), and this law was used to target homosexual conduct. In 1964, a legislative committee was wrapping up a 6-year campaign to remove homosexual teachers from public schools and state universities. As a result of these efforts, the state board of education apparently revoked at least 71 teachers’ certificates and removed at least 14 university professors. Eskridge, Dishonorable Passions, at 103. Individuals who engaged in homosexual acts also faced the loss of other occupational licenses, such as those needed to work as a “lawyer, doctor, mortician, [or] beautician.”26 See, e.g., Florida Bar v. Kay, 232 So. 2d 378 (Fla. 1970) (at- torney disbarred after conviction for homosexual conduct in —————— 25 Rivera, Our Straight-Laced Judges: The Legal Position of Homosex- ual Persons in the United States, 30 Hastings L. J. 799, 861 (1979). 26 Eskridge, Challenging the Apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961–1981, 25 Hofstra L. Rev. 817, 819 (1997). 32 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting public bathroom). In 1964 and for many years thereafter, homosexuals were barred from the military. See, e.g., Army Reg. 635–89, §I(2) (a) (July 15, 1966) (“Personnel who voluntarily engage in homosexual acts, irrespective of sex, will not be permitted to serve in the Army in any capacity, and their prompt sep- aration is mandatory”); Army Reg. 600–443, §I(2) (April 10, 1953) (similar). Prohibitions against homosexual conduct by members of the military were not eliminated until 2010. See Don’t Ask, Don’t Tell Repeal Act of 2010, 124 Stat. 3515 (repealing 10 U.S. C. §654, which required members of the Armed Forces to be separated for engaging in homosexual conduct). Homosexuals were also excluded from entry into the United States. The Immigration and Nationality Act of 1952 (INA) excluded aliens “afflicted with psychopathic per- sonality.” 8 U.S. C. §1182(a)(4) (1964 ed.). In Boutilier v. INS, 387 U.S. 118, 120–123 (1967), this Court, relying on the INA’s legislative history, interpreted that term to en- compass homosexuals and upheld an alien’s deportation on that ground. Three Justices disagreed with the majority’s interpretation of the phrase “psychopathic personality.”27 But it apparently did not occur to anyone to argue that the Court’s interpretation was inconsistent with the INA’s ex- press prohibition of discrimination “because of sex.” That was how our society—and this Court—saw things a half century ago. Discrimination because of sex and discrimina- tion because of sexual orientation were viewed as two en- tirely different concepts. To its credit, our society has now come to recognize the injustice of past practices, and this recognition provides the impetus to “update” Title VII. But that is not our job. Our —————— 27 Justices Douglas and Fortas thought that a homosexual is merely “one, who by some freak, is the product of an arrested development.” Boutilier, 387 U.S., at 127 (Douglas, J., dissenting); see also id., at 125 (Brennan, J., dissenting) (based on lower court dissent). Cite as: 590 U. S. ____ (2020) 33 ALITO, J., dissenting duty is to understand what the terms of Title VII were un- derstood to mean when enacted, and in doing so, we must take into account the societal norms of that time. We must therefore ask whether ordinary Americans in 1964 would have thought that discrimination because of “sex” carried some exotic meaning under which private-sector employers would be prohibited from engaging in a practice that repre- sented the official policy of the Federal Government with respect to its own employees. We must ask whether Amer- icans at that time would have thought that Title VII banned discrimination against an employee for engaging in conduct that Congress had made a felony and a ground for civil commitment. The questions answer themselves. Even if discrimination based on sexual orientation or gender identity could be squeezed into some arcane understanding of sex discrimi- nation, the context in which Title VII was enacted would tell us that this is not what the statute’s terms were under- stood to mean at that time. To paraphrase something Jus- tice Scalia once wrote, “our job is not to scavenge the world of English usage to discover whether there is any possible meaning” of discrimination because of sex that might be broad enough to encompass discrimination because of sex- ual orientation or gender identity. Chisom v. Roemer, 501 U.S. 380, 410 (1991) (dissenting opinion). Without strong evidence to the contrary (and there is none here), our job is to ascertain and apply the “ordinary meaning” of the stat- ute. Ibid. And in 1964, ordinary Americans most certainly would not have understood Title VII to ban discrimination because of sexual orientation or gender identity. The Court makes a tiny effort to suggest that at least some people in 1964 might have seen what Title VII really means. Ante, at 26. What evidence does it adduce? One complaint filed in 1969, another filed in 1974, and argu- ments made in the mid-1970s about the meaning of the Equal Rights Amendment. Ibid. To call this evidence 34 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting merely feeble would be generous. C While Americans in 1964 would have been shocked to learn that Congress had enacted a law prohibiting sexual orientation discrimination, they would have been bewil- dered to hear that this law also forbids discrimination on the basis of “transgender status” or “gender identity,” terms that would have left people at the time scratching their heads. The term “transgender” is said to have been coined “ ‘in the early 1970s,’ ”28 and the term “gender identity,” now understood to mean “[a]n internal sense of being male, fe- male or something else,”29 apparently first appeared in an academic article in 1964.30 Certainly, neither term was in common parlance; indeed, dictionaries of the time still pri- marily defined the word “gender” by reference to grammat- ical classifications. See, e.g., American Heritage Diction- ary, at 548 (def. 1(a)) (“Any set of two or more categories, such as masculine, feminine, and neuter, into which words are divided . . . and that determine agreement with or the —————— 28 Drescher, Transsexualism, Gender Identity Disorder and the DSM, 14 J. Gay & Lesbian Mental Health 109, 110 (2010). 29 American Psychological Association, 49 Monitor on Psychology, at 32. 30 Green, Robert Stoller’s Sex and Gender: 40 Years On, 39 Archives Sexual Behav. 1457 (2010); see Stoller, A Contribution to the Study of Gender Identity, 45 Int’l J. Psychoanalysis 220 (1964). The term appears to have been coined a year or two earlier. See Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–2001, 33 Archives Sexual Behav. 87, 93 (2004) (suggesting the term was first introduced at 23rd International Psycho-Analytical Con- gress in Stockholm in 1963); J. Meyerowitz, How Sex Changed 213 (2002) (referring to founding of “Gender Identity Research Clinic” at UCLA in 1962). In his book, Sex and Gender, published in 1968, Robert Stoller referred to “gender identity” as “a working term” “associated with” his research team but noted that they were not “fixed on copyrighting the term or on defending the concept as one of the splendors of the scientific world.” Sex and Gender, p. viii. Cite as: 590 U. S. ____ (2020) 35 ALITO, J., dissenting selection of modifiers, referents, or grammatical forms”). While it is likely true that there have always been indi- viduals who experience what is now termed “gender dys- phoria,” i.e., “[d]iscomfort or distress related to an incongru- ence between an individual’s gender identity and the gender assigned at birth,”31 the current understanding of the concept postdates the enactment of Title VII. Nothing resembling what is now called gender dysphoria appeared in either DSM–I (1952) or DSM–II (1968). It was not until 1980 that the APA, in DSM–III, recognized two main psy- chiatric diagnoses related to this condition, “Gender Iden- tity Disorder of Childhood” and “Transsexualism” in adoles- cents and adults.32 DSM–III, at 261–266. The first widely publicized sex reassignment surgeries in the United States were not performed until 1966,33 and the great majority of physicians surveyed in 1969 thought that an individual who sought sex reassignment surgery was ei- ther “ ‘severely neurotic’ ” or “ ‘psychotic.’ ”34 It defies belief to suggest that the public meaning of dis- crimination because of sex in 1964 encompassed discrimi- nation on the basis of a concept that was essentially un- known to the public at that time. D 1 The Court’s main excuse for entirely ignoring the social context in which Title VII was enacted is that the meaning of Title VII’s prohibition of discrimination because of sex is —————— 31 American Psychological Association, 49 Monitor on Psychology, at 32. 32 See Drescher, supra, at 112. 33 Buckley, A Changing of Sex by Surgery Begun at Johns Hopkins, N. Y. Times, Nov. 21, 1966, p. 1, col. 8; see also J. Meyerowitz, How Sex Changed 218–220 (2002). 34 Drescher, supra, at 112 (quoting Green, Attitudes Toward Transsex- ualism and Sex-Reassignment Procedures, in Transsexualism and Sex Reassignment 241–242 (R. Green & J. Money eds. 1969)). 36 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting clear, and therefore it simply does not matter whether peo- ple in 1964 were “smart enough to realize” what its lan- guage means. Hively, 853 F.3d, at 357 (Posner, J., concur- ring). According to the Court, an argument that looks to the societal norms of those times represents an impermis- sible attempt to displace the statutory language. Ante, at 25–26. The Court’s argument rests on a false premise. As al- ready explained at length, the text of Title VII does not pro- hibit discrimination because of sexual orientation or gender identity. And what the public thought about those issues in 1964 is relevant and important, not because it provides a ground for departing from the statutory text, but because it helps to explain what the text was understood to mean when adopted. In arguing that we must put out of our minds what we know about the time when Title VII was enacted, the Court relies on Justice Scalia’s opinion for the Court in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). But Oncale is nothing like these cases, and no one should be taken in by the majority’s effort to enlist Justice Scalia in its updating project. The Court’s unanimous decision in Oncale was thor- oughly unremarkable. The Court held that a male em- ployee who alleged that he had been sexually harassed at work by other men stated a claim under Title VII. Although the impetus for Title VII’s prohibition of sex discrimination was to protect women, anybody reading its terms would im- mediately appreciate that it applies equally to both sexes, and by the time Oncale reached the Court, our precedent already established that sexual harassment may constitute sex discrimination within the meaning of Title VII. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). Given these premises, syllogistic reasoning dictated the holding. Cite as: 590 U. S. ____ (2020) 37 ALITO, J., dissenting What today’s decision latches onto are Oncale’s com- ments about whether “ ‘male-on-male sexual harassment’ ” was on Congress’s mind when it enacted Title VII. Ante, at 28 (quoting 523 U.S., at 79). The Court in Oncale observed that this specific type of behavior “was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” but it found that immaterial because “statutory prohibitions often go beyond the principal evil to cover rea- sonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legis- lators by which we are governed.” 523 U.S., at 79 (empha- sis added). It takes considerable audacity to read these comments as committing the Court to a position on deep philosophical questions about the meaning of language and their implica- tions for the interpretation of legal rules. These comments are better understood as stating mundane and uncontrover- sial truths. Who would argue that a statute applies only to the “principal evils” and not lesser evils that fall within the plain scope of its terms? Would even the most ardent “pur- posivists” and fans of legislative history contend that congressional intent is restricted to Congress’s “principal concerns”? Properly understood, Oncale does not provide the slight- est support for what the Court has done today. For one thing, it would be a wild understatement to say that dis- crimination because of sexual orientation and transgender status was not the “principal evil” on Congress’s mind in 1964. Whether we like to admit it now or not, in the think- ing of Congress and the public at that time, such discrimi- nation would not have been evil at all. But the more important difference between these cases and Oncale is that here the interpretation that the Court adopts does not fall within the ordinary meaning of the stat- utory text as it would have been understood in 1964. To 38 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting decide for the defendants in Oncale, it would have been nec- essary to carve out an exception to the statutory text. Here, no such surgery is at issue. Even if we totally disregard the societal norms of 1964, the text of Title VII does not support the Court’s holding. And the reasoning of Oncale does not preclude or counsel against our taking those norms into ac- count. They are relevant, not for the purpose of creating an exception to the terms of the statute, but for the purpose of better appreciating how those terms would have been un- derstood at the time. 2 The Court argues that two other decisions––Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam), and Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978)––buttress its decision, but those cases merely held that Title VII prohibits employer conduct that plainly constitutes discrimination because of biological sex. In Philips, the employer treated women with young chil- dren less favorably than men with young children. In Man- hart, the employer required women to make larger pension contributions than men. It is hard to see how these hold- ings assist the Court. The Court extracts three “lessons” from Phillips, Man- hart, and Oncale, but none sheds any light on the question before us. The first lesson is that “it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.” Ante, at 14. This lesson is obviously true but proves nothing. As to the label attached to a practice, has anyone ever thought that the application of a law to a person’s conduct depends on how it is labeled? Could a bank robber escape conviction by saying he was engaged in asset enhancement? So if an em- ployer discriminates because of sex, the employer is liable no matter what it calls its conduct, but if the employer’s Cite as: 590 U. S. ____ (2020) 39 ALITO, J., dissenting conduct is not sex discrimination, the statute does not ap- ply. Thus, this lesson simply takes us back to the question whether discrimination because of sexual orientation or gender identity is a form of discrimination because of bio- logical sex. For reasons already discussed, see Part I–A, supra, it is not. It likewise proves nothing of relevance here to note that an employer cannot escape liability by showing that dis- crimination on a prohibited ground was not its sole motiva- tion. So long as a prohibited ground was a motivating fac- tor, the existence of other motivating factors does not defeat liability. The Court makes much of the argument that “[i]n Phil- lips, the employer could have accurately spoken of its policy as one based on ‘motherhood.’ ” Ante, at 14; see also ante, at 16. But motherhood, by definition, is a condition that can be experienced only by women, so a policy that distin- guishes between motherhood and parenthood is necessarily a policy that draws a sex-based distinction. There was sex discrimination in Phillips, because women with children were treated disadvantageously compared to men with children. Lesson number two—“the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action,” ante, at 14—is similarly unhelpful. The standard of causa- tion in these cases is whether sex is necessarily a “motivat- ing factor” when an employer discriminates on the basis of sexual orientation or gender identity. 42 U.S. C. §2000e– 2(m). But the essential question—whether discrimination because of sexual orientation or gender identity constitutes sex discrimination—would be the same no matter what cau- sation standard applied. The Court’s extensive discussion of causation standards is so much smoke. Lesson number three––“an employer cannot escape lia- bility by demonstrating that it treats males and females comparably as groups,” ante, at 15, is also irrelevant. There 40 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting is no dispute that discrimination against an individual em- ployee based on that person’s sex cannot be justified on the ground that the employer’s treatment of the average em- ployee of that sex is at least as favorable as its treatment of the average employee of the opposite sex. Nor does it mat- ter if an employer discriminates against only a subset of men or women, where the same subset of the opposite sex is treated differently, as in Phillips. That is not the issue here. An employer who discriminates equally on the basis of sexual orientation or gender identity applies the same criterion to every affected individual regardless of sex. See Part I–A, supra. III A Because the opinion of the Court flies a textualist flag, I have taken pains to show that it cannot be defended on tex- tualist grounds. But even if the Court’s textualist argu- ment were stronger, that would not explain today’s deci- sion. Many Justices of this Court, both past and present, have not espoused or practiced a method of statutory inter- pretation that is limited to the analysis of statutory text. Instead, when there is ambiguity in the terms of a statute, they have found it appropriate to look to other evidence of “congressional intent,” including legislative history. So, why in these cases are congressional intent and the legislative history of Title VII totally ignored? Any assess- ment of congressional intent or legislative history seriously undermines the Court’s interpretation. B As the Court explained in General Elec. Co. v. Gilbert, 429 U.S. 125, 143 (1976), the legislative history of Title VII’s prohibition of sex discrimination is brief, but it is neverthe- less revealing. The prohibition of sex discrimination was “added to Title VII at the last minute on the floor of the Cite as: 590 U. S. ____ (2020) 41 ALITO, J., dissenting House of Representatives,” Meritor Savings Bank, 477 U.S., at 63, by Representative Howard Smith, the Chair- man of the Rules Committee. See 110 Cong. Rec. 2577 (1964). Representative Smith had been an ardent opponent of the civil rights bill, and it has been suggested that he added the prohibition against discrimination on the basis of “sex” as a poison pill. See, e.g., Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (CA7 1984). On this theory, Rep- resentative Smith thought that prohibiting employment discrimination against women would be unacceptable to Members who might have otherwise voted in favor of the bill and that the addition of this prohibition might bring about the bill’s defeat.35 But if Representative Smith had been looking for a poison pill, prohibiting discrimination on the basis of sexual orientation or gender identity would have been far more potent. However, neither Representa- tive Smith nor any other Member said one word about the possibility that the prohibition of sex discrimination might have that meaning. Instead, all the debate concerned dis- crimination on the basis of biological sex.36 See 110 Cong. Rec. 2577–2584. Representative Smith’s motivations are contested, 883 F. 3d, at 139–140 (Lynch, J., dissenting), but whatever they —————— 35 See Osterman, Origins of a Myth: Why Courts, Scholars, and the Public Think Title VII’s Ban on Sex Discrimination Was an Accident, 20 Yale J. L. & Feminism 409, 409–410 (2009). 36 Recent scholarship has linked the adoption of the Smith Amendment to the broader campaign for women’s rights that was underway at the time. E.g., Osterman, supra; Freeman, How Sex Got Into Title VII: Per- sistent Opportunism as a Maker of Public Policy, 9 L. & Ineq. 163 (1991); Barzilay, Parenting Title VII: Rethinking the History of the Sex Discrim- ination Provision, 28 Yale J. L. & Feminism 55 (2016); Gold, A Tale of Two Amendments: The Reasons Congress Added Sex to Title VII and Their Implication for the Issue of Comparable Worth, 19 Duquesne L. Rev. 453 (1981). None of these studies has unearthed evidence that the amendment was understood to apply to discrimination because of sexual orientation or gender identity. 42 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting were, the meaning of the adoption of the prohibition of sex discrimination is clear. It was no accident. It grew out of “a long history of women’s rights advocacy that had increas- ingly been gaining mainstream recognition and ac- ceptance,” and it marked a landmark achievement in the path toward fully equal rights for women. Id., at 140. “Dis- crimination against gay women and men, by contrast, was not on the table for public debate . . . [i]n those dark, pre- Stonewall days.” Ibid. For those who regard congressional intent as the touch- stone of statutory interpretation, the message of Title VII’s legislative history cannot be missed. C Post-enactment events only clarify what was apparent when Title VII was enacted. As noted, bills to add “sexual orientation” to Title VII’s list of prohibited grounds were in- troduced in every Congress beginning in 1975, see supra, at 2, and two such bills were before Congress in 199137 when it made major changes in Title VII. At that time, the three Courts of Appeals to reach the issue had held that Title VII does not prohibit discrimination because of sexual orienta- tion,38 two other Circuits had endorsed that interpretation in dicta,39 and no Court of Appeals had held otherwise. Sim- ilarly, the three Circuits to address the application of Title VII to transgender persons had all rejected the argument —————— 37 H. R. 1430, 102d Cong., 1st Sess., §2(d) (as introduced in the House on Mar. 13, 1991); S. 574, 102d Cong., 1st Sess., §5 (as introduced in the Senate on Mar. 6, 1991). 38 See Williamson v. A. G. Edwards & Sons, Inc., 876 F.2d 69, 70 (CA8 1989) (per curiam), cert. denied, 493 U.S. 1089 (1990); DeSantis v. Pa- cific Tel. & Tel. Co., 608 F.2d 327, 329–330 (CA9 1979); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (CA5 1979) (per curiam). 39 Ruth v. Children’s Med. Ctr., 1991 WL 151158, *5 (CA6, Aug. 8, 1991) (per curiam); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1084– 1085 (CA7 1984), cert. denied, 471 U.S. 1017 (1985). Cite as: 590 U. S. ____ (2020) 43 ALITO, J., dissenting that it covered discrimination on this basis.40 These were also the positions of the EEOC.41 In enacting substantial changes to Title VII, the 1991 Congress abrogated numer- ous judicial decisions with which it disagreed. If it also dis- agreed with the decisions regarding sexual orientation and transgender discrimination, it could have easily overruled those as well, but it did not do so.42 After 1991, six other Courts of Appeals reached the issue of sexual orientation discrimination, and until 2017, every single Court of Appeals decision understood Title VII’s pro- hibition of “discrimination because of sex” to mean discrim- ination because of biological sex. See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (CA1 1999); Simonton v. Runyon, 232 F.3d 33, 36 (CA2 2000); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F. 3d 257, 261 (CA3 2001), cert. denied, 534 U.S. 1155 (2002); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (CA4 1996); Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1062 (CA7 2003); Medina v. Income Support Div., N. M., 413 F.3d 1131, 1135 (CA10 2005); Ev- ans v. Georgia Regional Hospital, 850 F.3d 1248, 1255 (CA11), cert. denied, 583 U. S. ___ (2017). Similarly, the other Circuit to formally address whether Title VII applies to claims of discrimination based on transgender status had also rejected the argument, creating unanimous consensus prior to the Sixth Circuit’s decision below. See Etsitty v. Utah Transit Authority, 502 F.3d 1215, 1220–1221 (CA10 —————— 40 See Ulane, 742 F.2d, at 1084–1085; Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (CA8 1982) (per curiam); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 661–663 (CA9 1977). 41 Dillon v. Frank, 1990 WL 1111074, *3–*4 (EEOC, Feb. 14, 1990); LaBate v. USPS, 1987 WL 774785, *2 (EEOC, Feb. 11, 1987). 42 In more recent legislation, when Congress has wanted to reach acts committed because of sexual orientation or gender identity, it has re- ferred to those grounds by name. See, e.g., 18 U.S. C. §249(a)(2)(A) (hate crimes) (enacted 2009); 34 U.S. C. §12291(b)(13)(A) (certain federally funded programs) (enacted 2013). 44 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting 2007). The Court observes that “[t]he people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms,” ante, at 24, but it has no qualms about disregarding over 50 years of uniform judicial inter- pretation of Title VII’s plain text. Rather, the Court makes the jaw-dropping statement that its decision exemplifies “judicial humility.” Ante, at 31. Is it humble to maintain, not only that Congress did not understand the terms it en- acted in 1964, but that all the Circuit Judges on all the pre- 2017 cases could not see what the phrase discrimination “because of sex” really means? If today’s decision is humble, it is sobering to imagine what the Court might do if it de- cided to be bold. IV What the Court has done today––interpreting discrimi- nation because of “sex” to encompass discrimination be- cause of sexual orientation or gender identity––is virtually certain to have far-reaching consequences. Over 100 fed- eral statutes prohibit discrimination because of sex. See Appendix C, infra; e.g., 20 U.S. C. §1681(a) (Title IX); 42 U.S. C. §3631 (Fair Housing Act); 15 U.S. C. 1691(a)(1) (Equal Credit Opportunity Act). The briefs in these cases have called to our attention the potential effects that the Court’s reasoning may have under some of these laws, but the Court waves those considerations aside. As to Title VII itself, the Court dismisses questions about “bathrooms, locker rooms, or anything else of the kind.” Ante, at 31. And it declines to say anything about other statutes whose terms mirror Title VII’s. The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible. If the Court had allowed the legislative process to take its course, Congress would have had the opportunity to consider competing interests and might have found a way of accommodating at least Cite as: 590 U. S. ____ (2020) 45 ALITO, J., dissenting some of them. In addition, Congress might have crafted special rules for some of the relevant statutes. But by in- tervening and proclaiming categorically that employment discrimination based on sexual orientation or gender iden- tity is simply a form of discrimination because of sex, the Court has greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution. Before issuing today’s radical decision, the Court should have given some thought to where its decision would lead. As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unal- loyed victory for individual liberty. I will briefly note some of the potential consequences of the Court’s decision, but I do not claim to provide a compre- hensive survey or to suggest how any of these issues should necessarily play out under the Court’s reasoning.43 “[B]athrooms, locker rooms, [and other things] of [that] kind.” The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individ- uals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for oth- ers, there is more at stake. For women who have been vic- timized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a con- fined and sensitive location such as a bathroom or locker room can cause serious psychological harm.44 Under the Court’s decision, however, transgender per- sons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the —————— 43 Contrary to the implication in the Court’s opinion, I do not label these potential consequences “undesirable.” Ante, at 31. I mention them only as possible implications of the Court’s reasoning. 44 Brief for Defend My Privacy et al. as Amici Curiae 7–10. 46 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting sex with which they identify, and while the Court does not define what it means by a transgender person, the term may apply to individuals who are “gender fluid,” that is, in- dividuals whose gender identity is mixed or changes over time.45 Thus, a person who has not undertaken any physi- cal transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person’s claim to such bathroom or locker room access might not succeed. A similar issue has arisen under Title IX, which prohibits sex discrimination by any elementary or secondary school and any college or university that receives federal financial assistance.46 In 2016, a Department of Justice advisory warned that barring a student from a bathroom assigned to individuals of the gender with which the student identifies constitutes unlawful sex discrimination,47 and some lower court decisions have agreed. See Whitaker v. Kenosha Uni- fied School Dist. No. 1 Bd. of Ed., 858 F.3d 1034, 1049 (CA7 2017); G. G. v. Gloucester Cty. School Bd., 822 F.3d 709, 715 (CA4 2016), vacated and remanded, 580 U. S. ___ (2017); Adams v. School Bd. of St. Johns Cty., 318 F. Supp. 3d 1293, 1325 (MD Fla. 2018); cf. Doe v. Boyertown Area —————— 45 See 1 Sadock, Comprehensive Textbook of Psychiatry, at 2063 (ex- plaining that “gender is now often regarded as more fluid” and “[t]hus, gender identity may be described as masculine, feminine, or somewhere in between”). 46 Title IX makes it unlawful to discriminate on the basis of sex in ed- ucation: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Fed- eral financial assistance.” 20 U.S. C. §1681(a). 47 See Dept. of Justice & Dept. of Education, Dear Colleague Letter on Transgender Students, May 13, 2016 (Dear Colleague Letter), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title- ix-transgender.pdf. Cite as: 590 U. S. ____ (2020) 47 ALITO, J., dissenting School Dist., 897 F.3d 518, 533 (CA3 2018), cert. denied, 587 U. S. ___ (2019). Women’s sports. Another issue that may come up under both Title VII and Title IX is the right of a transgender in- dividual to participate on a sports team or in an athletic competition previously reserved for members of one biolog- ical sex.48 This issue has already arisen under Title IX, where it threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports. The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but iden- tify as female and students who are taking male hormones in order to transition from female to male. See, e.g., Com- plaint in Soule v. Connecticut Assn. of Schools, No. 3:20–cv– 00201 (D Conn., Apr. 17, 2020) (challenging Connecticut policy allowing transgender students to compete in girls’ high school sports); Complaint in Hecox v. Little, No. 1:20– cv–00184 (D Idaho, Apr. 15, 2020) (challenging state law that bars transgender students from participating in school sports in accordance with gender identity). Students in these latter categories have found success in athletic com- petitions reserved for females.49 —————— 48 A regulation allows single-sex teams, 34 CFR §106.41(b) (2019), but the statute itself would of course take precedence. 49 “[S]ince 2017, two biological males [in Connecticut] have collectively won 15 women’s state championship titles (previously held by ten differ- ent Connecticut girls) against biologically female track athletes.” Brief for Independent Women’s Forum et al. as Amici Curiae in No. 18–107, pp. 14–15. At the college level, a transgendered woman (biological male) switched from competing on the men’s Division II track team to the women’s Divi- sion II track team at Franklin Pierce University in New Hampshire after taking a year of testosterone suppressants. While this student had placed “eighth out of nine male athletes in the 400 meter hurdles the 48 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting The logic of the Court’s decision could even affect profes- sional sports. Under the Court’s holding that Title VII pro- hibits employment discrimination because of transgender status, an athlete who has the physique of a man but iden- tifies as a woman could claim the right to play on a women’s professional sports team. The owners of the team might try to claim that biological sex is a bona fide occupational qual- ification (BFOQ) under 42 U.S. C. §2000e–2(e), but the BFOQ exception has been read very narrowly. See Dothard v. Rawlinson, 433 U.S. 321, 334 (1977). Housing. The Court’s decision may lead to Title IX cases against any college that resists assigning students of the opposite biological sex as roommates. A provision of Title IX, 20 U.S. C. §1686, allows schools to maintain “separate living facilities for the different sexes,” but it may be argued that a student’s “sex” is the gender with which the student identifies.50 Similar claims may be brought under the Fair Housing Act. See 42 U.S. C. §3604. Employment by religious organizations. Briefs filed by a wide range of religious groups––Christian, Jewish, and Muslim––express deep concern that the position now adopted by the Court “will trigger open conflict with faith- —————— year before, the student won the women’s competition by over a second and a half––a time that had garnered tenth place in the men’s conference meet just three years before.” Id., at 15. A transgender male—i.e., a biological female who was in the process of transitioning to male and actively taking testosterone injections––won the Texas girls’ state championship in high school wrestling in 2017. Babb, Transgender Issue Hits Mat in Texas, Washington Post, Feb. 26, 2017, p. A1, col. 1. 50 Indeed, the 2016 advisory letter issued by the Department of Justice took the position that under Title IX schools “must allow transgender students to access housing consistent with their gender identity.” Dear Colleague Letter 4. Cite as: 590 U. S. ____ (2020) 49 ALITO, J., dissenting based employment practices of numerous churches, syna- gogues, mosques, and other religious institutions.”51 They argue that “[r]eligious organizations need employees who actually live the faith,”52 and that compelling a religious or- ganization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to com- municate an objectionable message. This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty “communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may under- mine the school’s “moral teaching.”53 Thus, if a religious school teaches that sex outside marriage and sex reassign- ment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relation- ship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment. At least some teachers and applicants for teaching posi- tions may be blocked from recovering on such claims by the “ministerial exception” recognized in Hosanna-Tabor Evan- gelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012). Two cases now pending before the Court present the question whether teachers who provide religious in- struction can be considered to be “ministers.”54 But even if teachers with those responsibilities qualify, what about other very visible school employees who may not qualify for —————— 51 Brief for National Association of Evangelicals et al. as Amici Curiae 3; see also Brief for United States Conference of Catholic Bishops et al. as Amici Curiae in No. 18–107, pp. 8–18. 52 Brief for National Association of Evangelicals et al. as Amici Curiae 7. 53 McConnell, Academic Freedom in Religious Colleges and Universi- ties, 53 Law & Contemp. Prob. 303, 322 (1990). 54 See Our Lady of Guadalupe School v. Morrissey-Berru, No. 19–267; St. James School v. Biel, No. 19–348. 50 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting the ministerial exception? Provisions of Title VII provide exemptions for certain religious organizations and schools “with respect to the employment of individuals of a partic- ular religion to perform work connected with the carrying on” of the “activities” of the organization or school, 42 U.S. C. §2000e–1(a); see also §2000e–2(e)(2), but the scope of these provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection.55 Healthcare. Healthcare benefits may emerge as an in- tense battleground under the Court’s holding. Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery.56 Similar claims have been brought under the Affordable Care Act (ACA), which broadly prohibits sex discrimination in the provision of healthcare.57 —————— 55 See, e.g., EEOC v. Kamehameha Schools/Bishop Estate, 990 F.2d 458, 460 (CA9 1993); EEOC v. Fremont Christian School, 781 F.2d 1362, 1365–1367 (CA9 1986); Rayburn v. General Conference of Seventh-day Adventists, 772 F.2d 1164, 1166 (CA4 1985); EEOC v. Mississippi Col- lege, 626 F.2d 477, 484–486 (CA5 1980); see also Brief for United States Conference of Catholic Bishops et al. as Amici Curiae in No. 18–107, at 30, n. 28 (discussing disputed scope). In addition, 42 U.S. C. §2000e– 2(e)(1) provides that religion may be a BFOQ, and allows religious schools to hire religious employees, but as noted, the BFOQ exception has been read narrowly. See supra, at 48. 56 See, e.g., Amended Complaint in Toomey v. Arizona, No. 4:19–cv– 00035 (D Ariz., Mar. 2, 2020). At least one District Court has already held that a state health insurance policy that does not provide coverage for sex reassignment surgery violates Title VII. Fletcher v. Alaska, ___ F. Supp. 3d ___, ___, 2020 WL 2487060, *5 (D Alaska, Mar. 6, 2020). 57 See, e.g., Complaint in Conforti v. St. Joseph’s Healthcare System, No. 2:17–cv–00050 (D NJ, Jan. 5, 2017) (transgender man claims dis- crimination under the ACA because a Catholic hospital refused to allow a surgeon to perform a hysterectomy). And multiple District Courts have already concluded that the ACA requires health insurance coverage for sex reassignment surgery and treatment. Kadel v. Folwell, ___ F. Supp. 3d ___, ___, 2020 WL 1169271, *12 (MDNC, Mar. 11, 2020) (allowing Cite as: 590 U. S. ____ (2020) 51 ALITO, J., dissenting Such claims present difficult religious liberty issues be- cause some employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs. Freedom of speech. The Court’s decision may even affect the way employers address their employees and the way teachers and school officials address students. Under es- tablished English usage, two sets of sex-specific singular personal pronouns are used to refer to someone in the third person (he, him, and his for males; she, her, and hers for females). But several different sets of gender-neutral pro- nouns have now been created and are preferred by some in- dividuals who do not identify as falling into either of the two traditional categories.58 Some jurisdictions, such as —————— claims of discrimination under ACA, Title IX, and Equal Protection Clause); Tovar v. Essentia Health, 342 F. Supp. 3d 947, 952–954 (D Minn. 2018) (allowing ACA claim). Section 1557 of the ACA, 42 U.S. C. §18116, provides: “Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S. C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S. C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S. C. 6101 et seq.), or section 794 of title 29, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments). The enforcement mechanisms pro- vided for and available under such title VI, title IX, section 794, or such Age Discrimination Act shall apply for purposes of violations of this sub- section.” (Footnote omitted.) 58 See, e.g., University of Wisconsin Milwaukee Lesbian, Gay, Bisexual, Transgender, Queer Plus (LGBTQ+) Resource Center, Gender Pronouns (2020), https://uwm.edu/lgbtrc/support/gender-pronouns/ (listing six new categories of pronouns: (f )ae, (f )aer, (f )aers; e/ey, em, eir, eirs; per, pers; 52 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting New York City, have ordinances making the failure to use an individual’s preferred pronoun a punishable offense,59 and some colleges have similar rules.60 After today’s deci- sion, plaintiffs may claim that the failure to use their pre- ferred pronoun violates one of the federal laws prohibiting sex discrimination. See Prescott v. Rady Children’s Hospi- tal San Diego, 265 F. Supp. 3d 1090, 1098–1100 (SD Cal. 2017) (hospital staff ’s refusal to use preferred pronoun vio- lates ACA).61 The Court’s decision may also pressure employers to sup- press any statements by employees expressing disapproval of same-sex relationships and sex reassignment proce- dures. Employers are already imposing such restrictions voluntarily, and after today’s decisions employers will fear —————— ve, ver, vis; xe, xem, xyr, xyrs; ze/zie, hir, hirs). 59 See 47 N.Y. C. R. R. §2–06(a) (2020) (stating that a “deliberate re- fusal to use an individual’s self-identified name, pronoun and gendered title” is a violation of N. Y. C. Admin. Code §8–107 “where the refusal is motivated by the individual’s gender”); see also N. Y. C. Admin. Code §§8–107(1), (4), (5) (2020) (making it unlawful to discriminate on the ba- sis of “gender” in employment, housing, and public accommodations); cf. D. C. Mun. Regs., tit. 4, §801.1 (2020) (making it “unlawful . . . to dis- criminate . . . on the basis of . . . actual or perceived gender identity or expression” in “employment, housing, public accommodations, or educa- tional institutions” and further proscribing “engaging in verbal . . . har- assment”). 60 See University of Minn., Equity and Access: Gender Identity, Gender Expression, Names, and Pronouns, Administrative Policy (Dec. 11, 2019), https://policy.umn.edu/operations/genderequity (“University members and units are expected to use the names, gender identities, and pronouns specified to them by other University members, except as le- gally required”); Meriwether v. Trustees of Shawnee State Univ., 2020 WL 704615, *1 (SD Ohio, Feb. 12, 2020) (rejecting First Amendment chal- lenge to university’s nondiscrimination policy brought by evangelical Christian professor who was subjected to disciplinary actions for failing to use student’s preferred pronouns). 61 Cf. Notice of Removal in Vlaming v. West Point School Board, No. 3:19–cv–00773 (ED Va., Oct. 22, 2019) (contending that high school teacher’s firing for failure to use student’s preferred pronouns was based on nondiscrimination policy adopted pursuant to Title IX). Cite as: 590 U. S. ____ (2020) 53 ALITO, J., dissenting that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims. Constitutional claims. Finally, despite the important dif- ferences between the Fourteenth Amendment and Title VII, the Court’s decision may exert a gravitational pull in constitutional cases. Under our precedents, the Equal Pro- tection Clause prohibits sex-based discrimination unless a “heightened” standard of review is met. Sessions v. Mo- rales-Santana, 582 U. S. ___, ___ (2017) (slip op., at 8); United States v. Virginia, 518 U.S. 515, 532–534 (1996). By equating discrimination because of sexual orientation or gender identity with discrimination because of sex, the Court’s decision will be cited as a ground for subjecting all three forms of discrimination to the same exacting standard of review. Under this logic, today’s decision may have effects that extend well beyond the domain of federal anti- discrimination statutes. This potential is illustrated by pending and recent lower court cases in which transgender individuals have challenged a variety of federal, state, and local laws and policies on constitutional grounds. See, e.g., Complaint in Hecox, No. 1: 20–CV–00184 (state law prohib- iting transgender students from competing in school sports in accordance with their gender identity); Second Amended Complaint in Karnoski v. Trump, No. 2:17–cv–01297 (WD Wash., July 31, 2019) (military’s ban on transgender mem- bers); Kadel v. Folwell, ___ F. Supp. 3d ___, ___–___, 2020 WL 1169271, *10–*11 (MDNC, Mar. 11, 2020) (state health plan’s exclusion of coverage for sex reassignment proce- dures); Complaint in Gore v. Lee, No. 3:19–cv–00328 (MD Tenn., Mar. 3, 2020) (change of gender on birth certificates); Brief for Appellee in Grimm v. Gloucester Cty. School Bd., No. 19–1952 (CA4, Nov. 18, 2019) (transgender student forced to use gender neutral bathrooms at school); Com- plaint in Corbitt v. Taylor, No. 2:18–cv–00091 (MD Ala., 54 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting July 25, 2018) (change of gender on driver’s licenses); Whit- aker, 858 F.3d, at 1054 (school policy requiring students to use the bathroom that corresponds to the sex on birth cer- tificate); Keohane v. Florida Dept. of Corrections Secretary, 952 F.3d 1257, 1262–1265 (CA11 2020) (transgender pris- oner denied hormone therapy and ability to dress and groom as a female); Edmo v. Corizon, Inc., 935 F.3d 757, 767 (CA9 2019) (transgender prisoner requested sex reas- signment surgery); cf. Glenn v. Brumby, 663 F.3d 1312, 1320 (CA11 2011) (transgender individual fired for gender non-conformity). Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning. * * * The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is. The Court itself recognizes this: “The place to make new legislation . . . lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us.” Ante, at 31. It is easy to utter such words. If only the Court would live by them. I respectfully dissent. Cite as: 590 U. S. ____ (2020) 55 ALITO Appendix , J., A to dissenting opinion of ALITO, J.

There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive. 2 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting Title VII of the Civil Rights ct of 194 prohibits employ- ment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U.S. C. Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orienta- tion” to the list,1 and in recent years, bills have included “gender identity” as well.2 But to date, none has passed both Houses. Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to in- clude both “sexual orientation” and “gender identity,” H. R. 5, 11th Cong., 1st Sess. but the bill has stalled in the Senate. n alternative bill, H. R. 1, 11th Cong., 1st Sess. would add similar prohibitions but con- tains provisions to protect religious liberty.3 This bill re- mains before a House Subcommittee. Because no such amendment of Title VII has been en- acted in accordance with the requirements in the Constitu- tion (passage in both Houses and presentment to the Pres- ident, rt. I, cl. 2), Title VII’s prohibition of —————— 1 E.g., H. R. 1, 94th Cong., 1st Sess., (1975); H. R. 451, 95th Cong., 1st Sess., ; S. 2081, 9th Cong., 1st Sess. ; S. 18, 97th Cong., 1st Sess. (1981); S. 430, 98th Cong., 1st Sess. (1983); S. 1432, 99th Cong., 1st Sess., ; S. 44, 100th Cong., 1st Sess., ; H. R. 55, 101st Cong., 1st Sess., ; S. 574, 102d Cong., 1st Sess., ; H. R. 423, 103d Cong., 1st Sess., (1993); S. 932, 104th Cong., 1st Sess. (1995); H. R. 35, 105th Cong., 1st Sess., ; H. R. 311, 10th Cong., 1st Sess., (1999); H. R. 217, 107th Cong., 1st Sess., (2001); S. 1, 108th Cong., 1st Sess., ; H. R. 288, 109th Cong., 1st Sess., 2 See, e.g., H. R. 2015, 110th Cong., 1st Sess. (2007); H. R. 3017, 111th Cong., 1st Sess. (2009); H. R. 1397, 112th Cong., 1st Sess. (2011); H. R. 1755, 113th Cong., 1st Sess. (2013); H. R. 5, 114th Cong., 1st Sess., (2015); H. R. 2282, 115th Cong., 1st Sess., ; H. R. 5, 11th Cong., 1st Sess. 3 H. R. 1, 11th Cong., 1st Sess., (c) Cite as: 590 U. S. 3 LITO, J., dissenting discrimination because of “sex” still means what it has al- ways meant. But the Court is not deterred by these consti- tutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation.4 more brazen abuse of our authority to interpret statutes is hard to recall. The Court tries to convince readers that it is merely en- forcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination be- cause of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” nd in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were writ- ten.” Scalia & B. Garner, Reading Law: The Interpreta- tion of Legal Texts 1 (emphasis added). If every single living merican had been surveyed in 194, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual ori- entation––not to mention gender identity, a concept that was essentially unknown at the time. The Court attempts to pass off its decision as the inevita- ble product of the textualist school of statutory interpreta- tion championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Jus- tice Scalia excoriated––the theory that courts should “up- date” old statutes so that they better reflect the current val- ues of society. See Scalia, Matter of Interpretation 22 —————— 4 Section 7(b) of H. R. 5 strikes the term “sex” in 42 U.S. C. 000e–2 and inserts: “SEX (INCLUDING SEXUL ORIENTTION ND GENDER IDENTITY).” 4 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting If the Court finds it appropriate to adopt this the- ory, it should own up to what it is doing.5 Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 194. It indisputably did not. I Title VII, as noted, prohibits discrimination “because of sex,” 000e–2(a)(1), and in 194, it was as clear as clear could be that this meant discrimination because of the ge- netic and anatomical characteristics that men and women have at the time of birth. Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender status.” nte, at 2. (en banc). Judge Posner agreed with that result but wrote: “I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century- old statute a meaning of ‘sex discrimination’ that the Congress that en- acted it would not have accepted.” (em- phasis added). The Court does not define what it means by “transgender status,” but the merican Psychological ssociation describes “transgender” as “[a]n umbrella term encompassing those whose gender identities or gender roles differ from those typically associated with the sex they were as- signed at birth.” Glossary: Defining Transgender Terms, 49 Monitor on Psychology 32 https://www.apa.org/monitor//09/ce- corner-glossary. It defines “gender identity” as “[a]n internal sense of being male, female or something else, which may or may not correspond Cite as: 590 U. S. 5 LITO, J., dissenting this opinion includes the full definitions of “sex” in the un- abridged dictionaries in use in the 190s.) In all those dictionaries, the primary definition of “sex” was essentially the same as that in the then-most recent edition of Webster’s New International Dictionary 229 (def. 1) (2d ed. 1953): “[o]ne of the two divisions of organisms formed on the distinction of male and female.” See also merican Heritage Dictionary 1187 (def. 1(a)) (199) (“The property or quality by which organisms are classified ac- cording to their reproductive functions”); Random House Dictionary of the English Language 1307 (def. 1) (19) (Random House Dictionary) (“the fact or character of being either male or female”); 9 Oxford English Dictionary 577 (def. 1) (1933) (“Either of the two divisions of organic beings distinguished as male and female respectively”). The Court does not dispute that this is what “sex” means in Title VII, although it coyly suggests that there is at least some support for a different and potentially relevant defi- nition. nte, (I address alternative definitions below. See Part I–B–3, infra.) But the Court declines to stand on that ground and instead “proceed[s] on the assumption that ‘sex’ refer[s] only to biological distinctions between male and female.” nte, If that is so, it should be perfectly clear that Title VII does not reach discrimination because of sexual orientation or gender identity. If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologi- cally male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender. How then does the Court claim to avoid that conclusion? —————— to an individual’s sex assigned at birth or sex characteristics.” Un- der these definitions, there is no apparent difference between discrimi- nation because of transgender status and discrimination because of gen- der identity. BOSTOCK v. CLYTON COUNTY LITO, J., dissenting The Court tries to cloud the issue by spending many pages discussing matters that are beside the point. The Court ob- serves that a Title VII plaintiff need not show that “sex” was the sole or primary motive for a challenged employ- ment decision or its sole or primary cause; that Title VII is limited to discrimination with respect to a list of specified actions (such as hiring, firing, etc.); and that Title VII protects individual rights, not group rights. See ante, – 9, 11. ll that is true, but so what? In cases like those before us, a plaintiff must show that sex was a “motivating factor” in the challenged employment action, 42 U.S. C. 000e– 2(m), so the question we must decide comes down to this: if an individual employee or applicant for employment shows that his or her sexual orientation or gender identity was a “motivating factor” in a hiring or discharge decision, for ex- ample, is that enough to establish that the employer dis- criminated “because of sex”? Or, to put the same ques- tion in different terms, if an employer takes an employment action solely because of the sexual orientation or gender identity of an employee or applicant, has that employer nec- essarily discriminated because of biological sex? The answers to those questions must be no, unless dis- crimination because of sexual orientation or gender identity inherently constitutes discrimination because of sex. The Court attempts to prove that point, and it argues, not merely that the terms of Title VII can be interpreted that way but that they cannot reasonably be interpreted any other way. ccording to the Court, the text is unambiguous. See ante, at 24, 27, 30. The arrogance of this argument is breathtaking. s I will show, there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Ti- tle VII was enacted. See Part III–B, infra. But the Court apparently thinks that this was because the Members were not “smart enough to realize” what its language means. Cite as: 590 U. S. 7 LITO, J., dissenting 357 (Posner, J., concurring). The Court seem- ingly has the same opinion about our colleagues on the Courts of ppeals, because until every single Court of ppeals to consider the question interpreted Title VII’s pro- hibition against sex discrimination to mean discrimination on the basis of biological sex. See Part III–C, infra. nd for good measure, the Court’s conclusion that Title VII unam- biguously reaches discrimination on the basis of sexual ori- entation and gender identity necessarily means that the EEOC failed to see the obvious for the first 48 years after Title VII became law.7 Day in and day out, the Commission enforced Title VII but did not grasp what discrimination “because of sex” unambiguously means. See Part III–C, infra. The Court’s argument is not only arrogant, it is wrong. It fails on its own terms. “Sex,” “sexual orientation,” and “gen- der identity” are different concepts, as the Court concedes. nte, at 19 (“homosexuality and transgender status are dis- tinct concepts from sex”). nd neither “sexual orientation” nor “gender identity” is tied to either of the two biological sexes. See ante, at 10 (recognizing that “discrimination on these bases” does not have “some disparate impact on one sex or another”). Both men and women may be attracted to members of the opposite sex, members of the same sex, or members of both sexes.8 nd individuals who are born with —————— 7 The EEOC first held that “discrimination against a transgender indi- vidual because that person is transgender” violates Title VII in in though it earlier advanced that position in an amicus brief in Federal District Court in 2011, ib n. 1. It did not hold that discrimination on the basis of sex- ual orientation violated Title VII until 2015. See Baldwin v. Foxx, 2015 WL 439741 (July 15, 2015). 8 “Sexual orientation refers to a person’s erotic response tendency or sexual attractions, be they directed toward individuals of the same sex (homosexual), the other sex (heterosexual), or both sexes (bisexual).” 1 Barb. 8 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting the genes and organs of either biological sex may identify with a different gender.9 Using slightly different terms, the Court asserts again and again that discrimination because of sexual orientation or gender identity inherently or necessarily entails discrim- ination because of sex. See ante, at 2 (When an employer “fires an individual for being homosexual or transgender,” “[s]ex plays a necessary and undisguisable role in the deci- sion”); ante, at 9 (“[I]t is impossible to discriminate against a person for being homosexual or transgender without dis- criminating against that individual based on sex”); ante, at 11 (“[W]hen an employer discriminates against homosexual or transgender employees, [the] employer inescapably intends to rely on sex in its decisionmaking”); ante, at 12 (“For an employer to discriminate against employees for be- ing homosexual or transgender, the employer must inten- tionally discriminate against individual men and women in part because of sex”); ante, at 14 (“When an employer fires an employee for being homosexual or transgender, it neces- sarily and intentionally discriminates against that individ- ual in part because of sex”); ante, at 19 (“[D]iscrimination based on homosexuality or transgender status necessarily entails discrimination based on sex”). But repetition of an assertion does not make it so, and the Court’s repeated as- sertion is demonstrably untrue. Contrary to the Court’s contention, discrimination be- cause of sexual orientation or gender identity does not in —————— V. & P. Ruiz, Comprehensive Textbook of Psychiatry 201 (9th ed. 2009); see also merican Heritage Dictionary 107 (5th ed. 2011) (defining “sexual orientation” as “[t]he direction of a person’s sex- ual interest, as toward people of the opposite sex, the same sex, or both sexes”); Webster’s New College Dictionary 103 (defining “sexual orientation” as “[t]he direction of one’s sexual interest toward members of the same, opposite, or both sexes”). 9 See n. see also at 203 (“transgender” refers to “any individual who identifies with and adopts the gender role of a member of the other biological sex”). Cite as: 590 U. S. 9 LITO, J., dissenting and of itself entail discrimination because of sex. We can see this because it is quite possible for an employer to dis- criminate on those grounds without taking the sex of an in- dividual applicant or employee into account. n employer can have a policy that says: “We do not hire gays, lesbians, or transgender individuals.” nd an employer can imple- ment this policy without paying any attention to or even knowing the biological sex of gay, lesbian, and transgender applicants. In fact, at the time of the enactment of Title VII, the United States military had a blanket policy of re- fusing to enlist gays or lesbians, and under this policy for years thereafter, applicants for enlistment were required to complete a form that asked whether they were “homosex- ual.” ppendix D, infra, at 88, 101. t oral argument, the attorney representing the employ- ees, a prominent professor of constitutional law, was asked if there would be discrimination because of sex if an em- ployer with a blanket policy against hiring gays, lesbians, and transgender individuals implemented that policy with- out knowing the biological sex of any job applicants. Her candid answer was that this would “not” be sex discrimina- tion.10 nd she was right. The attorney’s concession was necessary, but it is fatal to the Court’s interpretation, for if an employer discriminates against individual applicants or employees without even knowing whether they are male or female, it is impossible to argue that the employer intentionally discriminated be- cause of sex. Contra, ante, at 19. n employer cannot in- tentionally discriminate on the basis of a characteristic of which the employer has no knowledge. nd if an employer does not violate Title VII by discriminating on the basis of —————— 10 See Tr. of Oral rg. in Nos. 17–118, 17–123, pp. 9– (“If there was that case, it might be the rare case in which sexual orientation dis- crimination is not a subset of sex”); see also at 9 (“Somebody who comes in and says I’m not going to tell you what my sex is, but, believe me, I was fired for my sexual orientation, that person will lose”). 10 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting sexual orientation or gender identity without knowing the sex of the affected individuals, there is no reason why the same employer could not lawfully implement the same pol- icy even if it knows the sex of these individuals. If an em- ployer takes an adverse employment action for a perfectly legitimate reason—for example, because an employee stole company property—that action is not converted into sex discrimination simply because the employer knows the em- ployee’s sex. s explained, a disparate treatment case re- quires proof of intent—i.e., that the employee’s sex moti- vated the firing. In short, what this example shows is that discrimination because of sexual orientation or gender iden- tity does not inherently or necessarily entail discrimination because of sex, and for that reason, the Court’s chief argu- ment collapses. Trying to escape the consequences of the attorney’s con- cession, the Court offers its own hypothetical: “Suppose an employer’s application form offered a sin- gle box to check if the applicant is either black or Cath- olic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not.” nte, at 18. How this hypothetical proves the Court’s point is a mys- tery. person who checked that box would presumably be black, Catholic, or both, and refusing to hire an applicant because of race or religion is prohibited by Title VII. Re- jecting applicants who checked a box indicating that they are homosexual is entirely different because it is impossible to tell from that answer whether an applicant is male or female. The Court follows this strange hypothetical with an even stranger argument. The Court argues that an applicant Cite as: 590 U. S. 11 LITO, J., dissenting could not answer the question whether he or she is homo- sexual without knowing something about sex. If the appli- cant was unfamiliar with the term “homosexual,” the appli- cant would have to look it up or ask what the term means. nd because this applicant would have to take into account his or her sex and that of the persons to whom he or she is sexually attracted to answer the question, it follows, the Court reasons, that an employer could not reject this appli- cant without taking the applicant’s sex into account. See ante, at 18–19. This is illogical. Just because an applicant cannot say whether he or she is homosexual without knowing his or her own sex and that of the persons to whom the applicant is attracted, it does not follow that an employer cannot re- ject an applicant based on homosexuality without knowing the applicant’s sex. While the Court’s imagined application form proves noth- ing, another hypothetical case offered by the Court is tell- ing. But what it proves is not what the Court thinks. The Court posits: “Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. model employee arrives and in- troduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the em- ployer intends, the answer depends entirely on whether the model employee is a man or a woman.” nte, at 11. This example disproves the Court’s argument because it is perfectly clear that the employer’s motivation in firing the female employee had nothing to do with that employee’s sex. The employer presumably knew that this employee was a woman before she was invited to the fateful party. Yet the employer, far from holding her biological sex 12 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting against her, rated her a “model employee.” t the party, the employer learned something new, her sexual orienta- tion, and it was this new information that motivated her discharge. So this is another example showing that dis- crimination because of sexual orientation does not inher- ently involve discrimination because of sex. In addition to the failed argument just discussed, the Court makes two other arguments, more or less in passing. The first of these is essentially that sexual orientation and gender identity are closely related to sex. The Court argues that sexual orientation and gender identity are “inextrica- bly bound up with sex,” ante, at 10, and that discrimination on the basis of sexual orientation or gender identity in- volves the application of “sex-based rules,” ante, at 17. This is a variant of an argument found in many of the briefs filed in support of the employees and in the lower court decisions that agreed with the Court’s interpretation. ll these vari- ants stress that sex, sexual orientation, and gender identity are related concepts. The Seventh Circuit observed that “[i]t would require considerable calisthenics to remove ‘sex’ from ‘sexual orientation.’ ”11 The Second Circuit wrote that sex is necessarily “a factor in sex- ual orientation” and further concluded that “sexual orien- tation is a function of sex.” 112–113 (en banc). Bostock’s brief and those of amici support- ing his position contend that sexual orientation is “a sex- based consideration.”12 Other briefs state that sexual ori- entation is “a function of sex”13 or is “intrinsically related to —————— 11 See also Brief for William N. Eskridge Jr. et al. as mici Curiae 2 (“[T]here is no reasonable way to disentangle sex from same-sex attrac- tion or transgender status”). 12 Brief for Petitioner in No. 17–118, at 14; see also Brief for Southern Poverty Law Center et al. as mici Curiae 7–8. 13 Brief for Scholars Who Study the LGB Population as mici Curiae in Nos. 17–118, 17–123, p. 10. Cite as: 590 U. S. 13 LITO, J., dissenting sex.”14 Similarly, Stephens argues that sex and gender identity are necessarily intertwined: “By definition, a transgender person is someone who lives and identifies with a sex different than the sex assigned to the person at birth.”15 It is curious to see this argument in an opinion that pur- ports to apply the purest and highest form of textualism be- cause the argument effectively amends the statutory text. Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with ref- erence to, “sex.” Many things are related to sex. Think of all the nouns other than “orientation” that are commonly modified by the adjective “sexual.” Some examples yielded by a quick computer search are “sexual harassment,” “sex- ual assault, “sexual violence,” “sexual intercourse,” and “sexual content.” Does the Court really think that Title VII prohibits dis- crimination on all these grounds? Is it unlawful for an em- ployer to refuse to hire an employee with a record of sexual harassment in prior jobs? Or a record of sexual assault or violence? To be fair, the Court does not claim that Title VII prohib- its discrimination because of everything that is related to sex. The Court draws a distinction between things that are “inextricably” related and those that are related in “some vague sense.” nte, at 10. pparently the Court would graft onto Title VII some arbitrary line separating the things that are related closely enough and those that are not.1 nd it would do this in the name of high textualism. —————— 14 Brief for merican Psychological ssociation et al. as mici Curiae 11. 15 Reply Brief for Respondent imee Stephens in No. 18–107, p. 5. 1 Notably, Title VII itself already suggests a line, which the Court ig- nores. The statute specifies that the terms “because of sex” and “on the basis of sex” cover certain conditions that are biologically tied to sex, 14 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting n additional argument made in passing also fights the text of Title VII and the policy it reflects. The Court pro- claims that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.” nte, at 9. That is the policy view of many people in and perhaps Congress would have amended Title VII to implement it if this Court had not intervened. But that is not the policy embodied in Title VII in its current form. Title VII prohib- its discrimination based on five specified grounds, and nei- ther sexual orientation nor gender identity is on the list. s long as an employer does not discriminate based on one of the listed grounds, the employer is free to decide for itself which characteristics are “relevant to [its] employment de- cisions.” By proclaiming that sexual orientation and gender identity are “not relevant to employment decisions,” the Court updates Title VII to reflect what it regards as values. The Court’s remaining argument is based on a hypothet- ical that the Court finds instructive. In this hypothetical, an employer has two employees who are “attracted to men,” and “to the employer’s mind” the two employees are “mate- rially identical” except that one is a man and the other is a woman. nte, at 9 (emphasis added). The Court reasons that if the employer fires the man but not the woman, the employer is necessarily motivated by the man’s biological sex. nte, at 9–10. fter all, if two employees are identical in every respect but sex, and the employer fires only one, what other reason could there be? The problem with this argument is that the Court loads the dice. That is so because in the mind of an employer who does not want to employ individuals who are attracted to —————— namely, “pregnancy, childbirth, [and] related medical conditions.” 42 U.S. C. 000e(k). This definition should inform the meaning of “be- cause of sex” in Title VII more generally. Unlike pregnancy, neither sex- ual orientation nor gender identity is biologically linked to women or men. Cite as: 590 U. S. 15 LITO, J., dissenting members of the same sex, these two employees are not ma- terially identical in every respect but sex. On the contrary, they differ in another way that the employer thinks is quite material. nd until Title VII is amended to add sexual ori- entation as a prohibited ground, this is a view that an em- ployer is permitted to implement. s noted, other than pro- hibiting discrimination on any of five specified grounds, “race, color, religion, sex, [and] national origin.” 42 U.S. C. 000e–2(a)(1), Title VII allows employers to decide whether two employees are “materially identical.” Even id- iosyncratic criteria are permitted; if an employer thinks that Scorpios make bad employees, the employer can refuse to hire Scorpios. Such a policy would be unfair and foolish, but under Title VII, it is permitted. nd until Title VII is amended, so is a policy against employing gays, lesbians, or transgender individuals. Once this is recognized, what we have in the Court’s hy- pothetical case are two employees who differ in two ways–– sex and sexual orientation––and if the employer fires one and keeps the other, all that can be inferred is that the em- ployer was motivated either entirely by sexual orientation, entirely by sex, or in part by both. We cannot infer with any certainty, as the hypothetical is apparently meant to suggest, that the employer was motivated even in part by sex. The Court harps on the fact that under Title VII a pro- hibited ground need not be the sole motivation for an ad- verse employment action, see ante, at 10–11, 14–15, 21, but its example does not show that sex necessarily played any part in the employer’s thinking. The Court tries to avoid this inescapable conclusion by arguing that sex is really the only difference between the two employees. This is so, the Court maintains, because both employees “are attracted to men.” nte, at 9–10. Of course, the employer would couch its objection to the man differently. It would say that its objection was his sexual orientation. So this may appear to leave us with a battle of 1 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting labels. If the employer’s objection to the male employee is characterized as attraction to men, it seems that he is just like the woman in all respects except sex and that the em- ployer’s disparate treatment must be based on that one dif- ference. On the other hand, if the employer’s objection is sexual orientation or homosexuality, the two employees dif- fer in two respects, and it cannot be inferred that the dis- parate treatment was due even in part to sex. The Court insists that its label is the right one, and that presumably is why it makes such a point of arguing that an employer cannot escape liability under Title VII by giving sex discrimination some other name. See ante, at 14, 17. That is certainly true, but so is the opposite. Something that is not sex discrimination cannot be converted into sex discrimination by slapping on that label. So the Court can- not prove its point simply by labeling the employer’s objec- tion as “attract[ion] to men.” nte, at 9–10. Rather, the Court needs to show that its label is the correct one. nd a labeling standoff would not help the Court because that would mean that the bare text of Title VII does not unambiguously show that its interpretation is right. The Court would have no justification for its stubborn refusal to look any further. s it turns out, however, there is no standoff. It can eas- ily be shown that the employer’s real objection is not “at- tract[ion] to men” but homosexual orientation. In an effort to prove its point, the Court carefully includes in its example just two employees, a homosexual man and a heterosexual woman, but suppose we add two more indi- viduals, a woman who is attracted to women and a man who is attracted to women. ( large employer will likely have applicants and employees who fall into all four categories, and a small employer can potentially have all four as well.) We now have the four exemplars listed below, with the dis- charged employees crossed out: Cite as: 590 U. S. 17 LITO, J., dissenting Man attracted to men Woman attracted to men Woman attracted to women Man attracted to women The discharged employees have one thing in common. It is not biological sex, attraction to men, or attraction to women. It is attraction to members of their own sex—in a word, sexual orientation. nd that, we can infer, is the em- ployer’s real motive. In sum, the Court’s textual arguments fail on their own terms. The Court tries to prove that “it is impossible to dis- criminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” ante, at 9, but as has been shown, it is en- tirely possible for an employer to do just that. “[H]omosex- uality and transgender status are distinct concepts from sex,” ante, at 19, and discrimination because of sexual ori- entation or transgender status does not inherently or nec- essarily constitute discrimination because of sex. The Court’s arguments are squarely contrary to the statutory text. But even if the words of Title VII did not definitively re- fute the Court’s interpretation, that would not justify the Court’s refusal to consider alternative interpretations. The Court’s excuse for ignoring everything other than the bare statutory text is that the text is unambiguous and therefore no one can reasonably interpret the text in any way other than the Court does. Unless the Court has met that high standard, it has no justification for its blinkered approach. nd to say that the Court’s interpretation is the only possi- ble reading is indefensible. B lthough the Court relies solely on the arguments dis- cussed above, several other arguments figure prominently in the decisions of the lower courts and in briefs submitted 18 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting by or in support of the employees. The Court apparently finds these arguments unpersuasive, and so do I, but for the sake of completeness, I will address them briefly. 1 One argument, which relies on our decision in Price Wa- (plurality opin- ion), is that discrimination because of sexual orientation or gender identity violates Title VII because it constitutes pro- hibited discrimination on the basis of sex stereotypes. See –123; 853 F.3d, at 34; 884 F.3d 50, 57–577 The argument goes like this. Ti- tle VII prohibits discrimination based on stereotypes about the way men and women should behave; the belief that a person should be attracted only to persons of the opposite sex and the belief that a person should identify with his or her biological sex are examples of such stereotypes; there- fore, discrimination on either of these grounds is unlawful. This argument fails because it is based on a faulty prem- ise, namely, that Title VII forbids discrimination based on sex stereotypes. It does not. It prohibits discrimination be- cause of “sex,” and the two concepts are not the same. See Price That does not mean, however, that an employee or applicant for employment cannot prevail by showing that a challenged decision was based on a sex stereotype. Such evidence is relevant to prove discrimination because of sex, and it may be convinc- ing where the trait that is inconsistent with the stereotype is one that would be tolerated and perhaps even valued in a person of the opposite sex. See Much of the plaintiff ’s evidence in Price was of this nature. The plaintiff was a woman who was passed over for partnership at an accounting firm, and some of the adverse comments about her work appeared to criticize her for being forceful and insufficiently “feminin[e].” at 235–23. Cite as: 590 U. S. 19 LITO, J., dissenting The main issue in Price ––the proper alloca- tion of the burdens of proof in a so-called mixed motives Ti- tle VII case—is not relevant here, but the plurality opinion, endorsed by four Justices, commented on the issue of sex stereotypes. The plurality observed that “sex stereotypes do not inevitably prove that gender played a part in a par- ticular employment decision” but “can certainly be evidence that gender played a part.”17 nd the plurality made it clear that “[t]he plaintiff must show that the em- ployer actually relied on her gender in making its decision.” Plaintiffs who allege that they were treated unfavorably because of their sexual orientation or gender identity are not in the same position as the plaintiff in Price Water- house. In cases involving discrimination based on sexual orientation or gender identity, the grounds for the em- ployer’s decision—that individuals should be sexually at- tracted only to persons of the opposite biological sex or should identify with their biological sex—apply equally to men and women. “[H]eterosexuality is not a female stereo- type; it not a male stereotype; it is not a sex- specific stereotype at all.” (Sykes, J., dissenting). To be sure, there may be cases in which a gay, lesbian, or transgender individual can make a claim like the one in Price That is, there may be cases where traits or behaviors that some people associate with gays, lesbians, or transgender individuals are tolerated or valued in per- sons of one biological sex but not the other. But that is a —————— 17 Two other Justices concurred in the judgment but did not comment on the issue of stereotypes. See at 258–21 (opinion of White, J.); at 21–279 (opinion of O’Connor, J.). nd Justice Kennedy reiterated on behalf of the three Justices in dissent that “Title VII creates no independ- ent cause of action for sex stereotyping,” but he added that “[e]vidence of use by decisionms of sex stereotypes is, of course, quite relevant to the question of discriminatory intent.” 20 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting different matter. 2 second prominent argument made in support of the re- sult that the Court now reaches analogizes discrimination against gays and lesbians to discrimination against a per- son who is married to or has an intimate relationship with a person of a different race. Several lower court cases have held that discrimination on this ground violates Title VII. See, e.g., ; (C11 198). nd the logic of these decisions, it is argued, applies equally where an employee or applicant is treated unfavor- ably because he or she is married to, or has an intimate re- lationship with, a person of the same sex. This argument totally ignores the historically rooted rea- son why discrimination on the basis of an interracial rela- tionship constitutes race discrimination. nd without tak- ing history into account, it is not easy to see how the decisions in question fit the terms of Title VII. Recall that Title VII makes it unlawful for an employer to discriminate against an individual “because of such indi- vidual’s race.” 42 U.S. C. 000e–2(a) (emphasis added). So if an employer is happy to employ whites and blacks but will not employ any employee in an interracial relationship, how can it be said that the employer is discriminating against either whites or blacks “because of such individual’s race”? This employer would be applying the same rule to all its employees regardless of their race. The answer is that this employer is discriminating on a ground that history tells us is a core form of race discrimi- nation.18 “It would require absolute blindness to the history —————— 18 Notably, Title VII recognizes that in light of history distinctions on the basis of race are always disadvantageous, but it permits certain dis- Cite as: 590 U. S. 21 LITO, J., dissenting of racial discrimination in this country not to understand what is at stake in such cases prohibition on ‘race- mixing’ was grounded in bigotry against a particular race and was an integral part of preserving the rigid hier- archical distinction that denominated members of the black race as inferior to whites.” –159 (Lynch, J., dissenting). Discrimination because of sexual orientation is different. It cannot be regarded as a form of sex discrimination on the ground that applies in race cases since discrimination be- cause of sexual orientation is not historically tied to a pro- ject that aims to subjugate either men or women. n em- ployer who discriminates on this ground might be called “homophobic” or “transphobic,” but not sexist. See Wittmer v. Phillips Co., (Ho, J., concurring). 3 The opinion of the Court intimates that the term “sex” was not universally understood in 194 to refer just to the categories of male and female, see ante, and while the Court does not take up any alternative definition as a ground for its decision, I will say a word on this subject. s previously noted, the definitions of “sex” in the una- bridged dictionaries in use in the 190s are reproduced in ppendix infra. nyone who examines those definitions can see that the primary definition in every one of them re- fers to the division of living things into two groups, male and female, based on biology, and most of the definitions further down the list are the same or very similar. In addi- tion, some definitions refer to heterosexual sex acts. See —————— tinctions based on sex. Title 42 U.S. C. 000e–2(e)(1) allows for “in- stances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of [a] partic- ular business or enterprise.” Race is wholly absent from this list. 22 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting Random House Dictionary 1307 (“coitus,” “sexual inter- course” (defs. 5–)); merican Heritage Dictionary, at 1187 (“sexual intercourse” (def. 5)).19 side from these, what is there? One definition, “to neck passionately,” Random House Dictionary 1307 (def. 8), re- fers to sexual conduct that is not necessarily heterosexual. But can it be seriously argued that one of the aims of Title VII is to outlaw employment discrimination against em- ployees, whether heterosexual or homosexual, who engage in necking? nd even if Title VII had that effect, that is not what is at issue in cases like those before us. That brings us to the two remaining subsidiary defini- tions, both of which refer to sexual urges or instincts and their manifestations. See the fourth definition in the mer- ican Heritage Dictionary, at 1187 (“the sexual urge or in- stinct as it manifests itself in behavior”), and the fourth def- inition in both Webster’s Second and Third (“[p]henomena of sexual instincts and their manifestations,” Webster’s New International Dictionary, at 229 (2d ed.); Webster’s Third New International Dictionary 2081 (19)). Since both of these come after three prior definitions that refer to men and women, they are most naturally read to have the same association, and in any event, is it plausible that Title VII prohibits discrimination based on any sexual urge or instinct and its manifestations? The urge to rape? Viewing all these definitions, the overwhelming impact is that discrimination because of “sex” was understood during the era when Title VII was enacted to refer to men and women. (The same is true of current definitions, which are reproduced in ppendix B, infra.) This no doubt explains why neither this Court nor any of the lower courts have tried to make much of the dictionary definitions of sex just —————— 19 See merican Heritage Dictionary 1188 (199) (defining “sexual in- tercourse”); Webster’s Third New International Dictionary 2082 (19) (same); Random House Dictionary of the English Language 1308 (19) (same). Cite as: 590 U. S. 23 LITO, J., dissenting discussed. II So far, I have not looked beyond dictionary definitions of “sex,” but textualists like Justice Scalia do not confine their inquiry to the scrutiny of dictionaries. See Tex- tualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 109 (2001). Dictionary definitions are valuable because they are evidence of what people at the time of a statute’s enactment would have understood its words to mean. But they are not the only source of relevant evidence, and what matters in the end is the answer to the question that the evidence is gathered to resolve: How would the terms of a statute have been understood by ordinary people at the time of enactment? Justice Scalia was perfectly clear on this point. The words of a law, he insisted, “mean what they conveyed to reasonable people at the time.” Reading Law, at 1 (empha- sis added).20 Leading proponents of Justice Scalia’s school of textual- ism have expounded on this principle and explained that it is grounded on an understanding of the way language works. s Dean John F. explains, “the meaning of language depends on the way a linguistic community uses words and phrases in context.” What Divides Textu- alists From Purposivists? 10 Colum. L. Rev. (200). “[O]ne can make sense of others’ communications only by placing them in their appropriate social and linguistic con- text,” 9–80, and this is no less true of statutes than any other verbal communications. “[S]tatutes convey meaning only because members of a relevant linguistic —————— 20 See also (Scalia, J., dis- senting) (“We are to read the words of [a statutory] text as any ordinary Member of Congress would have read them and apply the meaning so determined”). 24 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting community apply shared background conventions for un- derstanding how particular words are used in particular contexts.” The bsurdity Doctrine, 11 Harv. L. Rev. 2387, 2457 Therefore, judges should ascribe to the words of a statute “what a reasonable person conver- sant with applicable social conventions would have under- stood them to be adopting.” 10 Colum. L. Rev., 7. Or, to put the point in slightly different terms, a judge interpreting a statute should ask “ ‘what one would ordinarily be understood as saying, given the circumstances in which one said it.’ ” 11 Harv. L. Rev., at 2397– 2398. Judge Frank Easterbrook has made the same points: “Words are arbitrary signs, having meaning only to the extent writers and readers share an understanding. Language in general, and legislation in particular, is a social enterprise to which both spes and listeners contribute, drawing on background understandings and the structure and circumstances of the utterance.” 9 F.2d 9, 982 (C7 1992). Consequently, “[s]licing a statute into phrases while ig- noring the setting of the enactment is a formula for disaster.” ; see also Continental Can 91 F.2d 1154, (“You don’t have to be Ludwig Wittgenstein or Hans-Georg Gadamer to know that successful communication depends on meanings shared by interpretive communities”). Thus, when textualism is properly understood, it calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what its words were understood to mean at the time of en- actment. Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a Cite as: 590 U. S. 25 LITO, J., dissenting distant and utterly unknown civilization. Statutes consist of communications between members of a particular lin- guistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time. For this reason, it is imperative to consider how meri- cans in 194 would have understood Title VII’s prohibition of discrimination because of sex. To get a picture of this, we may imagine this scene. Suppose that, while Title VII was under consideration in Congress, a group of average mer- icans decided to read the text of the bill with the aim of writing or calling their representatives in Congress and conveying their approval or disapproval. What would these ordinary citizens have taken “discrimination because of sex” to mean? Would they have thought that this language prohibited discrimination because of sexual orientation or gender identity? B The answer could not be clearer. In 194, ordinary mer- icans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination be- cause of sexual orientation, much less gender identity. The ordinary meaning of discrimination because of “sex” was discrimination because of a person’s biological sex, not sex- ual orientation or gender identity. The possibility that dis- crimination on either of these grounds might fit within some exotic understanding of sex discrimination would not have crossed their minds. 1 In 194, the concept of prohibiting discrimination “be- cause of sex” was no novelty. It was a familiar and well- understood concept, and what it meant was equal treat- ment for men and women. 2 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting Long before Title VII was adopted, many pioneering state and federal laws had used language substantively indistin- guishable from Title VII’s critical phrase, “discrimination because of sex.” For example, the California Constitution of 1879 stipulated that no one, “on account of sex, [could] be disqualified from entering upon or pursuing any lawful business, vocation, or profession.” rt. XX, (emphasis added). It also prohibited a student’s exclusion from any state university department “on account of sex.” rt. IX, accord, Mont. Const., rt. XI, (1889). Wyoming’s first Constitution proclaimed broadly that “[b]oth male and female citizens of this state shall equally enjoy all civil, political and religious rights and privileges,” rt. VI, (1890), and then provided specifically that “[i]n none of the public schools shall distinction or discrimi- nation be made on account of sex,” rt. VII, 0 (emphasis added); see also (the “university shall be equally open to students of both sexes”). Washington’s Constitution like- wise required “ample provision for the education of all chil- dren without distinction or preference on account of sex.” rt. IX, (1889) (emphasis added). The Constitution of Utah, adopted in 1895, provided that the right to vote and hold public office “shall not be denied or abridged on account of sex.” rt. IV, (emphasis added). nd in the next sentence it made clear what “on account of sex” meant, stating that “[b]oth male and female citizens shall enjoy equally all civil, political and religious rights and privileges.” The most prominent example of a provision using this language was the Nineteenth mendment, ratified in 1920, which bans the denial or abridgment of the right to vote “on account of sex.” U. S. Const., mdt. 19. Similar language appeared in the proposal of the National Woman’s Party for an Equal Rights mendment. s framed in 1921, this pro- posal forbade all “political, civil or legal disabilities or ine- qualities on account of sex, [o]r on account of marriage.” Cite as: 590 U. S. 27 LITO, J., dissenting Women Lawyers Meet: Representatives of 20 States En- dorse Proposed Equal Rights mendment, N. Y. Times, Sept. 1, 1921, p. 10. Similar terms were used in the precursor to the Equal Pay ct. Introduced in 1944 by Congresswoman Winifred C. Stanley, it proclaimed that “[d]iscrimination against em- ployees, in rates of compensation paid, on account of sex” was “contrary to the public interest.” H. R. 505, th Cong., 2d Sess. In 1952, the new Constitution for Puerto Rico, which was approved by Congress, Stat. 327, prohibited all “discrim- ination on account of sex,” rt. II, Bill of Rights (emphasis added), and in the landmark Immigration and Nationality ct of 1952, Congress outlawed discrimination in naturalization “because of sex.” 8 U.S. C. 422 (em- phasis added). In 1958, the International Labour Organisation, a United Nations agency of which the United States is a member, recommended that nations bar employment discrimination “made on the basis of sex.” Convention (No. 111) Con- cerning Discrimination in Respect of Employment and Oc- cupation, rt. 1(a), June 25, 1958, 32 U. N. T. S. 32 (em- phasis added). In 191, President Kennedy ordered the Civil Service Commission to review and modify personnel policies “to as- sure that selection for any career position is hereinafter made solely on the basis of individual merit and fitness, without regard to sex.”21 He concurrently established a “Commission on the Status of Women” and directed it to recommend policies “for overcoming discriminations in gov- ernment and private employment on the basis of sex.” Exec. Order No. 10980, 3 CFR 138 (191 Supp.) (emphasis —————— 21 J. Kennedy, Statement by the President on the Establishment of the President’s Commission on the Status of Women 3 (Dec. 14, 191) (emphasis added), https://www.jfklibrary.org/asset-viewer/archives/ JFKPOF/093/JFKPOF-093-004. 28 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting added). In short, the concept of discrimination “because of,” “on account of,” or “on the basis of ” sex was well understood. It was part of the campaign for equality that had been waged by women’s rights advocates for more than a century, and what it meant was equal treatment for men and women.22 2 Discrimination “because of sex” was not understood as having anything to do with discrimination because of sex- ual orientation or transgender status. ny such notion would have clashed in spectacular fashion with the societal norms of the day. For most 21st-century mericans, it is painful to be re- minded of the way our society once treated gays and lesbi- ans, but any honest effort to understand what the terms of Title VII were understood to mean when enacted must take into account the societal norms of that time. nd the plain truth is that in 194 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment. —————— 22 nalysis of the way Title VII’s key language was used in books and articles during the relevant time period supports this conclusion. study searched a vast database of documents from that time to determine how the phrase “discriminate against because of [some trait]” was used. Phillips, The Overlooked Evidence in the Title VII Cases: The Lin- guistic (and Therefore Textualist) Principle of Compositionality (manu- script, at 3) (brackets in original), https://ssrn.com/ abstract=3585940. The study found that the phrase was used to denote discrimination against “someone motivated by prejudice, or biased ideas or attitudes directed at people with that trait in particular.” In other words, “discriminate against” was “associated with negative treatment directed at members of a discrete group.” Thus, as used in 194, “discrimination because of sex” would have been understood to mean discrimination against a woman or a man based on “unfair beliefs or attitudes” about members of that par- ticular sex. Cite as: 590 U. S. 29 LITO, J., dissenting In its then-most recent Diagnostic and Statistical Manual of Mental Disorders (1952) (DSM–I), the merican Psychi- atric ssociation (P) classified same-sex attraction as a “sexual deviation,” a particular type of “sociopathic person- ality disturbance,” at 38–39, and the next edition, is- sued in 198, similarly classified homosexuality as a “sex- ual deviatio[n],” Diagnostic and Statistical Manual of Mental Disorders 44 (2d ed.) (DSM–II). It was not until the sixth printing of the DSM–II in 1973 that this was changed.23 Society’s treatment of homosexuality and homosexual conduct was consistent with this understanding. Sodomy was a crime in every State but Illinois, see W. Eskridge, Dishonorable Passions 387–407 and in the District of Columbia, a law enacted by Congress made sodomy a fel- ony punishable by imprisonment for up to 10 years and per- mitted the indefinite civil commitment of “sexual psycho- path[s],” ct of June 9, 1948, §04, 201–207, 2 Stat. 347– 349.24 —————— 23 P, Homosexuality and Sexual Orientation Disturbance: Proposed Change in DSM–II, th Printing, p. 44 (P Doc. Ref. No. 730008, 1973) (reclassifying “homosexuality” as a “[s]exual orientation disturbance,” a category “for individuals whose sexual interests are directed primarily toward people of the same sex and who are either disturbed by or wish to change their sexual orientation,” and explaining that “homosex- uality by itself does not constitute a psychiatric disorder”); see also P, Diagnostic and Statistical Manual of Mental Disorders 281–282 (DSM–III) (similarly creating category of “Ego-dystonic Homo- sexuality” for “homosexuals for whom changing sexual orientation is a persistent concern,” while observing that “homosexuality itself is not con- sidered a mental disorder”); 57 U.S. 44, 1 (2015). 24 In 1981, after achieving home rule, the District attempted to decrim- inalize sodomy, see D. C. ct No. 4–9, but the House of Representatives vetoed the bill, H. Res. 208, 97th Cong., 1st Sess. (1981); 127 Cong. Rec. 2274–22779 (1981). Sodomy was not decriminalized in the District un- til 1995. See nti-Sexual buse ct of 1994, 01(b), 41 Dall. C. Reg. 53 (1995), enacted as D. C. Law 10–257. 30 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting This view of homosexuality was reflected in the rules gov- erning the federal work force. In 194, federal “[a]gencies could deny homosexual men and women employment be- cause of their sexual orientation,” and this practice contin- ued until 1975. GO, D. Heivilin, Security Clearances: Consideration of Sexual Orientation in the Clearance Pro- cess 2 (GO/NSID–95–21, 1995). See, e.g., nonymous v. Macy, (C5 198) (affirming dismissal of postal employee for homosexual acts). In 194, individuals who were known to be homosexual could not obtain security clearances, and any who possessed clearances were likely to lose them if their orientation was discovered. 1953 Executive Order provided that back- ground investigations should look for evidence of “sexual perversion,” as well as “[a]ny criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct.” Exec. Order No. 10450, 3 CFR (1949–1953 Comp.). “Until about 1991, when agencies began to change their se- curity policies and practices regarding sexual orientation, there were a number of documented cases where defense civilian or contractor employees’ security clearances were denied or revoked because of their sexual orientation.” GO, Security Clearances, at 2. See, e.g., (CDC 199) (upholding denial of secu- rity clearance to defense contractor employee because he had “engaged in repeated homosexual acts”); see also Web- 48 U.S. 592, 595, 01 (concluding that decision to fire a particular individual because he was ho- mosexual fell within the “discretion” of the Director of Cen- tral Intelligence under the National Security ct of 1947 and thus was unreviewable under the P). The picture in state employment was similar. In 194, it was common for States to bar homosexuals from serving as teachers. n article summarizing the situation 15 years af- ter Title VII became law reported that “[a]ll states have statutes that permit the revocation of teaching certificates Cite as: 590 U. S. 31 LITO, J., dissenting (or credentials) for immorality, moral turpitude, or unpro- fessionalism,” and, the survey added, “[h]omosexuality is considered to fall within all three categories.”25 The situation in California is illustrative. California laws prohibited individuals who engaged in “immoral conduct” (which was construed to include homosexual behavior), as well as those convicted of “sex offenses” (like sodomy), from employment as teachers. Cal. Educ. Code nn. §3202, 13207, 13209, 13218, 13255 (West 190). The teaching cer- tificates of individuals convicted of engaging in homosexual acts were revoked. See, e.g., Sarac v. State Bd. of Ed., 249 Cal. pp. 2d 58, 2–4, 57 Cal. Rptr. 9, (197) (up- holding revocation of secondary teaching credential from teacher who was convicted of engaging in homosexual con- duct on public beach), overruled in part, 41 P.2d 375 (199). In Florida, the legislature enacted laws authorizing the revocation of teaching certificates for “misconduct involving moral turpitude,” Fla. Stat. nn. 29.08(1) (191), and this law was used to target homosexual conduct. In 194, a legislative committee was wrapping up a -year campaign to remove homosexual teachers from public schools and state universities. s a result of these efforts, the state board of education apparently revoked at least 71 teachers’ certificates and removed at least 14 university professors. Eskridge, Dishonorable Passions, at 103. Individuals who engaged in homosexual acts also faced the loss of other occupational licenses, such as those needed to work as a “lawyer, doctor, mortician, [or] beautician.”2 See, e.g., Florida 232 So. 2d 3 2 Eskridge, Challenging the partheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 191–1981, 32 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting public bathroom). In 194 and for many years thereafter, homosexuals were barred from the military. See, e.g., rmy Reg. 35–89, (a) (July 15, 19) (“Personnel who voluntarily engage in homosexual acts, irrespective of sex, will not be permitted to serve in the rmy in any capacity, and their prompt sep- aration is mandatory”); rmy Reg. 00–443, (pril 10, 1953) (similar). Prohibitions against homosexual conduct by members of the military were not eliminated until 2010. See Don’t sk, Don’t Tell Repeal ct of 2010, (repealing 10 U.S. C. 54, which required members of the rmed Forces to be separated for engaging in homosexual conduct). Homosexuals were also excluded from entry into the United States. The Immigration and Nationality ct of 1952 (IN) excluded aliens “afflicted with psychopathic per- sonality.” 8 U.S. C. 182(a)(4) (194 ed.). In v. INS, (197), this Court, relying on the IN’s legislative history, interpreted that term to en- compass homosexuals and upheld an alien’s deportation on that ground. Three Justices disagreed with the majority’s interpretation of the phrase “psychopathic personality.”27 But it apparently did not occur to anyone to argue that the Court’s interpretation was inconsistent with the IN’s ex- press prohibition of discrimination “because of sex.” That was how our society—and this Court—saw things a half century ago. Discrimination because of sex and discrimina- tion because of sexual orientation were viewed as two en- tirely different concepts. To its credit, our society has now come to recognize the injustice of past practices, and this recognition provides the impetus to “update” Title VII. But that is not our job. Our —————— 27 Justices Douglas and Fortas thought that a homosexual is merely “one, who by some freak, is the product of an arrested development.” ; see also (Brennan, J., dissenting) (based on lower court dissent). Cite as: 590 U. S. 33 LITO, J., dissenting duty is to understand what the terms of Title VII were un- derstood to mean when enacted, and in doing so, we must take into account the societal norms of that time. We must therefore ask whether ordinary mericans in 194 would have thought that discrimination because of “sex” carried some exotic meaning under which private-sector employers would be prohibited from engaging in a practice that repre- sented the official policy of the Federal Government with respect to its own employees. We must ask whether mer- icans at that time would have thought that Title VII banned discrimination against an employee for engaging in conduct that Congress had made a felony and a ground for civil commitment. The questions answer themselves. Even if discrimination based on sexual orientation or gender identity could be squeezed into some arcane understanding of sex discrimi- nation, the context in which Title VII was enacted would tell us that this is not what the statute’s terms were under- stood to mean at that time. To paraphrase something Jus- tice Scalia once wrote, “our job is not to scavenge the world of English usage to discover whether there is any possible meaning” of discrimination because of sex that might be broad enough to encompass discrimination because of sex- ual orientation or gender identity. 501 U.S. 380, 410 (dissenting opinion). Without strong evidence to the contrary (and there is none here), our job is to ascertain and apply the “ordinary meaning” of the stat- ute. nd in 194, ordinary mericans most certainly would not have understood Title VII to ban discrimination because of sexual orientation or gender identity. The Court makes a tiny effort to suggest that at least some people in 194 might have seen what Title VII really means. nte, at 2. What evidence does it adduce? One complaint filed in 199, another filed in 1974, and argu- ments made in the mid-19s about the meaning of the Equal Rights mendment. To call this evidence 34 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting merely feeble would be generous. C While mericans in 194 would have been shocked to learn that Congress had enacted a law prohibiting sexual orientation discrimination, they would have been bewil- dered to hear that this law also forbids discrimination on the basis of “transgender status” or “gender identity,” terms that would have left people at the time scratching their heads. The term “transgender” is said to have been coined “ ‘in the early 19s,’ ”28 and the term “gender identity,” now understood to mean “[a]n internal sense of being male, fe- male or something else,”29 apparently first appeared in an academic article in 194.30 Certainly, neither term was in common parlance; indeed, dictionaries of the time still pri- marily defined the word “gender” by reference to grammat- ical classifications. See, e.g., merican Heritage Diction- ary, 48 (def. 1(a)) (“ny set of two or more categories, such as masculine, feminine, and neuter, into which words are divided and that determine agreement with or the —————— 28 Transsexualism, Gender Identity Disorder and the DSM, 14 J. Gay & Lesbian Mental Health 109, 110 (2010). 29 merican Psychological ssociation, 49 Monitor on Psychology, at 32. 30 Green, Robert Stoller’s Sex and Gender: 40 Years On, 39 rchives Sexual Behav. 1457 (2010); see Stoller, Contribution to the Study of Gender Identity, 45 Int’l J. Psychoanalysis 220 (194). The term appears to have been coined a year or two earlier. See Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in cademic Titles, 1945–2001, 33 rchives Sexual Behav. 87, 93 (2004) (suggesting the term was first introduced at 23rd International Psycho-nalytical Con- gress in Stockholm in 193); J. Meyerowitz, How Sex Changed 213 (2002) (referring to founding of “Gender Identity Research Clinic” at UCL in 192). In his book, Sex and Gender, published in 198, Robert Stoller referred to “gender identity” as “a working term” “associated with” his research team but noted that they were not “fixed on copyrighting the term or on defending the concept as one of the splendors of the scientific world.” Sex and Gender, p. viii. Cite as: 590 U. S. 35 LITO, J., dissenting selection of modifiers, referents, or grammatical forms”). While it is likely true that there have always been indi- viduals who experience what is now termed “gender dys- phoria,” i.e., “[d]iscomfort or distress related to an incongru- ence between an individual’s gender identity and the gender assigned at birth,”31 the current understanding of the concept postdates the enactment of Title VII. Nothing resembling what is now called gender dysphoria appeared in either DSM–I (1952) or DSM–II (198). It was not until that the P, in DSM–III, recognized two main psy- chiatric diagnoses related to this condition, “Gender Iden- tity Disorder of Childhood” and “Transsexualism” in adoles- cents and adults.32 DSM–III, at 21–2. The first widely publicized sex reassignment surgeries in the United States were not performed until 19,33 and the great majority of physicians surveyed in 199 thought that an individual who sought sex reassignment surgery was ei- ther “ ‘severely neurotic’ ” or “ ‘psychotic.’ ”34 It defies belief to suggest that the public meaning of dis- crimination because of sex in 194 encompassed discrimi- nation on the basis of a concept that was essentially un- known to the public at that time. D 1 The Court’s main excuse for entirely ignoring the social context in which Title VII was enacted is that the meaning of Title VII’s prohibition of discrimination because of sex is —————— 31 merican Psychological ssociation, 49 Monitor on Psychology, at 32. 32 See 33 Buckley, Changing of Sex by Surgery Begun at Johns Hopkins, N. Y. Times, Nov. 21, 19, p. 1, col. 8; see also J. Meyerowitz, How Sex Changed 218–220 (2002). 34 ( Green, ttitudes Toward Transsex- ualism and Sex-Reassignment Procedures, in Transsexualism and Sex Reassignment 241–242 (R. Green & J. Money eds. 199)). 3 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting clear, and therefore it simply does not matter whether peo- ple in 194 were “smart enough to realize” what its lan- guage means. 853 F.3d, (Posner, J., concur- ring). ccording to the Court, an argument that looks to the societal norms of those times represents an impermis- sible attempt to displace the statutory language. nte, at 25–2. The Court’s argument rests on a false premise. s al- ready explained at length, the text of Title VII does not pro- hibit discrimination because of sexual orientation or gender identity. nd what the public thought about those issues in 194 is relevant and important, not because it provides a ground for departing from the statutory text, but because it helps to explain what the text was understood to mean when adopted. In arguing that we must put out of our minds what we know about the time when Title VII was enacted, the Court relies on Justice Scalia’s opinion for the Court in Oncale v. Sundowner Offshore Services, Inc., But Oncale is nothing like these cases, and no one should be taken in by the majority’s effort to enlist Justice Scalia in its updating project. The Court’s unanimous decision in Oncale was thor- oughly unremarkable. The Court held that a male em- ployee who alleged that he had been sexually harassed at work by other men stated a claim under Title VII. lthough the impetus for Title VII’s prohibition of sex discrimination was to protect women, anybody reading its terms would im- mediately appreciate that it applies equally to both sexes, and by the time Oncale reached the Court, our precedent already established that sexual harassment may constitute sex discrimination within the meaning of Title VII. See Meritor Savings Bank, (198). Given these premises, syllogistic reasoning dictated the holding. Cite as: 590 U. S. 37 LITO, J., dissenting What today’s decision latches onto are Oncale’s com- ments about whether “ ‘male-on-male sexual harassment’ ” was on Congress’s mind when it enacted Title VII. nte, at 28 ( 523 U.S., 9). The Court in Oncale observed that this specific type of behavior “was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” but it found that immaterial because “statutory prohibitions often go beyond the principal evil to cover rea- sonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legis- lators by which we are governed.” 523 U.S., 9 (empha- sis added). It takes considerable audacity to read these comments as committing the Court to a position on deep philosophical questions about the meaning of language and their implica- tions for the interpretation of legal rules. These comments are better understood as stating mundane and uncontrover- sial truths. Who would argue that a statute applies only to the “principal evils” and not lesser evils that fall within the plain scope of its terms? Would even the most ardent “pur- posivists” and fans of legislative history contend that congressional intent is restricted to Congress’s “principal concerns”? Properly understood, Oncale does not provide the slight- est support for what the Court has done today. For one thing, it would be a wild understatement to say that dis- crimination because of sexual orientation and transgender status was not the “principal evil” on Congress’s mind in 194. Whether we like to admit it now or not, in the think- ing of Congress and the public at that time, such discrimi- nation would not have been evil at all. But the more important difference between these cases and Oncale is that here the interpretation that the Court adopts does not fall within the ordinary meaning of the stat- utory text as it would have been understood in 194. To 38 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting decide for the defendants in Oncale, it would have been nec- essary to carve out an exception to the statutory text. Here, no such surgery is at issue. Even if we totally disregard the societal norms of 194, the text of Title VII does not support the Court’s holding. nd the reasoning of Oncale does not preclude or counsel against our taking those norms into ac- count. They are relevant, not for the purpose of creating an exception to the terms of the statute, but for the purpose of better appreciating how those terms would have been un- derstood at the time. 2 The Court argues that two other decisions––Phillips v. Martin Marietta Corp., and Los ngeles Dept. of Water and Power v. Manhart, 435 U.S. 2 (19)––buttress its decision, but those cases merely held that Title VII prohibits employer conduct that plainly constitutes discrimination because of biological sex. In Philips, the employer treated women with young chil- dren less favorably than men with young children. In Man- hart, the employer required women to make larger pension contributions than men. It is hard to see how these hold- ings assist the Court. The Court extracts three “lessons” from Phillips, Man- hart, and Oncale, but none sheds any light on the question before us. The first lesson is that “it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.” nte, at 14. This lesson is obviously true but proves nothing. s to the label attached to a practice, has anyone ever thought that the application of a law to a person’s conduct depends on how it is labeled? Could a bank robber escape conviction by saying he was engaged in asset enhancement? So if an em- ployer discriminates because of sex, the employer is liable no matter what it calls its conduct, but if the employer’s Cite as: 590 U. S. 39 LITO, J., dissenting conduct is not sex discrimination, the statute does not ap- ply. Thus, this lesson simply takes us back to the question whether discrimination because of sexual orientation or gender identity is a form of discrimination because of bio- logical sex. For reasons already discussed, see Part I–, it is not. It likewise proves nothing of relevance here to note that an employer cannot escape liability by showing that dis- crimination on a prohibited ground was not its sole motiva- tion. So long as a prohibited ground was a motivating fac- tor, the existence of other motivating factors does not defeat liability. The Court makes much of the argument that “[i]n Phil- lips, the employer could have accurately spoken of its policy as one based on ‘motherhood.’ ” nte, at 14; see also ante, at 1. But motherhood, by definition, is a condition that can be experienced only by women, so a policy that distin- guishes between motherhood and parenthood is necessarily a policy that draws a sex-based distinction. There was sex discrimination in Phillips, because women with children were treated disadvantageously compared to men with children. Lesson number two—“the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action,” ante, at 14—is similarly unhelpful. The standard of causa- tion in these cases is whether sex is necessarily a “motivat- ing factor” when an employer discriminates on the basis of sexual orientation or gender identity. 42 U.S. C. 000e– 2(m). But the essential question—whether discrimination because of sexual orientation or gender identity constitutes sex discrimination—would be the same no matter what cau- sation standard applied. The Court’s extensive discussion of causation standards is so much smoke. Lesson number three––“an employer cannot escape lia- bility by demonstrating that it treats males and females comparably as groups,” ante, is also irrelevant. There 40 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting is no dispute that discrimination against an individual em- ployee based on that person’s sex cannot be justified on the ground that the employer’s treatment of the average em- ployee of that sex is at least as favorable as its treatment of the average employee of the opposite sex. Nor does it mat- ter if an employer discriminates against only a subset of men or women, where the same subset of the opposite sex is treated differently, as in Phillips. That is not the issue here. n employer who discriminates equally on the basis of sexual orientation or gender identity applies the same criterion to every affected individual regardless of sex. See Part I–, III Because the opinion of the Court flies a textualist flag, I have taken pains to show that it cannot be defended on tex- tualist grounds. But even if the Court’s textualist argu- ment were stronger, that would not explain today’s deci- sion. Many Justices of this Court, both past and present, have not espoused or practiced a method of statutory inter- pretation that is limited to the analysis of statutory text. Instead, when there is ambiguity in the terms of a statute, they have found it appropriate to look to other evidence of “congressional intent,” including legislative history. So, why in these cases are congressional intent and the legislative history of Title VII totally ignored? ny assess- ment of congressional intent or legislative history seriously undermines the Court’s interpretation. B s the Court explained in General Elec. Co. v. Gilbert, 429 U.S. 125, 143 (197), the legislative history of Title VII’s prohibition of sex discrimination is brief, but it is neverthe- less revealing. The prohibition of sex discrimination was “added to Title VII at the last minute on the floor of the Cite as: 590 U. S. 41 LITO, J., dissenting House of Representatives,” Meritor Savings Bank, 477 U.S., at 3, by Representative Howard Smith, the Chair- man of the Rules Committee. See 110 Cong. Rec. 2577 (194). Representative Smith had been an ardent opponent of the civil rights bill, and it has been suggested that he added the prohibition against discrimination on the basis of “sex” as a poison pill. See, e.g., v. Eastern irlines, Inc., On this theory, Rep- resentative Smith thought that prohibiting employment discrimination against women would be unacceptable to Members who might have otherwise voted in favor of the bill and that the addition of this prohibition might bring about the bill’s defeat.35 But if Representative Smith had been looking for a poison pill, prohibiting discrimination on the basis of sexual orientation or gender identity would have been far more potent. However, neither Representa- tive Smith nor any other Member said one word about the possibility that the prohibition of sex discrimination might have that meaning. Instead, all the debate concerned dis- crimination on the basis of biological sex.3 See 110 Cong. Rec. 2577–2584. Representative Smith’s motivations are contested, 883 F. 3d, at 139–140 (Lynch, J., dissenting), but whatever they —————— 35 See Origins of a Myth: Why Courts, Scholars, and the Public Think Title VII’s Ban on Sex Discrimination Was an ccident, 20 Yale J. L. & Feminism 409, 409–410 (2009). 3 Recent scholarship has linked the adoption of the Smith mendment to the broader campaign for women’s rights that was underway at the time. E.g., Freeman, How Sex Got Into Title VII: Per- sistent Opportunism as a M of Public Policy, 9 L. & Ineq. 13 ; Barzilay, Parenting Title VII: Rethinking the History of the Sex Discrim- ination Provision, 28 Yale J. L. & Feminism 55 (201); Gold, Tale of Two mendments: The Reasons Congress dded Sex to Title VII and Their Implication for the Issue of Comparable Worth, 19 Duquesne L. Rev. 453 (1981). None of these studies has unearthed evidence that the amendment was understood to apply to discrimination because of sexual orientation or gender identity. 42 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting were, the meaning of the adoption of the prohibition of sex discrimination is clear. It was no accident. It grew out of “a long history of women’s rights advocacy that had increas- ingly been gaining mainstream recognition and ac- ceptance,” and it marked a landmark achievement in the path toward fully equal rights for women. “Dis- crimination against gay women and men, by contrast, was not on the table for public debate [i]n those dark, pre- Stonewall days.” For those who regard congressional intent as the touch- stone of statutory interpretation, the message of Title VII’s legislative history cannot be missed. C Post-enactment events only clarify what was apparent when Title VII was enacted. s noted, bills to add “sexual orientation” to Title VII’s list of prohibited grounds were in- troduced in every Congress beginning in 1975, see at 2, and two such bills were before Congress in 199137 when it made major changes in Title VII. t that time, the three Courts of ppeals to reach the issue had held that Title VII does not prohibit discrimination because of sexual orienta- tion,38 two other Circuits had endorsed that interpretation in dicta,39 and no Court of ppeals had held otherwise. Sim- ilarly, the three Circuits to address the application of Title VII to transgender persons had all rejected the argument —————— 37 H. R. 1430, 102d Cong., 1st Sess., (d) ; S. 574, 102d Cong., 1st Sess., 38 See Williamson v. G. Edwards & Sons, Inc., 87 F.2d 9, cert. denied, ; 08 F.2d 327, ; 597 F.2d 93, 39 ; v. Eastern irlines, Inc., 1084– cert. denied, Cite as: 590 U. S. 43 LITO, J., dissenting that it covered discrimination on this basis.40 These were also the positions of the EEOC.41 In enacting substantial changes to Title VII, the 1991 Congress abrogated numer- ous judicial decisions with which it disagreed. If it also dis- agreed with the decisions regarding sexual orientation and transgender discrimination, it could have easily overruled those as well, but it did not do so.42 fter 1991, six other Courts of ppeals reached the issue of sexual orientation discrimination, and until every single Court of ppeals decision understood Title VII’s pro- hibition of “discrimination because of sex” to mean discrim- ination because of biological sex. See, e.g., Higgins v. New Balance thletic Shoe, Inc., (C1 1999); 3 (C2 2000); Bibby v. Philadelphia Coca Cola Bottling Co., 20 F. 3d 257, 21 (C3 2001), cert. denied, (2002); Wrightson v. Pizza Hut of m., Inc., 143 (C4 199); 102 ; ; Ev- (C11), cert. denied, 583 U. S. Similarly, the other Circuit to formally address whether Title VII applies to claims of discrimination based on transgender status had also rejected the argument, creating unanimous consensus prior to the Sixth Circuit’s decision below. See Etsitty v. Utah Transit uthority, 1220–1221 ; Holloway v. rthur ndersen & Co., 5 F.2d 59, 1–3 41 WL 1111074, ; WL 7745, 42 In more recent legislation, when Congress has wanted to reach acts committed because of sexual orientation or gender identity, it has re- ferred to those grounds by name. See, e.g., 18 U.S. C. 49(a)(2)() (hate crimes) (enacted 2009); 34 U.S. C. 2291(b)(13)() (certain federally funded programs) (enacted 2013). 44 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting 2007). The Court observes that “[t]he people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms,” ante, at 24, but it has no qualms about disregarding over 50 years of uniform judicial inter- pretation of Title VII’s plain text. Rather, the Court makes the jaw-dropping statement that its decision exemplifies “judicial humility.” nte, at 31. Is it humble to maintain, not only that Congress did not understand the terms it en- acted in 194, but that all the Circuit Judges on all the pre- cases could not see what the phrase discrimination “because of sex” really means? If today’s decision is humble, it is sobering to imagine what the Court might do if it de- cided to be bold. IV What the Court has done today––interpreting discrimi- nation because of “sex” to encompass discrimination be- cause of sexual orientation or gender identity––is virtually certain to have far-reaching consequences. Over 100 fed- eral statutes prohibit discrimination because of sex. See ppendix C, infra; e.g., 20 U.S. C. 1(a) (Title IX); 42 U.S. C. §331 (Fair Housing ct); 15 U.S. C. 191(a)(1) (Equal Credit Opportunity ct). The briefs in these cases have called to our attention the potential effects that the Court’s reasoning may have under some of these laws, but the Court waves those considerations aside. s to Title VII itself, the Court dismisses questions about “bathrooms, locker rooms, or anything else of the kind.” nte, at 31. nd it declines to say anything about other statutes whose terms mirror Title VII’s. The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible. If the Court had allowed the legislative process to take its course, Congress would have had the opportunity to consider competing interests and might have found a way of accommodating at least Cite as: 590 U. S. 45 LITO, J., dissenting some of them. In addition, Congress might have crafted special rules for some of the relevant statutes. But by in- tervening and proclaiming categorically that employment discrimination based on sexual orientation or gender iden- tity is simply a form of discrimination because of sex, the Court has greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution. Before issuing today’s radical decision, the Court should have given some thought to where its decision would lead. s the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unal- loyed victory for individual liberty. I will briefly note some of the potential consequences of the Court’s decision, but I do not claim to provide a compre- hensive survey or to suggest how any of these issues should necessarily play out under the Court’s reasoning.43 “[B]athrooms, locker rooms, [and other things] of [that] kind.” The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individ- uals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for oth- ers, there is more at stake. For women who have been vic- timized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a con- fined and sensitive location such as a bathroom or locker room can cause serious psychological harm.44 Under the Court’s decision, however, transgender per- sons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the —————— 43 Contrary to the implication in the Court’s opinion, I do not label these potential consequences “undesirable.” nte, at 31. I mention them only as possible implications of the Court’s reasoning. 44 Brief for Defend My Privacy et al. as mici Curiae 7–10. 4 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting sex with which they identify, and while the Court does not define what it means by a transgender person, the term may apply to individuals who are “gender fluid,” that is, in- dividuals whose gender identity is mixed or changes over time.45 Thus, a person who has not undertaken any physi- cal transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person’s claim to such bathroom or locker room access might not succeed. similar issue has arisen under Title IX, which prohibits sex discrimination by any elementary or secondary school and any college or university that receives federal financial assistance.4 In 201, a Department of Justice advisory warned that barring a student from a bathroom assigned to individuals of the gender with which the student identifies constitutes unlawful sex discrimination,47 and some lower court decisions have agreed. See ; G. 822 F.3d 9, 715 (C4 201), vacated and remanded, 580 U. S. ; dams v. School Bd. of St. Johns Cty., F. Supp. 3d 1293, 1325 ; cf. Doe v. Boyertown rea —————— 45 See 1 Comprehensive Textbook of Psychiatry, at 203 (ex- plaining that “gender is now often regarded as more fluid” and “[t]hus, gender identity may be described as masculine, feminine, or somewhere in between”). 4 Title IX makes it unlawful to discriminate on the basis of sex in ed- ucation: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Fed- eral financial assistance.” 20 U.S. C. 1(a). 47 See Dept. of Justice & Dept. of Education, Dear Colleague Letter on Transgender Students, May 13, 201 (Dear Colleague Letter), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20105-title- ix-transgender.pdf. Cite as: 590 U. S. 47 LITO, J., dissenting School Dist., cert. denied, 587 U. S. Women’s sports. nother issue that may come up under both Title VII and Title IX is the right of a transgender in- dividual to participate on a sports team or in an athletic competition previously reserved for members of one biolog- ical sex.48 This issue has already arisen under Title IX, where it threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports. The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but iden- tify as female and students who are taking male hormones in order to transition from female to male. See, e.g., Com- plaint in Soule v. Connecticut ssn. of Schools, No. 3:20–cv– 00201 (challenging Connecticut policy allowing transgender students to compete in girls’ high school sports); Complaint in Hecox v. Little, No. 1:20– cv–00184 (challenging state law that bars transgender students from participating in school sports in accordance with gender identity). Students in these latter categories have found success in athletic com- petitions reserved for females.49 —————— 48 regulation allows single-sex teams, 34 CFR 0.41(b) but the statute itself would of course take precedence. 49 “[S]ince two biological males [in Connecticut] have collectively won 15 women’s state championship titles (previously held by ten differ- ent Connecticut girls) against biologically female track athletes.” Brief for Independent Women’s Forum et al. as mici Curiae in No. 18–107, pp. 14–15. t the college level, a transgendered woman (biological male) switched from competing on the men’s Division II track team to the women’s Divi- sion II track team at Franklin Pierce University in New Hampshire after taking a year of testosterone suppressants. While this student had placed “eighth out of nine male athletes in the 400 meter hurdles the 48 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting The logic of the Court’s decision could even affect profes- sional sports. Under the Court’s holding that Title VII pro- hibits employment discrimination because of transgender status, an athlete who has the physique of a man but iden- tifies as a woman could claim the right to play on a women’s professional sports team. The owners of the team might try to claim that biological sex is a bona fide occupational qual- ification (BFOQ) under 42 U.S. C. 000e–2(e), but the BFOQ exception has been read very narrowly. See Dothard v. Rawlinson, Housing. The Court’s decision may lead to Title IX cases against any college that resists assigning students of the opposite biological sex as roommates. provision of Title IX, 20 U.S. C. allows schools to maintain “separate living facilities for the different sexes,” but it may be argued that a student’s “sex” is the gender with which the student identifies.50 Similar claims may be brought under the Fair Housing ct. See 42 U.S. C. §304. Employment by religious organizations. Briefs filed by a wide range of religious groups––Christian, Jewish, and Muslim––express deep concern that the position now adopted by the Court “will trigger open conflict with faith- —————— year before, the student won the women’s competition by over a second and a half––a time that had garnered tenth place in the men’s conference meet just three years before.” transgender male—i.e., a biological female who was in the process of transitioning to male and actively taking testosterone injections––won the Texas girls’ state championship in high school wrestling in Babb, Transgender Issue Hits Mat in Texas, Washington Post, Feb. 2, p. 1, col. 1. 50 Indeed, the 201 advisory letter issued by the Department of Justice took the position that under Title IX schools “must allow transgender students to access housing consistent with their gender identity.” Dear Colleague Letter 4. Cite as: 590 U. S. 49 LITO, J., dissenting based employment practices of numerous churches, syna- gogues, mosques, and other religious institutions.”51 They argue that “[r]eligious organizations need employees who actually live the faith,”52 and that compelling a religious or- ganization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to com- municate an objectionable message. This problem is perhaps most acute when it comes to the employment of teachers. school’s standards for its faculty “communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may under- mine the school’s “moral teaching.”53 Thus, if a religious school teaches that sex outside marriage and sex reassign- ment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relation- ship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment. t least some teachers and applicants for teaching posi- tions may be blocked from recovering on such claims by the “ministerial exception” recognized in Hosanna-Tabor Evan- gelical Lutheran Church and 55 U.S. 171 Two cases now pending before the Court present the question whether teachers who provide religious in- struction can be considered to be “ministers.”54 But even if teachers with those responsibilities qualify, what about other very visible school employees who may not qualify for —————— 51 Brief for National ssociation of Evangelicals et al. as mici Curiae 3; see also Brief for United States Conference of Catholic Bishops et al. as mici Curiae in No. 18–107, pp. 8–18. 52 Brief for National ssociation of Evangelicals et al. as mici Curiae 7. 53 McConnell, cademic Freedom in Religious Colleges and Universi- ties, 53 Law & Contemp. Prob. 303, 322 54 See Our Lady of Guadalupe School v. Morrissey-Berru, No. 19–27; St. James School v. Biel, No. 19–348. 50 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting the ministerial exception? Provisions of Title VII provide exemptions for certain religious organizations and schools “with respect to the employment of individuals of a partic- ular religion to perform work connected with the carrying on” of the “activities” of the organization or school, 42 U.S. C. 000e–1(a); see also 000e–2(e)(2), but the scope of these provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection.55 Healthcare. Healthcare benefits may emerge as an in- tense battleground under the Court’s holding. Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery.5 Similar claims have been brought under the ffordable Care ct (C), which broadly prohibits sex discrimination in the provision of healthcare.57 —————— 55 See, e.g., EEOC v. Kamehameha Schools/Bishop Estate, 990 F.2d 458, 40 (C9 1993); 1 F.2d 132, 135–137 (C9 198); Rayburn v. General Conference of Seventh-day dventists, 772 F.2d 114, 11 ; 2 F.2d 477, 484–48 ; see also Brief for United States Conference of Catholic Bishops et al. as mici Curiae in No. 18–107, at 30, n. 28 (discussing disputed scope). In addition, 42 U.S. C. 000e– 2(e)(1) provides that religion may be a BFOQ, and allows religious schools to hire religious employees, but as noted, the BFOQ exception has been read narrowly. See 5 See, e.g., mended Complaint in Toomey v. rizona, No. 4:19–cv– 00035 t least one District Court has already held that a state health insurance policy that does not provide coverage for sex reassignment surgery violates Title VII. Fletcher v. laska, F. Supp. 3d WL 2480, 57 See, e.g., Complaint in Conforti v. St. Joseph’s Healthcare System, No. 2:17–cv–00050 (transgender man claims dis- crimination under the C because a Catholic hospital refused to allow a surgeon to perform a hysterectomy). nd multiple District Courts have already concluded that the C requires health insurance coverage for sex reassignment surgery and treatment. WL 119271, 51 LITO, J., dissenting Such claims present difficult religious liberty issues be- cause some employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs. Freedom of speech. The Court’s decision may even affect the way employers address their employees and the way teachers and school officials address students. Under es- tablished English usage, two sets of sex-specific singular personal pronouns are used to refer to someone in the third person (he, him, and his for males; she, her, and hers for females). But several different sets of gender-neutral pro- nouns have now been created and are preferred by some in- dividuals who do not identify as falling into either of the two traditional categories.58 Some jurisdictions, such as —————— claims of discrimination under C, Title IX, and Equal Protection Clause); 952–954 (allowing C claim). Section 1557 of the C, 42 U.S. C. 11, provides: “Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights ct of 194 (42 U.S. C. 2000d et seq.), title IX of the Education mendments of 1972 (20 U.S. C. 181 et seq.), the ge Discrimination ct of 1975 (42 U.S. C. 101 et seq.), or section 794 of title 29, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive gency or any entity established under this title (or amendments). The enforcement mechanisms pro- vided for and available under such title VI, title IX, section 794, or such ge Discrimination ct shall apply for purposes of violations of this sub- section.” (Footnote omitted.) 58 See, e.g., University of Wisconsin Milwaukee Lesbian, Gay, Bisexual, Transgender, Queer Plus (LGBTQ+) Resource Center, Gender Pronouns https://uwm.edu/lgbtrc/support/gender-pronouns/ (listing six new categories of pronouns: (f )ae, (f )aer, (f )aers; e/ey, em, eir, eirs; per, pers; 52 BOSTOCK v. CLYTON COUNTY LITO, J., dissenting New York City, have ordinances making the failure to use an individual’s preferred pronoun a punishable offense,59 and some colleges have similar rules.0 fter today’s deci- sion, plaintiffs may claim that the failure to use their pre- ferred pronoun violates one of the federal laws prohibiting sex discrimination. See 25 F. Supp. 3d 1090, 1098–1100 (hospital staff ’s refusal to use preferred pronoun vio- lates C).1 The Court’s decision may also pressure employers to sup- press any statements by employees expressing disapproval of same-sex relationships and sex reassignment proce- dures. Employers are already imposing such restrictions voluntarily, and after today’s decisions employers will fear —————— ve, ver, vis; xe, xem, xyr, xyrs; ze/zie, hir, hirs). 59 See 47 N.Y. C. R. R. –0(a) (stating that a “deliberate re- fusal to use an individual’s self-identified name, pronoun and gendered title” is a violation of N. Y. C. dmin. Code “where the refusal is motivated by the individual’s gender”); see also N. Y. C. dmin. Code §(1), (4), (5) (making it unlawful to discriminate on the ba- sis of “gender” in employment, housing, and public accommodations); cf. D. C. Mun. Regs., tit. 4, (making it “unlawful to dis- criminate on the basis of actual or perceived gender identity or expression” in “employment, housing, public accommodations, or educa- tional institutions” and further proscribing “engaging in verbal har- assment”). 0 See University of Minn., Equity and ccess: Gender Identity, Gender Expression, Names, and Pronouns, dministrative Policy https://policy.umn.edu/operations/genderequity (“University members and units are expected to use the names, gender identities, and pronouns specified to them by other University members, except as le- gally required”); Meriwether v. Trustees of Shawnee State Univ., WL 415, *1 (rejecting First mendment chal- lenge to university’s nondiscrimination policy brought by evangelical Christian professor who was subjected to disciplinary actions for failing to use student’s preferred pronouns). 1 Cf. Notice of Removal in Vlaming v. West Point School Board, No. 3:19–cv–00773 (contending that high school teacher’s firing for failure to use student’s preferred pronouns was based on nondiscrimination policy adopted pursuant to Title IX). Cite as: 590 U. S. 53 LITO, J., dissenting that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims. Constitutional claims. Finally, despite the important dif- ferences between the Fourteenth mendment and Title VII, the Court’s decision may exert a gravitational pull in constitutional cases. Under our precedents, the Equal Pro- tection Clause prohibits sex-based discrimination unless a “heightened” standard of review is met. Sessions v. Mo- rales-Santana, 582 U. S. (slip op., at 8); United (199). By equating discrimination because of sexual orientation or gender identity with discrimination because of sex, the Court’s decision will be cited as a ground for subjecting all three forms of discrimination to the same exacting standard of review. Under this logic, today’s decision may have effects that extend well beyond the domain of federal anti- discrimination statutes. This potential is illustrated by pending and recent lower court cases in which transgender individuals have challenged a variety of federal, state, and local laws and policies on constitutional grounds. See, e.g., Complaint in Hecox, No. 1: 20–CV–00184 (state law prohib- iting transgender students from competing in school sports in accordance with their gender identity); Second mended Complaint in Karnoski v. Trump, No. 2:17–cv–01297 (military’s ban on transgender mem- bers); Kadel v. Folwell, F. Supp. 3d –, WL 119271, *10– (state health plan’s exclusion of coverage for sex reassignment proce- dures); Complaint in Gore v. Lee, No. 3:19–cv–00328 (change of gender on birth certificates); Brief for ppellee in Grimm v. Gloucester Cty. School Bd., No. 19–1952 (transgender student forced to use gender neutral bathrooms at school); Com- plaint in Corbitt v. Taylor, No. 2:18–cv–00091 (change of gender on driver’s licenses); Whit- (school policy requiring students to use the bathroom that corresponds to the sex on birth cer- tificate); 122–125 (transgender pris- oner denied hormone therapy and ability to dress and groom as a female); 77 (transgender prisoner requested sex reas- signment surgery); cf. 3 F.3d 1312, 1320 (C11 2011) (transgender individual fired for gender non-conformity). lthough the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning. * * * The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many mericans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is. The Court itself recognizes this: “The place to make new legislation lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us.” nte, at 31. It is easy to utter such words. If only the Court would live by them. I respectfully dissent. Cite as: 590 U. S. 55 LITO ppendix J., to dissenting opinion of LITO, J.

Justice Blackmun

majority

Loeffler v. Frank

https://www.courtlistener.com/opinion/112094/loeffler-v-frank/

https://www.courtlistener.com/api/rest/v3/clusters/112094/

1987-109

This case presents the question whether prejudgment interest may be awarded in a suit against the United States Postal Service brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S. C. § 2000e et seq. I Petitioner Theodore J. Loeffler was discharged from his position as a rural letter carrier for the United States Postal Service.[1] Petitioner appealed his termination to the Merit Systems Protection Board and, when his discharge was affirmed there, sought administrative relief from the Equal Employment Opportunity Commission. This, also, was without success. Contending that his discharge resulted from *552 sex discrimination, petitioner subsequently brought this suit against the Postmaster General of the United States in his official capacity,[2] pursuant to § 717 of Title VII, as amended, 42 U.S. C. § 2000e-16. After a bench trial, the United States District Court for the Eastern District of Missouri concluded that petitioner was a victim of discrimination and ordered his reinstatement with backpay. App. to Pet. for Cert. A-26. Relying on a decision of its controlling court, Cross v. USPS, 733 F.2d 1327, 1332 (CA8 1984) (en banc), cert. denied, 470 U.S. 1051 (1985), the District Court refused to award prejudgment interest. App. to Pet. for Cert. A-21. (In Cross, an equally divided Court of Appeals had affirmed the same District Judge's conclusion that sovereign immunity barred an award of prejudgment interest in a Title VII suit against the Postal Service.) The United States Court of Appeals for the Eighth Circuit affirmed the denial of prejudgment interest. Loeffler v. Carlin, 780 F.2d 1365, 1370-1371 (1985). Concluding that the District Court's reliance on Cross was "understandable and proper," id., at 1370, the court stated: "If the question of prejudgment interest is to be reconsidered, it should be reconsidered by the Court en banc." Id., at 1371. Subsequently, the Eighth Circuit undertook that en banc reconsideration, and, by a 6-to-5 vote, affirmed the judgment of the District Court. Loeffler v. Tisch, 806 F.2d 817 (1986). The majority adopted the reasoning of the majority of the original panel in Cross, 733 F.2d 1327, which concluded that Congress had not waived the sovereign immunity of the Postal Service with regard to prejudgment interest in a Title *553 VII suit. The majority found its conclusion "strongly reinforced" by this Court's recent decision in Library of Congress v. Shaw, 478 U.S. 310 (1986), which the majority interpreted as "holding that Congress, in enacting Title VII, did not waive the Government's immunity from interest."[3] 806 F. 2d, at 818. In the majority's view, Congress' provision in the 1970 Postal Reorganization Act, 39 U.S. C. § 401(1), that the Postal Service may "sue and be sued" was irrelevant to the question before it, because "a sue-and-be-sued clause does not expand the obligations of a federal entity in a suit brought pursuant to another statute that is itself a waiver of immunity and which constitutes an exclusive remedy." 806 F.2d, at 819. The 5-judge dissent adopted the reasoning of the dissent in the Cross panel submission. That dissent had concluded that "limits on prejudgment interest have been imposed solely because of the barrier of sovereign immunity," 733 F.2d, at 1332, and that the sue-and-be-sued clause in the Postal Reorganization Act had eliminated that barrier in actions against the Postal Service. The dissent noted this Court's observation in Shaw: " `The no-interest rule is . . . inapplicable where the Government has cast off the cloak of sovereignty and assumed the status of a private commercial enterprise.' " 806 F.2d, at 822, quoting Shaw, 478 U. S., at 317, n. 5. In the dissent's view, the Postal Service fits within this exception and, therefore, "an award of prejudgment interest against the Postal Service under Title VII is not barred by sovereign immunity." 806 F.2d, at 823. *554 Because of a conflict with the views of the Eleventh Circuit expressed in Nagy v. USPS, 773 F.2d 1190 (1985), we granted certiorari to decide whether, in a Title VII suit, prejudgment interest may be awarded against the Postal Service. Sub nom. Loeffler v. Tisch, 483 U.S. 1004 (1987). II A The question of statutory interpretation here presented, involving the interaction of the Postal Reorganization Act and Title VII, lends itself to straightforward resolution. Absent a waiver of sovereign immunity, the Federal Government is immune from suit. United States v. Sherwood, 312 U.S. 584, 586 (1941). Congress, however, has waived the sovereign immunity of certain federal entities from the times of their inception by including in the enabling legislation provisions that they may sue and be sued. In FHA v. Burr, 309 U.S. 242, 245 (1940), the Court explained: "[S]uch waivers by Congress of governmental immunity. . . should be liberally construed. . . . Hence, when Congress establishes such an agency, authorizes it to engage in commercial and business transactions with the public, and permits it to `sue and be sued,' it cannot be lightly assumed that restrictions on that authority are to be implied. Rather if the general authority to `sue and be sued' is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the `sue and be sued' clause in a narrow sense. In the absence of such showing, it must be presumed that when Congress *555 launched a governmental agency into the commercial world and endowed it with authority to `sue or be sued,' that agency is not less amenable to judicial process than a private enterprise under like circumstances would be." (Footnote omitted.) Accord, Franchise Tax Board of California v. USPS, 467 U.S. 512, 517-518 (1984); Reconstruction Finance Corporation v. J. G. Menihan Corp., 312 U.S. 81, 84-85 (1941); see also Keifer & Keifer v. Reconstruction Finance Corporation, 306 U.S. 381 (1939). Encompassed within this liberal-construction rule is the principle "that the words `sue and be sued' normally include the natural and appropriate incidents of legal proceedings." J. G. Menihan Corp., 312 U. S., at 85. In accord with this approach, this Court has recognized that authorization of suits against federal entities engaged in commercial activities may amount to a waiver of sovereign immunity from awards of interest when such awards are an incident of suit. For example, in Standard Oil Co. v. United States, 267 U.S. 76 (1925), the Court reviewed a suit brought under § 5 of the Act of September 2, 1914, ch. 293, 38 Stat. 711, on insurance claims issued by the Bureau of War Risk Insurance. The Court concluded: "When the United States went into the insurance business, issued policies in familiar form and provided that in case of disagreement it might be sued, it must be assumed to have accepted the ordinary incidents of suits in such business." 267 U.S., at 79. Accordingly, interest was allowed. Ibid. See also National Home for Disabled Volunteer Soldiers v. Parrish, 229 U.S. 494 (1913) (interest allowed against eleemosynary agency that Congress had authorized "to sue and be sued"). Cf. Library of Congress v. Shaw, 478 U. S., at 317, n. 5. When Congress created the Postal Service in 1970, it empowered the Service "to sue and be sued in its official name." *556 39 U.S. C. § 401(1). This sue-and-be-sued clause was a part of Congress' general design that the Postal Service "be run more like a business than had its predecessor, the Post Office Department." Franchise Tax Board of California v. USPS, 467 U. S., at 520. In Franchise Tax Board, this Court examined, in the context of an order issued by a state administrative agency, the extent to which Congress had waived the sovereign immunity of the Postal Service. After noting that "Congress has `launched [the Postal Service] into the commercial world,' " ibid., the Court held that the sue-and-be-sued clause must be liberally construed and that the Postal Service's liability must be presumed to be the same as that of any other business. Because the order to the Postal Service to withhold employees' wages had precisely the same effect on the Service's ability to operate efficiently as did such orders on other employers subject to the state statute that had been invoked, and because the burden of complying with the order would not impair the Service's ability to perform its functions, the Court concluded that there was no basis for overcoming the presumption that immunity from the state order had been waived. See id., at 520, and n. 14. Our unanimous view of the Postal Service expressed in Franchise Tax Board is controlling here. By launching "the Postal Service into the commercial world," and including a sue-and-be-sued clause in its charter, Congress has cast off the Service's "cloak of sovereignty" and given it the "status of a private commercial enterprise." Shaw, 478 U. S., at 317, n. 5. It follows that Congress is presumed to have waived any otherwise existing immunity of the Postal Service from interest awards. None of the exceptions to the liberal-construction rule that guides our interpretation of the waiver of the Postal Service's immunity operates to overcome this presumption. Subjecting the Service to interest awards would not be inconsistent *557 with the Postal Reorganization Act, 39 U.S. C. § 101 et seq., the statutory scheme that created the Postal Service, nor would it pose a threat of "grave interference" with the Service's operation. FHA v. Burr, 309 U. S., at 245. Finally, we find nothing in the statute or its legislative history to suggest that "it was plainly the purpose of Congress to use the `sue and be sued' clause in a narrow sense," ibid., with regard to interest awards. To the contrary, since Congress expressly included several narrow and specific limitations on the operation of the sue-and-be-sued clause, see 39 U.S. C. § 409,[4] none of which is applicable here, the natural inference is that it did not intend other limitations to be implied. Accordingly, we conclude that, at the Postal Service's inception, Congress waived its immunity from interest awards, authorizing recovery of interest from the Postal Service to the extent that interest is recoverable against a private party as a normal incident of suit. B Respondent concedes, and apparently all the United States Courts of Appeals that have considered the question agree, that Title VII authorizes prejudgment interest as part of the backpay remedy in suits against private employers.[5] This *558 conclusion surely is correct. The backpay award authorized by § 706(g) of Title VII, as amended, 42 U.S. C. § 2000e-5(g), is a manifestation of Congress' intent to make "persons whole for injuries suffered through past discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975).[6] Prejudgment interest, of course, is "an element of complete compensation." West Virginia v. United States, 479 U.S. 305, 310 (1987). Thus, since Title VII authorizes interest awards as a normal incident of suits against private parties, and since Congress has waived the Postal Service's immunity from such awards, it follows that respondent may be subjected to an interest award in this case. III A In order to address respondent's arguments, it is necessary to explain briefly the manner in which Title VII provides a cause of action to federal employees. As originally enacted in 1964, Title VII, by excluding federal entities from its definition of employer, see § 701(b) of Title VII, 42 U.S. C. § 2000e(b), did not provide a cause of action to federal employees. Brown v. GSA, 425 U.S. 820, 825 (1976). In 1972, Congress amended Title VII by adding its § 717, which brought federal employees, including employees of the Postal Service, within the ambit of Title VII. Equal Employment *559 Opportunity Act of 1972, 86 Stat. 111, 42 U.S. C. § 2000e-16. In so doing, Congress intended to provide federal employees with " `the full rights available in the courts as are granted to individuals in the private sector under Title VII.' " Chandler v. Roudebush, 425 U.S. 840, 841 (1976), quoting S. Rep. No. 92-415, p. 16 (1971). Section 717(a) mandates that all personnel actions affecting federal employees covered by that section "shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S. C. § 2000e-16(a). Section 717(b) provides a detailed administrative enforcement mechanism, and § 717(c) permits an aggrieved employee to file a civil action in federal district court, provided the employee has met certain requirements regarding exhaustion of administrative remedies. Thus, in enacting § 717, Congress simultaneously provided federal employees with a cause of action under Title VII and effected a waiver of the Government's immunity from suit. See Library of Congress v. Shaw, 478 U. S., at 319. The waiver of sovereign immunity effected by § 717, however, was a limited one. "In making the Government liable as a defendant under Title VII, . . . Congress did not waive the Government's traditional immunity from interest." Id., at 323. Based on this background, respondent channels his attack into two principal arguments. First, respondent contends that the waiver of sovereign immunity effected by the "sue-and-be-sued" clause of the Postal Reorganization Act, 39 U.S. C. § 401(1), has no bearing here, regardless of its scope. In respondent's view, the only waiver of sovereign immunity relevant to a Title VII suit against the Postal Service is the waiver of sovereign immunity found in Title VII itself. Second, respondent argues that, even if the waiver of sovereign immunity provided by § 401 does control, the cause of action that § 717 affords to a Postal Service employee is distinct from the cause of action afforded a private-sector employee and does not provide a basis for an award of prejudgment interest. We examine these contentions in turn. *560 B In support of his argument that the sue-and-be-sued clause of the Postal Reorganization Act, 39 U.S. C. § 401(1), has no force in this case, respondent initially relies on Congress' failure, at the time it created the Postal Service in 1970, to extend Postal Service employees a cause of action under Title VII.[7] In respondent's view, this failure constituted a decision to leave intact what respondent characterizes as the "explicit" decision of the Congress that enacted Title VII in 1964 to preserve the sovereign immunity of federal employers in Title VII suits. But the history of the Postal Reorganization Act discussed in n. 7, supra, with its emphasis on the availability of strong remedies for discrimination in the federal employment context, makes clear that Congress' failure to extend Title VII protections to Postal Service employees did not reflect an intent to circumscribe the waiver of sovereign immunity effected by the sue-and-be-sued clause, but, rather, was a determination that a Title VII cause of action was unnecessary in light of these alternative remedies. The reason Postal Service employees could not bring an employment discrimination suit under Title VII in 1970 — indeed, the *561 reason that federal employees generally could not do so — stemmed not from the Postal Reorganization Act, but from a restriction in Title VII itself: the exclusion of federal entities from the definition of the term "employer." The Postal Reorganization Act is utterly silent as to Title VII. We reject the notion that Congress' silence when it creates a new federal entity, with regard to a cause of action that is generally unavailable to federal employees, can be construed as a limitation on the waiver of that entity's sovereign immunity effected by the inclusion of a sue-and-be-sued clause. Respondent would find further support for his argument that the sue-and-be-sued clause is irrelevant to this case in the manner in which Congress extended a Title VII cause of action to federal employees in 1972. Specifically, respondent relies on a distinction between causes of action that may be asserted against commercial entities generally, as, for example a state garnishment statute, see Franchise Tax Board of California v. USPS, 467 U.S. 512 (1984), and causes of action, such as § 717 of Title VII, that contain special procedures and limitations applicable only to federal defendants. Respondent contends that while a sue-and-be-sued clause may apply to a suit against a federal entity in the former class of actions, it has no bearing in the latter. We are not persuaded by this argument for two reasons. First, this is an argument for an implied exception to the waiver of sovereign immunity effected by a sue-and-be-sued clause. Yet respondent offers no reason for concluding that Congress intended his implied exception to be added to those that this Court articulated in FHA v. Burr, 309 U. S., at 245, and we see no reason why we should do so. Second, when Congress intends the waiver of sovereign immunity in a new cause of action directed against federal entities to be exclusive, — in effect, to limit the force of "sue-and-be-sued" clauses — it has said so expressly. Congress' waiver of the sovereign immunity of the United States for certain torts of federal employees, in the Federal Tort Claims *562 Act (FTCA), 28 U.S. C. §§ 1346, 2671-2680, provides an example. Prior to the FTCA's enactment, certain federal agencies were already suable in tort. Although Congress enacted the FTCA to allow suits against many agencies that previously had been immune from suits in tort, it also wished to "place torts of `suable' agencies of the United States upon precisely the same footing as torts of `nonsuable' agencies." H. R. Rep. No. 1287, 79th Cong., 1st Sess., 6 (1945). Accordingly, Congress expressly limited the waivers of sovereign immunity that it had previously effected through "sue-and-be-sued" clauses and stated that, in the context of suits for which it provided a cause of action under the FTCA, "sue-and-be-sued" agencies would be subject to suit only to the same limited extent as agencies whose sovereign immunity from tort suits was being waived for the first time: "The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive." 28 U.S. C. § 2679(a). In contrast, neither the language of § 717 of Title VII nor its legislative history contains an expression that the waiver of sovereign immunity it effected was intended also to narrow the waiver of sovereign immunity of entities subject to sue-and-be-sued clauses. Accordingly, we reject respondent's contention that 39 U.S. C. § 401(1) has no application here.[8] *563 C Respondent next argues that, even if the waiver of sovereign immunity effected by § 401(1) is controlling, an award of prejudgment interest is inappropriate because the statute that provides petitioner with his cause of action, § 717 of Title VII, does not authorize interest awards. Respondent starts from the premise that had Congress expressly stated that prejudgment interest is unavailable in actions under § 717, the outcome of this case would be beyond dispute. Therefore, it is claimed, "[t]he fact that the `no-interest' rule is not made explicit in the statute, but rather is a conclusion drawn by this Court in Shaw . . . , does not make the rule any less binding." Brief for Respondent 16. This argument, in our view, misunderstands both the nature of the remedy § 717 affords and the basis of our holding in Shaw. Without doubt, petitioner's cause of action in this case is derived from § 717. We do not disagree with respondent that, had § 717 explicitly stated that the cause of action it provided did not include prejudgment interest, such interest would be unavailable in this case. But Congress made no express statement of that kind. To the contrary, Congress expressly incorporated in § 717 provisions of Title VII that allow an interest award. Specifically, § 717(c), 42 U.S. C. § 2000e-16(c), provides that, after pursuing various mandatory *564 administrative remedies, an unsatisfied § 717 plaintiff "may file a civil action as provided in section 2000e-5 of this title," which governs enforcement actions against private employers. Thus, although petitioner's cause of action under § 717 is circumscribed by mandatory administrative prerequisites that are distinct from the prerequisites for a civil suit brought against a private employer, a § 717 suit, once commenced, is delineated by the same provisions as a suit against a private employer. Most importantly for the purposes of this case, § 717(d) explicitly incorporates § 706(g) of Title VII into the cause of action provided. Section 706(g) allows a court to "order such affirmative action as may be appropriate,. . . includ[ing] . . . back pay . . . , or any other equitable relief as the court deems appropriate." 42 U.S. C. § 2000e-5(g). This provision thus governs the remedies available in both a Title VII suit brought against a federal employer under § 717 and a Title VII suit brought against a private employer. Cf. Chandler v. Roudebush, 425 U. S., at 843-848. And, just as this section provides for prejudgment interest in a Title VII suit against a private employer, it provides for prejudgment interest in a Title VII suit brought under § 717. Respondent's view that Shaw stands for the proposition that § 717 implicitly states that prejudgment interest is unavailable in all suits brought under that section misunderstands the basis of our holding in that case. In Shaw, the Court faced the question whether § 706(k) of Title VII, 42 U.S. C. § 2000e-5(k), which provides that a party prevailing against the United States may recover attorney's fees from the United States, waived the sovereign immunity of the Library of Congress with respect to interest on an attorney's fees award. Unlike the Postal Service, the Library of Congress was not a "sue-and-be-sued" agency that Congress had " `launched . . . into the commercial world," and thereby broadly waived sovereign immunity. Franchise Tax Board of California v. USPS, 467 U. S., at 520, quoting FHA v. *565 Burr, 309 U. S., at 245. Thus, the starting point for our analysis was the "no-interest rule," which is to the effect that, absent express consent by Congress, the United States is immune from interest awards. See Shaw, 478 U. S., at 314. The dispositive question was not whether Title VII provided a cause of action that would allow recovery of interest, but, rather, whether Title VII contained an express waiver of the Library of Congress' immunity from interest. Because no such waiver is contained within Title VII, the no-interest rule barred recovery of interest from the Library of Congress on the plaintiff's attorney's fees award. This conclusion had nothing to do with the scope of a § 717 cause of action. The Court expressly noted in Shaw: "The no-interest rule is . . . inapplicable where the Government has cast off the cloak of sovereignty and assumed the status of a private commercial enterprise." 478 U.S., at 317, n. 5. In creating the Postal Service, Congress did just that, and therefore, the no-interest rule does not apply to it. Thus, the search for an express waiver of immunity from interest within Title VII, which is all that Shaw was about, is unnecessary in this case. As discussed above, § 401 of the Postal Reorganization Act provides the waiver of sovereign immunity from interest awards against the Postal Service, and § 717 of Title VII provides the cause of action under which petitioner may recover interest. IV Accordingly, we conclude that interest may be awarded against the Postal Service in a Title VII suit. The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of this case.

This case presents the question whether prejudgment interest may be awarded in a suit against the United States Postal Service brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. 2000e et seq. I Petitioner Theodore J. Loeffler was discharged from his position as a rural letter carrier for the United States Postal Service.[1] Petitioner appealed his termination to the Merit Systems Protection Board and, when his discharge was affirmed there, sought administrative relief from the Equal Employment Opportunity Commission. This, also, was without success. Contending that his discharge resulted from *552 sex discrimination, petitioner subsequently brought this suit against the Postmaster General of the United States in his official capacity,[2] pursuant to 1 of Title VII, as amended, 42 U.S. C. 2000e-16. After a bench trial, the United States District Court for the Eastern District of Missouri concluded that petitioner was a victim of discrimination and ordered his reinstatement with backpay. App. to Pet. for Cert. A-26. Relying on a decision of its controlling court, cert. denied, the District Court refused to award prejudgment interest. App. to Pet. for Cert. A-21. (In Cross, an equally divided Court of Appeals had affirmed the same District Judge's conclusion that sovereign immunity barred an award of prejudgment interest in a Title VII suit against the Postal Service.) The United States Court of Appeals for the Eighth Circuit affirmed the denial of prejudgment interest. Concluding that the District Court's reliance on Cross was "understandable and proper," the court stated: "If the question of prejudgment interest is to be reconsidered, it should be reconsidered by the Court en banc." Subsequently, the Eighth Circuit undertook that en banc reconsideration, and, by a 6-to-5 vote, affirmed the judgment of the District Court. The majority adopted the reasoning of the majority of the original panel in Cross, which the majority interpreted as "holding that Congress, in enacting Title VII, did not waive the Government's immunity from interest."[3] 806 F. 2d, at 818. In the majority's view, Congress' provision in the 190 Postal Reorganization Act, 39 U.S. C. 401(1), that the Postal Service may "sue and be sued" was irrelevant to the question before it, because "a sue-and-be-sued clause does not expand the obligations of a federal entity in a suit brought pursuant to another statute that is itself a waiver of immunity and which constitutes an exclusive remedy." The 5-judge dissent adopted the reasoning of the dissent in the Cross panel submission. That dissent had concluded that "limits on prejudgment interest have been imposed solely because of the barrier of sovereign immunity," 33 F.2d, at and that the sue-and-be-sued clause in the Postal Reorganization Act had eliminated that barrier in actions against the Postal Service. The dissent noted this Court's observation in : " `The no-interest rule is inapplicable where the Government has cast off the cloak of sovereignty and assumed the status of a private commercial enterprise.' " quoting n. 5. In the dissent's view, the Postal Service fits within this exception and, therefore, "an award of prejudgment interest against the Postal Service under Title VII is not barred by sovereign immunity." *554 Because of a conflict with the views of the Eleventh Circuit expressed in we granted certiorari to decide whether, in a Title VII suit, prejudgment interest may be awarded against the Postal Service. Sub nom. II A The question of statutory interpretation here presented, involving the interaction of the Postal Reorganization Act and Title VII, lends itself to straightforward resolution. Absent a waiver of sovereign immunity, the Federal Government is immune from suit. United Congress, however, has waived the sovereign immunity of certain federal entities from the times of their inception by including in the enabling legislation provisions that they may sue and be sued. In the Court explained: "[S]uch waivers by Congress of governmental immunity. should be liberally construed. Hence, when Congress establishes such an agency, authorizes it to engage in commercial and business transactions with the public, and permits it to `sue and be sued,' it cannot be lightly assumed that restrictions on that authority are to be implied. Rather if the general authority to `sue and be sued' is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the `sue and be sued' clause in a narrow sense. In the absence of such showing, it must be presumed that when Congress *555 launched a governmental agency into the commercial world and endowed it with authority to `sue or be sued,' that agency is not less amenable to judicial process than a private enterprise under like circumstances would be." (Footnote omitted.) Accord, Franchise Tax Board of ; Reconstruction Finance ; see also Keifer & Encompassed within this liberal-construction rule is the principle "that the words `sue and be sued' normally include the natural and appropriate incidents of legal proceedings." J. G. Menihan In accord with this approach, this Court has recognized that authorization of suits against federal entities engaged in commercial activities may amount to a waiver of sovereign immunity from awards of interest when such awards are an incident of suit. For example, in Standard Oil the Court reviewed a suit brought under 5 of the Act of September 2, 1914, ch. 293, on insurance claims issued by the Bureau of War Risk Insurance. The Court concluded: "When the United States went into the insurance business, issued policies in familiar form and provided that in case of disagreement it might be sued, it must be assumed to have accepted the ordinary incidents of suits in such business." Accordingly, interest was allowed. See also National Home for Disabled Volunteer Cf. Library of n. 5. When Congress created the Postal Service in 190, it empowered the Service "to sue and be sued in its official name." *556 39 U.S. C. 401(1). This sue-and-be-sued clause was a part of Congress' general design that the Postal Service "be run more like a business than had its predecessor, the Post Office Department." Franchise Tax Board of In Franchise Tax Board, this Court examined, in the context of an order issued by a state administrative agency, the extent to which Congress had waived the sovereign immunity of the Postal Service. After noting that "Congress has `launched [the Postal Service] into the commercial world,' " ib the Court held that the sue-and-be-sued clause must be liberally construed and that the Postal Service's liability must be presumed to be the same as that of any other business. Because the order to the Postal Service to withhold employees' wages had precisely the same effect on the Service's ability to operate efficiently as did such orders on other employers subject to the state statute that had been invoked, and because the burden of complying with the order would not impair the Service's ability to perform its functions, the Court concluded that there was no basis for overcoming the presumption that immunity from the state order had been waived. See and n. 14. Our unanimous view of the Postal Service expressed in Franchise Tax Board is controlling here. By launching "the Postal Service into the commercial world," and including a sue-and-be-sued clause in its charter, Congress has cast off the Service's "cloak of sovereignty" and given it the "status of a private commercial enterprise." n. 5. It follows that Congress is presumed to have waived any otherwise existing immunity of the Postal Service from interest awards. None of the exceptions to the liberal-construction rule that guides our interpretation of the waiver of the Postal Service's immunity operates to overcome this presumption. Subjecting the Service to interest awards would not be inconsistent *55 with the Postal Reorganization Act, 39 U.S. C. 101 et seq., the statutory scheme that created the Postal Service, nor would it pose a threat of "grave interference" with the Service's operation. 309 U. S., at Finally, we find nothing in the statute or its legislative history to suggest that "it was plainly the purpose of Congress to use the `sue and be sued' clause in a narrow sense," ib with regard to interest awards. To the contrary, since Congress expressly included several narrow and specific limitations on the operation of the sue-and-be-sued clause, see 39 U.S. C. 409,[4] none of which is applicable here, the natural inference is that it did not intend other limitations to be implied. Accordingly, we conclude that, at the Postal Service's inception, Congress waived its immunity from interest awards, authorizing recovery of interest from the Postal Service to the extent that interest is recoverable against a private party as a normal incident of suit. B Respondent concedes, and apparently all the United States Courts of Appeals that have considered the question agree, that Title VII authorizes prejudgment interest as part of the backpay remedy in suits against private employers.[5] This *558 conclusion surely is correct. The backpay award authorized by 06(g) of Title VII, as amended, 42 U.S. C. 2000e-5(g), is a manifestation of Congress' intent to make "persons whole for injuries suffered through past discrimination." Albemarle Paper[6] Prejudgment interest, of course, is "an element of complete compensation." West Thus, since Title VII authorizes interest awards as a normal incident of suits against private parties, and since Congress has waived the Postal Service's immunity from such awards, it follows that respondent may be subjected to an interest award in this case. III A In order to address respondent's arguments, it is necessary to explain briefly the manner in which Title VII provides a cause of action to federal employees. As originally enacted in 1964, Title VII, by excluding federal entities from its definition of employer, see 01(b) of Title VII, 42 U.S. C. 2000e(b), did not provide a cause of action to federal employees. In 192, Congress amended Title VII by adding its 1, which brought federal employees, including employees of the Postal Service, within the ambit of Title VII. Equal Employment *559 Opportunity Act of 192, 42 U.S. C. 2000e-16. In so doing, Congress intended to provide federal employees with " `the full rights available in the courts as are granted to individuals in the private sector under Title VII.' " quoting S. Rep. No. 92-415, p. 16 (191). Section 1(a) mandates that all personnel actions affecting federal employees covered by that section "shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S. C. 2000e-16(a). Section 1(b) provides a detailed administrative enforcement mechanism, and 1(c) permits an aggrieved employee to file a civil action in federal district court, provided the employee has met certain requirements regarding exhaustion of administrative remedies. Thus, in enacting 1, Congress simultaneously provided federal employees with a cause of action under Title VII and effected a waiver of the Government's immunity from suit. See Library of The waiver of sovereign immunity effected by 1, however, was a limited one. "In making the Government liable as a defendant under Title VII, Congress did not waive the Government's traditional immunity from interest." Based on this background, respondent channels his attack into two principal arguments. First, respondent contends that the waiver of sovereign immunity effected by the "sue-and-be-sued" clause of the Postal Reorganization Act, 39 U.S. C. 401(1), has no bearing here, regardless of its scope. In respondent's view, the only waiver of sovereign immunity relevant to a Title VII suit against the Postal Service is the waiver of sovereign immunity found in Title VII itself. Second, respondent argues that, even if the waiver of sovereign immunity provided by 401 does control, the cause of action that 1 affords to a Postal Service employee is distinct from the cause of action afforded a private-sector employee and does not provide a basis for an award of prejudgment interest. We examine these contentions in turn. *560 B In support of his argument that the sue-and-be-sued clause of the Postal Reorganization Act, 39 U.S. C. 401(1), has no force in this case, respondent initially relies on Congress' failure, at the time it created the Postal Service in 190, to extend Postal Service employees a cause of action under Title VII.[] In respondent's view, this failure constituted a decision to leave intact what respondent characterizes as the "explicit" decision of the Congress that enacted Title VII in 1964 to preserve the sovereign immunity of federal employers in Title VII suits. But the history of the Postal Reorganization Act discussed in n. with its emphasis on the availability of strong remedies for discrimination in the federal employment context, makes clear that Congress' failure to extend Title VII protections to Postal Service employees did not reflect an intent to circumscribe the waiver of sovereign immunity effected by the sue-and-be-sued clause, but, rather, was a determination that a Title VII cause of action was unnecessary in light of these alternative remedies. The reason Postal Service employees could not bring an employment discrimination suit under Title VII in 190 — indeed, the *561 reason that federal employees generally could not do so — stemmed not from the Postal Reorganization Act, but from a restriction in Title VII itself: the exclusion of federal entities from the definition of the term "employer." The Postal Reorganization Act is utterly silent as to Title VII. We reject the notion that Congress' silence when it creates a new federal entity, with regard to a cause of action that is generally unavailable to federal employees, can be construed as a limitation on the waiver of that entity's sovereign immunity effected by the inclusion of a sue-and-be-sued clause. Respondent would find further support for his argument that the sue-and-be-sued clause is irrelevant to this case in the manner in which Congress extended a Title VII cause of action to federal employees in 192. Specifically, respondent relies on a distinction between causes of action that may be asserted against commercial entities generally, as, for example a state garnishment statute, see Franchise Tax Board of and causes of action, such as 1 of Title VII, that contain special procedures and limitations applicable only to federal defendants. Respondent contends that while a sue-and-be-sued clause may apply to a suit against a federal entity in the former class of actions, it has no bearing in the latter. We are not persuaded by this argument for two reasons. First, this is an argument for an implied exception to the waiver of sovereign immunity effected by a sue-and-be-sued clause. Yet respondent offers no reason for concluding that Congress intended his implied exception to be added to those that this Court articulated in 309 U. S., at and we see no reason why we should do so. Second, when Congress intends the waiver of sovereign immunity in a new cause of action directed against federal entities to be exclusive, — in effect, to limit the force of "sue-and-be-sued" clauses — it has said so expressly. Congress' waiver of the sovereign immunity of the United States for certain torts of federal employees, in the Federal Tort Claims *562 Act (FTCA), 28 U.S. C. 1346, 261-2680, provides an example. Prior to the FTCA's enactment, certain federal agencies were already suable in tort. Although Congress enacted the FTCA to allow suits against many agencies that previously had been immune from suits in tort, it also wished to "place torts of `suable' agencies of the United States upon precisely the same footing as torts of `nonsuable' agencies." H. R. Rep. No. 128, 9th Cong., 1st Sess., 6 (1945). Accordingly, Congress expressly limited the waivers of sovereign immunity that it had previously effected through "sue-and-be-sued" clauses and stated that, in the context of suits for which it provided a cause of action under the FTCA, "sue-and-be-sued" agencies would be subject to suit only to the same limited extent as agencies whose sovereign immunity from tort suits was being waived for the first time: "The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive." 28 U.S. C. 269(a). In contrast, neither the language of 1 of Title VII nor its legislative history contains an expression that the waiver of sovereign immunity it effected was intended also to narrow the waiver of sovereign immunity of entities subject to sue-and-be-sued clauses. Accordingly, we reject respondent's contention that 39 U.S. C. 401(1) has no application here.[8] *563 C Respondent next argues that, even if the waiver of sovereign immunity effected by 401(1) is controlling, an award of prejudgment interest is inappropriate because the statute that provides petitioner with his cause of action, 1 of Title VII, does not authorize interest awards. Respondent starts from the premise that had Congress expressly stated that prejudgment interest is unavailable in actions under 1, the outcome of this case would be beyond dispute. Therefore, it is claimed, "[t]he fact that the `no-interest' rule is not made explicit in the statute, but rather is a conclusion drawn by this Court in does not make the rule any less binding." Brief for Respondent 16. This argument, in our view, misunderstands both the nature of the remedy 1 affords and the basis of our holding in Without doubt, petitioner's cause of action in this case is derived from 1. We do not disagree with respondent that, had 1 explicitly stated that the cause of action it provided did not include prejudgment interest, such interest would be unavailable in this case. But Congress made no express statement of that kind. To the contrary, Congress expressly incorporated in 1 provisions of Title VII that allow an interest award. Specifically, 1(c), 42 U.S. C. 2000e-16(c), provides that, after pursuing various mandatory *564 administrative remedies, an unsatisfied 1 plaintiff "may file a civil action as provided in section 2000e-5 of this title," which governs enforcement actions against private employers. Thus, although petitioner's cause of action under 1 is circumscribed by mandatory administrative prerequisites that are distinct from the prerequisites for a civil suit brought against a private employer, a 1 suit, once commenced, is delineated by the same provisions as a suit against a private employer. Most importantly for the purposes of this case, 1(d) explicitly incorporates 06(g) of Title VII into the cause of action provided. Section 06(g) allows a court to "order such affirmative action as may be appropriate,. includ[ing] back pay or any other equitable relief as the court deems appropriate." 42 U.S. C. 2000e-5(g). This provision thus governs the remedies available in both a Title VII suit brought against a federal employer under 1 and a Title VII suit brought against a private employer. Cf. -848. And, just as this section provides for prejudgment interest in a Title VII suit against a private employer, it provides for prejudgment interest in a Title VII suit brought under 1. Respondent's view that stands for the proposition that 1 implicitly states that prejudgment interest is unavailable in all suits brought under that section misunderstands the basis of our holding in that case. In the Court faced the question whether 06(k) of Title VII, 42 U.S. C. 2000e-5(k), which provides that a party prevailing against the United States may recover attorney's fees from the United States, waived the sovereign immunity of the Library of Congress with respect to interest on an attorney's fees award. Unlike the Postal Service, the Library of Congress was not a "sue-and-be-sued" agency that Congress had " `launched into the commercial world," and thereby broadly waived sovereign immunity. Franchise Tax Board of quoting FHA v. *565 309 U. S., at Thus, the starting point for our analysis was the "no-interest rule," which is to the effect that, absent express consent by Congress, the United States is immune from interest awards. See 48 U. S., at 314. The dispositive question was not whether Title VII provided a cause of action that would allow recovery of interest, but, rather, whether Title VII contained an express waiver of the Library of Congress' immunity from interest. Because no such waiver is contained within Title VII, the no-interest rule barred recovery of interest from the Library of Congress on the plaintiff's attorney's fees award. This conclusion had nothing to do with the scope of a 1 cause of action. The Court expressly noted in : "The no-interest rule is inapplicable where the Government has cast off the cloak of sovereignty and assumed the status of a private commercial enterprise." 48 U.S., at 31, n. 5. In creating the Postal Service, Congress did just that, and therefore, the no-interest rule does not apply to it. Thus, the search for an express waiver of immunity from interest within Title VII, which is all that was about, is unnecessary in this case. As discussed above, 401 of the Postal Reorganization Act provides the waiver of sovereign immunity from interest awards against the Postal Service, and 1 of Title VII provides the cause of action under which petitioner may recover interest. IV Accordingly, we conclude that interest may be awarded against the Postal Service in a Title VII suit. The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of this case.

Justice Powell

majority

Patton v. Yount

https://www.courtlistener.com/opinion/111228/patton-v-yount/

https://www.courtlistener.com/api/rest/v3/clusters/111228/

1983-141

This case brings before us a claim that pretrial publicity so infected a state criminal trial as to deny the defendant his Sixth Amendment right to an "impartial jury." I On April 28, 1966, the body of Pamela Rimer, an 18-year-old high school student, was found in a wooded area near her home in Luthersburg, Clearfield County, Pa. There were *1027 numerous wounds about her head and cuts on her throat and neck. An autopsy revealed that she died of strangulation when blood from her wounds was drawn into her lungs. The autopsy showed no indication that she had been sexually assaulted. At about 5:45 the following morning, respondent Yount appeared at the State Police Substation in nearby DuBois. Yount, who had been the victim's high school mathematics teacher, proceeded to give the police oral and written confessions to the murder. The police refused to release the confession to the press, and it was not published until after it was read at Yount's arraignment three days later. Record, Ex. P-1-a, P-1-d. At his trial in 1966, the confessions were admitted into evidence. Yount took the stand and claimed temporary insanity. The jury convicted him of first-degree murder and rape, and he was sentenced to life imprisonment. On direct appeal the Pennsylvania Supreme Court determined that under Miranda v. Arizona, 384 U.S. 436 (1966), police had given Yount inadequate notice of his right to an attorney prior to his confession. The court remanded for a new trial. Commonwealth v. Yount, 435 Pa. 276, 256 A.2d 464 (1969), cert. denied, 397 U.S. 925 (1970). Prior to the second trial in 1970, the trial court ordered suppression of Yount's written confessions and that portion of the oral confession that was obtained after he was legally in custody. The prosecution dismissed the rape charge. There followed an extensive voir dire that is now at the heart of this case. Jury selection began on November 4, 1970, and took 10 days, 7 jury panels, 292 veniremen, and 1,186 pages of testimony. Yount moved for a change of venue before, and several times during, the voir dire. He argued that the widespread dissemination of prejudicial information could not be eradicated from the minds of potential jurors, and cited in support the difficulty of the voir dire and numerous newspaper and other articles about the case. The motions were denied. The trial court noted that the articles merely reported *1028 events without editorial comment; that the length of the voir dire resulted in part from the court's leniency in allowing examinations and challenges of the jurors; that "almost all, if not all," the jurors seated had "no prior or present fixed opinion"; and that there had been "little, if any, talk in public" between the two trials. The court also observed that the voir dire of the second trial had been sparsely attended. Ultimately, 12 jurors and 2 alternates were seated. At the second trial, Yount did not take the stand and did not claim temporary insanity. Instead he relied upon cross-examination and character witnesses in an attempt to undermine the State's proof of his intent. The jury convicted him again of first-degree murder, and he was resentenced to life imprisonment. The trial court denied a motion for a new trial, finding that practically no publicity had been given to the case between the two trials, and that little public interest was shown during the second trial. App. 268a. In addition, the court concluded that the jury was without bias. The Pennsylvania Supreme Court affirmed the conviction and the trial court's findings. Commonwealth v. Yount, 455 Pa. 303, 311-314, 314 A.2d 242, 247-248 (1974). In January 1981, Yount filed a petition for a writ of habeas corpus in United States District Court. He claimed, inter alia, that his conviction had been obtained in violation of his Sixth and Fourteenth Amendment right to a fair trial by an impartial jury. The case was assigned to a Magistrate, who conducted a hearing and recommended that the petition be granted. The District Court rejected the Magistrate's recommendation. 537 F. Supp. 873 (WD Pa. 1982). It held that the pretrial publicity was not vicious, excessive, nor officially sponsored, and that the jurors were able to set aside any preconceived notions of guilt. It noted that the percentage of jurors excused for cause was "not remarkable to anyone familiar with the difficulty in selecting a homicide jury in Pennsylvania." Id., at 882. In addition, the court reviewed *1029 the instances in which the state trial court had denied a challenge for cause, and upheld the trial court's view that the jury was impartial. The Court of Appeals for the Third Circuit reversed. 710 F.2d 956 (1983). The court relied primarily on the analysis set out in Irvin v. Dowd, 366 U.S. 717 (1961), and found that pretrial publicity had made a fair trial impossible in Clearfield County. It independently examined the nature of the publicity surrounding the second trial, the testimony at voir dire of the venire as a whole, and the voir dire testimony of the jurors eventually seated. The publicity revealed Yount's prior conviction for murder, his confession, and his prior plea of temporary insanity, information not admitted into evidence at trial.[1] The voir dire showed that all but 2 of 163 veniremen questioned about the case[2] had heard of it, and that, 126, or 77%, admitted they would carry an opinion into the jury box. This was a higher percentage than in Irvin, where 62% of the 430 veniremen were dismissed for cause because they had fixed opinions concerning the petitioner's guilt. Finally, the Court of Appeals found that 8 of the 14 jurors and alternates actually seated admitted that at *1030 some time they had formed an opinion as to Yount's guilt.[3] The court thought that many of the jurors had given equivocal responses when asked whether they could set aside these opinions, and that one juror, a Mr. Hrin, and both alternates would have required evidence to overcome their beliefs. The court concluded that "despite their assurances of impartiality, the jurors could not set aside their opinions and render a verdict based solely on the evidence presented." 710 F.2d, at 972.[4] Judge Garth concurred in the judgment. He declined to join the court's view that actual prejudice on the part of the jury might be inferred from pretrial publicity and the answers at voir dire of veniremen not selected for the jury. He wrote that "[a] thorough and skillfully conducted voir dire should be adequate to identify juror bias, even in a community saturated with publicity adverse to the defendant." Id., at 979.[5] Judge Garth nevertheless concurred because in his view juror Hrin stated at voir dire that he would have required evidence to change his mind about Yount's *1031 guilt. This stripped the defendant of the presumption of innocence.[6] We granted certiorari, 464 U.S. 913 (1983), to consider, in the context of this case, the problem of pervasive media publicity that now arises so frequently in the trial of sensational criminal cases. We reverse the judgment of the Court of Appeals. II As noted, the Court of Appeals rested its decision that the jury was not impartial on this Court's decision in Irvin v. Dowd, supra. That decision, a leading one at the time, held that adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed. The Court in Irvin reviewed a number of factors in determining whether the totality of the circumstances raised such a presumption. The Court noted, however, that the trial court's findings of impartiality might be overturned only for "manifest error." 366 U.S., at 723. The Court of Appeals in this case did not address this aspect of the Irvin decision.[7] Moreover, the *1032 court below, in concentrating on the factors discussed at length in Irvin, failed to give adequate weight to other significant circumstances in this case. In Irvin, the Court observed that it was during the six or seven months immediately preceding trial that "a barrage of newspaper headlines, articles, cartoons and pictures was unleashed against [the defendant]." Id., at 725. In this case, the extensive adverse publicity and the community's sense of outrage were at their height prior to Yount's first trial in 1966. The jury selection for Yount's second trial, at issue here, did not occur until four years later, at a time when prejudicial publicity was greatly diminished and community sentiment had softened. In these circumstances, we hold that the trial court did not commit manifest error in finding that the jury as a whole was impartial. The record reveals that in the year and a half from the reversal of the first conviction to the start of the second voir dire each of the two Clearfield County daily newspapers published an average of less than one article per month. App. 642a-657a; Record, Ex. P-1-v to P-1-kk, P-2. More important, many of these were extremely brief announcements of the trial dates and scheduling such as are common in rural newspapers. E. g., App. 653a-656a; Record, Ex. P-1-ff, P-1-ii, P-1-jj. The transcript of the voir dire contains numerous references to the sparse publicity and minimal public interest prior to the second trial. E. g., App. 43a, 98a, 100a; Tr. (Nov. 4, 1970) 27-28, 90, 191, 384, 771, 829, 1142. It is true that during the voir dire the newspapers published articles on an almost daily basis, but these too were purely factual articles generally discussing not the crime or prior prosecution, but the prolonged process of jury selection. App. 658a-671a. In short, the record of publicity in the *1033 months preceding, and at the time of, the second trial does not reveal the "barrage of inflammatory publicity immediately prior to trial," Murphy v. Florida, 421 U.S. 794, 798 (1975), amounting to a "huge . . . wave of public passion," Irvin, 366 U. S., at 728, that the Court found in Irvin. The voir dire testimony revealed that this lapse in time had a profound effect on the community and, more important, on the jury, in softening or effacing opinion. Many veniremen, of course, simply had let the details of the case slip from their minds. E. g., App. 194a; Tr. 33, 284, 541-544, 991. In addition, while it is true that a number of jurors and veniremen testified that at one time they had held opinions, for many, time had weakened or eliminated any conviction they had had. See, e. g., App. 98a-100a (juror number 7), 128a (juror number 8); Tr. 384-385, 398-399, 831, 897 (semble), 1075-1076, 1144; see also App. 164a-166a (juror number 10).[8]*1034 The same is true of the testimony of the jurors and veniremen who were seated late in the process and therefore were subjected to some of the articles and broadcasts disseminated daily during the voir dire:[9] the record suggests that their passions had not been inflamed nor their thoughts biased by the publicity. E. g., id., at 176a-177a, 150a-151a; Tr. 771, 959, 1027. That time soothes and erases is a perfectly natural phenomenon, familiar to all. See Irvin v. Dowd, 271 F.2d 552, 561 (CA7 1959) (Duffy, J., dissenting) (A continuance should have been granted because "[t]he passage of time is a great healer," and public prejudice might have "subsid[ed]"), rev'd, 366 U.S. 717 (1961); see also Murphy, supra, at 802; Beck v. Washington, 369 U.S. 541, 556 (1962). Not all members of the venire had put aside earlier prejudice, as the voir dire disclosed. They retained their fixed opinions, and were disqualified. But the testimony suggests that the voir dire resulted in selecting those who had forgotten or would need to be persuaded again.[10] *1035 The Court of Appeals below thought that the fact that the great majority of veniremen "remembered the case" showed that time had not served "to erase highly unfavorable publicity from the memory of [the] community." 710 F.2d, at 969. This conclusion, without more, is essentially irrelevant. The relevant question is not whether the community remembered the case, but whether the jurors at Yount's trial had such fixed opinions that they could not judge impartially the guilt of the defendant. Irvin, 366 U. S., at 723. It is not unusual that one's recollection of the fact that a notorious crime was committed lingers long after the feelings of revulsion that create prejudice have passed. It would be fruitless to attempt to identify any particular lapse of time that in itself would distinguish the situation that existed in Irvin.[11] But it is clear that the passage of time between a first and a second trial can be a highly relevant fact. In the circumstances of this case, we hold that it clearly rebuts any presumption of partiality or prejudice that existed at the time of the initial trial. There was fair, even abundant, support for the trial court's findings that between the two trials of this case there had been "practically no publicity given to this matter through the news media," and that there had not been "any great effect created by any publicity." App. 268a, 265a. *1036 III Yount briefly argues here that juror Hrin, as well as the two alternates, were erroneously seated over his challenges for cause. Brief for Respondent 32. There is substantial doubt whether Yount properly raised in his petition for habeas corpus the claim that the trial court erroneously denied his challenge for cause to juror Hrin. Compare 710 F.2d, at 966, n. 18, with id., at 977, and n. 4 (Garth, J., concurring). And there is no evidence that the alternate jurors, who did not sit in judgment, actually talked with the other jurors during the 4-day trial. But Judge Garth in the court below based his concurrence on the view that Hrin would have required Yount to produce evidence to overcome his inclination to think the accused was guilty, and the majority of the panel thought that the 4-day association between the alternates and the other jurors "operate[d] to subvert the requirement that the jury's verdict be based on evidence developed from the witness stand," id., at 971, n. 25. Therefore, we will consider briefly the claims as to all three jurors. It was the view of all three Court of Appeals judges that the question whether jurors have opinions that disqualify them is a mixed question of law and fact. See id., at 968, n. 20, 981. Thus, they concluded that the presumption of correctness due a state court's factual findings under 28 U.S. C. § 2254(d) does not apply. The opinions below relied for this proposition on Irvin v. Dowd, 366 U. S., at 723. Irvin addressed the partiality of the trial jury as a whole, a question we discuss in Part II, supra. We do not think its analysis can be extended to a federal habeas corpus case in which the partiality of an individual juror is placed in issue. That question is not one of mixed law and fact. Rather it is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed. Cf. Rushen v. Spain, 464 U.S. 114, *1037 120 (1983) (state-court determination that juror's deliberations were not biased by ex parte communications is a finding of fact).[12] *1038 There are good reasons to apply the statutory presumption of correctness to the trial court's resolution of these questions. First, the determination has been made only after an often extended voir dire proceeding designed specifically to identify biased veniremen. It is fair to assume that the method we have relied on since the beginning, e. g., United States v. Burr, 25 F. Cas. 49, 51 (No. 14,692g) (CC Va. 1807) (Marshall, C. J.), usually identifies bias.[13] Second, the determination is essentially one of credibility, and therefore largely one of demeanor. As we have said on numerous occasions, the trial court's resolution of such questions is entitled, even on direct appeal, to "special deference." E. g., Bose Corp. v. Consumers Union of U. S., Inc., 466 U.S. 485, 500 (1984). The respect paid such findings in a habeas proceeding certainly should be no less. See Marshall v. Lonberger, 459 U.S. 422, 434-435 (1983).[14] Thus the question is whether there is fair support in the record for the state courts' conclusion that the jurors here would be impartial. See 28 U.S. C. § 2254(d)(8). The testimony *1039 of each of the three challenged jurors is ambiguous and at times contradictory. This is not unusual on voir dire examination, particularly in a highly publicized criminal case. It is well to remember that the lay persons on the panel may never have been subjected to the type of leading questions and cross-examination tactics that frequently are employed, and that were evident in this case. Prospective jurors represent a cross section of the community, and their education and experience vary widely. Also, unlike witnesses, prospective jurors have had no briefing by lawyers prior to taking the stand. Jurors thus cannot be expected invariably to express themselves carefully or even consistently. Every trial judge understands this, and under our system it is that judge who is best situated to determine competency to serve impartially. The trial judge properly may choose to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading. The voir dire examination of juror Hrin was carefully scrutinized by the state courts and the Federal District Court, as he was challenged for cause and was a member of the jury that convicted the defendant. We think that the trial judge's decision to seat Hrin, despite early ambiguity in his testimony, was confirmed after he initially denied the challenge. Defense counsel sought and obtained permission to resume cross-examination. In response to a question whether Hrin could set his opinion aside before entering the jury box or would need evidence to change his mind, the juror clearly and forthrightly stated: "I think I could enter it [the jury box] with a very open mind. I think I could . . . very easily. To say this is a requirement for some of the things you have to do every day." App. 89a. After this categorical answer, defense counsel did not renew their challenge for cause. Similarly, in the case of alternate juror Pyott, we cannot fault the trial judge for crediting her earliest testimony, in which she said that she could put her opinion aside "[i]f [she] had to," rather than the later testimony in *1040 which defense counsel persuaded her that logically she would need evidence to discard any opinion she might have. Id., at 246a, 250a-252a. Alternate juror Chincharick's testimony is the most ambiguous, as he appears simply to have answered "yes" to almost any question put to him. It is here that the federal court's deference must operate, for while the cold record arouses some concern, only the trial judge could tell which of these answers was said with the greatest comprehension and certainty. IV We conclude that the voir dire testimony and the record of publicity do not reveal the kind of "wave of public passion" that would have made a fair trial unlikely by the jury that was empaneled as a whole. We also conclude that the ambiguity in the testimony of the cited jurors who were challenged for cause is insufficient to overcome the presumption of correctness owed to the trial court's findings. We therefore reverse. It is so ordered. JUSTICE MARSHALL took no part in the decision of this case.

This case brings before us a claim that pretrial publicity so infected a state criminal trial as to deny the defendant his Sixth Amendment right to an "impartial jury." I On April 28, 1966, the body of Pamela Rimer, an 18-year-old high school student, was found in a wooded area near her home in Luthersburg, Clearfield County, Pa. There were *1027 numerous wounds about her head and cuts on her throat and neck. An autopsy revealed that she died of strangulation when blood from her wounds was drawn into her lungs. The autopsy showed no indication that she had been sexually assaulted. At about 5:45 the following morning, respondent Yount appeared at the State Police Substation in nearby DuBois. Yount, who had been the victim's high school mathematics teacher, proceeded to give the police oral and written confessions to the murder. The police refused to release the confession to the press, and it was not published until after it was read at Yount's arraignment three days later. Record, Ex. P-1-a, P-1-d. At his trial in 1966, the confessions were admitted into evidence. Yount took the stand and claimed temporary insanity. The jury convicted him of first-degree murder and rape, and he was sentenced to life imprisonment. On direct appeal the Pennsylvania Supreme Court determined that under police had given Yount inadequate notice of his right to an attorney prior to his confession. The court remanded for a new trial. cert. denied, Prior to the second trial in 1970, the trial court ordered suppression of Yount's written confessions and that portion of the oral confession that was obtained after he was legally in custody. The prosecution dismissed the rape charge. There followed an extensive voir dire that is now at the heart of this case. Jury selection began on November 4, 1970, and took 10 days, 7 jury panels, 292 veniremen, and 1,186 pages of testimony. Yount moved for a change of venue before, and several times during, the voir dire. He argued that the widespread dissemination of prejudicial information could not be eradicated from the minds of potential jurors, and cited in support the difficulty of the voir dire and numerous newspaper and other articles about the case. The motions were denied. The trial court noted that the articles merely reported *1028 events without editorial comment; that the length of the voir dire resulted in part from the court's leniency in allowing examinations and challenges of the jurors; that "almost all, if not all," the jurors seated had "no prior or present fixed opinion"; and that there had been "little, if any, talk in public" between the two trials. The court also observed that the voir dire of the second trial had been sparsely attended. Ultimately, 12 jurors and 2 alternates were seated. At the second trial, Yount did not take the stand and did not claim temporary insanity. Instead he relied upon cross-examination and character witnesses in an attempt to undermine the State's proof of his intent. The jury convicted him again of first-degree murder, and he was resentenced to life imprisonment. The trial court denied a motion for a new trial, finding that practically no publicity had been given to the case between the two trials, and that little public interest was shown during the second trial. App. 268a. In addition, the court concluded that the jury was without bias. The Pennsylvania Supreme Court affirmed the conviction and the trial court's findings. In January 1981, Yount filed a petition for a writ of habeas corpus in United States District Court. He claimed, inter alia, that his conviction had been obtained in violation of his Sixth and Fourteenth Amendment right to a fair trial by an impartial jury. The case was assigned to a Magistrate, who conducted a hearing and recommended that the petition be granted. The District Court rejected the Magistrate's recommendation. It held that the pretrial publicity was not vicious, excessive, nor officially sponsored, and that the jurors were able to set aside any preconceived notions of guilt. It noted that the percentage of jurors excused for cause was "not remarkable to anyone familiar with the difficulty in selecting a homicide jury in Pennsylvania." In addition, the court reviewed *1029 the instances in which the state trial court had denied a challenge for cause, and upheld the trial court's view that the jury was impartial. The Court of Appeals for the Third Circuit reversed. The court relied primarily on the analysis set out in and found that pretrial publicity had made a fair trial impossible in Clearfield County. It independently examined the nature of the publicity surrounding the second trial, the testimony at voir dire of the venire as a whole, and the voir dire testimony of the jurors eventually seated. The publicity revealed Yount's prior conviction for murder, his confession, and his prior plea of temporary insanity, information not admitted into evidence at trial.[1] The voir dire showed that all but 2 of 163 veniremen questioned about the case[2] had heard of it, and that, 126, or 77%, admitted they would carry an opinion into the jury box. This was a higher percentage than in where 62% of the 430 veniremen were dismissed for cause because they had fixed opinions concerning the petitioner's guilt. Finally, the Court of Appeals found that 8 of the 14 jurors and alternates actually seated admitted that at *1030 some time they had formed an opinion as to Yount's guilt.[3] The court thought that many of the jurors had given equivocal responses when asked whether they could set aside these opinions, and that one juror, a Mr. Hrin, and both alternates would have required evidence to overcome their beliefs. The court concluded that "despite their assurances of impartiality, the jurors could not set aside their opinions and render a verdict based solely on the evidence presented."[4] Judge Garth concurred in the judgment. He declined to join the court's view that actual prejudice on the part of the jury might be inferred from pretrial publicity and the answers at voir dire of veniremen not selected for the jury. He wrote that "[a] thorough and skillfully conducted voir dire should be adequate to identify juror bias, even in a community saturated with publicity adverse to the defendant."[5] Judge Garth nevertheless concurred because in his view juror Hrin stated at voir dire that he would have required evidence to change his mind about Yount's *1031 guilt. This stripped the defendant of the presumption of innocence.[6] We granted certiorari, to consider, in the context of this case, the problem of pervasive media publicity that now arises so frequently in the trial of sensational criminal cases. We reverse the judgment of the Court of Appeals. As noted, the Court of Appeals rested its decision that the jury was not impartial on this Court's decision in That decision, a leading one at the time, held that adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed. The Court in reviewed a number of factors in determining whether the totality of the circumstances raised such a presumption. The Court noted, however, that the trial court's findings of impartiality might be overturned only for "manifest error." The Court of Appeals in this case did not address this aspect of the decision.[7] Moreover, the *1032 court below, in concentrating on the factors discussed at length in failed to give adequate weight to other significant circumstances in this case. In the Court observed that it was during the six or seven months immediately preceding trial that "a barrage of newspaper headlines, articles, cartoons and pictures was unleashed against [the defendant]." In this case, the extensive adverse publicity and the community's sense of outrage were at their height prior to Yount's first trial in 1966. The jury selection for Yount's second trial, at issue here, did not occur until four years later, at a time when prejudicial publicity was greatly diminished and community sentiment had softened. In these circumstances, we hold that the trial court did not commit manifest error in finding that the jury as a whole was impartial. The record reveals that in the year and a half from the reversal of the first conviction to the start of the second voir dire each of the two Clearfield County daily newspapers published an average of less than one article per month. App. 642a-657a; Record, Ex. P-1-v to P-1-kk, P-2. More important, many of these were extremely brief announcements of the trial dates and scheduling such as are common in rural newspapers. E. g., App. 653a-656a; Record, Ex. P-1-ff, P-1-ii, P-1-jj. The transcript of the voir dire contains numerous references to the sparse publicity and minimal public interest prior to the second trial. E. g., App. 43a, 98a, 100a; Tr. 27-28, 90, 191, 384, 771, 829, 1142. It is true that during the voir dire the newspapers published articles on an almost daily basis, but these too were purely factual articles generally discussing not the crime or prior prosecution, but the prolonged process of jury selection. App. 658a-671a. In short, the record of publicity in the *1033 months preceding, and at the time of, the second trial does not reveal the "barrage of inflammatory publicity immediately prior to trial," amounting to a "huge wave of public passion," that the Court found in The voir dire testimony revealed that this lapse in time had a profound effect on the community and, more important, on the jury, in softening or effacing opinion. Many veniremen, of course, simply had let the details of the case slip from their minds. E. g., App. 194a; Tr. 33, 284, 541-544, 991. In addition, while it is true that a number of jurors and veniremen testified that at one time they had held opinions, for many, time had weakened or eliminated any conviction they had had. See, e. g., App. 98a-100a (juror number 7), 128a (juror number 8); Tr. 384-385, 398-399, 831, 897 (semble), 1075-1076, 1144; see also App. 164a-166a (juror number 10).[8]*1034 The same is true of the testimony of the jurors and veniremen who were seated late in the process and therefore were subjected to some of the articles and broadcasts disseminated daily during the voir dire:[9] the record suggests that their passions had not been inflamed nor their thoughts biased by the publicity. E. g., at 176a-177a, 150a-1a; Tr. 771, 959, 1027. That time soothes and erases is a perfectly natural phenomenon, familiar to all. See (A continuance should have been granted because "[t]he passage of time is a great healer," and public prejudice might have "subsid[ed]"), rev'd, ; see also ; Not all members of the venire had put aside earlier prejudice, as the voir dire disclosed. They retained their fixed opinions, and were disqualified. But the testimony suggests that the voir dire resulted in selecting those who had forgotten or would need to be persuaded again.[10] *1035 The Court of Appeals below thought that the fact that the great majority of veniremen "remembered the case" showed that time had not served "to erase highly unfavorable publicity from the memory of [the] community." This conclusion, without more, is essentially irrelevant. The relevant question is not whether the community remembered the case, but whether the jurors at Yount's trial had such fixed opinions that they could not judge impartially the guilt of the defendant. It is not unusual that one's recollection of the fact that a notorious crime was committed lingers long after the feelings of revulsion that create prejudice have passed. It would be fruitless to attempt to identify any particular lapse of time that in itself would distinguish the situation that existed in[11] But it is clear that the passage of time between a first and a second trial can be a highly relevant fact. In the circumstances of this case, we hold that it clearly rebuts any presumption of partiality or prejudice that existed at the time of the initial trial. There was fair, even abundant, support for the trial court's findings that between the two trials of this case there had been "practically no publicity given to this matter through the news media," and that there had not been "any great effect created by any publicity." App. 268a, 265a. *1036 I Yount briefly argues here that juror Hrin, as well as the two alternates, were erroneously seated over his challenges for cause. Brief for Respondent 32. There is substantial doubt whether Yount properly raised in his petition for habeas corpus the claim that the trial court erroneously denied his challenge for cause to juror Hrin. n. 18, with and n. 4 (Garth, J., concurring). And there is no evidence that the alternate jurors, who did not sit in judgment, actually talked with the other jurors during the 4-day trial. But Judge Garth in the court below based his concurrence on the view that Hrin would have required Yount to produce evidence to overcome his inclination to think the accused was guilty, and the majority of the panel thought that the 4-day association between the alternates and the other jurors "operate[d] to subvert the requirement that the jury's verdict be based on evidence developed from the witness stand," Therefore, we will consider briefly the claims as to all three jurors. It was the view of all three Court of Appeals judges that the question whether jurors have opinions that disqualify them is a mixed question of law and fact. See Thus, they concluded that the presumption of correctness due a state court's factual findings under 28 U.S. C. 2254(d) does not apply. The opinions below relied for this proposition on addressed the partiality of the trial jury as a whole, a question we discuss in Part We do not think its analysis can be extended to a federal habeas corpus case in which the partiality of an individual juror is placed in issue. That question is not one of mixed law and fact. Rather it is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed. Cf.[12] *1038 There are good reasons to apply the statutory presumption of correctness to the trial court's resolution of these questions. First, the determination has been made only after an often extended voir dire proceeding designed specifically to identify biased veniremen. It is fair to assume that the method we have relied on since the beginning, e. g., United (No. 14,692g) (CC Va. 1807) (Marshall, C. J.), usually identifies bias.[13] Second, the determination is essentially one of credibility, and therefore largely one of demeanor. As we have said on numerous occasions, the trial court's resolution of such questions is entitled, even on direct appeal, to "special deference." E. g., Bose The respect paid such findings in a habeas proceeding certainly should be no less. See[14] Thus the question is whether there is fair support in the record for the state courts' conclusion that the jurors here would be impartial. See 28 U.S. C. 2254(d)(8). The testimony *1039 of each of the three challenged jurors is ambiguous and at times contradictory. This is not unusual on voir dire examination, particularly in a highly publicized criminal case. It is well to remember that the lay persons on the panel may never have been subjected to the type of leading questions and cross-examination tactics that frequently are employed, and that were evident in this case. Prospective jurors represent a cross section of the community, and their education and experience vary widely. Also, unlike witnesses, prospective jurors have had no briefing by lawyers prior to taking the stand. Jurors thus cannot be expected invariably to express themselves carefully or even consistently. Every trial judge understands this, and under our system it is that judge who is best situated to determine competency to serve impartially. The trial judge properly may choose to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading. The voir dire examination of juror Hrin was carefully scrutinized by the state courts and the Federal District Court, as he was challenged for cause and was a member of the jury that convicted the defendant. We think that the trial judge's decision to seat Hrin, despite early ambiguity in his testimony, was confirmed after he initially denied the challenge. Defense counsel sought and obtained permission to resume cross-examination. In response to a question whether Hrin could set his opinion aside before entering the jury box or would need evidence to change his mind, the juror clearly and forthrightly stated: "I think I could enter it [the jury box] with a very open mind. I think I could very easily. To say this is a requirement for some of the things you have to do every day." App. 89a. After this categorical answer, defense counsel did not renew their challenge for cause. Similarly, in the case of alternate juror Pyott, we cannot fault the trial judge for crediting her earliest testimony, in which she said that she could put her opinion aside "[i]f [she] had to," rather than the later testimony in *1040 which defense counsel persuaded her that logically she would need evidence to discard any opinion she might have. at 246a, 250a-252a. Alternate juror Chincharick's testimony is the most ambiguous, as he appears simply to have answered "yes" to almost any question put to him. It is here that the federal court's deference must operate, for while the cold record arouses some concern, only the trial judge could tell which of these answers was said with the greatest comprehension and certainty. IV We conclude that the voir dire testimony and the record of publicity do not reveal the kind of "wave of public passion" that would have made a fair trial unlikely by the jury that was empaneled as a whole. We also conclude that the ambiguity in the testimony of the cited jurors who were challenged for cause is insufficient to overcome the presumption of correctness owed to the trial court's findings. We therefore reverse. It is so ordered. JUSTICE MARSHALL took no part in the decision of this case.

Justice Thomas

majority

Texaco Inc. v. Dagher

https://www.courtlistener.com/opinion/145675/texaco-inc-v-dagher/

https://www.courtlistener.com/api/rest/v3/clusters/145675/

2005-036

From 1998 until 2002, petitioners Texaco Inc. and Shell Oil Co. collaborated in a joint venture, Equilon Enterprises, to refine and sell gasoline in the western United States under the original Texaco and Shell Oil brand names. Respondents, a class of Texaco and Shell Oil service station owners, allege that petitioners engaged in unlawful price fixing when Equilon set a single price for both Texaco and Shell Oil brand gasoline. We granted certiorari to determine whether it is per se illegal under § 1 of the Sherman Act, 15 U.S. C. § 1, for a lawful, economically integrated joint venture to set the prices at which the joint venture sells its products. We conclude that it is not, and accordingly we reverse the contrary judgment of the Court of Appeals. I Historically, Texaco and Shell Oil have competed with one another in the national and international oil and gasoline *4 markets. Their business activities include refining crude oil into gasoline, as well as marketing gasoline to downstream purchasers, such as the service stations represented in respondents' class action. In 1998, Texaco and Shell Oil formed a joint venture, Equilon, to consolidate their operations in the western United States, thereby ending competition between the two companies in the domestic refining and marketing of gasoline. Under the joint venture agreement, Texaco and Shell Oil agreed to pool their resources and share the risks of and profits from Equilon's activities. Equilon's board of directors would comprise representatives of Texaco and Shell Oil, and Equilon gasoline would be sold to downstream purchasers under the original Texaco and Shell Oil brand names. The formation of Equilon was approved by consent decree, subject to certain divestments and other modifications, by the Federal Trade Commission, see In re Shell Oil Co., 125 F. T. C. 769 (1998), as well as by the state attorneys general of California, Hawaii, Oregon, and Washington. Notably, the decrees imposed no restrictions on the pricing of Equilon gasoline. After the joint venture began to operate, respondents brought suit in District Court, alleging that, by unifying gasoline prices under the two brands, petitioners had violated the per se rule against price fixing that this Court has long recognized under § 1 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U.S. C. § 1. See, e. g., Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643, 647 (1980) (per curiam). The District Court awarded summary judgment to Texaco and Shell Oil. It determined that the rule of reason, rather than a per se rule or the quick look doctrine, governs respondents' claim, and that, by eschewing rule of reason analysis, respondents had failed to raise a triable issue of fact. The Ninth Circuit reversed, characterizing petitioners' position as a request for an "exception to the per se prohibition on price-fixing," and rejecting that request. Dagher v. *5 Saudi Refining, Inc., 369 F.3d 1108, 1116 (2004). We consolidated Texaco's and Shell Oil's separate petitions and granted certiorari to determine the extent to which the per se rule against price fixing applies to an important and increasingly popular form of business organization, the joint venture. 545 U.S. 1138 (2005). II Section 1 of the Sherman Act prohibits "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States." 15 U.S. C. § 1. This Court has not taken a literal approach to this language, however. See, e. g., State Oil Co. v. Khan, 522 U.S. 3, 10 (1997) ("[T]his Court has long recognized that Congress intended to outlaw only unreasonable restraints" (emphasis added)). Instead, this Court presumptively applies rule of reason analysis, under which antitrust plaintiffs must demonstrate that a particular contract or combination is in fact unreasonable and anticompetitive before it will be found unlawful. See, e. g., id., at 10-19. Per se liability is reserved for only those agreements that are "so plainly anti-competitive that no elaborate study of the industry is needed to establish their illegality." National Soc. of Professional Engineers v. United States, 435 U.S. 679, 692 (1978). Accordingly, "we have expressed reluctance to adopt per se rules ... `where the economic impact of certain practices is not immediately obvious.'" State Oil, supra, at 10 (quoting FTC v. Indiana Federation of Dentists, 476 U.S. 447, 458-459 (1986)). Price-fixing agreements between two or more competitors, otherwise known as horizontal price-fixing agreements, fall into the category of arrangements that are per se unlawful. See, e. g., Catalano, supra, at 647. These cases do not present such an agreement, however, because Texaco and Shell Oil did not compete with one another in the relevant market—namely, the sale of gasoline to service stations in the western United States—but instead participated in that *6 market jointly through their investments in Equilon.[1] In other words, the pricing policy challenged here amounts to little more than price setting by a single entity—albeit within the context of a joint venture—and not a pricing agreement between competing entities with respect to their competing products. Throughout Equilon's existence, Texaco and Shell Oil shared in the profits of Equilon's activities in their role as investors, not competitors. When "persons who would otherwise be competitors pool their capital and share the risks of loss as well as the opportunities for profit ... such joint ventures [are] regarded as a single firm competing with other sellers in the market." Arizona v. Maricopa County Medical Soc., 457 U.S. 332, 356 (1982). As such, though Equilon's pricing policy may be price fixing in a literal sense, it is not price fixing in the antitrust sense. See Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 9 (1979) ("When two partners set the price of their goods or services they are literally `price fixing,' but they are not per se in violation of the Sherman Act"). This conclusion is confirmed by respondents' apparent concession that there would be no per se liability had Equilon simply chosen to sell its gasoline under a single brand. See Tr. of Oral Arg. 34. We see no reason to treat Equilon differently just because it chose to sell gasoline under two distinct *7 brands at a single price. As a single entity, a joint venture, like any other firm, must have the discretion to determine the prices of the products that it sells, including the discretion to sell a product under two different brands at a single, unified price. If Equilon's price unification policy is anticompetitive, then respondents should have challenged it pursuant to the rule of reason.[2] But it would be inconsistent with this Court's antitrust precedents to condemn the internal pricing decisions of a legitimate joint venture as per se unlawful.[3] The court below reached the opposite conclusion by invoking the ancillary restraints doctrine. 369 F.3d, at 1118-1124. That doctrine governs the validity of restrictions imposed by a legitimate business collaboration, such as a business association or joint venture, on nonventure activities. See, e. g., National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U.S. 85, 113-115 (1984); Citizen Publishing Co. v. United States, 394 U.S. 131, 135-136 (1969). Under the doctrine, courts must determine whether the nonventure restriction is a naked restraint on trade, and thus invalid, or one that is ancillary to the legitimate and competitive purposes of the business association, and thus valid. We agree with petitioners that the ancillary restraints doctrine has no application here, where the business practice being challenged involves the core activity of the joint venture itself—namely, the pricing of the very *8 goods produced and sold by Equilon. And even if we were to invoke the doctrine in these cases, Equilon's pricing policy is clearly ancillary to the sale of its own products. Judge Fernandez, dissenting from the ruling of the court below, put it well: "In this case, nothing more radical is afoot than the fact that an entity, which now owns all of the production, transportation, research, storage, sales and distribution facilities for engaging in the gasoline business, also prices its own products. It decided to price them the same, as any other entity could. What could be more integral to the running of a business than setting a price for its goods and services?" 369 F.3d, at 1127. See also Broadcast Music, supra, at 23 ("Joint ventures and other cooperative arrangements are ... not usually unlawful, at least not as price-fixing schemes, where the agreement on price is necessary to market the product at all"). * * * Because the pricing decisions of a legitimate joint venture do not fall within the narrow category of activity that is per se unlawful under § 1 of the Sherman Act, respondents' anti-trust claim cannot prevail. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. JUSTICE ALITO took no part in the consideration or decision of these cases.

From 18 until 2002, petitioners Texaco Inc. and Shell Co. collaborated in a joint venture, Equilon Enterprises, to refine and sell gasoline in the western United States under the original Texaco and Shell brand names. Respondents, a class of Texaco and Shell service station owners, allege that petitioners engaged in unlawful price fixing when Equilon set a single price for both Texaco and Shell brand gasoline. We granted certiorari to determine whether it is per se illegal under 1 of the Sherman Act, 15 U.S. C. 1, for a lawful, economically integrated joint venture to set the prices at which the joint venture sells its products. We conclude that it is not, and accordingly we reverse the contrary judgment of the Court of Appeals. I Historically, Texaco and Shell have competed with one another in the national and international oil and gasoline *4 markets. Their business activities include refining crude oil into gasoline, as well as marketing gasoline to downstream purchasers, such as the service stations represented in respondents' class action. In 18, Texaco and Shell formed a joint venture, Equilon, to consolidate their operations in the western United States, thereby ending competition between the two companies in the domestic refining and marketing of gasoline. Under the joint venture agreement, Texaco and Shell agreed to pool their resources and share the risks of and profits from Equilon's activities. Equilon's board of directors would comprise representatives of Texaco and Shell and Equilon gasoline would be sold to downstream purchasers under the original Texaco and Shell brand names. The formation of Equilon was approved by consent decree, subject to certain divestments and other modifications, by the Federal Trade Commission, see In re Shell Co., 125 F. T. C. 76 (18), as well as by the state attorneys general of California, Hawaii, Oregon, and Washington. Notably, the decrees imposed no restrictions on the pricing of Equilon gasoline. After the joint venture began to operate, respondents brought suit in District Court, alleging that, by unifying gasoline prices under the two brands, petitioners had violated the per se rule against price fixing that this Court has long recognized under 1 of the Sherman Act, ch. as amended, 15 U.S. C. 1. See, e. g., The District Court awarded summary judgment to Texaco and Shell It determined that the rule of reason, rather than a per se rule or the quick look doctrine, governs respondents' claim, and that, by eschewing rule of reason analysis, respondents had failed to raise a triable issue of fact. The Ninth Circuit reversed, characterizing petitioners' position as a request for an "exception to the per se prohibition on price-fixing," and rejecting that request. We consolidated Texaco's and Shell 's separate petitions and granted certiorari to determine the extent to which the per se rule against price fixing applies to an important and increasingly popular form of business organization, the joint venture. II Section 1 of the Sherman Act prohibits "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States." 15 U.S. C. 1. This Court has not taken a literal approach to this language, however. See, e. g., State Instead, this Court presumptively applies rule of reason analysis, under which antitrust plaintiffs must demonstrate that a particular contract or combination is in fact unreasonable and anticompetitive before it will be found unlawful. See, e. g., at -1. Per se liability is reserved for only those agreements that are "so plainly anti-competitive that no elaborate study of the industry is needed to establish their illegality." National Soc. of Professional Accordingly, "we have expressed reluctance to adopt per se rules `where the economic impact of certain practices is not immediately obvious.'" State at ). Price-fixing agreements between two or more competitors, otherwise known as horizontal price-fixing agreements, fall into the category of arrangements that are per se unlawful. See, e. g., at These cases do not present such an agreement, however, because Texaco and Shell did not compete with one another in the relevant market—namely, the sale of gasoline to service stations in the western United States—but instead participated in that *6 market jointly through their investments in Equilon.[1] In other words, the pricing policy challenged here amounts to little more than price setting by a single entity—albeit within the context of a joint venture—and not a pricing agreement between competing entities with respect to their competing products. Throughout Equilon's existence, Texaco and Shell shared in the profits of Equilon's activities in their role as investors, not competitors. When "persons who would otherwise be competitors pool their capital and share the risks of loss as well as the opportunities for profit such joint ventures [are] regarded as a single firm competing with other sellers in the market." As such, though Equilon's pricing policy may be price fixing in a literal sense, it is not price fixing in the antitrust sense. See Broadcast This conclusion is confirmed by respondents' apparent concession that there would be no per se liability had Equilon simply chosen to sell its gasoline under a single brand. See Tr. of Oral Arg. 34. We see no reason to treat Equilon differently just because it chose to sell gasoline under two distinct *7 brands at a single price. As a single entity, a joint venture, like any other firm, must have the discretion to determine the prices of the products that it sells, including the discretion to sell a product under two different brands at a single, unified price. If Equilon's price unification policy is anticompetitive, then respondents should have challenged it pursuant to the rule of reason.[2] But it would be inconsistent with this Court's antitrust precedents to condemn the internal pricing decisions of a legitimate joint venture as per se unlawful.[3] The court below reached the opposite conclusion by invoking the ancillary restraints 36 F.3d, at 1118-1124. That doctrine governs the validity of restrictions imposed by a legitimate business collaboration, such as a business association or joint venture, on nonventure activities. See, e. g., National Collegiate Athletic (184); Citizen Publishing 34 U.S. 131, (16). Under the doctrine, courts must determine whether the nonventure restriction is a naked restraint on trade, and thus invalid, or one that is ancillary to the legitimate and competitive purposes of the business association, and thus valid. We agree with petitioners that the ancillary restraints doctrine has no application here, where the business practice being challenged involves the core activity of the joint venture itself—namely, the pricing of the very *8 goods produced and sold by Equilon. And even if we were to invoke the doctrine in these cases, Equilon's pricing policy is clearly ancillary to the sale of its own products. Judge Fernandez, dissenting from the ruling of the court below, put it well: "In this case, nothing more radical is afoot than the fact that an entity, which now owns all of the production, transportation, research, storage, sales and distribution facilities for engaging in the gasoline business, also prices its own products. It decided to price them the same, as any other entity could. What could be more integral to the running of a business than setting a price for its goods and services?" 36 F.3d, at 1127. See also Broadcast * * * Because the pricing decisions of a legitimate joint venture do not fall within the narrow category of activity that is per se unlawful under 1 of the Sherman Act, respondents' anti-trust claim cannot prevail. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. JUSTICE ALITO took no part in the consideration or decision of these cases.

Justice Brennan

majority

DelCostello v. Teamsters

https://www.courtlistener.com/opinion/110956/delcostello-v-teamsters/

https://www.courtlistener.com/api/rest/v3/clusters/110956/

1982-100

Each of these cases arose as a suit by an employee or employees against an employer and a union, alleging that the employer had breached a provision of a collective-bargaining agreement, and that the union had breached its duty of fair representation by mishandling the ensuing grievance-and-arbitration proceedings. See infra, at 162; Bowen v. USPS, 459 U.S. 212 (1983); Vaca v. Sipes, 386 U.S. 171 (1967); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976). The issue presented is what statute of limitations should apply to such suits. In United Parcel Service, Inc. v. Mitchell, 451 U.S. 56 (1981), we held that a similar suit was governed by a state statute of limitations for vacation of an arbitration award, rather than by a state statute for an action on a contract. We left two points open, however. First, our holding was limited to the employee's claim against the employer; we did not address what state statute should govern the claim against the union.[1] Second, we expressly limited our consideration to a choice between two state statutes of limitations; we did not address the contention that we should instead borrow a federal statute of limitations, namely, § 10(b) of the National Labor Relations Act, 29 U.S. C. § 160(b).[2] These cases present these two issues. *155 We conclude that § 10(b) should be the applicable statute of limitations governing the suit, both against the employer and against the union. I A Philip DelCostello, petitioner in No. 81-2386, was employed as a driver by respondent Anchor Motor Freight, Inc., and represented by respondent Teamsters Local 557. On June 27, 1977, he quit or was discharged[3] after refusing to drive a tractor-trailer that he contended was unsafe. He took his complaint to the union, which made unsuccessful informal attempts to get DelCostello reinstated and then brought a formal grievance under the collective-bargaining agreement. A hearing was held before a regional joint union-management committee. The committee concluded that the grievance was without merit. DelCostello was informed of that decision in a letter dated August 19, 1977, forwarding the minutes of the hearing and stating that the minutes would be presented for approval at the committee's meeting on September 20. DelCostello responded in a letter, but the minutes were approved without change. Under the collective-bargaining agreement, the committee's decision is final and binding on all parties. On March 16, 1978, DelCostello filed this suit in the District of Maryland against the employer and the union. He *156 alleged that the employer had discharged him in violation of the collective-bargaining agreement, and that the union had represented him in the grievance procedure "in a discriminatory, arbitrary and perfunctory manner," App. in No. 81-2386, p. 19, resulting in an unfavorable decision by the joint committee. Respondents asserted that the suit was barred by Maryland's 30-day statute of limitations for actions to vacate arbitration awards.[4] The District Court disagreed, holding that the applicable statute was the 3-year state statute for actions on contracts.[5] 510 F. Supp. 716 (1981). On reconsideration following our decision in Mitchell, however, the court granted summary judgment for respondents, concluding that Mitchell compelled application of the 30-day statute to both the claim against the employer and the claim against the union. 524 F. Supp. 721 (1981).[6] The Court of Appeals affirmed on the basis of the District Court's order. 679 F.2d 879 (CA4 1982) (mem.). B Donald C. Flowers and King E. Jones, respondents in No. 81-2408, were employed as craft welders by Bethlehem Steel Corp. and represented by petitioner Steelworkers Local 2602.[7] In 1975 and 1976 respondents filed several *157 grievances asserting that the employer had violated the collective-bargaining agreement by assigning certain welding duties to employees in other job categories and departments of the plant, with the result that respondents were laid off or assigned to noncraft work. The union processed the grievances through the contractually established procedure and, failing to gain satisfaction, invoked arbitration. On February 24, 1978, the arbitrator issued an award for the employer, ruling that the employer's job assignments were permitted by the collective-bargaining agreement. Respondents filed this suit in the Western District of New York on January 9, 1979, naming both the employer and the union as defendants. The complaint alleged that the company's work assignments violated the collective-bargaining agreement, and that the union's "preparation, investigation and handling" of respondents' grievances were "so inept and careless as to be arbitrary and capricious," in violation of the union's duty of fair representation. App. in No. 81-2408, p. 10. The District Court dismissed the complaint against both defendants, holding that the entire suit was governed by New York's 90-day statute of limitations for actions to vacate arbitration awards.[8] The Court of Appeals reversed on the basis of its prior holding in Mitchell v. United Parcel Service, Inc., 624 F.2d 394 (CA2 1980), that such actions are governed by New York's 6-year statute for actions on contracts.[9]Flowers v. Local 2602, United Steel Workers of America, 622 F.2d 573 (CA2 1980) (mem.). We granted certiorari and vacated and remanded for reconsideration in light of our reversal in Mitchell. Steelworkers v. Flowers, 451 U.S. 965 (1981). On remand, the Court of Appeals rejected the argument that the 6-month period of § 10(b) applies. Accordingly, following our decision in Mitchell, it applied the 90-day arbitration statute and affirmed the dismissal as to the employer. As to the union, however, the *158 court reversed, concluding that the correct statute to apply was New York's 3-year statute for malpractice actions.[10] 671 F.2d 87 (CA2 1982). C In this Court, petitioners in both cases contend that suits under Vaca v. Sipes, 386 U.S. 171 (1967), and Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976), should be governed by the 6-month limitations period of § 10(b) of the National Labor Relations Act, 29 U.S. C. § 160(b). Alternatively, the Steelworkers, petitioners in No. 81-2408, argue that the state statute for vacation of arbitration awards should apply to a claim against a union as well as to one against an employer.[11] We granted certiorari in both cases and consolidated them for argument. 459 U.S. 1034 (1982). II A As is often the case in federal civil law, there is no federal statute of limitations expressly applicable to this suit. In such situations we do not ordinarily assume that Congress intended that there be no time limit on actions at all; rather, our task is to "borrow" the most suitable statute or other rule of timeliness from some other source. We have generally concluded that Congress intended that the courts apply the most closely analogous statute of limitations under state law.[12] "The implied absorption of State statutes of limitation *159 within the interstices of the federal enactments is a phase of fashioning remedial details where Congress has not spoken but left matters for judicial determination within the general framework of familiar legal principles." Holmberg v. Armbrecht, 327 U.S. 392, 395 (1946).[13] See, e. g., Runyon v. *160 McCrary, 427 U.S. 160, 180-182 (1976); Chevron Oil Co. v. Huson, 404 U.S. 97, 101-105 (1971); Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696 (1966); Chattanooga Foundry v. Atlanta, 203 U.S. 390 (1906); Campbell v. Haverhill, 155 U.S. 610 (1895). *161 In some circumstances, however, state statutes of limitations can be unsatisfactory vehicles for the enforcement of federal law. In those instances, it may be inappropriate to conclude that Congress would choose to adopt state rules at odds with the purpose or operation of federal substantive law. "[T]he Court has not mechanically applied a state statute of limitations simply because a limitations period is absent from the federal statute. State legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies. `Although state law is our primary guide in this area, it is not, to be sure, our exclusive guide.' " Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367 (1977), quoting Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465 (1975). *162 Hence, in some cases we have declined to borrow state statutes but have instead used timeliness rules drawn from federal law — either express limitations periods from related federal statutes, or such alternatives as laches. In Occidental, for example, we declined to apply state limitations periods to enforcement suits brought by the Equal Employment Opportunity Commission under Title VII of the 1964 Civil Rights Act, reasoning that such application might unduly hinder the policy of the Act by placing too great an administrative burden on the agency. In McAllister v. Magnolia Petroleum Co., 357 U.S. 221 (1958), we applied the federal limitations provision of the Jones Act to a seaworthiness action under general admiralty law. We pointed out that the two forms of claim are almost invariably brought together. Hence, "with an eye to the practicalities of admiralty personal injury litigation," id., at 224, we held inapplicable a shorter state statute governing personal injury suits. Again, in Holmberg, we held that state statutes of limitations would not apply to a federal cause of action lying only in equity, because the principles of federal equity are hostile to the "mechanical rules" of statutes of limitations. 327 U.S., at 396. Auto Workers v. Hoosier Cardinal Corp. was a straight-forward suit under § 301 of the Labor Management Relations Act, 29 U.S. C. § 185, for breach of a collective-bargaining agreement by an employer. Unlike the present cases, Hoosier did not involve any agreement to submit disputes to arbitration, and the suit was brought by the union itself rather than by an individual employee. We held that the suit was governed by Indiana's 6-year limitations period for actions on unwritten contracts; we resisted the suggestion that we establish some uniform federal period. Although we recognized that "the subject matter of § 301 is `peculiarly one that calls for uniform law,' " 383 U.S., at 701, quoting Teamsters v. Lucas Flour Co., 369 U.S. 95, 103 (1962), we reasoned that national uniformity is of less importance when the *163 case does not involve "those consensual processes that federal labor law is chiefly designed to promote — the formation of the collective agreement and the private settlement of disputes under it," 383 U.S., at 702. We also relied heavily on the obvious and close analogy between this variety of § 301 suit and an ordinary breach-of-contract case. We expressly reserved the question whether we would apply state law to § 301 actions where the analogy was less direct or the relevant policy factors different: "The present suit is essentially an action for damages caused by an alleged breach of an employer's obligation embodied in a collective bargaining agreement. Such an action closely resembles an action for breach of contract cognizable at common law. Whether other § 301 suits different from the present one might call for the application of other rules on timeliness, we are not required to decide, and we indicate no view whatsoever on that question. See, e. g., Holmberg v. Armbrecht, 327 U.S. 392 . . . ." 383 U.S., at 705, n. 7. Justice Stewart, who wrote the Court's opinion in Hoosier, took this caution to heart in Mitchell. He concurred separately in the judgment, arguing that the factors that compelled adoption of state law in Hoosier did not apply to suits under Vaca and Hines, and that in the latter situation we should apply the federal limitations period of § 10(b). 451 U.S., at 65-71. As we shall explain, we agree. B It has long been established that an individual employee may bring suit against his employer for breach of a collective-bargaining agreement. Smith v. Evening News Assn., 371 U.S. 195 (1962). Ordinarily, however, an employee is required to attempt to exhaust any grievance or arbitration remedies provided in the collective-bargaining agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965); cf. Clayton v. Automobile Workers, 451 U.S. 679 (1981) *164 (exhaustion of intraunion remedies not always required). Subject to very limited judicial review, he will be bound by the result according to the finality provisions of the agreement. See W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 764 (1983); Steelworkers v. Enterprise Corp., 363 U.S. 593 (1960). In Vaca and Hines, however, we recognized that this rule works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation. In such an instance, an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding. Vaca v. Sipes, 386 U.S. 171 (1967); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976); United Parcel Service, Inc. v. Mitchell, 451 U.S. 56 (1981); Bowen v. USPS, 459 U.S. 212 (1983); Czosek v. O'Mara, 397 U.S. 25 (1970). Such a suit, as a formal matter, comprises two causes of action. The suit against the employer rests on § 301, since the employee is alleging a breach of the collective-bargaining agreement. The suit against the union is one for breach of the union's duty of fair representation, which is implied under the scheme of the National Labor Relations Act.[14] "Yet the two claims are inextricably interdependent. *165 `To prevail against either the company or the Union, . . . [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union.' " Mitchell, supra, at 66-67 (Stewart, J., concurring in judgment), quoting Hines, supra, at 570-571. The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both. The suit is thus not a straightforward breach-of-contract suit under § 301, as was Hoosier, but a hybrid § 301/fair representation claim, amounting to "a direct challenge to `the private settlement of disputes under [the collective-bargaining agreement].' " Mitchell, supra, at 66 (Stewart, J., concurring in judgment), quoting Hoosier, 383 U. S., at 702. Also unlike the claim in Hoosier, it has no close analogy in ordinary state law. The analogies suggested in Mitchell both suffer from flaws, not only of legal substance, but more important, of practical application in view of the policies of federal labor law and the practicalities of hybrid § 301/fair representation litigation. In Mitchell, we analogized the employee's claim against the employer to an action to vacate an arbitration award in a commercial setting. We adhere to the view that, as between the two choices, it is more suitable to characterize the claim that way than as a suit for breach of contract. Nevertheless, the parallel is imperfect in operation. The main difference is that a party to commercial arbitration will ordinarily be represented by counsel or, at least, will have some experience in matters of commercial dealings and contract negotiation. Moreover, an action to vacate a commercial arbitral award will rarely raise any issues not already presented and contested in the arbitration proceeding itself. In the labor setting, *166 by contrast, the employee will often be unsophisticated in collective-bargaining matters, and he will almost always be represented solely by the union. He is called upon, within the limitations period, to evaluate the adequacy of the union's representation, to retain counsel, to investigate substantial matters that were not at issue in the arbitration proceeding, and to frame his suit. Yet state arbitration statutes typically provide very short times in which to sue for vacation of arbitration awards.[15] Concededly, the very brevity of New York's 90-day arbitration limitations period was a major factor why, in Mitchell, we preferred it to the 6-year statute for breach of contract, 451 U.S., at 63-64; but it does not follow that because 6 years is too long, 90 days is long enough. See also Hoosier, supra, at 707, n. 9. We conclude that state limitations periods for vacating arbitration awards fail to provide an aggrieved employee with a satisfactory opportunity to vindicate his rights under § 301 and the fair representation doctrine.[16] Moreover, as JUSTICE STEVENS pointed out in his opinion in Mitchell, analogy to an action to vacate an arbitration *167 award is problematic at best as applied to the employee's claim against the union: "The arbitration proceeding did not, and indeed, could not, resolve the employee's claim against the union. Although though the union was a party to the arbitration, it acted only as the employee's representative; the [arbitration panel] did not address or resolve any dispute between the employee and the union . . . . Because no arbitrator has decided the primary issue presented by this claim, no arbitration award need be undone, even if the employee ultimately prevails." 451 U.S., at 73 (opinion concurring in part and dissenting in part) (footnotes omitted). JUSTICE STEVENS suggested an alternative solution for the claim against the union: borrowing the state limitations period for legal malpractice. Id., at 72-75; see post, at 174 (STEVENS, J., dissenting); post, at 175 (O'CONNOR, J., dissenting). The analogy here is to a lawyer who mishandles a commercial arbitration. Although the short limitations period for vacating the arbitral award would protect the interest in finality of the opposing party to the arbitration, the misrepresented party would retain his right to sue his lawyer for malpractice under a longer limitations period. This solution is admittedly the closest state-law analogy for the claim against the union. Nevertheless, we think that it too suffers from objections peculiar to the realities of labor relations and litigation. The most serious objection is that it does not solve the problem caused by the too-short time in which an employee could sue his employer under borrowed state law. In a commercial setting, a party who sued his lawyer for bungling an *168 arbitration could ordinarily recover his entire damages, even if the statute of limitations foreclosed any recovery against the opposing party to the arbitration. The same is not true in the § 301/fair representation setting, however. We held in Vaca, and reaffirmed this Term in Bowen, that the union may be held liable only for "increases if any in [the employee's] damages caused by the union's refusal to process the grievance." 386 U.S., at 197-198; 459 U. S., at 223-224; see Czosek, 397 U. S., at 29. Thus, if we apply state limitations periods, a large part of the damages will remain uncollectible in almost every case unless the employee sues within the time allotted for his suit against the employer.[17] Further, while application of a short arbitration period as against employers would endanger employees' ability to recover most of what is due them, application of a longer malpractice statute as against unions would preclude the relatively rapid final resolution of labor disputes favored by federal law — a problem not present when a party to a commercial arbitration sues his lawyer. In No. 81-2408, for example, the holding of the Court of Appeals would permit a suit as long as three years after termination of the grievance proceeding; many States provide for periods even longer.[18] What we said in Mitchell about the 6-year contracts statute urged there can as easily be said here: "It is important to bear in mind the observations made in the Steelworkers Trilogy that `the grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government.. . . The processing . . . machinery is actually a vehicle by which meaning and content are given to the collective *169 bargaining agreement.' Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581 (1960). Although the present case involves a fairly mundane and discrete wrongful-discharge complaint, the grievance and arbitration procedure often processes disputes involving interpretation of critical terms in the collective-bargaining agreement affecting the entire relationship between company and union . . . . This system, with its heavy emphasis on grievance, arbitration, and the `law of the shop,' could easily become unworkable if a decision which has given `meaning and content' to the terms of an agreement, and even affected subsequent modifications of the agreement, could suddenly be called into question as much as [three] years later." 451 U.S., at 63-64. See also Hoosier, 383 U. S., at 706-707; Machinists v. NLRB, 362 U.S. 411, 425 (1960).[19] These objections to the resort to state law might have to be tolerated if state law were the only source reasonably available for borrowing, as it often is. In this case, however, we have available a federal statute of limitations actually designed to accommodate a balance of interests very similar to that at stake here — a statute that is, in fact, an analogy to the present lawsuit more apt than any of the suggested state-law parallels.[20] We refer to § 10(b) of the National Labor Relations Act, which establishes a 6-month period for making charges of unfair labor practices to the NLRB.[21] *170 The NLRB has consistently held that all breaches of a union's duty of fair representation are in fact unfair labor practices. E. g., Miranda Fuel Co., 140 N. L. R. B. 181 (1962), enf. denied, 326 F.2d 172 (CA2 1963). We have twice declined to decide the correctness of the Board's position,[22] and we need not address that question today. Even if not all breaches of the duty are unfair labor practices, however, the family resemblance is undeniable, and indeed there is a substantial overlap. Many fair representation claims (the one in No. 81-2386, for example) include allegations of discrimination based on membership status or dissident views, which would be unfair labor practices under § 8(b)(1) or (2). Aside from these clear cases, duty of fair representation claims are allegations of unfair, arbitrary, or discriminatory treatment of workers by unions — as are virtually all unfair labor practice charges made by workers against unions. See generally R. Gorman, Labor Law 698-701 (1976). Similarly, it may be the case that alleged violations by an employer of a collective-bargaining agreement will also amount to unfair labor practices. See id., at 729-734. At least as important as the similarity of the rights asserted in the two contexts, however, is the close similarity of *171 the considerations relevant to the choice of a limitations period. As Justice Stewart observed in Mitchell: "In § 10(b) of the NLRA, Congress established a limitations period attuned to what it viewed as the proper balance between the national interests in stable bargaining relationships and finality of private settlements, and an employee's interest in setting aside what he views as an unjust settlement under the collective-bargaining system. That is precisely the balance at issue in this case. The employee's interest in setting aside the `final and binding' determination of a grievance through the method established by the collective-bargaining agreement unquestionably implicates `those consensual processes that federal labor law is chiefly designed to promote — the formation of the . . . agreement and the private settlement of disputes under it.' Hoosier, 383 U. S., at 702. Accordingly, `[t]he need for uniformity' among procedures followed for similar claims, ibid., as well as the clear congressional indication of the proper balance between the interests at stake, counsels the adoption of § 10(b) of the NLRA as the appropriate limitations period for lawsuits such as this." 451 U.S., at 70-71 (opinion concurring in judgment) (footnote omitted). We stress that our holding today should not be taken as a departure from prior practice in borrowing limitations periods for federal causes of action, in labor law or elsewhere. We do not mean to suggest that federal courts should eschew use of state limitations periods anytime state law fails to provide a perfect analogy. See, e. g., Mitchell, 451 U. S., at 61, n. 3. On the contrary, as the courts have often discovered, there is not always an obvious state-law choice for application to a given federal cause of action; yet resort to state law remains the norm for borrowing of limitations periods. Nevertheless, *172 when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking, we have not hesitated to turn away from state law. See Part II-A, supra. As Justice Goldberg cautioned: "[I]n this Court's fashioning of a federal law of collective bargaining, it is of the utmost importance that the law reflect the realities of industrial life and the nature of the collective bargaining process. We should not assume that doctrines evolved in other contexts will be equally well adopted to the collective bargaining process." Humphrey v. Moore, 375 U.S. 335, 358 (1964) (opinion concurring in result). III In No. 81-2408, it is conceded that the suit was filed more than 10 months after respondents' causes of action accrued. The Court of Appeals held the suit timely under a state 3-year statute for malpractice actions. Since we hold that the suit is governed by the 6-month provision of § 10(b), we reverse the judgment. The situation is less clear in No. 81-2386. Depending on when the joint committee's decision is thought to have been rendered, the suit was filed some seven or eight months afterwards. Petitioner DelCostello contends, however, that certain events operated to toll the running of the statute of limitations until about three months before he filed suit. Since the District Court applied a 30-day limitations period, it expressly declined to consider any tolling issue. 524 F. Supp., at 725. Hence, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Each of these cases arose as a suit by an employee or employees against an employer and a union, alleging that the employer had breached a provision of a collective-bargaining agreement, and that the union had breached its duty of fair representation by mishandling the ensuing grievance-and-arbitration proceedings See infra, at 162; ; ; The issue presented is what statute of limitations should apply to such suits In United Parcel Service, we held that a similar suit was governed by a state statute of limitations for vacation of an arbitration award, rather than by a state statute for an action on a contract We left two points open, however First, our holding was limited to the employee's claim against the employer; we did not address what state statute should govern the claim against the union[1] Second, we expressly limited our consideration to a choice between two state statutes of limitations; we did not address the contention that we should instead borrow a federal statute of limitations, namely, 10(b) of the National Labor Relations Act, 29 US C 160(b)[2] These cases present these two issues *155 We conclude that 10(b) should be the applicable statute of limitations governing the suit, both against the employer and against the union I A Philip DelCostello, petitioner in No 81-2386, was employed as a driver by respondent Anchor Motor Freight, Inc, and represented by respondent Teamsters Local 557 On June 27, 1977, he quit or was discharged[3] after refusing to drive a tractor-trailer that he contended was unsafe He took his complaint to the union, which made unsuccessful informal attempts to get DelCostello reinstated and then brought a formal grievance under the collective-bargaining agreement A hearing was held before a regional joint union-management committee The committee concluded that the grievance was without merit DelCostello was informed of that decision in a letter dated August 19, 1977, forwarding the minutes of the hearing and stating that the minutes would be presented for approval at the committee's meeting on September 20 DelCostello responded in a letter, but the minutes were approved without change Under the collective-bargaining agreement, the committee's decision is final and binding on all parties On March 16, 1978, DelCostello filed this suit in the District of Maryland against the employer and the union He *156 alleged that the employer had discharged him in violation of the collective-bargaining agreement, and that the union had represented him in the grievance procedure "in a discriminatory, arbitrary and perfunctory manner," App in No 81-2386, p 19, resulting in an unfavorable decision by the joint committee Respondents asserted that the suit was barred by Maryland's 30-day statute of limitations for actions to vacate arbitration awards[4] The District Court disagreed, holding that the applicable statute was the 3-year state statute for actions on contracts[5] On reconsideration following our decision in however, the court granted summary judgment for respondents, concluding that compelled application of the 30-day statute to both the claim against the employer and the claim against the union [6] The Court of Appeals affirmed on the basis of the District Court's order B Donald C Flowers and King E Jones, respondents in No 81-2408, were employed as craft welders by Bethlehem Steel Corp and represented by petitioner Steelworkers Local 2602[7] In 1975 and respondents filed several *157 grievances asserting that the employer had violated the collective-bargaining agreement by assigning certain welding duties to employees in other job categories and departments of the plant, with the result that respondents were laid off or assigned to noncraft work The union processed the grievances through the contractually established procedure and, failing to gain satisfaction, invoked arbitration On February 24, 1978, the arbitrator issued an award for the employer, ruling that the employer's job assignments were permitted by the collective-bargaining agreement Respondents filed this suit in the Western District of New York on January 9, 1979, naming both the employer and the union as defendants The complaint alleged that the company's work assignments violated the collective-bargaining agreement, and that the union's "preparation, investigation and handling" of respondents' grievances were "so inept and careless as to be arbitrary and capricious," in violation of the union's duty of fair representation App in No 81-2408, p 10 The District Court dismissed the complaint against both defendants, holding that the entire suit was governed by New York's 90-day statute of limitations for actions to vacate arbitration awards[8] The Court of Appeals reversed on the basis of its prior holding in that such actions are governed by New York's 6-year statute for actions on We granted certiorari and vacated and remanded for reconsideration in light of our reversal in On remand, the Court of Appeals rejected the argument that the 6-month period of 10(b) applies Accordingly, following our decision in it applied the 90-day arbitration statute and affirmed the dismissal as to the employer As to the union, however, the *158 court reversed, concluding that the correct statute to apply was New York's 3-year statute for malpractice actions[10] C In this Court, petitioners in both cases contend that suits under and should be governed by the 6-month limitations period of 10(b) of the National Labor Relations Act, 29 US C 160(b) Alternatively, the Steelworkers, petitioners in No 81-2408, argue that the state statute for vacation of arbitration awards should apply to a claim against a union as well as to one against an employer[11] We granted certiorari in both cases and consolidated them for argument II A As is often the case in federal civil law, there is no federal statute of limitations expressly applicable to this suit In such situations we do not ordinarily assume that Congress intended that there be no time limit on actions at all; rather, our task is to "borrow" the most suitable statute or other rule of timeliness from some other source We have generally concluded that Congress intended that the courts apply the most closely analogous statute of limitations under state law[12] "The implied absorption of State statutes of limitation *159 within the interstices of the federal enactments is a phase of fashioning remedial details where Congress has not spoken but left matters for judicial determination within the general framework of familiar legal principles" [13] See, e g, ; Chevron Oil ; Auto ; Chattanooga ; *161 In some circumstances, however, state statutes of limitations can be unsatisfactory vehicles for the enforcement of federal law In those instances, it may be inappropriate to conclude that Congress would choose to adopt state rules at odds with the purpose or operation of federal substantive law "[T]he Court has not mechanically applied a state statute of limitations simply because a limitations period is absent from the federal statute State legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies `Although state law is our primary guide in this area, it is not, to be sure, our exclusive guide' " Occidental Life Ins quoting *162 Hence, in some cases we have declined to borrow state statutes but have instead used timeliness rules drawn from federal law — either express limitations periods from related federal statutes, or such alternatives as laches In Occidental, for example, we declined to apply state limitations periods to enforcement suits brought by the Equal Employment Opportunity Commission under Title VII of the 1964 Civil Rights Act, reasoning that such application might unduly hinder the policy of the Act by placing too great an administrative burden on the agency In we applied the federal limitations provision of the Jones Act to a seaworthiness action under general admiralty law We pointed out that the two forms of claim are almost invariably brought together Hence, "with an eye to the practicalities of admiralty personal injury litigation," we held inapplicable a shorter state statute governing personal injury suits Again, in Holmberg, we held that state statutes of limitations would not apply to a federal cause of action lying only in equity, because the principles of federal equity are hostile to the "mechanical rules" of statutes of limitations Auto was a straight-forward suit under 301 of the Labor Management Relations Act, 29 US C 185, for breach of a collective-bargaining agreement by an employer Unlike the present cases, did not involve any agreement to submit disputes to arbitration, and the suit was brought by the union itself rather than by an individual employee We held that the suit was governed by Indiana's 6-year limitations period for actions on unwritten contracts; we resisted the suggestion that we establish some uniform federal period Although we recognized that "the subject matter of 301 is `peculiarly one that calls for uniform law,' " quoting we reasoned that national uniformity is of less importance when the *163 case does not involve "those consensual processes that federal labor law is chiefly designed to promote — the formation of the collective agreement and the private settlement of disputes under it," We also relied heavily on the obvious and close analogy between this variety of 301 suit and an ordinary breach-of-contract case We expressly reserved the question whether we would apply state law to 301 actions where the analogy was less direct or the relevant policy factors different: "The present suit is essentially an action for damages caused by an alleged breach of an employer's obligation embodied in a collective bargaining agreement Such an action closely resembles an action for breach of contract cognizable at common law Whether other 301 suits different from the present one might call for the application of other rules on timeliness, we are not required to decide, and we indicate no view whatsoever on that question See, e g, " n 7 Justice Stewart, who wrote the Court's opinion in took this caution to heart in He concurred separately in the judgment, arguing that the factors that compelled adoption of state law in did not apply to suits under Vaca and and that in the latter situation we should apply the federal limitations period of 10(b) -71 As we shall explain, we agree B It has long been established that an individual employee may bring suit against his employer for breach of a collective-bargaining agreement Smith v Evening News Assn, 371 US 195 Ordinarily, however, an employee is required to attempt to exhaust any grievance or arbitration remedies provided in the collective-bargaining agreement Republic Steel Corp v Maddox, 379 US 650 ; cf Clayton v Automobile Workers, 451 US 679 *164 (exhaustion of intraunion remedies not always required) Subject to very limited judicial review, he will be bound by the result according to the finality provisions of the agreement See W R Grace & Co v Rubber Workers, 461 US 757, ; Steelworkers v Enterprise Corp, 363 US 593 In Vaca and however, we recognized that this rule works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation In such an instance, an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding ; ; United Parcel Service, ; ; v O'Mara, 397 US 25 Such a suit, as a formal matter, comprises two causes of action The suit against the employer rests on 301, since the employee is alleging a breach of the collective-bargaining agreement The suit against the union is one for breach of the union's duty of fair representation, which is implied under the scheme of the National Labor Relations Act[14] "Yet the two claims are inextricably interdependent *165 `To prevail against either the company or the Union, [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union' " (Stewart, J, concurring in judgment), quoting The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both The suit is thus not a straightforward breach-of-contract suit under 301, as was but a hybrid 301/fair representation claim, amounting to "a direct challenge to `the private settlement of disputes under [the collective-bargaining agreement]' " (Stewart, J, concurring in judgment), quoting 383 U S, at 702 Also unlike the claim in it has no close analogy in ordinary state law The analogies suggested in both suffer from flaws, not only of legal substance, but more important, of practical application in view of the policies of federal labor law and the practicalities of hybrid 301/fair representation litigation In we analogized the employee's claim against the employer to an action to vacate an arbitration award in a commercial setting We adhere to the view that, as between the two choices, it is more suitable to characterize the claim that way than as a suit for breach of contract Nevertheless, the parallel is imperfect in operation The main difference is that a party to commercial arbitration will ordinarily be represented by counsel or, at least, will have some experience in matters of commercial dealings and contract negotiation Moreover, an action to vacate a commercial arbitral award will rarely raise any issues not already presented and contested in the arbitration proceeding itself In the labor setting, *166 by contrast, the employee will often be unsophisticated in collective-bargaining matters, and he will almost always be represented solely by the union He is called upon, within the limitations period, to evaluate the adequacy of the union's representation, to retain counsel, to investigate substantial matters that were not at issue in the arbitration proceeding, and to frame his suit Yet state arbitration statutes typically provide very short times in which to sue for vacation of arbitration awards[15] Concededly, the very brevity of New York's 90-day arbitration limitations period was a major factor why, in we preferred it to the 6-year statute for breach of contract, 451 US, at 63-64; but it does not follow that because 6 years is too long, 90 days is long enough See also at 707, n 9 We conclude that state limitations periods for vacating arbitration awards fail to provide an aggrieved employee with a satisfactory opportunity to vindicate his rights under 301 and the fair representation doctrine[16] Moreover, as JUSTICE STEVENS pointed out in his opinion in analogy to an action to vacate an arbitration *167 award is problematic at best as applied to the employee's claim against the union: "The arbitration proceeding did not, and indeed, could not, resolve the employee's claim against the union Although though the union was a party to the arbitration, it acted only as the employee's representative; the [arbitration panel] did not address or resolve any dispute between the employee and the union Because no arbitrator has decided the primary issue presented by this claim, no arbitration award need be undone, even if the employee ultimately prevails" 451 US, at 73 (footnotes omitted) JUSTICE STEVENS suggested an alternative solution for the claim against the union: borrowing the state limitations period for legal malpractice Id, ; see post, at 174 (STEVENS, J, dissenting); post, at 175 (O'CONNOR, J, dissenting) The analogy here is to a lawyer who mishandles a commercial arbitration Although the short limitations period for vacating the arbitral award would protect the interest in finality of the opposing party to the arbitration, the misrepresented party would retain his right to sue his lawyer for malpractice under a longer limitations period This solution is admittedly the closest state-law analogy for the claim against the union Nevertheless, we think that it too suffers from objections peculiar to the realities of labor relations and litigation The most serious objection is that it does not solve the problem caused by the too-short time in which an employee could sue his employer under borrowed state law In a commercial setting, a party who sued his lawyer for bungling an *168 arbitration could ordinarily recover his entire damages, even if the statute of limitations foreclosed any recovery against the opposing party to the arbitration The same is not true in the 301/fair representation setting, however We held in Vaca, and reaffirmed this Term in Bowen, that the union may be held liable only for "increases if any in [the employee's] damages caused by the union's refusal to process the grievance" 386 US, at 197-198; 459 U S, at 223-224; see 397 U S, at 29 Thus, if we apply state limitations periods, a large part of the damages will remain uncollectible in almost every case unless the employee sues within the time allotted for his suit against the employer[17] Further, while application of a short arbitration period as against employers would endanger employees' ability to recover most of what is due them, application of a longer malpractice statute as against unions would preclude the relatively rapid final resolution of labor disputes favored by federal law — a problem not present when a party to a commercial arbitration sues his lawyer In No 81-2408, for example, the holding of the Court of Appeals would permit a suit as long as three years after termination of the grievance proceeding; many States provide for periods even longer[18] What we said in about the 6-year contracts statute urged there can as easily be said here: "It is important to bear in mind the observations made in the Steelworkers Trilogy that `the grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government The processing machinery is actually a vehicle by which meaning and content are given to the collective *169 bargaining agreement' Steelworkers v Warrior & Gulf Navigation Co, 363 US 574, Although the present case involves a fairly mundane and discrete wrongful-discharge complaint, the grievance and arbitration procedure often processes disputes involving interpretation of critical terms in the collective-bargaining agreement affecting the entire relationship between company and union This system, with its heavy emphasis on grievance, arbitration, and the `law of the shop,' could easily become unworkable if a decision which has given `meaning and content' to the terms of an agreement, and even affected subsequent modifications of the agreement, could suddenly be called into question as much as [three] years later" 451 US, at 63-64 See also 383 U S, at 706-707; Machinists v NLRB, 362 US 411, [19] These objections to the resort to state law might have to be tolerated if state law were the only source reasonably available for borrowing, as it often is In this case, however, we have available a federal statute of limitations actually designed to accommodate a balance of interests very similar to that at stake here — a statute that is, in fact, an analogy to the present lawsuit more apt than any of the suggested state-law parallels[20] We refer to 10(b) of the National Labor Relations Act, which establishes a 6-month period for making charges of unfair labor practices to the NLRB[21] *170 The NLRB has consistently held that all breaches of a union's duty of fair representation are in fact unfair labor practices E g, Miranda Fuel Co, 140 N L R B 181 enf denied, 326 F2d 172 We have twice declined to decide the correctness of the Board's position,[22] and we need not address that question today Even if not all breaches of the duty are unfair labor practices, however, the family resemblance is undeniable, and indeed there is a substantial overlap Many fair representation claims (the one in No 81-2386, for example) include allegations of discrimination based on membership status or dissident views, which would be unfair labor practices under 8(b)(1) or (2) Aside from these clear cases, duty of fair representation claims are allegations of unfair, arbitrary, or discriminatory treatment of workers by unions — as are virtually all unfair labor practice charges made by workers against unions See generally R Gorman, Labor Law 698-701 Similarly, it may be the case that alleged violations by an employer of a collective-bargaining agreement will also amount to unfair labor practices See At least as important as the similarity of the rights asserted in the two contexts, however, is the close similarity of *171 the considerations relevant to the choice of a limitations period As Justice Stewart observed in : "In 10(b) of the NLRA, Congress established a limitations period attuned to what it viewed as the proper balance between the national interests in stable bargaining relationships and finality of private settlements, and an employee's interest in setting aside what he views as an unjust settlement under the collective-bargaining system That is precisely the balance at issue in this case The employee's interest in setting aside the `final and binding' determination of a grievance through the method established by the collective-bargaining agreement unquestionably implicates `those consensual processes that federal labor law is chiefly designed to promote — the formation of the agreement and the private settlement of disputes under it' 383 U S, at 702 Accordingly, `[t]he need for uniformity' among procedures followed for similar claims, ib as well as the clear congressional indication of the proper balance between the interests at stake, counsels the adoption of 10(b) of the NLRA as the appropriate limitations period for lawsuits such as this" 451 US, at 70-71 (footnote omitted) We stress that our holding today should not be taken as a departure from prior practice in borrowing limitations periods for federal causes of action, in labor law or elsewhere We do not mean to suggest that federal courts should eschew use of state limitations periods anytime state law fails to provide a perfect analogy See, e g, 451 U S, at 61, n 3 On the contrary, as the courts have often discovered, there is not always an obvious state-law choice for application to a given federal cause of action; yet resort to state law remains the norm for borrowing of limitations periods Nevertheless, *172 when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking, we have not hesitated to turn away from state law See Part supra As Justice Goldberg cautioned: "[I]n this Court's fashioning of a federal law of collective bargaining, it is of the utmost importance that the law reflect the realities of industrial life and the nature of the collective bargaining process We should not assume that doctrines evolved in other contexts will be equally well adopted to the collective bargaining process" Humphrey v Moore, 375 US 335, III In No 81-2408, it is conceded that the suit was filed more than 10 months after respondents' causes of action accrued The Court of Appeals held the suit timely under a state 3-year statute for malpractice actions Since we hold that the suit is governed by the 6-month provision of 10(b), we reverse the judgment The situation is less clear in No 81-2386 Depending on when the joint committee's decision is thought to have been rendered, the suit was filed some seven or eight months afterwards Petitioner DelCostello contends, however, that certain events operated to toll the running of the statute of limitations until about three months before he filed suit Since the District Court applied a 30-day limitations period, it expressly declined to consider any tolling issue 524 F Supp, at 725 Hence, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion It is so ordered

Justice Breyer

second_dissenting

Pliler v. Ford

https://www.courtlistener.com/opinion/136992/pliler-v-ford/

https://www.courtlistener.com/api/rest/v3/clusters/136992/

2003-077

I join JUSTICE GINSBURG's dissent. But I write separately to "addres[s] the propriety of" the Ninth Circuit's "stay-and-abeyance procedure." Ante, at 231 (majority opinion). That procedure would have permitted Richard Ford, the respondent, to ask the federal court to stay proceedings and hold his federal habeas petition (in abeyance) on its docket while he returned to state court to exhaust his unexhausted federal claims. Thus Ford would not have had to bring his federal petition again, after expiration of the 1-year limitations period. California's courts thereby could have considered his unexhausted claims without forcing him to forfeit his right to ask a federal court for habeas relief. What could be unlawful about this procedure? In Rose v. Lundy, 455 U.S. 509 (1982), the Court, pointing to considerations of comity, held that federal habeas courts must give state courts a first crack at deciding an issue. Id., at 518-519. It prohibited the federal courts from considering unexhausted claims. The Court added that, where a habeas petition is "mixed" (containing both exhausted and unexhausted claims), the federal habeas court should dismiss the petition. Id., at 520. Rose reassured those prisoners (typically acting pro se), however, that the dismissal would not "unreasonably impair the prisoner's right to relief." Id., at 522. That reassurance made sense at that time because the law did not then put a time limit on refiling. It thereby permitted a prisoner to return to federal court after he had exhausted his state remedies. Id., at 520. Of course, the law prohibits a prisoner from "abusing the writ," but ordinarily a petitioner's dismissal of his mixed petition, his presenting unexhausted claims to the state courts, and his subsequent return to federal court would not have constituted an abuse. *238 Fourteen years after Rose, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA imposed a 1-year statute of limitations for filing a habeas petition. 28 U.S. C. § 2244(d)(1). One might have thought at first blush that the 1-year limitations period would not make much practical difference where an exhaustion-based dismissal of a mixed petition was at issue, for AEDPA tolls the limitations period while "a properly filed application for State post-conviction or other collateral review ... is pending." § 2244(d)(2). In Duncan v. Walker, 533 U.S. 167, 181-182 (2001), however, this Court held that the words "other collateral review" do not cover a federal habeas proceeding. And that fact means that a pro se habeas petitioner who mistakenly files a mixed petition in federal court may well find that he has no time to get to state court and back before his year expires. Hence, after Duncan, the dismissal of such a petition will not simply give state courts a chance to consider the unexhausted issues he raises; it often also means the permanent end of any federal habeas review. Ante, at 230; see also Duncan, supra, at 186, 191 (BREYER, J., dissenting) (citing statistics that 93% of habeas petitioners are pro se; 63% of all habeas petitions are dismissed; 57% of those are dismissed for failure to exhaust; and district courts took an average of nearly nine months to dismiss petitions on procedural grounds). Indeed, in this very case — a not atypical scenario — the limitations period expired while the petition was pending before the District Court. I dissented in Duncan, arguing that Congress could not have intended to cause prisoners to lose their habeas rights under these circumstances. 533 U.S., at 190. Although the majority reached a different conclusion, it did so primarily upon the basis of the statute's language. See id., at 172-178. Accepting the majority's view of that language, I nonetheless believe that the other considerations that I raised in Duncan support the lawfulness of the Ninth Circuit's stay-and-abeyance *239 procedure. That procedure recognizes the comity interests that Rose identified, and it reconciles those interests with the longstanding constitutional interest in making habeas corpus available to state prisoners. There is no tension between the two. It is thus not surprising that nearly every circuit has adopted a similar procedure. E. g., Crews v. Horn, 360 F.3d 146, 152 (CA3 2004) ("[V]irtually every other Circuit that has considered this issue has held that, following AEDPA, while it usually is within a district court's discretion to determine whether to stay or dismiss a mixed petition, staying the petition is the only appropriate course of action where an outright dismissal could jeopardize the timeliness of a collateral attack" (internal quotation marks omitted)); Nowaczyk v. Warden, 299 F.3d 69, 79 (CA1 2002); Palmer v. Carlton, 276 F.3d 777, 781 (CA6 2002); Zarvela v. Artuz, 254 F.3d 374, 381 (CA2 2001); Freeman v. Page, 208 F.3d 572, 577 (CA7 2000); Brewer v. Johnson, 139 F.3d 491, 493 (CA5 1998); cf. Mackall v. Angelone, 131 F.3d 442, 445 (CA4 1997); but cf. Akins v. Kenney, 341 F.3d 681, 685-686 (CA8 2003) (refusing to stay mixed petitions). See also Duncan, 533 U. S., at 182-183 (STEVENS, J., concurring in part and concurring in judgment) ("[T]here is no reason why a district court should not retain jurisdiction over a meritorious claim and stay further proceedings pending the complete exhaustion of state remedies"); id., at 192 (BREYER, J., dissenting) (noting "JUSTICE STEVENS' sound suggestions that district courts hold mixed petition in abeyance"). I recognize that the Duncan majority also noted the importance of respecting AEDPA's goals of "comity, finality, and federalism." Id., at 178 (internal quotation marks omitted). But I do not see how the Ninth Circuit's procedure could significantly undermine those goals. It is unlikely to mean that prisoners will increasingly file mixed petitions. A petitioner who believes that he is wrongly incarcerated would not deliberately file a petition with unexhausted claims in the wrong (i. e., federal) court, for that error would *240 simply prolong proceedings. Those under a sentence of death might welcome delays, but in such cases deliberate misfiling would risk a finding that the filer has abused the writ and a consequent judicial refusal to hold the petition in abeyance. Moreover, a habeas court may fashion a stay to prevent abusive delays; for example, by providing a time limit within which a prisoner must exhaust state-court remedies. See, e. g., Zarvela, supra, at 381. Nor does the Ninth Circuit procedure seriously undermine AEDPA's 1-year limitations period. That provision requires a prisoner to file a federal habeas petition with at least one exhausted claim within the 1-year period, and it prohibits the habeas petitioner from subsequently including any new claim. These requirements remain. Given the importance of maintaining a prisoner's access to a federal habeas court and the comparatively minor interference that the Ninth Circuit's procedure creates with comity or other AEDPA concerns, I would find use of the stay-and-abeyance procedure legally permissible. I also believe that the Magistrate Judge should have informed Ford of this important rights-preserving option. See ante, at 236 (GINSBURG, J., dissenting). For these reasons, I respectfully dissent.

I join JUSTICE GINSBURG's dissent. But I write separately to "addres[s] the propriety of" the Ninth Circuit's "stay-and-abeyance procedure." Ante, at 231 (majority opinion). That procedure would have permitted Richard Ford, the respondent, to ask the federal court to stay proceedings and hold his federal habeas petition (in abeyance) on its docket while he returned to state court to exhaust his unexhausted federal claims. Thus Ford would not have had to bring his federal petition again, after expiration of the 1-year limitations period. California's courts thereby could have considered his unexhausted claims without forcing him to forfeit his right to ask a federal court for habeas relief. What could be unlawful about this procedure? In the Court, pointing to considerations of comity, held that federal habeas courts must give state courts a first crack at deciding an issue. It prohibited the federal courts from considering unexhausted claims. The Court added that, where a habeas petition is "mixed" (containing both exhausted and unexhausted claims), the federal habeas court should dismiss the petition. Rose reassured those prisoners (typically acting pro se), however, that the dismissal would not "unreasonably impair the prisoner's right to relief." That reassurance made sense at that time because the law did not then put a time limit on refiling. It thereby permitted a prisoner to return to federal court after he had exhausted his state remedies. Of course, the law prohibits a prisoner from "abusing the writ," but ordinarily a petitioner's dismissal of his mixed petition, his presenting unexhausted claims to the state courts, and his subsequent return to federal court would not have constituted an abuse. *238 Fourteen years after Rose, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA imposed a 1-year statute of limitations for filing a habeas petition. 28 U.S. C. 2244(d)(1). One might have thought at first blush that the 1-year limitations period would not make much practical difference where an exhaustion-based dismissal of a mixed petition was at issue, for AEDPA tolls the limitations period while "a properly filed application for State post-conviction or other collateral review is pending." 2244(d)(2). In however, this Court held that the words "other collateral review" do not cover a federal habeas proceeding. And that fact means that a pro se habeas petitioner who mistakenly files a mixed petition in federal court may well find that he has no time to get to state court and back before his year expires. Hence, after the dismissal of such a petition will not simply give state courts a chance to consider the unexhausted issues he raises; it often also means the permanent end of any federal habeas review. Ante, at 230; see also (citing statistics that 93% of habeas petitioners are pro se; 63% of all habeas petitions are dismissed; 57% of those are dismissed for failure to exhaust; and district courts took an average of nearly nine months to dismiss petitions on procedural grounds). Indeed, in this very case — a not atypical scenario — the limitations period expired while the petition was pending before the District Court. I dissented in arguing that Congress could not have intended to cause prisoners to lose their habeas rights under these Although the majority reached a different conclusion, it did so primarily upon the basis of the statute's language. See Accepting the majority's view of that language, I nonetheless believe that the other considerations that I raised in support the lawfulness of the Ninth Circuit's stay-and-abeyance *239 procedure. That procedure recognizes the comity interests that Rose identified, and it reconciles those interests with the longstanding constitutional interest in making habeas corpus available to state prisoners. There is no tension between the two. It is thus not surprising that nearly every circuit has adopted a similar procedure. E. g., ("[V]irtually every other Circuit that has considered this issue has held that, following AEDPA, while it usually is within a district court's discretion to determine whether to stay or dismiss a mixed petition, staying the petition is the only appropriate course of action where an outright dismissal could jeopardize the timeliness of a collateral attack" ); ; ; ; ; ; cf. ; but cf. See also -183 ("[T]here is no reason why a district court should not retain jurisdiction over a meritorious claim and stay further proceedings pending the complete exhaustion of state remedies"); (noting "JUSTICE STEVENS' sound suggestions that district courts hold mixed petition in abeyance"). I recognize that the majority also noted the importance of respecting AEDPA's goals of "comity, finality, and federalism." But I do not see how the Ninth Circuit's procedure could significantly undermine those goals. It is unlikely to mean that prisoners will increasingly file mixed petitions. A petitioner who believes that he is wrongly incarcerated would not deliberately file a petition with unexhausted claims in the wrong (i. e., federal) court, for that error would *240 simply prolong proceedings. Those under a sentence of death might welcome delays, but in such cases deliberate misfiling would risk a finding that the filer has abused the writ and a consequent judicial refusal to hold the petition in abeyance. Moreover, a habeas court may fashion a stay to prevent abusive delays; for example, by providing a time limit within which a prisoner must exhaust state-court remedies. See, e. g., at Nor does the Ninth Circuit procedure seriously undermine AEDPA's 1-year limitations period. That provision requires a prisoner to file a federal habeas petition with at least one exhausted claim within the 1-year period, and it prohibits the habeas petitioner from subsequently including any new claim. These requirements remain. Given the importance of maintaining a prisoner's access to a federal habeas court and the comparatively minor interference that the Ninth Circuit's procedure creates with comity or other AEDPA concerns, I would find use of the stay-and-abeyance procedure legally permissible. I also believe that the Magistrate Judge should have informed Ford of this important rights-preserving option. See ante, at 236 (GINSBURG, J., dissenting). For these reasons, I respectfully dissent.

Justice Ginsburg

dissenting

Lunding v. New York Tax Appeals Tribunal

https://www.courtlistener.com/opinion/118165/lunding-v-new-york-tax-appeals-tribunal/

https://www.courtlistener.com/api/rest/v3/clusters/118165/

1997-019

New York and other States follow the Federal Government's lead[1] in according an income tax deduction for alimony to resident taxpayers only.[2] That tax practice, I *316 conclude, does not offend the nondiscrimination principle embodied in the Privileges and Immunities Clause of Article IV, § 2. I therefore dissent from the Court's opinion. I To put this case in proper perspective, it is helpful to recognize not only that alimony payments are "surely a personal matter," ante, at 310; in addition, alimony payments are "unlike other . . .personal obligation[s]," ante, at 314. Under federal tax law, mirrored in state tax regimes, alimony is included in the recipient's gross income, 26 U.S. C. § 71(a), and the payer is allowed a corresponding deduction, §§ 215(a), 62(a)(10), for payments taxable to the recipient. This scheme "can best be seen as a determination with respect to choice of taxable person rather than as rules relating to the definition of income or expense. In effect, the [alimony payer] is treated as a conduit for gross income that legally belongs to the [alimony recipient] under the divorce decree." M. Chirelstein, Federal Income Taxation ¶ 9.05, p. 230 (8th ed. 1997) (hereinafter Chirelstein); see also B. Bittker & M. McMahon, Federal Income Taxation of Individuals ¶ 36.7, p. 36-18 (2d ed. 1995) ("Unlike most other personal deductions, [the deduction for alimony payments] is best viewed as a method of designating the proper taxpayer for a given amount of income, rather than a tax allowance for particular expenditures. In combination, § 71 [allowing a deduction to the alimony payer] and § 215 [requiring the alimony recipient to include the payment in gross income] treat part of the [payer]'s income as though it were received subject to an offsetting duty to pay it to the payee."). New York applies this scheme to resident alimony payers. But N. Y. Tax Law § 631(b)(6) (McKinney 1987) declares that, in the case of a nonresident with New York source income, the alimony deduction for which federal law provides "shall not constitute a deduction derived from New York sources." *317 Thus, if petitioner Christopher Lunding and his former spouse were New York residents, his alimony payments would be included in his former spouse's gross income for state as well as federal income tax purposes, and he would receive a deduction for the payments. In other words, New York would tax the income once, but not twice. In fact, however, though Lunding derives a substantial part of his gross income from New York sources, he and his former spouse reside in Connecticut. That means, he urges, that New York may not tax the alimony payments at all. Compared to New York divorced spouses, in short, Lunding seeks a windfall, not an escape from double taxation, but a total exemption from New York's tax for the income in question. This beneficence to nonresidents earning income in New York, he insists, is what the Privileges and Immunities Clause of Article IV, § 2, of the United States Constitution demands. Explaining why New York must so favor Connecticut residents over New York residents, Lunding invites comparisons with other broken marriages—cases in which one of the former spouses resides in New York and the other resides elsewhere. First, had Lunding's former spouse moved from Connecticut to New York, New York would count the alimony payments as income to her, but would nonetheless deny him, because of his out-of-state residence, any deduction. In such a case, New York would effectively tax the same income twice, first to the payer by giving him no deduction, then to the recipient, by taxing the payments as gross income to her. Of course, that is not Lunding's situation, and one may question his standing to demand that New York take nothing from him in order to offset the State's arguably excessive taxation of others. More engagingly, Lunding compares his situation to that of a New York resident who pays alimony to a former spouse living in another State. In such a case, New York would permit the New Yorker to deduct the alimony payments, *318 even though the recipient pays no tax to New York on the income transferred to her. New York's choice, according to Lunding, is to deny the alimony deduction to the New Yorker whose former spouse resides out of state, or else extend the deduction to him. The Court apparently agrees. At least, the Court holds, New York "has not adequately justified" the line it has drawn. Ante, at 290. The Court's condemnation of New York's law seems to me unwarranted. As applied to a universe of former marital partners who, like Lunding and his former spouse, reside in the same State, New York's attribution of income to someone (either payer or recipient) is hardly unfair. True, an occasional New York resident will be afforded a deduction though his former spouse, because she resides elsewhere, will not be chased by New York's tax collector. And an occasional New York alimony recipient will be taxed despite the nonresidence of her former spouse. But New York could legitimately assume that in most cases, as in the Lundings' case, payer and recipient will reside in the same State. Moreover, in cases in which the State's system is overly generous (New York payer, nonresident recipient) or insufficiently generous (nonresident payer, New York recipient), there is no systematic discrimination discretely against nonresidents, for the pairs of former spouses in both cases include a resident and a nonresident. In reviewing state tax classifications, we have previously held it sufficient under the Privileges and Immunities Clause that "the State has secured a reasonably fair distribution of burdens, and that no intentional discrimination has been made against non-residents." Travellers' Ins. Co. v. Connecticut, 185 U.S. 364, 371 (1902). In Travellers, the Court upheld a state tax that was facially discriminatory: Nonresidents who held stock in Connecticut corporations owed tax to the State on the full value of their holdings, while resident stockholders were entitled to a deduction for their proportionate share of the corporation's Connecticut real estate. *319 But the State's tax system as a whole was not discriminatory, for although residents were entitled to deduct their share of the corporation's Connecticut real estate from their state taxes, they were required to pay municipal taxes on that property; nonresidents owed no municipal taxes. See id., at 367. Municipal taxes varied across the State, so residents in low-tax municipalities might end up paying lower taxes than nonresidents. Nonetheless, "the mere fact that in a given year the actual workings of the system may result in a larger burden on the non-resident was properly held not to vitiate the system, for a different result might obtain in a succeeding year, the results varying with the calls made in the different localities for local expenses." Id., at 369. Travellers held that tax classifications survive Privileges and Immunities Clause scrutiny if they provide a rough parity of treatment between residents and nonresidents. See also Austin v. New Hampshire, 420 U.S. 656, 665 (1975) (Privileges and Immunities Clause precedents "establis[h] a rule of substantial equality of treatment"). That holding accords with the Court's observation in Baldwin v. Fish and Game Comm'n of Mont., 436 U.S. 371, 383 (1978), that "[s]ome distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States." A tax classification that does not systematically discriminate against nonresidents cannot be said to "hinder the formation, the purpose, or the development of a single Union." See McIntyre & Pomp, Post-Marriage Income Splitting through the Deduction for Alimony Payments, 13 State Tax Notes 1631, 1635 (1997) (urging that the Privileges and Immunities Clause does not require New York to forgo the incomesplitting objective served by its alimony rules when both payer and recipient are residents of the same State simply because "results may be less than ideal" "when one of the *320 parties to the alimony transaction is a resident and the other is a nonresident").[3] I would affirm the judgment of the New York Court of Appeals as consistent with the Court's precedent, and would not cast doubt, as today's decision does, on state tax provisions long considered secure. II Viewing this case as one discretely about alimony, I would accept New York's law as a fair adaptation, at the state level, of the current United States system. The Court notes but shies away from this approach, see ante, at 311-313, expressing particular concern about double taxation in the "extreme" case not before us—the "New York resident [who] receives alimony payments from a nonresident New York taxpayer," ante, at 313.[4] Instead, the Court treats alimony as one among several personal expenses a State makes deductible. Significantly, the Court's approach conforms to no historic pattern. "Historically, both alimony and child support were treated as personal expenses nondeductible [by the payer] *321 and not includable [in the recipient's income]. Successive [federal] statutory enactments beginning in 1942 allowed a deduction and corresponding inclusion for alimony payments while continuing the nondeductible-excludable treatment for child support payments." H. Ault, Comparative Income Taxation: A Structural Analysis 277 (1997). Accepting, arguendo, the Court's "personal expense deduction" in lieu of "income attribution" categorization of alimony, however, I do not read our precedent to lead in the direction the Court takes. On Lunding's analysis, which the Court essentially embraces, the core principle is that "personal deductions, no matter what they are . . . must be allowed in the proportion that the New York State income bears to total income." Tr. of Oral Arg. 19. That has never been, nor should it be, what the Privileges and Immunities Clause teaches. A "[E]arly in this century, the Court enunciated the principle that a State may limit a nonresident's expenses, losses, and other deductions to those incurred in connection with the production of income within the taxing State." 2 J. Hellerstein & W. Hellerstein, State Taxation 20-47 (1992). In two companion cases—Shaffer v. Carter, 252 U.S. 37 (1920), and Travis v. Yale & Towne Mfg. Co., 252 U.S. 60 (1920)— the Court considered, respectively, Oklahoma's and New York's schemes of nonresident income taxation. Both had been challenged as violating the Privileges and Immunities Clause. Upholding the Oklahoma scheme and declaring the New York scheme impermissibly discriminatory, the Court established at least three principles. First, "just as a State may impose general income taxes upon its own citizens and residents whose persons are subject to its control, it may, as a necessary consequence, levy a duty of like character, and not more onerous in its effect, upon incomes accruing to nonresidents from their property or business within the State, *322 or their occupations carried on therein." Shaffer, 252 U. S., at 52; accord, Travis, 252 U. S., at 75. Second, a State may not deny nonresidents personal exemptions when such exemptions are uniformly afforded to residents. See id., at 79-81. Personal exemptions, which are typically granted in a set amount "to all taxpayers, regardless of their income," Hellerstein, Some Reflections on the State Taxation of a Nonresident's Personal Income, 72 Mich. L. Rev. 1309, 1343 (1974) (hereinafter Hellerstein), effectively create a zero tax bracket for the amount of the exemption. See Chirelstein, p. 3. Denial of those exemptions thus amounts to an across-the-board rate increase for nonresidents, a practice impermissible under longstanding constitutional interpretation. See, e. g., Chalker v. Birmingham & Northwestern R. Co., 249 U.S. 522, 526-527 (1919); Ward v. Maryland, 12 Wall. 418, 430 (1871); see also Austin v. New Hampshire, 420 U. S., at 659 (Privileges and Immunities Clause violated where, "[i]n effect, . . . the State taxe[d] only the incomes of nonresidents working in New Hampshire"). Because New York denied nonresidents the personal exemption provided to all residents, the Travis Court held the State's scheme an abridgment of the Privileges and Immunities Clause. 252 U.S., at 79-81. Finally, deductions for specific expenses are treated differently from the blanket exemptions at issue in Travis: A State need not afford nonresidents the same deductions it extends to its residents. In Shaffer, the Court upheld Oklahoma's rules governing deduction of business losses. Oklahoma residents could deduct such losses wherever incurred, while nonresidents could deduct only losses incurred within the State. The Court explained that the disparate treatment was "only such as arises naturally from the extent of the jurisdiction of the State in the two classes of cases, and cannot be regarded as an unfriendly or unreasonable discrimination." 252 U.S., at 57. A State may tax its residents on "their income from all sources, whether within or without *323 the State," but it cannot tax nonresidents on their outof-state activities. Ibid. "Hence there is no obligation to accord to [nonresidents] a deduction by reason of losses elsewhere incurred." Ibid. The Court stated the principle even more clearly in Travis, 252 U. S., at 75-76: "[T]here is no unconstitutional discrimination against citizens of other States in confining the deduction of expenses, losses, etc., in the case of non-resident taxpayers, to such as are connected with income arising from sources within the taxing State . . . ." B Shaffer and Travis plainly establish that States need not allow nonresidents to deduct out-of-state business expenses. The application of those cases to deductions for personal expenses, however, is less clear. On the one hand, Travis ` broad language could be read to suggest that in-state business expenses are the only deductions States must extend to nonresidents. On the other hand, neither Shaffer nor Travis upheld a scheme denying nonresidents deductions for personal expenses.[5] A leading commentator has concluded that "nothing in either the Shaffer or Travis opinions indicates whether the Court was addressing itself to personal as well as business deductions." Hellerstein 1347, n. 165. *324 With rare exception, however, lower courts have applied Shaffer and Travis with equal force to both personal and business deductions. The New York court's decision in Goodwin v. State Tax Comm'n, 286 A.D. 694, 702, 146 N. Y. S. 2d 172, 180 (3d Dept. 1955), aff'd mem., 1 N.Y. 2d 680, 133 N.E.2d 711, appeal dism'd for want of a substantial federal question, 352 U.S. 805 (1956), exemplifies this approach. Goodwin concerned a lawyer who resided in New Jersey and practiced law in New York City. In his New York income tax return, he claimed and was allowed deductions for bar association dues, subscriptions to legal periodicals, entertainment and car expenses, and certain charitable contributions. But he was disallowed deductions for real estate taxes and mortgage interest on his New Jersey home, medical expenses, and life insurance premiums. Goodwin, 286 App. Div., at 695, 146 N. Y. S. 2d, at 174. Upholding the disallowances, the appeals court explained that the nonincome-producing personal expenses at issue were of a kind properly referred to the law and policy of the State of the taxpayer's residence. That State, if it had an income tax, might well have allowed the deductions, but the New York court did not think judgment in the matter should be shouldered by a sister State. Id., at 701, 146 N. Y. S. 2d, at 180. Goodwin further reasoned that a State may accord certain deductions "[i]n the exercise of its general governmental power to advance the welfare of its residents." Ibid. But it does not inevitably follow that the State must "extend similar aid or encouragement to the residents of other states." Ibid. A State need not, in short, underwrite the social policy of the Nation. Cf. Martinez v. Bynum, 461 U.S. 321, 328 (1983) (State may provide free primary and secondary education to residents without extending the same benefit to nonresidents). Other lower courts, upholding a variety of personal expense deductions for residents only, have agreed with Goodwin's analysis. Challenges to such rulings, like the appeal *325 in Goodwin, have been disposed of summarily by this Court. See, e. g., Lung v. O'Chesky, 94 N. M. 802, 617 P.2d 1317 (1980) (upholding denial to nonresidents of grocery and medical tax rebates allowed residents where rebates served as relief for State's gross receipts and property taxes), appeal dism'd for want of a substantial federal question, 450 U.S. 961 (1981); Anderson v. Tiemann, 182 Neb. 393, 407-408, 155 N.W.2d 322, 331-332 (1967) (upholding denial to nonresidents of a deduction allowed residents for sales taxes paid on food purchased for personal use), appeal dism'd for want of a substantial federal question, 390 U.S. 714 (1968); Berry v. State Tax Comm'n, 241 Ore. 580, 582, 397 P.2d 780, 782 (1964) (upholding denial to nonresidents of deductions allowed residents for medical expenses, interest on home-state loans, and other personal items; court stated that the legislature could legitimately conclude that "personal deductions are so closely related to the state of residence that they should be allowed only by the state of residence and not by every other state in which some part of a taxpayer's income might be found and taxed"), appeal dism'd for want of a substantial federal question, 382 U.S. 16 (1965). But see Wood v. Department of Revenue, 305 Ore. 23, 32-33, 749 P.2d 1169, 1173-1174 (1988) (State may not deny alimony deduction to nonresidents). C Goodwin's Privileges and Immunities Clause analysis is a persuasive elaboration of Shaffer and Travis. Whether Goodwin's exposition is read broadly (as supporting the view that a State need not accord nonresidents deductions for any personal expenses) or more precisely (as holding that a State may deny nonresidents deductions for personal expenditures that are "intimately connected with the state of [the taxpayer's] residence," Goodwin, 286 App. Div., at 701, 146 N. Y. S. 2d, at 180), Christopher Lunding is not entitled to the relief he seeks. *326 Alimony payments (if properly treated as an expense at all) are a personal expense, as the Court acknowledges, see ante, at 310-311. They "ste[m] entirely from the marital relationship," United States v. Gilmore, 372 U.S. 39, 51 (1963), and, like other incidents of marital and family life, are principally connected to the State of residence. Unlike donations to New York-based charities or mortgage and tax payments for second homes in the State, Lunding's alimony payments cannot be said to take place in New York, nor do they inure to New York's benefit. They are payments particularly personal in character, made by one Connecticut resident to another Connecticut resident pursuant to a decree issued by a Connecticut state court. Those payments "must be deemed to take place in" Connecticut, "the state of [Lunding's] residence, the state in which his life is centered." Goodwin, 286 App. Div., at 701, 146 N. Y. S. 2d, at 180. New York is not constitutionally compelled to subsidize them. The majority is therefore wrong to fault the Court of Appeals for insufficient articulation of a "policy basis for § 631(b)(6)." Ante, at 304. The Court of Appeals recalled Goodwin, characterizing it as the decision that "definitively addressed" the disallowance of personal life expenses. See 89 N.Y. 2d 283, 289, 675 N.E.2d 816, 820 (1996). The court concluded that alimony payments were no less referable to the law and policy of the taxpayer's residence than "the expenditures for life insurance, out-of-State property taxes and medical treatment at issue in Goodwin. " Id., at 291, 675 N.E.2d, at 821. That policy-based justification for § 631(b)(6) needed no further elaboration. III Although Lunding's alimony payments to a Connecticut resident surely do not facilitate his production of income in New York or contribute to New York's riches, the Court relies on this connection: "[A]s a personal obligation that generally correlates with a taxpayer's total income or wealth, alimony *327 bears some relationship to earnings regardless of their source." Ante, at 314; see also ante, at 310 (alimony payments "arguably bear some relationship to a taxpayer's overall earnings," and are "determined in large measure by an individual's income generally, wherever it is earned"). But all manner of spending similarly relates to an individual's income from all sources. Income generated anywhere will determine, for example, the quality of home one can afford and the character of medical care one can purchase. Under a "correlat[ion] with a taxpayer's total income" approach, ante, at 314, it appears, the nonresident must be allowed to deduct his medical expenses and home state real estate taxes, even school district taxes, plus mortgage interest payments, if the State allows residents to deduct such expenses. And as total income also determines eligibility for tax relief aimed at low-income taxpayers, notably earned income tax credits, a State would be required to make such credits available to nonresidents if it grants them to residents.[6] The Court does not suggest that alimony correlates with a taxpayer's total income more closely than does the run of personal life expenses. Indeed, alimony may be more significantly influenced by other considerations, for example, the length of the marriage, the recipient's earnings, child custody and support arrangements, an antenuptial agreement.[7] In *328 short, the Court's "related-to-income" approach directly leads to what Christopher Lunding candidly argued: Any and every personal deduction allowed to residents must be allowed to nonresidents in the proportion that New York income bears to the taxpayer's total income. See Tr. of Oral Arg. 19-20. If that is the law of this case, long-settled provisions and decisions have been overturned, see supra, at 324-325, beyond the capacity of any legislature to repair. The Court's "notions of fairness," ante, at 315, in my judgment, do not justify today's extraordinary resort to a Privileges and Immunities Clause "the contours of which have [not] been precisely shaped by the process and wear of constant litigation and judicial interpretation." Baldwin v. Fish and Game Comm'n of Mont., 436 U. S., at 379. * * * For the reasons stated, I do not agree that the Privileges and Immunities Clause of Article IV, § 2, mandates the result Lunding seeks—the insulation of his 1990 alimony payments from any State's tax. Accordingly, I would affirm the judgment of the New York Court of Appeals, and I dissent from this Court's judgment.

New York and other States follow the Federal Government's lead[1] in according an income tax deduction for alimony to resident taxpayers only.[2] That tax practice, I *316 conclude, does not offend the nondiscrimination principle embodied in the Privileges and Immunities Clause of Article IV, 2. I therefore dissent from the Court's opinion. I To put this case in proper perspective, it is helpful to recognize not only that alimony payments are "surely a personal matter," ante, at 310; in addition, alimony payments are "unlike otherpersonal obligation[s]," ante, at 314. Under federal tax law, mirrored in state tax regimes, alimony is included in the recipient's gross income, 26 U.S. C. 71(a), and the payer is allowed a corresponding deduction, 215(a), 62(a)(10), for payments taxable to the recipient. This scheme "can best be seen as a determination with respect to choice of taxable person rather than as rules relating to the definition of income or expense. In effect, the [alimony payer] is treated as a conduit for gross income that legally belongs to the [alimony recipient] under the divorce decree." M. Chirelstein, Federal Income Taxation ¶ 9.05, p. 230 (8th ed. 1997) (hereinafter Chirelstein); see also B. Bittker & M. McMahon, Federal Income Taxation of Individuals ¶ 36.7, p. 36-18 (2d ed. 1995) ("Unlike most other personal deductions, [the deduction for alimony payments] is best viewed as a method of designating the proper taxpayer for a given amount of income, rather than a tax allowance for particular expenditures. In combination, 71 [allowing a deduction to the alimony payer] and 215 [requiring the alimony recipient to include the payment in gross income] treat part of the [payer]'s income as though it were received subject to an offsetting duty to pay it to the payee."). New York applies this scheme to resident alimony payers. But N. Y. Tax Law 631(b)(6) (McKinney 1987) declares that, in the case of a nonresident with New York source income, the alimony deduction for which federal law provides "shall not constitute a deduction derived from New York sources." *317 Thus, if petitioner Christopher Lunding and his former spouse were New York residents, his alimony payments would be included in his former spouse's gross income for state as well as federal income tax purposes, and he would receive a deduction for the payments. In other words, New York would tax the income once, but not twice. In fact, however, though Lunding derives a substantial part of his gross income from New York sources, he and his former spouse reside in Connecticut. That means, he urges, that New York may not tax the alimony payments at all. Compared to New York divorced spouses, in short, Lunding seeks a windfall, not an escape from double taxation, but a total exemption from New York's tax for the income in question. This beneficence to nonresidents earning income in New York, he insists, is what the Privileges and Immunities Clause of Article IV, 2, of the United States Constitution demands. Explaining why New York must so favor Connecticut residents over New York residents, Lunding invites comparisons with other broken marriages—cases in which one of the former spouses resides in New York and the other resides elsewhere. First, had Lunding's former spouse moved from Connecticut to New York, New York would count the alimony payments as income to her, but would nonetheless deny him, because of his out-of-state residence, any deduction. In such a case, New York would effectively tax the same income twice, first to the payer by giving him no deduction, then to the recipient, by taxing the payments as gross income to her. Of course, that is not Lunding's situation, and one may question his standing to demand that New York take nothing from him in order to offset the State's arguably excessive taxation of others. More engagingly, Lunding compares his situation to that of a New York resident who pays alimony to a former spouse living in another State. In such a case, New York would permit the New Yorker to deduct the alimony payments, *318 even though the recipient pays no tax to New York on the income transferred to her. New York's choice, according to Lunding, is to deny the alimony deduction to the New Yorker whose former spouse resides out of state, or else extend the deduction to him. The Court apparently agrees. At least, the Court holds, New York "has not adequately justified" the line it has drawn. Ante, at 290. The Court's condemnation of New York's law seems to me unwarranted. As applied to a universe of former marital partners who, like Lunding and his former spouse, reside in the same State, New York's attribution of income to someone (either payer or recipient) is hardly unfair. True, an occasional New York resident will be afforded a deduction though his former spouse, because she resides elsewhere, will not be chased by New York's tax collector. And an occasional New York alimony recipient will be taxed despite the nonresidence of her former spouse. But New York could legitimately assume that in most cases, as in the Lundings' case, payer and recipient will reside in the same State. Moreover, in cases in which the State's system is overly generous (New York payer, nonresident recipient) or insufficiently generous (nonresident payer, New York recipient), there is no systematic discrimination discretely against nonresidents, for the pairs of former spouses in both cases include a resident and a nonresident. In reviewing state tax classifications, we have previously held it sufficient under the Privileges and Immunities Clause that "the State has secured a reasonably fair distribution of burdens, and that no intentional discrimination has been made against non-residents." Travellers' Ins. In Travellers, the Court upheld a state tax that was facially discriminatory: Nonresidents who held stock in Connecticut corporations owed tax to the State on the full value of their holdings, while resident stockholders were entitled to a deduction for their proportionate share of the corporation's Connecticut real estate. *319 But the State's tax system as a whole was not discriminatory, for although residents were entitled to deduct their share of the corporation's Connecticut real estate from their state taxes, they were required to pay municipal taxes on that property; nonresidents owed no municipal taxes. See Municipal taxes varied across the State, so residents in low-tax municipalities might end up paying lower taxes than nonresidents. Nonetheless, "the mere fact that in a given year the actual workings of the system may result in a larger burden on the non-resident was properly held not to vitiate the system, for a different result might obtain in a succeeding year, the results varying with the calls made in the different localities for local expenses." Travellers held that tax classifications survive Privileges and Immunities Clause scrutiny if they provide a rough parity of treatment between residents and nonresidents. See also That holding accords with the Court's observation in 436 U.S. that "[s]ome distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States." A tax classification that does not systematically discriminate against nonresidents cannot be said to "hinder the formation, the purpose, or the development of a single Union." See McIntyre & Pomp, Post-Marriage Income Splitting through the Deduction for Alimony Payments, 13 State Tax Notes 1631, 1635 (1997) (urging that the Privileges and Immunities Clause does not require New York to forgo the incomesplitting objective served by its alimony rules when both payer and recipient are residents of the same State simply because "results may be less than ideal" "when one of the *320 parties to the alimony transaction is a resident and the other is a nonresident").[3] I would affirm the judgment of the New York Court of Appeals as consistent with the Court's precedent, and would not cast doubt, as today's decision does, on state tax provisions long considered secure. II Viewing this case as one discretely about alimony, I would accept New York's law as a fair adaptation, at the state level, of the current United States system. The Court notes but shies away from this approach, see ante, at 311-313, expressing particular concern about double taxation in the "extreme" case not before us—the "New York resident [who] receives alimony payments from a nonresident New York taxpayer," ante, at 313.[4] Instead, the Court treats alimony as one among several personal expenses a State makes deductible. Significantly, the Court's approach conforms to no historic pattern. "Historically, both alimony and child support were treated as personal expenses nondeductible [by the payer] *321 and not includable [in the recipient's income]. Successive [federal] statutory enactments beginning in 1942 allowed a deduction and corresponding inclusion for alimony payments while continuing the nondeductible-excludable treatment for child support payments." H. Ault, Comparative Income Taxation: A Structural Analysis 277 (1997). Accepting, arguendo, the Court's "personal expense deduction" in lieu of "income attribution" categorization of alimony, however, I do not read our precedent to lead in the direction the Court takes. On Lunding's analysis, which the Court essentially embraces, the core principle is that "personal deductions, no matter what they are must be allowed in the proportion that the New York State income bears to total income." Tr. of Oral Arg. 19. That has never been, nor should it be, what the Privileges and Immunities Clause teaches. A "[E]arly in this century, the Court enunciated the principle that a State may limit a nonresident's expenses, losses, and other deductions to those incurred in connection with the production of income within the taxing State." 2 J. Hellerstein & W. Hellerstein, State Taxation 20-47 (1992). In two companion and — the Court considered, respectively, Oklahoma's and New York's schemes of nonresident income taxation. Both had been challenged as violating the Privileges and Immunities Upholding the Oklahoma scheme and declaring the New York scheme impermissibly discriminatory, the Court established at least three principles. First, "just as a State may impose general income taxes upon its own citizens and residents whose persons are subject to its control, it may, as a necessary consequence, levy a duty of like character, and not more onerous in its effect, upon incomes accruing to nonresidents from their property or business within the State, *322 or their occupations carried on therein." ; accord, Second, a State may not deny nonresidents personal exemptions when such exemptions are uniformly afforded to residents. See Personal exemptions, which are typically granted in a set amount "to all taxpayers, regardless of their income," Hellerstein, Some Reflections on the State Taxation of a Nonresident's Personal Income, effectively create a zero tax bracket for the amount of the exemption. See Chirelstein, p. 3. Denial of those exemptions thus amounts to an across-the-board rate increase for nonresidents, a practice impermissible under longstanding constitutional interpretation. See, e. g., ; ; see also Because New York denied nonresidents the personal exemption provided to all residents, the Court held the State's scheme an abridgment of the Privileges and Immunities 252 U.S., Finally, deductions for specific expenses are treated differently from the blanket exemptions at issue in : A State need not afford nonresidents the same deductions it extends to its residents. In the Court upheld Oklahoma's rules governing deduction of business losses. Oklahoma residents could deduct such losses wherever incurred, while nonresidents could deduct only losses incurred within the State. The Court explained that the disparate treatment was "only such as arises naturally from the extent of the jurisdiction of the State in the two classes of cases, and cannot be regarded as an unfriendly or unreasonable discrimination." A State may tax its residents on "their income from all sources, whether within or without *323 the State," but it cannot tax nonresidents on their outof-state activities. "Hence there is no obligation to accord to [nonresidents] a deduction by reason of losses elsewhere incurred." The Court stated the principle even more clearly in -76: "[T]here is no unconstitutional discrimination against citizens of other States in confining the deduction of expenses, losses, etc., in the case of non-resident taxpayers, to such as are connected with income arising from sources within the taxing State" B and plainly establish that States need not allow nonresidents to deduct out-of-state business expenses. The application of those cases to deductions for personal expenses, however, is less clear. On the one hand, ` broad language could be read to suggest that in-state business expenses are the only deductions States must extend to nonresidents. On the other hand, neither nor upheld a scheme denying nonresidents deductions for personal expenses.[5] A leading commentator has concluded that "nothing in either the or opinions indicates whether the Court was addressing itself to personal as well as business deductions." Hellerstein 1347, n. 165. *324 With rare exception, however, lower courts have applied and with equal force to both personal and business deductions. The New York court's decision in aff'd mem., exemplifies this approach. Goodwin concerned a lawyer who resided in New Jersey and practiced law in New York City. In his New York income tax return, he claimed and was allowed deductions for bar association dues, subscriptions to legal periodicals, entertainment and car expenses, and certain charitable contributions. But he was disallowed deductions for real estate taxes and mortgage interest on his New Jersey home, medical expenses, and life insurance premiums. Goodwin, 286 App. Div., at 695, 146 N. Y. S. 2d, at 174. Upholding the disallowances, the appeals court explained that the nonincome-producing personal expenses at issue were of a kind properly referred to the law and policy of the State of the taxpayer's residence. That State, if it had an income tax, might well have allowed the deductions, but the New York court did not think judgment in the matter should be shouldered by a sister State. 146 N. Y. S. 2d, at 180. Goodwin further reasoned that a State may accord certain deductions "[i]n the exercise of its general governmental power to advance the welfare of its residents." But it does not inevitably follow that the State must "extend similar aid or encouragement to the residents of other states." A State need not, in short, underwrite the social policy of the Nation. Cf. Other lower courts, upholding a variety of personal expense deductions for residents only, have agreed with Goodwin's analysis. Challenges to such rulings, like the appeal *325 in Goodwin, have been disposed of summarily by this Court. See, e. g., appeal dism'd for want of a substantial federal question, ; appeal dism'd for want of a substantial federal question, ; (upholding denial to nonresidents of deductions allowed residents for medical expenses, interest on home-state loans, and other personal items; court stated that the legislature could legitimately conclude that "personal deductions are so closely related to the state of residence that they should be allowed only by the state of residence and not by every other state in which some part of a taxpayer's income might be found and taxed"), appeal dism'd for want of a substantial federal question, But see C Goodwin's Privileges and Immunities Clause analysis is a persuasive elaboration of and Whether Goodwin's exposition is read broadly (as supporting the view that a State need not accord nonresidents deductions for any personal expenses) or more precisely (as holding that a State may deny nonresidents deductions for personal expenditures that are "intimately connected with the state of [the taxpayer's] residence," Goodwin, 286 App. Div., 146 N. Y. S. 2d, at 180), Christopher Lunding is not entitled to the relief he seeks. *326 Alimony payments (if properly treated as an expense at all) are a personal expense, as the Court acknowledges, see ante, at 310-311. They "ste[m] entirely from the marital relationship," United and, like other incidents of marital and family life, are principally connected to the State of residence. Unlike donations to New York-based charities or mortgage and tax payments for second homes in the State, Lunding's alimony payments cannot be said to take place in New York, nor do they inure to New York's benefit. They are payments particularly personal in character, made by one Connecticut resident to another Connecticut resident pursuant to a decree issued by a Connecticut state court. Those payments "must be deemed to take place in" Connecticut, "the state of [Lunding's] residence, the state in which his life is centered." Goodwin, 286 App. Div., 146 N. Y. S. 2d, at 180. New York is not constitutionally compelled to subsidize them. The majority is therefore wrong to fault the Court of Appeals for insufficient articulation of a "policy basis for 631(b)(6)." Ante, at 304. The Court of Appeals recalled Goodwin, characterizing it as the decision that "definitively addressed" the disallowance of personal life expenses. See The court concluded that alimony payments were no less referable to the law and policy of the taxpayer's residence than "the expenditures for life insurance, out-of-State property taxes and medical treatment at issue in Goodwin. " That policy-based justification for 631(b)(6) needed no further elaboration. III Although Lunding's alimony payments to a Connecticut resident surely do not facilitate his production of income in New York or contribute to New York's riches, the Court relies on this connection: "[A]s a personal obligation that generally correlates with a taxpayer's total income or wealth, alimony *327 bears some relationship to earnings regardless of their source." Ante, at 314; see also ante, at 310 (alimony payments "arguably bear some relationship to a taxpayer's overall earnings," and are "determined in large measure by an individual's income generally, wherever it is earned"). But all manner of spending similarly relates to an individual's income from all sources. Income generated anywhere will determine, for example, the quality of home one can afford and the character of medical care one can purchase. Under a "correlat[ion] with a taxpayer's total income" approach, ante, at 314, it appears, the nonresident must be allowed to deduct his medical expenses and home state real estate taxes, even school district taxes, plus mortgage interest payments, if the State allows residents to deduct such expenses. And as total income also determines eligibility for tax relief aimed at low-income taxpayers, notably earned income tax credits, a State would be required to make such credits available to nonresidents if it grants them to residents.[6] The Court does not suggest that alimony correlates with a taxpayer's total income more closely than does the run of personal life expenses. Indeed, alimony may be more significantly influenced by other considerations, for example, the length of the marriage, the recipient's earnings, child custody and support arrangements, an antenuptial agreement.[7] In * short, the Court's "related-to-income" approach directly leads to what Christopher Lunding candidly argued: Any and every personal deduction allowed to residents must be allowed to nonresidents in the proportion that New York income bears to the taxpayer's total income. See Tr. of Oral Arg. 19-20. If that is the law of this case, long-settled provisions and decisions have been overturned, see beyond the capacity of any legislature to repair. The Court's "notions of fairness," ante, at 315, in my judgment, do not justify today's extraordinary resort to a Privileges and Immunities Clause "the contours of which have [not] been precisely shaped by the process and wear of constant litigation and judicial interpretation." * * * For the reasons stated, I do not agree that the Privileges and Immunities Clause of Article IV, 2, mandates the result Lunding seeks—the insulation of his 1990 alimony payments from any State's tax. Accordingly, I would affirm the judgment of the New York Court of Appeals, and I dissent from this Court's judgment.

Justice Stevens

concurring

Wyrick v. Fields

https://www.courtlistener.com/opinion/110809/wyrick-v-fields/

https://www.courtlistener.com/api/rest/v3/clusters/110809/

1982-005

There is much force to what JUSTICE MARSHALL has written in dissent. I share his concern about the Court's practice of deciding cases summarily, partly because there is a special risk of error in summary dispositions and partly because the practice represents an unwise use of the Court's scarce resources. I do not, however, agree with JUSTICE MARSHALL's suggestion that we should invite the parties to submit briefs on the merits before a case is summarily decided. I fear that the institution of such a practice would tend to regularize and expand the number of our summary dispositions. *50 In this case I believe the correct procedure for the Court to have followed would have been simply to deny the petition for a writ of certiorari. No conflict has yet developed on the precise question presented and, as JUSTICE MARSHALL demonstrates, the Court of Appeals' conclusion is not without reasoned support. The Court, however, has granted the petition. Although I voted against that action, I am now persuaded that the Court's resolution of the merits is correct and therefore join its disposition.

There is much force to what JUSTICE MARSHALL has written in dissent. I share his concern about the Court's practice of deciding cases summarily, partly because there is a special risk of error in summary dispositions and partly because the practice represents an unwise use of the Court's scarce resources. I do not, however, agree with JUSTICE MARSHALL's suggestion that we should invite the parties to submit briefs on the merits before a case is summarily decided. I fear that the institution of such a practice would tend to regularize and expand the number of our summary dispositions. *50 In this case I believe the correct procedure for the Court to have followed would have been simply to deny the petition for a writ of certiorari. No conflict has yet developed on the precise question presented and, as JUSTICE MARSHALL demonstrates, the Court of Appeals' conclusion is not without reasoned support. The Court, however, has granted the petition. Although I voted against that action, I am now persuaded that the Court's resolution of the merits is correct and therefore join its disposition.

Justice Rehnquist

concurring

California Ex Rel. State Lands Comm'n v. United States

https://www.courtlistener.com/opinion/110744/california-ex-rel-state-lands-commn-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/110744/

1981-122

I concur in the judgment. I believe that our decision in Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979), requires the application of federal common law to resolve this title dispute between the United States and California, and that § 5(a) of the Submerged Lands Act indicates the source of that law. The dispute in this case concerns the ownership of artificially caused accretions on oceanfront property belonging to *289 the United States. The dispute centers on the legal effect of the movement of the "mean high-water mark." That mark separates the fastlands continuously owned by the United States from the "tidelands" — the area of partially submerged lands between the mean high- and low-water marks. California's claim of title to the tidelands is based upon the equal-footing doctrine. Because the tidelands belong to it and because the accretions formed on the tidelands, California contends that state law applies to resolve this title dispute between it and the United States. The rule adopted by the California courts regarding artificially caused accretions holds that title to accreted land vests with the State rather than the riparian or littoral owner. The United States contends that federal common law applies and argues that the federal common-law rule holds that title to land formed by accretion vests in the owner of the riparian land. The dispute in this case is similar to that in Wilson v. Omaha Indian Tribe. We held in Wilson that federal common law and not state law governs title disputes resulting from changes in the course of a navigable stream where an instrumentality of the Federal Government is the riparian owner. 442 U.S., at 669-671. The rule of Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363 (1977), was distinguished. The Corvallis rule — that state law governs — applies where the dispute over the legal effect of a shifting riverbed does not involve claims of title by a federal instrumentality. I agree with the Court that the Wilson rule applies to oceanfront property as well as riverfront property where the Federal Government is the littoral owner. Wilson should apply to the movement of the high-water mark along the ocean in a fashion similar to the way it applies to changes in the bed of a navigable stream. In the instant case, as in Wilson, it is irrelevant that the accretion, as a geographical "fact," formed on land within the State's dominion, be it a river bottom or the ocean tidelands. The fact is that both *290 Wilson and the instant case concern title disputes over changes in the shoreline where the Federal Government owns land along the shoreline. In Wilson, we held that state law supplied the applicable rule of decision even though federal common law applied to resolve the title dispute. We found no need for a uniform national rule and no reason why federal interests should not be treated under the same rules of property that would apply to private persons. In contrast to Wilson, however, I agree with the Court that Congress in § 5(a) of the Submerged Lands Act has supplied the rule of decision. Section 5(a) withholds from the grant to the States all accretions to coastal lands acquired or reserved by the United States. I also agree with the Court that California did not acquire the disputed lands pursuant to the "made lands" provisions in § 2(a)(3). Consequently, the Court's discussion regarding the continuing vitality of Hughes v. Washington, 389 U.S. 290 (1967), is dicta. Hughes is unnecessary to the resolution of choice-of-law issues in title disputes between the Federal Government and a State or private person. Reliance on Hughes would be necessary only if we were to hold that federal common law, rather than state law, applied in a title dispute between a federal patentee and a State or private persons as to lands fronting an ocean. The instant case does not present that issue. It is difficult to reconcile Hughes with Corvallis and we should postpone that endeavor until required to undertake it. In summary, I think this case can be easily resolved as a title dispute between the United States and California concerning the legal effect of movement of the Pacific Ocean's high-water mark. Wilson and the Submerged Lands Act resolve the dispute. The continuing vitality of Hughes should be left to another day.

I concur in the judgment. I believe that our decision in requires the application of federal common law to resolve this title dispute between the United States and California, and that 5(a) of the Submerged Lands Act indicates the source of that law. The dispute in this case concerns the ownership of artificially caused accretions on oceanfront property belonging to *289 the United States. The dispute centers on the legal effect of the movement of the "mean high-water mark." That mark separates the fastlands continuously owned by the United States from the "tidelands" — the area of partially submerged lands between the mean high- and low-water marks. California's claim of title to the tidelands is based upon the equal-footing doctrine. Because the tidelands belong to it and because the accretions formed on the tidelands, California contends that state law applies to resolve this title dispute between it and the United States. The rule adopted by the California courts regarding artificially caused accretions holds that title to accreted land vests with the State rather than the riparian or littoral The United States contends that federal common law applies and argues that the federal common-law rule holds that title to land formed by accretion vests in the owner of the riparian land. The dispute in this case is similar to that in We held in Wilson that federal common law and not state law governs title disputes resulting from changes in the course of a navigable stream where an instrumentality of the Federal Government is the riparian -671. The rule of Oregon ex rel. State Land was distinguished. The Corvallis rule — that state law governs — applies where the dispute over the legal effect of a shifting riverbed does not involve claims of title by a federal instrumentality. I agree with the Court that the Wilson rule applies to oceanfront property as well as riverfront property where the Federal Government is the littoral Wilson should apply to the movement of the high-water mark along the ocean in a fashion similar to the way it applies to changes in the bed of a navigable stream. In the instant case, as in Wilson, it is irrelevant that the accretion, as a geographical "fact," formed on land within the State's dominion, be it a river bottom or the ocean tidelands. The fact is that both *290 Wilson and the instant case concern title disputes over changes in the shoreline where the Federal Government owns land along the shoreline. In Wilson, we held that state law supplied the applicable rule of decision even though federal common law applied to resolve the title dispute. We found no need for a uniform national rule and no reason why federal interests should not be treated under the same rules of property that would apply to private persons. In contrast to Wilson, however, I agree with the Court that Congress in 5(a) of the Submerged Lands Act has supplied the rule of decision. Section 5(a) withholds from the grant to the States all accretions to coastal lands acquired or reserved by the United States. I also agree with the Court that California did not acquire the disputed lands pursuant to the "made lands" provisions in 2(a)(3). Consequently, the Court's discussion regarding the continuing vitality of is dicta. Hughes is unnecessary to the resolution of choice-of-law issues in title disputes between the Federal Government and a State or private person. Reliance on Hughes would be necessary only if we were to hold that federal common law, rather than state law, applied in a title dispute between a federal patentee and a State or private persons as to lands fronting an ocean. The instant case does not present that issue. It is difficult to reconcile Hughes with Corvallis and we should postpone that endeavor until required to undertake it. In summary, I think this case can be easily resolved as a title dispute between the United States and California concerning the legal effect of movement of the Pacific Ocean's high-water mark. Wilson and the Submerged Lands Act resolve the dispute. The continuing vitality of Hughes should be left to another day.

Justice Ginsburg

majority

American Elec. Power Co. v. Connecticut

https://www.courtlistener.com/opinion/219098/american-elec-power-co-v-connecticut/

https://www.courtlistener.com/api/rest/v3/clusters/219098/

2010-072

We address in this opinion the question whether the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority). As relief, the plaintiffs ask for a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually. The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue. I In Massachusetts v. EPA, 549 U.S. 497 (2007), this Court held that the Clean Air Act, 42 U.S. C. §7401 et seq., authorizes federal regulation of emissions of carbon dioxide and other greenhouse gases. “[N]aturally present in the atmosphere and . . . also emitted by human activi ties,” greenhouse gases are so named because they “trap . . . heat that would otherwise escape from the [Earth’s] atmosphere, and thus form the greenhouse effect that 2 AMERICAN ELEC. POWER CO. v. CONNECTICUT Opinion of the Court helps keep the Earth warm enough for life.” 74 Fed. Reg. 66499 (2009).1 Massachusetts held that the Environ mental Protection Agency (EPA) had misread the Clean Air Act when it denied a rulemaking petition seeking controls on greenhouse gas emissions from new motor vehicles. 549 U.S., at 510–511. Greenhouse gases, we determined, qualify as “air pollutant[s]” within the mean ing of the governing Clean Air Act provision, id., at 528– 529 (quoting §7602(g)); they are therefore within EPA’s regulatory ken. Because EPA had authority to set green house gas emission standards and had offered no “rea soned explanation” for failing to do so, we concluded that the agency had not acted “in accordance with law” when it denied the requested rulemaking. Id., at 534–535 (quot ing §7607(d)(9)(A)). Responding to our decision in Massachusetts, EPA un dertook greenhouse gas regulation. In December 2009, the agency concluded that greenhouse gas emissions from motor vehicles “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare,” the Act’s regulatory trigger. §7521(a)(1); 74 Fed. Reg. 66496. The agency observed that “atmospheric greenhouse gas concentrations are now at elevated and essentially unprecedented levels,” almost entirely “due to anthropogenic emissions,” id., at 66517; mean global temperatures, the agency continued, demonstrate an “unambiguous warming trend over the last 100 years,” and particularly “over the past 30 years,” ibid. Acknowl edging that not all scientists agreed on the causes and consequences of the rise in global temperatures, id., at 66506, 66518, 66523–66524, EPA concluded that “compel ling” evidence supported the “attribution of observed —————— 1 In addition to carbon dioxide, the primary greenhouse gases emitted by human activities include methane, nitrous oxide, hydrofluorocar bons, perfluorocarbons, and sulfur hexafluoride. 74 Fed. Reg. 66499. Cite as: 564 U. S. ____ (2011) 3 Opinion of the Court climate change to anthropogenic” emissions of greenhouse gases, id., at 66518. Consequent dangers of greenhouse gas emissions, EPA determined, included increases in heat-related deaths; coastal inundation and erosion caused by melting icecaps and rising sea levels; more frequent and intense hurricanes, floods, and other “ex treme weather events” that cause death and destroy infra structure; drought due to reductions in mountain snow pack and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially “significant disruptions” of food production. Id., at 66524– 66535.2 EPA and the Department of Transportation subse quently issued a joint final rule regulating emissions from light-duty vehicles, see 75 Fed. Reg. 25324 (2010), and initiated a joint rulemaking covering medium- and heavy duty vehicles, see id., at 74152. EPA also began phasing in requirements that new or modified “[m]ajor [greenhouse gas] emitting facilities” use the “best available control technology.” §7475(a)(4); 75 Fed. Reg. 31520–31521. Fin ally, EPA commenced a rulemaking under §111 of the Act, 42 U.S. C. §7411, to set limits on greenhouse gas emis sions from new, modified, and existing fossil-fuel fired power plants. Pursuant to a settlement finalized in March 2011, EPA has committed to issuing a proposed rule by July 2011, and a final rule by May 2012. See 75 Fed. Reg. 82392; Reply Brief for Tennessee Valley Authority 18. II The lawsuits we consider here began well before EPA initiated the efforts to regulate greenhouse gases just described. In July 2004, two groups of plaintiffs filed —————— 2 For views opposing EPA’s, see, e.g., Dawidoff, The Civil Heretic, N. Y. Times Magazine 32 (March 29, 2009). The Court, we caution, endorses no particular view of the complicated issues related to carbon dioxide emissions and climate change. 4 AMERICAN ELEC. POWER CO. v. CONNECTICUT Opinion of the Court separate complaints in the Southern District of New York against the same five major electric power companies. The first group of plaintiffs included eight States3 and New York City, the second joined three nonprofit land trusts4; both groups are respondents here. The defen dants, now petitioners, are four private companies5 and the Tennessee Valley Authority, a federally owned corpo ration that operates fossil-fuel fired power plants in sev eral States. According to the complaints, the defendants “are the five largest emitters of carbon dioxide in the United States.” App. 57, 118. Their collective annual emissions of 650 million tons constitute 25 percent of emissions from the domestic electric power sector, 10 percent of emissions from all domestic human activities, ibid., and 2.5 percent of all anthropogenic emissions worldwide, App. to Pet. for Cert. 72a. By contributing to global warming, the plaintiffs as serted, the defendants’ carbon-dioxide emissions created a “substantial and unreasonable interference with public rights,” in violation of the federal common law of inter state nuisance, or, in the alternative, of state tort law. App. 103–105, 145–147. The States and New York City alleged that public lands, infrastructure, and health were at risk from climate change. App. 88–93. The trusts urged that climate change would destroy habitats for animals and rare species of trees and plants on land the trusts owned and conserved. App. 139–145. All plaintiffs sought injunctive relief requiring each defendant “to cap —————— 3 California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin, although New Jersey and Wisconsin are no longer participating. Brief for Respondents Connecticut et al. 3, n. 1. 4 Open Space Institute, Inc., Open Space Conservancy, Inc., and Audubon Society of New Hampshire. 5 American Electric Power Company, Inc. (and a wholly owned subsidi ary), Southern Company, Xcel Energy Inc., and Cinergy Corporation. Cite as: 564 U. S. ____ (2011) 5 Opinion of the Court its carbon dioxide emissions and then reduce them by a specified percentage each year for at least a decade.” App. 110, 153. The District Court dismissed both suits as presenting non-justiciable political questions, citing Baker v. Carr, 369 U.S. 186 (1962), but the Second Circuit reversed, 582 F.3d 309 (2009). On the threshold questions, the Court of Appeals held that the suits were not barred by the politi cal question doctrine, id., at 332, and that the plaintiffs had adequately alleged Article III standing, id., at 349. Turning to the merits, the Second Circuit held that all plaintiffs had stated a claim under the “federal common law of nuisance.” Id., at 358, 371. For this determination, the court relied dominantly on a series of this Court’s decisions holding that States may maintain suits to abate air and water pollution produced by other States or by out of-state industry. Id., at 350–351; see, e.g., Illinois v. Milwaukee, 406 U.S. 91, 93, (1972) (Milwaukee I) (recog nizing right of Illinois to sue in federal district court to abate discharge of sewage into Lake Michigan). The Court of Appeals further determined that the Clean Air Act did not “displace” federal common law. In Mil waukee v. Illinois, 451 U.S. 304, 316–319 (1981) (Milwau kee II), this Court held that Congress had displaced the federal common law right of action recognized in Milwau kee I by adopting amendments to the Clean Water Act, 33 U.S. C. §1251 et seq. That legislation installed an all encompassing regulatory program, supervised by an ex pert administrative agency, to deal comprehensively with interstate water pollution. The legislation itself prohib ited the discharge of pollutants into the waters of the United States without a permit from a proper permitting authority. Milwaukee II, 451 U.S., at 310–311 (citing §1311). At the time of the Second Circuit’s decision, by contrast, EPA had not yet promulgated any rule regulat ing greenhouse gases, a fact the court thought dispositive. 6 AMERICAN ELEC. POWER CO. v. CONNECTICUT Opinion of the Court 582 F.3d, at 379–381. “Until EPA completes the rulemak ing process,” the court reasoned, “we cannot speculate as to whether the hypothetical regulation of greenhouse gases under the Clean Air Act would in fact ‘spea[k] di rectly’ to the ‘particular issue’ raised here by Plaintiffs.” Id., at 380. We granted certiorari. 562 U. S. ___ (2010). III The petitioners contend that the federal courts lack au thority to adjudicate this case. Four members of the Court would hold that at least some plaintiffs have Article III standing under Massachusetts, which permitted a State to challenge EPA’s refusal to regulate greenhouse gas emissions, 549 U.S., at 520–526; and, further, that no other threshold obstacle bars review.6 Four members of the Court, adhering to a dissenting opinion in Massachu setts, 549 U.S., at 535, or regarding that decision as dis tinguishable, would hold that none of the plaintiffs have Article III standing. We therefore affirm, by an equally divided Court, the Second Circuit’s exercise of jurisdiction and proceed to the merits. See Nye v. United States, 313 U.S. 33, 44 (1941). IV A “There is no federal general common law,” Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938), famously recognized. In the wake of Erie, however, a keener understanding developed. See generally Friendly, In Praise of Erie—And of the New Federal Common Law, 39 N. Y. U. L. Rev. 383 —————— 6 In addition to renewing the political question argument made below, the petitioners now assert an additional threshold obstacle: They seek dismissal because of a “prudential” bar to the adjudication of general ized grievances, purportedly distinct from Article III’s bar. See Brief for Tennessee Valley Authority 14–24; Brief for Petitioners 30–31. Cite as: 564 U. S. ____ (2011) 7 Opinion of the Court (1964). Erie “le[ft] to the states what ought be left to them,” id., at 405, and thus required “federal courts [to] follow state decisions on matters of substantive law ap propriately cognizable by the states,” id., at 422. Erie also sparked “the emergence of a federal decisional law in areas of national concern.” Id., at 405. The “new” federal common law addresses “subjects within national legisla tive power where Congress has so directed” or where the basic scheme of the Constitution so demands. Id., at 408, n. 119, 421–422. Environmental protection is undoubtedly an area “within national legislative power,” one in which federal courts may fill in “statutory interstices,” and, if necessary, even “fashion federal law.” Id., at 421–422. As the Court stated in Milwaukee I: “When we deal with air and water in their ambient or interstate aspects, there is a federal common law.” 406 U.S., at 103. Decisions of this Court predating Erie, but compatible with the distinction emerging from that decision between “general common law” and “specialized federal common law,” Friendly, supra, at 405, have approved federal com mon law suits brought by one State to abate pollution emanating from another State. See, e.g., Missouri v. Illinois, 180 U.S. 208, 241–243 (1901) (permitting suit by Missouri to enjoin Chicago from discharging untreated sewage into interstate waters); New Jersey v. City of New York, 283 U.S. 473, 477, 481–483 (1931) (ordering New York City to stop dumping garbage off New Jersey coast); Georgia v. Tennessee Copper Co., 240 U.S. 650 (1916) (ordering private copper companies to curtail sulfur dioxide discharges in Tennessee that caused harm in Georgia). See also Milwaukee I, 406 U.S., at 107 (post- Erie decision upholding suit by Illinois to abate sewage discharges into Lake Michigan). The plaintiffs contend that their right to maintain this suit follows inexorably from that line of decisions. Recognition that a subject is meet for federal law gov 8 AMERICAN ELEC. POWER CO. v. CONNECTICUT Opinion of the Court ernance, however, does not necessarily mean that federal courts should create the controlling law. Absent a demon strated need for a federal rule of decision, the Court has taken “the prudent course” of “adopt[ing] the readymade body of state law as the federal rule of decision until Con gress strikes a different accommodation.” United States v. Kimbell Foods, Inc., 440 U.S. 715, 740 (1979); see Bank of America Nat. Trust & Sav. Assn. v. Parnell, 352 U.S. 29, 32–34 (1956). And where, as here, borrowing the law of a particular State would be inappropriate, the Court re mains mindful that it does not have creative power akin to that vested in Congress. See Missouri v. Illinois, 200 U.S. 496, 519 (1906) (“fact that this court must decide does not mean, of course, that it takes the place of a legislature”); cf. United States v. Standard Oil Co. of Cal., 332 U.S. 301, 308, 314 (1947) (holding that federal law determines whether Government could secure indemnity from a com pany whose truck injured a United States soldier, but declining to impose such an indemnity absent action by Congress, “the primary and most often the exclusive arbi ter of federal fiscal affairs”). In the cases on which the plaintiffs heavily rely, States were permitted to sue to challenge activity harmful to their citizens’ health and welfare. We have not yet de cided whether private citizens (here, the land trusts) or political subdivisions (New York City) of a State may invoke the federal common law of nuisance to abate out-of state pollution. Nor have we ever held that a State may sue to abate any and all manner of pollution originating outside its borders. The defendants argue that considerations of scale and complexity distinguish global warming from the more bounded pollution giving rise to past federal nuisance suits. Greenhouse gases once emitted “become well mixed in the atmosphere,” 74 Fed. Reg. 66514; emissions in New Jersey may contribute no more to flooding in New York Cite as: 564 U. S. ____ (2011) 9 Opinion of the Court than emissions in China. Cf. Brief for Petitioners 18–19. The plaintiffs, on the other hand, contend that an equita ble remedy against the largest emitters of carbon dioxide in the United States is in order and not beyond judicial competence. See Brief for Respondents Open Space In stitute et al. 32–35. And we have recognized that public nuisance law, like common law generally, adapts to chang ing scientific and factual circumstances. Missouri, 200 U.S., at 522 (adjudicating claim though it did not concern “nuisance of the simple kind that was known to the older common law”); see also D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 472 (1942) (Jackson, J., concurring) (“fed eral courts are free to apply the traditional common-law technique of decision” when fashioning federal common law). We need not address the parties’ dispute in this regard. For it is an academic question whether, in the absence of the Clean Air Act and the EPA actions the Act authorizes, the plaintiffs could state a federal common law claim for curtailment of greenhouse gas emissions because of their contribution to global warming. Any such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions. B “[W]hen Congress addresses a question previously gov erned by a decision rested on federal common law,” the Court has explained, “the need for such an unusual exer cise of law-making by federal courts disappears.” Mil waukee II, 451 U.S., at 314 (holding that amendments to the Clean Water Act displaced the nuisance claim recog nized in Milwaukee I). Legislative displacement of federal common law does not require the “same sort of evidence of a clear and manifest [congressional] purpose” demanded for preemption of state law. Id., at 317. “ ‘[D]ue regard for the presuppositions of our embracing federal system . . . as 10 AMERICAN ELEC. POWER CO. v. CONNECTICUT Opinion of the Court a promoter of democracy,’ ” id., at 316 (quoting San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243 (1959)), does not enter the calculus, for it is primarily the office of Congress, not the federal courts, to prescribe national policy in areas of special federal interest. TVA v. Hill, 437 U.S. 153, 194 (1978). The test for whether congressional legislation excludes the declaration of fed eral common law is simply whether the statute “speak[s] directly to [the] question” at issue. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978); see Milwaukee II, 451 U.S., at 315; County of Oneida v. Oneida Indian Nation of N. Y., 470 U.S. 226, 236–237 (1985). We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Massachusetts made plain that emis sions of carbon dioxide qualify as air pollution subject to regulation under the Act. 549 U.S., at 528–529. And we think it equally plain that the Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants. Section 111 of the Act directs the EPA Administrator to list “categories of stationary sources” that “in [her] judg ment . . . caus[e], or contribut[e] significantly to, air pol lution which may reasonably be anticipated to endanger public health or welfare.” §7411(b)(1)(A). Once EPA lists a category, the agency must establish standards of per formance for emission of pollutants from new or modified sources within that category. §7411(b)(1)(B); see also §7411(a)(2). And, most relevant here, §7411(d) then re quires regulation of existing sources within the same category.7 For existing sources, EPA issues emissions —————— 7 There is an exception: EPA may not employ §7411(d) if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program, §§7408–7410, or the “hazardous air pollutants” program, §7412. See §7411(d)(1). Cite as: 564 U. S. ____ (2011) 11 Opinion of the Court guidelines, see 40 C. F. R. §60.22, .23 (2009); in compli ance with those guidelines and subject to federal over sight, the States then issue performance standards for stationary sources within their jurisdiction, §7411(d)(1). The Act provides multiple avenues for enforcement. See County of Oneida, 470 U.S., at 237–239 (reach of remedial provisions is important to determination whether statute displaces federal common law). EPA may delegate im plementation and enforcement authority to the States, §7411(c)(1), (d)(1), but the agency retains the power to in spect and monitor regulated sources, to impose adminis trative penalties for noncompliance, and to commence civil actions against polluters in federal court. §§7411(c)(2), (d)(2), 7413, 7414. In specified circumstances, the Act im poses criminal penalties on any person who knowingly violates emissions standards issued under §7411. See §7413(c). And the Act provides for private enforcement. If States (or EPA) fail to enforce emissions limits against regulated sources, the Act permits “any person” to bring a civil enforcement action in federal court. §7604(a). If EPA does not set emissions limits for a particular pol lutant or source of pollution, States and private parties may petition for a rulemaking on the matter, and EPA’s response will be reviewable in federal court. See §7607(b)(1); Massachusetts, 549 U.S., at 516–517, 529. As earlier noted, see supra, at 3, EPA is currently engaged in a §7411 rulemaking to set standards for greenhouse gas emissions from fossil-fuel fired power plants. To settle litigation brought under §7607(b) by a group that included the majority of the plaintiffs in this very case, the agency agreed to complete that rulemaking by May 2012. 75 Fed. Reg. 82392. The Act itself thus provides a means to seek limits on emissions of carbon dioxide from domestic power plants—the same relief the plaintiffs seek by invoking federal common law. We see no room for a parallel track. 12 AMERICAN ELEC. POWER CO. v. CONNECTICUT Opinion of the Court C The plaintiffs argue, as the Second Circuit held, that federal common law is not displaced until EPA actually exercises its regulatory authority, i.e., until it sets stan dards governing emissions from the defendants’ plants. We disagree. The sewage discharges at issue in Milwaukee II, we do not overlook, were subject to effluent limits set by EPA; under the displacing statute, “[e]very point source dis charge” of water pollution was “prohibited unless covered by a permit.” 451 U.S., at 318–320 (emphasis deleted). As Milwaukee II made clear, however, the relevant ques tion for purposes of displacement is “whether the field has been occupied, not whether it has been occupied in a particular manner.” Id., at 324. Of necessity, Congress se lects different regulatory regimes to address different problems. Congress could hardly preemptively prohibit every discharge of carbon dioxide unless covered by a permit. After all, we each emit carbon dioxide merely by breathing. The Clean Air Act is no less an exercise of the legisla ture’s “considered judgment” concerning the regulation of air pollution because it permits emissions until EPA acts. See Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1, 22, n. 32 (1981) (finding displacement although Congress “allowed some continued dumping of sludge” prior to a certain date). The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing §7411 rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency’s expert determination. EPA’s judgment, we hasten to add, would not escape Cite as: 564 U. S. ____ (2011) 13 Opinion of the Court judicial review. Federal courts, we earlier observed, see supra, at 11, can review agency action (or a final rule declining to take action) to ensure compliance with the statute Congress enacted. As we have noted, see supra, at 10, the Clean Air Act directs EPA to establish emis- sions standards for categories of stationary sources that, “in [the Administrator’s] judgment,” “caus[e], or contri but[e] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” §7411(b)(1)(A). “[T]he use of the word ‘judgment,’ ” we explained in Massachusetts, “is not a roving license to ignore the statutory text.” 549 U.S., at 533. “It is but a direction to exercise discretion within defined statutory limits.” Ibid. EPA may not decline to regulate carbon dioxide emissions from power plants if refusal to act would be “arbitrary, capricious, an abuse of discretion, or other wise not in accordance with law.” §7607(d)(9)(A). If the plaintiffs in this case are dissatisfied with the outcome of EPA’s forthcoming rulemaking, their recourse under federal law is to seek Court of Appeals review, and, ulti mately, to petition for certiorari in this Court. Indeed, this prescribed order of decisionmaking—the first decider under the Act is the expert administrative agency, the second, federal judges—is yet another reason to resist setting emissions standards by judicial decree under federal tort law. The appropriate amount of regula tion in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: as with other questions of national or international policy, informed assessment of competing interests is required. Along with the environ mental benefit potentially achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance. The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regu lators. Each “standard of performance” EPA sets must 14 AMERICAN ELEC. POWER CO. v. CONNECTICUT Opinion of the Court “tak[e] into account the cost of achieving [emissions] re duction and any nonair quality health and environmental impact and energy requirements.” §7411(a)(1), (b)(1)(B), (d)(1); see also 40 C. F. R. §60.24(f) (EPA may permit state plans to deviate from generally applicable emissions standards upon demonstration that costs are “[u]n reasonable”). EPA may “distinguish among classes, types, and sizes” of stationary sources in apportioning responsibility for emissions reductions. §7411(b)(2), (d); see also 40 C. F. R. §60.22(b)(5). And the agency may waive compliance with emission limits to permit a facility to test drive an “innovative technological system” that has “not [yet] been adequately demonstrated.” §7411(j)(1)(A). The Act envisions extensive cooperation between federal and state authorities, see §7401(a), (b), generally permit ting each State to take the first cut at determining how best to achieve EPA emissions standards within its do main, see §7411(c)(1), (d)(1)–(2). It is altogether fitting that Congress designated an ex pert agency, here, EPA, as best suited to serve as pri- mary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than indi vidual district judges issuing ad hoc, case-by-case injunc tions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865–866 (1984). Judges may not commission scien tific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to ren der precedential decisions binding other judges, even Cite as: 564 U. S. ____ (2011) 15 Opinion of the Court members of the same court. Notwithstanding these disabilities, the plaintiffs pro pose that individual federal judges determine, in the first instance, what amount of carbon-dioxide emissions is “unreasonable,” App. 103, 145, and then decide what level of reduction is “practical, feasible and economically vi able,” App. 58, 119. These determinations would be made for the defendants named in the two lawsuits launched by the plaintiffs. Similar suits could be mounted, counsel for the States and New York City estimated, against “thou sands or hundreds or tens” of other defendants fitting the description “large contributors” to carbon-dioxide emis sions. Tr. of Oral Arg. 57. The judgments the plaintiffs would commit to federal judges, in suits that could be filed in any federal district, cannot be reconciled with the decisionmaking scheme Congress enacted. The Second Circuit erred, we hold, in ruling that federal judges may set limits on greenhouse gas emissions in face of a law empowering EPA to set the same limits, subject to judicial review only to ensure against action “arbitrary, capricious, . . . or otherwise not in accordance with law.” §7607(d)(9). V The plaintiffs also sought relief under state law, in particular, the law of each State where the defendants operate power plants. See App. 105, 147. The Second Circuit did not reach the state law claims because it held that federal common law governed. 582 F.3d, at 392; see International Paper Co. v. Ouellette, 479 U.S. 481, 488 (1987) (if a case “should be resolved by reference to federal common law[,] . . . state common law [is] preempted”). In light of our holding that the Clean Air Act displaces fed eral common law, the availability vel non of a state law suit depends, inter alia, on the preemptive effect of the federal Act. Id., at 489, 491, 497 (holding that the Clean 16 AMERICAN ELEC. POWER CO. v. CONNECTICUT Opinion of the Court Water Act does not preclude aggrieved individuals from bringing a “nuisance claim pursuant to the law of the source State”). None of the parties have briefed preemp tion or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand. * * * For the reasons stated, we reverse the judgment of the Second Circuit and remand the case for further proceed ings consistent with this opinion. It is so ordered. JUSTICE SOTOMAYOR took no part in the consideration or decision of this case. Cite as: 564 U. S. ____ (2011) 1 Opinion of ALITO, J. SUPREME COURT OF THE UNITED STATES _________________ No. 10–174 _________________ AMERICAN ELECTRIC POWER COMPANY, INC., ET AL., PETITIONERS v. CONNECTICUT ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [June 20, 2011] JUSTICE ALITO, with whom JUSTICE THOMAS joins, concurring in part and concurring in the judgment.

We address in this opinion the question whether the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority). As relief, the plaintiffs ask for a decree setting carbon-dioxide for each defendant at an initial cap, to be further reduced annually. The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue. n this Court held that the Clean Air Act, 42 U.S. C. et seq., authorizes federal regulation of of carbon dioxide and other greenhouse gases. “[N]aturally present in the atmosphere and also emitted by human activi ties,” greenhouse gases are so named because they “trap heat that would otherwise escape from the [Earth’s] atmosphere, and thus form the greenhouse effect that 2 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court helps keep the Earth warm enough for life.” 74 Fed. Reg. 66499 (2009).1 Massachu held that the Environ mental Protection Agency (EPA) had misread the Clean Air Act when it denied a rulemaking petition seeking controls on greenhouse gas from new motor –511. Greenhouse gases, we determined, qualify as “air pollutant[s]” within the mean ing of the governing Clean Air Act provision, at 528– 529 (quoting they are therefore within EPA’s regulatory ken. Because EPA had authority to set green house gas emission standards and had offered no “rea soned explanation” for failing to do so, we concluded that the agency had not acted “in accordance with law” when it denied the requested rulemaking. at 534–535 (quot ing Responding to our decision in Massachu, EPA un dertook greenhouse gas regulation. n December 2009, the agency concluded that greenhouse gas from motor vehicles “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare,” the Act’s regulatory trigger. 74 Fed. Reg. 66496. The agency observed that “atmospheric greenhouse gas concentrations are now at elevated and essentially unprecedented levels,” almost entirely “due to anthropogenic” ; mean global temperatures, the agency continued, demonstrate an “unambiguous warming trend over the last 100 years,” and particularly “over the past 30 years,” Acknowl edging that not all scientists agreed on the causes and consequences of the rise in global temperatures, at 66506, 66518, 66523–66524, EPA concluded that “compel ling” evidence supported the “attribution of observed —————— 1 n addition to carbon dioxide, the primary greenhouse gases emitted by human activities include methane, nitrous oxide, hydrofluorocar bons, perfluorocarbons, and sulfur hexafluoride. Cite as: 564 U. S. (2011) 3 Opinion of the Court climate change to anthropogenic” of greenhouse gases, Consequent dangers of greenhouse gas EPA determined, included increases in heat-related deaths; coastal inundation and erosion caused by melting icecaps and rising sea levels; more frequent and intense hurricanes, floods, and other “ex treme weather events” that cause death and destroy infra structure; drought due to reductions in mountain snow pack and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially “significant disruptions” of food production. at 66524– 66535.2 EPA and the Department of Transportation subse quently issued a joint final rule regulating from light-duty vehicles, see (2010), and initiated a joint rulemaking covering medium- and heavy duty vehicles, see EPA also began phasing in requirements that new or modified “[m]ajor [greenhouse gas] emitting facilities” use the “best available control technology.” –31521. Fin ally, EPA commenced a rulemaking under of the Act, 42 U.S. C. to set limits on greenhouse gas emis sions from new, modified, and existing fossil-fuel fired power plants. Pursuant to a settlement finalized in March 2011, EPA has committed to issuing a proposed rule by July 2011, and a final rule by May 2012. See 75 Fed. Reg. 82392; Reply Brief for Tennessee Valley Authority 18. The lawsuits we consider here began well before EPA initiated the efforts to regulate greenhouse gases just described. n July 2004, two groups of plaintiffs filed —————— 2 For views opposing EPA’s, see, e.g., Dawidoff, The Civil Heretic, N. Y. Times Magazine 32 (March 29, 2009). The Court, we caution, endorses no particular view of the complicated issues related to carbon dioxide and climate change. 4 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court separate complaints in the Southern District of New York against the same five major electric power companies. The first group of plaintiffs included eight States3 and New York City, the second joined three nonprofit land trusts4; both groups are respondents here. The defen dants, now petitioners, are four private companies5 and the Tennessee Valley Authority, a federally owned corpo ration that operates fossil-fuel fired power plants in sev eral States. According to the complaints, the defendants “are the five largest emitters of carbon dioxide in the United States.” App. 57, 118. Their collective annual of 650 million tons constitute 25 percent of from the domestic electric power sector, 10 percent of from all domestic human activities, ib and 2.5 percent of all anthropogenic worldwide, App. to Pet. for Cert. 72a. By contributing to global warming, the plaintiffs as serted, the defendants’ carbon-dioxide created a “substantial and unreasonable interference with public rights,” in violation of the federal common law of inter state nuisance, or, in the alternative, of state tort law. App. 103–105, 145–147. The States and New York City alleged that public lands, infrastructure, and health were at risk from climate change. App. 88–. The trusts urged that climate change would destroy habitats for animals and rare species of trees and plants on land the trusts owned and conserved. App. 139–145. All plaintiffs sought injunctive relief requiring each defendant “to cap —————— 3 California, Connecticut, owa, New Jersey, New York, Rhode sland, Vermont, and Wisconsin, although New Jersey and Wisconsin are no longer participating. Brief for Respondents Connecticut et al. 3, n. 1. 4 Open Space nstitute, nc., Open Space Conservancy, nc., and Audubon Society of New Hampshire. 5 American Electric Power Company, nc. (and a wholly owned subsidi ary), Southern Company, Xcel Energy nc., and Cinergy Corporation. Cite as: 564 U. S. (2011) 5 Opinion of the Court its carbon dioxide and then reduce them by a specified percentage each year for at least a decade.” App. 110, 153. The District Court dismissed both suits as presenting non-justiciable political questions, citing but the Second Circuit reversed, 582 F.3d 309 (2009). On the threshold questions, the Court of Appeals held that the suits were not barred by the politi cal question doctrine, and that the plaintiffs had adequately alleged Article standing, Turning to the merits, the Second Circuit held that all plaintiffs had stated a claim under the “federal common law of nuisance.” For this determination, the court relied dominantly on a series of this Court’s decisions holding that States may maintain suits to abate air and water pollution produced by other States or by out of-state industry. 50–351; see, e.g., llinois v. Milwaukee, (recog nizing right of llinois to sue in federal district court to abate discharge of sewage into Lake Michigan). The Court of Appeals further determined that the Clean Air Act did not “displace” federal common law. n Mil (Milwau kee ), this Court held that Congress had displaced the federal common law right of action recognized in Milwau kee by adopting amendments to the Clean Water Act, 33 U.S. C. et seq. That legislation installed an all encompassing regulatory program, supervised by an ex pert administrative agency, to deal comprehensively with interstate water pollution. The legislation itself prohib ited the discharge of pollutants into the waters of the United States without a permit from a proper permitting authority. Milwaukee –311 (citing At the time of the Second Circuit’s decision, by contrast, EPA had not yet promulgated any rule regulat ing greenhouse gases, a fact the court thought dispositive. 6 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court –381. “Until EPA completes the rulemak ing process,” the court reasoned, “we cannot speculate as to whether the hypothetical regulation of greenhouse gases under the Clean Air Act would in fact ‘spea[k] di rectly’ to the ‘particular issue’ raised here by Plaintiffs.” We granted certiorari. 562 U. S. (2010). The petitioners contend that the federal courts lack au thority to adjudicate this case. Four members of the Court would hold that at least some plaintiffs have Article standing under Massachu, which permitted a State to challenge EPA’s refusal to regulate greenhouse gas –526; and, further, that no other threshold obstacle bars review.6 Four members of the Court, adhering to a dissenting opinion in Massachu or regarding that decision as dis tinguishable, would hold that none of the plaintiffs have Article standing. We therefore affirm, by an equally divided Court, the Second Circuit’s exercise of jurisdiction and proceed to the merits. See Nye v. United States, 313 U.S. 33, 44 (1). V A “There is no federal general common law,” Erie R. Co. v. Tompkins, (18), famously recognized. n the wake of Erie, however, a keener understanding developed. See generally n Praise of Erie—And of the New Federal Common Law, 39 N. Y. U. L. Rev. 383 —————— 6 n addition to renewing the political question argument made below, the petitioners now assert an additional threshold obstacle: They seek dismissal because of a “prudential” bar to the adjudication of general ized grievances, purportedly distinct from Article ’s bar. See Brief for Tennessee Valley Authority 14–24; Brief for Petitioners 30–31. Cite as: 564 U. S. (2011) 7 Opinion of the Court (1964). Erie “le[ft] to the states what ought be left to them,” and thus required “federal courts [to] follow state decisions on matters of substantive law ap propriately cognizable by the states,” Erie also sparked “the emergence of a federal decisional law in areas of national concern.” The “new” federal common law addresses “subjects within national legisla tive power where Congress has so directed” or where the basic scheme of the Constitution so demands. n. 119, 421–422. Environmental protection is undoubtedly an area “within national legislative power,” one in which federal courts may fill in “statutory interstices,” and, if necessary, even “fashion federal law.” at 421–422. As the Court stated in Milwaukee : “When we deal with air and water in their ambient or interstate aspects, there is a federal common law.” Decisions of this Court predating Erie, but compatible with the distinction emerging from that decision between “general common law” and “specialized federal common law,” have approved federal com mon law suits brought by one State to abate pollution emanating from another State. See, e.g., Missouri v. llinois, (permitting suit by Missouri to enjoin Chicago from discharging untreated sewage into interstate waters); New (11) (ordering New York City to stop dumping garbage off New Jersey coast); (ordering private copper companies to curtail sulfur dioxide discharges in Tennessee that caused harm in Georgia). See also Milwaukee (post- Erie decision upholding suit by llinois to abate sewage discharges into Lake Michigan). The plaintiffs contend that their right to maintain this suit follows inexorably from that line of decisions. Recognition that a subject is meet for federal law gov 8 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court ernance, however, does not necessarily mean that federal courts should create the controlling law. Absent a demon strated need for a federal rule of decision, the Court has taken “the prudent course” of “adopt[ing] the readymade body of state law as the federal rule of decision until Con gress strikes a different accommodation.” United States v. Kimbell Foods, nc., ; see Bank of America Nat. Trust & Sav. 32–34 (1956). And where, as here, borrowing the law of a particular State would be inappropriate, the Court re mains mindful that it does not have creative power akin to that vested in Congress. See Missouri v. llinois, 200 U.S. 496, 519 (1906) (“fact that this court must decide does not mean, of course, that it takes the place of a legislature”); cf. United 308, 314 (7) (holding that federal law determines whether Government could secure indemnity from a com pany whose truck injured a United States soldier, but declining to impose such an indemnity absent action by Congress, “the primary and most often the exclusive arbi ter of federal fiscal affairs”). n the cases on which the plaintiffs heavily rely, States were permitted to sue to challenge activity harmful to their citizens’ health and welfare. We have not yet de cided whether private citizens (here, the land trusts) or political subdivisions (New York City) of a State may invoke the federal common law of nuisance to abate out-of state pollution. Nor have we ever held that a State may sue to abate any and all manner of pollution originating outside its borders. The defendants argue that considerations of scale and complexity distinguish global warming from the more bounded pollution giving rise to past federal nuisance suits. Greenhouse gases once emitted “become well mixed in the atmosphere,” ; in New Jersey may contribute no more to flooding in New York Cite as: 564 U. S. (2011) 9 Opinion of the Court than in China. Cf. Brief for Petitioners 18–19. The plaintiffs, on the other hand, contend that an equita ble remedy against the largest emitters of carbon dioxide in the United States is in order and not beyond judicial competence. See Brief for Respondents Open Space n stitute et al. 32–35. And we have recognized that public nuisance law, like common law generally, adapts to chang ing scientific and factual circumstances. Missouri, 200 U.S., at 522 (adjudicating claim though it did not concern “nuisance of the simple kind that was known to the older common law”); see also D’Oench, Duhme & Co. v. FDC, (“fed eral courts are free to apply the traditional common-law technique of decision” when fashioning federal common law). We need not address the parties’ dispute in this regard. For it is an academic question whether, in the absence of the Clean Air Act and the EPA actions the Act authorizes, the plaintiffs could state a federal common law claim for curtailment of greenhouse gas because of their contribution to global warming. Any such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide B “[W]hen Congress addresses a question previously gov erned by a decision rested on federal common law,” the Court has explained, “the need for such an unusual exer cise of law-making by federal courts disappears.” Mil waukee (holding that amendments to the Clean Water Act displaced the nuisance claim recog nized in Milwaukee ). Legislative displacement of federal common law does not require the “same sort of evidence of a clear and manifest [congressional] purpose” demanded for preemption of state law. “ ‘[D]ue regard for the presuppositions of our embracing federal system as 10 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court a promoter of democracy,’ ” (quoting San Diego Building Trades (1959)), does not enter the calculus, for it is primarily the office of Congress, not the federal courts, to prescribe national policy in areas of special federal interest. TVA v. Hill, (19). The test for whether congressional legislation excludes the declaration of fed eral common law is simply whether the statute “speak[s] directly to [the] question” at issue. Mobil Oil Corp. v. Higginbotham, (19); see Milwaukee ; County of v. ndian Nation of N. Y., We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide from fossil-fuel fired power plants. Massachu made plain that emis sions of carbon dioxide qualify as air pollution subject to regulation under the –529. And we think it equally plain that the Act “speaks directly” to of carbon dioxide from the defendants’ plants. Section 111 of the Act directs the EPA Administrator to list “categories of stationary sources” that “in [her] judg ment caus[e], or contribut[e] significantly to, air pol lution which may reasonably be anticipated to endanger public health or welfare.” Once EPA lists a category, the agency must establish standards of per formance for emission of pollutants from new or modified sources within that category. see also And, most relevant here, then re quires regulation of existing sources within the same category.7 For existing sources, EPA issues —————— 7 There is an exception: EPA may not employ if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program, §§8–7410, or the “hazardous air pollutants” program, See (1). Cite as: 564 U. S. (2011) 11 Opinion of the Court guidelines, see23 (2009); in compli ance with those guidelines and subject to federal over sight, the States then issue performance standards for stationary sources within their jurisdiction, (1). The Act provides multiple avenues for enforcement. See County of –239 (reach of remedial provisions is important to determination whether statute displaces federal common law). EPA may delegate im plementation and enforcement authority to the States, (d)(1), but the agency retains the power to in spect and monitor regulated sources, to impose adminis trative penalties for noncompliance, and to commence civil actions against polluters in federal court. (d)(2), 7413, 7414. n specified circumstances, the Act im poses criminal penalties on any person who knowingly violates standards issued under See And the Act provides for private enforcement. f States (or EPA) fail to enforce limits against regulated sources, the Act permits “any person” to bring a civil enforcement action in federal court. f EPA does not set limits for a particular pol lutant or source of pollution, States and private parties may petition for a rulemaking on the matter, and EPA’s response will be reviewable in federal court. See Massachu, –517, 529. As earlier noted, see EPA is currently engaged in a rulemaking to set standards for greenhouse gas from fossil-fuel fired power plants. To settle litigation brought under by a group that included the majority of the plaintiffs in this very case, the agency agreed to complete that rulemaking by May 2012. 75 Fed. Reg. 82392. The Act itself thus provides a means to seek limits on of carbon dioxide from domestic power plants—the same relief the plaintiffs seek by invoking federal common law. We see no room for a parallel track. 12 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court C The plaintiffs argue, as the Second Circuit held, that federal common law is not displaced until EPA actually exercises its regulatory authority, i.e., until it sets stan dards governing from the defendants’ plants. We disagree. The sewage discharges at issue in Milwaukee we do not overlook, were subject to effluent limits set by EPA; under the displacing statute, “[e]very point source dis charge” of water pollution was “prohibited unless covered by a permit.” 451 U.S., 18–320 (emphasis deleted). As Milwaukee made clear, however, the relevant ques tion for purposes of displacement is “whether the field has been occupied, not whether it has been occupied in a particular manner.” 24. Of necessity, Congress se lects different regulatory regimes to address different problems. Congress could hardly preemptively prohibit every discharge of carbon dioxide unless covered by a permit. After all, we each emit carbon dioxide merely by breathing. The Clean Air Act is no less an exercise of the legisla ture’s “considered judgment” concerning the regulation of air pollution because it permits until EPA acts. See Middlesex County Sewerage (finding displacement although Congress “allowed some continued dumping of sludge” prior to a certain date). The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide from power plants; the delegation is what displaces federal common law. ndeed, were EPA to decline to regulate carbon-dioxide altogether at the conclusion of its ongoing rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency’s expert determination. EPA’s judgment, we hasten to add, would not escape Cite as: 564 U. S. (2011) 13 Opinion of the Court judicial review. Federal courts, we earlier observed, see can review agency action (or a final rule declining to take action) to ensure compliance with the statute Congress enacted. As we have noted, see at 10, the Clean Air Act directs EPA to establish emis- sions standards for categories of stationary sources that, “in [the Administrator’s] judgment,” “caus[e], or contri but[e] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” “[T]he use of the word ‘judgment,’ ” we explained in Massachu, “is not a roving license to ignore the statutory text.” “t is but a direction to exercise discretion within defined statutory limits.” bid. EPA may not decline to regulate carbon dioxide from power plants if refusal to act would be “arbitrary, capricious, an abuse of discretion, or other wise not in accordance with law.” f the plaintiffs in this case are dissatisfied with the outcome of EPA’s forthcoming rulemaking, their recourse under federal law is to seek Court of Appeals review, and, ulti mately, to petition for certiorari in this Court. ndeed, this prescribed order of decisionmaking—the first decider under the Act is the expert administrative agency, the second, federal judges—is yet another reason to resist setting standards by judicial decree under federal tort law. The appropriate amount of regula tion in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: as with other questions of national or international policy, informed assessment of competing interests is required. Along with the environ mental benefit potentially achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance. The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regu lators. Each “standard of performance” EPA sets must 14 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court “tak[e] into account the cost of achieving [] re duction and any nonair quality health and environmental impact and energy requirements.” (a)(1), (b)(1)(B), (d)(1); see also (f) (EPA may permit state plans to deviate from generally applicable standards upon demonstration that costs are “[u]n reasonable”). EPA may “distinguish among classes, types, and sizes” of stationary sources in apportioning responsibility for reductions. (b)(2), (d); see also (b)(5). And the agency may waive compliance with emission limits to permit a facility to test drive an “innovative technological system” that has “not [yet] been adequately demonstrated.” (j)(1)(A). The Act envisions extensive cooperation between federal and state authorities, see (a), (b), generally permit ting each State to take the first cut at determining how best to achieve EPA standards within its do main, see (d)(1)–(2). t is altogether fitting that Congress designated an ex pert agency, here, EPA, as best suited to serve as pri- mary regulator of greenhouse gas The expert agency is surely better equipped to do the job than indi vidual district judges issuing ad hoc, case-by-case injunc tions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. nc. v. Natural Resources Defense Council, nc., 467 U.S. 837, 865–866 (1984). Judges may not commission scien tific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to ren der precedential decisions binding other judges, even Cite as: 564 U. S. (2011) 15 Opinion of the Court members of the same court. Notwithstanding these disabilities, the plaintiffs pro pose that individual federal judges determine, in the first instance, what amount of carbon-dioxide is “unreasonable,” App. 103, 145, and then decide what level of reduction is “practical, feasible and economically vi able,” App. 58, 119. These determinations would be made for the defendants named in the two lawsuits launched by the plaintiffs. Similar suits could be mounted, counsel for the States and New York City estimated, against “thou sands or hundreds or tens” of other defendants fitting the description “large contributors” to carbon-dioxide emis sions. Tr. of Oral Arg. 57. The judgments the plaintiffs would commit to federal judges, in suits that could be filed in any federal district, cannot be reconciled with the decisionmaking scheme Congress enacted. The Second Circuit erred, we hold, in ruling that federal judges may set limits on greenhouse gas in face of a law empowering EPA to set the same limits, subject to judicial review only to ensure against action “arbitrary, capricious, or otherwise not in accordance with law.” V The plaintiffs also sought relief under state law, in particular, the law of each State where the defendants operate power plants. See App. 105, 147. The Second Circuit did not reach the state law claims because it held that federal common law 582 F.3d, 92; see nternational Paper (1987) (if a case “should be resolved by reference to federal common law[,] state common law [is] preempted”). n light of our holding that the Clean Air Act displaces fed eral common law, the availability vel non of a state law suit depends, inter alia, on the preemptive effect of the federal (holding that the Clean 16 AMERCAN ELEC. POWER CO. v. CONNECTCUT Opinion of the Court Water Act does not preclude aggrieved individuals from bringing a “nuisance claim pursuant to the law of the source State”). None of the parties have briefed preemp tion or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand. * * * For the reasons stated, we reverse the judgment of the Second Circuit and remand the case for further proceed ings consistent with this opinion. t is so ordered. JUSTCE SOTOMAYOR took no part in the consideration or decision of this case. Cite as: 564 U. S. (2011) 1 Opinion of ALTO, J. SUPREME COURT OF THE UNTED STATES No. 10–174 AMERCAN ELECTRC POWER COMPANY, NC., ET AL., PETTONERS v. CONNECTCUT ET AL. ON WRT OF CERTORAR TO THE UNTED STATES COURT OF APPEALS FOR THE SECOND CRCUT [June 20, 2011] JUSTCE ALTO, with whom JUSTCE THOMAS joins, concurring in part and concurring in the judgment.

Justice O'Connor

majority

Shearson/American Express Inc. v. McMahon

https://www.courtlistener.com/opinion/111910/shearsonamerican-express-inc-v-mcmahon/

https://www.courtlistener.com/api/rest/v3/clusters/111910/

1986-116

This case presents two questions regarding the enforceability of predispute arbitration agreements between brokerage firms and their customers. The first is whether a claim brought under § 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 48 Stat. 891, 15 U.S. C. § 78j(b), must be sent to arbitration in accordance with the terms of an arbitration agreement. The second is whether a claim brought under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. § 1961 et seq., must be arbitrated in accordance with the terms of such an agreement. I Between 1980 and 1982, respondents Eugene and Julia McMahon, individually and as trustees for various pension and profit-sharing plans, were customers of petitioner Shearson/American *223 Express Inc. (Shearson), a brokerage firm registered with the Securities and Exchange Commission (SEC or Commission). Two customer agreements signed by Julia McMahon provided for arbitration of any controversy relating to the accounts the McMahons maintained with Shearson. The arbitration provision provided in relevant part as follows: "Unless unenforceable due to federal or state law, any controversy arising out of or relating to my accounts, to transactions with you for me or to this agreement or the breach thereof, shall be settled by arbitration in accordance with the rules, then in effect, of the National Association of Securities Dealers, Inc. or the Boards of Directors of the New York Stock Exchange, Inc. and/or the American Stock Exchange, Inc. as I may elect." 618 F. Supp. 384, 385 (1985). In October 1984, the McMahons filed an amended complaint against Shearson and petitioner Mary Ann McNulty, the registered representative who handled their accounts, in the United States District Court for the Southern District of New York. The complaint alleged that McNulty, with Shearson's knowledge, had violated § 10(b) of the Exchange Act and Rule 10b-5, 17 CFR § 240.10b-5 (1986), by engaging in fraudulent, excessive trading on respondents' accounts and by making false statements and omitting material facts from the advice given to respondents. The complaint also alleged a RICO claim, 18 U.S. C. § 1962(c), and state law claims for fraud and breach of fiduciary duties. Relying on the customer agreements, petitioners moved to compel arbitration of the McMahons' claims pursuant to § 3 of the Federal Arbitration Act, 9 U.S. C. § 3. The District Court granted the motion in part. 618 F. Supp. 384 (1985). The court first rejected the McMahons' contention that the arbitration agreements were unenforceable as contracts of *224 adhesion. It then found that the McMahons' § 10(b) claims were arbitrable under the terms of the agreement, concluding that such a result followed from this Court's decision in Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213 (1985), and the "strong national policy favoring the enforcement of arbitration agreements." 618 F. Supp., at 388. The District Court also held that the McMahons' state law claims were arbitrable under Dean Witter Reynolds Inc. v. Byrd, supra. It concluded, however, that the McMahons' RICO claim was not arbitrable "because of the important federal policies inherent in the enforcement of RICO by the federal courts." 618 F. Supp., at 387. The Court of Appeals affirmed the District Court on the state law and RICO claims, but it reversed on the Exchange Act claims. 788 F.2d 94 (1986). With respect to the RICO claim, the Court of Appeals concluded that "public policy" considerations made it "inappropriat[e]" to apply the provisions of the Arbitration Act to RICO suits. Id., at 98. The court reasoned that RICO claims are "not merely a private matter." Ibid. Because a RICO plaintiff may be likened to a "private attorney general" protecting the public interest, ibid., the Court of Appeals concluded that such claims should be adjudicated only in a judicial forum. It distinguished this Court's reasoning in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985), concerning the arbitrability of antitrust claims, on the ground that it involved international business transactions and did not affect the law "as applied to agreements to arbitrate arising from domestic transactions." 788 F.2d, at 98. With respect to respondents' Exchange Act claims, the Court of Appeals noted that under Wilko v. Swan, 346 U.S. 427 (1953), claims arising under § 12(2) of the Securities Act of 1933 (Securities Act), 48 Stat. 84, 15 U.S. C. § 77l(2), are not subject to compulsory arbitration. The Court of Appeals *225 observed that it previously had extended the Wilko rule to claims arising under § 10(b) of the Exchange Act and Rule 10b-5. See, e. g., Allegaert v. Perot, 548 F.2d 432 (CA2), cert. denied, 432 U.S. 910 (1977); Greater Continental Corp. v. Schechter, 422 F.2d 1100 (CA2 1970). The court acknowledged that Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974), and Dean Witter Reynolds Inc. v. Byrd, supra, had "cast some doubt on the applicability of Wilko to claims under § 10(b)." 788 F.2d, at 97. The Court of Appeals nevertheless concluded that it was bound by the "clear judicial precedent in this Circuit," and held that Wilko must be applied to Exchange Act claims. 788 F.2d, at 98. We granted certiorari, 479 U.S. 812 (1986), to resolve the conflict among the Courts of Appeals regarding the arbitrability of § 10(b)[1] and RICO[2] claims. II The Federal Arbitration Act, 9 U.S. C. § 1 et seq., provides the starting point for answering the questions raised in this case. The Act was intended to "revers[e] centuries of judicial hostility to arbitration agreements," Scherk v. Alberto-Culver Co., supra, at 510, by "plac[ing] arbitration *226 agreements `upon the same footing as other contracts.' " 417 U.S., at 511, quoting H. R. Rep. No. 96, 68th Cong., 1st Sess., 1, 2 (1924). The Arbitration Act accomplishes this purpose by providing that arbitration agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S. C. § 2. The Act also provides that a court must stay its proceedings if it is satisfied that an issue before it is arbitrable under the agreement, § 3; and it authorizes a federal district court to issue an order compelling arbitration if there has been a "failure, neglect, or refusal" to comply with the arbitration agreement, § 4. The Arbitration Act thus establishes a "federal policy favoring arbitration," Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24 (1983), requiring that "we rigorously enforce agreements to arbitrate." Dean Witter Reynolds Inc. v. Byrd, supra, at 221. This duty to enforce arbitration agreements is not diminished when a party bound by an agreement raises a claim founded on statutory rights. As we observed in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., "we are well past the time when judicial suspicion of the desirability of arbitration and of the competence of arbitral tribunals" should inhibit enforcement of the Act " `in controversies based on statutes.' " 473 U.S., at 626-627, quoting Wilko v. Swan, supra, at 432. Absent a well-founded claim that an arbitration agreement resulted from the sort of fraud or excessive economic power that "would provide grounds `for the revocation of any contract,' " 473 U.S., at 627, the Arbitration Act "provides no basis for disfavoring agreements to arbitrate statutory claims by skewing the otherwise hospitable inquiry into arbitrability." Ibid. The Arbitration Act, standing alone, therefore mandates enforcement of agreements to arbitrate statutory claims. Like any statutory directive, the Arbitration Act's mandate may be overridden by a contrary congressional command. *227 The burden is on the party opposing arbitration, however, to show that Congress intended to preclude a waiver of judicial remedies for the statutory rights at issue. See id., at 628. If Congress did intend to limit or prohibit waiver of a judicial forum for a particular claim, such an intent "will be deducible from [the statute's] text or legislative history," ibid., or from an inherent conflict between arbitration and the statute's underlying purposes. See id., at 632-637; Dean Witter Reynolds Inc. v. Byrd, 470 U. S., at 217. To defeat application of the Arbitration Act in this case, therefore, the McMahons must demonstrate that Congress intended to make an exception to the Arbitration Act for claims arising under RICO and the Exchange Act, an intention discernible from the text, history, or purposes of the statute. We examine the McMahons' arguments regarding the Exchange Act and RICO in turn. III When Congress enacted the Exchange Act in 1934, it did not specifically address the question of the arbitrability of § 10(b) claims. The McMahons contend, however, that congressional intent to require a judicial forum for the resolution of § 10(b) claims can be deduced from § 29(a) of the Exchange Act, 15 U.S. C. § 78cc(a), which declares void "[a]ny condition, stipulation, or provision binding any person to waive compliance with any provision of [the Act]." First, we reject the McMahons' argument that § 29(a) forbids waiver of § 27 of the Exchange Act, 15 U.S. C. § 78aa. Section 27 provides in relevant part: "The district courts of the United States . . . shall have exclusive jurisdiction of violations of this title or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this title or the rules and regulations thereunder." *228 The McMahons contend that an agreement to waive this jurisdictional provision is unenforceable because § 29(a) voids the waiver of "any provision" of the Exchange Act. The language of § 29(a), however, does not reach so far. What the antiwaiver provision of § 29(a) forbids is enforcement of agreements to waive "compliance" with the provisions of the statute. But § 27 itself does not impose any duty with which persons trading in securities must "comply." By its terms, § 29(a) only prohibits waiver of the substantive obligations imposed by the Exchange Act. Because § 27 does not impose any statutory duties, its waiver does not constitute a waiver of "compliance with any provision" of the Exchange Act under § 29(a). We do not read Wilko v. Swan, 346 U.S. 427 (1953), as compelling a different result. In Wilko, the Court held that a predispute agreement could not be enforced to compel arbitration of a claim arising under § 12(2) of the Securities Act, 15 U.S. C. § 77l(2). The basis for the ruling was § 14 of the Securities Act, which, like § 29(a) of the Exchange Act, declares void any stipulation "to waive compliance with any provision" of the statute. At the beginning of its analysis, the Wilko Court stated that the Securities Act's jurisdictional provision was "the kind of `provision' that cannot be waived under § 14 of the Securities Act." 346 U.S., at 435. This statement, however, can only be understood in the context of the Court's ensuing discussion explaining why arbitration was inadequate as a means of enforcing "the provisions of the Securities Act, advantageous to the buyer." Ibid. The conclusion in Wilko was expressly based on the Court's belief that a judicial forum was needed to protect the substantive rights created by the Securities Act: "As the protective provisions of the Securities Act require the exercise of judicial direction to fairly assure their effectiveness, it seems to us that Congress must have intended § 14 . . . to apply to waiver of judicial trial and review." Id., at 437. Wilko must be understood, therefore, as holding that the plaintiff's waiver *229 of the "right to select the judicial forum," id., at 435, was unenforceable only because arbitration was judged inadequate to enforce the statutory rights created by § 12(2). Indeed, any different reading of Wilko would be inconsistent with this Court's decision in Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974). In Scherk, the Court upheld enforcement of a predispute agreement to arbitrate Exchange Act claims by parties to an international contract. The Scherk Court assumed for purposes of its opinion that Wilko applied to the Exchange Act, but it determined that an international contract "involve[d] considerations and policies significantly different from those found controlling in Wilko." 417 U.S., at 515. The Court reasoned that arbitration reduced the uncertainty of international contracts and obviated the danger that a dispute might be submitted to a hostile or unfamiliar forum. At the same time, the Court noted that the advantages of judicial resolution were diminished by the possibility that the opposing party would make "speedy resort to a foreign court." Id., at 518. The decision in Scherk thus turned on the Court's judgment that under the circumstances of that case, arbitration was an adequate substitute for adjudication as a means of enforcing the parties' statutory rights. Scherk supports our understanding that Wilko must be read as barring waiver of a judicial forum only where arbitration is inadequate to protect the substantive rights at issue. At the same time, it confirms that where arbitration does provide an adequate means of enforcing the provisions of the Exchange Act, § 29(a) does not void a predispute waiver of § 27 — Scherk upheld enforcement of just such a waiver. The second argument offered by the McMahons is that the arbitration agreement effects an impermissible waiver of the substantive protections of the Exchange Act. Ordinarily, "[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather *230 than a judicial, forum." Mitsubishi Motors Corp. v. Soler-Chrysler-Plymouth, Inc., 473 U. S., at 628. The McMahons argue, however, that § 29(a) compels a different conclusion. Initially, they contend that predispute agreements are void under § 29(a) because they tend to result from broker overreaching. They reason, as do some commentators, that Wilko is premised on the belief "that arbitration clauses in securities sales agreements generally are not freely negotiated." See, e. g., Sterk, Enforceability of Agreements to Arbitrate: An Examination of the Public Policy Defense, 2 Cardozo L. Rev. 481, 519 (1981). According to this view, Wilko barred enforcement of predispute agreements because of this frequent inequality of bargaining power, reasoning that Congress intended for § 14 generally to ensure that sellers did not "maneuver buyers into a position that might weaken their ability to recover under the Securities Act." 346 U.S., at 432. The McMahons urge that we should interpret § 29(a) in the same fashion. We decline to give Wilko a reading so far at odds with the plain language of § 14, or to adopt such an unlikely interpretation of § 29(a). The concern that § 29(a) is directed against is evident from the statute's plain language: it is a concern with whether an agreement "waive[s] compliance with [a] provision" of the Exchange Act. The voluntariness of the agreement is irrelevant to this inquiry: if a stipulation waives compliance with a statutory duty, it is void under § 29(a), whether voluntary or not. Thus, a customer cannot negotiate a reduction in commissions in exchange for a waiver of compliance with the requirements of the Exchange Act, even if the customer knowingly and voluntarily agreed to the bargain. Section 29(a) is concerned, not with whether brokers "maneuver[ed customers] into" an agreement, but with whether the agreement "weaken[s] their ability to recover under the [Exchange] Act." 346 U.S., at 432. The former is grounds for revoking the contract under ordinary *231 principles of contract law; the latter is grounds for voiding the agreement under § 29(a). The other reason advanced by the McMahons for finding a waiver of their § 10(b) rights is that arbitration does "weaken their ability to recover under the [Exchange] Act." Ibid. That is the heart of the Court's decision in Wilko, and respondents urge that we should follow its reasoning. Wilko listed several grounds why, in the Court's view, the "effectiveness [of the Act's provisions] in application is lessened in arbitration." 346 U.S., at 435. First, the Wilko Court believed that arbitration proceedings were not suited to cases requiring "subjective findings on the purpose and knowledge of an alleged violator." Id., at 435-436. Wilko also was concerned that arbitrators must make legal determinations "without judicial instruction on the law," and that an arbitration award "may be made without explanation of [the arbitrator's] reasons and without a complete record of their proceedings." Id., at 436. Finally, Wilko noted that the "[p]ower to vacate an award is limited," and that "interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation." Id., at 436-437. Wilko concluded that in view of these drawbacks to arbitration, § 12(2) claims "require[d] the exercise of judicial direction to fairly assure their effectiveness." Id., at 437. As Justice Frankfurter noted in his dissent in Wilko, the Court's opinion did not rest on any evidence, either "in the record . . . [or] in the facts of which [it could] take judicial notice," that "the arbitral system . . . would not afford the plaintiff the rights to which he is entitled." Id., at 439. Instead, the reasons given in Wilko reflect a general suspicion of the desirability of arbitration and the competence of arbitral tribunals — most apply with no greater force to the arbitration of securities disputes than to the arbitration of legal disputes generally. It is difficult to reconcile Wilko's mistrust of the arbitral process with this Court's subsequent *232 decisions involving the Arbitration Act. See, e. g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., supra; Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213 (1985); Southland Corp. v. Keating, 465 U.S. 1 (1984); Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983); Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974). Indeed, most of the reasons given in Wilko have been rejected subsequently by the Court as a basis for holding claims to be nonarbitrable. In Mitsubishi, for example, we recognized that arbitral tribunals are readily capable of handling the factual and legal complexities of antitrust claims, notwithstanding the absence of judicial instruction and supervision. See 473 U.S., at 633-634. Likewise, we have concluded that the streamlined procedures of arbitration do not entail any consequential restriction on substantive rights. Id., at 628. Finally, we have indicated that there is no reason to assume at the outset that arbitrators will not follow the law; although judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute. See id., at 636-637, and n. 19 (declining to assume that arbitration will not be resolved in accordance with statutory law, but reserving consideration of "effect of an arbitral tribunal's failure to take cognizance of the statutory cause of action on the claimant's capacity to reinstate suit in federal court"). The suitability of arbitration as a means of enforcing Exchange Act rights is evident from our decision in Scherk. Although the holding in that case was limited to international agreements, the competence of arbitral tribunals to resolve § 10(b) claims is the same in both settings. Courts likewise have routinely enforced agreements to arbitrate § 10(b) claims where both parties are members of a securities exchange or the National Association of Securities Dealers (NASD), suggesting that arbitral tribunals are fully capable of handling such matters. See, e. g., Axelrod & Co. v. Kordich, Victor *233 & Neufeld, 320 F. Supp. 193 (SDNY 1970), aff'd, 451 F.2d 838 (CA2 1971); Brown v. Gilligan, Will & Co., 287 F. Supp. 766 (SDNY 1968). And courts uniformly have concluded that Wilko does not apply to the submission to arbitration of existing disputes, see, e. g., Gardner v. Shearson, Hammill & Co., 433 F.2d 367 (CA5 1970); Moran v. Paine, Webber, Jackson & Curtis, 389 F.2d 242 (CA3 1968), even though the inherent suitability of arbitration as a means of resolving § 10(b) claims remains unchanged. Cf. Mitsubishi, 473 U. S., at 633. Thus, the mistrust of arbitration that formed the basis for the Wilko opinion in 1953 is difficult to square with the assessment of arbitration that has prevailed since that time. This is especially so in light of the intervening changes in the regulatory structure of the securities laws. Even if Wilko's assumptions regarding arbitration were valid at the time Wilko was decided, most certainly they do not hold true today for arbitration procedures subject to the SEC's oversight authority. In 1953, when Wilko was decided, the Commission had only limited authority over the rules governing self-regulatory organizations (SROs) — the national securities exchanges and registered securities associations — and this authority appears not to have included any authority at all over their arbitration rules. See Brief for Securities and Exchange Commission as Amicus Curiae 14-15. Since the 1975 amendments to § 19 of the Exchange Act, however, the Commission has had expansive power to ensure the adequacy of the arbitration procedures employed by the SROs. No proposed rule change may take effect unless the SEC finds that the proposed rule is consistent with the requirements of the Exchange Act, 15 U.S. C. § 78s(b)(2); and the Commission has the power, on its own initiative, to "abrogate, add to, and delete from" any SRO rule if it finds such changes necessary or appropriate to further the objectives of the Act, 15 U.S. C. § 78s(c). In short, the Commission has broad authority to oversee and to *234 regulate the rules adopted by the SROs relating to customer disputes, including the power to mandate the adoption of any rules it deems necessary to ensure that arbitration procedures adequately protect statutory rights.[3] In the exercise of its regulatory authority, the SEC has specifically approved the arbitration procedures of the New York Stock Exchange, the American Stock Exchange, and the NASD, the organizations mentioned in the arbitration agreement at issue in this case. We conclude that where, as in this case, the prescribed procedures are subject to the Commission's § 19 authority, an arbitration agreement does not effect a waiver of the protections of the Act. While stare decisis concerns may counsel against upsetting Wilko's contrary conclusion under the Securities Act, we refuse to extend Wilko's reasoning to the Exchange Act in light of these intervening regulatory developments. The McMahons' agreement to submit to arbitration therefore is not tantamount to an impermissible waiver of the McMahons' rights under § 10(b), and the agreement is not void on that basis under § 29(a). The final argument offered by the McMahons is that even if § 29(a) as enacted does not void predispute arbitration agreements, Congress subsequently has indicated that it desires § 29(a) to be so interpreted. According to the McMahons, Congress expressed this intent when it failed to make more *235 extensive changes to § 28(b), 15 U.S. C. § 78bb(b), in the 1975 amendments to the Exchange Act. Before its amendment, § 28(b) provided in relevant part: "Nothing in this chapter shall be construed to modify existing law (1) with regard to the binding effect on any member of any exchange of any action taken by the authorities of such exchange to settle disputes between its members, or (2) with regard to the binding effect of such action on any person who has agreed to be bound thereby, or (3) with regard to the binding effect on any such member of any disciplinary action taken by the authorities of the exchange." 48 Stat. 903. The chief aim of this provision was to preserve the selfregulatory role of the securities exchanges, by giving the exchanges a means of enforcing their rules against their members. See, e. g., Tullis v. Kohlmeyer & Co., 551 F.2d 632, 638 (CA5 1977) ("[P]reserv[ing] for the stock exchanges a major self-regulatory role . . . is the basis of § 28(b)"); Axelrod & Co. v. Kordich, Victor & Neufeld, 451 F. 2d, at 840-841. In 1975, Congress made extensive revisions to the Exchange Act intended to "clarify the scope of the selfregulatory responsibilities of national securities exchanges and registered securities associations . . . and the manner in which they are to exercise those responsibilities." S. Rep. No. 94-75, p. 22 (1975). In making these changes, the Senate Report observed: "The self-regulatory organizations must exercise governmental-type powers if they are to carry out their responsibilities under the Exchange Act. When a member violates the Act or a self-regulatory organization's rules, the organization must be in a position to impose appropriate penalties or to revoke relevant privileges." Id., at 24. The amendments to § 28 reflect this objective. Paragraph (3) of § 28(b) was deleted and replaced with new § 28(c), which provided that the validity of any disciplinary action taken by an SRO would not be affected by a subsequent decision by the SEC to stay or modify the sanction. See 15 U.S. C. *236 § 78bb(c). At the same time, § 28(b) was expanded to ensure that all SROs as well as the Municipal Securities Rule-making Board had the power to enforce their substantive rules against their members. Section 28(b), as amended, provides: "Nothing in this chapter shall be construed to modify existing law with regard to the binding effect (1) on any member of or participant in any self-regulatory organization of any action taken by the authorities of such organization to settle disputes between its members or participants, (2) on any municipal securities dealer or municipal securities broker of any action taken pursuant to a procedure established by the Municipal Securities Rulemaking Board to settle disputes between municipal securities dealers and municipal securities brokers, or (3) of any action described in paragraph (1) or (2) on any person who has agreed to be bound thereby." Thus, the amended version of § 28(b), like the original, mentions neither customers nor arbitration. It is directed at an entirely different problem: enhancing the self-regulatory function of the SROs under the Exchange Act. The McMahons nonetheless argue that we should find it significant that Congress did not take this opportunity to address the general question of the arbitrability of Exchange Act claims. Their argument is based entirely on a sentence from the Conference Report, which they contend amounts to a ratification of Wilko's extension to Exchange Act claims. The Conference Report states: "The Senate bill amended section 28 of the Securities Exchange Act of 1934 with respect to arbitration proceedings between self-regulatory organizations and their participants, members, or persons dealing with members or participants. The House amendment contained no comparable provision. The House receded to the Senate. It was the clear understanding of the conferees that *237 this amendment did not change existing law, as articulated in Wilko v. Swan, 346 U.S. 427 (1953), concerning the effect of arbitration proceedings provisions in agreements entered into by persons dealing with members and participants of self-regulatory organizations." H. R. Conf. Rep. No. 94-229, p. 111 (1975). The McMahons contend that the conferees would not have acknowledged Wilko in a revision of the Exchange Act unless they were aware of lower court decisions extending Wilko to § 10(b) claims and intended to approve them. We find this argument fraught with difficulties. We cannot see how Congress could extend Wilko to the Exchange Act without enacting into law any provision remotely addressing that subject. See Train v. City of New York, 420 U.S. 35, 45 (1975). And even if it could, there is little reason to interpret the Report as the McMahons suggest. At the outset, the committee may well have mentioned Wilko for a reason entirely different from the one postulated by the McMahons — lower courts had applied § 28(b) to the Securities Act, see, e. g., Axelrod & Co. v. Kordich, Victor & Neufeld, supra, at 843, and the committee may simply have wished to make clear that the amendment to § 28(b) was not otherwise intended to affect Wilko's construction of the Securities Act. Moreover, even if the committee were referring to the arbitrability of § 10(b) claims, the quoted sentence does not disclose what committee members thought "existing law" provided. The conference members might have had in mind the two Court of Appeals decisions extending Wilko to the Exchange Act, as the McMahons contend. See Greater Continental Corp. v. Schechter, 422 F.2d 1100 (CA2 1970); Moran v. Paine, Webber, Jackson & Curtis, 389 F.2d 242 (CA3 1968). It is equally likely, however, that the committee had in mind this Court's decision the year before expressing doubts as to whether Wilko should be extended to § 10 (b) claims. See Scherk v. Alberto-Culver Co., 417 U. S., at 513 ("[A] colorable argument could be made that even the *238 semantic reasoning of the Wilko opinion does not control [a case based on § 10(b)]"). Finally, even assuming the conferees had an understanding of existing law that all agreed upon, they specifically disclaimed any intent to change it. Hence, the Wilko issue was left to the courts: it was unaffected by the amendment to § 28(b). This statement of congressional inaction simply does not support the proposition that the 1975 Congress intended to engraft onto unamended § 29(a) a meaning different from that of the enacting Congress. We conclude, therefore, that Congress did not intend for § 29(a) to bar enforcement of all predispute arbitration agreements. In this case, where the SEC has sufficient statutory authority to ensure that arbitration is adequate to vindicate Exchange Act rights, enforcement does not effect a waiver of "compliance with any provision" of the Exchange Act under § 29(a). Accordingly, we hold the McMahons' agreements to arbitrate Exchange Act claims "enforce[able] . . . in accord with the explicit provisions of the Arbitration Act." Scherk v. Alberto-Culver Co., supra, at 520. IV Unlike the Exchange Act, there is nothing in the text of the RICO statute that even arguably evinces congressional intent to exclude civil RICO claims from the dictates of the Arbitration Act. This silence in the text is matched by silence in the statute's legislative history. The private treble-damages provision codified as 18 U.S. C. § 1964(c) was added to the House version of the bill after the bill had been passed by the Senate, and it received only abbreviated discussion in either House. See Sedima, S. P. R. L. v. Imrex Co., 473 U.S. 479, 486-488 (1985). There is no hint in these legislative debates that Congress intended for RICO treble-damages claims to be excluded from the ambit of the Arbitration Act. See Genesco, Inc. v. T. Kakiuchi & Co., Ltd., *239 815 F.2d 840-851 (CA2 1987); Mayaja, Inc. v. Bodkin, 803 F.2d 157, 164 (CA5 1986). Because RICO's text and legislative history fail to reveal any intent to override the provisions of the Arbitration Act, the McMahons must argue that there is an irreconcilable conflict between arbitration and RICO's underlying purposes. Our decision in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985), however, already has addressed many of the grounds given by the McMahons to support this claim. In Mitsubishi, we held that nothing in the nature of the federal antitrust laws prohibits parties from agreeing to arbitrate antitrust claims arising out of international commercial transactions. Although the holding in Mitsubishi was limited to the international context, see id., at 629, much of its reasoning is equally applicable here. Thus, for example, the McMahons have argued that RICO claims are too complex to be subject to arbitration. We determined in Mitsubishi, however, that "potential complexity should not suffice to ward off arbitration." Id., at 633. Antitrust matters are every bit as complex as RICO claims, but we found that the "adaptability and access to expertise" characteristic of arbitration rebutted the view "that an arbitral tribunal could not properly handle an antitrust matter." Id., at 633-634. Likewise, the McMahons contend that the "overlap" between RICO's civil and criminal provisions renders § 1964(c) claims nonarbitrable. See Page v. Moseley, Hallgarten, Estabrook & Weeden, Inc., 806 F.2d 291, 299, n. 13 (CA1 1986) ("[T]he makings of a `pattern of racketeering' are not yet clear, but the fact remains that a `pattern' for civil purposes is a `pattern' for criminal purposes"). Yet § 1964(c) is no different in this respect from the federal antitrust laws. In Sedima, S. P. R. L. v. Imrex Co., supra, we rejected the view that § 1964(c) "provide[s] civil remedies for offenses criminal in nature." See 473 U.S., at 492. In doing so, this Court observed: "[T]he fact that conduct can result in *240 both criminal liability and treble damages does not mean that there is not a bona fide civil action. The familiar provisions for both criminal liability and treble damages under the antitrust laws indicate as much." Ibid. Mitsubishi recognized that treble-damages suits for claims arising under § 1 of the Sherman Act may be subject to arbitration, even though such conduct may also give rise to claims of criminal liability. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., supra. We similarly find that the criminal provisions of RICO do not preclude arbitration of bona fide civil actions brought under § 1964(c). The McMahons' final argument is that the public interest in the enforcement of RICO precludes its submission to arbitration. Mitsubishi again is relevant to the question. In that case we thoroughly examined the legislative intent behind § 4 of the Clayton Act in assaying whether the importance of the private treble-damages remedy in enforcing the antitrust laws precluded arbitration of § 4 claims. We found that "[n]otwithstanding its important incidental policing function, the treble-damages cause of action . . . seeks primarily to enable an injured competitor to gain compensation for that injury." 473 U.S., at 635. Emphasizing the priority of the compensatory function of § 4 over its deterrent function, Mitsubishi concluded that "so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function." Id., at 637. The legislative history of § 1964(c) reveals the same emphasis on the remedial role of the treble-damages provision. In introducing the treble-damages provision to the House Judiciary Committee, Representative Steiger stressed that "those who have been wronged by organized crime should at least be given access to a legal remedy." Hearings on S. 30 and Related Proposals before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 2d Sess., 520 (1970). The policing function of § 1964(c), although important, *241 was a secondary concern. See ibid. ("In addition, the availability of such a remedy would enhance the effectiveness of title IX's prohibitions"). During the congressional debates on § 1964(c), Representative Steiger again emphasized the remedial purpose of the provision: "It is the intent of this body, I am certain, to see that innocent parties who are the victims of organized crime have a right to obtain proper redress. . . . It represents the one opportunity for those of us who have been seriously affected by organized crime activity to recover." 116 Cong. Rec. 35346-35347 (1970). This focus on the remedial function of § 1964(c) is reinforced by the recurrent references in the legislative debates to § 4 of the Clayton Act as the model for the RICO treble-damages provision. See, e. g., 116 Cong. Rec. 35346 (statement of Rep. Poff) (RICO provision "has its counterpart almost in haec verba in the antitrust statutes"); id., at 25190 (statement of Sen. McClellan) (proposed amendment would "authorize private civil damage suits based upon the concept of section 4 of the Clayton Antitrust Act"). See generally Sedima, S. P. R. L. v. Imrex Co., 473 U. S., at 489 ("The clearest current in [RICO's] history is the reliance on the Clayton Act model"). Not only does Mitsubishi support the arbitrability of RICO claims, but there is even more reason to suppose that arbitration will adequately serve the purposes of RICO than that it will adequately protect private enforcement of the antitrust laws. Antitrust violations generally have a widespread impact on national markets as a whole, and the antitrust treble-damages provision gives private parties an incentive to bring civil suits that serve to advance the national interest in a competitive economy. See Lindsay, "Public" Rights and Private Forums: Predispute Arbitration Agreements and Securities Litigation, 20 Loyola (LA) L. Rev. 643, 691-692 (1987). RICO's drafters likewise sought to provide vigorous incentives for plaintiffs to pursue RICO claims that would advance society's fight against organized crime. See Sedima, *242A S. P. R. L. v. Imrex Co., supra, at 498. But in fact RICO actions are seldom asserted "against the archetypal, intimidating mobster." Id., at 499; see also id., at 506 (MARSHALL, J., dissenting) ("[O]nly 9% of all civil RICO cases have involved allegations of criminal activity normally associated with professional criminals"). The special incentives necessary to encourage civil enforcement actions against organized crime do not support nonarbitrability of run-of-the-mill civil RICO claims brought against legitimate enterprises. The private attorney general role for the typical RICO plaintiff is simply less plausible than it is for the typical antitrust plaintiff, and does not support a finding that there is an irreconcilable conflict between arbitration and enforcement of the RICO statute. In sum, we find no basis for concluding that Congress intended to prevent enforcement of agreements to arbitrate RICO claims. The McMahons may effectively vindicate their RICO claim in an arbitral forum, and therefore there is no inherent conflict between arbitration and the purposes underlying § 1964(c). Moreover, nothing in RICO's text or legislative history otherwise demonstrates congressional intent to make an exception to the Arbitration Act for RICO claims. Accordingly, the McMahons, "having made the bargain to arbitrate," will be held to their bargain. Their RICO claim is arbitrable under the terms of the Arbitration Act. V Accordingly, the judgment of the Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. *242B JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and dissenting in part. I concur in the Court's decision to enforce the arbitration agreement with respect to respondents' RICO claims and thus *243 join Parts I, II, and IV of the Court's opinion. I disagree, however, with the Court's conclusion that respondents' § 10(b) claims also are subject to arbitration. Both the Securities Act of 1933 and the Securities Exchange Act of 1934 were enacted to protect investors from predatory behavior of securities industry personnel. In Wilko v. Swan, 346 U.S. 427 (1953), the Court recognized this basic purpose when it declined to enforce a predispute agreement to compel arbitration of claims under the Securities Act. Following that decision, lower courts extended Wilko's reasoning to claims brought under § 10(b) of the Exchange Act, and Congress approved of this extension. In today's decision, however, the Court effectively overrules Wilko by accepting the Securities and Exchange Commission's newly adopted position that arbitration procedures in the securities industry and the Commission's oversight of the self-regulatory organizations (SROs) have improved greatly since Wilko was decided. The Court thus approves the abandonment of the judiciary's role in the resolution of claims under the Exchange Act and leaves such claims to the arbitral forum of the securities industry at a time when the industry's abuses towards investors are more apparent than ever. I At the outset, it is useful to review the manner by which the issue decided today has been kept alive inappropriately by this Court. As the majority explains, Wilko was limited to the holding "that a predispute agreement could not be enforced to compel arbitration of a claim arising under § 12(2) of the Securities Act." Ante, at 228. Relying, however, on the reasoning of Wilko and the similarity between the pertinent provisions of the Securities Act and those of the Exchange Act, lower courts extended the Wilko holding to claims under the Exchange Act and refused to enforce predispute agreements to arbitrate them as well. See, e. g., Greater Continental Corp. v. Schechter, 422 F.2d 1100, 1103 *244 (CA2 1970) (dicta); Moran v. Paine, Webber, Jackson & Curtis, 389 F.2d 242, 245-246 (CA3 1968). In Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974), the Court addressed the question whether a particular predispute agreement to arbitrate § 10(b) claims should be enforced. Because that litigation involved international business concerns and because the case was decided on such grounds, the Court did not reach the issue of the extension of Wilko to § 10(b) claims. The Court, nonetheless, included in its opinion dicta noting that "a colorable argument could be made that even the semantic reasoning of the Wilko opinion does not control the case before us." 417 U.S., at 513. There is no need to discuss in any detail that "colorable argument," which rests on alleged distinctions between pertinent provisions of the Securities Act and those of the Exchange Act, because the Court does not rely upon it today.[1] In fact, *245 the "argument" is important not so much for its substance[2] as it is for its litigation role. It simply constituted a way of keeping the issue of the arbitrability of § 10(b) claims alive for those opposed to the result in Wilko. *246 If, however, there could have been any doubts about the extension of Wilko's holding to § 10(b) claims, they were undermined by Congress in its 1975 amendments to the Exchange Act. The Court questions the significance of these amendments, which, as it notes, concerned, among other things, provisions dealing with dispute resolution and disciplinary action by an SRO towards its own members. See ante, at 235-236. These amendments, however, are regarded as "the `most substantial and significant revision of this country's Federal securities laws since the passage of the Securities Exchange Act in 1934.' " Herman & MacLean v. Huddleston, 459 U.S. 375, 384-385 (1983), quoting Securities Acts Amendments of 1975: Hearings on S. 249 before the Subcommittee on Securities of the Senate Committee on Banking, Housing and Urban Affairs, 94th Cong., 1st Sess., 1 (1975) (Hearings).[3] More importantly, in enacting these amendments, Congress specifically was considering exceptions to § 29(a), 15 U.S. C. § 78cc, the nonwaiver provision of the Exchange Act, a provision primarily designed with the protection of investors in mind.[4] The statement from the *247 legislative history, cited by the Court, ante, at 236-237, on its face indicates that Congress did not want the amendments to overrule Wilko. Moreover, the fact that this statement was made in an amendment to the Exchange Act suggests that Congress was aware of the extension of Wilko to § 10(b) claims. Although the remark does not necessarily signify Congress' endorsement of this extension, in the absence of any prior congressional indication to the contrary, it implies that Congress was not concerned with arresting this trend.[5] Such inaction during a wholesale revision of the securities laws, a revision designed to further investor protection, would argue in favor of Congress' approval of Wilko and its extension to § 10(b) claims. See Wolfe v. E. F. Hutton & Co., 800 F.2d 1032, 1037-1038 (CA11 1986) (en banc), cert. *248 pending, No. 86-1218; cf. Herman & MacLean v. Huddleston, 459 U. S., at 384-386. One would have thought that, after these amendments, the matter of Wilko's extension to Exchange Act claims at last would be uncontroversial. In the years following the Scherk decision, all the Courts of Appeals treating the issue so interpreted Wilko.[6] In Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213 (1985), this Court declined to address the extension issue, which was not before it, but recognized the development in the case law. Id., at 215, n. 1. Yet, like a ghost reluctant to accept its eternal rest, the "colorable argument" surfaced again, this time in a concurring opinion. See id., at 224 (WHITE, J.). That concurring opinion repeated the "argument," but with no more development than the Scherk Court had given it.[7] Where there had been uniformity in *249 the lower courts before Byrd, there now appeared disharmony on the issue of the arbitrability of § 10(b) claims.[8] And, as the Court observes, see ante, at 225, we granted certiorari in this case to resolve this conflict among the Courts of Appeals. II There are essentially two problems with the Court's conclusion that predispute agreements to arbitrate § 10(b) claims may be enforced. First, the Court gives Wilko an overly narrow reading so that it can fit into the syllogism offered by the Commission and accepted by the Court, namely, (1) Wilko *250 was really a case concerning whether arbitration was adequate for the enforcement of the substantive provisions of the securities laws; (2) all of the Wilko Court's doubts as to arbitration's adequacy are outdated; (3) thus Wilko is no longer good law. See ante, at 228-229, 232; Brief for Securities and Exchange Commission as Amicus Curiae 10. Second, the Court accepts uncritically petitioners' and the Commission's argument that the problems with arbitration, highlighted by the Wilko Court, either no longer exist or are not now viewed as problems by the Court. This acceptance primarily is based upon the Court's belief in the Commission's representations that its oversight of the SROs ensures the adequacy of arbitration. A I agree with the Court's observation that, in order to establish an exception to the Arbitration Act, 9 U.S. C. § 1 et seq., for a class of statutory claims, there must be "an intention discernible from the text, history, or purposes of the statute." Ante, at 227. Where the Court first goes wrong, however, is in its failure to acknowledge that the Exchange Act, like the Securities Act, constitutes such an exception. This failure is made possible only by the unduly narrow reading of Wilko that ignores the Court's determination there that the Securities Act was an exception to the Arbitration Act. The Court's reading is particularly starting because it is in direct contradiction to the interpretation of Wilko given by the Court in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985), a decision on which the Court relies for its strong statement of a federal policy in favor of arbitration. But we observed in Mitsubishi: "Just as it is the congressional policy manifested in the Federal Arbitration Act that requires courts liberally to construe the scope of arbitration agreements covered by that Act, it is the congressional intention expressed in some other statute on which the courts must rely to identify any category of claims as to which agreements to arbitrate *251 will be held unenforceable. See Wilko v. Swan, 346 U. S., at 434-435 . . . . We must assume that if Congress intended the substantive protection afforded by a given statue to include protection against waiver of the right to a judicial forum, that intention will be deducible from text or legislative history. See Wilko v. Swan, supra." Id., at 627-628. Such language clearly suggests that, in Mitsubishi, we viewed Wilko as holding that the text and legislative history of the Securities Act — not general problems with arbitration — established that the Securities Act constituted an exception to the Arbitration Act. In a surprising display of logic, the Court uses Mitsubishi as support for the virtues of arbitration and thus as a means for undermining Wilko's holding, but fails to take into account the most pertinent language in Mitsubishi. It is not necessary to rely just on the statement in Mitsubishi to realize that in Wilko the Court had before it the issue of congressional intent to exempt statutory claims from the reach of the Arbitration Act. One has only to reread the Wilko opinion without the constricted vision of the Court. The Court's misreading is possible because, while extolling the policies of the Arbitration Act, it is insensitive to, and disregards the policies of, the Securities Act. This Act was passed in 1933, eight years after the Arbitration Act of 1925, see 43 Stat. 883, and in response to the market crash of 1929. The Act was designed to remedy abuses in the securities industry, particularly fraud and misrepresentation by securities-industry personnel, that had contributed to that disastrous event. See Malcolm & Segall 730-731. It had as its main goal investor protection, which took the form of an effort to place investors on an equal footing with those in the securities industry by promoting full disclosure of information on investments. See L. Loss, Fundamentals of Securities Regulation 36 (1983). *252 The Court in Wilko recognized the policy of investor protection in the Securities Act. It was this recognition that animated its discussion of whether § 14, 48 Stat. 84, 15 U.S. C. § 77n, the nonwaiver provision of the Securities Act, applied to § 22(a), 48 Stat. 86, as amended, 15 U.S. C. § 77v(a), the provision that gave an investor a judicial forum for the resolution of securities disputes. In the Court's words, the Securities Act, "[d]esigned to protect investors, . . . requires issuers, underwriters, and dealers to make full and fair disclosure of the character of securities sold in interstate and foreign commerce and to prevent fraud in their sale." 346 U.S., at 431. The Court then noted that, to promote this policy in the Act, Congress had designed an elaborate statutory structure: it gave investors a "special right" of suit under § 12(2); they could bring the suit in federal or state court pursuant to § 22(a); and, if brought in federal court, there were numerous procedural advantages, such as nationwide service of process. Ibid. In reasoning that a predispute agreement to arbitrate § 12(2) claims would constitute a "waiver" of a provision of the Act, i. e., the right to the judicial forum embodied in § 22(a), the Court specifically referred to the policy of investor protection underlying the Act: "While a buyer and seller of securities, under some circumstances, may deal at arm's length on equal terms, it is clear that the Securities Act was drafted with an eye to the disadvantages under which buyers labor. Issuers of and dealers in securities have better opportunities to investigate and appraise the prospective earnings and business plans affecting securities than buyers. It is therefore reasonable for Congress to put buyers of securities covered by that Act on a different basis from other purchasers. "When the security buyer, prior to any violation of the Securities Act, waives his right to sue in courts, he gives up more than would a participant in other business transactions. The security buyer has a wider choice of courts *253 and venue. He thus surrenders one of the advantages the Act gives him and surrenders it at a time when he is less able to judge the weight of the handicap the Securities Act places upon his adversary." Id., at 435. In the Court's view, the express language, legislative history, and purposes of the Securities Act all made predispute agreements to arbitrate § 12(2) claims unenforceable despite the presence of the Arbitration Act.[9] *254 Accordingly, the Court seriously errs when it states that the result in Wilko turned only on the perceived inadequacy of arbitration for the enforcement of § 12(2) claims. It is true that the Wilko Court discussed the inadequacies of this process, 346 U.S., at 435-437, and that this discussion constituted one ground for the Court's decision. The discussion, however, occurred after the Court had concluded that the language, legislative history, and purposes of the Securities Act mandated an exception to the Arbitration Act for these securities claims. The Court's decision in Scherk is consistent with this reading of Wilko, despite the Court's suggestion to the contrary. See ante, at 229. Indeed, in reading Scherk as a case turning on the adequacy of arbitration, the Court completely ignores the central thrust of that decision. As the Court itself notes, ante, at 229, in Scherk the Court assumed that Wilko's prohibition on enforcing predispute arbitration agreements ordinarily would extend to § 10(b) claims, such as those at issue in Scherk. The Scherk Court relied on a crucial difference between the international business situation presented to it and that before the Court in Wilko, where the laws of the United States, particularly the securities laws, clearly governed the dispute. Scherk, in contrast, presented *255 a multinational conflict-of-laws puzzle.[10] In such a situation, the Court observed, a contract provision setting forth a particular forum and the law to apply for possible disputes was "an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction." 417 U.S., at 516. Indeed, the Court thought that failure to enforce such an agreement to arbitrate in this international context would encourage companies to file suits in countries where the law was most favorable to them, which "would surely damage the fabric of international commerce and trade, and imperil the willingness and ability of businessmen to enter into international commercial agreements." Id., at 517. Accordingly, the Scherk decision turned on the special nature of agreements to arbitrate in the international commercial context.[11] *256 In light of a proper reading of Wilko, the pertinent question then becomes whether the language, legislative history, and purposes of the Exchange Act call for an exception to the Arbitration Act for § 10(b) claims. The Exchange Act waiver provision is virtually identical to that of the Securities Act.[12] More importantly, the same concern with investor protection that motivated the Securities Act is evident in the Exchange Act, although the latter, in contrast to the former, is aimed at trading in the secondary securities market. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 195 (1976). We have recognized that both Acts were designed with this common purpose in mind. See id., at 206 ("The 1933 and 1934 Acts constitute interrelated components of the federal regulatory scheme governing transactions in securities"). Indeed, the application of both Acts to the same conduct, see Brown, Shell, & Tyson 16, suggests that they have the same basic goal. And we have approved a cumulative construction of remedies under the securities Acts to promote the maximum possible protection of investors. See Herman & MacLean v. Huddleston, 459 U. S., at 384-385.[13] In sum, the same reasons that led the Court to find an exception to the Arbitration Act for § 12(2) claims exist for *257 § 10(b) claims as well. It is clear that Wilko, when properly read, governs the instant case and mandates that a predispute arbitration agreement should not be enforced as to § 10(b) claims. B Even if I were to accept the Court's narrow reading of Wilko as a case dealing only with the inadequacies of arbitration in 1953,[14] I do not think that this case should be resolved differently today so long as the policy of investor protection is given proper consideration in the analysis. Despite improvements in the process of arbitration and changes in the judicial attitude towards it, several aspects of arbitration that were seen by the Wilko court to be inimical to the policy of investor protection still remain. Moreover, I have serious reservations about the Commission's contention that its oversight of the SROs' arbitration procedures will ensure that the process is adequate to protect an investor's rights under the securities Acts. As the Court observes, ante, at 231, in Wilko the Court was disturbed by several characteristics of arbitration that made such a process inadequate to safeguard the special position in which the Securities Act had placed the investor. The Court concluded that judicial review of the arbitrators' application of the securities laws would be difficult because arbitrators were required neither to give the reasons for their decisions nor to make a complete record of their proceedings. See 346 U.S., at 436. The Court also observed that the grounds for vacating an arbitration award were limited. The Court noted that, under the Arbitration Act, there were only *258 four grounds for vacation of an award: fraud in procuring the award, partiality on the part of arbitrators, gross misconduct by arbitrators, and the failure of arbitrators to render a final decision. Id., at 436, n. 22, quoting 9 U.S. C. § 10 (1952 ed., Supp. V). The arbitrators' interpretation of the law would be subject to judicial review only under the "manifest disregard" standard. 346 U.S., at 436. The Court today appears to argue that the Wilko Court's assessment of arbitration's inadequacy is outdated, first, because arbitration has improved since 1953, and second, because the Court no longer considers the criticisms of arbitration made in Wilko to be valid reasons why statutory claims, such as those under § 10(b), should not be sent to arbitration.[15] It is true that arbitration procedures in the securities industry have improved since Wilko's day. Of particular importance has been the development of a code of arbitration by the Commission with the assistance of representatives of the securities industry and the public. See Uniform Code of Arbitration, Exh. C, Fifth Report of the Securities Industry Conference on Arbitration 29 (Apr. 1986) (Fifth SICA Report).[16] *259 Even those who favor the arbitration of securities claims do not contend, however, that arbitration has changed so significantly as to eliminate the essential characteristics noted by the Wilko Court. Indeed, proponents of arbitration would not see these characteristics as "problems," because, in their view, the characteristics permit the unique "streamlined" nature of the arbitral process. As at the time of Wilko, preparation of a record of arbitration proceedings is not invariably required today.[17] Moreover, arbitrators are not bound by precedent and are actually discouraged by their associations from giving reasons for a decision. See R. Coulson, Business Arbitration — What You Need to Know 29 (3d ed. 1986) ("Written opinions can be dangerous because they identify targets for the losing party to attack"); see also Duke Note 553; Fletcher 456-457. Judicial review is still substantially limited to the four grounds listed in § 10 of the Arbitration Act and to the concept of "manifest disregard" of the law. See, e. g., French v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 784 F.2d 902, 906 (CA9 1986), citing Swift Industries, Inc. v. Botany Industries, Inc., 466 F.2d 1125, 1131 (CA3 1972) (an arbitrator's decision must be upheld unless it is " `completely irrational' ").[18] *260 The Court's "mistrust" of arbitration may have given way recently to an acceptance of this process, not only because of the improvements in arbitration, but also because of the Court's present assumption that the distinctive features of arbitration, its more quick and economical resolution of claims, do not render it inherently inadequate for the resolution of statutory claims. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S., at 633. Such reasoning, however, should prevail only in the absence of the congressional policy that places the statutory claimant in a special position with respect to possible violators of his statutory rights. As even the most ardent supporter of arbitration would recognize, the arbitral process at best places the investor on an equal footing with the securities-industry personnel against whom the claims are brought. Furthermore, there remains the danger that, at worst, compelling an investor to arbitrate securities claims puts him in a forum controlled by the securities industry. This result directly contradicts the goal of both securities Acts to free the investor from the control of the market professional. The Uniform Code provides some safeguards[19] but despite them, and indeed because of the background of the arbitrators, the investor has the impression, frequently justified, that his claims are being judged by a forum composed of individuals sympathetic to the securities industry and not drawn *261 from the public. It is generally recognized that the codes do not define who falls into the category "not from the securities industry." Brown, Shell, & Tyson 35, and n. 94; Katsoris 309-312. Accordingly, it is often possible for the "public" arbitrators to be attorneys or consultants whose clients have been exchange members or SROs. See Panel of Arbitrators 1987-1988, CCH American Stock Exchange Guide 158-160 (1987) (71 out of 116 "public" arbitrators are lawyers). The uniform opposition of investors to compelled arbitration and the overwhelming support of the securities industry for the process suggest that there must be some truth to the investors' belief that the securities industry has an advantage in a forum under its own control. See N. Y. Times, Mar. 29, 1987, section 3, p. 8, col. 1 (statement of Sheldon H. Elsen, Chairman, American Bar Association Task Force on Securities Arbitration: "The houses basically like the present system because they own the stacked deck").[20] More surprising than the Court's acceptance of the present adequacy of arbitration for the resolution of securities claims is its confidence in the Commission's oversight of the arbitration procedures of the SROs to ensure this adequacy. Such confidence amounts to a wholesale acceptance of the Commission's present position that this oversight undermines the force of Wilko and that arbitration therefore should be compelled because the Commission has supervisory authority *262 over the SROs' arbitration procedures. The Court, however, fails to acknowledge that, until it filed an amicus brief in this case, the Commission consistently took the position that § 10(b) claims, like those under § 12(2), should not be sent to arbitration, that predispute arbitration agreements, where the investor was not advised of his right to a judicial forum, were misleading, and that the very regulatory oversight upon which the Commission now relies could not alone make securities-industry arbitration adequate.[21] It is most questionable, then, whether the Commission's recently adopted position is entitled to the deference that the Court accords it. The Court is swayed by the power given to the Commission by the 1975 amendments to the Exchange Act in order to permit the Commission to oversee the rules and procedures of the SROs, including those dealing with arbitration. See ante, at 233-234. Subsequent to the passage of these amendments, however, the Commission has taken the consistent position that predispute arbitration agreements, *263 which did not disclose to an investor that he has a right to a judicial forum, were misleading and possibly actionable under the securities laws.[22] The Commission remained dissatisfied *264 with the continued use of these arbitration agreements and eventually it proposed a rule to prohibit them, explaining that such a prohibition was not inconsistent with its support of arbitration for resolving securities disputes, particularly existing ones. See Disclosure Regarding Recourse to the Federal Courts Notwithstanding Arbitration Clauses in Broker-Dealer Customer Agreements, SEC Exchange Act Rel. No. 19813 (May 26, 1983), [1982-1983 Transfer Binder] CCH Fed. Sec. L. Rep. ¶ 83,356, p. 85,967. While emphasizing the Court's Wilko decision as a basis for its proposed rule, the Commission noted that its proposal also was in line with its own understanding of the problems with such agreements and with the "[c]ongressional determination that public investors should also have available the special protection of the federal courts for resolution of disputes arising under the federal securities laws." Id., at p. 85,968. Although the rule met with some opposition,[23] it was adopted and remains in force today.[24] *265 Moreover, the Commission's own description of its enforcement capabilities contradicts its position that its general overview of SRO rules and procedures can make arbitration adequate for resolving securities claims. The Commission does not pretend that its oversight consists of anything other than a general review of SRO rules and the ability to require that an SRO adopt or delete a particular rule. It does not contend that its "sweeping authority," Brief 16, includes a review of specific arbitration proceedings. It thus neither polices nor monitors the results of these arbitrations for possible misapplications of securities laws or for indications of how investors fare in these proceedings. Given, in fact, the present constraints on the Commission's resources in this time of market expansion, see General Accounting Office, Report to the Chairman, Subcommittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Energy and Commerce: Securities Regulation — Securities and Exchange Commission Oversight of Self-Regulation 60 (1986) (Report), it is doubtful whether the Commission could undertake to conduct any such review.[25] Finally, the Court's complacent acceptance of the Commission's oversight is alarming when almost every day brings another example of illegality on Wall Street. See, e. g., N. Y. Times, Jan. 2, 1987, p. B6, col. 3. Many of the abuses recently *266 brought to light, it is true, do not deal with the question of the adequacy of SRO arbitration. They, however, do suggest that the industry's self-regulation, of which the SRO arbitration is a part, is not functioning acceptably. See Report 63. Moreover, these abuses have highlighted the difficulty experienced by the Commission, at a time of growth in the securities market and a decrease in the Commission's staff, see id., at 60-61, to carry out its oversight task. Such inadequacies on the part of the Commission strike at the very heart of the reasoning of the Court, which is content to accept the soothing assurances of the Commission without examining the reality behind them. Indeed, while the amici cite the number of arbitrations of securities disputes as a sign of the success of this process in the industry, see Brief for Securities Industry Association, Inc., et al. as Amici Curiae 10-11, these statistics have a more portentous meaning. In this era of deregulation, the growth in complaints about the securities industry, many of which find their way to arbitration, parallels the increase in securities violations and suggests a market not adequately controlled by the SROs. See General Accounting Office, Report to the Chairman, Sub-committee on Oversight and Investigation of the House Committee on Energy and Commerce: Statistics on SEC's Enforcement Program 3-4 (1985). In such a time, one would expect more, not less, judicial involvement in resolution of securities disputes. III There is, fortunately, a remedy for investors. In part as a result of the Commission's position in this case, Congress has begun to look into the adequacy of the self-regulatory arbitration and the Commission's oversight of the SROs. In a letter dated February 11, 1987, Representative Dingell, Chairman of the House Subcommittee on Oversight and Investigations, notified the Chairman of the Commission that the Subcommittee is "conducting an inquiry into the adequacy of the current self-regulatory system and the Commission's *267 oversight thereof in connection with complaints against broker-dealers for securities-law violations." Letter, p. 1, enclosed with Letter from Theodore G. Eppenstein, counsel for respondents, to Joseph F. Spaniol, Jr., Clerk of this Court (Mar. 2, 1987). Representative Dingell noted that his Subcommittee was "particularly concerned about increasing numbers of complaints in connection with churning and violations of suitability requirements, as well as complaints that arbitration procedures are rife with conflicts of interest (since the arbitrators are peers of the brokerage firm being sued) and are inadequate to enforce the statutory rights of customers against broker-dealers." Ibid. To justify this inquiry, he cited several well-publicized examples of abuse of investors by securities-industry personnel and a General Accounting Office report on the increase in securities-law violations by brokers that went undetected by the SROs. In concluding the letter, Representative Dingell expressed his surprise at the Commission's position in the present case. In his view, that position was at odds with the one the Commission consistently had taken before the Subcommittee, which stressed the limitations on the Commission's authority over the SROs in general, and over arbitrations in particular. Id., at 3. Thus, there is hope that Congress will give investors the relief that the Court denies them today. In the meantime, the Court leaves lower courts with some authority, albeit limited, to protect investors before Congress acts. Courts should take seriously their duty to review the results of arbitration to the extent possible under the Arbitration Act. As we explained in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., "courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds `for the revocation of any contract.' " 473 U.S., at 627, quoting 9 U.S. C. § 2. Indeed, in light of today's decision compelling the enforcement of predispute arbitration agreements, it is likely *268 that investors will be inclined, more than ever, to bring complaints to federal courts that arbitrators were partial or acted in "manifest disregard" of the securities laws. See Brown, Shell, & Tyson 36. It is thus ironic that the Court's decision, no doubt animated by its desire to rid the federal courts of these suits, actually may increase litigation about arbitration. I therefore respectfully dissent in part. JUSTICE STEVENS, concurring in part and dissenting in part. Gaps in the law must, of course, be filled by judicial construction. But after a statute has been construed, either by this Court or by a consistent course of decision by other federal judges and agencies, it acquires a meaning that should be as clear as if the judicial gloss had been drafted by the Congress itself. This position reflects both respect for Congress' role, see Boys Market, Inc. v. Retail Clerks, 398 U.S. 235, 257-258 (1970) (Black, J., dissenting), and the compelling need to preserve the courts' limited resources, see B. Cardozo, The Nature of the Judicial Process 149 (1921). During the 32 years immediately following this Court's decision in Wilko v. Swan, 346 U.S. 427 (1953), each of the eight Circuits that addressed the issue concluded that the holding of Wilko was fully applicable to claims arising under the Securities Exchange Act of 1934.[1] See ante, at 248, n. 6 (opinion of BLACKMUN, J.). This longstanding interpretation[2] creates a strong presumption, in my view, that any mistake *269 that the courts may have made in interpreting the statute is best remedied by the Legislative, not the Judicial, Branch. The history set forth in Part I of JUSTICE BLACKMUN's opinion adds special force to that presumption in this case. For this reason, I respectfully dissent from the portion of the Court's judgment that holds Wilko inapplicable to the 1934 Act. Like JUSTICE BLACKMUN, however, I join Parts I, II, and IV of the Court's opinion.

This case presents two questions regarding the enforceability of predispute arbitration agreements between brokerage firms and their customers. The first is whether a claim brought under 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S. C. 78j(b), must be sent to arbitration in accordance with the terms of an arbitration agreement. The second is whether a claim brought under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. 1961 et seq., must be arbitrated in accordance with the terms of such an agreement. I Between 1980 and 1982, respondents Eugene and Julia McMahon, individually and as trustees for various pension and profit-sharing plans, were customers of petitioner Shearson/American *223 Express (Shearson), a brokerage firm registered with the Securities and Exchange Commission (SEC or Commission). Two customer agreements signed by Julia McMahon provided for arbitration of any controversy relating to the accounts the McMahons maintained with Shearson. The arbitration provision provided in relevant part as follows: "Unless unenforceable due to federal or state law, any controversy arising out of or relating to my accounts, to transactions with you for me or to this agreement or the breach thereof, shall be settled by arbitration in accordance with the rules, then in effect, of the National Association of Securities Dealers, or the Boards of Directors of the New York Stock Exchange, and/or the American Stock Exchange, as I may elect." In October 1984, the McMahons filed an amended complaint against Shearson and petitioner Mary Ann McNulty, the registered representative who handled their accounts, in the United States District Court for the Southern District of New York. The complaint alleged that McNulty, with Shearson's knowledge, had violated 10(b) of the Exchange Act and Rule 10b-5, 17 CFR 0.10b-5 by engaging in fraudulent, excessive trading on respondents' accounts and by making false statements and omitting material facts from the advice given to respondents. The complaint also alleged a RICO claim, 18 U.S. C. 1962(c), and state law claims for fraud and breach of fiduciary duties. Relying on the customer agreements, petitioners moved to compel arbitration of the McMahons' claims pursuant to 3 of the Federal Arbitration Act, 9 U.S. C. 3. The District Court granted the motion in part. The court first rejected the McMahons' contention that the arbitration agreements were unenforceable as contracts of *2 adhesion. It then found that the McMahons' 10(b) claims were arbitrable under the terms of the agreement, concluding that such a result followed from this Court's decision in Dean Witter Reynolds and the "strong national policy favoring the enforcement of arbitration agreements." The District Court also held that the McMahons' state law claims were arbitrable under Dean Witter Reynolds It concluded, however, that the McMahons' RICO claim was not arbitrable "because of the important federal policies inherent in the enforcement of RICO by the federal courts." The Court of Appeals affirmed the District Court on the state law and RICO claims, but it reversed on the Exchange Act With respect to the RICO claim, the Court of Appeals concluded that "public policy" considerations made it "inappropriat[e]" to apply the provisions of the Arbitration Act to RICO suits. The court reasoned that RICO claims are "not merely a private matter." Because a RICO plaintiff may be likened to a "private attorney general" protecting the public interest, ib the Court of Appeals concluded that such claims should be adjudicated only in a judicial forum. It distinguished this Court's reasoning in Motors concerning the arbitrability of antitrust claims, on the ground that it involved international business transactions and did not affect the law "as applied to agreements to arbitrate arising from domestic transactions." 788 F.2d, With respect to respondents' Exchange Act claims, the Court of Appeals noted that under claims arising under 12(2) of the Securities Act of 1933 (Securities Act), 15 U.S. C. 77l(2), are not subject to compulsory arbitration. The Court of Appeals *225 observed that it previously had extended the Wilko rule to claims arising under 10(b) of the Exchange Act and Rule 10b-5. See, e. g., (CA2), cert. denied, ; Greater Continental The court acknowledged that and Dean Witter Reynolds had "cast some doubt on the applicability of Wilko to claims under 10(b)." The Court of Appeals nevertheless concluded that it was bound by the "clear judicial precedent in this Circuit," and held that Wilko must be applied to Exchange Act 788 F.2d, We granted certiorari, to resolve the conflict among the Courts of Appeals regarding the arbitrability of 10(b)[1] and RICO[2] II The Federal Arbitration Act, 9 U.S. C. 1 et seq., provides the starting point for answering the questions raised in this case. The Act was intended to "revers[e] centuries of judicial hostility to arbitration agreements," by "plac[ing] arbitration *226 agreements `upon the same footing as other contracts.' " quoting H. R. Rep. No. 96, 68th Cong., 1st Sess., 1, 2 (19). The Arbitration Act accomplishes this purpose by providing that arbitration agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S. C. 2. The Act also provides that a court must stay its proceedings if it is satisfied that an issue before it is arbitrable under the agreement, 3; and it authorizes a federal district court to issue an order compelling arbitration if there has been a "failure, neglect, or refusal" to comply with the arbitration agreement, 4. The Arbitration Act thus establishes a "federal policy favoring arbitration," Moses H. Cone Memorial requiring that "we rigorously enforce agreements to arbitrate." Dean Witter Reynolds This duty to enforce arbitration agreements is not diminished when a party bound by an agreement raises a claim founded on statutory rights. As we observed in Motors "we are well past the time when judicial suspicion of the desirability of arbitration and of the competence of arbitral tribunals" should inhibit enforcement of the Act " `in controversies based on statutes.' " -627, quoting Absent a well-founded claim that an arbitration agreement resulted from the sort of fraud or excessive economic power that "would provide grounds `for the revocation of any contract,' " the Arbitration Act "provides no basis for disfavoring agreements to arbitrate statutory claims by skewing the otherwise hospitable inquiry into arbitrability." The Arbitration Act, standing alone, therefore mandates enforcement of agreements to arbitrate statutory Like any statutory directive, the Arbitration Act's mandate may be overridden by a contrary congressional command. *227 The burden is on the party opposing arbitration, however, to show that Congress intended to preclude a waiver of judicial remedies for the statutory rights at issue. See If Congress did intend to limit or prohibit waiver of a judicial forum for a particular claim, such an intent "will be deducible from [the statute's] text or legislative history," ib or from an inherent conflict between arbitration and the statute's underlying purposes. See ; Dean Witter Reynolds To defeat application of the Arbitration Act in this case, therefore, the McMahons must demonstrate that Congress intended to make an exception to the Arbitration Act for claims arising under RICO and the Exchange Act, an intention discernible from the text, history, or purposes of the statute. We examine the McMahons' arguments regarding the Exchange Act and RICO in turn. III When Congress enacted the Exchange Act in 1934, it did not specifically address the question of the arbitrability of 10(b) The McMahons contend, however, that congressional intent to require a judicial forum for the resolution of 10(b) claims can be deduced from 29(a) of the Exchange Act, 15 U.S. C. 78cc(a), which declares void "[a]ny condition, stipulation, or provision binding any person to waive compliance with any provision of [the Act]." First, we reject the McMahons' argument that 29(a) forbids waiver of 27 of the Exchange Act, 15 U.S. C. 78aa. Section 27 provides in relevant part: "The district courts of the United States shall have exclusive jurisdiction of violations of this title or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this title or the rules and regulations thereunder." *228 The McMahons contend that an agreement to waive this jurisdictional provision is unenforceable because 29(a) voids the waiver of "any provision" of the Exchange Act. The language of 29(a), however, does not reach so far. What the antiwaiver provision of 29(a) forbids is enforcement of agreements to waive "compliance" with the provisions of the statute. But 27 itself does not impose any duty with which persons trading in securities must "comply." By its terms, 29(a) only prohibits waiver of the substantive obligations imposed by the Exchange Act. Because 27 does not impose any statutory duties, its waiver does not constitute a waiver of "compliance with any provision" of the Exchange Act under 29(a). We do not read as compelling a different result. In Wilko, the Court held that a predispute agreement could not be enforced to compel arbitration of a claim arising under 12(2) of the Securities Act, 15 U.S. C. 77l(2). The basis for the ruling was 14 of the Securities Act, which, like 29(a) of the Exchange Act, declares void any stipulation "to waive compliance with any provision" of the statute. At the beginning of its analysis, the Wilko Court stated that the Securities Act's jurisdictional provision was "the kind of `provision' that cannot be waived under 14 of the Securities Act." This statement, however, can only be understood in the context of the Court's ensuing discussion explaining why arbitration was inadequate as a means of enforcing "the provisions of the Securities Act, advantageous to the buyer." The conclusion in Wilko was expressly based on the Court's belief that a judicial forum was needed to protect the substantive rights created by the Securities Act: "As the protective provisions of the Securities Act require the exercise of judicial direction to fairly assure their effectiveness, it seems to us that Congress must have intended 14 to apply to waiver of judicial trial and review." Wilko must be understood, therefore, as holding that the plaintiff's waiver *229 of the "right to select the judicial forum," was unenforceable only because arbitration was judged inadequate to enforce the statutory rights created by 12(2). Indeed, any different reading of Wilko would be inconsistent with this Court's decision in In Scherk, the Court upheld enforcement of a predispute agreement to arbitrate Exchange Act claims by parties to an international contract. The Scherk Court assumed for purposes of its opinion that Wilko applied to the Exchange Act, but it determined that an international contract "involve[d] considerations and policies significantly different from those found controlling in Wilko." The Court reasoned that arbitration reduced the uncertainty of international contracts and obviated the danger that a dispute might be submitted to a hostile or unfamiliar forum. At the same time, the Court noted that the advantages of judicial resolution were diminished by the possibility that the opposing party would make "speedy resort to a foreign court." The decision in Scherk thus turned on the Court's judgment that under the circumstances of that case, arbitration was an adequate substitute for adjudication as a means of enforcing the parties' statutory rights. Scherk supports our understanding that Wilko must be read as barring waiver of a judicial forum only where arbitration is inadequate to protect the substantive rights at issue. At the same time, it confirms that where arbitration does provide an adequate means of enforcing the provisions of the Exchange Act, 29(a) does not void a predispute waiver of 27 — Scherk upheld enforcement of just such a waiver. The second argument offered by the McMahons is that the arbitration agreement effects an impermissible waiver of the substantive protections of the Exchange Act. Ordinarily, "[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather *230 than a judicial, forum." Motors Corp. v. Soler-Chrysler-Plymouth, 473 U. S., The McMahons argue, however, that 29(a) compels a different conclusion. Initially, they contend that predispute agreements are void under 29(a) because they tend to result from broker overreaching. They reason, as do some commentators, that Wilko is premised on the belief "that arbitration clauses in securities sales agreements generally are not freely negotiated." See, e. g., Sterk, Enforceability of Agreements to Arbitrate: An Examination of the Public Policy Defense, According to this view, Wilko barred enforcement of predispute agreements because of this frequent inequality of bargaining power, reasoning that Congress intended for 14 generally to ensure that sellers did not "maneuver buyers into a position that might weaken their ability to recover under the Securities Act." 346 U.S., The McMahons urge that we should interpret 29(a) in the same fashion. We decline to give Wilko a reading so far at odds with the plain language of 14, or to adopt such an unlikely interpretation of 29(a). The concern that 29(a) is directed against is evident from the statute's plain language: it is a concern with whether an agreement "waive[s] compliance with [a] provision" of the Exchange Act. The voluntariness of the agreement is irrelevant to this inquiry: if a stipulation waives compliance with a statutory duty, it is void under 29(a), whether voluntary or not. Thus, a customer cannot negotiate a reduction in commissions in exchange for a waiver of compliance with the requirements of the Exchange Act, even if the customer knowingly and voluntarily agreed to the bargain. Section 29(a) is concerned, not with whether brokers "maneuver[ed customers] into" an agreement, but with whether the agreement "weaken[s] their ability to recover under the [Exchange] Act." 346 U.S., The former is grounds for revoking the contract under ordinary *231 principles of contract law; the latter is grounds for voiding the agreement under 29(a). The other reason advanced by the McMahons for finding a waiver of their 10(b) rights is that arbitration does "weaken their ability to recover under the [Exchange] Act." That is the heart of the Court's decision in Wilko, and respondents urge that we should follow its reasoning. Wilko listed several grounds why, in the Court's view, the "effectiveness [of the Act's provisions] in application is lessened in arbitration." First, the Wilko Court believed that arbitration proceedings were not suited to cases requiring "subjective findings on the purpose and knowledge of an alleged violator." -436. Wilko also was concerned that arbitrators must make legal determinations "without judicial instruction on the law," and that an arbitration award "may be made without explanation of [the arbitrator's] reasons and without a complete record of their proceedings." Finally, Wilko noted that the "[p]ower to vacate an award is limited," and that "interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation." -437. Wilko concluded that in view of these drawbacks to arbitration, 12(2) claims "require[d] the exercise of judicial direction to fairly assure their effectiveness." As Justice Frankfurter noted in his dissent in Wilko, the Court's opinion did not rest on any evidence, either "in the record [or] in the facts of which [it could] take judicial notice," that "the arbitral system would not afford the plaintiff the rights to which he is entitled." Instead, the reasons given in Wilko reflect a general suspicion of the desirability of arbitration and the competence of arbitral tribunals — most apply with no greater force to the arbitration of securities disputes than to the arbitration of legal disputes generally. It is difficult to reconcile Wilko's mistrust of the arbitral with this Court's subsequent *232 decisions involving the Arbitration Act. See, e. g., Motors Dean Witter Reynolds ; Southland ; Moses H. Cone Memorial ; Indeed, most of the reasons given in Wilko have been rejected subsequently by the Court as a basis for holding claims to be nonarbitrable. In for example, we recognized that arbitral tribunals are readily capable of handling the factual and legal complexities of antitrust claims, notwithstanding the absence of judicial instruction and supervision. See -634. Likewise, we have concluded that the streamlined procedures of arbitration do not entail any consequential restriction on substantive rights. Finally, we have indicated that there is no reason to assume at the outset that arbitrators will not follow the law; although judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute. See and n. 19 (declining to assume that arbitration will not be resolved in accordance with statutory law, but reserving consideration of "effect of an arbitral tribunal's failure to take cognizance of the statutory cause of action on the claimant's capacity to reinstate suit in federal court"). The suitability of arbitration as a means of enforcing Exchange Act rights is evident from our decision in Scherk. Although the holding in that case was limited to international agreements, the competence of arbitral tribunals to resolve 10(b) claims is the same in both settings. Courts likewise have routinely enforced agreements to arbitrate 10(b) claims where both parties are members of a securities exchange or the National Association of Securities Dealers (NASD), suggesting that arbitral tribunals are fully capable of handling such matters. See, e. g., Axelrod & v. Kordich, Victor *233 & aff'd, ; Brown v. Gilligan, Will & And courts uniformly have concluded that Wilko does not apply to the submission to arbitration of existing disputes, see, e. g., Gardner v. Shearson, Hammill & ; 389 F.2d 2 even though the inherent suitability of arbitration as a means of resolving 10(b) claims remains unchanged. Cf. Thus, the mistrust of arbitration that formed the basis for the Wilko opinion in 3 is difficult to square with the assessment of arbitration that has prevailed since that time. This is especially so in light of the intervening changes in the regulatory structure of the securities laws. Even if Wilko's assumptions regarding arbitration were valid at the time Wilko was decided, most certainly they do not hold true today for arbitration procedures subject to the SEC's oversight authority. In 3, when Wilko was decided, the Commission had only limited authority over the rules governing self-regulatory organizations (SROs) — the national securities exchanges and registered securities associations — and this authority appears not to have included any authority at all over their arbitration rules. See Brief for Securities and Exchange Commission as Amicus Curiae 14-15. Since the 1975 amendments to 19 of the Exchange Act, however, the Commission has had expansive power to ensure the adequacy of the arbitration procedures employed by the SROs. No proposed rule change may take effect unless the SEC finds that the proposed rule is consistent with the requirements of the Exchange Act, 15 U.S. C. 78s(b)(2); and the Commission has the power, on its own initiative, to "abrogate, add to, and delete from" any SRO rule if it finds such changes necessary or appropriate to further the objectives of the Act, 15 U.S. C. 78s(c). In short, the Commission has broad authority to oversee and to *234 regulate the rules adopted by the SROs relating to customer disputes, including the power to mandate the adoption of any rules it deems necessary to ensure that arbitration procedures adequately protect statutory rights.[3] In the exercise of its regulatory authority, the SEC has specifically approved the arbitration procedures of the New York Stock Exchange, the American Stock Exchange, and the NASD, the organizations mentioned in the arbitration agreement at issue in this case. We conclude that where, as in this case, the prescribed procedures are subject to the Commission's 19 authority, an arbitration agreement does not effect a waiver of the protections of the Act. While stare decisis concerns may counsel against upsetting Wilko's contrary conclusion under the Securities Act, we refuse to extend Wilko's reasoning to the Exchange Act in light of these intervening regulatory developments. The McMahons' agreement to submit to arbitration therefore is not tantamount to an impermissible waiver of the McMahons' rights under 10(b), and the agreement is not void on that basis under 29(a). The final argument offered by the McMahons is that even if 29(a) as enacted does not void predispute arbitration agreements, Congress subsequently has indicated that it desires 29(a) to be so interpreted. According to the McMahons, Congress expressed this intent when it failed to make more *235 extensive changes to 28(b), 15 U.S. C. 78bb(b), in the 1975 amendments to the Exchange Act. Before its amendment, 28(b) provided in relevant part: "Nothing in this chapter shall be construed to modify existing law (1) with regard to the binding effect on any member of any exchange of any action taken by the authorities of such exchange to settle disputes between its members, or (2) with regard to the binding effect of such action on any person who has agreed to be bound thereby, or (3) with regard to the binding effect on any such member of any disciplinary action taken by the authorities of the exchange." The chief aim of this provision was to preserve the selfregulatory role of the securities exchanges, by giving the exchanges a means of enforcing their rules against their members. See, e. g., Tullis v. Kohlmeyer & ("[P]reserv[ing] for the stock exchanges a major self-regulatory role is the basis of 28(b)"); Axelrod & v. Kordich, Victor & 1 F. 2d, at 840-841. In 1975, Congress made extensive revisions to the Exchange Act intended to "clarify the scope of the selfregulatory responsibilities of national securities exchanges and registered securities associations and the manner in which they are to exercise those responsibilities." S. Rep. No. 94-75, p. 22 In making these changes, the Senate Report observed: "The self-regulatory organizations must exercise governmental-type powers if they are to carry out their responsibilities under the Exchange Act. When a member violates the Act or a self-regulatory organization's rules, the organization must be in a position to impose appropriate penalties or to revoke relevant privileges." at The amendments to 28 reflect this objective. Paragraph (3) of 28(b) was deleted and replaced with new 28(c), which provided that the validity of any disciplinary action taken by an SRO would not be affected by a subsequent decision by the SEC to stay or modify the sanction. See 15 U.S. C. *236 78bb(c). At the same time, 28(b) was expanded to ensure that all SROs as well as the Municipal Securities Rule-making Board had the power to enforce their substantive rules against their members. Section 28(b), as amended, provides: "Nothing in this chapter shall be construed to modify existing law with regard to the binding effect (1) on any member of or participant in any self-regulatory organization of any action taken by the authorities of such organization to settle disputes between its members or participants, (2) on any municipal securities dealer or municipal securities broker of any action taken pursuant to a procedure established by the Municipal Securities Rulemaking Board to settle disputes between municipal securities dealers and municipal securities brokers, or (3) of any action described in paragraph (1) or (2) on any person who has agreed to be bound thereby." Thus, the amended version of 28(b), like the original, mentions neither customers nor arbitration. It is directed at an entirely different problem: enhancing the self-regulatory function of the SROs under the Exchange Act. The McMahons nonetheless argue that we should find it significant that Congress did not take this opportunity to address the general question of the arbitrability of Exchange Act Their argument is based entirely on a sentence from the Conference Report, which they contend amounts to a ratification of Wilko's extension to Exchange Act The Conference Report states: "The Senate bill amended section 28 of the Securities Exchange Act of 1934 with respect to arbitration proceedings between self-regulatory organizations and their participants, members, or persons dealing with members or participants. The House amendment contained no comparable provision. The House receded to the Senate. It was the clear understanding of the conferees that *237 this amendment did not change existing law, as articulated in concerning the effect of arbitration proceedings provisions in agreements entered into by persons dealing with members and participants of self-regulatory organizations." H. R. Conf. Rep. No. 94-229, p. 111 The McMahons contend that the conferees would not have acknowledged Wilko in a revision of the Exchange Act unless they were aware of lower court decisions extending Wilko to 10(b) claims and intended to approve them. We find this argument fraught with difficulties. We cannot see how Congress could extend Wilko to the Exchange Act without enacting into law any provision remotely addressing that subject. See And even if it could, there is little reason to interpret the Report as the McMahons suggest. At the outset, the committee may well have mentioned Wilko for a reason entirely different from the one postulated by the McMahons — lower courts had applied 28(b) to the Securities Act, see, e. g., Axelrod & v. Kordich, Victor & and the committee may simply have wished to make clear that the amendment to 28(b) was not otherwise intended to affect Wilko's construction of the Securities Act. Moreover, even if the committee were referring to the arbitrability of 10(b) claims, the quoted sentence does not disclose what committee members thought "existing law" provided. The conference members might have had in mind the two Court of Appeals decisions extending Wilko to the Exchange Act, as the McMahons contend. See Greater Continental ; 389 F.2d 2 It is equally likely, however, that the committee had in mind this Court's decision the year before expressing doubts as to whether Wilko should be extended to 10 (b) See ("[A] colorable argument could be made that even the *238 semantic reasoning of the Wilko opinion does not control [a case based on 10(b)]"). Finally, even assuming the conferees had an understanding of existing law that all agreed upon, they specifically disclaimed any intent to change it. Hence, the Wilko issue was left to the courts: it was unaffected by the amendment to 28(b). This statement of congressional inaction simply does not support the proposition that the 1975 Congress intended to engraft onto unamended 29(a) a meaning different from that of the enacting Congress. We conclude, therefore, that Congress did not intend for 29(a) to bar enforcement of all predispute arbitration agreements. In this case, where the SEC has sufficient statutory authority to ensure that arbitration is adequate to vindicate Exchange Act rights, enforcement does not effect a waiver of "compliance with any provision" of the Exchange Act under 29(a). Accordingly, we hold the McMahons' agreements to arbitrate Exchange Act claims "enforce[able] in accord with the explicit provisions of the Arbitration Act." IV Unlike the Exchange Act, there is nothing in the text of the RICO statute that even arguably evinces congressional intent to exclude civil RICO claims from the dictates of the Arbitration Act. This silence in the text is matched by silence in the statute's legislative history. The private treble-damages provision codified as 18 U.S. C. 1964(c) was added to the House version of the bill after the bill had been passed by the Senate, and it received only abbreviated discussion in either House. See Sedima, S. P. R. L. v. Imrex There is no hint in these legislative debates that Congress intended for RICO treble-damages claims to be excluded from the ambit of the Arbitration Act. See Genesco, v. T. Kakiuchi & Ltd., *239 ; Mayaja, v. Bodkin, Because RICO's text and legislative history fail to reveal any intent to override the provisions of the Arbitration Act, the McMahons must argue that there is an irreconcilable conflict between arbitration and RICO's underlying purposes. Our decision in Motors however, already has addressed many of the grounds given by the McMahons to support this claim. In we held that nothing in the nature of the federal antitrust laws prohibits parties from agreeing to arbitrate antitrust claims arising out of international commercial transactions. Although the holding in was limited to the international context, see much of its reasoning is equally applicable here. Thus, for example, the McMahons have argued that RICO claims are too complex to be subject to arbitration. We determined in however, that "potential complexity should not suffice to ward off arbitration." Antitrust matters are every bit as complex as RICO claims, but we found that the "adaptability and access to expertise" characteristic of arbitration rebutted the view "that an arbitral tribunal could not properly handle an antitrust matter." -634. Likewise, the McMahons contend that the "overlap" between RICO's civil and criminal provisions renders 1964(c) claims nonarbitrable. See Page v. Moseley, Hallgarten, Estabrook & Weeden, Yet 1964(c) is no different in this respect from the federal antitrust laws. In Sedima, S. P. R. L. v. Imrex we rejected the view that 1964(c) "provide[s] civil remedies for offenses criminal in nature." See In doing so, this Court observed: "[T]he fact that conduct can result in *0 both criminal liability and treble damages does not mean that there is not a bona fide civil action. The familiar provisions for both criminal liability and treble damages under the antitrust laws indicate as much." recognized that treble-damages suits for claims arising under 1 of the Sherman Act may be subject to arbitration, even though such conduct may also give rise to claims of criminal liability. See Motors We similarly find that the criminal provisions of RICO do not preclude arbitration of bona fide civil actions brought under 1964(c). The McMahons' final argument is that the public interest in the enforcement of RICO precludes its submission to arbitration. again is relevant to the question. In that case we thoroughly examined the legislative intent behind 4 of the Clayton Act in assaying whether the importance of the private treble-damages remedy in enforcing the antitrust laws precluded arbitration of 4 We found that "[n]otwithstanding its important incidental policing function, the treble-damages cause of action seeks primarily to enable an injured competitor to gain compensation for that injury." Emphasizing the priority of the compensatory function of 4 over its deterrent function, concluded that "so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function." The legislative history of 1964(c) reveals the same emphasis on the remedial role of the treble-damages provision. In introducing the treble-damages provision to the House Judiciary Committee, Representative Steiger stressed that "those who have been wronged by organized crime should at least be given access to a legal remedy." Hearings on S. 30 and Related Proposals before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 2d Sess., 520 The policing function of 1964(c), although important, *1 was a secondary concern. See During the congressional debates on 1964(c), Representative Steiger again emphasized the remedial purpose of the provision: "It is the intent of this body, I am certain, to see that innocent parties who are the victims of organized crime have a right to obtain proper redress. It represents the one opportunity for those of us who have been seriously affected by organized crime activity to recover." 116 Cong. Rec. 35346-35347 This focus on the remedial function of 1964(c) is reinforced by the recurrent references in the legislative debates to 4 of the Clayton Act as the model for the RICO treble-damages provision. See, e. g., 116 Cong. Rec. 35346 (statement of Rep. Poff) (RICO provision "has its counterpart almost in haec verba in the antitrust statutes"); at 20 (proposed amendment would "authorize private civil damage suits based upon the concept of section 4 of the Clayton Antitrust Act"). See generally Sedima, S. P. R. L. v. Imrex Not only does support the arbitrability of RICO claims, but there is even more reason to suppose that arbitration will adequately serve the purposes of RICO than that it will adequately protect private enforcement of the antitrust laws. Antitrust violations generally have a widespread impact on national markets as a whole, and the antitrust treble-damages provision gives private parties an incentive to bring civil suits that serve to advance the national interest in a competitive economy. See Lindsay, "Public" Rights and Private Forums: Predispute Arbitration Agreements and Securities Litigation, 20 Loyola (LA) L. Rev. 643, 691-692 RICO's drafters likewise sought to provide vigorous incentives for plaintiffs to pursue RICO claims that would advance society's fight against organized crime. See Sedima, *2A S. P. R. L. v. Imrex But in fact RICO actions are seldom asserted "against the archetypal, intimidating mobster." ; see also ("[O]nly 9% of all civil RICO cases have involved allegations of criminal activity normally associated with professional criminals"). The special incentives necessary to encourage civil enforcement actions against organized crime do not support nonarbitrability of run-of-the-mill civil RICO claims brought against legitimate enterprises. The private attorney general role for the typical RICO plaintiff is simply less plausible than it is for the typical antitrust plaintiff, and does not support a finding that there is an irreconcilable conflict between arbitration and enforcement of the RICO statute. In sum, we find no basis for concluding that Congress intended to prevent enforcement of agreements to arbitrate RICO The McMahons may effectively vindicate their RICO claim in an arbitral forum, and therefore there is no inherent conflict between arbitration and the purposes underlying 1964(c). Moreover, nothing in RICO's text or legislative history otherwise demonstrates congressional intent to make an exception to the Arbitration Act for RICO Accordingly, the McMahons, "having made the bargain to arbitrate," will be held to their bargain. Their RICO claim is arbitrable under the terms of the Arbitration Act. V Accordingly, the judgment of the Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. *2B JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and dissenting in part. I concur in the Court's decision to enforce the arbitration agreement with respect to respondents' RICO claims and thus *3 join Parts I, II, and IV of the Court's opinion. I disagree, however, with the Court's conclusion that respondents' 10(b) claims also are subject to arbitration. Both the Securities Act of 1933 and the Securities Exchange Act of 1934 were enacted to protect investors from predatory behavior of securities industry personnel. In the Court recognized this basic purpose when it declined to enforce a predispute agreement to compel arbitration of claims under the Securities Act. Following that decision, lower courts extended Wilko's reasoning to claims brought under 10(b) of the Exchange Act, and Congress approved of this extension. In today's decision, however, the Court effectively overrules Wilko by accepting the Securities and Exchange Commission's newly adopted position that arbitration procedures in the securities industry and the Commission's oversight of the self-regulatory organizations (SROs) have improved greatly since Wilko was decided. The Court thus approves the abandonment of the judiciary's role in the resolution of claims under the Exchange Act and leaves such claims to the arbitral forum of the securities industry at a time when the industry's abuses towards investors are more apparent than ever. I At the outset, it is useful to review the manner by which the issue decided today has been kept alive inappropriately by this Court. As the majority explains, Wilko was limited to the holding "that a predispute agreement could not be enforced to compel arbitration of a claim arising under 12(2) of the Securities Act." Ante, at 228. Relying, however, on the reasoning of Wilko and the similarity between the pertinent provisions of the Securities Act and those of the Exchange Act, lower courts extended the Wilko holding to claims under the Exchange Act and refused to enforce predispute agreements to arbitrate them as well. See, e. g., Greater Continental 1103 *4 ; 389 F.2d 2, 5-6 In the Court addressed the question whether a particular predispute agreement to arbitrate 10(b) claims should be enforced. Because that litigation involved international business concerns and because the case was decided on such grounds, the Court did not reach the issue of the extension of Wilko to 10(b) The Court, nonetheless, included in its opinion dicta noting that "a colorable argument could be made that even the semantic reasoning of the Wilko opinion does not control the case before us." There is no need to discuss in any detail that "colorable argument," which rests on alleged distinctions between pertinent provisions of the Securities Act and those of the Exchange Act, because the Court does not rely upon it today.[1] In fact, *5 the "argument" is important not so much for its substance[2] as it is for its litigation role. It simply constituted a way of keeping the issue of the arbitrability of 10(b) claims alive for those opposed to the result in Wilko. *6 If, however, there could have been any doubts about the extension of Wilko's holding to 10(b) claims, they were undermined by Congress in its 1975 amendments to the Exchange Act. The Court questions the significance of these amendments, which, as it notes, concerned, among other things, provisions dealing with dispute resolution and disciplinary action by an SRO towards its own members. See ante, at 235-236. These amendments, however, are regarded as "the `most substantial and significant revision of this country's Federal securities laws since the passage of the Securities Exchange Act in 1934.' " Herman & 9 U.S. 375, 384- quoting Securities Acts Amendments of 1975: Hearings on S. 9 before the Subcommittee on Securities of the Senate Committee on Banking, Housing and Urban Affairs, 94th Cong., 1st Sess., 1 (Hearings).[3] More importantly, in enacting these amendments, Congress specifically was considering exceptions to 29(a), 15 U.S. C. 78cc, the nonwaiver provision of the Exchange Act, a provision primarily designed with the protection of investors in mind.[4] The statement from the *7 legislative history, cited by the Court, ante, at 236-237, on its face indicates that Congress did not want the amendments to overrule Wilko. Moreover, the fact that this statement was made in an amendment to the Exchange Act suggests that Congress was aware of the extension of Wilko to 10(b) Although the remark does not necessarily signify Congress' endorsement of this extension, in the absence of any prior congressional indication to the contrary, it implies that Congress was not concerned with arresting this trend.[5] Such inaction during a wholesale revision of the securities laws, a revision designed to further investor protection, would argue in favor of Congress' approval of Wilko and its extension to 10(b) See Wolfe v. E. F. Hutton & cert. *8 pending, No. 86-1218; cf. Herman & 9 U. S., 84-386. One would have thought that, after these amendments, the matter of Wilko's extension to Exchange Act claims at last would be uncontroversial. In the years following the Scherk decision, all the Courts of Appeals treating the issue so interpreted Wilko.[6] In Dean Witter Reynolds this Court declined to address the extension issue, which was not before it, but recognized the development in the case law. Yet, like a ghost reluctant to accept its eternal rest, the "colorable argument" surfaced again, this time in a concurring opinion. See at 2 That concurring opinion repeated the "argument," but with no more development than the Scherk Court had given it.[7] Where there had been uniformity in *9 the lower courts before there now appeared disharmony on the issue of the arbitrability of 10(b) [8] And, as the Court observes, see ante, at 225, we granted certiorari in this case to resolve this conflict among the Courts of Appeals. II There are essentially two problems with the Court's conclusion that predispute agreements to arbitrate 10(b) claims may be enforced. First, the Court gives Wilko an overly narrow reading so that it can fit into the syllogism offered by the Commission and accepted by the Court, namely, (1) Wilko *250 was really a case concerning whether arbitration was adequate for the enforcement of the substantive provisions of the securities laws; (2) all of the Wilko Court's doubts as to arbitration's adequacy are outdated; (3) thus Wilko is no longer good law. See ante, at 228-229, 232; Brief for Securities and Exchange Commission as Amicus Curiae 10. Second, the Court accepts uncritically petitioners' and the Commission's argument that the problems with arbitration, highlighted by the Wilko Court, either no longer exist or are not now viewed as problems by the Court. This acceptance primarily is based upon the Court's belief in the Commission's representations that its oversight of the SROs ensures the adequacy of arbitration. A I agree with the Court's observation that, in order to establish an exception to the Arbitration Act, 9 U.S. C. 1 et seq., for a class of statutory claims, there must be "an intention discernible from the text, history, or purposes of the statute." Ante, at 227. Where the Court first goes wrong, however, is in its failure to acknowledge that the Exchange Act, like the Securities Act, constitutes such an exception. This failure is made possible only by the unduly narrow reading of Wilko that ignores the Court's determination there that the Securities Act was an exception to the Arbitration Act. The Court's reading is particularly starting because it is in direct contradiction to the interpretation of Wilko given by the Court in Motors a decision on which the Court relies for its strong statement of a federal policy in favor of arbitration. But we observed in : "Just as it is the congressional policy manifested in the Federal Arbitration Act that requires courts liberally to construe the scope of arbitration agreements covered by that Act, it is the congressional intention expressed in some other statute on which the courts must rely to identify any category of claims as to which agreements to arbitrate *251 will be held unenforceable. See -435 We must assume that if Congress intended the substantive protection afforded by a given statue to include protection against waiver of the right to a judicial forum, that intention will be deducible from text or legislative history. See " Such language clearly suggests that, in we viewed Wilko as holding that the text and legislative history of the Securities Act — not general problems with arbitration — established that the Securities Act constituted an exception to the Arbitration Act. In a surprising display of logic, the Court uses as support for the virtues of arbitration and thus as a means for undermining Wilko's holding, but fails to take into account the most pertinent language in It is not necessary to rely just on the statement in to realize that in Wilko the Court had before it the issue of congressional intent to exempt statutory claims from the reach of the Arbitration Act. One has only to reread the Wilko opinion without the constricted vision of the Court. The Court's misreading is possible because, while extolling the policies of the Arbitration Act, it is insensitive to, and disregards the policies of, the Securities Act. This Act was passed in 1933, eight years after the Arbitration Act of 1925, see and in response to the market crash of 1929. The Act was designed to remedy abuses in the securities industry, particularly fraud and misrepresentation by securities-industry personnel, that had contributed to that disastrous event. See Malcolm & Segall 730-731. It had as its main goal investor protection, which took the form of an effort to place investors on an equal footing with those in the securities industry by promoting full disclosure of information on investments. See L. Loss, Fundamentals of Securities Regulation 36 *252 The Court in Wilko recognized the policy of investor protection in the Securities Act. It was this recognition that animated its discussion of whether 14, 15 U.S. C. 77n, the nonwaiver provision of the Securities Act, applied to 22(a), as amended, 15 U.S. C. 77v(a), the provision that gave an investor a judicial forum for the resolution of securities disputes. In the Court's words, the Securities Act, "[d]esigned to protect investors, requires issuers, underwriters, and dealers to make full and fair disclosure of the character of securities sold in interstate and foreign commerce and to prevent fraud in their sale." The Court then noted that, to promote this policy in the Act, Congress had designed an elaborate statutory structure: it gave investors a "special right" of suit under 12(2); they could bring the suit in federal or state court pursuant to 22(a); and, if brought in federal court, there were numerous procedural advantages, such as nationwide service of In reasoning that a predispute agreement to arbitrate 12(2) claims would constitute a "waiver" of a provision of the Act, i. e., the right to the judicial forum embodied in 22(a), the Court specifically referred to the policy of investor protection underlying the Act: "While a buyer and seller of securities, under some circumstances, may deal at arm's length on equal terms, it is clear that the Securities Act was drafted with an eye to the disadvantages under which buyers labor. Issuers of and dealers in securities have better opportunities to investigate and appraise the prospective earnings and business plans affecting securities than buyers. It is therefore reasonable for Congress to put buyers of securities covered by that Act on a different basis from other purchasers. "When the security buyer, prior to any violation of the Securities Act, waives his right to sue in courts, he gives up more than would a participant in other business transactions. The security buyer has a wider choice of courts *253 and venue. He thus surrenders one of the advantages the Act gives him and surrenders it at a time when he is less able to judge the weight of the handicap the Securities Act places upon his adversary." In the Court's view, the express language, legislative history, and purposes of the Securities Act all made predispute agreements to arbitrate 12(2) claims unenforceable despite the presence of the Arbitration Act.[9] *254 Accordingly, the Court seriously errs when it states that the result in Wilko turned only on the perceived inadequacy of arbitration for the enforcement of 12(2) It is true that the Wilko Court discussed the inadequacies of this -437, and that this discussion constituted one ground for the Court's decision. The discussion, however, occurred after the Court had concluded that the language, legislative history, and purposes of the Securities Act mandated an exception to the Arbitration Act for these securities The Court's decision in Scherk is consistent with this reading of Wilko, despite the Court's suggestion to the contrary. See ante, at 229. Indeed, in reading Scherk as a case turning on the adequacy of arbitration, the Court completely ignores the central thrust of that decision. As the Court itself notes, ante, at 229, in Scherk the Court assumed that Wilko's prohibition on enforcing predispute arbitration agreements ordinarily would extend to 10(b) claims, such as those at issue in Scherk. The Scherk Court relied on a crucial difference between the international business situation presented to it and that before the Court in Wilko, where the laws of the United States, particularly the securities laws, clearly governed the dispute. Scherk, in contrast, presented *255 a multinational conflict-of-laws puzzle.[10] In such a situation, the Court observed, a contract provision setting forth a particular forum and the law to apply for possible disputes was "an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction." Indeed, the Court thought that failure to enforce such an agreement to arbitrate in this international context would encourage companies to file suits in countries where the law was most favorable to them, which "would surely damage the fabric of international commerce and trade, and imperil the willingness and ability of businessmen to enter into international commercial agreements." Accordingly, the Scherk decision turned on the special nature of agreements to arbitrate in the international commercial context.[11] *256 In light of a proper reading of Wilko, the pertinent question then becomes whether the language, legislative history, and purposes of the Exchange Act call for an exception to the Arbitration Act for 10(b) The Exchange Act waiver provision is virtually identical to that of the Securities Act.[12] More importantly, the same concern with investor protection that motivated the Securities Act is evident in the Exchange Act, although the latter, in contrast to the former, is aimed at trading in the secondary securities market. See Ernst & We have recognized that both Acts were designed with this common purpose in mind. See Indeed, the application of both Acts to the same conduct, see Brown, Shell, & Tyson 16, suggests that they have the same basic goal. And we have approved a cumulative construction of remedies under the securities Acts to promote the maximum possible protection of investors. See Herman & 9 U. S., 84-.[13] In sum, the same reasons that led the Court to find an exception to the Arbitration Act for 12(2) claims exist for *257 10(b) claims as well. It is clear that Wilko, when properly read, governs the instant case and mandates that a predispute arbitration agreement should not be enforced as to 10(b) B Even if I were to accept the Court's narrow reading of Wilko as a case dealing only with the inadequacies of arbitration in 3,[14] I do not think that this case should be resolved differently today so long as the policy of investor protection is given proper consideration in the analysis. Despite improvements in the of arbitration and changes in the judicial attitude towards it, several aspects of arbitration that were seen by the Wilko court to be inimical to the policy of investor protection still remain. Moreover, I have serious reservations about the Commission's contention that its oversight of the SROs' arbitration procedures will ensure that the is adequate to protect an investor's rights under the securities Acts. As the Court observes, ante, at 231, in Wilko the Court was disturbed by several characteristics of arbitration that made such a inadequate to safeguard the special position in which the Securities Act had placed the investor. The Court concluded that judicial review of the arbitrators' application of the securities laws would be difficult because arbitrators were required neither to give the reasons for their decisions nor to make a complete record of their proceedings. See 346 U.S., The Court also observed that the grounds for vacating an arbitration award were limited. The Court noted that, under the Arbitration Act, there were only *258 four grounds for vacation of an award: fraud in procuring the award, partiality on the part of arbitrators, gross misconduct by arbitrators, and the failure of arbitrators to render a final decision. n. 22, quoting 9 U.S. C. 10 (2 ed., Supp. V). The arbitrators' interpretation of the law would be subject to judicial review only under the "manifest disregard" 346 U.S., The Court today appears to argue that the Wilko Court's assessment of arbitration's inadequacy is outdated, first, because arbitration has improved since 3, and second, because the Court no longer considers the criticisms of arbitration made in Wilko to be valid reasons why statutory claims, such as those under 10(b), should not be sent to arbitration.[15] It is true that arbitration procedures in the securities industry have improved since Wilko's day. Of particular importance has been the development of a code of arbitration by the Commission with the assistance of representatives of the securities industry and the public. See Uniform Code of Arbitration, Exh. C, Fifth Report of the Securities Industry Conference on Arbitration 29 (Fifth SICA Report).[16] *259 Even those who favor the arbitration of securities claims do not contend, however, that arbitration has changed so significantly as to eliminate the essential characteristics noted by the Wilko Court. Indeed, proponents of arbitration would not see these characteristics as "problems," because, in their view, the characteristics permit the unique "streamlined" nature of the arbitral As at the time of Wilko, preparation of a record of arbitration proceedings is not invariably required today.[17] Moreover, arbitrators are not bound by precedent and are actually discouraged by their associations from giving reasons for a decision. See R. Coulson, Business Arbitration — What You Need to Know 29 ("Written opinions can be dangerous because they identify targets for the losing party to attack"); see also Duke Note 553; Fletcher 6-7. Judicial review is still substantially limited to the four grounds listed in 10 of the Arbitration Act and to the concept of "manifest disregard" of the law. See, e. g., French v. Merrill Lynch, Pierce, Fenner & Smith, citing Swift Industries, v. Botany Industries,[18] *260 The Court's "mistrust" of arbitration may have given way recently to an acceptance of this not only because of the improvements in arbitration, but also because of the Court's present assumption that the distinctive features of arbitration, its more quick and economical resolution of claims, do not render it inherently inadequate for the resolution of statutory See Motors Such reasoning, however, should prevail only in the absence of the congressional policy that places the statutory claimant in a special position with respect to possible violators of his statutory rights. As even the most ardent supporter of arbitration would recognize, the arbitral at best places the investor on an equal footing with the securities-industry personnel against whom the claims are brought. Furthermore, there remains the danger that, at worst, compelling an investor to arbitrate securities claims puts him in a forum controlled by the securities industry. This result directly contradicts the goal of both securities Acts to free the investor from the control of the market professional. The Uniform Code provides some safeguards[19] but despite them, and indeed because of the background of the arbitrators, the investor has the impression, frequently justified, that his claims are being judged by a forum composed of individuals sympathetic to the securities industry and not drawn *261 from the public. It is generally recognized that the codes do not define who falls into the category "not from the securities industry." Brown, Shell, & Tyson 35, and n. 94; Katsoris 309-312. Accordingly, it is often possible for the "public" arbitrators to be attorneys or consultants whose clients have been exchange members or SROs. See Panel of Arbitrators -1988, CCH American Stock Exchange Guide 158-160 (71 out of 116 "public" arbitrators are lawyers). The uniform opposition of investors to compelled arbitration and the overwhelming support of the securities industry for the suggest that there must be some truth to the investors' belief that the securities industry has an advantage in a forum under its own control. See N. Y. Times, Mar. 29, section 3, p. 8, col. 1 (statement of Sheldon H. Elsen, Chairman, American Bar Association Task Force on Securities Arbitration: "The houses basically like the present system because they own the stacked deck").[20] More surprising than the Court's acceptance of the present adequacy of arbitration for the resolution of securities claims is its confidence in the Commission's oversight of the arbitration procedures of the SROs to ensure this adequacy. Such confidence amounts to a wholesale acceptance of the Commission's present position that this oversight undermines the force of Wilko and that arbitration therefore should be compelled because the Commission has supervisory authority *262 over the SROs' arbitration procedures. The Court, however, fails to acknowledge that, until it filed an amicus brief in this case, the Commission consistently took the position that 10(b) claims, like those under 12(2), should not be sent to arbitration, that predispute arbitration agreements, where the investor was not advised of his right to a judicial forum, were misleading, and that the very regulatory oversight upon which the Commission now relies could not alone make securities-industry arbitration adequate.[21] It is most questionable, then, whether the Commission's recently adopted position is entitled to the deference that the Court accords it. The Court is swayed by the power given to the Commission by the 1975 amendments to the Exchange Act in order to permit the Commission to oversee the rules and procedures of the SROs, including those dealing with arbitration. See ante, at 233-234. Subsequent to the passage of these amendments, however, the Commission has taken the consistent position that predispute arbitration agreements, *263 which did not disclose to an investor that he has a right to a judicial forum, were misleading and possibly actionable under the securities laws.[22] The Commission remained dissatisfied *264 with the continued use of these arbitration agreements and eventually it proposed a rule to prohibit them, explaining that such a prohibition was not inconsistent with its support of arbitration for resolving securities disputes, particularly existing ones. See Disclosure Regarding Recourse to the Federal Courts Notwithstanding Arbitration Clauses in Broker-Dealer Customer Agreements, SEC Exchange Act Rel. No. 19813 [1982-1983 Transfer Binder] CCH While emphasizing the Court's Wilko decision as a basis for its proposed rule, the Commission noted that its proposal also was in line with its own understanding of the problems with such agreements and with the "[c]ongressional determination that public investors should also have available the special protection of the federal courts for resolution of disputes arising under the federal securities laws." Although the rule met with some opposition,[23] it was adopted and remains in force today.[] *265 Moreover, the Commission's own description of its enforcement capabilities contradicts its position that its general overview of SRO rules and procedures can make arbitration adequate for resolving securities The Commission does not pretend that its oversight consists of anything other than a general review of SRO rules and the ability to require that an SRO adopt or delete a particular rule. It does not contend that its "sweeping authority," Brief 16, includes a review of specific arbitration proceedings. It thus neither polices nor monitors the results of these arbitrations for possible misapplications of securities laws or for indications of how investors fare in these proceedings. Given, in fact, the present constraints on the Commission's resources in this time of market expansion, see General Accounting Office, Report to the Chairman, Subcommittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Energy and Commerce: Securities Regulation — Securities and Exchange Commission Oversight of Self-Regulation 60 (Report), it is doubtful whether the Commission could undertake to conduct any such review.[25] Finally, the Court's complacent acceptance of the Commission's oversight is alarming when almost every day brings another example of illegality on Wall Street. See, e. g., N. Y. Times, Jan. 2, p. B6, col. 3. Many of the abuses recently *266 brought to light, it is true, do not deal with the question of the adequacy of SRO arbitration. They, however, do suggest that the industry's self-regulation, of which the SRO arbitration is a part, is not functioning acceptably. See Report 63. Moreover, these abuses have highlighted the difficulty experienced by the Commission, at a time of growth in the securities market and a decrease in the Commission's staff, see to carry out its oversight task. Such inadequacies on the part of the Commission strike at the very heart of the reasoning of the Court, which is content to accept the soothing assurances of the Commission without examining the reality behind them. Indeed, while the amici cite the number of arbitrations of securities disputes as a sign of the success of this in the industry, see Brief for Securities Industry Association, et al. as Amici Curiae 10-11, these statistics have a more portentous meaning. In this era of deregulation, the growth in complaints about the securities industry, many of which find their way to arbitration, parallels the increase in securities violations and suggests a market not adequately controlled by the SROs. See General Accounting Office, Report to the Chairman, Sub-committee on Oversight and Investigation of the House Committee on Energy and Commerce: Statistics on SEC's Enforcement Program 3-4 In such a time, one would expect more, not less, judicial involvement in resolution of securities disputes. III There is, fortunately, a remedy for investors. In part as a result of the Commission's position in this case, Congress has begun to look into the adequacy of the self-regulatory arbitration and the Commission's oversight of the SROs. In a letter dated February 11, Representative Dingell, Chairman of the House Subcommittee on Oversight and Investigations, notified the Chairman of the Commission that the Subcommittee is "conducting an inquiry into the adequacy of the current self-regulatory system and the Commission's *267 oversight thereof in connection with complaints against broker-dealers for securities-law violations." Letter, p. 1, enclosed with Letter from Theodore G. Eppenstein, counsel for respondents, to Joseph F. Spaniol, Jr., Clerk of this Court Representative Dingell noted that his Subcommittee was "particularly concerned about increasing numbers of complaints in connection with churning and violations of suitability requirements, as well as complaints that arbitration procedures are rife with conflicts of interest (since the arbitrators are peers of the brokerage firm being sued) and are inadequate to enforce the statutory rights of customers against broker-dealers." To justify this inquiry, he cited several well-publicized examples of abuse of investors by securities-industry personnel and a General Accounting Office report on the increase in securities-law violations by brokers that went undetected by the SROs. In concluding the letter, Representative Dingell expressed his surprise at the Commission's position in the present case. In his view, that position was at odds with the one the Commission consistently had taken before the Subcommittee, which stressed the limitations on the Commission's authority over the SROs in general, and over arbitrations in particular. Thus, there is hope that Congress will give investors the relief that the Court denies them today. In the meantime, the Court leaves lower courts with some authority, albeit limited, to protect investors before Congress acts. Courts should take seriously their duty to review the results of arbitration to the extent possible under the Arbitration Act. As we explained in Motors "courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds `for the revocation of any contract.' " quoting 9 U.S. C. 2. Indeed, in light of today's decision compelling the enforcement of predispute arbitration agreements, it is likely *268 that investors will be inclined, more than ever, to bring complaints to federal courts that arbitrators were partial or acted in "manifest disregard" of the securities laws. See Brown, Shell, & Tyson 36. It is thus ironic that the Court's decision, no doubt animated by its desire to rid the federal courts of these suits, actually may increase litigation about arbitration. I therefore respectfully dissent in part. JUSTICE STEVENS, concurring in part and dissenting in part. Gaps in the law must, of course, be filled by judicial construction. But after a statute has been construed, either by this Court or by a consistent course of decision by other federal judges and agencies, it acquires a meaning that should be as clear as if the judicial gloss had been drafted by the Congress itself. This position reflects both respect for Congress' role, see Boys Market, v. Retail Clerks, and the compelling need to preserve the courts' limited resources, see B. Cardozo, The Nature of the Judicial Process 149 (1921). During the 32 years immediately following this Court's decision in each of the eight Circuits that addressed the issue concluded that the holding of Wilko was fully applicable to claims arising under the Securities Exchange Act of 1934.[1] See ante, at 8, n. 6 (opinion of BLACKMUN, J.). This longstanding interpretation[2] creates a strong presumption, in my view, that any mistake *269 that the courts may have made in interpreting the statute is best remedied by the Legislative, not the Judicial, Branch. The history set forth in Part I of JUSTICE BLACKMUN's opinion adds special force to that presumption in this case. For this reason, I respectfully dissent from the portion of the Court's judgment that holds Wilko inapplicable to the 1934 Act. Like JUSTICE BLACKMUN, however, I join Parts I, II, and IV of the Court's opinion.

Justice Blackmun

dissenting

Duquesne Light Co. v. Barasch

https://www.courtlistener.com/opinion/112169/duquesne-light-co-v-barasch/

https://www.courtlistener.com/api/rest/v3/clusters/112169/

1988-019

The Court, I fear, because of what it regards as the investment of time in having this case argued and briefed, is strong-arming the finality concept and finding a Cox exception that does not exist. We have jurisdiction, under 28 U.S. C. § 1257, only if there is a "final judgment" by the "highest court of a State" in which a decision could be had. To be sure, we have interpreted § 1257 somewhat flexibly to the effect that the finality requirement is satisfied in four discrete situations despite the need of further proceedings in the state courts: Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 477 (1975). *318 The Court here concludes that this case falls within the first of the four Cox exceptions ("the outcome of further proceedings preordained," id., at 479). With all respect, I disagree, for this case concerns rates, and there is no rate order whatsoever before this Court. The Supreme Court of Pennsylvania invalidated the rate orders set by the Pennsylvania Commission, and remanded the cases for further ratemaking. The Court deludes itself when it speaks of preordination of the Commission's further action. New rates will be set, based upon factors we do not as yet know, and only then will a final judgment possibly emerge in due course. I therefore would dismiss the appeal for want of the final judgment that § 1257 requires.

The Court, I fear, because of what it regards as the investment of time in having this case argued and briefed, is strong-arming the finality concept and finding a Cox exception that does not exist. We have jurisdiction, under 28 U.S. C. 1257, only if there is a "final judgment" by the "highest court of a State" in which a decision could be had. To be sure, we have interpreted 1257 somewhat flexibly to the effect that the finality requirement is satisfied in four discrete situations despite the need of further proceedings in the state courts: Cox Broadcasting *318 The Court here concludes that this case falls within the first of the four Cox exceptions ("the outcome of further proceedings preordained," ). With all respect, I disagree, for this case concerns rates, and there is no rate order whatsoever before this Court. The Supreme Court of Pennsylvania invalidated the rate orders set by the Pennsylvania Commission, and remanded the cases for further ratemaking. The Court deludes itself when it speaks of preordination of the Commission's further action. New rates will be set, based upon factors we do not as yet know, and only then will a final judgment possibly emerge in due course. I therefore would dismiss the appeal for want of the final judgment that 1257 requires.

Justice Blackmun

majority

West v. Atkins

https://www.courtlistener.com/opinion/112116/west-v-atkins/

https://www.courtlistener.com/api/rest/v3/clusters/112116/

1987-126

This case presents the question whether a physician who is under contract with the State to provide medical services to inmates at a state-prison hospital on a part-time basis acts "under color of state law," within the meaning of 42 U.S. C. § 1983, when he treats an inmate. I Petitioner, Quincy West, tore his left Achilles tendon in 1983 while playing volleyball at Odom Correctional Center, the Jackson, N. C., state prison in which he was incarcerated. A physician under contract to provide medical care to Odom inmates examined petitioner and directed that he be *44 transferred to Raleigh for orthopedic consultation at Central Prison Hospital, the acute-care medical facility operated by the State for its more than 17,500 inmates. Central Prison Hospital has one full-time staff physician, and obtains additional medical assistance under "Contracts for Professional Services" between the State and area physicians. Respondent, Samuel Atkins, M. D., a private physician, provided orthopedic services to inmates pursuant to one such contract. Under it, Doctor Atkins was paid approximately $52,000 annually to operate two "clinics" each week at Central Prison Hospital, with additional amounts for surgery.[1] Over a period of several months, he treated West's injury by placing his leg in a series of casts. West alleges that although the doctor acknowledged that surgery would be necessary, he refused to schedule it, and that he eventually discharged West while his ankle was still swollen and painful, and his movement still impeded. Because West was a prisoner in "close custody," he was not free to employ or elect to see a different physician of his own choosing.[2] *45 Pursuant to 42 U.S. C. § 1983,[3] West, proceeding pro se, commenced this action against Doctor Atkins[4] in the United States District Court for the Eastern District of North Carolina for violation of his Eighth Amendment right to be free from cruel and unusual punishment.[5] West alleged that Atkins was deliberately indifferent to his serious medical needs, by failing to provide adequate treatment. Relying on a decision of its controlling court in Calvert v. Sharp, 748 F.2d 861 (CA4 1984), cert. denied, 471 U.S. 1132 (1985), the District Court granted Doctor Atkins' motion for summary judgment. In Calvert, the Fourth Circuit held that a private orthopedic specialist, employed by a nonprofit professional corporation which provided services under contract to the inmates at the Maryland House of Corrections *46 and the Maryland Penitentiary, did not act "under color of state law," a jurisdictional requisite for a § 1983 action. Because Doctor Atkins was a "contract physician," the District Court concluded that he, too, was not acting under color of state law when he treated West's injury. App. 37. A panel of the United States Court of Appeals for the Fourth Circuit vacated the District Court's judgment. 799 F.2d 923 (1986). Rather than considering if Calvert could be distinguished, the panel remanded the case to the District Court for an assessment whether the record permitted a finding of deliberate indifference to a serious medical need, a showing necessary for West ultimately to prevail on his Eighth Amendment claim. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). On en banc rehearing, however, a divided Court of Appeals affirmed the District Court's dismissal of West's complaint. 815 F.2d 993 (1987). In declining to overrule its decision in Calvert, the majority concluded: "Thus the clear and practicable principle enunciated by the Supreme Court [in Polk County v. [Dodson,] 454 U.S. 312 (1981)], and followed in Calvert, is that a professional, when acting within the bounds of traditional professional discretion and judgment, does not act under color of state law, even where, as in Dodson, the professional is a full-time employee of the state. Where the professional exercises custodial or supervisory authority, which is to say that he is not acting in his professional capacity, then a § 1983 claim can be established, provided the requisite nexus to the state is proved." 815 F.2d, at 995 (footnote omitted). The Court of Appeals acknowledged that this rule limits "the range of professionals subject to an Estelle action." Ibid.[6] *47 The dissent in the Court of Appeals offered three grounds for holding that service rendered by a prison doctor — whether a permanent member of a prison medical staff, or under limited contract with the prison — constitutes action under color of state law for purposes of § 1983. First, the dissent concluded that prison doctors are as much "state actors" as are other prison employees, finding no significant difference between Doctor Atkins and the physician-employees assumed to be state actors in Estelle, and in O'Connor v. Donaldson, 422 U.S. 563 (1975). See 815 F.2d, at 997-998. Second, the dissent concluded that the "public function" rationale applied because, in the prison context, medical care is within "the exclusive prerogative of the State," in that the State is obligated to provide medical services for its inmates and has complete control over the circumstances and sources of a prisoner's medical treatment. Id., at 998-999, citing Blum v. Yaretsky, 457 U.S. 991, 1011 (1982). Finally, the dissent reasoned that the integral role the prison physician plays within the prison medical system qualifies his actions as under color of state law. 815 F.2d, at 999, citing United States v. Price, 383 U.S. 787, 794 (1966) ("[W]illful participant in joint activity with the State or its agents" may be liable under § 1983); Lugar v. Edmondson Oil Co., 457 U.S. 922, 931-932 (1982); and Tower v. Glover, 467 U.S. 914 (1984). The Fourth Circuit's ruling conflicts with decisions of the Court of Appeals for the Eleventh Circuit, Ancata v. Prison Health Services, Inc., 769 F.2d 700 (1985), and Ort v. Pinchback, 786 F.2d 1105 (1986), which are to the effect that a physician who contracts with the State to provide medical care to prison inmates, even if employed by a private entity, acts under color of state law for purposes of § 1983.[7] We *48 granted certiorari to resolve the conflict. 484 U.S. 912 (1987). II To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1981) (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331 (1986)); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978). Petitioner West sought to fulfill the first requirement by alleging a violation of his rights secured by the Eighth Amendment under Estelle v. Gamble, 429 U.S. 97 (1976). There the Court held that deliberate indifference to a prisoner's serious medical needs, whether by a prison doctor or a prison guard, is prohibited by the Eighth Amendment. Id., at 104-105. The adequacy of West's allegation and the sufficiency of his showing on this element of his § 1983 cause of action are not contested here.[8] The only issue before *49 us is whether petitioner has established the second essential element — that respondent acted under color of state law in treating West's injury. A The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 313 U.S. 299, 326 (1941). Accord, Monroe v. Pape, 365 U.S. 167, 187 (1961) (adopting Classic standard for purposes of § 1983) (overruled in part on other grounds, Monell v. New York City Dept. of Social Services, 436 U.S. 658, 695-701 (1978)); Polk County v. Dodson, 454 U.S. 312, 317-318 (1981); id., at 329 (dissenting opinion). In Lugar v. Edmondson Oil Co., supra, the Court made clear that if a defendant's conduct satisfies the state-action requirement of the Fourteenth Amendment, "that conduct [is] also action under color of state law and will support a suit under § 1983." Id., at 935. Accord, Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982); United States v. Price, 383 U. S., at 794, n. 7. In such circumstances, the defendant's alleged infringement of the plaintiff's federal rights is "fairly attributable to the State." Lugar, 457 U. S., at 937. To constitute state action, "the deprivation must be caused by the exercise of some right or privilege created by the State . . . or by a person for whom the State is responsible," and "the party charged with the deprivation must be a person who may fairly be said to be a state actor." Ibid. "[S]tate employment is generally sufficient to render the defendant a state actor." Id., at 936, n. 18; see id., at 937. It is firmly *50 established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State. See Monroe v. Pape, 365 U. S., at 172. Thus, generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law. See, e. g., Parratt v. Taylor, 451 U. S., at 535-536; Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970). See also Flagg Bros., Inc. v. Brooks, 436 U. S., at 157, n. 5. Indeed, Polk County v. Dodson, relied upon by the Court of Appeals, is the only case in which this Court has determined that a person who is employed by the State and who is sued under § 1983 for abusing his position in the performance of his assigned tasks was not acting under color of state law. The Court held that "a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." 454 U.S., at 325. In this capacity, the Court noted, a public defender differs from the typical government employee and state actor. While performing his duties, the public defender retains all of the essential attributes of a private attorney, including, most importantly, his "professional independence," which the State is constitutionally obliged to respect. Id., at 321-322. A criminal lawyer's professional and ethical obligations require him to act in a role independent of and in opposition to the State. Id., at 318-319, 320. The Court accordingly concluded that when representing an indigent defendant in a state criminal proceeding, the public defender does not act under color of state law for purposes of § 1983 because he "is not acting on behalf of the State; he is the State's adversary." Id., at 323, n. 13. See also Lugar v. Edmondson Oil Co., 457 U. S., at 936, n. 18. B We disagree with the Court of Appeals and respondent that Polk County dictates a conclusion that respondent did *51 not act under color of state law in providing medical treatment to petitioner. In contrast to the public defender, Doctor Atkins' professional and ethical obligation to make independent medical judgments did not set him in conflict with the State and other prison authorities. Indeed, his relationship with other prison authorities was cooperative. "Institutional physicians assume an obligation to the mission that the State, through the institution, attempts to achieve." Polk County, 454 U. S., at 320. The Manual governing prison health care in North Carolina's institutions, which Doctor Atkins was required to observe, declares: "The provision of health care is a joint effort of correctional administrators and health care providers, and can be achieved only through mutual trust and cooperation."[9] Similarly, the American Medical Association Standards for Health Services in Prisons (1979) provide that medical personnel and other prison officials are to act in "close cooperation and coordination" in a "joint effort." Preface, at i; Standard 102, and Discussion. Doctor Atkins' professional obligations certainly did not oblige him to function as "the State's adversary." Polk County, 454 U. S., at 323, n. 13. We thus find the proffered analogy between respondent and the public defender in Polk County unpersuasive. Of course, the Court of Appeals did not perceive the adversarial role the defense lawyer plays in our criminal justice system as the decisive factor in the Polk County decision. The court, instead, appears to have misread Polk County as establishing the general principle that professionals do not act under color of state law when they act in their professional capacities. The court considered a professional not to be subject to suit under § 1983 unless he was exercising "custodial or supervisory" authority. 815 F.2d, at 995. To the extent this Court in Polk County relied on the fact that the public defender is a "professional" in concluding that he *52 was not engaged in state action, the case turned on the particular professional obligation of the criminal defense attorney to be an adversary of the State, not on the independence and integrity generally applicable to professionals as a class. Indeed, the Court of Appeals' reading would be inconsistent with cases, decided before and since Polk County, in which this Court either has identified professionals as state actors, see, e. g., Tower v. Glover, 467 U.S. 914 (1984) (state public defenders), or has assumed that professionals are state actors in § 1983 suits, see, e. g., Estelle v. Gamble, 429 U.S. 97 (1976) (medical director of state prison who was also the treating physician). See also Youngberg v. Romeo, 457 U.S. 307, 322-323, and n. 30 (1982) (establishing standards to determine whether decisions of "professional" regarding treatment of involuntarily committed can create liability for a due process violation). Defendants are not removed from the purview of § 1983 simply because they are professionals acting in accordance with professional discretion and judgment.[10] *53 The Court of Appeals' approach to determining who is subject to suit under § 1983, wholeheartedly embraced by respondent, cannot be reconciled with this Court's decision in Estelle, which demonstrates that custodial and supervisory functions are irrelevant to an assessment whether the particular action challenged was performed under color of state law. In Estelle, the inmate's Eighth Amendment claim was brought against the physician-employee, Dr. Gray, in his capacity both as treating physician and as medical director of the state prison system. See 429 U.S., at 107. Gray was sued, however, solely on the basis of allegedly substandard medical treatment given to the plaintiff; his supervisory and custodial functions were not at issue. The Court's opinion did not suggest that Gray had not acted under color of state law in treating the inmate.[11] To the contrary, the inference *54 to be drawn from Estelle is that the medical treatment of prison inmates by prison physicians is state action. The Court explicitly held that "indifference . . . manifested by prison doctors in their response to the prisoner's needs . . . states a cause of action under § 1983." Id., at 104-105; see id., at 104, n. 10 (citing with approval Courts of Appeals' decisions holding prison doctors liable for Eighth Amendment claims brought under § 1983 without mention of supervisory and custodial duties). The Court of Appeals' rationale would sharply undermine this holding.[12] C We now make explicit what was implicit in our holding in Estelle: Respondent, as a physician employed by North Carolina to provide medical services to state prison inmates, acted under color of state law for purposes of § 1983 when undertaking his duties in treating petitioner's injury. Such conduct is fairly attributable to the State. The Court recognized in Estelle: "An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." 429 U.S., at 103. In light of this, the Court held that the State has a constitutional obligation, under the Eighth Amendment, to provide adequate medical care to those whom it has incarcerated. Id., at 104. See also Spicer v. Williamson, 191 N. C. 487, 490, 132 S.E. 291, 293 (1926) (common law requires *55 North Carolina to provide medical care to its prison inmates), cited in Estelle, 429 U. S., at 104, n. 9. North Carolina employs physicians, such as respondent, and defers to their professional judgment, in order to fulfill this obligation. By virtue of this relationship, effected by state law, Doctor Atkins is authorized and obliged to treat prison inmates, such as West.[13] He does so "clothed with the authority of state law." United States v. Classic, 313 U. S., at 326. He is "a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., 457 U. S., at 937. It is only those physicians authorized by the State to whom the inmate may turn. Under state law, the only medical care West could receive for his injury was that provided by the State. If Doctor Atkins misused his power by demonstrating deliberate indifference to West's serious medical needs, the resultant deprivation was caused, in the sense relevant for state-action inquiry, by the State's exercise of its right to punish West by incarceration and to deny him a venue independent of the State to obtain needed medical care. The fact that the State employed respondent pursuant to a contractual arrangement that did not generate the same benefits or obligations applicable to other "state employees" does not alter the analysis. It is the physician's function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed *56 to the State. Whether a physician is on the state payroll or is paid by contract, the dispositive issue concerns the relationship among the State, the physician, and the prisoner. Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State's prisoners of the means to vindicate their Eighth Amendment rights.[14] The State bore an affirmative obligation to provide adequate medical care to West; the State delegated that function to respondent Atkins; and respondent voluntarily assumed that obligation by contract. Nor does the fact that Doctor Atkins' employment contract did not require him to work exclusively for the prison make him any less a state actor than if he performed those duties as a full-time, permanent member of the state prison medical staff. It is the physician's function while working for the State, not the amount of time he spends in performance of those duties or the fact that he may be employed by others to perform similar duties, that determines whether he is acting under color of state law.[15] In the State's employ, respondent *57 worked as a physician at the prison hospital fully vested with state authority to fulfill essential aspects of the duty, placed on the State by the Eighth Amendment and state law, to provide essential medical care to those the State had incarcerated. Doctor Atkins must be considered to be a state actor. III For the reasons stated above, we conclude that respondent's delivery of medical treatment to West was state action fairly attributable to the State, and that respondent therefore acted under color of state law for purposes of § 1983. Accordingly, we reverse the judgment of the Court of Appeals *58 and remand the case for further proceedings consistent with this opinion. It is so ordered. JUSTICE SCALIA, concurring in part and concurring in the judgment.

This case presents the question whether a physician who is under contract with the State to provide medical services to inmates at a state-prison hospital on a part-time basis acts "under color of state law," within the meaning of 42 U.S. C. 1983, when he treats an inmate. I Petitioner, Quincy West, tore his left Achilles tendon in 1983 while playing volleyball at Odom Correctional Center, the Jackson, N. C., state prison in which he was incarcerated. A physician under contract to provide medical care to Odom inmates examined petitioner and directed that he be *44 transferred to Raleigh for orthopedic consultation at Central Prison Hospital, the acute-care medical facility operated by the State for its more than 17,500 inmates. Central Prison Hospital has one full-time staff physician, and obtains additional medical assistance under "Contracts for Professional Services" between the State and area physicians. Respondent, Samuel Atkins, M. D., a private physician, provided orthopedic services to inmates pursuant to one such contract. Under it, Doctor Atkins was paid approximately $52,000 annually to operate two "clinics" each week at Central Prison Hospital, with additional amounts for surgery.[1] Over a period of several months, he treated West's injury by placing his leg in a series of casts. West alleges that although the doctor acknowledged that surgery would be necessary, he refused to schedule it, and that he eventually discharged West while his ankle was still swollen and painful, and his movement still impeded. Because West was a prisoner in "close custody," he was not free to employ or elect to see a different physician of his own choosing.[2] *45 Pursuant to 42 U.S. C. 1983,[3] West, proceeding pro se, commenced this action against Doctor Atkins[4] in the United States District Court for the Eastern District of North Carolina for violation of his Eighth Amendment right to be free from cruel and unusual punishment.[5] West alleged that Atkins was deliberately indifferent to his serious medical needs, by failing to provide adequate treatment. Relying on a decision of its controlling court in cert. denied, the District Court granted Doctor Atkins' motion for summary judgment. In Calvert, the Fourth Circuit held that a private orthopedic specialist, employed by a nonprofit professional corporation which provided services under contract to the inmates at the Maryland House of Corrections *46 and the Maryland Penitentiary, did not act "under color of state law," a jurisdictional requisite for a 1983 action. Because Doctor Atkins was a "contract physician," the District Court concluded that he, too, was not acting under color of state law when he treated West's injury. App. 37. A panel of the United States Court of Appeals for the Fourth Circuit vacated the District Court's judgment. Rather than considering if Calvert could be distinguished, the panel remanded the case to the District Court for an assessment whether the record permitted a finding of deliberate indifference to a serious medical need, a showing necessary for West ultimately to prevail on his Eighth Amendment claim. See On en banc rehearing, however, a divided Court of Appeals affirmed the District Court's dismissal of West's complaint. In declining to overrule its decision in Calvert, the majority concluded: "Thus the clear and practicable principle enunciated by the Supreme Court [in Polk ], and followed in Calvert, is that a professional, when acting within the bounds of traditional professional discretion and judgment, does not act under color of state law, even where, as in Dodson, the professional is a full-time employee of the state. Where the professional exercises custodial or supervisory authority, which is to say that he is not acting in his professional capacity, then a 1983 claim can be established, provided the requisite nexus to the state is proved." The Court of Appeals acknowledged that this rule limits "the range of professionals subject to an action." [6] *47 The dissent in the Court of Appeals offered three grounds for holding that service rendered by a prison doctor — whether a permanent member of a prison medical staff, or under limited contract with the prison — constitutes action under color of state law for purposes of 1983. First, the dissent concluded that prison doctors are as much "state actors" as are other prison employees, finding no significant difference between Doctor Atkins and the physician-employees assumed to be state actors in and in See -998. Second, the dissent concluded that the "public function" rationale applied because, in the prison context, medical care is within "the exclusive prerogative of the State," in that the State is obligated to provide medical services for its inmates and has complete control over the circumstances and sources of a prisoner's medical treatment. citing Finally, the dissent reasoned that the integral role the prison physician plays within the prison medical system qualifies his actions as under color of state citing United ("[W]illful participant in joint activity with the State or its agents" may be liable under 1983); ; and The Fourth Circuit's ruling conflicts with decisions of the Court of Appeals for the Eleventh Circuit, and which are to the effect that a physician who contracts with the State to provide medical care to prison inmates, even if employed by a private entity, acts under color of state law for purposes of 1983.[7] We *48 granted certiorari to resolve the conflict. II To state a claim under 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state ); Flagg Bros., Petitioner West sought to fulfill the first requirement by alleging a violation of his rights secured by the Eighth Amendment under There the Court held that deliberate indifference to a prisoner's serious medical needs, whether by a prison doctor or a prison guard, is prohibited by the Eighth Amendment. at -105. The adequacy of West's allegation and the sufficiency of his showing on this element of his 1983 cause of action are not contested here.[8] The only issue before *49 us is whether petitioner has established the second essential element — that respondent acted under color of state law in treating West's injury. A The traditional definition of acting under color of state law requires that the defendant in a 1983 action have exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state " United Accord, (adopting standard for purposes of 1983) ); Polk ; In the Court made clear that if a defendant's conduct satisfies the state-action requirement of the Fourteenth Amendment, "that conduct [is] also action under color of state law and will support a suit under 1983." Accord, ; United 383 U. S., at n. 7. In such circumstances, the defendant's alleged infringement of the plaintiff's federal rights is "fairly attributable to the State." To constitute state action, "the deprivation must be caused by the exercise of some right or privilege created by the State or by a person for whom the State is responsible," and "the party charged with the deprivation must be a person who may fairly be said to be a state actor." "[S]tate employment is generally sufficient to render the defendant a state actor." ; see It is firmly *50 established that a defendant in a 1983 suit acts under color of state law when he abuses the position given to him by the State. See Thus, generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state See, e. g., 451 U. S., at -536; Adickes v. S. H. Kress & See also Flagg Bros., n. 5. Indeed, Polk relied upon by the Court of Appeals, is the only case in which this Court has determined that a person who is employed by the State and who is sued under 1983 for abusing his position in the performance of his assigned tasks was not acting under color of state The Court held that "a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." In this capacity, the Court noted, a public defender differs from the typical government employee and state actor. While performing his duties, the public defender retains all of the essential attributes of a private attorney, including, most importantly, his "professional independence," which the State is constitutionally obliged to respect. A criminal lawyer's professional and ethical obligations require him to act in a role independent of and in opposition to the State. The Court accordingly concluded that when representing an indigent defendant in a state criminal proceeding, the public defender does not act under color of state law for purposes of 1983 because he "is not acting on behalf of the State; he is the State's adversary." See also 457 U. S., B We disagree with the Court of Appeals and respondent that Polk County dictates a conclusion that respondent did *51 not act under color of state law in providing medical treatment to petitioner. In contrast to the public defender, Doctor Atkins' professional and ethical obligation to make independent medical judgments did not set him in conflict with the State and other prison authorities. Indeed, his relationship with other prison authorities was cooperative. "Institutional physicians assume an obligation to the mission that the State, through the institution, attempts to achieve." Polk County, The Manual governing prison health care in North Carolina's institutions, which Doctor Atkins was required to observe, declares: "The provision of health care is a joint effort of correctional administrators and health care providers, and can be achieved only through mutual trust and cooperation."[9] Similarly, the American Medical Association Standards for Health Services in Prisons (1979) provide that medical personnel and other prison officials are to act in "close cooperation and coordination" in a "joint effort." Preface, at i; Standard 102, and Discussion. Doctor Atkins' professional obligations certainly did not oblige him to function as "the State's adversary." Polk County, 454 U. S., We thus find the proffered analogy between respondent and the public defender in Polk County unpersuasive. Of course, the Court of Appeals did not perceive the adversarial role the defense lawyer plays in our criminal justice system as the decisive factor in the Polk County decision. The court, instead, appears to have misread Polk County as establishing the general principle that professionals do not act under color of state law when they act in their professional capacities. The court considered a professional not to be subject to suit under 1983 unless he was exercising "custodial or supervisory" To the extent this Court in Polk County relied on the fact that the public defender is a "professional" in concluding that he *52 was not engaged in state action, the case turned on the particular professional obligation of the criminal defense attorney to be an adversary of the State, not on the independence and integrity generally applicable to professionals as a class. Indeed, the Court of Appeals' reading would be inconsistent with cases, decided before and since Polk County, in which this Court either has identified professionals as state actors, see, e. g., or has assumed that professionals are state actors in 1983 suits, see, e. g., See also Defendants are not removed from the purview of 1983 simply because they are professionals acting in accordance with professional discretion and judgment.[10] *53 The Court of Appeals' approach to determining who is subject to suit under 1983, wholeheartedly embraced by respondent, cannot be reconciled with this Court's decision in which demonstrates that custodial and supervisory functions are irrelevant to an assessment whether the particular action challenged was performed under color of state In the inmate's Eighth Amendment claim was brought against the physician-employee, Dr. Gray, in his capacity both as treating physician and as medical director of the state prison system. See Gray was sued, however, solely on the basis of allegedly substandard medical treatment given to the plaintiff; his supervisory and custodial functions were not at issue. The Court's opinion did not suggest that Gray had not acted under color of state law in treating the inmate.[11] To the contrary, the inference *54 to be drawn from is that the medical treatment of prison inmates by prison physicians is state action. The Court explicitly held that "indifference manifested by prison doctors in their response to the prisoner's needs states a cause of action under 1983." at -105; see at n. 10 (citing with approval Courts of Appeals' decisions holding prison doctors liable for Eighth Amendment claims brought under 1983 without mention of supervisory and custodial duties). The Court of Appeals' rationale would sharply undermine this holding.[12] C We now make explicit what was implicit in our holding in : Respondent, as a physician employed by North Carolina to provide medical services to state prison inmates, acted under color of state law for purposes of 1983 when undertaking his duties in treating petitioner's injury. Such conduct is fairly attributable to the State. The Court recognized in : "An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." In light of this, the Court held that the State has a constitutional obligation, under the Eighth Amendment, to provide adequate medical care to those whom it has incarcerated. at See also cited in 429 U. S., at n. 9. North Carolina employs physicians, such as respondent, and defers to their professional judgment, in order to fulfill this obligation. By virtue of this relationship, effected by state law, Doctor Atkins is authorized and obliged to treat prison inmates, such as West.[13] He does so "clothed with the authority of state " United 313 U. S., at He is "a person who may fairly be said to be a state actor." It is only those physicians authorized by the State to whom the inmate may turn. Under state law, the only medical care West could receive for his injury was that provided by the State. If Doctor Atkins misused his power by demonstrating deliberate indifference to West's serious medical needs, the resultant deprivation was caused, in the sense relevant for state-action inquiry, by the State's exercise of its right to punish West by incarceration and to deny him a venue independent of the State to obtain needed medical care. The fact that the State employed respondent pursuant to a contractual arrangement that did not generate the same benefits or obligations applicable to other "state employees" does not alter the analysis. It is the physician's function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed *56 to the State. Whether a physician is on the state payroll or is paid by contract, the dispositive issue concerns the relationship among the State, the physician, and the prisoner. Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State's prisoners of the means to vindicate their Eighth Amendment rights.[14] The State bore an affirmative obligation to provide adequate medical care to West; the State delegated that function to respondent Atkins; and respondent voluntarily assumed that obligation by contract. Nor does the fact that Doctor Atkins' employment contract did not require him to work exclusively for the prison make him any less a state actor than if he performed those duties as a full-time, permanent member of the state prison medical staff. It is the physician's function while working for the State, not the amount of time he spends in performance of those duties or the fact that he may be employed by others to perform similar duties, that determines whether he is acting under color of state [15] In the State's employ, respondent *57 worked as a physician at the prison hospital fully vested with state authority to fulfill essential aspects of the duty, placed on the State by the Eighth Amendment and state law, to provide essential medical care to those the State had incarcerated. Doctor Atkins must be considered to be a state actor. III For the reasons stated above, we conclude that respondent's delivery of medical treatment to West was state action fairly attributable to the State, and that respondent therefore acted under color of state law for purposes of 1983. Accordingly, we reverse the judgment of the Court of Appeals *58 and remand the case for further proceedings consistent with this opinion. It is so ordered. JUSTICE SCALIA, concurring in part and concurring in the judgment.

Justice Marshall

dissenting

Texas v. White

https://www.courtlistener.com/opinion/109332/texas-v-white/

https://www.courtlistener.com/api/rest/v3/clusters/109332/

1975-012

Only by misstating the holding of Chambers v. Maroney, 399 U.S. 42 (1970), can the Court make that case appear dispositive of this one. The Court in its brief per curiam opinion today extends Chambers to a clearly distinguishable factual setting, without having afforded the opportunity for full briefing and oral argument. I respectfully dissent. Chambers did not hold, as the Court suggests, that "police officers with probable cause to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant." Ante, at 68. Chambers simply held that to be the rule when it is reasonable to take the car to the station house in the first place. In Chambers the Court took as its departure point this Court's holding in Carroll v. United States, 267 U.S. 132 (1925): "Carroll . . . holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible." 399 U.S., at 51. Carroll, however, did not dispose of Chambers, for in Chambers, as in this case, the police did not conduct an "immediate search," but rather seized the car and took it to the station house before searching it. The Court in Chambers went on to hold that once the car was *70 legitimately at the station house a prompt search could be conducted. But in recognition of the need to justify the seizure and removal of the car to the station house, the Court added: "It was not unreasonable in this case to take the car to the station house. All occupants in the car were arrested in a dark parking lot in the middle of the night. A careful search at that point was impractical and perhaps not safe for the officers, and it would serve the owner's convenience and the safety of his car to have the vehicle and the keys together at the station house." Id., at 52 n. 10. In this case, the arrest took place at 1:30 in the afternoon, and there is no indication that an immediate search would have been either impractical or unsafe for the arresting officers. It may be, of course, that respondent preferred to have his car brought to the station house, but if his convenience was the concern of the police they should have consulted with him. Surely a seizure cannot be justified on the sole ground that a citizen might have consented to it as a matter of convenience. Since, then, there was no apparent justification for the warrantless removal of respondent's car, it is clear that this is a different case from Chambers. It might be argued that the taking of respondent's car to the police station was neither more of a seizure, nor in practical terms more of an intrusion, than would have been involved in an immediate at-the-scene search, which was clearly permissible. Such a contention may well be substantial enough to warrant full briefing and argument, but it is not so clearly meritorious as to warrant adoption in the summary fashion in which the Court proceeds. Indeed, a reading of Chambers itself suggests that this contention is without merit. *71 In Chambers the Court considered and rejected the argument that Carroll was wrong in permitting a warrantless search of an automobile—that the immobilization of a car until a search warrant is obtained is a "lesser" intrusion and should therefore be the outer bounds of what is permitted. The Court noted that "which is the `greater' and which the `lesser' intrusion is itself a debatable question," 399 U.S., at 51, and concluded: "For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant." Id., at 52. In the Court's view, then, the intrusion involved in initially seizing a car on the highway and holding it for the short time required to seek a warrant is so substantial as to be constitutionally indistinguishable from the intrusion involved in a search of the vehicle. But the Court did not stop with that observation. It went on to note that once a car is legitimately brought to the station house, the additional intrusion involved in simply immobilizing the car until a warrant can be sought is no less significant than that involved in a station house search: "[T]here is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained." Ibid. It was because such temporary seizures were deemed no less intrusive than searches themselves that Chambers approved searches when temporary seizures would have been justified. In short, the basic premise of Chambers' conclusion that seizures pending the seeking of a warrant are not constitutionally preferred to warrantless *72 searches was that temporary seizures are themselves intrusive. That same premise suggests that the seizure and removal of respondent's car in this case were quite apart from the subsequent search, an intrusion of constitutional dimension that must be independently justified.[*] The seizure and removal here were not for the purpose of immobilizing the car until a warrant could be secured, nor were they for the purpose of facilitating a safe and thorough search of the car. In the absence of any other justification, I would hold the seizure of petitioner's car unlawful and exclude the evidence seized in the subsequent search. I would have denied the petition for certiorari, but now that the writ has been granted I would affirm the judgment of the Court of Criminal Appeals, or at least set the case for oral argument. In any event, it should be clear to the court below that nothing this Court does today precludes it from reaching the result it did under applicable state law. See Oregon v. Hass, 420 U.S. 714, 726 (1975) (MARSHALL, J., dissenting).

Only by misstating the holding of can the Court make that case appear dispositive of this one. The Court in its brief per curiam opinion today extends Chambers to a clearly distinguishable factual setting, without having afforded the opportunity for full briefing and oral argument. I respectfully dissent. Chambers did not hold, as the Court suggests, that "police officers with probable cause to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant." Ante, at 68. Chambers simply held that to be the rule when it is reasonable to take the car to the station house in the first place. In Chambers the Court took as its departure point this Court's holding in : "Carroll holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible." Carroll, however, did not dispose of Chambers, for in Chambers, as in this case, the police did not conduct an "immediate search," but rather seized the car and took it to the station house before searching it. The Court in Chambers went on to hold that once the car was *70 legitimately at the station house a prompt search could be conducted. But in recognition of the need to justify the seizure and removal of the car to the station house, the Court added: "It was not unreasonable in this case to take the car to the station house. All occupants in the car were arrested in a dark parking lot in the middle of the night. A careful search at that point was impractical and perhaps not safe for the officers, and it would serve the owner's convenience and the safety of his car to have the vehicle and the keys together at the station house." n. 10. In this case, the arrest took place at 1:30 in the afternoon, and there is no indication that an immediate search would have been either impractical or unsafe for the arresting officers. It may be, of course, that respondent preferred to have his car brought to the station house, but if his convenience was the concern of the police they should have consulted with him. Surely a seizure cannot be justified on the sole ground that a citizen might have consented to it as a matter of convenience. Since, then, there was no apparent justification for the warrantless removal of respondent's car, it is clear that this is a different case from Chambers. It might be argued that the taking of respondent's car to the police station was neither more of a seizure, nor in practical terms more of an intrusion, than would have been involved in an immediate at-the-scene search, which was clearly permissible. Such a contention may well be substantial enough to warrant full briefing and argument, but it is not so clearly meritorious as to warrant adoption in the summary fashion in which the Court proceeds. Indeed, a reading of Chambers itself suggests that this contention is without merit. *71 In Chambers the Court considered and rejected the argument that Carroll was wrong in permitting a warrantless search of an automobile—that the immobilization of a car until a search warrant is obtained is a "lesser" intrusion and should therefore be the outer bounds of what is permitted. The Court noted that "which is the `greater' and which the `lesser' intrusion is itself a debatable question," and concluded: "For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant." In the Court's view, then, the intrusion involved in initially seizing a car on the highway and holding it for the short time required to seek a warrant is so substantial as to be constitutionally indistinguishable from the intrusion involved in a search of the vehicle. But the Court did not stop with that observation. It went on to note that once a car is legitimately brought to the station house, the additional intrusion involved in simply immobilizing the car until a warrant can be sought is no less significant than that involved in a station house search: "[T]here is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained." It was because such temporary seizures were deemed no less intrusive than searches themselves that Chambers approved searches when temporary seizures would have been justified. In short, the basic premise of Chambers' conclusion that seizures pending the seeking of a warrant are not constitutionally preferred to warrantless *72 searches was that temporary seizures are themselves intrusive. That same premise suggests that the seizure and removal of respondent's car in this case were quite apart from the subsequent search, an intrusion of constitutional dimension that must be independently justified.[*] The seizure and removal here were not for the purpose of immobilizing the car until a warrant could be secured, nor were they for the purpose of facilitating a safe and thorough search of the car. In the absence of any other justification, I would hold the seizure of petitioner's car unlawful and exclude the evidence seized in the subsequent search. I would have denied the petition for certiorari, but now that the writ has been granted I would affirm the judgment of the Court of Criminal Appeals, or at least set the case for oral argument. In any event, it should be clear to the court below that nothing this Court does today precludes it from reaching the result it did under applicable state law. See

Justice Breyer

majority

Castillo v. United States

https://www.courtlistener.com/opinion/118373/castillo-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118373/

1999-071

[†] In this case we once again decide whether words in a federal criminal statute create offense elements (determined by a jury) or sentencing factors (determined by a judge). See Jones v. United States, 526 U.S. 227 (1999); AlmendarezTorres v. United States, 523 U.S. 224 (1998). The statute in question, 18 U.S. C. § 924(c) (1988 ed., Supp. V), prohibits the use or carrying of a "firearm" in relation to a crime of violence, and increases the penalty dramatically when the weapon used or carried is, for example, a "machinegun." We conclude that the statute uses the word "machinegun" (and similar words) to state an element of a separate offense. *122 I Petitioners are members of the Branch-Davidian religious sect and are among those who were involved in a violent confrontation with federal agents from the Bureau of Alcohol, Tobacco, and Firearms near Waco, Texas, in 1993. The case before us arises out of an indictment alleging that, among other things, petitioners conspired to murder federal officers. At the time of petitioners' trial, the criminal statute at issue (reprinted in its entirety in the Appendix, infra ) read in relevant part: "(c)(1) Whoever, during and in relation to any crime of violence . . . , uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence . . . , be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle [or a] shortbarreled shotgun to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years." 18 U.S. C. § 924(c)(1) (1988 ed., Supp. V). A jury determined that petitioners had violated this section by, in the words of the trial judge's instruction, "knowingly us[ing] or carr[ying] a firearm during and in relation to" the commission of a crime of violence. App. 29. At sentencing, the judge found that the "firearms" at issue included certain machineguns (many equipped with silencers) and handgrenades that the defendants actually or constructively had possessed. United States v. Branch, Crim. No. W-93—CR-046 (WD Tex., June 21, 1994), reprinted in App. to Pet. for Cert. 119a, 124a—125a. The judge then imposed the statute's mandatory 30-year prison sentence. Id., at 134a. Petitioners appealed. Meanwhile, this Court decided that the word "use" in § 924(c)(1) requires evidence of more than "mere possession." Bailey v. United States, 516 U.S. 137, 143 (1995). The Court of Appeals subsequently held that *123 our decision in Bailey necessitated a remand of the case to determine whether, in Bailey `s stronger sense of "use," petitioners had used "machineguns and other enhancing weapons." United States v. Branch, 91 F.3d 699, 740-741 (CA5 1996). The court also concluded that statutory words such as "machinegun" create sentencing factors, i. e., factors that enhance a sentence, not elements of a separate crime. Id., at 738-740. Hence, it specified that the jury "was not required" to determine whether petitioners used or carried "machineguns" or other enhanced weapons. Id., at 740. Rather, it wrote that "[s]hould the district court find on remand that members of the conspiracy actively employed machineguns, it is free to reimpose the 30-year sentence." Id., at 740-741 (emphasis added). On remand, the District Court resentenced petitioners to 30-year terms of imprisonment based on its weapons-related findings. See App. to Pet. for Cert. 119a. The Court of Appeals affirmed. 179 F.3d 321 (CA5 1999). The Federal Courts of Appeals have different views as to whether the statutory word "machinegun" (and similar words appearing in the version of 18 U.S. C. § 924(c)(1) here at issue) refers to a sentencing factor to be assessed by the trial court or creates a new substantive crime to be determined by the jury. Compare, e. g., United States v. Alborola-Rodriguez, 153 F.3d 1269, 1272 (CA11 1998) (sentencing factor), with United States v. Alerta, 96 F.3d 1230, 1235 (CA9 1996) (element). We granted certiorari to resolve the conflict. II The question before us is whether Congress intended the statutory references to particular firearm types in § 924(c)(1) to define a separate crime or simply to authorize an enhanced penalty. If the former, the indictment must identify the firearm type and a jury must find that element proved beyond a reasonable doubt. If the latter, the matter need not be tried before a jury but may be left for the sentencing *124 judge to decide. As petitioners note, our decision in Jones concluded, in a similar situation, that treating facts that lead to an increase in the maximum sentence as a sentencing factor would give rise to significant constitutional questions. See 526 U.S., at 239-252. Here, even apart from the doctrine of constitutional doubt, our consideration of § 924(c)(1)'s language, structure, context, history, and such other factors as typically help courts determine a statute's objectives, leads us to conclude that the relevant words create a separate substantive crime. First, while the statute's literal language, taken alone, appears neutral, its overall structure strongly favors the "new crime" interpretation. The relevant statutory sentence says: "Whoever, during and in relation to any crime of violence . . . , uses or carries a firearm, shall . . . be sentenced to imprisonment for five years, and if the firearm is a . . . machinegun, . . . to imprisonment for thirty years." § 924(c)(1). On the one hand, one could read the words "during and in relation to a crime of violence" and "uses or carries a firearm" as setting forth two basic elements of the offense, and the subsequent "machinegun" phrase as merely increasing a defendant's sentence in relevant cases. But, with equal ease, by emphasizing the phrase "if the firearm is a . . . ," one can read the language as simply substituting the word "machinegun" for the initial word "firearm"; thereby both incorporating by reference the initial phrases that relate the basic elements of the crime and creating a different crime containing one new element, i. e., the use or carrying of a "machinegun" during and in relation to a crime of violence. The statute's structure clarifies any ambiguity inherent in its literal language. The first part of the opening sentence clearly and indisputably establishes the elements of the basic federal offense of using or carrying a gun during and in relation to a crime of violence. See United States v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999). Congress *125 placed the element "uses or carries a firearm" and the word "machinegun" in a single sentence, not broken up with dashes or separated into subsections. Cf. Jones, supra, at 232-233 (noting that the structure of the carjacking statute—a "principal paragraph" followed by "numbered subsections"—makes it "look" as though the statute sets forth sentencing factors). The next three sentences of § 924(c)(1) (which appear after the sentence quoted above (see Appendix, infra )) refer directly to sentencing: the first to recidivism, the second to concurrent sentences, the third to parole. These structural features strongly suggest that the basic job of the entire first sentence is the definition of crimes and the role of the remaining three is the description of factors (such as recidivism) that ordinarily pertain only to sentencing. We concede that there are two other structural circumstances that suggest a contrary interpretation. The title of the entirety of § 924 is "Penalties"; and in 1998 Congress reenacted § 924(c)(1), separating different parts of the first sentence (and others) into different subsections, see Pub. L. 105— 386, § 1(a)(1), 112 Stat. 3469. In this case, however, the section's title cannot help, for Congress already has determined that at least some portion of § 924, including § 924(c) itself, creates, not penalty enhancements, but entirely new crimes. See S. Rep. No. 98-225, pp. 312-314 (1984) ("Section 924(c) sets out an offense distinct from the underlying felony and is not simply a penalty provision"); see also Busic v. United States, 446 U.S. 398, 404 (1980); Simpson v. United States, 435 U.S. 6, 10 (1978). The title alone does not tell us which are which. Nor can a new postenactment statutory restructuring help us here to determine what Congress intended at the time it enacted the earlier statutory provision that governs this case. See Almendarez-Torres, 523 U. S., at 237 (amendments that, among other things, neither "declare the meaning of earlier law" nor "seek to clarify an earlier enacted general term" fail to provide interpretive guidance). *126 Second, we cannot say that courts have typically or traditionally used firearm types (such as "shotgun" or "machinegun") as sentencing factors, at least not in respect to an underlying "use or carry" crime. See Jones, supra, at 234 ("[S]tatutory drafting occurs against a backdrop . . . of traditional treatment of certain categories of important facts"); see also Almendarez-Torres, supra, at 230 (recidivism "is as typical a sentencing factor as one might imagine"). Traditional sentencing factors often involve either characteristics of the offender, such as recidivism, or special features of the manner in which a basic crime was carried out (e. g., that the defendant abused a position of trust or brandished a gun). See 18 U.S. C. § 3553(a)(1) (providing that a sentencing court "shall" consider "the history and characteristics of the defendant" and "the nature and circumstances of the offense"); see also, e. g., United States Sentencing Commission, Guidelines Manual § 4A1.1 (Nov. 1998) (sentence based in part on defendant's criminal history); § 3B1.3 (upward adjustment for abuse of position of trust); § 5K2.6 (same for use of a dangerous instrumentality). Offender characteristics are not here at issue. And, although one might consider the use of a machinegun, or for that matter a firearm, as a means (or a manner ) in which the offender carried out the more basic underlying crime of violence, the underlying crime of violence is not the basic crime here at issue. Rather, as we have already mentioned, the use or carrying of a firearm is itself a separate substantive crime. See Busic, supra, at 404; Simpson, supra, at 10. The Government argues that, conceptually speaking, one can refer to the use of a machinegun as simply a "metho[d]" of committing the underlying "firearms offense." Brief for United States 23. But the difference between carrying, say, a pistol and carrying a machinegun (or, to mention another factor in the same statutory sentence, a "destructive device," i. e., a bomb) is great, both in degree and kind. And, more importantly, that difference concerns the nature of the element *127 lying closest to the heart of the crime at issue. It is not surprising that numerous gun crimes make substantive distinctions between weapons such as pistols and machineguns. See, e. g., 18 U.S. C. § 922(a)(4) (making it unlawful to "transport in interstate or foreign commerce" any "destructive device," "machine gun," or similar type of weapon unless carrier is licensed or authorized, but making no such prohibition for pistols); § 922(b)(4) (prohibiting the unauthorized sale or delivery of "machine gun[s]" and similar weapons); § 922(o )(1) (making it "unlawful for any person to transfer or possess a machine gun"); § 922(v)(1) (making it illegal "to manufacture, transfer, or possess a semiautomatic assault weapon"). And we do not have any indication that legislatures or judges typically have viewed the difference between using a pistol and using a machinegun as insubstantial. Indeed, the fact that (a) the statute at issue prescribes a mandatory penalty for using or carrying a machinegun that is six times more severe than the punishment for using or carrying a mere "firearm," and (b) at least two Courts of Appeals have interpreted § 924(c)(1) as setting forth a separate "machinegun" element in relevant cases, see Alerta, 96 F. 3d, at 1235; Judicial Committee on Model Jury Instructions for the Eighth Circuit, Manual of Model Criminal Jury Instructions ¶ 6.18.924C (1997 ed.), in L. Sand, J. Siffert, W. Loughlin, & S. Reiss, Modern Federal Jury Instructions: Criminal Pattern Instructions, p. 8-153 (1999), points to the conclusion that the difference between the act of using or carrying a "firearm" and the act of using or carrying a "machinegun" is both substantive and substantial—a conclusion that supports a "separate crime" interpretation. Third, to ask a jury, rather than a judge, to decide whether a defendant used or carried a machinegun would rarely complicate a trial or risk unfairness. Cf. Almendarez-Torres, supra, at 234-235 (pointing to potential unfairness of placing fact of recidivism before jury). As a practical matter, in determining whether a defendant used or carried a "firearm," *128 the jury ordinarily will be asked to assess the particular weapon at issue as well as the circumstances under which it was allegedly used. Furthermore, inasmuch as the prosecution's case under § 924(c) usually will involve presenting a certain weapon (or weapons) to the jury and arguing that the defendant used or carried that weapon during a crime of violence within the meaning of the statute, the evidence is unlikely to enable a defendant to respond both (1) "I did not use or carry any firearm," and (2) "even if I did, it was a pistol, not a machinegun." Hence, a rule of law that makes it difficult to make both claims at the same time to the same decisionmaker (the jury) will not often prejudice a defendant's case. At the same time, a contrary rule—one that leaves the machinegun matter to the sentencing judge—might unnecessarily produce a conflict between the judge and the jury. That is because, under our case law interpreting the statute here at issue, a jury may well have to decide which of several weapons the defendant actively used, rather than passively possessed. See Bailey, 516 U. S., at 143. And, in such a case, the sentencing judge will not necessarily know which "firearm" supports the jury's determination. Under these circumstances, a judge's later, sentencing-related decision that the defendant used the machinegun, rather than, say, the pistol, might conflict with the jury's belief that he actively used the pistol, which factual belief underlay its firearm "use" conviction. Cf. Alerta, supra, at 1234-1235 (in the absence of a specific jury finding regarding the type of weapon that defendant used, it was possible that the jury did not find "use" of a machinegun even though the judge imposed the 30-year mandatory statutory sentence). There is no reason to think that Congress would have wanted a judge's views to prevail in a case of so direct a factual conflict, particularly when the sentencing judge applies a lower standard of proof and when 25 additional years in prison are at stake. *129 Fourth, the Government argues that the legislative history of the statute favors interpreting § 924(c) as setting forth sentencing factors, not elements. It points out that § 924(c), as originally enacted, provided a mandatory minimum prison term of at least one year (up to a maximum of 10 years) where a person (1) "use[d] a firearm to commit any felony," or (2) "carr[ied] a firearm unlawfully during the commission of any felony." Gun Control Act of 1968, § 102, 82 Stat. 1223; see also Omnibus Crime Control Act of 1970, § 13, 84 Stat. 1889. In 1984, Congress amended the law, eliminating the range of permissible penalties, setting a mandatory prison term of five years, and specifying that that term was to be added on top of the prison term related to the underlying "crime of violence," including statutory sentences that imposed certain other weapons-related enhancements. See Comprehensive Crime Control Act of 1984, § 1005(a), 98 Stat. 2138. In 1986, Congress again amended the law by providing for a 10-year mandatory prison term (20 years for subsequent offenses) "if the firearm is a machinegun, or is equipped with a firearm silencer or firearm muffler." Firearms Owners' Protection Act, § 104(a)(2), 100 Stat. 456. In 1988, Congress changed the provision to its here-relevant form. Anti-Drug Abuse Act of 1988, § 6460, 102 Stat. 4373. The Government finds three features of the history surrounding the enactment of the key 1986 version of the statute significant. First, the House Report spoke in terms of a sentence, not an offense. The Report stated, for example, that the relevant bill would create "a new mandatory prison term of ten years for using or carrying a machine gun during and in relation to a crime of violence or a drug trafficking offense for a first offense, and twenty years for a subsequent offense." H. R. Rep. No. 99-495, p. 28 (1986); see also id., at 2 (bill "[p]rovides a mandatory prison term of ten years for using or carrying a machine gun during and in relation to a crime of violence or a drug trafficking offense, and a *130 mandatory twenty years for any subsequent offense"). Second, statements of the bill's sponsors and supporters on the floor of the House also spoke in terms of sentencing, noting, for example, that the proposed law "imposes mandatory prison terms on those [who] would use a machinegun in the commission of a violent offense." 132 Cong. Rec. 3809 (1986) (statement of Rep. Hughes); see also, e. g., id., at 6843 (statement of Rep. Volkmer) (bill "includes stiff mandatory sentences for the use of firearms, including machineguns and silencers, in relation to violent or drug trafficking crimes"); id., at 6850 (statement of Rep. Moore) (machinegun clause "strengthen[s] criminal penalties"); id., at 6856 (statement of Rep. Wirth) (proposed law "would have many benefits, including the expansion of mandatory sentencing to those persons who use a machinegun in the commission of a violent crime"). Third, and similarly, "any discussion suggesting the creation of a new offense" was "[n]oticeably absent" from the legislative record. 91 F.3d, at 739; Brief for United States 36. Insofar as this history may be relevant, however, it does not significantly help the Government. That is because the statute's basic "uses or carries a firearm" provision also dealt primarily with sentencing, its pre-eminent feature consisting of the creation of a new mandatory term of imprisonment additional to that for the underlying crime of violence. Cf. Bailey, supra, at 142 ("Section 924(c)(1) requires the imposition of specified penalties"); Smith v. United States, 508 U.S. 223, 227 (1993) (same). In this context, the absence of "separate offense" statements means little, and the "mandatory sentencing" statements to which the Government points show only that Congress believed that the "machinegun" and "firearm" provisions would work similarly. Indeed, the legislative statements that discuss a new prison term for the act of "us[ing] a machine gun," see, e. g., supra this page, seemingly describe offense conduct, and, thus, argue against (not for ) the Government's position. *131 Fifth and finally, the length and severity of an added mandatory sentence that turns on the presence or absence of a "machinegun" (or any of the other listed firearm types) weighs in favor of treating such offense-related words as referring to an element. Thus, if after considering traditional interpretive factors, we were left genuinely uncertain as to Congress' intent in this regard, we would assume a preference for traditional jury determination of so important a factual matter. Cf. Staples v. United States, 511 U.S. 600, 619, n. 17 (1994) (rule of lenity requires that "ambiguous criminal statute[s] . . . be construed in favor of the accused"); United States v. Granderson, 511 U.S. 39, 54 (1994) (similar); United States v. Bass, 404 U.S. 336, 347 (1971) (same). These considerations, in our view, make this a stronger "separate crime" case than either Jones or AlmendarezTorres —cases in which we were closely divided as to Congress' likely intent. For the reasons stated, we believe that Congress intended the firearm type-related words it used in § 924(c)(1) to refer to an element of a separate, aggravated crime. Accordingly, we reverse the contrary determination of the Court of Appeals and remand the case for proceedings consistent with this opinion. It is so ordered. APPENDIX TO OPINION OF THE COURT "§ 924. Penalties. . . . . . "(c)(1) Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for *132 five years, and if the firearm is a short-barreled rifle [or a] short-barreled shotgun to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to life imprisonment without release. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried. No person sentenced under this subsection shall be eligible for parole during the term of imprisonment imposed herein." 18 U.S. C. § 924(c)(1) (1988 ed., Supp. V) (footnote omitted).

[†] In this case we once again decide whether words in a federal criminal statute create offense elements (determined by a jury) or sentencing factors (determined by a judge). See ; The statute in question, 18 U.S. C. 924(c) (1988 ed., Supp. V), prohibits the use or carrying of a "firearm" in relation to a crime of violence, and increases the penalty dramatically when the weapon used or carried is, for example, a "machinegun." We conclude that the statute uses the word "machinegun" (and similar words) to state an element of a separate offense. *122 I Petitioners are members of the Branch-Davidian religious sect and are among those who were involved in a violent confrontation with federal agents from the Bureau of Alcohol, Tobacco, and Firearms near Waco, Texas, in 1993. The case before us arises out of an indictment alleging that, among other things, petitioners conspired to murder federal officers. At the time of petitioners' trial, the criminal statute at issue (reprinted in its entirety in the Appendix, infra ) read in relevant part: "(c)(1) Whoever, during and in relation to any crime of violence uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle [or a] shortbarreled shotgun to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years." 18 U.S. C. 924(c)(1) (1988 ed., Supp. V). A jury determined that petitioners had violated this section by, in the words of the trial judge's instruction, "knowingly us[ing] or carr[ying] a firearm during and in relation to" the commission of a crime of violence. App. 29. At sentencing, the judge found that the "firearms" at issue included certain machineguns (many equipped with silencers) and handgrenades that the defendants actually or constructively had possessed. United Crim. No. W-93—CR-046 reprinted in App. to Pet. for Cert. 119a, 124a—125a. The judge then imposed the statute's mandatory 30-year prison sentence. at 134a. Petitioners appealed. Meanwhile, this Court decided that the word "use" in 924(c)(1) requires evidence of more than "mere possession." The Court of Appeals subsequently held that *123 our decision in necessitated a remand of the case to determine whether, in `s stronger sense of "use," petitioners had used "machineguns and other enhancing weapons." United The court also concluded that statutory words such as "machinegun" create sentencing factors, i. e., factors that enhance a sentence, not elements of a separate crime. Hence, it specified that the jury "was not required" to determine whether petitioners used or carried "machineguns" or other enhanced weapons. Rather, it wrote that "[s]hould the district court find on remand that members of the conspiracy actively employed machineguns, it is free to reimpose the 30-year sentence." at On remand, the District Court resentenced petitioners to 30-year terms of imprisonment based on its weapons-related findings. See App. to Pet. for Cert. 119a. The Court of Appeals affirmed. The Federal Courts of Appeals have different views as to whether the statutory word "machinegun" (and similar words appearing in the version of 18 U.S. C. 924(c)(1) here at issue) refers to a sentencing factor to be assessed by the trial court or creates a new substantive crime to be determined by the jury. Compare, e. United with United We granted certiorari to resolve the conflict. II The question before us is whether Congress intended the statutory references to particular firearm types in 924(c)(1) to define a separate crime or simply to authorize an enhanced penalty. If the former, the indictment must identify the firearm type and a jury must find that element proved beyond a reasonable doubt. If the latter, the matter need not be tried before a jury but may be left for the sentencing *124 judge to decide. As petitioners note, our decision in concluded, in a similar situation, that treating facts that lead to an increase in the maximum sentence as a sentencing factor would give rise to significant constitutional questions. See -252. Here, even apart from the doctrine of constitutional doubt, our consideration of 924(c)(1)'s language, structure, context, history, and such other factors as typically help courts determine a statute's objectives, leads us to conclude that the relevant words create a separate substantive crime. First, while the statute's literal language, taken alone, appears neutral, its overall structure strongly favors the "new crime" interpretation. The relevant statutory sentence says: "Whoever, during and in relation to any crime of violence uses or carries a firearm, shall be sentenced to imprisonment for five years, and if the firearm is a machinegun, to imprisonment for thirty years." 924(c)(1). On the one hand, one could read the words "during and in relation to a crime of violence" and "uses or carries a firearm" as setting forth two basic elements of the offense, and the subsequent "machinegun" phrase as merely increasing a defendant's sentence in relevant cases. But, with equal ease, by emphasizing the phrase "if the firearm is a" one can read the language as simply substituting the word "machinegun" for the initial word "firearm"; thereby both incorporating by reference the initial phrases that relate the basic elements of the crime and creating a different crime containing one new element, i. e., the use or carrying of a "machinegun" during and in relation to a crime of violence. The statute's structure clarifies any ambiguity inherent in its literal language. The first part of the opening sentence clearly and indisputably establishes the elements of the basic federal offense of using or carrying a gun during and in relation to a crime of violence. See United Congress *125 placed the element "uses or carries a firearm" and the word "machinegun" in a single sentence, not broken up with dashes or separated into subsections. Cf. The next three sentences of 924(c)(1) (which appear after the sentence quoted above (see Appendix, infra )) refer directly to sentencing: the first to recidivism, the second to concurrent sentences, the third to parole. These structural features strongly suggest that the basic job of the entire first sentence is the definition of crimes and the role of the remaining three is the description of factors (such as recidivism) that ordinarily pertain only to sentencin We concede that there are two other structural circumstances that suggest a contrary interpretation. The title of the entirety of 924 is "Penalties"; and in Congress reenacted 924(c)(1), separating different parts of the first sentence (and others) into different subsections, see Pub. L. 5— 386, 1(a)(1), In this case, however, the section's title cannot help, for Congress already has determined that at least some portion of 924, including 924(c) itself, creates, not penalty enhancements, but entirely new crimes. See S. Rep. No. 98-225, pp. 312-314 (1984) ("Section 924(c) sets out an offense distinct from the underlying felony and is not simply a penalty provision"); see also ; The title alone does not tell us which are which. Nor can a new postenactment statutory restructuring help us here to determine what Congress intended at the time it enacted the earlier statutory provision that governs this case. See *126 Second, we cannot say that courts have typically or traditionally used firearm types (such as "shotgun" or "machinegun") as sentencing factors, at least not in respect to an underlying "use or carry" crime. See ; see also Traditional sentencing factors often involve either characteristics of the offender, such as recidivism, or special features of the manner in which a basic crime was carried out (e. that the defendant abused a position of trust or brandished a gun). See 18 U.S. C. 3553(a)(1) (providing that a sentencing court "shall" consider "the history and characteristics of the defendant" and "the nature and circumstances of the offense"); see also, e. United States Sentencing Commission, Guidelines Manual 4A1.1 (sentence based in part on defendant's criminal history); 3B1.3 (upward adjustment for abuse of position of trust); 5K2.6 (same for use of a dangerous instrumentality). Offender characteristics are not here at issue. And, although one might consider the use of a machinegun, or for that matter a firearm, as a means (or a manner ) in which the offender carried out the more basic underlying crime of violence, the underlying crime of violence is not the basic crime here at issue. Rather, as we have already mentioned, the use or carrying of a firearm is itself a separate substantive crime. See at ; at The Government argues that, conceptually speaking, one can refer to the use of a machinegun as simply a "metho[d]" of committing the underlying "firearms offense." Brief for United States 23. But the difference between carrying, say, a pistol and carrying a machinegun (or, to mention another factor in the same statutory sentence, a "destructive device," i. e., a bomb) is great, both in degree and kind. And, more importantly, that difference concerns the nature of the element *127 lying closest to the heart of the crime at issue. It is not surprising that numerous gun crimes make substantive distinctions between weapons such as pistols and machineguns. See, e. 18 U.S. C. 922(a)(4) (making it unlawful to "transport in interstate or foreign commerce" any "destructive device," "machine gun," or similar type of weapon unless carrier is licensed or authorized, but making no such prohibition for pistols); 922(b)(4) (prohibiting the unauthorized sale or delivery of "machine gun[s]" and similar weapons); 922(o )(1) (making it "unlawful for any person to transfer or possess a machine gun"); 922(v)(1) (making it illegal "to manufacture, transfer, or possess a semiautomatic assault weapon"). And we do not have any indication that legislatures or judges typically have viewed the difference between using a pistol and using a machinegun as insubstantial. Indeed, the fact that (a) the statute at issue prescribes a mandatory penalty for using or carrying a machinegun that is six times more severe than the punishment for using or carrying a mere "firearm," and (b) at least two Courts of Appeals have interpreted 924(c)(1) as setting forth a separate "machinegun" element in relevant cases, see 96 F. 3d, at ; Judicial Committee on Model Jury Instructions for the Eighth Circuit, Manual of Model Criminal Jury Instructions ¶ 6.18.924C (1997 ed.), in L. Sand, J. Siffert, W. Loughlin, & S. Reiss, Modern Federal Jury Instructions: Criminal Pattern Instructions, p. 8-153 points to the conclusion that the difference between the act of using or carrying a "firearm" and the act of using or carrying a "machinegun" is both substantive and substantial—a conclusion that supports a "separate crime" interpretation. Third, to ask a jury, rather than a judge, to decide whether a defendant used or carried a machinegun would rarely complicate a trial or risk unfairness. Cf. -235 As a practical matter, in determining whether a defendant used or carried a "firearm," *128 the jury ordinarily will be asked to assess the particular weapon at issue as well as the circumstances under which it was allegedly used. Furthermore, inasmuch as the prosecution's case under 924(c) usually will involve presenting a certain weapon (or weapons) to the jury and arguing that the defendant used or carried that weapon during a crime of violence within the meaning of the statute, the evidence is unlikely to enable a defendant to respond both (1) "I did not use or carry any firearm," and (2) "even if I did, it was a pistol, not a machinegun." Hence, a rule of law that makes it difficult to make both claims at the same time to the same decisionmaker (the jury) will not often prejudice a defendant's case. At the same time, a contrary rule—one that leaves the machinegun matter to the sentencing judge—might unnecessarily produce a conflict between the judge and the jury. That is because, under our case law interpreting the statute here at issue, a jury may well have to decide which of several weapons the defendant actively used, rather than passively possessed. See 516 U. S., at And, in such a case, the sentencing judge will not necessarily know which "firearm" supports the jury's determination. Under these circumstances, a judge's later, sentencing-related decision that the defendant used the machinegun, rather than, say, the pistol, might conflict with the jury's belief that he actively used the pistol, which factual belief underlay its firearm "use" conviction. Cf. at 1234- There is no reason to think that Congress would have wanted a judge's views to prevail in a case of so direct a factual conflict, particularly when the sentencing judge applies a lower standard of proof and when 25 additional years in prison are at stake. *129 Fourth, the Government argues that the legislative history of the statute favors interpreting 924(c) as setting forth sentencing factors, not elements. It points out that 924(c), as originally enacted, provided a mandatory minimum prison term of at least one year (up to a maximum of years) where a person (1) "use[d] a firearm to commit any felony," or (2) "carr[ied] a firearm unlawfully during the commission of any felony." Gun Control Act of 1968, 2, ; see also Omnibus Crime Control Act of 1970, 13, In 1984, Congress amended the law, eliminating the range of permissible penalties, setting a mandatory prison term of five years, and specifying that that term was to be added on top of the prison term related to the underlying "crime of violence," including statutory sentences that imposed certain other weapons-related enhancements. See Comprehensive Crime Control Act of 1984, 05(a), In 1986, Congress again amended the law by providing for a -year mandatory prison term (20 years for subsequent offenses) "if the firearm is a machinegun, or is equipped with a firearm silencer or firearm muffler." Firearms Owners' Protection Act, 4(a)(2), 0 Stat. 456. In 1988, Congress changed the provision to its here-relevant form. Anti-Drug Abuse Act of 1988, 6460, 2 Stat. 4373. The Government finds three features of the history surrounding the enactment of the key 1986 version of the statute significant. First, the House Report spoke in terms of a sentence, not an offense. The Report stated, for example, that the relevant bill would create "a new mandatory prison term of ten years for using or carrying a machine gun during and in relation to a crime of violence or a drug trafficking offense for a first offense, and twenty years for a subsequent offense." H. R. Rep. No. 99-495, p. 28 (1986); see also Second, statements of the bill's sponsors and supporters on the floor of the House also spoke in terms of sentencing, noting, for example, that the proposed law "imposes mandatory prison terms on those [who] would use a machinegun in the commission of a violent offense." 132 Con Rec. 3809 (1986) (statement of Rep. Hughes); see also, e. (bill "includes stiff mandatory sentences for the use of firearms, including machineguns and silencers, in relation to violent or drug trafficking crimes"); (machinegun clause "strengthen[s] criminal penalties"); (proposed law "would have many benefits, including the expansion of mandatory sentencing to those persons who use a machinegun in the commission of a violent crime"). Third, and similarly, "any discussion suggesting the creation of a new offense" was "[n]oticeably absent" from the legislative record. ; Brief for United States 36. Insofar as this history may be relevant, however, it does not significantly help the Government. That is because the statute's basic "uses or carries a firearm" provision also dealt primarily with sentencing, its pre-eminent feature consisting of the creation of a new mandatory term of imprisonment additional to that for the underlying crime of violence. Cf. ; In this context, the absence of "separate offense" statements means little, and the "mandatory sentencing" statements to which the Government points show only that Congress believed that the "machinegun" and "firearm" provisions would work similarly. Indeed, the legislative statements that discuss a new prison term for the act of "us[ing] a machine gun," see, e. this page, seemingly describe offense conduct, and, thus, argue against (not for ) the Government's position. *131 Fifth and finally, the length and severity of an added mandatory sentence that turns on the presence or absence of a "machinegun" (or any of the other listed firearm types) weighs in favor of treating such offense-related words as referring to an element. Thus, if after considering traditional interpretive factors, we were left genuinely uncertain as to Congress' intent in this regard, we would assume a preference for traditional jury determination of so important a factual matter. Cf. ; United ; United U.S. 336, These considerations, in our view, make this a stronger "separate crime" case than either or AlmendarezTorres —cases in which we were closely divided as to Congress' likely intent. For the reasons stated, we believe that Congress intended the firearm type-related words it used in 924(c)(1) to refer to an element of a separate, aggravated crime. Accordingly, we reverse the contrary determination of the Court of Appeals and remand the case for proceedings consistent with this opinion. It is so ordered. APPENDIX TO OPINION OF THE COURT " 924. Penalties. "(c)(1) Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for *132 five years, and if the firearm is a short-barreled rifle [or a] short-barreled shotgun to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to life imprisonment without release. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried. No person sentenced under this subsection shall be eligible for parole during the term of imprisonment imposed herein." 18 U.S. C. 924(c)(1) (1988 ed., Supp. V) (footnote omitted).

Justice Kennedy

concurring

Ashcroft v. al-Kidd

https://www.courtlistener.com/opinion/217703/ashcroft-v-al-kidd/

https://www.courtlistener.com/api/rest/v3/clusters/217703/

2010-052

I join the opinion of the Court in full. In holding that the Attorney General could be liable for damages based on an unprecedented constitutional rule, the Court of Appeals for the Ninth Circuit disregarded the purposes of the doc trine of qualified immunity. This concurring opinion makes two additional observations. I The Court’s holding is limited to the arguments pre sented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful. See ante, at 8 (noting that al-Kidd “does not assert that his arrest would have been unconstitu tional absent the alleged pretextual use of the warrant”). Under the statute, a Magistrate Judge may issue a war rant to arrest someone as a material witness upon a show ing by affidavit that “the testimony of a person is material in a criminal proceeding” and “that it may become imprac ticable to secure the presence of the person by subpoena.” 18 U.S. C. §3144. The scope of the statute’s lawful authorization is uncertain. For example, a law-abiding citizen might observe a crime during the days or weeks 2 ASHCROFT v. AL-KIDD KENNEDY, J., concurring before a scheduled flight abroad. It is unclear whether those facts alone might allow police to obtain a material witness warrant on the ground that it “may become im practicable” to secure the person’s presence by subpoena. Ibid. The question becomes more difficult if one further assumes the traveler would be willing to testify if asked; and more difficult still if one supposes that authorities delay obtaining or executing the warrant until the traveler has arrived at the airport. These possibilities resemble the facts in this case. See ante, at 2. In considering these issues, it is important to bear in mind that the Material Witness Statute might not provide for the issuance of warrants within the meaning of the Fourth Amendment’s Warrant Clause. The typical arrest warrant is based on probable cause that the arrestee has committed a crime; but that is not the standard for the issuance of warrants under the Material Witness Statute. See ante, at 11 (reserving the possibility that probable cause for purposes of the Fourth Amendment’s Warrant Clause means “only probable cause to suspect a violation of law”). If material witness warrants do not qualify as “Warrants” under the Fourth Amendment, then material witness arrests might still be governed by the Fourth Amendment’s separate reasonableness requirement for seizures of the person. See United States v. Watson, 423 U.S. 411 (1976). Given the difficulty of these issues, the Court is correct to address only the legal theory put before it, without further exploring when material witness ar rests might be consistent with statutory and constitutional requirements. II The fact that the Attorney General holds a high office in the Government must inform what law is clearly estab lished for the purposes of this case. Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). Some federal officers perform Cite as: 563 U. S. ____ (2011) 3 KENNEDY, J., concurring their functions in a single jurisdiction, say within the con fines of one State or one federal judicial district. They “reasonably can anticipate when their conduct may give rise to liability for damages” and so are expected to adjust their behavior in accordance with local precedent. Davis v. Scherer, 468 U.S. 183, 195 (1984); see also Anderson v. Creighton, 483 U.S. 635, 639–640 (1987). In contrast the Attorney General occupies a national office and so sets policies implemented in many jurisdictions throughout the country. The official with responsibilities in many juris dictions may face ambiguous and sometimes inconsistent sources of decisional law. While it may be clear that one Court of Appeals has approved a certain course of conduct, other Courts of Appeals may have disapproved it, or at least reserved the issue. When faced with inconsistent legal rules in different jurisdictions, national officeholders should be given some deference for qualified immunity purposes, at least if they implement policies consistent with the governing law of the jurisdiction where the action is taken. As we have explained, qualified immunity is lost when plaintiffs point either to “cases of controlling authority in their jurisdic tion at the time of the incident” or to “a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.” Wilson v. Layne, 526 U.S. 603, 617 (1999); see also ante, at 9–10. These standards ensure the officer has “fair and clear warning” of what the Constitution requires. United States v. Lanier, 520 U.S. 259, 271 (1997). A national officeholder intent on retaining qualified immunity need not abide by the most stringent standard adopted anywhere in the United States. And the national officeholder need not guess at when a relatively small set of appellate precedents have established a binding legal rule. If national officeholders were subject to personal liability whenever they confronted disagreement among 4 ASHCROFT v. AL-KIDD KENNEDY, J., concurring appellate courts, those officers would be deterred from full use of their legal authority. The consequences of that deterrence must counsel caution by the Judicial Branch, particularly in the area of national security. See Ashcroft v. Iqbal, 556 U. S. ___, ___ (2009) (slip op., at 21). Fur thermore, too expansive a view of “clearly established law” would risk giving local judicial determinations the effect of rules with de facto national significance, contrary to the normal process of ordered appellate review. The proceedings in this case illustrate these concerns. The Court of Appeals for the Ninth Circuit appears to have reasoned that a Federal District Court sitting in New York had authority to establish a legal rule binding on the Attorney General and, therefore, on federal law enforcement operations conducted nationwide. See 580 F.3d 949, 972–973 (2009). Indeed, this case involves a material witness warrant issued in Boise, Idaho, and an arrest near Washington, D. C. Of course, district court decisions are not precedential to this extent. Ante, at 9– 10. But nationwide security operations should not have to grind to a halt even when an appellate court finds those operations unconstitutional. The doctrine of qualified immunity does not so constrain national officeholders entrusted with urgent responsibilities. Cite as: 563 U. S. ____ (2011) 1 GINSBURG, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 10–98 _________________ JOHN D. ASHCROFT, PETITIONER v. ABDULLAH AL-KIDD ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [May 31, 2011] JUSTICE GINSBURG, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, concurring in the judgment. Is a former U. S. Attorney General subject to a suit for damages on a claim that he instructed subordinates to use the Material Witness Statute, 18 U.S. C. §3144, as a pretext to detain terrorist suspects preventively? Given Whren v. United States, 517 U.S. 806 (1996), I agree with the Court that no “clearly established law” renders Ashcroft answerable in damages for the abuse of authority al-Kidd charged. Ante, at 12. But I join JUSTICE SOTOMAYOR in objecting to the Court’s disposition of al- Kidd’s Fourth Amendment claim on the merits; as she observes, post, at 1 (opinion concurring in judgment), that claim involves novel and trying questions that will “have no effect on the outcome of th[is] case.” Pearson v. Calla han, 555 U.S. 223, 236–237 (2009). In addressing al-Kidd’s Fourth Amendment claim against Ashcroft, the Court assumes at the outset the existence of a validly obtained material witness warrant. Ante, at 1, 12. That characterization is puzzling. See post, at 2 (opinion of SOTOMAYOR, J.).1 Is a warrant “validly —————— 1 Nowhere in al-Kidd’s complaint is there any concession that the warrant gained by the FBI agents was validly obtained. But cf. ante, at 8, n. 3 (majority opinion). 2 ASHCROFT v. AL-KIDD GINSBURG, J., concurring in judgment obtained” when the affidavit on which it is based fails to inform the issuing Magistrate Judge that “the Govern ment has no intention of using [al-Kidd as a witness] at [another’s] trial,” post, at 1, and does not disclose that al- Kidd had cooperated with FBI agents each of the several times they had asked to interview him, App. 26? Casting further doubt on the assumption that the war rant was validly obtained, the Magistrate Judge was not told that al-Kidd’s parents, wife, and children were all citizens and residents of the United States. In addition, the affidavit misrepresented that al-Kidd was about to take a one-way flight to Saudi Arabia, with a first-class ticket costing approximately $5,000; in fact, al-Kidd had a round-trip, coach-class ticket that cost $1,700.2 Given these omissions and misrepresentations, there is strong cause to question the Court’s opening assumption—a valid material-witness warrant—and equally strong reason to conclude that a merits determination was neither neces sary nor proper.3 —————— 2 Judicial officers asked to issue material witness warrants must determine whether the affidavit supporting the application shows that “the testimony of a person is material in a criminal proceeding” and that “it may become impracticable to secure the presence of the person by subpoena.” 18 U.S. C. §3144. Even if these conditions are met, issuance of the warrant is discretionary. Ibid. (“judicial officer may order the arrest of the person” (emphasis added)). Al-Kidd’s experience illustrates the importance of vigilant exercise of this checking role by the judicial officer to whom the warrant application is presented. The affidavit used to secure al-Kidd’s detention was spare; it did not state with particularity the information al-Kidd purportedly possessed, nor did it specify how al-Kidd’s knowledge would be material to Sami Omar al-Hussayen’s prosecution. As to impracticability, the affidavit contained only this unelaborated statement: “It is believed that if Al- Kidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.” App. 64. Had the Magistrate Judge insisted on more concrete showings of materiality and impracticability, al-Kidd might have been spared the entire ordeal. 3 The Court thrice states that the material witness warrant for al Cite as: 563 U. S. ____ (2011) 3 GINSBURG, J., concurring in judgment —————— Kidd’s arrest was “based on individualized suspicion.” Ante, at 6, 8. The word “suspicion,” however, ordinarily indicates that the person suspected has engaged in wrongdoing. See Black’s Law Dictionary 1585 (9th ed. 2009) (defining “reasonable suspicion” to mean “[a] par ticularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity”). Material witness status does not “involv[e] suspicion, or lack of suspicion,” of the individ ual so identified. See Illinois v. Lidster, 540 U.S. 419, 424–425 (2004). This Court’s decisions, until today, have uniformly used the term “individualized suspicion” to mean “individualized suspicion of wrong doing.” See Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (emphasis added); Chandler v. Miller, 520 U.S. 305, 313 (1997) (same). See also, e.g., Brigham City v. Stuart, 547 U.S. 398, 405 (2006) (referring to “programmatic searches conducted without individualized suspicion— such as checkpoints to combat drunk driving or drug trafficking”); Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 830 (2002) (“finding of individualized suspicion may not be necessary when a school conducts drug testing”); Whren v. United States, 517 U.S. 806, 817–818 (1996) (observed traffic violations give rise to individualized suspicion); Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451 (1990) (“Detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard.”); Maryland v. Buie, 494 U.S. 325, 334–335, n. 2 (1990) (“Terry [v. Ohio, 392 U.S. 1 (1968)] requires reasonable, individualized suspicion before a frisk for weapons can be conducted.”); Treasury Employees v. Von Raab, 489 U.S. 656, 668 (1989) (“[I]n certain limited circumstances, the Government’s need to discover . . . latent or hidden conditions, or to prevent their develop ment, is sufficiently compelling to justify [search that intrudes] on privacy . . . without any measure of individualized suspicion.”); O’Connor v. Ortega, 480 U.S. 709, 726 (1987) (“petitioners had an ‘individualized suspicion’ of misconduct by Dr. Ortega”); United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) (“Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion . . .”); New Jersey v. T. L. O., 469 U.S. 325, 342, n. 8 (1985) (“the search of T. L. O.’s purse was based upon an individualized suspicion that she had violated school rules”); Michi gan v. Summers, 452 U.S. 692, 699, n. 9 (1981) (“police executing a search warrant at a tavern could not . . . frisk a patron unless the officers had individualized suspicion that the patron might be armed or dangerous”). The Court’s suggestion that the term “individualized suspicion” is more commonly associated with “know[ing] something about [a] crime” 4 ASHCROFT v. AL-KIDD GINSBURG, J., concurring in judgment I also agree with JUSTICE KENNEDY that al-Kidd’s treatment presents serious questions, unaddressed by the Court, concerning “the [legality of] the Government’s use of the Material Witness Statute in this case.” Ante, at 1 (concurring opinion). In addition to the questions JUSTICE KENNEDY poses, and even if the initial material witness classification had been proper, what even arguably legiti mate basis could there be for the harsh custodial condi tions to which al-Kidd was subjected: Ostensibly held only to secure his testimony, al-Kidd was confined in three different detention centers during his 16 days’ incarcera tion, kept in high-security cells lit 24 hours a day, strip searched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist. App. 29–36; cf. Bell v. Wolfish, 441 U.S. 520, 539, n. 20 (1979) (“[L]oading a detainee with chains and shackles and throwing him in a dungeon may ensure his presence at trial and preserve the security of the institution. But it would be difficult to conceive of a situation where conditions so harsh, employed to achieve objectives that could be accomplished in so many alterna tive and less harsh methods, would not support a conclu sion that the purpose for which they were imposed was to punish.”). However circumscribed al-Kidd’s Bivens claim against Ashcroft may have been, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); ante, at 8 (majority opinion); ante, at 1 (KENNEDY, J., concurring), his remain —————— or “throwing . . . a surprise birthday party” than with criminal suspects, ante, at 6, n. 2 (internal quotation marks omitted), is hardly credible. The import of the term in legal argot is not genuinely debatable. When the evening news reports that a murder “suspect” is on the loose, the viewer is meant to be on the lookout for the perpetrator, not the wit ness. Ashcroft understood the term as lawyers commonly do: He spoke of detaining material witnesses as a means to “tak[e] suspected terror ists off the street.” App. 41 (internal quotation marks omitted). Cite as: 563 U. S. ____ (2011) 5 GINSBURG, J., concurring in judgment ing claims against the FBI agents who apprehended him invite consideration of the issues JUSTICE KENNEDY iden tified.4 His challenges to the brutal conditions of his confinement have been settled. But his ordeal is a grim reminder of the need to install safeguards against disre spect for human dignity, constraints that will control officialdom even in perilous times. —————— 4 The District Court determined that al-Kidd’s factual allegations against FBI agents regarding their “misrepresentations and omissions in the warrant application, if true, would negate the possibility of qualified immunity [for those agents].” Memorandum Order in No. cv:05–093 (D Idaho, Sept. 27, 2006), p. 18. The agents took no appeal from this threshold denial of their qualified immunity plea. Cite as: 563 U. S. ____ (2011) 1 SOTOMAYOR, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 10–98 _________________ JOHN D. ASHCROFT, PETITIONER v. ABDULLAH AL-KIDD ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [May 31, 2011] JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG and JUSTICE BREYER join, concurring in the judgment. I concur in the Court’s judgment reversing the Court of Appeals because I agree with the majority’s conclusion that Ashcroft did not violate clearly established law. I cannot join the majority’s opinion, however, because it unnecessarily “resolve[s] [a] difficult and novel questio[n] of constitutional . . . interpretation that will ‘have no effect on the outcome of the case.’ ” Ante, at 3 (quoting Pearson v. Callahan, 555 U.S. 223, 237 (2009)). Whether the Fourth Amendment permits the pretextual use of a material witness warrant for preventive detention of an individual whom the Government has no intention of using at trial is, in my view, a closer question than the majority’s opinion suggests. Although the majority is correct that a government official’s subjective intent is generally “irrelevant in determining whether that officer’s actions violate the Fourth Amendment,” Bond v. United States, 529 U.S. 334, 338, n. 2 (2000), none of our prior cases recognizing that principle involved prolonged deten­ tion of an individual without probable cause to believe he had committed any criminal offense. We have never considered whether an official’s subjective intent matters for purposes of the Fourth Amendment in that novel con­ text, and we need not and should not resolve that question 2 ASHCROFT v. AL-KIDD SOTOMAYOR, J., concurring in judgment in this case. All Members of the Court agree that, what­ ever the merits of the underlying Fourth Amendment question, Ashcroft did not violate clearly established law. The majority’s constitutional ruling is a narrow one pre­ mised on the existence of a “valid material-witness war­ ran[t],” ante, at 1—a premise that, at the very least, is questionable in light of the allegations set forth in al- Kidd’s complaint. Based on those allegations, it is not at all clear that it would have been “impracticable to secure [al-Kidd’s] presence . . . by subpoena” or that his testimony could not “adequately be secured by deposition.” 18 U.S. C. §3144; see First Amended Complaint in No. 05– 093–EJL, ¶55, App. 26 (“Mr. al-Kidd would have complied with a subpoena had he been issued one or agreed to a deposition”). Nor is it clear that the affidavit supporting the warrant was sufficient; its failure to disclose that the Government had no intention of using al-Kidd as a wit­ ness at trial may very well have rendered the affidavit deliberately false and misleading. Cf. Franks v. Delaware, 438 U.S. 154, 155–156 (1978). The majority assumes away these factual difficulties, but in my view, they point to the artificiality of the way the Fourth Amendment question has been presented to this Court and provide further reason to avoid rendering an unnecessary holding on the constitutional question. I also join Part I of JUSTICE KENNEDY’s concurring opinion. As that opinion makes clear, this case does not present an occasion to address the proper scope of the material witness statute or its constitutionality as applied in this case. Indeed, nothing in the majority’s opinion today should be read as placing this Court’s imprimatur on the actions taken by the Government against al-Kidd. Ante, at 1 (KENNEDY, J., concurring) (“The Court’s holding is limited to the arguments presented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful”)

I join the opinion of the Court in full. In holding that the Attorney General could be liable for damages based on an unprecedented constitutional rule, the Court of Appeals for the Ninth Circuit disregarded the purposes of the doc trine of qualified immunity. This concurring opinion makes two additional observations. I The Court’s holding is limited to the arguments pre sented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful. See ante, at 8 (noting that al-Kidd “does not assert that his arrest would have been unconstitu tional absent the alleged pretextual use of the warrant”). Under the statute, a Magistrate Judge may issue a war rant to arrest someone as a material witness upon a show ing by affidavit that “the testimony of a person is material in a criminal proceeding” and “that it may become imprac ticable to secure the presence of the person by subpoena.” 18 U.S. C. The scope of the statute’s lawful authorization is uncertain. For example, a law-abiding citizen might observe a crime during the days or weeks 2 ASHCROFT v. AL-KIDD KENNEDY, J., concurring before a scheduled flight abroad. It is unclear whether those facts alone might allow police to obtain a material witness warrant on the ground that it “may become im practicable” to secure the person’s presence by subpoena. The question becomes more difficult if one further assumes the traveler would be willing to testify if asked; and more difficult still if one supposes that authorities delay obtaining or executing the warrant until the traveler has arrived at the airport. These possibilities resemble the facts in this case. See ante, at 2. In considering these issues, it is important to bear in mind that the Material Witness Statute might not provide for the issuance of warrants within the meaning of the Fourth Amendment’s Warrant Clause. The typical arrest warrant is based on probable cause that the arrestee has committed a crime; but that is not the standard for the issuance of warrants under the Material Witness Statute. See ante, at 11 (reserving the possibility that probable cause for purposes of the Fourth Amendment’s Warrant Clause means “only probable cause to suspect a violation of law”). If material witness warrants do not qualify as “Warrants” under the Fourth Amendment, then material witness arrests might still be governed by the Fourth Amendment’s separate reasonableness requirement for seizures of the person. See United States v. Watson, 423 U.S. 411 (1976). Given the difficulty of these issues, the Court is correct to address only the legal theory put before it, without further exploring when material witness ar rests might be consistent with statutory and constitutional requirements. II The fact that the Attorney General holds a high office in the Government must inform what law is clearly estab lished for the purposes of this case. Some federal officers perform Cite as: 563 U. S. (2011) 3 KENNEDY, J., concurring their functions in a single jurisdiction, say within the con fines of one State or one federal judicial district. They “reasonably can anticipate when their conduct may give rise to liability for damages” and so are expected to adjust their behavior in accordance with local precedent. Davis v. Scherer, ; see also Anderson v. Creighton, In contrast the Attorney General occupies a national office and so sets policies implemented in many jurisdictions throughout the country. The official with responsibilities in many juris dictions may face ambiguous and sometimes inconsistent sources of decisional law. While it may be clear that one Court of Appeals has approved a certain course of conduct, other Courts of Appeals may have disapproved it, or at least reserved the issue. When faced with inconsistent legal rules in different jurisdictions, national officeholders should be given some deference for qualified immunity purposes, at least if they implement policies consistent with the governing law of the jurisdiction where the action is taken. As we have explained, qualified immunity is lost when plaintiffs point either to “cases of controlling authority in their jurisdic tion at the time of the incident” or to “a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.” ; see also ante, at 9–10. These standards ensure the officer has “fair and clear warning” of what the Constitution requires. United A national officeholder intent on retaining qualified immunity need not abide by the most stringent standard adopted anywhere in the United States. And the national officeholder need not guess at when a relatively small set of appellate precedents have established a binding legal rule. If national officeholders were subject to personal liability whenever they confronted disagreement among 4 ASHCROFT v. AL-KIDD KENNEDY, J., concurring appellate courts, those officers would be deterred from full use of their legal authority. The consequences of that deterrence must counsel caution by the Judicial Branch, particularly in the area of national security. See Ashcroft v. Iqbal, 556 U. S. (slip op., at 21). Fur thermore, too expansive a view of “clearly established law” would risk giving local judicial determinations the effect of rules with de facto national significance, contrary to the normal process of ordered appellate review. The proceedings in this case illustrate these concerns. The Court of Appeals for the Ninth Circuit appears to have reasoned that a Federal District Court sitting in New York had authority to establish a legal rule binding on the Attorney General and, therefore, on federal law enforcement operations conducted nationwide. See 580 F.3d 949, 972–973 Indeed, this case involves a material witness warrant issued in Boise, Idaho, and an arrest near Washington, D. C. Of course, district court decisions are not precedential to this extent. Ante, at 9– 10. But nationwide security operations should not have to grind to a halt even when an appellate court finds those operations unconstitutional. The doctrine of qualified immunity does not so constrain national officeholders entrusted with urgent responsibilities. Cite as: 563 U. S. (2011) 1 GINSBURG, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 10–98 JOHN D. ASHCROFT, PETITIONER v. ABDULLAH AL-KIDD ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [May 31, 2011] JUSTICE GINSBURG, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, concurring in the judgment. Is a former U. S. Attorney General subject to a suit for damages on a claim that he instructed subordinates to use the Material Witness Statute, 18 U.S. C. as a pretext to detain terrorist suspects preventively? Given I agree with the Court that no “clearly established law” renders Ashcroft answerable in damages for the abuse of authority al-Kidd charged. Ante, at 12. But I join JUSTICE SOTOMAYOR in objecting to the Court’s disposition of al- Kidd’s Fourth Amendment claim on the merits; as she observes, post, at 1 (opinion concurring in judgment), that claim involves novel and trying questions that will “have no effect on the outcome of th[is] case.” In addressing al-Kidd’s Fourth Amendment claim against Ashcroft, the Court assumes at the outset the existence of a validly obtained material witness warrant. Ante, at 1, 12. That characterization is puzzling. See post, at 2 (opinion of SOTOMAYOR, J.).1 Is a warrant “validly —————— 1 Nowhere in al-Kidd’s complaint is there any concession that the warrant gained by the FBI agents was validly obtained. But cf. ante, at 8, n. 3 (majority opinion). 2 ASHCROFT v. AL-KIDD GINSBURG, J., concurring in judgment obtained” when the affidavit on which it is based fails to inform the issuing Magistrate Judge that “the Govern ment has no intention of using [al-Kidd as a witness] at [another’s] trial,” post, at 1, and does not disclose that al- Kidd had cooperated with FBI agents each of the several times they had asked to interview him, App. 26? Casting further doubt on the assumption that the war rant was validly obtained, the Magistrate Judge was not told that al-Kidd’s parents, wife, and children were all citizens and residents of the United States. In addition, the affidavit misrepresented that al-Kidd was about to take a one-way flight to Saudi Arabia, with a first-class ticket costing approximately $5,000; in fact, al-Kidd had a round-trip, coach-class ticket that cost $1,700.2 Given these omissions and misrepresentations, there is strong cause to question the Court’s opening assumption—a valid material-witness warrant—and equally strong reason to conclude that a merits determination was neither neces sary nor proper.3 —————— 2 Judicial officers asked to issue material witness warrants must determine whether the affidavit supporting the application shows that “the testimony of a person is material in a criminal proceeding” and that “it may become impracticable to secure the presence of the person by subpoena.” 18 U.S. C. Even if these conditions are met, issuance of the warrant is discretionary. (“judicial officer may order the arrest of the person” (emphasis added)). Al-Kidd’s experience illustrates the importance of vigilant exercise of this checking role by the judicial officer to whom the warrant application is presented. The affidavit used to secure al-Kidd’s detention was spare; it did not state with particularity the information al-Kidd purportedly possessed, nor did it specify how al-Kidd’s knowledge would be material to Sami Omar al-Hussayen’s prosecution. As to impracticability, the affidavit contained only this unelaborated statement: “It is believed that if Al- Kidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.” App. 64. Had the Magistrate Judge insisted on more concrete showings of materiality and impracticability, al-Kidd might have been spared the entire ordeal. 3 The Court thrice states that the material witness warrant for al Cite as: 563 U. S. (2011) 3 GINSBURG, J., concurring in judgment —————— Kidd’s arrest was “based on individualized suspicion.” Ante, at 6, 8. The word “suspicion,” however, ordinarily indicates that the person suspected has engaged in wrongdoing. See Black’s Law Dictionary 1585 (defining “reasonable suspicion” to mean “[a] par ticularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity”). Material witness status does not “involv[e] suspicion, or lack of suspicion,” of the individ ual so identified. See This Court’s decisions, until today, have uniformly used the term “individualized suspicion” to mean “individualized suspicion of wrong doing.” See (emphasis added); See also, e.g., Brigham (referring to “programmatic searches conducted without individualized suspicion— such as checkpoints to combat drunk driving or drug trafficking”); Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls, (“finding of individualized suspicion may not be necessary when a school conducts drug testing”); Whren v. United States, (observed traffic violations give rise to individualized suspicion); Michigan Dept. of State Police v. Sitz, (“Detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard.”); 334–335, n. 2 ] requires reasonable, individualized suspicion before a frisk for weapons can be conducted.”); Treasury (1989) (“[I]n certain limited circumstances, the Government’s need to discover latent or hidden conditions, or to prevent their develop ment, is sufficiently compelling to justify [search that intrudes] on privacy without any measure of individualized suspicion.”); (“petitioners had an ‘individualized suspicion’ of misconduct by Dr. Ortega”); United States v. Montoya de Hernandez, (“Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion”); New 342, n. 8 (“the search of T. L. O.’s purse was based upon an individualized suspicion that she had violated school rules”); Michi (“police executing a search warrant at a tavern could not frisk a patron unless the officers had individualized suspicion that the patron might be armed or dangerous”). The Court’s suggestion that the term “individualized suspicion” is more commonly associated with “know[ing] something about [a] crime” 4 ASHCROFT v. AL-KIDD GINSBURG, J., concurring in judgment I also agree with JUSTICE KENNEDY that al-Kidd’s treatment presents serious questions, unaddressed by the Court, concerning “the [legality of] the Government’s use of the Material Witness Statute in this case.” Ante, at 1 (concurring opinion). In addition to the questions JUSTICE KENNEDY poses, and even if the initial material witness classification had been proper, what even arguably legiti mate basis could there be for the harsh custodial condi tions to which al-Kidd was subjected: Ostensibly held only to secure his testimony, al-Kidd was confined in three different detention centers during his 16 days’ incarcera tion, kept in high-security cells lit 24 hours a day, strip searched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist. App. 29–36; cf. Bell v. Wolfish, 441 U.S. 520, 539, n. 20 (1979) (“[L]oading a detainee with chains and shackles and throwing him in a dungeon may ensure his presence at trial and preserve the security of the institution. But it would be difficult to conceive of a situation where conditions so harsh, employed to achieve objectives that could be accomplished in so many alterna tive and less harsh methods, would not support a conclu sion that the purpose for which they were imposed was to punish.”). However circumscribed al-Kidd’s Bivens claim against Ashcroft may have been, see ; ante, at 8 (majority opinion); ante, at 1 (KENNEDY, J., concurring), his remain —————— or “throwing a surprise birthday party” than with criminal suspects, ante, at 6, n. 2 (internal quotation marks omitted), is hardly credible. The import of the term in legal argot is not genuinely debatable. When the evening news reports that a murder “suspect” is on the loose, the viewer is meant to be on the lookout for the perpetrator, not the wit ness. Ashcroft understood the term as lawyers commonly do: He spoke of detaining material witnesses as a means to “tak[e] suspected terror ists off the street.” App. 41 (internal quotation marks omitted). Cite as: 563 U. S. (2011) 5 GINSBURG, J., concurring in judgment ing claims against the FBI agents who apprehended him invite consideration of the issues JUSTICE KENNEDY iden tified.4 His challenges to the brutal conditions of his confinement have been settled. But his ordeal is a grim reminder of the need to install safeguards against disre spect for human dignity, constraints that will control officialdom even in perilous times. —————— 4 The District Court determined that al-Kidd’s factual allegations against FBI agents regarding their “misrepresentations and omissions in the warrant application, if true, would negate the possibility of qualified immunity [for those agents].” Memorandum Order in No. cv:05–093 p. 18. The agents took no appeal from this threshold denial of their qualified immunity plea. Cite as: 563 U. S. (2011) 1 SOTOMAYOR, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 10–98 JOHN D. ASHCROFT, PETITIONER v. ABDULLAH AL-KIDD ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [May 31, 2011] JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG and JUSTICE BREYER join, concurring in the judgment. I concur in the Court’s judgment reversing the Court of Appeals because I agree with the majority’s conclusion that Ashcroft did not violate clearly established law. I cannot join the majority’s opinion, however, because it unnecessarily “resolve[s] [a] difficult and novel questio[n] of constitutional interpretation that will ‘have no effect on the outcome of the case.’ ” Ante, at 3 ). Whether the Fourth Amendment permits the pretextual use of a material witness warrant for preventive detention of an individual whom the Government has no intention of using at trial is, in my view, a closer question than the majority’s opinion suggests. Although the majority is correct that a government official’s subjective intent is generally “irrelevant in determining whether that officer’s actions violate the Fourth Amendment,” none of our prior cases recognizing that principle involved prolonged deten­ tion of an individual without probable cause to believe he had committed any criminal offense. We have never considered whether an official’s subjective intent matters for purposes of the Fourth Amendment in that novel con­ text, and we need not and should not resolve that question 2 ASHCROFT v. AL-KIDD SOTOMAYOR, J., concurring in judgment in this case. All Members of the Court agree that, what­ ever the merits of the underlying Fourth Amendment question, Ashcroft did not violate clearly established law. The majority’s constitutional ruling is a narrow one pre­ mised on the existence of a “valid material-witness war­ ran[t],” ante, at 1—a premise that, at the very least, is questionable in light of the allegations set forth in al- Kidd’s complaint. Based on those allegations, it is not at all clear that it would have been “impracticable to secure [al-Kidd’s] presence by subpoena” or that his testimony could not “adequately be secured by deposition.” 18 U.S. C. see First Amended Complaint in No. 05– 093–EJL, ¶55, App. 26 (“Mr. al-Kidd would have complied with a subpoena had he been issued one or agreed to a deposition”). Nor is it clear that the affidavit supporting the warrant was sufficient; its failure to disclose that the Government had no intention of using al-Kidd as a wit­ ness at trial may very well have rendered the affidavit deliberately false and misleading. Cf. The majority assumes away these factual difficulties, but in my view, they point to the artificiality of the way the Fourth Amendment question has been presented to this Court and provide further reason to avoid rendering an unnecessary holding on the constitutional question. I also join Part I of JUSTICE KENNEDY’s concurring opinion. As that opinion makes clear, this case does not present an occasion to address the proper scope of the material witness statute or its constitutionality as applied in this case. Indeed, nothing in the majority’s opinion today should be read as placing this Court’s imprimatur on the actions taken by the Government against al-Kidd. Ante, at 1 (KENNEDY, J., concurring) (“The Court’s holding is limited to the arguments presented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful”)

Justice Kagan

majority

Allen v. Cooper

https://www.courtlistener.com/opinion/4738313/allen-v-cooper/

https://www.courtlistener.com/api/rest/v3/clusters/4738313/

In two basically identical statutes passed in the early 1990s, Congress sought to strip the States of their sovereign immunity from patent and copyright infringement suits. Not long after, this Court held in Florida Prepaid Postsec- ondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999), that the patent statute lacked a valid constitu- tional basis. Today, we take up the copyright statute. We find that our decision in Florida Prepaid compels the same conclusion. I In 1717, the pirate Edward Teach, better known as Blackbeard, captured a French slave ship in the West In- dies and renamed her Queen Anne’s Revenge. The vessel became his flagship. Carrying some 40 cannons and 300 men, the Revenge took many prizes as she sailed around the Caribbean and up the North American coast. But her reign over those seas was short-lived. In 1718, the ship ran aground on a sandbar a mile off Beaufort, North Carolina. Blackbeard and most of his crew escaped without harm. 2 ALLEN v. COOPER Opinion of the Court Not so the Revenge. She sank beneath the waters, where she lay undisturbed for nearly 300 years. In 1996, a marine salvage company named Intersal, Inc., discovered the shipwreck. Under federal and state law, the wreck belongs to North Carolina. See 102 Stat. 433, 43 U.S. C. §2105(c); N. C. Gen. Stat. Ann. §121–22 (2019). But the State contracted with Intersal to take charge of the recovery activities. Intersal in turn retained petitioner Frederick Allen, a local videographer, to document the op- eration. For over a decade, Allen created videos and photos of divers’ efforts to salvage the Revenge’s guns, anchors, and other remains. He registered copyrights in all those works. This suit arises from North Carolina’s publication of some of Allen’s videos and photos. Allen first protested in 2013 that the State was infringing his copyrights by uploading his work to its website without permission. To address that allegation, North Carolina agreed to a settlement paying Allen $15,000 and laying out the parties’ respective rights to the materials. But Allen and the State soon found them- selves embroiled in another dispute. Allen complained that North Carolina had impermissibly posted five of his videos online and used one of his photos in a newsletter. When the State declined to admit wrongdoing, Allen filed this action in Federal District Court. It charges the State with copy- right infringement (call it a modern form of piracy) and seeks money damages. North Carolina moved to dismiss the suit on the ground of sovereign immunity. It invoked the general rule that fed- eral courts cannot hear suits brought by individuals against nonconsenting States. See State Defendants’ Memoran- dum in No. 15–627 (EDNC), Doc. 50, p. 7. But Allen re- sponded that an exception to the rule applied because Con- gress had abrogated the States’ sovereign immunity from suits like his. See Plaintiffs’ Response, Doc. 57, p. 7. The Copyright Remedy Clarification Act of 1990 (CRCA or Act) Cite as: 589 U. S. ____ (2020) 3 Opinion of the Court provides that a State “shall not be immune, under the Elev- enth Amendment [or] any other doctrine of sovereign im- munity, from suit in Federal court” for copyright infringe- ment. 17 U.S. C. §511(a). And the Act specifies that in such a suit a State will be liable, and subject to remedies, “in the same manner and to the same extent as” a private party. §501(a); see §511(b).1 That meant, Allen contended, that his suit against North Carolina could go forward. The District Court agreed. Quoting the CRCA’s text, the court first found that “Congress has stated clearly its intent to abrogate sovereign immunity for copyright claims against a state.” 244 F. Supp. 3d 525, 533 (EDNC 2017). And that abrogation, the court next held, had a proper con- stitutional basis. Florida Prepaid and other precedent, the District Court acknowledged, precluded Congress from using its Article I powers—including its authority over copyrights—to take away a State’s sovereign immunity. See 244 F. Supp. 3d, at 534. But in the court’s view, Florida Prepaid left open an alternative route to abrogation. Given the States’ “pattern” of “abus[ive]” copyright infringement, the court held, Congress could accomplish its object under Section 5 of the Fourteenth Amendment. 244 F. Supp. 3d, at 535. On interlocutory appeal, the Court of Appeals for the Fourth Circuit reversed. It read Florida Prepaid to prevent recourse to Section 5 no less than to Article I. A Section 5 abrogation, the Fourth Circuit explained, must be “congru- ent and proportional” to the Fourteenth Amendment injury —————— 1 The CRCA served as the model for the Patent and Plant Variety Pro- tection Clarification Act (Patent Remedy Act), passed two years later (and repudiated by this Court in Florida Prepaid, see supra, at 1). Using the same language, the latter statute provided that a State “shall not be immune, under the [E]leventh [A]mendment [or] any other doctrine of sovereign immunity, from suit in Federal court” for patent infringement. §2, 106 Stat. 4230. And so too, the statute specified that in such a suit, a State will be liable, and subject to remedies, “in the same manner and to the same extent as” a private party. Ibid. 4 ALLEN v. COOPER Opinion of the Court it seeks to remedy. 895 F.3d 337, 350 (2018). Florida Pre- paid had applied that principle to reject Congress’s at- tempt, in the Patent Remedy Act, to abolish the States’ im- munity from patent infringement suits. See 527 U.S., at 630. In the Fourth Circuit’s view, nothing distinguished the CRCA. That abrogation, the court reasoned, was “equally broad” and rested on a “similar legislative record” of constitutional harm. 895 F.3d, at 352. So Section 5 could not save the law. Because the Court of Appeals held a federal statute inva- lid, this Court granted certiorari. 587 U. S. ___ (2019). We now affirm. II In our constitutional scheme, a federal court generally may not hear a suit brought by any person against a non- consenting State. That bar is nowhere explicitly set out in the Constitution. The text of the Eleventh Amendment (the single most relevant provision) applies only if the plaintiff is not a citizen of the defendant State.2 But this Court has long understood that Amendment to “stand not so much for what it says” as for the broader “presupposition of our con- stitutional structure which it confirms.” Blatchford v. Na- tive Village of Noatak, 501 U.S. 775, 779 (1991). That premise, the Court has explained, has several parts. First, “each State is a sovereign entity in our federal system.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996). Next, “[i]t is inherent in the nature of sovereignty not to be amenable to [a] suit” absent consent. Id., at 54, n. 13 (quot- ing The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton)). And last, that fundamental aspect of sover- eignty constrains federal “judicial authority.” Blatchford, —————— 2 The Eleventh Amendment reads: “The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, com- menced or prosecuted against one of the United States by Citizens of an- other State, or by Citizens or Subjects of any Foreign State.” Cite as: 589 U. S. ____ (2020) 5 Opinion of the Court 501 U.S., at 779. But not entirely. This Court has permitted a federal court to entertain a suit against a nonconsenting State on two conditions. First, Congress must have enacted “un- equivocal statutory language” abrogating the States’ im- munity from the suit. Seminole Tribe, 517 U.S., at 56 (in- ternal quotation marks omitted); see Dellmuth v. Muth, 491 U.S. 223, 228 (1989) (requiring Congress to “mak[e] its in- tention unmistakably clear”). And second, some constitu- tional provision must allow Congress to have thus en- croached on the States’ sovereignty. Not even the most crystalline abrogation can take effect unless it is “a valid exercise of constitutional authority.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 78 (2000). No one here disputes that Congress used clear enough language to abrogate the States’ immunity from copyright infringement suits. As described above, the CRCA provides that States “shall not be immune” from those actions in fed- eral court. §511(a); see supra, at 2–3. And the Act specifies that a State stands in the identical position as a private defendant—exposed to liability and remedies “in the same manner and to the same extent.” §501(a); see §511(b). So there is no doubt what Congress meant to accomplish. In- deed, this Court held in Florida Prepaid that the essentially verbatim provisions of the Patent Remedy Act “could not have [made] any clearer” Congress’s intent to remove the States’ immunity. 527 U.S., at 635. The contested question is whether Congress had author- ity to take that step. Allen maintains that it did, under ei- ther of two constitutional provisions. He first points to the clause in Article I empowering Congress to provide copy- right protection. If that fails, he invokes Section 5 of the Fourteenth Amendment, which authorizes Congress to “en- force” the commands of the Due Process Clause. Neither contention can succeed. The slate on which we write today is anything but clean. Florida Prepaid, along with other 6 ALLEN v. COOPER Opinion of the Court precedent, forecloses each of Allen’s arguments. A Congress has power under Article I “[t]o promote the Pro- gress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” §8, cl. 8. That provision—call it the Intellectual Property Clause—enables Congress to grant both copyrights and patents. And the monopoly rights so given impose a corresponding duty (i.e., not to infringe) on States no less than private parties. See Goldstein v. California, 412 U.S. 546, 560 (1973). In Allen’s view, Congress’s authority to abrogate sover- eign immunity from copyright suits naturally follows. Abrogation is the single best—or maybe, he says, the only— way for Congress to “secur[e]” a copyright holder’s “exclu- sive Right[s]” as against a State’s intrusion. See Brief for Petitioners 20 (quoting Art. I, §8, cl. 8). So, Allen contends, the authority to take that step must fall within the Article I grant of power to protect intellectual property. The problem for Allen is that this Court has already re- jected his theory. The Intellectual Property Clause, as just noted, covers copyrights and patents alike. So it was the first place the Florida Prepaid Court looked when deciding whether the Patent Remedy Act validly stripped the States of immunity from infringement suits. In doing so, we acknowledged the reason for Congress to put “States on the same footing as private parties” in patent litigation. 527 U.S., at 647. It was, just as Allen says here, to ensure “uni- form, surefire protection” of intellectual property. Reply Brief 10. That was a “proper Article I concern,” we allowed. 527 U.S., at 648. But still, we said, Congress could not use its Article I power over patents to remove the States’ im- munity. We based that conclusion on Seminole Tribe v. Florida, decided three years earlier. There, the Court had held that “Article I cannot be used to circumvent” the limits Cite as: 589 U. S. ____ (2020) 7 Opinion of the Court sovereign immunity “place[s] upon federal jurisdiction.” 517 U.S., at 73. That proscription ended the matter. Be- cause Congress could not “abrogate state sovereign immun- ity [under] Article I,” Florida Prepaid explained, the Intel- lectual Property Clause could not support the Patent Remedy Act. 527 U.S., at 636. And to extend the point to this case: if not the Patent Remedy Act, not its copyright equivalent either, and for the same reason. Here too, the power to “secur[e ]” an intellectual property owner’s “exclu- sive Right” under Article I stops when it runs into sovereign immunity. §8, cl. 8. Allen claims, however, that a later case offers an exit ramp from Florida Prepaid. In Central Va. Community College v. Katz, 546 U.S. 356, 359 (2006), we held that Ar- ticle I’s Bankruptcy Clause enables Congress to subject nonconsenting States to bankruptcy proceedings (there, to recover a preferential transfer). We thus exempted the Bankruptcy Clause from Seminole Tribe’s general rule that Article I cannot justify haling a State into federal court. In bankruptcy, we decided, sovereign immunity has no place. But if that is true, Allen asks, why not say the same thing here? Allen reads Katz as “adopt[ing] a clause-by-clause approach to evaluating whether a particular clause of Arti- cle I” allows the abrogation of sovereign immunity. Brief for Petitioners 20. And he claims that the Intellectual Prop- erty Clause “supplies singular warrant” for Congress to take that step. Ibid. That is so, Allen reiterates, because “Congress could not ‘secur[e]’ authors’ ‘exclusive Right’ to their works if [it] were powerless” to make States pay for infringing conduct. Ibid. But everything in Katz is about and limited to the Bank- ruptcy Clause; the opinion reflects what might be called bankruptcy exceptionalism. In part, Katz rested on the “singular nature” of bankruptcy jurisdiction. 546 U.S., at 369, n. 9. That jurisdiction is, and was at the Founding, “principally in rem”—meaning that it is “premised on the 8 ALLEN v. COOPER Opinion of the Court debtor and his estate, and not on the creditors” (including a State). Id., at 369–370 (internal quotation marks omitted). For that reason, we thought, “it does not implicate States’ sovereignty to nearly the same degree as other kinds of ju- risdiction.” Id., at 362. In remaining part, Katz focused on the Bankruptcy Clause’s “unique history.” Id., at 369, n. 9. The Clause emerged from a felt need to curb the States’ au- thority. The States, we explained, “had wildly divergent schemes” for discharging debt, and often “refus[ed] to re- spect one another’s discharge orders.” Id., at 365, 377. “[T]he Framers’ primary goal” in adopting the Clause was to address that problem—to stop “competing sovereigns[ ]” from interfering with a debtor’s discharge. Id., at 373. And in that project, the Framers intended federal courts to play a leading role. The nation’s first Bankruptcy Act, for exam- ple, empowered those courts to order that States release people they were holding in debtors’ prisons. See id., at 374. So through and through, we thought, the Bankruptcy Clause embraced the idea that federal courts could impose on state sovereignty. In that, it was sui generis—again, “unique”—among Article I’s grants of authority. Id., at 369, n. 9. Indeed, Katz’s view of the Bankruptcy Clause had a yet more striking aspect, which further separates it from any other. The Court might have concluded from its analysis that the Clause allows Congress to abrogate the States’ sov- ereign immunity (as Allen argues the Intellectual Property Clause does). But it did not; it instead went further. Rely- ing on the above account of the Framers’ intentions, the Court found that the Bankruptcy Clause itself did the abro- gating. Id., at 379 (“[T]he relevant ‘abrogation’ is the one effected in the plan of the [Constitutional] Convention”). Or stated another way, we decided that no congressional abro- gation was needed because the States had already “agreed in the plan of the Convention not to assert any sovereign immunity defense” in bankruptcy proceedings. Id., at 377. Cite as: 589 U. S. ____ (2020) 9 Opinion of the Court We therefore discarded our usual rule—which Allen accepts as applying here—that Congress must speak, and indeed speak unequivocally, to abrogate sovereign immunity. Compare id., at 378–379 (“[O]ur decision today” does not “rest[ ] on any statement Congress ha[s] made on the sub- ject of state sovereign immunity”), with supra, at 5 (our or- dinary rule). Our decision, in short, viewed bankruptcy as on a different plane, governed by principles all its own. Nothing in that understanding invites the kind of general, “clause-by-clause” reexamination of Article I that Allen pro- poses. See supra, at 7. To the contrary, it points to a good- for-one-clause-only holding. And even if Katz’s confines were not so clear, Florida Pre- paid, together with stare decisis, would still doom Allen’s argument. As Allen recognizes, if the Intellectual Property Clause permits the CRCA’s abrogation, it also would permit the Patent Remedy Act’s. See Tr. of Oral Arg. 9 (predicting that if his position prevailed, “ultimately, the Patent Rem- edy Act would be revisited and properly upheld as a valid exercise of Congress’s Article I power”). Again, there is no difference between copyrights and patents under the Clause, nor any material difference between the two stat- utes’ provisions. See supra, at 3, and n. 1, 6. So we would have to overrule Florida Prepaid if we were to decide this case Allen’s way. But stare decisis, this Court has under- stood, is a “foundation stone of the rule of law.” Michigan v. Bay Mills Indian Community, 572 U.S. 782, 798 (2014). To reverse a decision, we demand a “special justification,” over and above the belief “that the precedent was wrongly decided.” Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014). Allen offers us nothing special at all; he contends only that if the Court were to use a clause-by- clause approach, it would discover that Florida Prepaid was wrong (because, he says again, the decision misjudged Con- gress’s authority under the Intellectual Property Clause). See Brief for Petitioners 37; supra, at 6–7. And with that 10 ALLEN v. COOPER Opinion of the Court charge of error alone, Allen cannot overcome stare decisis. B Section 5 of the Fourteenth Amendment, unlike almost all of Article I, can authorize Congress to strip the States of immunity. The Fourteenth Amendment “fundamentally al- tered the balance of state and federal power” that the orig- inal Constitution and the Eleventh Amendment struck. Seminole Tribe, 517 U.S., at 59. Its first section imposes prohibitions on the States, including (as relevant here) that none may “deprive any person of life, liberty, or property, without due process of law.” Section 5 then gives Congress the “power to enforce, by appropriate legislation,” those lim- itations on the States’ authority. That power, the Court has long held, may enable Congress to abrogate the States’ im- munity and thus subject them to suit in federal court. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). For an abrogation statute to be “appropriate” under Sec- tion 5, it must be tailored to “remedy or prevent” conduct infringing the Fourteenth Amendment’s substantive prohi- bitions. City of Boerne v. Flores, 521 U.S. 507, 519 (1997). Congress can permit suits against States for actual viola- tions of the rights guaranteed in Section 1. See Fitzpatrick, 427 U.S., at 456. And to deter those violations, it can allow suits against States for “a somewhat broader swath of con- duct,” including acts constitutional in themselves. Kimel, 528 U.S., at 81. But Congress cannot use its “power to en- force” the Fourteenth Amendment to alter what that Amendment bars. See id., at 88 (prohibiting Congress from “substantively redefin[ing]” the Fourteenth Amendment’s requirements). That means a congressional abrogation is valid under Section 5 only if it sufficiently connects to con- duct courts have held Section 1 to proscribe. To decide whether a law passes muster, this Court has framed a type of means-end test. For Congress’s action to fall within its Section 5 authority, we have said, “[t]here Cite as: 589 U. S. ____ (2020) 11 Opinion of the Court must be a congruence and proportionality between the in- jury to be prevented or remedied and the means adopted to that end.” Boerne, 521 U.S., at 520. On the one hand, courts are to consider the constitutional problem Congress faced—both the nature and the extent of state conduct vio- lating the Fourteenth Amendment. That assessment usu- ally (though not inevitably) focuses on the legislative rec- ord, which shows the evidence Congress had before it of a constitutional wrong. See Florida Prepaid, 527 U.S., at 646. On the other hand, courts are to examine the scope of the response Congress chose to address that injury. Here, a critical question is how far, and for what reasons, Con- gress has gone beyond redressing actual constitutional vio- lations. Hard problems often require forceful responses and, as noted above, Section 5 allows Congress to “enact[ ] reasonably prophylactic legislation” to deter constitutional harm. Kimel, 528 U.S., at 88; Boerne, 521 U.S., at 536 (Congress’s conclusions on that score are “entitled to much deference”); supra, at 10. But “[s]trong measures appropri- ate to address one harm may be an unwarranted response to another, lesser one.” Boerne, 521 U.S., at 530. Always, what Congress has done must be in keeping with the Four- teenth Amendment rules it has the power to “enforce.” All this raises the question: When does the Fourteenth Amendment care about copyright infringement? Some- times, no doubt. Copyrights are a form of property. See Fox Film Corp. v. Doyal, 286 U.S. 123, 128 (1932). And the Fourteenth Amendment bars the States from “depriv[ing]” a person of property “without due process of law.” But even if sometimes, by no means always. Under our precedent, a merely negligent act does not “deprive” a person of prop- erty. See Daniels v. Williams, 474 U.S. 327, 328 (1986). So an infringement must be intentional, or at least reckless, to come within the reach of the Due Process Clause. See id., at 334, n. 3 (reserving whether reckless conduct suffices). And more: A State cannot violate that Clause unless it fails 12 ALLEN v. COOPER Opinion of the Court to offer an adequate remedy for an infringement, because such a remedy itself satisfies the demand of “due process.” See Hudson v. Palmer, 468 U.S. 517, 533 (1984). That means within the broader world of state copyright infringe- ment is a smaller one where the Due Process Clause comes into play. Because the same is true of patent infringement, Florida Prepaid again serves as the critical precedent. That deci- sion defined the scope of unconstitutional infringement in line with the caselaw cited above—as intentional conduct for which there is no adequate state remedy. See 527 U.S., at 642–643, 645. It then searched for evidence of that sort of infringement in the legislative record of the Patent Rem- edy Act. And it determined that the statute’s abrogation of immunity—again, the equivalent of the CRCA’s—was out of all proportion to what it found. That analysis is the start- ing point of our inquiry here. And indeed, it must be the ending point too unless the evidence of unconstitutional in- fringement is materially different for copyrights than pa- tents. Consider once more, then, Florida Prepaid, now not on Article I but on Section 5. In enacting the Patent Remedy Act, Florida Prepaid found, Congress did not identify a pattern of unconstitu- tional patent infringement. To begin with, we explained, there was only thin evidence of States infringing patents at all—putting aside whether those actions violated due pro- cess. The House Report, recognizing that “many states comply with patent law,” offered just two examples of pa- tent infringement suits against the States. Id., at 640 (quoting H. R. Rep. No. 101–960, pt. 1, p. 38 (1990)). The appellate court below, boasting some greater research prowess, discovered another seven in the century-plus be- tween 1880 and 1990. See 527 U.S., at 640. Even the bill’s House sponsor conceded the lack of “any evidence” of “wide- spread violation of patent laws.” Id., at 641 (quoting state- ment of Rep. Kastenmeier). What was more, there was no Cite as: 589 U. S. ____ (2020) 13 Opinion of the Court evidence that any instance of infringement by States crossed constitutional lines. Congress, we observed, “did not focus” on intentional or reckless conduct; to the con- trary, the legislative record suggested that “most state in- fringement was innocent or at worst negligent.” Id., at 645. And similarly, Congress “barely considered the availability of state remedies for patent infringement.” Id., at 643. So, we concluded, nothing could support the idea that States were more than sporadically (if that) “depriving patent owners of property without due process of law.” Id., at 646. Given that absence of evidence, Florida Prepaid held, the Patent Remedy Act swept too far. Recall what the Patent Remedy Act did—and did not. It abrogated sovereign im- munity for any and every patent suit, thereby “plac[ing] States on the same footing as private parties.” Id., at 647. It did not set any limits. It did not, for example, confine the abrogation to suits alleging “nonnegligent infringement or infringement authorized [by] state policy.” Ibid. Neither did it target States refusing to offer alternative remedies to patent holders. No, it exposed all States to the hilt—on a record that failed to show they had caused any discernible constitutional harm (or, indeed, much harm at all). That imbalance made it impossible to view the legislation “as re- sponsive to, or designed to prevent, unconstitutional behav- ior.” Id., at 646 (quoting Boerne, 521 U.S., at 532). The statute’s “indiscriminate scope” was too “out of proportion” to any due process problem. 527 U.S., at 646–647. It aimed not to correct such a problem, but to “provide a uniform remedy for patent infringement” writ large. Id., at 647. The Patent Remedy Act, in short, did not “enforce” Section 1 of the Fourteenth Amendment—and so was not “appro- priate” under Section 5. Could, then, this case come out differently? Given the identical scope of the CRCA and Patent Remedy Act, that could happen only if the former law responded to materially 14 ALLEN v. COOPER Opinion of the Court stronger evidence of infringement, especially of the uncon- stitutional kind. Allen points to a significant disparity in how Congress created a record for the two statutes. See Brief for Petitioners 7–10, 47–50. Before enacting the CRCA, Congress asked the then-Register of Copyrights, Ralph Oman, to submit a report about the effects of the Eleventh Amendment on copyright enforcement. Oman and his staff conducted a year-long examination, which in- cluded a request for public comments eliciting letters from about 40 copyright holders and industry groups. The final 158-page report concluded that “copyright proprietors have demonstrated they will suffer immediate harm if they are unable to sue infringing states in federal court.” Copyright Office, Copyright Liability of States and the Eleventh Amendment 103 (1988) (Oman Report). Is that report enough, as Allen claims, to flip Florida Prepaid’s outcome when it comes to copyright cases against the States? It is not. Behind the headline-grabbing conclusion, noth- ing in the Oman Report, or the rest of the legislative record, cures the problems we identified in Florida Prepaid. As an initial matter, the concrete evidence of States infringing copyrights (even ignoring whether those acts violate due process) is scarcely more impressive than what the Florida Prepaid Court saw. Despite undertaking an exhaustive search, Oman came up with only a dozen possible examples of state infringement. He listed seven court cases brought against States (with another two dismissed on the merits) and five anecdotes taken from public comments (but not further corroborated). See Oman Report, at 7–9, 90–97. In testifying about the report, Oman acknowledged that state infringement is “not widespread” and “the States are not going to get involved in wholesale violation of the copyright laws.” Hearings on H. R. 1131 before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice, 101st Cong., 1st Sess., 53 (1989) (House Hearings). Indeed, he opined: “They are all respectful of the copyright Cite as: 589 U. S. ____ (2020) 15 Opinion of the Court law” and “will continue to respect the law”; what State, af- ter all, would “want[ ] to get a reputation as a copyright pi- rate?” Id., at 8. The bill’s House and Senate sponsors got the point. The former admitted that “there have not been any significant number” of copyright violations by States. Id., at 48 (Rep. Kastenmeier). And the latter conceded he could not currently see “a big problem.” Hearings on S. 497 before the Subcommittee on Patents, Copyrights and Trademarks, 101st Cong., 1st Sess., 130 (1989) (Sen. DeConcini). This is not, to put the matter charitably, the stuff from which Section 5 legislation ordinarily arises. And it gets only worse. Neither the Oman Report nor any other part of the legislative record shows concern with whether the States’ copyright infringements (however few and far between) violated the Due Process Clause. Of the 12 infringements listed in the report, only two appear in- tentional, as they must be to raise a constitutional issue. See Oman Report, at 7–8, 91 (describing a judicial finding of “willful” infringement and a public comment charging continued infringement after a copyright owner com- plained). As Oman testified, the far greater problem was the frequency of “honest mistakes” or “innocent” misunder- standings; the benefit of the bill, he therefore thought, would be to “guard against sloppiness.” House Hearings, at 9. Likewise, the legislative record contains no informa- tion about the availability of state-law remedies for copyright infringement (such as contract or unjust enrichment suits)—even though they might themselves satisfy due pro- cess. Those deficiencies in the record match the ones Flor- ida Prepaid emphasized. See 527 U.S., at 643–645. Here no less than there, they signal an absence of constitutional harm. Under Florida Prepaid, the CRCA thus must fail our “congruence and proportionality” test. Boerne, 521 U.S., at 520. As just shown, the evidence of Fourteenth Amendment injury supporting the CRCA and the Patent Remedy Act is 16 ALLEN v. COOPER Opinion of the Court equivalent—for both, that is, exceedingly slight. And the scope of the two statutes is identical—extending to every infringement case against a State. It follows that the bal- ance the laws strike between constitutional wrong and stat- utory remedy is correspondingly askew. In this case, as in Florida Prepaid, the law’s “indiscriminate scope” is “out of proportion” to any due process problem. 527 U.S., at 646– 647; see supra, at 13. In this case, as in that one, the statute aims to “provide a uniform remedy” for statutory infringe- ment, rather than to redress or prevent unconstitutional conduct. 527 U.S., at 647; see supra, at 13. And so in this case, as in that one, the law is invalid under Section 5. That conclusion, however, need not prevent Congress from passing a valid copyright abrogation law in the future. In doing so, Congress would presumably approach the issue differently than when it passed the CRCA. At that time, the Court had not yet decided Seminole Tribe, so Congress probably thought that Article I could support its all-out ab- rogation of immunity. See supra, at 6. And to the extent it relied on Section 5, Congress acted before this Court cre- ated the “congruence and proportionality” test. See supra, at 11. For that reason, Congress likely did not appreciate the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries—and of creating a legislative record to back up that connection. But going forward, Congress will know those rules. And under them, if it detects violations of due process, then it may en- act a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pi- rates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice. III Florida Prepaid all but prewrote our decision today. That precedent made clear that Article I’s Intellectual Property Cite as: 589 U. S. ____ (2020) 17 Opinion of the Court Clause could not provide the basis for an abrogation of sov- ereign immunity. And it held that Section 5 of the Four- teenth Amendment could not support an abrogation on a legislative record like the one here. For both those reasons, we affirm the judgment below. It is so ordered. Cite as: 589 U. S. ____ (2020) 1 HOMAS, of TOpinion J.,Tconcurring HOMAS, J. SUPREME COURT OF THE UNITED STATES _________________ No. 18–877 _________________ FREDERICK L. ALLEN, ET AL., PETITIONERS v. ROY A. COOPER, III, GOVERNOR OF NORTH CAROLINA, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [March 23, 2020] JUSTICE THOMAS, concurring in part and concurring in the judgment. I agree with the Court’s conclusion that the Copyright Remedy Clarification Act of 1990, 17 U.S. C. §501 et seq., does not validly abrogate States’ sovereign immunity. But I cannot join the Court’s opinion in its entirety. I write sep- arately to note two disagreements and one question that re- mains open for resolution in a future case. First, although I agree that Florida Prepaid Postsecond- ary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999), is binding precedent, I cannot join the Court’s dis- cussion of stare decisis. The Court claims we need “ ‘special justification[s]’ ” to overrule precedent because error alone “cannot overcome stare decisis.” Ante, at 9–10. That ap- proach “does not comport with our judicial duty under Arti- cle III.” Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 2). If our decision in Florida Prepaid were demonstrably erroneous, the Court would be obligated to “correct the error, regardless of whether other factors support overruling the precedent.” 587 U. S., at ___–___ (same) (slip op., at 8–9). Here, adherence to our precedent is warranted because petitioners have not demonstrated that our decision in Flor- 2 ALLEN v. COOPER Opinion of THOMAS, J. ida Prepaid “is incorrect, much less demonstrably errone- ous.” Gamble, 587 U. S., at ___ (same) (slip op., at 17). The Court in Florida Prepaid correctly concluded that “Con- gress may not abrogate state sovereign immunity pursuant to its Article I powers,” including its powers under the In- tellectual Property Clause. 527 U.S., at 636 (citing Semi- nole Tribe of Fla. v. Florida, 517 U.S. 44, 72–73 (1996)). Petitioners’ claims to the contrary are unpersuasive.* Second, I do not join the Court’s discussion regarding fu- ture copyright legislation. In my view, we should opine on “only the case before us in light of the record before us.” Manhattan Community Access Corp. v. Halleck, 587 U. S. ___, ___ (2019) (slip op., at 15). We should not purport to advise Congress on how it might exercise its legislative au- thority, nor give our blessing to hypothetical statutes or leg- islative records not at issue here. Finally, I believe the question whether copyrights are property within the original meaning of the Fourteenth Amendment’s Due Process Clause remains open. The Court relies on Fox Film Corp. v. Doyal, 286 U.S. 123 (1932), to conclude that “[c]opyrights are a form of prop- erty.” Ante, at 11. But Fox Film Corp. addressed “property” in the context of state tax laws, not the Due Process Clause. 286 U.S., at 128. And although we stated in Florida Pre- paid that patents are “property” for due process purposes, we did not analyze the Fourteenth Amendment’s text, and neither of the cases we cited involved due process. 527 U.S., at 642 (citing Brown v. Duchesne, 19 How. 183, 197 —————— *Because I adhere to our precedents regarding Article I and state sov- ereign immunity, I continue to believe that Central Va. Community Col- lege v. Katz, 546 U.S. 356 (2006), was wrongly decided. See id., at 379–385 (THOMAS, J., dissenting). The Court today rightfully limits that de- cision to the Bankruptcy Clause context, calling it a “good-for-one-clause- only holding.” Ante, at 9. I would go a step further and recognize that the Court’s decision in Katz is not good for even that clause. Cite as: 589 U. S. ____ (2020) 3 Opinion of THOMAS, J. (1857); Consolidated Fruit-Jar Co. v. Wright, 94 U.S. 92, 96 (1877)); see also Merrill, The Landscape of Constitu- tional Property, 86 Va. L. Rev. 885, 887 (2000) (noting that the “Court has not always been attentive to the ‘property’ threshold” of the Due Process Clauses). Because the parties agree that petitioners’ copyrights are property, and because the Fourteenth Amendment does not authorize this stat- ute’s abrogation of state sovereign immunity either way, we need not resolve this open question today. I would, how- ever, be willing to consider the matter in an appropriate case. For these reasons, I join all of the Court’s opinion except for the final paragraph in Part II–A and the final paragraph in Part II–B. Cite as: 589 U. S. ____ (2020) 1 BREYER, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 18–877 _________________ FREDERICK L. ALLEN, ET AL., PETITIONERS v. ROY A. COOPER, III, GOVERNOR OF NORTH CAROLINA, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [March 23, 2020] JUSTICE BREYER, with whom JUSTICE GINSBURG joins, concurring in the judgment.

In two basically identical statutes passed in the early 1990s, Congress sought to strip the States of their sovereign immunity from patent and copyright infringement suits. Not long after, this Court held in Florida Prepaid Postsec- ondary Ed. Expense 527 U.S. 627 (1999), that the patent statute lacked a valid constitu- tional basis. Today, we take up the copyright statute. We find that our decision in Florida Prepaid compels the same conclusion. I In 1717, the pirate Edward Teach, better known as Blackbeard, captured a French slave ship in the West In- dies and renamed her Queen Anne’s Revenge. The vessel became his flagship. Carrying some 40 cannons and 300 men, the Revenge took many prizes as she sailed around the Caribbean and up the North American coast. But her reign over those seas was short-lived. In 1718, the ship ran aground on a sandbar a mile off Beaufort, North Carolina. Blackbeard and most of his crew escaped out 2 ALLEN v. COOPER Opinion of the Court Not so the Revenge. She sank beneath the waters, where she lay undisturbed for nearly 300 years. In 1996, a marine salvage company named Intersal, Inc., discovered the shipwreck. Under federal and state law, the wreck belongs to North Carolina. See 43 U.S. C. N. C. Gen. Stat. Ann. (2019). But the State contracted Intersal to take charge of the recovery activities. Intersal in turn retained petitioner Frederick Allen, a local videographer, to document the op- eration. For over a decade, Allen created videos and photos of divers’ efforts to salvage the Revenge’s guns, anchors, and other remains. He registered copyrights in all those works. This suit arises from North Carolina’s publication of some of Allen’s videos and photos. Allen first protested in 2013 that the State was infringing his copyrights by uploading his work to its website out permission. To address that allegation, North Carolina agreed to a settlement paying Allen $15,000 and laying out the parties’ respective rights to the materials. But Allen and the State soon found them- selves embroiled in another dispute. Allen complained that North Carolina had impermissibly posted five of his videos online and used one of his photos in a newsletter. When the State declined to admit wrongdoing, Allen filed this action in Federal District Court. It charges the State copy- right infringement (call it a modern form of piracy) and seeks money damages. North Carolina moved to dismiss the suit on the ground of sovereign It invoked the general rule that fed- eral courts cannot hear suits brought by individuals against nonconsenting States. See State Defendants’ Memoran- dum in No. 15–627 (EDNC), Doc. 50, p. 7. But Allen re- sponded that an exception to the rule applied because Con- gress had abrogated the States’ sovereign immunity from suits like his. See Plaintiffs’ Response, Doc. 57, p. 7. The Copyright Remedy Clarification Act of 1990 (CRCA or Act) Cite as: 589 U. S. (2020) 3 Opinion of the Court provides that a State “shall not be immune, under the Elev- enth Amendment [or] any other doctrine of sovereign im- munity, from suit in Federal court” for copyright infringe- ment. 17 U.S. C. And the Act specifies that in such a suit a State will be liable, and subject to remedies, “in the same manner and to the same extent as” a private party. see That meant, Allen contended, that his suit against North Carolina could go forward. The District Court agreed. Quoting the CRCA’s text, the court first found that “Congress has stated clearly its intent to abrogate sovereign immunity for copyright claims against a state.” And that abrogation, the court next held, had a proper con- stitutional basis. Florida Prepaid and other precedent, the District Court acknowledged, precluded Congress from using its Article I powers—including its authority over copyrights—to take away a State’s sovereign See But in the court’s view, Florida Prepaid left open an alternative route to abrogation. Given the States’ “pattern” of “abus[ive]” copyright infringement, the court held, Congress could accomplish its object under Section 5 of the Fourteenth Amendment. 244 F. Supp. 3d, 35. On interlocutory appeal, the Court of Appeals for the Fourth Circuit reversed. It read Florida Prepaid to prevent recourse to Section 5 no less than to Article I. A Section 5 abrogation, the Fourth Circuit explained, must be “congru- ent and proportional” to the Fourteenth Amendment injury —————— 1 The CRCA served as the model for the Patent and Plant Variety Pro- tection Clarification Act (Patent Remedy Act), passed two years later (and repudiated by this Court in Florida Prepaid, see ). Using the same language, the latter statute provided that a State “shall not be immune, under the [E]leventh [A]mendment [or] any other doctrine of sovereign immunity, from suit in Federal court” for patent infringement. And so too, the statute specified that in such a suit, a State will be liable, and subject to remedies, “in the same manner and to the same extent as” a private party. 4 Florida Pre- paid had applied that principle to reject Congress’s at- tempt, in the Patent Remedy Act, to abolish the States’ im- munity from patent infringement suits. See 527 U.S., at 630. In the Fourth Circuit’s view, nothing distinguished the CRCA. That abrogation, the court reasoned, was “equally broad” and rested on a “similar legislative record” of constitutional So Section 5 could not save the law. Because the Court of Appeals held a federal statute inva- lid, this Court granted certiorari. 587 U. S. (2019). We now affirm. II In our constitutional scheme, a federal court generally may not hear a suit brought by any person against a non- consenting State. That bar is nowhere explicitly set out in the Constitution. The text of the Eleventh Amendment (the single most relevant provision) applies only if the plaintiff is not a citizen of the defendant State.2 But this Court has long understood that Amendment to “stand not so much for what it says” as for the broader “presupposition of our con- stitutional structure which it confirms.” That premise, the Court has explained, has several parts. First, “each State is a sovereign entity in our federal system.” Seminole of Next, “[i]t is inherent in the nature of sovereignty not to be amenable to [a] suit” absent consent. at n. 13 (quot- ing The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton)). And last, that fundamental aspect of sover- eignty constrains federal “judicial authority.” Blatchford, —————— 2 The Eleventh Amendment reads: “The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, com- menced or prosecuted against one of the United States by Citizens of an- other State, or by Citizens or Subjects of any Foreign State.” Cite as: 589 U. S. (2020) 5 Opinion of the Court 501 U.S., at But not entirely. This Court has permitted a federal court to entertain a suit against a nonconsenting State on two conditions. First, Congress must have enacted “un- equivocal statutory language” abrogating the States’ im- munity from the suit. Seminole (in- ternal quotation marks omitted); see Dellmuth v. Muth, 491 U.S. 223, 228 (1989) (requiring Congress to “mak[e] its in- tention unmistakably clear”). And second, some constitu- tional provision must allow Congress to have thus en- croached on the States’ sovereignty. Not even the most crystalline abrogation can take effect unless it is “a valid exercise of constitutional authority.” No one here disputes that Congress used clear enough language to abrogate the States’ immunity from copyright infringement suits. As described above, the CRCA provides that States “shall not be immune” from those actions in fed- eral court. see at 2–3. And the Act specifies that a State stands in the identical position as a private defendant—exposed to liability and remedies “in the same manner and to the same extent.” see So there is no doubt what Congress meant to accomplish. In- deed, this Court held in Florida Prepaid that the essentially verbatim provisions of the Patent Remedy Act “could not have [made] any clearer” Congress’s intent to remove the States’ The contested question is whether Congress had author- ity to take that step. Allen maintains that it did, under ei- ther of two constitutional provisions. He first points to the clause in Article I empowering Congress to provide copy- right protection. If that fails, he invokes Section 5 of the Fourteenth Amendment, which authorizes Congress to “en- force” the commands of the Due Process Neither contention can succeed. The slate on which we write today is anything but clean. Florida Prepaid, along other 6 ALLEN v. COOPER Opinion of the Court precedent, forecloses each of Allen’s arguments. A Congress has power under Article I “[t]o promote the Pro- gress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” cl. 8. That provision—call it the Intellectual Property Clause—enables Congress to grant both copyrights and patents. And the monopoly rights so given impose a corresponding duty (i.e., not to infringe) on States no less than private parties. See 412 U.S. 6, In Allen’s view, Congress’s authority to abrogate sover- eign immunity from copyright suits naturally follows. Abrogation is the single best—or maybe, he says, the only— way for Congress to “secur[e]” a copyright holder’s “exclu- sive Right[s]” as against a State’s intrusion. See Brief for Petitioners 20 (quoting Art. I, cl. 8). So, Allen contends, the authority to take that step must fall in the Article I grant of power to protect intellectual property. The problem for Allen is that this Court has already re- jected his theory. The Intellectual Property Clause, as just noted, covers copyrights and patents alike. So it was the first place the Florida Prepaid Court looked when deciding whether the Patent Remedy Act validly stripped the States of immunity from infringement suits. In doing so, we acknowledged the reason for Congress to put “States on the same footing as private parties” in patent litigation. 527 U.S., It was, just as Allen says here, to ensure “uni- form, surefire protection” of intellectual property. Reply Brief 10. That was a “proper Article I concern,” we allowed. But still, we said, Congress could not use its Article I power over patents to remove the States’ im- munity. We based that conclusion on Seminole v. Florida, decided three years earlier. There, the Court had held that “Article I cannot be used to circumvent” the limits Cite as: 589 U. S. (2020) 7 Opinion of the Court sovereign immunity “place[s] upon federal jurisdiction.” That proscription ended the matter. Be- cause Congress could not “abrogate state sovereign immun- ity [under] Article I,” Florida Prepaid explained, the Intel- lectual Property Clause could not support the Patent Remedy And to extend the point to this case: if not the Patent Remedy Act, not its copyright equivalent either, and for the same reason. Here too, the power to “secur[e ]” an intellectual property owner’s “exclu- sive Right” under Article I stops when it runs into sovereign cl. 8. Allen claims, however, that a later case offers an exit ramp from Florida Prepaid. In Central Va. Community 6 U.S. 356, we held that Ar- ticle I’s Bankruptcy Clause enables Congress to subject nonconsenting States to bankruptcy proceedings (there, to recover a preferential transfer). We thus exempted the Bankruptcy Clause from Seminole ’s general rule that Article I cannot justify haling a State into federal court. In bankruptcy, we decided, sovereign immunity has no place. But if that is true, Allen asks, why not say the same thing here? Allen reads Katz as “adopt[ing] a clause-by-clause approach to evaluating whether a particular clause of Arti- cle I” allows the abrogation of sovereign Brief for Petitioners 20. And he claims that the Intellectual Prop- erty Clause “supplies singular warrant” for Congress to take that step. That is so, Allen reiterates, because “Congress could not ‘secur[e]’ authors’ ‘exclusive Right’ to their works if [it] were powerless” to make States pay for infringing But everything in Katz is about and limited to the Bank- ruptcy Clause; the opinion reflects what might be called bankruptcy exceptionalism. In part, Katz rested on the “singular nature” of bankruptcy jurisdiction. 6 U.S., at 369, n. 9. That jurisdiction is, and was at the Founding, “principally in rem”—meaning that it is “premised on the 8 ALLEN v. COOPER Opinion of the Court debtor and his estate, and not on the creditors” (including a State). –370 (internal quotation marks omitted). For that reason, we thought, “it does not implicate States’ sovereignty to nearly the same degree as other kinds of ju- risdiction.” In remaining part, Katz focused on the Bankruptcy Clause’s “unique history.” The Clause emerged from a felt need to curb the States’ au- thority. The States, we explained, “had wildly divergent schemes” for discharging debt, and often “refus[ed] to re- spect one another’s discharge orders.” “[T]he Framers’ primary goal” in adopting the Clause was to address that problem—to stop “competing sovereigns[ ]” from interfering a debtor’s discharge. And in that project, the Framers intended federal courts to play a leading role. The nation’s first Bankruptcy Act, for exam- ple, empowered those courts to order that States release people they were holding in debtors’ prisons. See So through and through, we thought, the Bankruptcy Clause embraced the idea that federal courts could impose on state sovereignty. In that, it was sui generis—again, “unique”—among Article I’s grants of authority. n. 9. Indeed, Katz’s view of the Bankruptcy Clause had a yet more striking aspect, which further separates it from any other. The Court might have concluded from its analysis that the Clause allows Congress to abrogate the States’ sov- ereign immunity (as Allen argues the Intellectual Property Clause does). But it did not; it instead went further. Rely- ing on the above account of the Framers’ intentions, the Court found that the Bankruptcy Clause itself did the abro- gating. (“[T]he relevant ‘abrogation’ is the one effected in the plan of the [Constitutional] Convention”). Or stated another way, we decided that no congressional abro- gation was needed because the States had already “agreed in the plan of the Convention not to assert any sovereign immunity defense” in bankruptcy proceedings. Cite as: 589 U. S. (2020) 9 Opinion of the Court We therefore discarded our usual rule—which Allen accepts as applying here—that Congress must speak, and indeed speak unequivocally, to abrogate sovereign Compare –379 (“[O]ur decision today” does not “rest[ ] on any statement Congress ha[s] made on the sub- ject of state sovereign immunity”), (our or- dinary rule). Our decision, in short, viewed bankruptcy as on a different plane, governed by principles all its own. Nothing in that understanding invites the kind of general, “clause-by-clause” reexamination of Article I that Allen pro- poses. See To the contrary, it points to a good- for-one-clause-only holding. And even if Katz’s confines were not so clear, Florida Pre- paid, together stare decisis, would still doom Allen’s argument. As Allen recognizes, if the Intellectual Property Clause permits the CRCA’s abrogation, it also would permit the Patent Remedy Act’s. See Tr. of Oral Arg. 9 (predicting that if his position prevailed, “ultimately, the Patent Rem- edy Act would be revisited and properly upheld as a valid exercise of Congress’s Article I power”). Again, there is no difference between copyrights and patents under the Clause, nor any material difference between the two stat- utes’ provisions. See and n. 1, 6. So we would have to overrule Florida Prepaid if we were to decide this case Allen’s way. But stare decisis, this Court has under- stood, is a “foundation stone of the rule of law.” Michigan v. Bay Mills Indian Community, 572 U.S. 2, To reverse a decision, we demand a “special justification,” over and above the belief “that the precedent was wrongly decided.” Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 Allen offers us nothing special at all; he contends only that if the Court were to use a clause-by- clause approach, it would discover that Florida Prepaid was wrong (because, he says again, the decision misjudged Con- gress’s authority under the Intellectual Property Clause). See Brief for Petitioners 37; –7. And that 10 ALLEN v. COOPER Opinion of the Court charge of error alone, Allen cannot overcome stare decisis. B Section 5 of the Fourteenth Amendment, unlike almost all of Article I, can authorize Congress to strip the States of The Fourteenth Amendment “fundamentally al- tered the balance of state and federal power” that the orig- inal Constitution and the Eleventh Amendment struck. Seminole 517 U.S., 9. Its first section imposes prohibitions on the States, including (as relevant here) that none may “deprive any person of life, liberty, or property, out due process of law.” Section 5 then gives Congress the “power to enforce, by appropriate legislation,” those lim- itations on the States’ authority. That power, the Court has long held, may enable Congress to abrogate the States’ im- munity and thus subject them to suit in federal court. See For an abrogation statute to be “appropriate” under Sec- tion 5, it must be tailored to “remedy or prevent” conduct infringing the Fourteenth Amendment’s substantive prohi- bitions. City of Congress can permit suits against States for actual viola- tions of the rights guaranteed in Section 1. See Fitzpatrick, 427 U.S., at And to deter those violations, it can allow suits against States for “a somewhat broader swath of con- duct,” including acts constitutional in themselves. But Congress cannot use its “power to en- force” the Fourteenth Amendment to alter what that Amendment bars. See (prohibiting Congress from “substantively redefin[ing]” the Fourteenth Amendment’s requirements). That means a congressional abrogation is valid under Section 5 only if it sufficiently connects to con- duct courts have held Section 1 to proscribe. To decide whether a law passes muster, this Court has framed a type of means-end test. For Congress’s action to fall in its Section 5 authority, we have said, “[t]here Cite as: 589 U. S. (2020) 11 Opinion of the Court must be a congruence and proportionality between the in- jury to be prevented or remedied and the means adopted to that end.” 521 U.S., 20. On the one hand, courts are to consider the constitutional problem Congress faced—both the nature and the extent of state conduct vio- lating the Fourteenth Amendment. That assessment usu- ally (though not inevitably) focuses on the legislative rec- ord, which shows the evidence Congress had before it of a constitutional wrong. See Florida Prepaid, 527 U.S., at 646. On the other hand, courts are to examine the scope of the response Congress chose to address that injury. Here, a critical question is how far, and for what reasons, Con- gress has gone beyond redressing actual constitutional vio- lations. Hard problems often require forceful responses and, as noted above, Section 5 allows Congress to “enact[ ] reasonably prophylactic legislation” to deter constitutional 528 U.S., ; 521 U.S., 36 (Congress’s conclusions on that score are “entitled to much deference”); 0. But “[s]trong measures appropri- ate to address one harm may be an unwarranted response to another, lesser one.” 521 U.S., 30. Always, what Congress has done must be in keeping the Four- teenth Amendment rules it has the power to “enforce.” All this raises the question: When does the Fourteenth Amendment care about copyright infringement? Some- times, no doubt. Copyrights are a form of property. See Fox Film And the Fourteenth Amendment bars the States from “depriv[ing]” a person of property “out due process of law.” But even if sometimes, by no means always. Under our precedent, a merely negligent act does not “deprive” a person of prop- erty. See So an infringement must be intentional, or at least reckless, to come in the reach of the Due Process See 34, n. 3 (reserving whether reckless conduct suffices). And more: A State cannot violate that Clause unless it fails 12 ALLEN v. COOPER Opinion of the Court to offer an adequate remedy for an infringement, because such a remedy itself satisfies the demand of “due process.” See That means in the broader world of state copyright infringe- ment is a smaller one where the Due Process Clause comes into play. Because the same is true of patent infringement, Florida Prepaid again serves as the critical precedent. That deci- sion defined the scope of unconstitutional infringement in line the caselaw cited above—as intentional conduct for which there is no adequate state remedy. See 527 U.S., 42–643, 645. It then searched for evidence of that sort of infringement in the legislative record of the Patent Rem- edy And it determined that the statute’s abrogation of immunity—again, the equivalent of the CRCA’s—was out of all proportion to what it found. That analysis is the start- ing point of our inquiry here. And indeed, it must be the ending point too unless the evidence of unconstitutional in- fringement is materially different for copyrights than pa- tents. Consider once more, then, Florida Prepaid, now not on Article I but on Section 5. In enacting the Patent Remedy Act, Florida Prepaid found, Congress did not identify a pattern of unconstitu- tional patent infringement. To begin we explained, there was only thin evidence of States infringing patents at all—putting aside whether those actions violated due pro- cess. The House Report, recognizing that “many states comply patent law,” offered just two examples of pa- tent infringement suits against the States. (quoting H. R. Rep. No. 101–960, pt. 1, p. 38 (1990)). The appellate court below, boasting some greater research prowess, discovered another seven in the century-plus be- tween 1880 and 1990. See 527 U.S., Even the bill’s House sponsor conceded the lack of “any evidence” of “wide- spread violation of patent laws.” (quoting state- ment of Rep. Kastenmeier). What was more, there was no Cite as: 589 U. S. (2020) 13 Opinion of the Court evidence that any instance of infringement by States crossed constitutional lines. Congress, we observed, “did not focus” on intentional or reckless conduct; to the con- trary, the legislative record suggested that “most state in- fringement was innocent or at worst negligent.” And similarly, Congress “barely considered the availability of state remedies for patent infringement.” So, we concluded, nothing could support the idea that States were more than sporadically (if that) “depriving patent owners of property out due process of law.” Given that absence of evidence, Florida Prepaid held, the Patent Remedy Act swept too far. Recall what the Patent Remedy Act did—and did not. It abrogated sovereign im- munity for any and every patent suit, thereby “plac[ing] States on the same footing as private parties.” It did not set any limits. It did not, for example, confine the abrogation to suits alleging “nonnegligent infringement or infringement authorized [by] state policy.” Neither did it target States refusing to offer alternative remedies to patent holders. No, it exposed all States to the hilt—on a record that failed to show they had caused any discernible constitutional harm (or, indeed, much harm at all). That imbalance made it impossible to view the legislation “as re- sponsive to, or designed to prevent, unconstitutional behav- ior.” (quoting 521 U.S., 32). The statute’s “indiscriminate scope” was too “out of proportion” to any due process 527 U.S., –647. It aimed not to correct such a problem, but to “provide a uniform remedy for patent infringement” writ large. The Patent Remedy Act, in short, did not “enforce” Section 1 of the Fourteenth Amendment—and so was not “appro- priate” under Section 5. Could, then, this case come out differently? Given the identical scope of the CRCA and Patent Remedy Act, that could happen only if the former law responded to materially 14 ALLEN v. COOPER Opinion of the Court stronger evidence of infringement, especially of the uncon- stitutional kind. Allen points to a significant disparity in how Congress created a record for the two statutes. See Brief for Petitioners 7–10, 47–50. Before enacting the CRCA, Congress asked the then-Register of Copyrights, Ralph Oman, to submit a report about the effects of the Eleventh Amendment on copyright enforcement. Oman and his staff conducted a year-long examination, which in- cluded a request for public comments eliciting letters from about 40 copyright holders and industry groups. The final 158-page report concluded that “copyright proprietors have demonstrated they will suffer immediate harm if they are unable to sue infringing states in federal court.” Copyright Office, Copyright Liability of States and the Eleventh Amendment 103 (1988) (Oman Report). Is that report enough, as Allen claims, to flip Florida Prepaid’s outcome when it comes to copyright cases against the States? It is not. Behind the headline-grabbing conclusion, noth- ing in the Oman Report, or the rest of the legislative record, cures the problems we identified in Florida Prepaid. As an initial matter, the concrete evidence of States infringing copyrights (even ignoring whether those acts violate due process) is scarcely more impressive than what the Florida Prepaid Court saw. Despite undertaking an exhaustive search, Oman came up only a dozen possible examples of state infringement. He listed seven court cases brought against States ( another two dismissed on the merits) and five anecdotes taken from public comments (but not further corroborated). See Oman Report, –9, 90–97. In testifying about the report, Oman acknowledged that state infringement is “not widespread” and “the States are not going to get involved in wholesale violation of the copyright laws.” Hearings on H. R. 1131 before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice, 101st Cong., 1st Sess., 53 (1989) (House Hearings). Indeed, he opined: “They are all respectful of the copyright Cite as: 589 U. S. (2020) 15 Opinion of the Court law” and “will continue to respect the law”; what State, af- ter all, would “want[ ] to get a reputation as a copyright pi- rate?” The bill’s House and Senate sponsors got the point. The former admitted that “there have not been any significant number” of copyright violations by States. And the latter conceded he could not currently see “a big ” Hearings on S. 497 before the Subcommittee on Patents, Copyrights and Trademarks, 101st Cong., 1st Sess., 130 (1989) (Sen. DeConcini). This is not, to put the matter charitably, the stuff from which Section 5 legislation ordinarily arises. And it gets only worse. Neither the Oman Report nor any other part of the legislative record shows concern whether the States’ copyright infringements (however few and far between) violated the Due Process Of the 12 infringements listed in the report, only two appear in- tentional, as they must be to raise a constitutional issue. See Oman Report, –8, 91 (describing a judicial finding of “willful” infringement and a public comment charging continued infringement after a copyright owner com- plained). As Oman testified, the far greater problem was the frequency of “honest mistakes” or “innocent” misunder- standings; the benefit of the bill, he therefore thought, would be to “guard against sloppiness.” House Hearings, at 9. Likewise, the legislative record contains no informa- tion about the availability of state-law remedies for copyright infringement (such as contract or unjust enrichment suits)—even though they might themselves satisfy due pro- cess. Those deficiencies in the record match the ones Flor- ida Prepaid emphasized. See 527 U.S., –645. Here no less than there, they signal an absence of constitutional Under Florida Prepaid, the CRCA thus must fail our “congruence and proportionality” test. 521 U.S., at 520. As just shown, the evidence of Fourteenth Amendment injury supporting the CRCA and the Patent Remedy Act is 16 ALLEN v. COOPER Opinion of the Court equivalent—for both, that is, exceedingly slight. And the scope of the two statutes is identical—extending to every infringement case against a State. It follows that the bal- ance the laws strike between constitutional wrong and stat- utory remedy is correspondingly askew. In this case, as in Florida Prepaid, the law’s “indiscriminate scope” is “out of proportion” to any due process 527 U.S., – 647; see 3. In this case, as in that one, the statute aims to “provide a uniform remedy” for statutory infringe- ment, rather than to redress or prevent unconstitutional 527 U.S., ; see 3. And so in this case, as in that one, the law is invalid under Section 5. That conclusion, however, need not prevent Congress from passing a valid copyright abrogation law in the future. In doing so, Congress would presumably approach the issue differently than when it passed the CRCA. At that time, the Court had not yet decided Seminole so Congress probably thought that Article I could support its all-out ab- rogation of See And to the extent it relied on Section 5, Congress acted before this Court cre- ated the “congruence and proportionality” test. See 1. For that reason, Congress likely did not appreciate the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries—and of creating a legislative record to back up that connection. But going forward, Congress will know those rules. And under them, if it detects violations of due process, then it may en- act a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pi- rates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice. III Florida Prepaid all but prewrote our decision today. That precedent made clear that Article I’s Intellectual Property Cite as: 589 U. S. (2020) 17 Opinion of the Court Clause could not provide the basis for an abrogation of sov- ereign And it held that Section 5 of the Four- teenth Amendment could not support an abrogation on a legislative record like the one here. For both those reasons, we affirm the judgment below. It is so ordered. Cite as: 589 U. S. (2020) 1 HOMAS, of TOpinion J.,Tconcurring HOMAS, J. SUPREME COURT OF THE UNITED STATES No. 18–877 FREDERICK L. ALLEN, ET AL., PETITIONERS v. ROY A. COOPER, III, GOVERNOR OF NORTH CAROLINA, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [March 23, 2020] JUSTICE THOMAS, concurring in part and concurring in the judgment. I agree the Court’s conclusion that the Copyright Remedy Clarification Act of 1990, 17 U.S. C. et seq., does not validly abrogate States’ sovereign But I cannot join the Court’s opinion in its entirety. I write sep- arately to note two disagreements and one question that re- mains open for resolution in a future case. First, although I agree that Florida Prepaid Postsecond- ary Ed. Expense (1999), is binding precedent, I cannot join the Court’s dis- cussion of stare decisis. The Court claims we need “ ‘special justification[s]’ ” to overrule precedent because error alone “cannot overcome stare decisis.” Ante, at 9–10. That ap- proach “does not comport our judicial duty under Arti- cle III.” Gamble v. United States, 587 U. S. (2019) (THOMAS, J., concurring) (slip op., at 2). If our decision in Florida Prepaid were demonstrably erroneous, the Court would be obligated to “correct the error, regardless of whether other factors support overruling the precedent.” 587 U. S., at – (same) (slip op., –9). Here, adherence to our precedent is warranted because petitioners have not demonstrated that our decision in Flor- 2 ALLEN v. COOPER Opinion of THOMAS, J. ida Prepaid “is incorrect, much less demonstrably errone- ous.” Gamble, 587 U. S., at (same) (slip op., 7). The Court in Florida Prepaid correctly concluded that “Con- gress may not abrogate state sovereign immunity pursuant to its Article I powers,” including its powers under the In- tellectual Property ). Petitioners’ claims to the contrary are unpersuasive.* Second, I do not join the Court’s discussion regarding fu- ture copyright legislation. In my view, we should opine on “only the case before us in light of the record before us.” Manhattan Community Access Corp. v. Halleck, 587 U. S. (2019) (slip op., 5). We should not purport to advise Congress on how it might exercise its legislative au- thority, nor give our blessing to hypothetical statutes or leg- islative records not at issue here. Finally, I believe the question whether copyrights are property in the original meaning of the Fourteenth Amendment’s Due Process Clause remains open. The Court relies on Fox Film to conclude that “[c]opyrights are a form of prop- erty.” Ante, 1. But Fox Film Corp. addressed “property” in the context of state tax laws, not the Due Process 286 U.S., 28. And although we stated in Florida Pre- paid that patents are “property” for due process purposes, we did not analyze the Fourteenth Amendment’s text, and neither of the cases we cited involved due process. 527 U.S., 42 was wrongly decided. See at 379–385 (THOMAS, J., dissenting). The Court today rightfully limits that de- cision to the Bankruptcy Clause context, calling it a “good-for-one-clause- only holding.” Ante, at 9. I would go a step further and recognize that the Court’s decision in Katz is not good for even that clause. Cite as: 589 U. S. (2020) 3 Opinion of THOMAS, J. (1857); Consolidated Fruit-Jar 96 (1877)); see also Merrill, The Landscape of Constitu- tional Property, (noting that the “Court has not always been attentive to the ‘property’ threshold” of the Due Process Clauses). Because the parties agree that petitioners’ copyrights are property, and because the Fourteenth Amendment does not authorize this stat- ute’s abrogation of state sovereign immunity either way, we need not resolve this open question today. I would, how- ever, be willing to consider the matter in an appropriate case. For these reasons, I join all of the Court’s opinion except for the final paragraph in Part II–A and the final paragraph in Part II–B. Cite as: 589 U. S. (2020) 1 BREYER, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 18–877 FREDERICK L. ALLEN, ET AL., PETITIONERS v. ROY A. COOPER, III, GOVERNOR OF NORTH CAROLINA, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [March 23, 2020] JUSTICE BREYER, whom JUSTICE GINSBURG joins, concurring in the judgment.

Justice Sotomayor

dissenting

Manhattan Community Access Corp. v. Halleck

https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/

https://www.courtlistener.com/api/rest/v3/clusters/4630087/

2018-047

The Court tells a very reasonable story about a case that is not before us. I write to address the one that is. This is a case about an organization appointed by the government to administer a constitutional public forum. (It is not, as the Court suggests, about a private property owner that simply opened up its property to others.) New York City (the City) secured a property interest in public- access television channels when it granted a cable fran- chise to a cable company. State regulations require those public-access channels to be made open to the public on terms that render them a public forum. The City con- tracted out the administration of that forum to a private organization, petitioner Manhattan Community Access Corporation (MNN). By accepting that agency relation- ship, MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other. I A A cable-television franchise is, essentially, a license to create a system for distributing cable TV in a certain area. It is a valuable right, usually conferred on a private com- 2 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting pany by a local government. See 47 U.S. C. §§522(9)–(10), 541(a)(2), (b)(1); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 628 (1994). A private company cannot enter a local cable market without one. §541(b)(1). Cable companies transmit content through wires that stretch “between a transmission facility and the television sets of individual subscribers.” Id., at 627–628. Creating this network of wires is a disruptive undertaking that “entails the use of public rights-of-way and easements.” Id., at 628. New York State authorizes municipalities to grant cable franchises to cable companies of a certain size only if those companies agree to set aside at least one public access channel. 16 N. Y. Codes, Rules & Regs. §§895.1(f ), 895.4(b)(1) (2016). New York then requires that those public-access channels be open to all comers on “a first- come, first-served, nondiscriminatory basis.” §895.4(c)(4). Likewise, the State prohibits both cable franchisees and local governments from “exercis[ing] any editorial control” over the channels, aside from regulating obscenity and other unprotected content. §§895.4(c)(8)–(9). B Years ago, New York City (no longer a party to this suit) and Time Warner Entertainment Company (never a party to this suit) entered into a cable-franchise agreement. App. 22. Time Warner received a cable franchise; the City received public-access channels. The agreement also provided that the public-access channels would be operated by an independent, nonprofit corporation chosen by the Manhattan borough president. But the City, as the prac- tice of other New York municipalities confirms, could have instead chosen to run the channels itself. See §895.4(c)(1); Brief for Respondents 35 (citing examples). MNN is the independent nonprofit that the borough president appointed to run the channels; indeed, MNN Cite as: 587 U. S. ____ (2019) 3 SOTOMAYOR, J., dissenting appears to have been incorporated in 1991 for that precise purpose, with seven initial board members selected by the borough president (though only two thus selected today). See App. 23; Brief for Respondents 7, n. 1. The City ar- ranged for MNN to receive startup capital from Time Warner and to be funded through franchise fees from Time Warner and other Manhattan cable franchisees. App. 23; Brief for New York County Lawyers Association (NYCLA) as Amicus Curiae 27; see also App. to Brief for Respondents 19a. As the borough president announced upon MNN’s formation in 1991, MNN’s “central charge is to administer and manage all the public access channels of the cable television systems in Manhattan.” App. to Brief for NYCLA as Amicus Curiae 1. As relevant here, respondents DeeDee Halleck and Jesus Papoleto Melendez sued MNN in U. S. District Court for the Southern District of New York under 42 U.S. C. §1983. They alleged that the public-access chan- nels, “[r]equired by state regulation and [the] local fran- chise agreements,” are “a designated public forum of unlimited character”; that the City had “delegated control of that public forum to MNN”; and that MNN had, in turn, engaged in viewpoint discrimination in violation of re- spondents’ First Amendment rights. App. 39. The District Court dismissed respondents’ First Amendment claim against MNN. The U. S. Court of Appeals for the Second Circuit reversed that dismissal, concluding that the public-access channels “are public forums and that [MNN’s] employees were sufficiently alleged to be state actors taking action barred by the First Amendment.” 882 F.3d 300, 301–302 (2018). Because the case before us arises from a motion to dismiss, re- spondents’ factual allegations must be accepted as true. Hernandez v. Mesa, 582 U. S. ___, ___ (2017) ( per curiam) (slip op., at 1). 4 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting II I would affirm the judgment below. The channels are clearly a public forum: The City has a property interest in them, and New York regulations require that access to those channels be kept open to all. And because the City (1) had a duty to provide that public forum once it granted a cable franchise and (2) had a duty to abide by the First Amendment once it provided that forum, those obligations did not evaporate when the City delegated the administra- tion of that forum to a private entity. Just as the City would have been subject to the First Amendment had it chosen to run the forum itself, MNN assumed the same responsibility when it accepted the delegation. A When a person alleges a violation of the right to free speech, courts generally must consider not only what was said but also in what context it was said. On the one hand, there are “public forums,” or settings that the government has opened in some way for speech by the public (or some subset of it). The Court’s prece- dents subdivide this broader category into various subcat- egories, with the level of leeway for government regulation of speech varying accordingly. See Minnesota Voters Alliance v. Mansky, 585 U. S. ___, ___ (2018) (slip op., at 7). Compare Frisby v. Schultz, 487 U.S. 474, 480 (1988) (streets and public parks, traditional public forums), with Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975) (city-leased theater, designated public forum), with Christian Legal Soc. Chapter of Univ. of Cal., Has- tings College of Law v. Martinez, 561 U.S. 661, 669, 679, and n. 12 (2010) (program for registered student organiza- tions, limited public forum). But while many cases turn on which type of “forum” is implicated, the important point here is that viewpoint discrimination is impermissi- ble in them all. See Good News Club v. Milford Central Cite as: 587 U. S. ____ (2019) 5 SOTOMAYOR, J., dissenting School, 533 U.S. 98, 106 (2001). On the other hand, there are contexts that do not fall under the “forum” rubric. For one, there are contexts in which the government is simply engaging in its own speech and thus has freedom to select the views it prefers. See, e.g., Walker v. Texas Div., Sons of Confederate Veter- ans, Inc., 576 U. S. ___, ___–___ (2015) (slip op., at 6–7) (specialty license plates); Pleasant Grove City v. Summum, 555 U.S. 460, 467–469, 481 (2009) (privately donated permanent monuments in a public park). 1 In addition, there are purely private spaces, where the First Amend- ment is (as relevant here) inapplicable. The First Amendment leaves a private store owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing unwanted views. See, e.g., Lloyd Corp. v. Tanner, 407 U.S. 551, 569–570 (1972). In these settings, there is no First Amendment right against viewpoint discrimination. Here, respondents alleged viewpoint discrimination. App. 39. So a key question in this case concerns what the Manhattan public-access channels are: a public forum of some kind, in which a claim alleging viewpoint discrimina- tion would be cognizable, or something else, such as gov- ernment speech or purely private property, where picking favored viewpoints is appropriately commonplace. 2 Nei- ther MNN nor the majority suggests that this is an in- —————— 1 That does not mean that no restrictions apply at all to the govern- ment’s expression in such spaces, but it does mean that the government can pick and choose among different views. See Walker, 576 U. S., at ___, ___–___ (slip op., at 6, 17–18); Summum, 555 U.S., at 468. 2 The channels are not, of course, a physical place. Under the Court’s precedents, that makes no difference: Regardless of whether something “is a forum more in a metaphysical than in a spatial or geographic sense, . . . the same principles are applicable.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 830 (1995) (treating “Stu- dent Activities Fund” as the forum at issue and citing cases in which a school’s mail system and a charity drive were the relevant forums). 6 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting stance of government speech. This case thus turns first and foremost on whether the public-access channels are or are not purely private property. 3 1 This Court has not defined precisely what kind of gov- ernmental property interest (if any) is necessary for a public forum to exist. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 801 (1985) (“a speaker must seek access to public property or to private property dedicated to public use”). But see ante, at 11, n. 3 (appearing to reject the phrase “private property dedicated to public use” as “passing dicta”). I assume for the sake of argument in this case that public-forum analysis is inap- propriate where the government lacks a “significant prop- erty interest consistent with the communicative purpose of the forum.” Denver Area Ed. Telecommunications Consor- tium, Inc. v. FCC, 518 U.S. 727, 829 (1996) (THOMAS, J., concurring in judgment in part and dissenting in part). Such an interest is present here. As described above, New York State required the City to obtain public-access channels from Time Warner in exchange for awarding a cable franchise. See supra, at 2. The exclusive right to use these channels (and, as necessary, Time Warner’s infrastructure) qualifies as a property interest, akin at the very least to an easement. The last time this Court considered a case centering on public-access channels, five Justices described an interest like the one here as similar to an easement. Although JUSTICE BREYER did not conclude that a public-access channel was indeed a public forum, he likened the cable —————— 3 As discussed below, it is possible that some (or even many) public- access channels are government speech. The channels that MNN administers, however, are clearly better thought of as a public forum given the New York regulations mandating open and equal access. See infra, at 9–10, and n. 7. Cite as: 587 U. S. ____ (2019) 7 SOTOMAYOR, J., dissenting company’s agreement to reserve such channels “to the reservation of a public easement, or a dedication of land for streets and parks, as part of a municipality’s approval of a subdivision of land.” Denver Area, 518 U.S., at 760– 761 (joined by Stevens and Souter, JJ.). And Justice Kennedy observed not only that an easement would be an appropriate analogy, id., at 793–794 (opinion concurring in part, concurring in judgment in part, and dissenting in part, joined by GINSBURG, J.), but also that “[p]ublic access channels meet the definition of a public forum,” id., at 791, “even though they operate over property to which the cable operator holds title,” id., at 792; see also id., at 792– 793 (noting that the entire cable system’s existence stems from the municipality’s decision to grant the franchise). What those five Justices suggested in 1996 remains true today. “A common idiom describes property as a ‘bun- dle of sticks’—a collection of individual rights which, in certain combinations, constitute property.” United States v. Craft, 535 U.S. 274, 278 (2002). Rights to exclude and to use are two of the most crucial sticks in the bundle. See id., at 283. “State law determines . . . which sticks are in a person’s bundle,” id., at 278, and therefore defining prop- erty itself is a state-law exercise. 4 As for whether there is a sufficient property interest to trigger First Amendment forum analysis, related precedents show that there is. As noted above, there is no disputing that Time Warner owns the wires themselves. See Turner, 512 U.S., at 628. If the wires were a road, it would be easy to define the public’s right to walk on it as an easement. See, e.g., In re India Street, 29 N.Y. 2d 97, 100–103, 272 N. E 2d 518, —————— 4 The parties have not pointed this Court to any New York law defini- tively establishing the status of the channels. But even if there were uncertainty about the status of the channels under New York law, that would not be a reason to resolve the case against respondents (plaintiffs below) at the motion to dismiss stage. See infra, at 12, n. 9, 14. 8 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting 518–520 (1971). Similarly, if the wires were a theater, there would be no question that a government’s long-term lease to use it would be sufficient for public-forum pur- poses. Southeastern Promotions, 420 U.S., at 547, 555. But some may find this case more complicated because the wires are not a road or a theater that one can physically occupy; they are a conduit for transmitting signals that appear as television channels. In other words, the ques- tion is how to understand the right to place content on those channels using those wires. The right to convey expressive content using someone else’s physical infrastructure is not new. To give another low-tech example, imagine that one company owns a billboard and another rents space on that billboard. The renter can have a property interest in placing content on the billboard for the lease term even though it does not own the billboard itself. See, e.g., Naegele Outdoor Adver- tising Co. of Minneapolis v. Lakeville, 532 N.W.2d 249, 253 (Minn. 1995); see also Matter of XAR Corp. v. Di Do- nato, 76 A.D. 2d 972, 973, 429 N. Y. S. 2d 59, 60 (1980) (“Although invariably labeled ‘leases,’ agreements to erect advertising signs or to place signs on walls or fences are easements in gross”). The same principle should operate in this higher tech realm. Just as if the channels were a billboard, the City obtained rights for exclusive use of the channels by the public for the foreseeable future; no one is free to take the channels away, short of a contract renegotiation. Cf. Craft, 535 U.S., at 283. The City also obtained the right to administer, or delegate the administration of, the chan- nels. The channels are more intangible than a billboard, but no one believes that a right must be tangible to qualify as a property interest. See, e.g., Armstrong v. United States, 364 U.S. 40, 48–49 (1960) (treating destruction of valid liens as a taking); Adams Express Co. v. Ohio State Auditor, 166 U.S. 185, 219 (1897) (treating “privileges, Cite as: 587 U. S. ____ (2019) 9 SOTOMAYOR, J., dissenting corporate franchises, contracts or obligations” as taxable property). And it is hardly unprecedented for a govern- ment to receive a right to transmit something over a pri- vate entity’s infrastructure in exchange for conferring something of value on that private entity; examples go back at least as far as the 1800s. 5 I do not suggest that the government always obtains a property interest in public-access channels created by franchise agreements. But the arrangement here is con- sistent with what the Court would treat as a governmen- tal property interest in other contexts. New York City gave Time Warner the right to lay wires and sell cable TV. In exchange, the City received an exclusive right to send its own signal over Time Warner’s infrastructure—no different than receiving a right to place ads on another’s billboards. Those rights amount to a governmental prop- erty interest in the channels, and that property interest is clearly “consistent with the communicative purpose of the forum,” Denver Area, 518 U.S., at 829 (opinion of THOMAS, J.). Indeed, it is the right to transmit the very content to which New York law grants the public open and equal access. 2 With the question of a governmental property interest resolved, it should become clear that the public-access channels are a public forum. 6 Outside of classic examples —————— 5 For example, during the railroad boom, governments obtained not only physical easements in favor of the public over tracks used, owned, and managed by private railroads, including rights to use the rails and all relevant “fixtures and appurtenances,” see, e.g., Lake Superior & Mississippi R. Co. v. United States, 93 U.S. 442, 444, 453–454 (1877), but also, in some situations, rights to transmit personnel and freight for free or at reduced rates, Ellis, Railroad Land Grant Rates, 1850–1945, 21 J. Land & P. U. Econ. 207, 209, 211–212 (1945). 6 Though the majority disagrees on the property question, I do not take it seriously to dispute that this point would follow. See ante, at 10 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting like sidewalks and parks, a public forum exists only where the government has deliberately opened up the setting for speech by at least a subset of the public. Cornelius, 473 U.S., at 802. “Accordingly, the Court has looked to the policy and practice of the government,” as well as the nature of the property itself, “to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.” See ibid. For example, a state college might make its facilities open to student groups, or a municipality might open up an audi- torium for certain public meetings. See id., at 802–803. The requisite governmental intent is manifest here. As noted above, New York State regulations require that the channels be made available to the public “on a first-come, first-served, nondiscriminatory basis.” 16 N. Y. Codes, Rules & Regs. §895.4(c)(4); see also §§895.4(c)(8)–(9). The State, in other words, mandates that the doors be wide open for public expression. MNN’s contract with Time Warner follows suit. App. 23. And that is essentially how MNN itself describes things. See Tr. of Oral Arg. 9 (“We do not prescreen videos. We—they come into the door. We put them on the air”). 7 These regulations “evidenc[e] a clear intent to create a public forum.” Cornelius, 473 U.S., at 802. B If New York’s public-access channels are a public forum, it follows that New York cannot evade the First Amend- ment by contracting out administration of that forum to a —————— 14–15. 7 New York may be uncommon (as it often is); public-access channels in other States may well have different policies and practices that make them more like government speech than constitutional forums. See Brief for Respondents 30–31; Brief for American Civil Liberties Union et al. as Amici Curiae 13–15. New York’s scheme, however, is the only one before us. Cite as: 587 U. S. ____ (2019) 11 SOTOMAYOR, J., dissenting private agent. When MNN took on the responsibility of administering the forum, it stood in the City’s shoes and became a state actor for purposes of 42 U.S. C. §1983. This conclusion follows from the Court’s decision in West v. Atkins, 487 U.S. 42 (1988). The Court in West unani- mously held that a doctor hired to provide medical care to state prisoners was a state actor for purposes of §1983. Id., at 54; see also id., at 58 (Scalia, J., concurring in part and concurring in judgment). Each State must provide medical care to prisoners, the Court explained, id., at 54, and when a State hires a private doctor to do that job, the doctor becomes a state actor, “ ‘clothed with the authority of state law,’ ” id., at 55. If a doctor hired by the State abuses his role, the harm is “caused, in the sense relevant for state-action inquiry,” by the State’s having incarcer- ated the prisoner and put his medical care in that doctor’s hands. Ibid. The fact that the doctor was a private contractor, the Court emphasized, made no difference. Ibid. It was “the physician’s function within the state system,” not his private-contractor status, that determined whether his conduct could “fairly be attributed to the State.” Id., at 55–56. Once the State imprisoned the plaintiff, it owed him duties under the Eighth Amendment; once the State delegated those duties to a private doctor, the doctor became a state actor. See ibid.; see also id., at 56–57. If the rule were any different, a State would “ ‘be free to contract out all services which it is constitutionally obli- gated to provide and leave its citizens with no means for vindication of those rights, whose protection has been delegated to ‘private’ actors, when they have been denied.’ ” Id., at 56, n. 14. West resolves this case. Although the settings are dif- ferent, the legal features are the same: When a govern- ment (1) makes a choice that triggers constitutional obli- gations, and then (2) contracts out those constitutional 12 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting responsibilities to a private entity, that entity—in agree- ing to take on the job—becomes a state actor for purposes of §1983. 8 Not all acts of governmental delegation necessarily trigger constitutional obligations, but this one did. New York State regulations required the City to secure public- access channels if it awarded a cable franchise. 16 N. Y. Codes, Rules & Regs. §895.4(b)(1). The City did award a cable franchise. The State’s regulations then required the City to make the channels it obtained available on a “first- come, first-served, nondiscriminatory basis.” 9 §895.4(c)(4). —————— 8 Governments are, of course, not constitutionally required to open prisons or public forums, but once they do either of these things, constitutional obligations attach. The rule that a government may not evade the Constitution by substituting a private administrator, mean- while, is not a prison-specific rule. More than 50 years ago, for exam- ple, this Court made clear in Evans v. Newton, 382 U.S. 296 (1966), that the city of Macon, Georgia, could not evade the Fourteenth Amendment’s Equal Protection Clause by handing off control of a park to a group “of ‘private’ trustees.” Id., at 301. Rather, “the public character of [the] park require[d] that it be treated as a public institu- tion subject to the command of the Fourteenth Amendment, regardless of who ha[d] title under state law.” Id., at 302. 9 Accordingly, this is not a case in which a private entity has been asked to exercise standardless discretion. See, e.g., American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999). Had New York law left MNN free to choose its favorite submissions, for example, a differ- ent result might well follow. MNN has suggested to this Court that its contract with Time Warner allows it “to curate content, to decide to put shows together on one of our channels or a different channel.” Tr. of Oral Arg. 6; see Reply Brief 9. But MNN’s contract cannot defeat New York law’s “first-come, first- served, nondiscriminatory” scheduling requirement, 16 N. Y. Codes, Rules & Regs. §895.4(c)(4), and the discretion MNN asserts seems to be at most some limited authority to coordinate the exact placement and timing of the content it is obliged to accept indiscriminately, see Tr. of Oral Arg. 25–26. That seems akin to the authority to make reasonable time, place, and manner provisions, which is consistent with adminis- tering any public forum. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). As for any factual assertions about how the channels Cite as: 587 U. S. ____ (2019) 13 SOTOMAYOR, J., dissenting That made the channels a public forum. See supra, at 9– 10. Opening a public forum, in turn, entailed First Amendment obligations. The City could have done the job itself, but it instead delegated that job to a private entity, MNN. MNN could have said no, but it said yes. (Indeed, it appears to exist entirely to do this job.) By accepting the job, MNN accepted the City’s responsibilities. See West, 487 U.S., at 55. The First Amendment does not fall silent simply because a government hands off the administration of its constitu- tional duties to a private actor. III The majority acknowledges that the First Amendment could apply when a local government either (1) has a property interest in public-access channels or (2) is more directly involved in administration of those channels than the City is here. Ante, at 15. And it emphasizes that it “decide[s] only the case before us in light of the record before us.” Ibid. These case-specific qualifiers sharply limit the immediate effect of the majority’s decision, but that decision is still meaningfully wrong in two ways. First, the majority erroneously decides the property ques- tion against the plaintiffs as a matter of law. Second, and more fundamentally, the majority mistakes a case about the government choosing to hand off responsibility to an agent for a case about a private entity that simply enters a marketplace. A The majority’s explanation for why there is no govern- —————— are operated in practice, this case arises from MNN’s motion to dismiss, so the facts asserted against it must be accepted as true. Hernandez v. Mesa, 582 U. S. ___, ___ (2017) (per curiam) (slip op., at 1). And any uncertainty about the facts or New York law, in any event, would be a reason to vacate and remand, not reverse. 14 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting mental property interest here, ante, at 14–15, does not hold up. The majority focuses on the fact that “[b]oth Time Warner and MNN are private entities”; that Time Warner “owns its cable network, which contains the public access channels”; and that “MNN operates those public access channels with its own facilities and equipment.” Ante, at 14; see also ante, at 15. Those considerations cannot resolve this case. The issue is not who owns the cable network or that MNN uses its own property to oper- ate the channels. The key question, rather, is whether the channels themselves are purely private property. An advertiser may not own a billboard, but that does not mean that its long-term lease is not a property interest. See supra, at 8. The majority also says that “[n]othing in the record here suggests that a government . . . owns or leases either the cable system or the public access channels at issue here.” Ante, at 14. But the cable system itself is irrelevant, and, as explained above, the details of the exchange that yielded Time Warner’s cable franchise suggest a governmental property interest in the channels. See supra, at 6–9. The majority observes that “the franchise agreements expressly place the public access channels ‘under the jurisdiction’ of MNN,” ante, at 14, but that language sim- ply describes the City’s appointment of MNN to administer the channels. The majority also chides respondents for failing to “alleg[e] in their complaint that the City has a property interest in the channels,” ibid., but, fairly read, respondents’ complaint includes such an assertion. 10 In —————— 10 Respondents alleged that the City “created an electronic public forum” and “delegat[ed] control of that forum to” MNN. App. 17. They further alleged that “[a]lmost all cable franchise agreements require cable operators—as a condition for easements to use the public rights- of-way—to dedicate some channels for programming by the public,” id., at 20, invoked the state regulations requiring the designation of a channel here, id., at 21, and then alleged that the City’s franchise Cite as: 587 U. S. ____ (2019) 15 SOTOMAYOR, J., dissenting any event, any ambiguity or imprecision does not justify resolving the case against respondents at the motion-to- dismiss stage. To the extent the majority has doubts about respondents’ complaint—or factual or state-law issues that may bear upon the existence of a property interest—the more prudent course would be to vacate and remand for the lower courts to consider those matters more fully. In any event, as I have explained, the best course of all would be to affirm. B More fundamentally, the majority’s opinion erroneously fixates on a type of case that is not before us: one in which a private entity simply enters the marketplace and is then subject to government regulation. The majority swings hard at the wrong pitch. The majority focuses on Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), which is a paradigmatic example of a line of cases that reject §1983 liability for private actors that simply operate against a regulatory backdrop. Jackson emphasized that the “fact that a business is subject to state regulation does not by itself convert its action into that of the State.” Id., at 350; accord, ante, at 12. Thus, the fact that a utility company entered the marketplace did not make it a state actor, even if it was highly regulated. See Jackson, 419 U.S., at 358; accord, —————— agreement “requires Time Warner to set aside” the channels, id., at 22. While the complaint does not use the words “property interest,” those allegations can be read to include the idea that whatever was “set aside” or “dedicate[d],” id., at 20, 22, qualified as a sufficient City property interest to support respondents’ assertion of a public forum. Cf. People v. Brooklyn & Queens Transit Corp., 273 N.Y. 394, 400–401, 7 N.E.2d 833, 835 (1937) (discussing dedications of property to public use); cf. also Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 794 (1996) (Kennedy, J., concurring in part, con- curring in judgment in part, and dissenting in part) (noting this theory). 16 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting ante, at 12–13. The same rule holds, of course, for private comedy clubs and grocery stores. See ante, at 9. 11 The Jackson line of cases is inapposite here. MNN is not a private entity that simply ventured into the market- place. It occupies its role because it was asked to do so by the City, which secured the public-access channels in exchange for giving up public rights of way, opened those channels up (as required by the State) as a public forum, and then deputized MNN to administer them. That dis- tinguishes MNN from a private entity that simply sets up shop against a regulatory backdrop. To say that MNN is nothing more than a private organization regulated by the government is like saying that a waiter at a restaurant is —————— 11 There was a time when this Court’s precedents may have portended the kind of First Amendment liability for purely private property owners that the majority spends so much time rejecting. See Marsh v. Alabama, 326 U.S. 501, 505–509 (1946) (treating a company-owned town as subject to the First Amendment); Food Employees v. Logan Valley Plaza, Inc., 391 U.S. 308, 315–320, and n. 9, 325 (1968) (extend- ing Marsh to cover a private shopping center to the extent that it sought to restrict speech about its businesses). But the Court soon stanched that trend. See Lloyd Corp. v. Tanner, 407 U.S. 551, 561–567 (1972) (cabining Marsh and refusing to extend Logan Valley); Hudgens v. NLRB, 424 U.S. 507, 518 (1976) (making clear that “the rationale of Logan Valley did not survive” Lloyd). Ever since, this Court has been reluctant to find a “public function” when it comes to “private commer- cial transactions” (even if they occur against a legal or regulatory backdrop), see, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 161–163 (1978), instead requiring a closer connection between the private entity and a government or its agents, see, e.g., Brentwood Academy v. Ten- nessee Secondary School Athletic Assn., 531 U.S. 288, 298 (2001) (nonprofit interscholastic athletic association “pervasive[ly] entwine[d]” with governmental institutions and officials); Lugar v. Edmondson Oil Co., 457 U.S. 922, 942 (1982) (state-created system “whereby state officials [would] attach property on the ex parte application of one party to a private dispute”); see also Burton v. Wilmington Parking Authority, 365 U.S. 715, 723–725 (1961) (restaurant in municipal parking garage partly maintained by municipal agency); accord, ante, at 6–7. Jackson exemplifies the line of cases that supplanted cases like Logan Valley— not cases like this one. Cite as: 587 U. S. ____ (2019) 17 SOTOMAYOR, J., dissenting an independent food seller who just happens to be highly regulated by the restaurant’s owners. The majority also relies on the Court’s statements that its “public function” test requires that a function have been “traditionally and exclusively performed” by the government. Ante, at 6 (emphasis deleted); see Jackson, 419 U.S., at 352. Properly understood, that rule cabins liability in cases, such as Jackson, in which a private actor ventures of its own accord into territory shared (or regu- lated) by the government (e.g., by opening a power com- pany or a shopping center). The Court made clear in West that the rule did not reach further, explaining that “the fact that a state employee’s role parallels one in the pri- vate sector” does not preclude a finding of state action. 487 U.S., at 56, n. 15. When the government hires an agent, in other words, the question is not whether it hired the agent to do some- thing that can be done in the private marketplace too. If that were the key question, the doctor in West would not have been a state actor. Nobody thinks that orthopedics is a function “traditionally exclusively reserved to the State,” Jackson, 419 U.S., at 352. The majority consigns West to a footnote, asserting that its “scenario is not present here because the government has no [constitutional] obligation to operate public access channels.” Ante, at 7, n. 1. The majority suggests that West is different because “the State was constitutionally obligated to provide medical care to prison inmates.” Ante, at 7, n. 1. But what the majority ignores is that the State in West had no constitutional obligation to open the prison or incarcerate the prisoner in the first place; the obligation to provide medical care arose when it made those prior choices. The City had a comparable constitutional obligation here—one brought about by its own choices, made against a state-law backdrop. The City, of course, had no constitu- 18 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting tional obligation to award a cable franchise or to operate public-access channels. But once the City did award a cable franchise, New York law required the City to obtain public-access channels, see supra, at 2, and to open them up as a public forum, see supra, at 9–10. That is when the City’s obligation to act in accordance with the First Amendment with respect to the channels arose. That is why, when the City handed the administration of that forum off to an agent, the Constitution followed. See supra, at 10–13. 12 The majority is surely correct that “when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment.” Ante, at 9. That is because the majority is not talking about constitutional forums—it is talking about spaces where private entities have simply invited others to come speak. A comedy club can decide to open its doors as wide as it wants, but it cannot appoint itself as a government agent. The difference is between providing a service of one’s own accord and being asked by the government to administer a constitutional responsibility (indeed, here, existing to do so) on the government’s behalf. 13 —————— 12 Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), by con- trast, exemplifies a type of case in which a private actor provides a service that there is no governmental obligation to provide at all. See id., at 353 (no state requirement for government to provide utility service); see also, e.g., Hudgens, 424 U.S. 507 (shopping center). In West v. Atkins, 487 U.S. 42 (1988), by contrast, the prison was obli- gated to provide health care in accordance with the Eighth Amendment to its prisoners once it incarcerated them, and here, the City was required to provide a public forum to its residents in accordance with the First Amendment once it granted the cable franchise. See supra, at 11–13. 13 Accordingly, the majority need not fear that “all private property owners and private lessees who open their property for speech [c]ould be subject to First Amendment constraints.” Ante, at 10. Those kinds of entities are not the government’s agents; MNN is. Whether such entities face “extensive regulation” or require “government licenses, government contracts, or government-granted monopolies,” ante, at 12, Cite as: 587 U. S. ____ (2019) 19 SOTOMAYOR, J., dissenting To see more clearly the difference between the cases on which the majority fixates and the present case, leave aside the majority’s private comedy club. Imagine instead that a state college runs a comedy showcase each year, renting out a local theater and, pursuant to state regula- tions mandating open access to certain kinds of student activities, allowing students to sign up to perform on a first-come, first-served basis. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995). After a few years, the college decides that it is tired of running the show, so it hires a performing-arts nonprofit to do the job. The nonprofit prefers humor that makes fun of a certain political party, so it allows only student acts that share its views to participate. Does the majority believe that the nonprofit is indistinguishable, for purposes of state action, from a private comedy club opened by local entrepreneurs? I hope not. But two dangers lurk here regardless. On the one hand, if the City’s decision to outsource the chan- nels to a private entity did render the First Amendment irrelevant, there would be substantial cause to worry about the potential abuses that could follow. Can a state university evade the First Amendment by hiring a non- profit to apportion funding to student groups? Can a city do the same by appointing a corporation to run a munici- pal theater? What about its parks? On the other hand, the majority hastens to qualify its decision, see ante, at 7, n. 1, 15, and to cabin it to the specific facts of this case, ante, at 15. Those are prudent limitations. Even so, the majority’s focus on Jackson still risks sowing confusion among the lower courts about how and when government outsourcing will render any abuses that follow beyond the reach of the Constitution. In any event, there should be no confusion here. MNN —————— is immaterial, so long as they have not accepted the government’s request to fulfill the government’s duties on its behalf. 20 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting is not a private entity that ventured into the marketplace and found itself subject to government regulation. It was asked to do a job by the government and compensated accordingly. If it does not want to do that job anymore, it can stop (subject, like any other entity, to its contractual obligations). But as long as MNN continues to wield the power it was given by the government, it stands in the government’s shoes and must abide by the First Amend- ment like any other government actor. IV This is not a case about bigger governments and smaller individuals, ante, at 16; it is a case about principals and agents. New York City opened up a public forum on public- access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amend- ment, just as if the City had decided to run the public forum itself. While the majority emphasizes that its decision is nar- row and factbound, ante, at 15, that does not make it any less misguided. It is crucial that the Court does not con- tinue to ignore the reality, fully recognized by our prece- dents, that private actors who have been delegated consti- tutional responsibilities like this one should be accountable to the Constitution’s demands. I respectfully dissent

The Court tells a very reasonable story about a case that is not before us. I write to address the one that is. This is a case about an organization appointed by the government to administer a constitutional public forum. (It is not, as the Court suggests, about a private property owner that simply opened up its property to others.) New York City (the City) secured a property interest in public- access television channels when it granted a cable fran- chise to a cable company. State regulations require those public-access channels to be made open to the public on terms that render them a public forum. The City con- tracted out the administration of that forum to a private organization, petitioner Manhattan Community Access Corporation (MNN). By accepting that agency relation- ship, MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other. I A A cable-television franchise is, essentially, a license to create a system for distributing cable TV in a certain area. It is a valuable right, usually conferred on a private com- 2 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting pany by a local government. See 47 U.S. C. 541(a)(2), (b)(1); Broadcasting System, A private company cannot enter a local cable market without one. Cable companies transmit content through wires that stretch “between a transmission facility and the television sets of individual subscribers.” at 627–. Creating this network of wires is a disruptive undertaking that “entails the use of public rights-of-way and easements.” at New York State authorizes municipalities to grant cable franchises to cable companies of a certain size only if those companies agree to set aside at least one public access channel. 16 N. Y. Codes, Rules & Regs. ), 895.4(b)(1) (2016). New York then requires that those public-access channels be open to all comers on “a first- come, first-served, nondiscriminatory basis.” Likewise, the State prohibits both cable franchisees and local governments from “exercis[ing] any editorial control” over the channels, aside from regulating obscenity and other unprotected content. B Years ago, New York City (no longer a party to this suit) and Time Warner Entertainment Company (never a party to this suit) entered into a cable-franchise agreement. App. 22. Time Warner received a cable franchise; the City received public-access channels. The agreement also provided that the public-access channels would be operated by an independent, nonprofit corporation chosen by the Manhattan borough president. But the City, as the prac- tice of other New York municipalities confirms, could have instead chosen to run the channels itself. See Brief for Respondents 35 (citing examples). MNN is the independent nonprofit that the borough president appointed to run the channels; indeed, MNN Cite as: 587 U. S. (2019) 3 SOTOMAYOR, J., dissenting appears to have been incorporated in 1991 for that precise purpose, with seven initial board members selected by the borough president (though only two thus selected today). See App. 23; Brief for Respondents 7, n. 1. The City ar- ranged for MNN to receive startup capital from Time Warner and to be funded through franchise fees from Time Warner and other Manhattan cable franchisees. App. 23; Brief for New York County Lawyers Association (NYCLA) as Amicus Curiae 27; see also App. to Brief for Respondents 19a. As the borough president announced upon MNN’s formation in 1991, MNN’s “central charge is to administer and manage all the public access channels of the cable television systems in Manhattan.” App. to Brief for NYCLA as Amicus Curiae 1. As relevant here, respondents DeeDee Halleck and Jesus Papoleto Melendez sued MNN in U. S. District Court for the Southern District of New York under 42 U.S. C. They alleged that the public-access chan- nels, “[r]equired by state regulation and [the] local fran- chise agreements,” are “a designated public forum of unlimited character”; that the City had “delegated control of that public forum to MNN”; and that MNN had, in turn, engaged in viewpoint discrimination in violation of re- spondents’ First Amendment rights. App. 39. The District Court dismissed respondents’ First Amendment claim against MNN. The U. S. Court of Appeals for the Second Circuit reversed that dismissal, concluding that the public-access channels “are public forums and that [MNN’s] employees were sufficiently alleged to be state actors taking action barred by the First Amendment.” Because the case before us arises from a motion to dismiss, re- spondents’ factual allegations must be accepted as true. Hernandez v. Mesa, 582 U. S. (2017) ( per curiam) (slip op., at 1). 4 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting II I would affirm the judgment below. The channels are clearly a public forum: The City has a property interest in them, and New York regulations require that access to those channels be kept open to all. And because the City (1) had a duty to provide that public forum once it granted a cable franchise and (2) had a duty to abide by the First Amendment once it provided that forum, those obligations did not evaporate when the City delegated the administra- tion of that forum to a private entity. Just as the City would have been subject to the First Amendment had it chosen to run the forum itself, MNN assumed the same responsibility when it accepted the delegation. A When a person alleges a violation of the right to free speech, courts generally must consider not only what was said but also in what context it was said. On the one hand, there are “public forums,” or settings that the government has opened in some way for speech by the public (or some subset of it). The Court’s prece- dents subdivide this broader category into various subcat- egories, with the level of leeway for government regulation of speech varying accordingly. See Minnesota Voters Alliance v. Mansky, 585 U. S. (slip op., at 7). Compare (streets and public parks, traditional public forums), with Southeastern 555 (1975) (city-leased theater, designated public forum), with Christian Legal Soc. Chapter of Univ. of Cal., Has- tings College of and n. 12 (2010) (program for registered student organiza- tions, limited public forum). But while many cases turn on which type of “forum” is implicated, the important point here is that viewpoint discrimination is impermissi- ble in them all. See Good News Club v. Milford Central Cite as: 587 U. S. (2019) 5 SOTOMAYOR, J., dissenting School, On the other hand, there are contexts that do not fall under the “forum” rubric. For one, there are contexts in which the government is simply engaging in its own speech and thus has freedom to select the views it prefers. See, e.g., Walker v. Texas Div., Sons of Confederate Veter- ans, Inc., 576 U. S. – (2015) (slip op., at 6–7) (specialty license plates); Pleasant Grove (privately donated permanent monuments in a public park). 1 In addition, there are purely private spaces, where the First Amend- ment is (as relevant here) inapplicable. The First Amendment leaves a private store owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing unwanted views. See, e.g., Lloyd Corp. v. Tanner, In these settings, there is no First Amendment right against viewpoint discrimination. Here, respondents alleged viewpoint discrimination. App. 39. So a key question in this case concerns what the Manhattan public-access channels are: a public forum of some kind, in which a claim alleging viewpoint discrimina- tion would be cognizable, or something else, such as gov- ernment speech or purely private property, where picking favored viewpoints is appropriately commonplace. 2 Nei- ther MNN nor the majority suggests that this is an in- —————— 1 That does not mean that no restrictions apply at all to the govern- ment’s expression in such spaces, but it does mean that the government can pick and choose among different views. See Walker, 576 U. S., at – (slip op., at 6, 17–18); 2 The channels are not, of course, a physical place. Under the Court’s precedents, that makes no difference: Regardless of whether something “is a forum more in a metaphysical than in a spatial or geographic sense, the same principles are applicable.” (treating “Stu- dent Activities Fund” as the forum at issue and citing cases in which a school’s mail system and a charity drive were the relevant forums). 6 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting stance of government speech. This case thus turns first and foremost on whether the public-access channels are or are not purely private property. 3 1 This Court has not defined precisely what kind of gov- ernmental property interest (if any) is necessary for a public forum to exist. See (“a speaker must seek access to public property or to private property dedicated to public use”). But see ante, at 11, n. 3 (appearing to reject the phrase “private property dedicated to public use” as “passing dicta”). I assume for the sake of argument in this case that public-forum analysis is inap- propriate where the government lacks a “significant prop- erty interest consistent with the communicative purpose of the forum.” Denver Ed. Telecommunications Consor- tium, (THOMAS, J., concurring in judgment in part and dissenting in part). Such an interest is present here. As described above, New York State required the City to obtain public-access channels from Time Warner in exchange for awarding a cable franchise. See The exclusive right to use these channels (and, as necessary, Time Warner’s infrastructure) qualifies as a property interest, akin at the very least to an easement. The last time this Court considered a case centering on public-access channels, five Justices described an interest like the one here as similar to an easement. Although JUSTICE BREYER did not conclude that a public-access channel was indeed a public forum, he likened the cable —————— 3 As discussed below, it is possible that some (or even many) public- access channels are government speech. The channels that MNN administers, however, are clearly better thought of as a public forum given the New York regulations mandating open and equal access. See infra, at 9–10, and n. 7. Cite as: 587 U. S. (2019) 7 SOTOMAYOR, J., dissenting company’s agreement to reserve such channels “to the reservation of a public easement, or a dedication of land for streets and parks, as part of a municipality’s approval of a subdivision of land.” Denver – 761 (joined by Stevens and Souter, JJ.). And Justice Kennedy observed not only that an easement would be an appropriate analogy, at 793– (opinion concurring in part, concurring in judgment in part, and dissenting in part, joined by GINSBURG, J.), but also that “[p]ublic access channels meet the definition of a public forum,” “even though they operate over property to which the cable operator holds title,” ; see also – 793 (noting that the entire cable system’s existence stems from the municipality’s decision to grant the franchise). What those five Justices suggested in 1996 remains true today. “A common idiom describes property as a ‘bun- dle of sticks’—a collection of individual rights which, in certain combinations, constitute property.” United States v. Rights to exclude and to use are two of the most crucial sticks in the bundle. See 83. “State law determines which sticks are in a person’s bundle,” 78, and therefore defining prop- erty itself is a state-law exercise. 4 As for whether there is a sufficient property interest to trigger First Amendment forum analysis, related precedents show that there is. As noted above, there is no disputing that Time Warner owns the wires themselves. See 512 U.S., at If the wires were a road, it would be easy to define the public’s right to walk on it as an easement. See, e.g., In re India Street, 100–103, 272 N. E 2d —————— 4 The parties have not pointed this Court to any New York law defini- tively establishing the status of the channels. But even if there were uncertainty about the status of the channels under New York law, that would not be a reason to resolve the case against respondents (plaintiffs below) at the motion to dismiss stage. See infra, at 12, n. 9, 14. 8 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting –0 (1971). Similarly, if the wires were a theater, there would be no question that a government’s long-term lease to use it would be sufficient for public-forum pur- poses. Southeastern 555. But some may find this case more complicated because the wires are not a road or a theater that one can physically occupy; they are a conduit for transmitting signals that appear as television channels. In other words, the ques- tion is how to understand the right to place content on those channels using those wires. The right to convey expressive content using someone else’s physical infrastructure is not new. To give another low-tech example, imagine that one company owns a billboard and another rents space on that billboard. The renter can have a property interest in placing content on the billboard for the lease term even though it does not own the billboard itself. See, e.g., Naegele Outdoor Adver- tising Co. of 253 ; see also Matter of XAR 429 N. Y. S. 2d 59, 60 (1980) (“Although invariably labeled ‘leases,’ agreements to erect advertising signs or to place signs on walls or fences are easements in gross”). The same principle should operate in this higher tech realm. Just as if the channels were a billboard, the City obtained rights for exclusive use of the channels by the public for the foreseeable future; no one is free to take the channels away, short of a contract renegotiation. Cf. 535 U.S., 83. The City also obtained the right to administer, or delegate the administration of, the chan- nels. The channels are more intangible than a billboard, but no one believes that a right must be tangible to qualify as a property interest. See, e.g., (treating destruction of valid liens as a taking); Adams Express (treating “privileges, Cite as: 587 U. S. (2019) 9 SOTOMAYOR, J., dissenting corporate franchises, contracts or obligations” as taxable property). And it is hardly unprecedented for a govern- ment to receive a right to transmit something over a pri- vate entity’s infrastructure in exchange for conferring something of value on that private entity; examples go back at least as far as the 1800s. 5 I do not suggest that the government always obtains a property interest in public-access channels created by franchise agreements. But the arrangement here is con- sistent with what the Court would treat as a governmen- tal property interest in other contexts. New York City gave Time Warner the right to lay wires and sell cable TV. In exchange, the City received an exclusive right to send its own signal over Time Warner’s infrastructure—no different than receiving a right to place ads on another’s billboards. Those rights amount to a governmental prop- erty interest in the channels, and that property interest is clearly “consistent with the communicative purpose of the forum,” Denver U.S., at (opinion of THOMAS, J.). Indeed, it is the right to transmit the very content to which New York law grants the public open and equal access. 2 With the question of a governmental property interest resolved, it should become clear that the public-access channels are a public forum. 6 Outside of classic examples —————— 5 For example, during the railroad boom, governments obtained not only physical easements in favor of the public over tracks used, owned, and managed by private railroads, including rights to use the rails and all relevant “fixtures and appurtenances,” see, e.g., Lake Superior & Mississippi R. but also, in some situations, rights to transmit personnel and freight for free or at reduced rates, Ellis, Railroad Land Grant Rates, 1850–1945, 21 J. Land & P. U. Econ. 207, 209, 211–212 (1945). 6 Though the majority disagrees on the property question, I do not take it seriously to dispute that this point would follow. See ante, at 10 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting like sidewalks and parks, a public forum exists only where the government has deliberately opened up the setting for speech by at least a subset of the public. Cornelius, 473 U.S., 02. “Accordingly, the Court has looked to the policy and practice of the government,” as well as the nature of the property itself, “to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.” See For example, a state college might make its facilities open to student groups, or a municipality might open up an audi- torium for certain public meetings. See 02–803. The requisite governmental intent is manifest here. As noted above, New York State regulations require that the channels be made available to the public “on a first-come, first-served, nondiscriminatory basis.” 16 N. Y. Codes, Rules & Regs. see also The State, in other words, mandates that the doors be wide open for public expression. MNN’s contract with Time Warner follows suit. App. 23. And that is essentially how MNN itself describes things. See Tr. of Oral Arg. 9 (“We do not prescreen videos. We—they come into the door. We put them on the air”). 7 These regulations “evidenc[e] a clear intent to create a public forum.” Cornelius, 473 U.S., 02. B If New York’s public-access channels are a public forum, it follows that New York cannot evade the First Amend- ment by contracting out administration of that forum to a —————— 14–15. 7 New York may be uncommon (as it often is); public-access channels in other States may well have different policies and practices that make them more like government speech than constitutional forums. See Brief for Respondents 30–31; Brief for American Civil Liberties Union et al. as Amici Curiae 13–15. New York’s scheme, however, is the only one before us. Cite as: 587 U. S. (2019) 11 SOTOMAYOR, J., dissenting private agent. When MNN took on the responsibility of administering the forum, it stood in the City’s shoes and became a state actor for purposes of 42 U.S. C. This conclusion follows from the Court’s decision in v. Atkins, The Court in unani- mously held that a doctor hired to provide medical care to state prisoners was a state actor for purposes of ; see also (Scalia, J., concurring in part and concurring in judgment). Each State must provide medical care to prisoners, the Court explained, and when a State hires a private doctor to do that job, the doctor becomes a state actor, “ ‘clothed with the authority of state law,’ ” If a doctor hired by the State abuses his role, the harm is “caused, in the sense relevant for state-action inquiry,” by the State’s having incarcer- ated the prisoner and put his medical care in that doctor’s hands. The fact that the doctor was a private contractor, the Court emphasized, made no difference. It was “the physician’s function within the state system,” not his private-contractor status, that determined whether his conduct could “fairly be attributed to the State.” at 55–56. Once the State imprisoned the plaintiff, it owed him duties under the Eighth Amendment; once the State delegated those duties to a private doctor, the doctor became a state actor. See ; see also at 56–57. If the rule were any different, a State would “ ‘be free to contract out all services which it is constitutionally obli- gated to provide and leave its citizens with no means for vindication of those rights, whose protection has been delegated to ‘private’ actors, when they have been denied.’ ” resolves this case. Although the settings are dif- ferent, the legal features are the same: When a govern- ment (1) makes a choice that triggers constitutional obli- gations, and then (2) contracts out those constitutional 12 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting responsibilities to a private entity, that entity—in agree- ing to take on the job—becomes a state actor for purposes of 8 Not all acts of governmental delegation necessarily trigger constitutional obligations, but this one did. New York State regulations required the City to secure public- access channels if it awarded a cable franchise. 16 N. Y. Codes, Rules & Regs. The City did award a cable franchise. The State’s regulations then required the City to make the channels it obtained available on a “first- come, first-served, nondiscriminatory basis.” 9 —————— 8 Governments are, of course, not constitutionally required to open prisons or public forums, but once they do either of these things, constitutional obligations attach. The rule that a government may not evade the Constitution by substituting a private administrator, mean- while, is not a prison-specific rule. More than 50 years ago, for exam- ple, this Court made clear in that the city of Macon, Georgia, could not evade the Fourteenth Amendment’s Equal Protection Clause by handing off control of a park to a group “of ‘private’ trustees.” Rather, “the public character of [the] park require[d] that it be treated as a public institu- tion subject to the command of the Fourteenth Amendment, regardless of who ha[d] title under state law.” 9 Accordingly, this is not a case in which a private entity has been asked to exercise standardless discretion. See, e.g., American Mfrs. Mut. Ins. Had New York law left MNN free to choose its favorite submissions, for example, a differ- ent result might well follow. MNN has suggested to this Court that its contract with Time Warner allows it “to curate content, to decide to put shows together on one of our channels or a different channel.” Tr. of Oral Arg. 6; see Reply Brief 9. But MNN’s contract cannot defeat New York law’s “first-come, first- served, nondiscriminatory” scheduling requirement, 16 N. Y. Codes, Rules & Regs. and the discretion MNN asserts seems to be at most some limited authority to coordinate the exact placement and timing of the content it is obliged to accept indiscriminately, see Tr. of Oral Arg. 25–26. That seems akin to the authority to make reasonable time, place, and manner provisions, which is consistent with adminis- tering any public forum. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). As for any factual assertions about how the channels Cite as: 587 U. S. (2019) 13 SOTOMAYOR, J., dissenting That made the channels a public forum. See at 9– 10. Opening a public forum, in turn, entailed First Amendment obligations. The City could have done the job itself, but it instead delegated that job to a private entity, MNN. MNN could have said no, but it said yes. (Indeed, it appears to exist entirely to do this job.) By accepting the job, MNN accepted the City’s responsibilities. See 487 U.S., The First Amendment does not fall silent simply because a government hands off the administration of its constitu- tional duties to a private actor. III The majority acknowledges that the First Amendment could apply when a local government either (1) has a property interest in public-access channels or (2) is more directly involved in administration of those channels than the City is here. Ante, at 15. And it emphasizes that it “decide[s] only the case before us in light of the record before us.” These case-specific qualifiers sharply limit the immediate effect of the majority’s decision, but that decision is still meaningfully wrong in two ways. First, the majority erroneously decides the property ques- tion against the plaintiffs as a matter of law. Second, and more fundamentally, the majority mistakes a case about the government choosing to hand off responsibility to an agent for a case about a private entity that simply enters a marketplace. A The majority’s explanation for why there is no govern- —————— are operated in practice, this case arises from MNN’s motion to dismiss, so the facts asserted against it must be accepted as true. Hernandez v. Mesa, 582 U. S. (2017) (per curiam) (slip op., at 1). And any uncertainty about the facts or New York law, in any event, would be a reason to vacate and remand, not reverse. 14 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting mental property interest here, ante, at 14–15, does not hold up. The majority focuses on the fact that “[b]oth Time Warner and MNN are private entities”; that Time Warner “owns its cable network, which contains the public access channels”; and that “MNN operates those public access channels with its own facilities and equipment.” Ante, at 14; see also ante, at 15. Those considerations cannot resolve this case. The issue is not who owns the cable network or that MNN uses its own property to oper- ate the channels. The key question, rather, is whether the channels themselves are purely private property. An advertiser may not own a billboard, but that does not mean that its long-term lease is not a property interest. See The majority also says that “[n]othing in the record here suggests that a government owns or leases either the cable system or the public access channels at issue here.” Ante, at 14. But the cable system itself is irrelevant, and, as explained above, the details of the exchange that yielded Time Warner’s cable franchise suggest a governmental property interest in the channels. See at 6–9. The majority observes that “the franchise agreements expressly place the public access channels ‘under the jurisdiction’ of MNN,” ante, at 14, but that language sim- ply describes the City’s appointment of MNN to administer the channels. The majority also chides respondents for failing to “alleg[e] in their complaint that the City has a property interest in the channels,” ib but, fairly read, respondents’ complaint includes such an assertion. 10 In —————— 10 Respondents alleged that the City “created an electronic public forum” and “delegat[ed] control of that forum to” MNN. App. 17. They further alleged that “[a]lmost all cable franchise agreements require cable operators—as a condition for easements to use the public rights- of-way—to dedicate some channels for programming by the public,” 0, invoked the state regulations requiring the designation of a channel here, 1, and then alleged that the City’s franchise Cite as: 587 U. S. (2019) 15 SOTOMAYOR, J., dissenting any event, any ambiguity or imprecision does not justify resolving the case against respondents at the motion-to- dismiss stage. To the extent the majority has doubts about respondents’ complaint—or factual or state-law issues that may bear upon the existence of a property interest—the more prudent course would be to vacate and remand for the lower courts to consider those matters more fully. In any event, as I have explained, the best course of all would be to affirm. B More fundamentally, the majority’s opinion erroneously fixates on a type of case that is not before us: one in which a private entity simply enters the marketplace and is then subject to government regulation. The majority swings hard at the wrong pitch. The majority focuses on which is a paradigmatic example of a line of cases that reject liability for private actors that simply operate against a regulatory backdrop. emphasized that the “fact that a business is subject to state regulation does not by itself convert its action into that of the State.” ; accord, ante, at 12. Thus, the fact that a utility company entered the marketplace did not make it a state actor, even if it was highly regulated. See ; accord, —————— agreement “requires Time Warner to set aside” the channels, 2. While the complaint does not use the words “property interest,” those allegations can be read to include the idea that whatever was “set aside” or “dedicate[d],” 0, 22, qualified as a sufficient City property interest to support respondents’ assertion of a public forum. Cf. 400–401, (discussing dedications of property to public use); cf. also Denver Ed. Telecommunications Consortium, Inc. v. FCC, (Kennedy, J., concurring in part, con- curring in judgment in part, and dissenting in part) (noting this theory). 16 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting ante, at 12–13. The same rule holds, of course, for private comedy clubs and grocery stores. See ante, at 9. 11 The line of cases is inapposite here. MNN is not a private entity that simply ventured into the market- place. It occupies its role because it was asked to do so by the City, which secured the public-access channels in exchange for giving up public rights of way, opened those channels up (as required by the State) as a public forum, and then deputized MNN to administer them. That dis- tinguishes MNN from a private entity that simply sets up shop against a regulatory backdrop. To say that MNN is nothing more than a private organization regulated by the government is like saying that a waiter at a restaurant is —————— 11 There was a time when this Court’s precedents may have portended the kind of First Amendment liability for purely private property owners that the majority spends so much time rejecting. See Marsh v. Alabama, (treating a company-owned town as subject to the First Amendment); Food (extend- ing Marsh to cover a private shopping center to the extent that it sought to restrict speech about its businesses). But the Court soon stanched that trend. See Lloyd 561–567 (cabining Marsh and refusing to extend Logan Valley); Hudgens v. NLRB, (making clear that “the rationale of Logan Valley did not survive” Lloyd). Ever since, this Court has been reluctant to find a “public function” when it comes to “private commer- cial transactions” (even if they occur against a legal or regulatory backdrop), see, e.g., Flagg Bros., 161–163 (1978), instead requiring a closer connection between the private entity and a government or its agents, see, e.g., Brentwood (nonprofit interscholastic athletic association “pervasive[ly] entwine[d]” with governmental institutions and officials); (state-created system “whereby state officials [would] attach property on the ex parte application of one party to a private dispute”); see also (restaurant in municipal parking garage partly maintained by municipal agency); accord, ante, at 6–7. exemplifies the line of cases that supplanted cases like Logan Valley— not cases like this one. Cite as: 587 U. S. (2019) 17 SOTOMAYOR, J., dissenting an independent food seller who just happens to be highly regulated by the restaurant’s owners. The majority also relies on the Court’s statements that its “public function” test requires that a function have been “traditionally and exclusively performed” by the government. Ante, at 6 (emphasis deleted); see 419 U.S., at 3. Properly understood, that rule cabins liability in cases, such as in which a private actor ventures of its own accord into territory shared (or regu- lated) by the government (e.g., by opening a power com- pany or a shopping center). The Court made clear in that the rule did not reach further, explaining that “the fact that a state employee’s role parallels one in the pri- vate sector” does not preclude a finding of state action. n. 15. When the government hires an agent, in other words, the question is not whether it hired the agent to do some- thing that can be done in the private marketplace too. If that were the key question, the doctor in would not have been a state actor. Nobody thinks that orthopedics is a function “traditionally exclusively reserved to the State,” 419 U.S., at 3. The majority consigns to a footnote, asserting that its “scenario is not present here because the government has no [constitutional] obligation to operate public access channels.” Ante, at 7, n. 1. The majority suggests that is different because “the State was constitutionally obligated to provide medical care to prison inmates.” Ante, at 7, n. 1. But what the majority ignores is that the State in had no constitutional obligation to open the prison or incarcerate the prisoner in the first place; the obligation to provide medical care arose when it made those prior choices. The City had a comparable constitutional obligation here—one brought about by its own choices, made against a state-law backdrop. The City, of course, had no constitu- 18 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting tional obligation to award a cable franchise or to operate public-access channels. But once the City did award a cable franchise, New York law required the City to obtain public-access channels, see and to open them up as a public forum, see at 9–10. That is when the City’s obligation to act in accordance with the First Amendment with respect to the channels arose. That is why, when the City handed the administration of that forum off to an agent, the Constitution followed. See at 10–13. 12 The majority is surely correct that “when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment.” Ante, at 9. That is because the majority is not talking about constitutional forums—it is talking about spaces where private entities have simply invited others to come speak. A comedy club can decide to open its doors as wide as it wants, but it cannot appoint itself as a government agent. The difference is between providing a service of one’s own accord and being asked by the government to administer a constitutional responsibility (indeed, here, existing to do so) on the government’s behalf. 13 —————— 12 v. Metropolitan Edison Co., by con- trast, exemplifies a type of case in which a private actor provides a service that there is no governmental obligation to provide at all. See (no state requirement for government to provide utility service); see also, e.g., Hudgens, (shopping center). In by contrast, the prison was obli- gated to provide health care in accordance with the Eighth Amendment to its prisoners once it incarcerated them, and here, the City was required to provide a public forum to its residents in accordance with the First Amendment once it granted the cable franchise. See at 11–13. 13 Accordingly, the majority need not fear that “all private property owners and private lessees who open their property for speech [c]ould be subject to First Amendment constraints.” Ante, at 10. Those kinds of entities are not the government’s agents; MNN is. Whether such entities face “extensive regulation” or require “government licenses, government contracts, or government-granted monopolies,” ante, at 12, Cite as: 587 U. S. (2019) 19 SOTOMAYOR, J., dissenting To see more clearly the difference between the cases on which the majority fixates and the present case, leave aside the majority’s private comedy club. Imagine instead that a state college runs a comedy showcase each year, renting out a local theater and, pursuant to state regula- tions mandating open access to certain kinds of student activities, allowing students to sign up to perform on a first-come, first-served basis. Cf. After a few years, the college decides that it is tired of running the show, so it hires a performing-arts nonprofit to do the job. The nonprofit prefers humor that makes fun of a certain political party, so it allows only student acts that share its views to participate. Does the majority believe that the nonprofit is indistinguishable, for purposes of state action, from a private comedy club opened by local entrepreneurs? I hope not. But two dangers lurk here regardless. On the one hand, if the City’s decision to outsource the chan- nels to a private entity did render the First Amendment irrelevant, there would be substantial cause to worry about the potential abuses that could follow. Can a state university evade the First Amendment by hiring a non- profit to apportion funding to student groups? Can a city do the same by appointing a corporation to run a munici- pal theater? What about its parks? On the other hand, the majority hastens to qualify its decision, see ante, at 7, n. 1, 15, and to cabin it to the specific facts of this case, ante, at 15. Those are prudent limitations. Even so, the majority’s focus on still risks sowing confusion among the lower courts about how and when government outsourcing will render any abuses that follow beyond the reach of the Constitution. In any event, there should be no confusion here. MNN —————— is immaterial, so long as they have not accepted the government’s request to fulfill the government’s duties on its behalf. 20 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting is not a private entity that ventured into the marketplace and found itself subject to government regulation. It was asked to do a job by the government and compensated accordingly. If it does not want to do that job anymore, it can stop (subject, like any other entity, to its contractual obligations). But as long as MNN continues to wield the power it was given by the government, it stands in the government’s shoes and must abide by the First Amend- ment like any other government actor. IV This is not a case about bigger governments and smaller individuals, ante, at 16; it is a case about principals and agents. New York City opened up a public forum on public- access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amend- ment, just as if the City had decided to run the public forum itself. While the majority emphasizes that its decision is nar- row and factbound, ante, at 15, that does not make it any less misguided. It is crucial that the Court does not con- tinue to ignore the reality, fully recognized by our prece- dents, that private actors who have been delegated consti- tutional responsibilities like this one should be accountable to the Constitution’s demands. I respectfully dissent

per_curiam

per_curiam

Vachon v. New Hampshire

https://www.courtlistener.com/opinion/108905/vachon-v-new-hampshire/

https://www.courtlistener.com/api/rest/v3/clusters/108905/

1973-036

A 14-year-old girl bought a button inscribed "Copulation Not Masturbation" at the Head Shop in Manchester, New Hampshire. In consequence, appellant, operator of the shop, was sentenced to 30 days in jail and fined $100 after conviction upon a charge of "wilfully" contributing to the delinquency of a minor in violation of New Hampshire's Rev. Stat. Ann. § 169:32 (Supp. 1972).[1] In affirming the conviction, the New Hampshire Supreme Court held that the "wilfully" component of the offense required that the State prove that the accused acted " `voluntarily and intentionally and not *479 because of mistake or accident or other innocent reason.' " 113 N. H. 239, 242, 306 A.2d 781, 784 (1973). Thus, the State was required to produce evidence that appellant, knowing the girl to be a minor,[2] personally sold her the button, or personally caused another to sell it to her. Appellant unsuccessfully sought dismissal of the charge at the close of the State's case on the ground that the State had produced no evidence to meet this requirement, and unsuccessfully urged the same ground as a reason for reversal in the State Supreme Court. We have reviewed the transcript of the trial on this issue, pursuant to Rule 40 (1) (d) (2) of the Rules of this Court.[3] Our independent examination of the trial record discloses that evidence is completely lacking that appellant personally sold the girl the button or even that he was aware of the sale or present in the store at the time. The girl was the State's only witness to the sale. She testified that she and a girl friend entered the store and looked around until they saw "a velvet display card on a counter" from which they "picked out [the] pin." She went to some person in the store with the button "cupped in [her] hand" and paid that person 25 cents for the button. She did not say that appellant was that person, *480 or even that she saw him in the store. Rather, she testified that she could not identify who the person was. We therefore agree with Justice Grimes, dissenting, that "there is no evidence whatever that the defendant sold the button, that he knew it had been sold to a minor, that he authorized such sales to minors or that he was even in the store at the time of the sale." 113 N. H., at 244, 306 A.2d, at 785. This fatal void in the State's case was not filled by appellant's concession at trial that he "controlled the premises on July 26." That concession was evidence at most that he operated the shop; it was in no way probative of the crucial element of the crime that he personally sold the minor the button or personally caused it to be sold to her. In these circumstances, the conviction must be reversed. "It is beyond question, of course, that a conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged . . . violate[s] due process." Harris v. United States, 404 U.S. 1232, 1233 (1971). (DOUGLAS, J., in chambers); Thompson v. Louisville, 362 U.S. 199 (1960); Johnson v. Florida, 391 U.S. 596 (1968); see also Adderley v. Florida, 385 U.S. 39, 44 (1966). The judgment is reversed and the case is remanded to the New Hampshire Supreme Court for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR.

A 14-year-old girl bought a button inscribed "Copulation Not Masturbation" at the Head Shop in Manchester, New Hampshire. In consequence, appellant, operator of the shop, was sentenced to 30 days in jail and fined $100 after conviction upon a charge of "wilfully" contributing to the delinquency of a minor in violation of New Hampshire's Rev. Stat. Ann. 169:32 (Supp. 1972).[1] In affirming the conviction, the New Hampshire Supreme Court held that the "wilfully" component of the offense required that the State prove that the accused acted " `voluntarily and intentionally and not *479 because of mistake or accident or other innocent reason.' " 113 N. H. 239, 242, Thus, the State was required to produce evidence that appellant, knowing the girl to be a minor,[2] personally sold her the button, or personally caused another to sell it to her. Appellant unsuccessfully sought dismissal of the charge at the close of the State's case on the ground that the State had produced no evidence to meet this requirement, and unsuccessfully urged the same ground as a reason for reversal in the State Supreme Court. We have reviewed the transcript of the trial on this issue, pursuant to Rule 40 (1) (d) (2) of the Rules of this Court.[3] Our independent examination of the trial record discloses that evidence is completely lacking that appellant personally sold the girl the button or even that he was aware of the sale or present in the store at the time. The girl was the State's only witness to the sale. She testified that she and a girl friend entered the store and looked around until they saw "a velvet display card on a counter" from which they "picked out [the] pin." She went to some person in the store with the button "cupped in [her] hand" and paid that person 25 cents for the button. She did not say that appellant was that person, *480 or even that she saw him in the store. Rather, she testified that she could not identify who the person was. We therefore agree with Justice Grimes, dissenting, that "there is no evidence whatever that the defendant sold the button, that he knew it had been sold to a minor, that he authorized such sales to minors or that he was even in the store at the time of the sale." 113 N. H., at This fatal void in the State's case was not filled by appellant's concession at trial that he "controlled the premises on July 26." That concession was evidence at most that he operated the shop; it was in no way probative of the crucial element of the crime that he personally sold the minor the button or personally caused it to be sold to her. In these circumstances, the conviction must be reversed. "It is beyond question, of course, that a conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged violate[s] due process." (DOUGLAS, J., in chambers); ; ; see also The judgment is reversed and the case is remanded to the New Hampshire Supreme Court for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR.

Justice Powell

majority

United States v. Ortiz

https://www.courtlistener.com/opinion/109312/united-states-v-ortiz/

https://www.courtlistener.com/api/rest/v3/clusters/109312/

1974-151

Border Patrol officers stopped respondent's car for a routine immigration search at the traffic checkpoint *892 on Interstate Highway 5 at San Clemente, Cal., on November 12, 1973. They found three aliens concealed in the trunk, and respondent was convicted on three counts of knowingly transporting aliens who were in the country illegally. The Court of Appeals for the Ninth Circuit reversed the conviction in an unreported opinion, relying on dictum in its opinion in United States v. Bowen, 500 F.2d 960 (CA9 1974), aff'd, post, p. 916, to the effect that our decision in Almeida-Sanchez v. United States, 413 U.S. 266 (1973), required probable cause for all vehicle searches in the border area, whether conducted by roving patrols or at traffic checkpoints. We granted certiorari. 419 U.S. 824 (1974). Nothing in this record suggests that the Border Patrol officers had any special reason to suspect that respondent's car was carrying concealed aliens. Nor does the Government contend that the San Clemente checkpoint is a functional equivalent of the border. Brief for United States 16. The only question for decision is whether vehicle searches at traffic checkpoints, like the roving-patrol search in Almeida-Sanchez, must be based on probable cause. I In Almeida-Sanchez we rejected the Government's contention that the Nation's strong interest in controlling immigration and the practical difficulties of policing the Mexican border combined to justify dispensing with both warrant and probable cause for vehicle searches by roving patrols near the border. The facts did not require us to decide whether the same rule would apply to traffic checkpoints, which differ from roving patrols in several important respects. 413 U.S., at 273; id., at 276 (POWELL, J., concurring). A consolidated proceeding on motions to suppress in this and similar cases produced an extensive factual *893 record on the operation of traffic checkpoints in southern California. United States v. Baca, 368 F. Supp. 398 (SD Cal. 1973). The San Clemente checkpoint is 62 air miles and 66 road miles north of the Mexican border. It is on the principal highway between San Diego and Los Angeles, and over 10 million vehicles pass the checkpoint in a year. United States v. Martinez-Fuerte, 514 F.2d 308, 312 (CA9 1975). The District Court in Baca described the checkpoint as follows: "Approximately one mile south of the checkpoint is a large black on yellow sign with flashing yellow lights over the highway stating `ALL VEHICLES, STOP AHEAD, 1 MILE.' Three-quarters of a mile further north are two black on yellow signs suspended over the highway with flashing lights stating `WATCH FOR BRAKE LIGHTS.' At the checkpoint, which is also the location of a State of California weighing station, are two large signs with flashing red lights suspended over the highway. These signs each state `STOP HERE—U. S. OFFICERS.' Placed on the highway are a number of orange traffic cones funneling traffic into two lanes where a Border Patrol agent in full dress uniform, standing behind a white on red `STOP' sign checks traffic. Blocking traffic in the unused lanes are official U. S. Border Patrol vehicles with flashing red lights. In addition, there is a permanent building which houses the Border Patrol office and temporary detention facilities. There are also floodlights for nighttime operation." 368 F. Supp., at 410-411. The Border Patrol would prefer to keep this checkpoint in operation continuously, but bad weather, heavy traffic, and personnel shortages keep it closed about one-third of the time. When it is open, officers screen all northbound traffic. If anything about a vehicle or its *894 occupants leads an officer to suspect that it may be carrying aliens, he will stop the car and ask the occupants about their citizenship. If the officer's suspicion persists, or if the questioning enhances it, he will "inspect" portions of the car in which an alien might hide.[1] Operations at other checkpoints are similar, although the traffic at some is light enough that officers can stop all vehicles for questioning and routinely inspect more of them. The Government maintains that these characteristics justify dispensing with probable cause at traffic checkpoints despite the Court's holding in Almeida-Sanchez. It gives essentially two reasons for distinguishing that case. First, a checkpoint officer's discretion in deciding which cars to search is limited by the location of the checkpoint. That location is determined by high-level Border Patrol officials, using criteria that include the degree of inconvenience to the public and the potential for safe operation, as well as the potential for detecting and deterring the illegal movement of aliens. By contrast, officers on roving patrol were theoretically free before Almeida-Sanchez to stop and search any car within 100 miles of the border. Second, the circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At *895 traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion. These differences are relevant to the constitutional issue, since the central concern of the Fourth Amendment is to protect liberty and privacy from arbitrary and oppressive interference by government officials. Camara v. Municipal Court, 387 U.S. 523, 528 (1967); Schmerber v. California, 384 U.S. 757, 767 (1966). The Fourth Amendment's requirement that searches and seizures be reasonable also may limit police use of unnecessarily frightening or offensive methods of surveillance and investigation. See, e. g., Terry v. Ohio, 392 U.S. 1, 16-17 (1968); Camara, supra, at 531; Schmerber, supra, at 771-772. While the differences between a roving patrol and checkpoint would be significant in determining the propriety of the stop, which is considerably less intrusive than a search, Terry v. Ohio, supra, they do not appear to make any difference in the search itself. The greater regularity attending the stop does not mitigate the invasion of privacy that a search entails. Nor do checkpoint procedures significantly reduce the likelihood of embarrassment. Motorists whose cars are searched, unlike those who are only questioned, may not be reassured by seeing that the Border Patrol searches other cars as well. Where only a few are singled out for a search, as at San Clemente, motorists may find the searches especially offensive. See Note, Border Searches and the Fourth Amendment, 77 Yale L. J. 1007, 1012-1013 (1968). Moreover, we are not persuaded that the checkpoint limits to any meaningful extent the officer's discretion to select cars for search. The record in the consolidated proceeding indicates that only about 3% of the cars that *896 pass the San Clemente checkpoint are stopped for either questioning or a search, 368 F. Supp., at 411. Throughout the system, fewer than 3% of the vehicles that passed through checkpoints in 1974 were searched, Brief for United States 29, and no checkpoint involved in Baca reported a search rate of more than 10% or 15%. 368 F. Supp., at 412-415. It is apparent from these figures that checkpoint officers exercise a substantial degree of discretion in deciding which cars to search. The Government maintains that they voluntarily exercise that discretion with restraint and search only vehicles that arouse their suspicion, and it insists the officers should be free of judicial oversight of any kind. Viewed realistically, this position would authorize the Border Patrol to search vehicles at random, for no officer ever would have to justify his decision to search a particular car. This degree of discretion to search private automobiles is not consistent with the Fourth Amendment. A search, even of an automobile, is a substantial invasion of privacy.[2] To protect that privacy from official arbitrariness, the Court always has regarded probable cause as the minimum requirement for a lawful search. Almeida-Sanchez, 413 U. S., at 269-270; Chambers v. Maroney, 399 U.S. 42, 51 (1970). We are not persuaded that the differences between roving patrols and traffic checkpoints justify dispensing in this case with the safeguards we required in Almeida-Sanchez. We therefore follow that decision and hold that at traffic checkpoints removed from the border and its functional equivalents, *897 officers may not search private vehicles without consent or probable cause.[3] The Government lists in its reply brief some of the factors on which officers have relied in deciding which cars to search. They include the number of persons in a vehicle, the appearance and behavior of the driver and passengers, their inability to speak English, the responses they give to officers' questions, the nature of the vehicle, and indications that it may be heavily loaded. All of these factors properly may be taken into account in deciding whether there is probable cause to search a particular vehicle. In addition, as we note today in United States v. Brignoni-Ponce, ante, at 884-885, the officers are entitled to draw reasonable inferences from these facts in light of their knowledge of the area and their prior experience with aliens and smugglers. In this case, however, the officers advanced no special reasons for believing respondent's vehicle contained *898 aliens. The absence of probable cause makes the search invalid. II The Government also contends that even if Almeida-Sanchez applies to checkpoint searches, the Court of Appeals erred in voiding this search because it occurred after the date of decision in Almeida-Sanchez but before the Court of Appeals stated in United States v. Bowen, supra, that it would require probable cause for checkpoint searches. Examination of the Government's brief in the Ninth Circuit indicates that it did not raise this question below. On the contrary, it represented to the court that the decision in Bowen would be "determinative of the issues in this case." We therefore decline to consider this issue, which was raised for the first time in the petition for certiorari. Affirmed. MR.

Border Patrol officers stopped respondent's car for a routine immigration at the traffic checkpoint *892 on Interstate Highway 5 at San Clemente, Cal, on November 12, They found three aliens concealed in the trunk, and respondent was convicted on three counts of knowingly transporting aliens who were in the country illegally The Court of Appeals for the Ninth Circuit reversed the conviction in an unreported opinion, relying on dictum in its opinion in United aff'd, post, p 916, to the effect that our decision in required probable cause for all vehicle es in the border area, whether conducted by roving patrols or at traffic checkpoints We granted certiorari Nothing in this record suggests that the Border Patrol officers had any special reason to suspect that respondent's car was carrying concealed aliens Nor does the Government contend that the San Clemente checkpoint is a functional equivalent of the border Brief for United States 16 The only question for decision is whether vehicle es at traffic checkpoints, like the roving-patrol in Almeida-Sanchez, must be based on probable cause I In Almeida-Sanchez we rejected the Government's contention that the Nation's strong interest in controlling immigration and the practical difficulties of policing the Mexican border combined to justify dispensing with both warrant and probable cause for vehicle es by roving patrols near the border The facts did not require us to decide whether the same rule would apply to traffic checkpoints, which differ from roving patrols in several important ; A consolidated proceeding on motions to suppress in this and similar cases produced an extensive factual *893 record on the operation of traffic checkpoints in southern California United The San Clemente checkpoint is 62 air miles and 66 road miles north of the Mexican border It is on the principal highway between San Diego and Los Angeles, and over 10 million vehicles pass the checkpoint in a year United The District Court in Baca described the checkpoint as follows: "Approximately one mile south of the checkpoint is a large black on yellow sign with flashing yellow lights over the highway stating `ALL VEHICLES, STOP AHEAD, 1 MILE' Three-quarters of a mile further north are two black on yellow signs suspended over the highway with flashing lights stating `WATCH FOR BRAKE LIGHTS' At the checkpoint, which is also the location of a State of California weighing station, are two large signs with flashing red lights suspended over the highway These signs each state `STOP HERE—U S OFFICERS' Placed on the highway are a number of orange traffic cones funneling traffic into two lanes where a Border Patrol agent in full dress uniform, standing behind a white on red `STOP' sign checks traffic Blocking traffic in the unused lanes are official U S Border Patrol vehicles with flashing red lights In addition, there is a permanent building which houses the Border Patrol office and temporary detention facilities There are also floodlights for nighttime operation" -411 The Border Patrol would prefer to keep this checkpoint in operation continuously, but bad weather, heavy traffic, and personnel shortages keep it closed about one-third of the time When it is open, officers screen all northbound traffic If anything about a vehicle or its *894 occupants leads an officer to suspect that it may be carrying aliens, he will stop the car and ask the occupants about their citizenship If the officer's suspicion persists, or if the questioning enhances it, he will "inspect" portions of the car in which an alien might hide[1] Operations at other checkpoints are similar, although the traffic at some is light enough that officers can stop all vehicles for questioning and routinely inspect more of them The Government maintains that these characteristics justify dispensing with probable cause at traffic checkpoints despite the Court's holding in Almeida-Sanchez It gives essentially two reasons for distinguishing that case First, a checkpoint officer's discretion in deciding which cars to is limited by the location of the checkpoint That location is determined by high-level Border Patrol officials, using criteria that include the degree of inconvenience to the public and the potential for safe operation, as well as the potential for detecting and deterring the illegal movement of aliens By contrast, officers on roving patrol were theoretically free before Almeida-Sanchez to stop and any car within 100 miles of the border Second, the circumstances surrounding a checkpoint stop and are far less intrusive than those attending a roving-patrol stop Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists At *895 traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion These differences are relevant to the constitutional issue, since the central concern of the Fourth Amendment is to protect liberty and privacy from arbitrary and oppressive interference by government officials ; The Fourth Amendment's requirement that es and seizures be reasonable also may limit police use of unnecessarily frightening or offensive methods of surveillance and investigation See, e g, ; ; While the differences between a roving patrol and checkpoint would be significant in determining the propriety of the stop, which is considerably less intrusive than a they do not appear to make any difference in the itself The greater regularity attending the stop does not mitigate the invasion of privacy that a entails Nor do checkpoint procedures significantly reduce the likelihood of embarrassment Motorists whose cars are ed, unlike those who are only questioned, may not be reassured by seeing that the Border Patrol es other cars as well Where only a few are singled out for a as at San Clemente, motorists may find the es especially offensive See Note, Border Searches and the Fourth Amendment, 77 Yale L J 1007, 1012-1013 Moreover, we are not persuaded that the checkpoint limits to any meaningful extent the officer's discretion to select cars for The record in the consolidated proceeding indicates that only about 3% of the cars that *896 pass the San Clemente checkpoint are stopped for either questioning or a Throughout the system, fewer than 3% of the vehicles that passed through checkpoints in were ed, Brief for United States 29, and no checkpoint involved in Baca reported a rate of more than 10% or 15% -415 It is apparent from these figures that checkpoint officers exercise a substantial degree of discretion in deciding which cars to The Government maintains that they voluntarily exercise that discretion with restraint and only vehicles that arouse their suspicion, and it insists the officers should be free of judicial oversight of any kind Viewed realistically, this position would authorize the Border Patrol to vehicles at random, for no officer ever would have to justify his decision to a particular car This degree of discretion to private automobiles is not consistent with the Fourth Amendment A even of an automobile, is a substantial invasion of privacy[2] To protect that privacy from official arbitrariness, the Court always has regarded probable cause as the minimum requirement for a lawful Almeida-Sanchez, 413 U S, at 269-270; Chambers v Maroney, 399 US 42, We are not persuaded that the differences between roving patrols and traffic checkpoints justify dispensing in this case with the safeguards we required in Almeida-Sanchez We therefore follow that decision and hold that at traffic checkpoints removed from the border and its functional equivalents, *897 officers may not private vehicles without consent or probable cause[3] The Government lists in its reply brief some of the factors on which officers have relied in deciding which cars to They include the number of persons in a vehicle, the appearance and behavior of the driver and passengers, their inability to speak English, the responses they give to officers' questions, the nature of the vehicle, and indications that it may be heavily loaded All of these factors properly may be taken into account in deciding whether there is probable cause to a particular vehicle In addition, as we note today in United States v Brignoni-Ponce, ante, at 884-885, the officers are entitled to draw reasonable inferences from these facts in light of their knowledge of the area and their prior experience with aliens and smugglers In this case, however, the officers advanced no special reasons for believing respondent's vehicle contained *898 aliens The absence of probable cause makes the invalid II The Government also contends that even if Almeida-Sanchez applies to checkpoint es, the Court of Appeals erred in voiding this because it occurred after the date of decision in Almeida-Sanchez but before the Court of Appeals stated in United that it would require probable cause for checkpoint es Examination of the Government's brief in the Ninth Circuit indicates that it did not raise this question below On the contrary, it represented to the court that the decision in would be "determinative of the issues in this case" We therefore decline to consider this issue, which was raised for the first time in the petition for certiorari Affirmed MR

Justice Rehnquist

majority

Illinois v. Gates

https://www.courtlistener.com/opinion/110959/illinois-v-gates/

https://www.courtlistener.com/api/rest/v3/clusters/110959/

1982-103

Respondents Lance and Susan Gates were indicted for violation of state drug laws after police officers, executing a search warrant, discovered marihuana and other contraband in their automobile and home. Prior to trial the Gateses moved to suppress evidence seized during this search. The Illinois Supreme Court affirmed the decisions of lower state courts granting the motion. 85 Ill. 2d 376, 423 N.E.2d 887 (1981). It held that the affidavit submitted in support of the State's application for a warrant to search the Gateses' property *217 was inadequate under this Court's decisions in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). We granted certiorari to consider the application of the Fourth Amendment to a magistrate's issuance of a search warrant on the basis of a partially corroborated anonymous informant's tip. 454 U.S. 1140 (1982). After receiving briefs and hearing oral argument on this question, however, we requested the parties to address an additional question: "[W]hether the rule requiring the exclusion at a criminal trial of evidence obtained in violation of the Fourth Amendment, Mapp v. Ohio, 367 U.S. 643 (1961); Weeks v. United States, 232 U.S. 383 (1914), should to any extent be modified, so as, for example, not to require the exclusion of evidence obtained in the reasonable belief that the search and seizure at issue was consistent with the Fourth Amendment." 459 U.S. 1028 (1982). We decide today, with apologies to all, that the issue we framed for the parties was not presented to the Illinois courts and, accordingly, do not address it. Rather, we consider the question originally presented in the petition for certiorari, and conclude that the Illinois Supreme Court read the requirements of our Fourth Amendment decisions too restrictively. Initially, however, we set forth our reasons for not addressing the question regarding modification of the exclusionary rule framed in our order of November 29, 1982. Ibid. I Our certiorari jurisdiction over decisions from state courts derives from 28 U.S. C. § 1257, which provides that "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows: . . . (3) By writ of certiorari,. . . where any title, right, privilege or immunity is specially set up or claimed under the constitution, treaties or statutes *218 of . . . the United States." The provision derives, albeit with important alterations, see, e. g., Act of Dec. 23, 1914, ch. 2, 38 Stat. 790; Act of June 25, 1948, § 1257, 62 Stat. 929, from the Judiciary Act of 1789, § 25, 1 Stat. 85. Although we have spoken frequently on the meaning of § 1257 and its predecessors, our decisions are in some respects not entirely clear. We held early on that § 25 of the Judiciary Act of 1789 furnished us with no jurisdiction unless a federal question had been both raised and decided in the state court below. As Justice Story wrote in Crowell v. Randell, 10 Pet. 368, 392 (1836); "If both of these requirements do not appear on the record, the appellate jurisdiction fails." See also Owings v. Norwood's Lessee, 5 Cranch 344 (1809).[1] More recently, in McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 434-435 (1940), the Court observed: "But it is also the settled practice of this Court, in the exercise of its appellate jurisdiction, that it is only in exceptional cases, and then only in cases coming from the federal courts, that it considers questions urged by a petitioner or appellant not pressed or passed upon in the courts below. . . . In cases coming here from state courts in which a state statute is assailed as unconstitutional, there are reasons of peculiar force which should lead us to refrain from deciding questions not presented or decided in the highest court of the state whose judicial action we are called upon to review. Apart from the *219 reluctance with which every court should proceed to set aside legislation as unconstitutional on grounds not properly presented, due regard for the appropriate relationship of this Court to state courts requires us to decline to consider and decide questions affecting the validity of state statutes not urged or considered there. It is for these reasons that this Court, where the constitutionality of a statute has been upheld in the state court, consistently refuses to consider any grounds of attack not raised or decided in that court." Finally, the Court seemed to reaffirm the jurisdictional character of the rule against our deciding claims "not pressed nor passed upon" in state court in State Farm Mutual Automobile Ins. Co. v. Duel, 324 U.S. 154, 160 (1945), where we explained that "[s]ince the [State] Supreme Court did not pass on the question, we may not do so." See also Hill v. California, 401 U.S. 797, 805-806 (1971). Notwithstanding these decisions, however, several of our more recent cases have treated the so-called "not pressed or passed upon below" rule as merely a prudential restriction. In Terminiello v. Chicago, 337 U.S. 1 (1949), the Court reversed a state criminal conviction on a ground not urged in state court, nor even in this Court. Likewise, in Vachon v. New Hampshire, 414 U.S. 478 (1974), the Court summarily reversed a state criminal conviction on the ground, not raised in state court, or here, that it had been obtained in violation of the Due Process Clause of the Fourteenth Amendment. The Court indicated in a footnote, id., at 479, n. 3, that it possessed discretion to ignore the failure to raise in state court the question on which it decided the case. In addition to this lack of clarity as to the character of the "not pressed or passed upon below" rule, we have recognized that it often may be unclear whether the particular federal question presented in this Court was raised or passed upon below. In Dewey v. Des Moines, 173 U.S. 193, 197-198 (1899), the fullest treatment of the subject, the Court said *220 that "[i]f the question were only an enlargement of the one mentioned in the assignment of errors, or if it were so connected with it in substance as to form but another ground or reason for alleging the invalidity of the [lower court's] judgment, we should have no hesitation in holding the assignment sufficient to permit the question to be now raised and argued. Parties are not confined here to the same arguments which were advanced in the courts below upon a Federal question there discussed."[2] We have not attempted, and likely would not have been able, to draw a clear-cut line between cases involving only an "enlargement" of questions presented below and those involving entirely new questions. The application of these principles in the instant case is not entirely straightforward. It is clear in this case that respondents expressly raised, at every level of the Illinois judicial system, the claim that the Fourth Amendment had been violated by the actions of the Illinois police and that the evidence seized by the officers should be excluded from their trial. It also is clear that the State challenged, at every level of the Illinois court system, respondents' claim that the substantive requirements of the Fourth Amendment had been violated. The State never, however, raised or addressed the question whether the federal exclusionary rule should be modified in any respect, and none of the opinions of the *221 Illinois courts give any indication that the question was considered. The case, of course, is before us on the State's petition for a writ of certiorari. Since the Act of Dec. 23, 1914, ch. 2, 38 Stat. 790, jurisdiction has been vested in this Court to review state-court decisions even when a claimed federal right has been upheld. Our prior decisions interpreting the "not pressed or passed on below" rule have not, however, involved a State's failure to raise a defense to a federal right or remedy asserted below. As explained below, however, we can see no reason to treat the State's failure to have challenged an asserted federal claim differently from the failure of the proponent of a federal claim to have raised that claim. We have identified several purposes underlying the "not pressed or passed upon" rule: for the most part, these are as applicable to the State's failure to have opposed the assertion of a particular federal right, as to a party's failure to have asserted the claim. First, "[q]uestions not raised below are those on which the record is very likely to be inadequate since it certainly was not complied with those questions in mind." Cardinale v. Louisiana, 394 U.S. 437, 439 (1969). Exactly the same difficulty exists when the State urges modification of an existing constitutional right or accompanying remedy. Here, for example, the record contains little, if anything, regarding the subjective good faith of the police officers that searched the Gateses' property — which might well be an important consideration in determining whether to fashion a good-faith exception to the exclusionary rule. Our consideration of whether to modify the exclusionary rule plainly would benefit from a record containing such facts. Likewise, "due regard for the appropriate relationship of this court to state courts," McGoldrick v. Compagnie Generale Transatlantique, 309 U. S., at 434-435, demands that those courts be given an opportunity to consider the constitutionality of the actions of state officials, and, equally important, proposed changes in existing remedies for unconstitutional *222 actions. Finally, by requiring that the State first argue to the state courts that the federal exclusionary rule should be modified, we permit a state court, even if it agrees with the State as a matter of federal law, to rest its decision on an adequate and independent state ground. See Cardinale, supra, at 439. Illinois, for example, adopted an exclusionary rule as early as 1923, see People v. Brocamp, 307 Ill. 448, 138 N.E. 728 (1923), and might adhere to its view even if it thought we would conclude that the federal rule should be modified. In short, the reasons supporting our refusal to hear federal claims not raised in state court apply with equal force to the State's failure to challenge the availability of a well-settled federal remedy. Whether the "not pressed or passed upon below" rule is jurisdictional, as our earlier decisions indicate, see supra, at 217-219, or prudential, as several of our later decisions assume, or whether its character might be different in cases like this from its character elsewhere, we need not decide. Whatever the character of the rule may be, consideration of the question presented in our order of November 29, 1982, would be contrary to the sound justifications for the "not pressed or passed upon below" rule, and we thus decide not to pass on the issue. The fact that the Illinois courts affirmatively applied the federal exclusionary rule — suppressing evidence against respondents — does not affect our conclusion. In Morrison v. Watson, 154 U.S. 111 (1894), the Court was asked to consider whether a state statute impaired the plaintiff in error's contract with the defendant in error. It declined to hear the case because the question presented here had not been pressed or passed on below. The Court acknowledged that the lower court's opinion had restated the conclusion, set forth in an earlier decision of that court, that the state statute did not impermissibly impair contractual obligations. Nonetheless, it held that there was no showing that "there was any real contest at any stage of this case upon the point," id., at 115, and that without such a contest, the routine restatement *223 and application of settled law by an appellate court did not satisfy the "not pressed or passed upon below" rule. Similarly, in the present case, although the Illinois courts applied the federal exclusionary rule, there was never "any real contest" upon the point. The application of the exclusionary rule was merely a routine act, once a violation of the Fourth Amendment had been found, and not the considered judgment of the Illinois courts on the question whether application of a modified rule would be warranted on the facts of this case. In such circumstances, absent the adversarial dispute necessary to apprise the state court of the arguments for not applying the exclusionary rule, we will not consider the question whether the exclusionary rule should be modified. Likewise, we do not believe that the State's repeated opposition to respondents' substantive Fourth Amendment claims suffices to have raised the question whether the exclusionary rule should be modified. The exclusionary rule is "a judicially created remedy designed to safeguard Fourth Amendment rights generally" and not "a personal constitutional right of the party aggrieved." United States v. Calandra, 414 U.S. 338, 348 (1974). The question whether the exclusionary rule's remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct. See, e. g., United States v. Havens, 446 U.S. 620 (1980); United States v. Ceccolini, 435 U.S. 268 (1978); United States v. Calandra, supra; Stone v. Powell, 428 U.S. 465 (1976). Because of this distinction, we cannot say that modification or abolition of the exclusionary rule is "so connected with [the substantive Fourth Amendment right at issue] as to form but another ground or reason for alleging the invalidity" of the judgment. Dewey v. Des Moines, 173 U. S., at 197-198. Rather, the rule's modification was, for purposes of the "not pressed or passed upon below" rule, a separate claim that had to be specifically presented to the state courts. *224 Finally, weighty prudential considerations militate against our considering the question presented in our order of November 29, 1982. The extent of the continued vitality of the rules that have developed from our decisions in Weeks v. United States, 232 U.S. 383 (1914), and Mapp v. Ohio, 367 U.S. 643 (1961), is an issue of unusual significance. Sufficient evidence of this lies just in the comments on the issue that Members of this Court recently have made, e. g., Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 415 (1971) (BURGER, C. J., dissenting); Coolidge v. New Hampshire, 403 U.S. 443, 490 (1971) (Harlan, J., concurring); id., at 502 (Black, J., dissenting); Stone v. Powell, supra, at 537-539 (WHITE, J., dissenting); Brewer v. Williams, 430 U.S. 387, 413-414 (1977) (POWELL, J., concurring); Robbins v. California, 453 U.S. 420, 437, 443-444 (1981) (REHNQUIST, J., dissenting). Where difficult issues of great public importance are involved, there are strong reasons to adhere scrupulously to the customary limitations on our discretion. By doing so we "promote respect . . . for the Court's adjudicatory process [and] the stability of [our] decisions." Mapp v. Ohio, 367 U. S., at 677 (Harlan, J., dissenting). Moreover, fidelity to the rule guarantees that a factual record will be available to us, thereby discouraging the framing of broad rules, seemingly sensible on one set of facts, which may prove ill-considered in other circumstances. In Justice Harlan's words, adherence to the rule lessens the threat of "untoward practical ramifications," id., at 676 (dissenting opinion), not foreseen at the time of decision. The public importance of our decisions in Weeks and Mapp and the emotions engendered by the debate surrounding these decisions counsel that we meticulously observe our customary procedural rules. By following this course, we promote respect for the procedures by which our decisions are rendered, as well as confidence in the stability of prior decisions. A wise exercise of the powers confided in this Court dictates that we reserve for another day the question whether the exclusionary rule should be modified. *225 II We now turn to the question presented in the State's original petition for certiorari, which requires us to decide whether respondents' rights under the Fourth and Fourteenth Amendments were violated by the search of their car and house. A chronological statement of events usefully introduces the issues at stake. Bloomingdale, Ill., is a suburb of Chicago located in Du Page County. On May 3, 1978, the Bloomingdale Police Department received by mail an anonymous handwritten letter which read as follows: "This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flys down and drives it back. Sue flys back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in their basement. "They brag about the fact they never have to work, and make their entire living on pushers. "I guarantee if you watch them carefully you will make a big catch. They are friends with some big drugs dealers, who visit their house often. "Lance & Susan Gates "Greenway "in Condominiums" The letter was referred by the Chief of Police of the Bloomingdale Police Department to Detective Mader, who decided to pursue the tip. Mader learned, from the office of the Illinois Secretary of State, that an Illinois driver's license had *226 been issued to one Lance Gates, residing at a stated address in Bloomingdale. He contacted a confidential informant, whose examination of certain financial records revealed a more recent address for the Gateses, and he also learned from a police officer assigned to O'Hare Airport that "L. Gates" had made a reservation on Eastern Airlines Flight 245 to West Palm Beach, Fla., scheduled to depart from Chicago on May 5 at 4:15 p. m. Mader then made arrangements with an agent of the Drug Enforcement Administration for surveillance of the May 5 Eastern Airlines flight. The agent later reported to Mader that Gates had boarded the flight, and that federal agents in Florida had observed him arrive in West Palm Beach and take a taxi to the nearby Holiday Inn. They also reported that Gates went to a room registered to one Susan Gates and that, at 7 o'clock the next morning, Gates and an unidentified woman left the motel in a Mercury bearing Illinois license plates and drove northbound on an interstate highway frequently used by travelers to the Chicago area. In addition, the DEA agent informed Mader that the license plate number on the Mercury was registered to a Hornet station wagon owned by Gates. The agent also advised Mader that the driving time between West Palm Beach and Bloomingdale was approximately 22 to 24 hours. Mader signed an affidavit setting forth the foregoing facts, and submitted it to a judge of the Circuit Court of Du Page County, together with a copy of the anonymous letter. The judge of that court thereupon issued a search warrant for the Gateses' residence and for their automobile. The judge, in deciding to issue the warrant, could have determined that the modus operandi of the Gateses had been substantially corroborated. As the anonymous letter predicted, Lance Gates had flown from Chicago to West Palm Beach late in the afternoon of May 5th, had checked into a hotel room registered in the name of his wife, and, at 7 o'clock the following morning, had headed north, accompanied by an unidentified woman, *227 out of West Palm Beach on an interstate highway used by travelers from South Florida to Chicago in an automobile bearing a license plate issued to him. At 5:15 a. m. on March 7, only 36 hours after he had flown out of Chicago, Lance Gates, and his wife, returned to their home in Bloomingdale, driving the car in which they had left West Palm Beach some 22 hours earlier. The Bloomingdale police were awaiting them, searched the truck of the Mercury, and uncovered approximately 350 pounds of marihuana. A search of the Gateses' home revealed marihuana, weapons, and other contraband. The Illinois Circuit court ordered suppression of all these items, on the ground that the affidavit submitted to the Circuit Judge failed to support the necessary determination of probable cause to believe that the Gateses' automobile and home contained the contraband in question. This decision was affirmed in turn by the Illinois Appellate Court, 82 Ill. App. 3d 749, 403 N.E.2d 77 (1980), and by a divided vote of the Supreme court of Illinois. 85 Ill. 2d 376, 423 N.E.2d 887 (1981). The Illinois Supreme Court concluded — and we are inclined to agree — that, standing alone, the anonymous letter sent to the Bloomingdale Police Department would not provide the basis for a magistrate's determination that there was probable cause to believe contraband would be found in the Gateses' car and home. The letter provides virtually nothing from which one might conclude that its author is either honest or his information reliable; likewise, the letter gives absolutely no indication of the basis for the writer's predictions regarding the Gateses' criminal activities. Something more was required, then, before a magistrate could conclude that there was probable cause to believe that contraband would be found in the Gateses' home and car. See Aguilar v. Texas, 378 U. S., at 109, n. 1; Nathanson v. United States, 290 U.S. 41 (1933). The Illinois Supreme Court also properly recognized that Detective Mader's affidavit might be capable of supplementing *228 the anonymous letter with information sufficient to permit a determination of probable cause. See Whiteley v. Warden, 401 U.S. 560, 567 (1971). In holding that the affidavit in fact did not contain sufficient additional information to sustain a determination of probable cause, the Illinois court applied a "two-pronged test," derived from our decision in Spinelli v. United States, 393 U.S. 410 (1969).[3] The Illinois Supreme Court, like some others, apparently understood Spinelli as requiring that the anonymous letter satisfy each of two independent requirements before it could be relied on. 85 Ill. 2d, at 383, 423 N. E. 2d, at 890. According to this view, the letter, as supplemented by Mader's affidavit, first had to adequately reveal the "basis of knowledge" of the letterwriter — the particular means by which he came by the information given in his report. Second, it had to provide *229 facts sufficiently establishing either the "veracity" of the affiant's informant, or, alternatively, the "reliability" of the informant's report in this particular case. The Illinois court, alluding to an elaborate set of legal rules that have developed among various lower courts to enforce the "two-pronged test,"[4] found that the test had not been satisfied. First, the "veracity" prong was not satisfied because, "[t]here was simply no basis [for] conclud[ing] that the anonymous person [who wrote the letter to the Bloomingdale Police Department] was credible." Id., at 385, 423 N.E.2d, at 891. The court indicated that corroboration by police of details contained in the letter might never satisfy the "veracity" prong, and in any event, could not do so if, as in the present case, only "innocent" details are corroborated. Id., at 390, 423 N.E.2d, at 893. In addition, the letter gave no indication of the basis of its writer's knowledge of the *230 Gateses' activities. The Illinois court understood Spinelli as permitting the detail contained in a tip to be used to infer that the informant had a reliable basis for his statements, but it thought that the anonymous letter failed to provide sufficient detail to permit such an inference. Thus, it concluded that no showing of probable cause had been made. We agree with the Illinois Supreme Court that an informant's "veracity," "reliability," and "basis of knowledge" are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case,[5] which the opinion of the Supreme Court of Illinois would imply. Rather, as detailed below, they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place. III This totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause[6] than *231 is any rigid demand that specific "tests" be satisfied by every informant's tip. Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a "practical, nontechnical conception." Brinegar v. United States, 338 U.S. 160, 176 (1949). "In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Id., at 175. Our observation in United States v. Cortez, 449 U.S. 411, 418 (1981), regarding "particularized suspicion," is also applicable to the probable-cause standard: "The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and *232 so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." As these comments illustrate, probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules. Informants' tips doubtless come in many shapes and sizes from many different types of persons. As we said in Adams v. Williams, 407 U.S. 143, 147 (1972): "Informants' tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability." Rigid legal rules are ill-suited to an area of such diversity. "One simple rule will not cover every situation." Ibid.[7] *233 Moreover, the "two-pronged test" directs analysis into two largely independent channels — the informant's "veracity' or "reliability" and his "basis of knowledge." See nn. 4 and 5, supra. There are persuasive arguments against according these two elements such independent status. Instead, they are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. See, e. g., Adams v. Williams, supra, at 146-147; United States v. Harris, 403 U.S. 573 (1971). If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip. See United States v. Sellers, 483 F.2d 37 (CA5 1973).[8] Likewise, if an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — we have found *234 rigorous scrutiny of the basis of his knowledge unnecessary. Adams v. Williams, supra. Conversely, even if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case. Unlike a totality-of-the-circumstances analysis, which permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip, the "two-pronged test" has encouraged an excessively technical dissection of informants' tips,[9] with undue attention *235 being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate. As early as Locke v. United States, 7 Cranch 339, 348 (1813), Chief Justice Marshall observed, in a closely related context: "[T]he term `probable cause,' according to its usual acceptation, means less than evidence which would justify condemnation . . . . It imports a seizure made under circumstances which warrant suspicion." More recently, we said that "the quanta . . . of proof" appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant. Brinegar, 338 U. S., at 173. Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decision. While an effort to fix some general, numerically precise degree of certainty corresponding to "probable cause" may not be helpful, it is clear that "only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause." Spinelli, 393 U. S., at 419. See Model Code of Pre-Arraignment Procedure § 210.1(7) (Prop. Off. Draft 1972); 1 W. LaFave, Search and Seizure § 3.2(e) (1978). We also have recognized that affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once enacted under common law pleadings have no proper place in this area." United States v. Ventresca, 380 U.S. 102, 108 (1965). Likewise, search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of "probable cause." See Shadwick v. City of Tampa, 407 U.S. 345, 348-350 (1972). The rigorous inquiry into the Spinelli prongs and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our Spinelli decision, cannot be reconciled with the fact that many warrants are — quite properly, 407 U.S., at 348-350 — issued on the basis of nontechnical, *236 common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings. Likewise, given the informal, often hurried context in which it must be applied, the "built-in subtleties," Stanley v. State, 19 Md. App. 507, 528, 313 A.2d 847, 860 (1974), of the "two-pronged test" are particularly unlikely to assist magistrates in determining probable cause. Similarly, we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's "determination of probable cause should be paid great deference by reviewing courts." Spinelli, supra, at 419. "A grudging or negative attitude by reviewing courts toward warrants," Ventresca, 380 U. S., at 108, is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner." Id., at 109. If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the Warrant Clause that might develop at the time of the search. In addition, the possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct, by assuring "the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." United States v. Chadwick, 433 U.S. 1, 9 (1977). Reflecting this preference for the warrant process, the traditional standard for review of an issuing magistrate's probable-cause determination has been that so long as the magistrate had a "substantial basis for . . . conclud[ing]" that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. Jones v. United States, 362 U.S. 257, 271 (1960). See United States v. *237 Harris, 403 U. S., at 577-583.[10] We think reaffirmation of this standard better serves the purpose of encouraging recourse to the warrant procedure and is more consistent with our traditional deference to the probable-cause determinations of magistrates than is the "two-pronged test." Finally, the direction taken by decisions following Spinelli poorly serves "[t]he most basic function of any government": "to provide for the security of the individual and of his property." Miranda v. Arizona, 384 U.S. 436, 539 (1966) (WHITE, J., dissenting). The strictures that inevitably accompany the "two-pronged test" cannot avoid seriously impeding the task of law enforcement, see, e. g., n. 9, supra. If, as the Illinois Supreme Court apparently thought, that test must be rigorously applied in every case, anonymous tips would be of greatly diminished value in police work. Ordinary citizens, like ordinary witnesses, see Advisory Committee's Notes on Fed. Rule Evid. 701, 28 U.S. C. App., p. 570, generally do not provide extensive recitations of the basis of their everyday observations. Likewise, as the Illinois Supreme Court observed in this case, the veracity of persons supplying anonymous tips is by hypothesis largely unknown, and unknowable. As a result, anonymous tips seldom could survive a rigorous application of either of the Spinelli prongs. Yet, such tips, particularly when supplemented by *238 independent police investigation, frequently contribute to the solution of otherwise "perfect crimes." While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not. For all these reasons, we conclude that it is wiser to abandon the "two-pronged test" established by our decisions in Aguilar and Spinelli.[11] In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations. See Jones v. United States, supra; United States v. Ventresca, 380 U.S. 102 (1965); Brinegar v. United States, 338 U.S. 160 (1949). The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . conclud[ing]" that probable cause *239 existed. Jones v. United States, 362 U. S., at 271. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli. Our earlier cases illustrate the limits beyond which a magistrate may not venture in issuing a warrant. A sworn statement of an affiant that "he has cause to suspect and does believe" that liquor illegally brought into the United States is located on certain premises will not do. Nathanson v. United States, 290 U.S. 41 (1933). An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause, and the wholly conclusory statement at issue in Nathanson failed to meet this requirement. An officer's statement that "[a]ffiants have received reliable information from a credible person and do believe" that heroin is stored in a home, is likewise inadequate. Aguilar v. Texas, 378 U.S. 108 (1964). As in Nathanson, this is a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause. Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued. But when we move beyond the "bare bones" affidavits present in cases such as Nathanson and Aguilar, this area simply does not lend itself to a prescribed set of rules, like that which had developed from Spinelli. Instead, the flexible, common-sense standard articulated in Jones, Ventresca, and Brinegar better serves the purposes of the Fourth Amendment's probable-cause requirement. JUSTICE BRENNAN'S dissent suggests in several places that the approach we take today somehow downgrades the *240 role of the neutral magistrate, because Aguilar and Spinelli "preserve the role of magistrates as independent arbiters of probable cause . . . ." Post, at 287. Quite the contrary, we believe, is the case. The essential protection of the warrant requirement of the Fourth Amendment, as stated in Johnson v. United States, 333 U.S. 10 (1948), is in "requiring that [the usual inferences which reasonable men draw from evidence] be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Id., at 13-14. Nothing in our opinion in any way lessens the authority of the magistrate to draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant; indeed, he is freer than under the regime of Aguilar and Spinelli to draw such inferences, or to refuse to draw them if he is so minded. The real gist of JUSTICE BRENNAN'S criticism seems to be a second argument, somewhat at odds with the first, that magistrates should be restricted in their authority to make probable-cause determinations by the standards laid down in Aguilar and Spinelli, and that such findings "should not be authorized unless there is some assurance that the information on which they are based has been obtained in a reliable way by an honest or credible person." Post, at 283. However, under our opinion magistrates remain perfectly free to exact such assurances as they deem necessary, as well as those required by this opinion, in making probable-cause determinations. JUSTICE BRENNAN would apparently prefer that magistrates be restricted in their findings of probable cause by the development of an elaborate body of case law dealing with the "veracity" prong of the Spinelli test, which in turn is broken down into two "spurs" — the informant's "credibility" and the "reliability" of his information, together with the "basis of knowledge" prong of the Spinelli test. See n. 4, supra. That such a labyrinthine body of judicial refinement bears any relationship to familiar definitions of *241 probable cause is hard to imagine. As previously noted, probable cause deals "with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act," Brinegar v. United States, 338 U. S., at 175. JUSTICE BRENNAN'S dissent also suggests that "[w]ords such as `practical,' `nontechnical,' and `common sense,' as used in the Court's opinion, are but code words for an overly permissive attitude towards police practices in derogation of the rights secured by the Fourth Amendment." Post, at 290. An easy, but not a complete, answer to this rather florid statement would be that nothing we know about Justice Rutledge suggests that he would have used the words he chose in Brinegar in such a manner. More fundamentally, no one doubts that "under our Constitution only measures consistent with the Fourth Amendment may be employed by government to cure [the horrors of drug trafficking]," post, at 290; but this agreement does not advance the inquiry as to which measures are, and which measures are not, consistent with the Fourth Amendment. "Fidelity" to the commands of the Constitution suggests balanced judgment rather than exhortation. The highest "fidelity" is not achieved by the judge who instinctively goes furthest in upholding even the most bizarre claim of individual constitutional rights, any more than it is achieved by a judge who instinctively goes furthest in accepting the most restrictive claims of governmental authorities. The task of this Court, as of other courts, is to "hold the balance true," and we think we have done that in this case. IV Our decisions applying the totality-of-the-circumstances analysis outlined above have consistently recognized the value of corroboration of details of an informant's tip by independent police work. In Jones v. United States, 362 U. S., at 269, we held that an affidavit relying on hearsay "is not to *242 be deemed insufficient on that score, so long as a substantial basis for crediting the hearsay is presented." We went on to say that even in making a warrantless arrest an officer "may rely upon information received through an informant, rather than upon his direct observations, so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge." Ibid. Likewise, we recognized the probative value of corroborative efforts of police officials in Aguilar — the source of the "two-pronged test" — by observing that if the police had made some effort to corroborate the informant's report at issue, "an entirely different case" would have been presented. Aguilar, 378 U. S., at 109, n. 1. Our decision in Draper v. United States, 358 U.S. 307 (1959), however, is the classic case on the value of corroborative efforts of police officials. There, an informant named Hereford reported that Draper would arrive in Denver on a train from Chicago on one of two days, and that he would be carrying a quantity of heroin. The informant also supplied a fairly detailed physical description of Draper, and predicted that he would be wearing a light colored raincoat, brown slacks, and black shoes, and would be walking "real fast." Id., at 309. Hereford gave no indication of the basis for his information.[12] On one of the stated dates police officers observed a man matching this description exit a train arriving from Chicago; his attire and luggage matched Hereford's report and he was *243 walking rapidly. We explained in Draper that, by this point in his investigation, the arresting officer "had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford's information being thus personally verified, [the officer] had `reasonable grounds' to believe that the remaining unverified bit of Hereford's information — that Draper would have the heroin with him — was likewise true," id., at 313. The showing of probable cause in the present case was fully as compelling as that in Draper. Even standing alone, the facts obtained through the independent investigation of Mader and the DEA at least suggested that the Gateses were involved in drug trafficking. In addition to being a popular vacation site, Florida is well known as a source of narcotics and other illegal drugs. See United States v. Mendenhall, 446 U.S. 544, 562 (1980) (POWELL, J., concurring in part and concurring in judgment); DEA, Narcotics Intelligence Estimate, The Supply of Drugs to the U. S. Illicit Market From Foreign and Domestic Sources in 1980, pp. 8-9. Lance Gates' flight to West Palm Beach, his brief, overnight stay in a motel, and apparent immediate return north to Chicago in the family car, conveniently awaiting him in West Palm Beach, is as suggestive of a prearranged drug run, as it is of an ordinary vacation trip. In addition, the judge could rely on the anonymous letter, which had been corroborated in major part by Mader's efforts — just as had occurred in Draper.[13] The Supreme Court *244 of Illinois reasoned that Draper involved an informant who had given reliable information on previous occasions, while the honesty and reliability of the anonymous informant in this case were unknown to the Bloomingdale police. While this distinction might be an apt one at the time the Police Department received the anonymous letter, it became far less significant after Mader's independent investigative work occurred. The corroboration of the letter's predictions that the Gateses' car would be in Florida, that Lance Gates would fly to Florida in the next day or so, and that he would drive the car north toward Bloomingdale all indicated, albeit not with certainty, that the informant's other assertions also were true. "[B]ecause an informant is right about some things, he is more probably right about other facts," Spinelli, 393 U. S., at 427 (WHITE, J., concurring) — including the claim regarding the Gateses' illegal activity. This may well not be the type of "reliability" or "veracity" necessary to satisfy some views of the "veracity prong" of Spinelli, but we think it suffices for the practical, common-sense judgment called for in making a probable-cause determination. It is enough, for purposes of assessing probable cause, that "[c]orroboration through other sources of information reduced the *245 chances of a reckless or prevaricating tale," thus providing "a substantial basis for crediting the hearsay." Jones v. United States, 362 U. S., at 269, 271. Finally, the anonymous letter contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. The letterwriter's accurate information as to the travel plans of each of the Gateses was of a character likely obtained only from the Gateses themselves, or from someone familiar with their not entirely ordinary travel plans. If the informant had access to accurate information of this type a magistrate could properly conclude that it was not unlikely that he also had access to reliable information of the Gateses' alleged illegal activities.[14] Of *246A course, the Gateses' travel plans might have been learned from a talkative neighbor or travel agent; under the "two-pronged test" developed from Spinelli, the character of the details in the anonymous letter might well not permit a sufficiently clear inference regarding the letterwriter's "basis of knowledge." But, as discussed previously, supra, at 235, probable cause does not demand the certainty we associate with formal trials. It is enough that there was a fair probability that the writer of the anonymous letter had obtained his entire story either from the Gateses or someone they trusted. And corroboration of major portions of the letter's predictions provides just this probability. It is apparent, therefore, that the judge issuing the warrant had a "substantial basis for . . . conclud[ing]" that probable cause to search the Gateses' home and car existed. The judgment of the Supreme Court of Illinois therefore must be Reversed. *246B JUSTICE WHITE, concurring in the judgment.

Respondents Lance and Susan Gates were indicted for violation of state drug laws after police officers, executing a search warrant, discovered marihuana and other contraband in their automobile and home. Prior to trial the Gateses moved to suppress evidence seized during this search. The Illinois Supreme Court affirmed the decisions of lower state courts granting the moti It held that the affidavit submitted in support of the State's application for a warrant to search the Gateses' property *217 was inadequate under this Court's decisions in and We granted certiorari to consider the application of the Fourth Amendment to a magistrate's issuance of a search warrant on the basis of a partially corroborated anonymous informant's tip. After receiving briefs and hearing oral argument on this question, however, we requested the parties to address an additional question: "[W]hether the rule requiring the exclusion at a criminal trial of evidence obtained in violation of the Fourth Amendment, ; should to any extent be modified, so as, for example, not to require the exclusion of evidence obtained in the reasonable belief that the search and seizure at issue was consistent with the Fourth Amendment." We decide today, with apologies to all, that the issue we framed for the parties was not presented to the Illinois courts and, accordingly, do not address it. Rather, we consider the question originally presented in the petition for certiorari, and conclude that the Illinois Supreme Court read the requirements of our Fourth Amendment decisions too restrictively. Initially, however, we set forth our reasons for not addressing the question regarding modification of the exclusionary rule framed in our order of November 2, 182. I Our certiorari jurisdiction over decisions from state courts derives from 28 U.S. C. 127, which provides that "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows: (3) By writ of certiorari,. where any title, right, privilege or immunity is specially set up or claimed under the constitution, treaties or statutes *218 of the United" The provision derives, albeit with important alterations, see, e. g., Act of Dec. 23, 11, ch. 2, ; Act of June 2, 18, 127, from the Judiciary Act of 178, 2, Although we have spoken frequently on the meaning of 127 and its predecessors, our decisions are in some respects not entirely clear. We held early on that 2 of the Judiciary Act of 178 furnished us with no jurisdiction unless a federal question had been both raised and decided in the state court below. As Justice Story wrote in ; "If both of these requirements do not appear on the record, the appellate jurisdiction fails." See also[1] More recently, in the Court observed: "But it is also the settled practice of this Court, in the exercise of its appellate jurisdiction, that it is only in exceptional cases, and then only in cases coming from the federal courts, that it considers questions urged by a petitioner or appellant not pressed or passed upon in the courts below. In cases coming here from state courts in which a state statute is assailed as unconstitutional, there are reasons of peculiar force which should lead us to refrain from deciding questions not presented or decided in the highest court of the state whose judicial action we are called upon to review. Apart from the *21 reluctance with which every court should proceed to set aside legislation as unconstitutional on grounds not presented, due regard for the appropriate relationship of this Court to state courts requires us to decline to consider and decide questions affecting the validity of state statutes not urged or considered there. It is for these reasons that this Court, where the constitutionality of a statute has been upheld in the state court, consistently refuses to consider any grounds of attack not raised or decided in that court." Finally, the Court seemed to reaffirm the jurisdictional character of the rule against our deciding claims "not pressed nor passed upon" in state court in State Farm Mutual Automobile Ins. where we explained that "[s]ince the [State] Supreme Court did not pass on the question, we may not do so." See also Notwithstanding these decisions, however, several of our more recent cases have treated the so-called "not pressed or passed upon below" rule as merely a prudential restricti In the Court reversed a state criminal conviction on a ground not urged in state court, nor even in this Court. Likewise, in the Court summarily reversed a state criminal conviction on the ground, not raised in state court, or here, that it had been obtained in violation of the Due Process Clause of the Fourteenth Amendment. The Court indicated in a footnote, that it possessed discretion to ignore the failure to raise in state court the question on which it decided the case. In addition to this lack of clarity as to the character of the "not pressed or passed upon below" rule, we have recognized that it often may be unclear whether the particular federal question presented in this Court was raised or passed upon below. In the fullest treatment of the subject, the Court said *220 that "[i]f the question were only an enlargement of the one mentioned in the assignment of errors, or if it were so connected with it in substance as to form but another ground or reason for alleging the invalidity of the [lower court's] judgment, we should have no hesitation in holding the assignment sufficient to permit the question to be now raised and argued. Parties are not confined here to the same arguments which were advanced in the courts below upon a Federal question there discussed."[2] We have not attempted, and likely would not have been able, to draw a clear-cut line between cases involving only an "enlargement" of questions presented below and those involving entirely new questions. The application of these principles in the instant case is not entirely straightforward. It is clear in this case that respondents expressly raised, at every level of the Illinois judicial system, the claim that the Fourth Amendment had been violated by the actions of the Illinois police and that the evidence seized by the officers should be excluded from their trial. It also is clear that the State challenged, at every level of the Illinois court system, respondents' claim that the substantive requirements of the Fourth Amendment had been violated. The State never, however, raised or addressed the question whether the federal exclusionary rule should be modified in any respect, and none of the opinions of the *221 Illinois courts give any indication that the question was considered. The case, of course, is before us on the State's petition for a writ of certiorari. Since the Act of Dec. 23, 11, ch. 2, jurisdiction has been vested in this Court to review state-court decisions even when a claimed federal right has been upheld. Our prior decisions interpreting the "not pressed or passed on below" rule have not, however, involved a State's failure to raise a defense to a federal right or remedy asserted below. As explained below, however, we can see no reason to treat the State's failure to have challenged an asserted federal claim differently from the failure of the proponent of a federal claim to have raised that claim. We have identified several purposes underlying the "not pressed or passed upon" rule: for the most part, these are as applicable to the State's failure to have opposed the assertion of a particular federal right, as to a party's failure to have asserted the claim. First, "[q]uestions not raised below are those on which the record is very likely to be inadequate since it certainly was not complied with those questions in mind." Exactly the same difficulty exists when the State urges modification of an existing constitutional right or accompanying remedy. Here, for example, the record contains little, if anything, regarding the subjective good faith of the police officers that searched the Gateses' property — which might well be an important consideration in determining whether to fashion a good-faith exception to the exclusionary rule. Our consideration of whether to modify the exclusionary rule plainly would benefit from a record containing such facts. Likewise, "due regard for the appropriate relationship of this court to state courts," 30 U. S., at demands that those courts be given an opportunity to consider the constitutionality of the actions of state officials, and, equally important, proposed changes in existing remedies for unconstitutional *222 actions. Finally, by requiring that the State first argue to the state courts that the federal exclusionary rule should be modified, we permit a state court, even if it agrees with the State as a matter of federal law, to rest its decision on an adequate and independent state ground. See at Illinois, for example, adopted an exclusionary rule as early as see and might adhere to its view even if it thought we would conclude that the federal rule should be modified. In short, the reasons supporting our refusal to hear federal claims not raised in state court apply with equal force to the State's failure to challenge the availability of a well-settled federal remedy. Whether the "not pressed or passed upon below" rule is jurisdictional, as our earlier decisions indicate, see or prudential, as several of our later decisions assume, or whether its character might be different in cases like this from its character elsewhere, we need not decide. Whatever the character of the rule may be, consideration of the question presented in our order of November 2, 182, would be contrary to the sound justifications for the "not pressed or passed upon below" rule, and we thus decide not to pass on the issue. The fact that the Illinois courts affirmatively applied the federal exclusionary rule — suppressing evidence against respondents — does not affect our conclusi In the Court was asked to consider whether a state statute impaired the plaintiff in error's contract with the defendant in error. It declined to hear the case because the question presented here had not been pressed or passed on below. The Court acknowledged that the lower court's opinion had restated the conclusion, set forth in an earlier decision of that court, that the state statute did not impermissibly impair contractual obligations. Nonetheless, it held that there was no showing that "there was any real contest at any stage of this case upon the point," and that without such a contest, the routine restatement *223 and application of settled law by an appellate court did not satisfy the "not pressed or passed upon below" rule. Similarly, in the present case, although the Illinois courts applied the federal exclusionary rule, there was never "any real contest" upon the point. The application of the exclusionary rule was merely a routine act, once a violation of the Fourth Amendment had been found, and not the considered judgment of the Illinois courts on the question whether application of a modified rule would be warranted on the facts of this case. In such circumstances, absent the adversarial dispute necessary to apprise the state court of the arguments for not applying the exclusionary rule, we will not consider the question whether the exclusionary rule should be modified. Likewise, we do not believe that the State's repeated opposition to respondents' substantive Fourth Amendment claims suffices to have raised the question whether the exclusionary rule should be modified. The exclusionary rule is "a judicially created remedy designed to safeguard Fourth Amendment rights generally" and not "a personal constitutional right of the party aggrieved." United The question whether the exclusionary rule's remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct. See, e. g., United ; United ; United Because of this distinction, we cannot say that modification or abolition of the exclusionary rule is "so connected with [the substantive Fourth Amendment right at issue] as to form but another ground or reason for alleging the invalidity" of the judgment. 173 U. S., at Rather, the rule's modification was, for purposes of the "not pressed or passed upon below" rule, a separate claim that had to be specifically presented to the state courts. *22 Finally, weighty prudential considerations militate against our considering the question presented in our order of November 2, 182. The extent of the continued vitality of the rules that have developed from our decisions in and is an issue of unusual significance. Sufficient evidence of this lies just in the comments on the issue that Members of this Court recently have made, e. g., ; ; ; ; ; Where difficult issues of great public importance are involved, there are strong reasons to adhere scrupulously to the customary limitations on our discreti By doing so we "promote respect for the Court's adjudicatory process [and] the stability of [our] decisions." Moreover, fidelity to the rule guarantees that a factual record will be available to us, thereby discouraging the framing of broad rules, seemingly sensible on one set of facts, which may prove ill-considered in other circumstances. In Justice Harlan's words, adherence to the rule lessens the threat of "untoward practical ramifications," not foreseen at the time of decisi The public importance of our decisions in Weeks and Mapp and the emotions engendered by the debate surrounding these decisions counsel that we meticulously observe our customary procedural rules. By following this course, we promote respect for the procedures by which our decisions are rendered, as well as confidence in the stability of prior decisions. A wise exercise of the powers confided in this Court dictates that we reserve for another day the question whether the exclusionary rule should be modified. *22 II We now turn to the question presented in the State's original petition for certiorari, which requires us to decide whether respondents' rights under the Fourth and Fourteenth Amendments were violated by the search of their car and house. A chronological statement of events usefully introduces the issues at stake. Bloomingdale, Ill., is a suburb of Chicago located in Du Page County. On May 3, 178, the Bloomingdale Police Department received by mail an anonymous handwritten letter which read as follows: "This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flys down and drives it back. Sue flys back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in their basement. "They brag about the fact they never have to work, and make their entire living on pushers. "I guarantee if you watch them carefully you will make a big catch. They are friends with some big drugs dealers, who visit their house often. "Lance & Susan Gates "Greenway "in Condominiums" The letter was referred by the Chief of Police of the Bloomingdale Police Department to Detective Mader, who decided to pursue the tip. Mader learned, from the office of the Illinois Secretary of State, that an Illinois driver's license had *226 been issued to one Lance Gates, residing at a stated address in Bloomingdale. He contacted a confidential informant, whose examination of certain financial records revealed a more recent address for the Gateses, and he also learned from a police officer assigned to O'Hare Airport that "L. Gates" had made a reservation on Eastern Airlines Flight 2 to West Palm Beach, Fla., scheduled to depart from Chicago on May at :1 p. m. Mader then made arrangements with an agent of the Drug Enforcement Administration for surveillance of the May Eastern Airlines flight. The agent later reported to Mader that Gates had boarded the flight, and that federal agents in Florida had observed him arrive in West Palm Beach and take a taxi to the nearby Holiday Inn. They also reported that Gates went to a room registered to one Susan Gates and that, at 7 o'clock the next morning, Gates and an unidentified woman left the motel in a Mercury bearing Illinois license plates and drove northbound on an interstate highway frequently used by travelers to the Chicago area. In addition, the DEA agent informed Mader that the license plate number on the Mercury was registered to a Hornet station wagon owned by Gates. The agent also advised Mader that the driving time between West Palm Beach and Bloomingdale was approximately 22 to 2 hours. Mader signed an affidavit setting forth the foregoing facts, and submitted it to a judge of the Circuit Court of Du Page County, together with a copy of the anonymous letter. The judge of that court thereupon issued a search warrant for the Gateses' residence and for their automobile. The judge, in deciding to issue the warrant, could have determined that the modus operandi of the Gateses had been substantially corroborated. As the anonymous letter predicted, Lance Gates had flown from Chicago to West Palm Beach late in the afternoon of May th, had checked into a hotel room registered in the name of his wife, and, at 7 o'clock the following morning, had headed north, accompanied by an unidentified woman, *227 out of West Palm Beach on an interstate highway used by travelers from South Florida to Chicago in an automobile bearing a license plate issued to him. At :1 a. m. on March 7, only 36 hours after he had flown out of Chicago, Lance Gates, and his wife, returned to their home in Bloomingdale, driving the car in which they had left West Palm Beach some 22 hours earlier. The Bloomingdale police were awaiting them, searched the truck of the Mercury, and uncovered approximately 30 pounds of marihuana. A search of the Gateses' home revealed marihuana, weapons, and other contraband. The Illinois Circuit court ordered suppression of all these items, on the ground that the affidavit submitted to the Circuit Judge failed to support the necessary determination of probable cause to believe that the Gateses' automobile and home contained the contraband in questi This decision was affirmed in turn by the Illinois Appellate Court, and by a divided vote of the Supreme court of Illinois. The Illinois Supreme Court concluded — and we are inclined to agree — that, standing alone, the anonymous letter sent to the Bloomingdale Police Department would not provide the basis for a magistrate's determination that there was probable cause to believe contraband would be found in the Gateses' car and home. The letter provides virtually nothing from which one might conclude that its author is either honest or his information reliable; likewise, the letter gives absolutely no indication of the basis for the writer's predictions regarding the Gateses' criminal activities. Something more was required, then, before a magistrate could conclude that there was probable cause to believe that contraband would be found in the Gateses' home and car. See n. 1; The Illinois Supreme Court also recognized that Detective Mader's affidavit might be capable of supplementing *228 the anonymous letter with information sufficient to permit a determination of probable cause. See In holding that the affidavit in fact did not contain sufficient additional information to sustain a determination of probable cause, the Illinois court applied a "two-pronged test," derived from our decision in[3] The Illinois Supreme Court, like some others, apparently understood as requiring that the anonymous letter satisfy each of two independent requirements before it could be relied According to this view, the letter, as supplemented by Mader's affidavit, first had to adequately reveal the "basis of knowledge" of the letterwriter — the particular means by which he came by the information given in his report. Second, it had to provide *22 facts sufficiently establishing either the "veracity" of the affiant's informant, or, alternatively, the "reliability" of the informant's report in this particular case. The Illinois court, alluding to an elaborate set of legal rules that have developed among various lower courts to enforce the "two-pronged test,"[] found that the test had not been satisfied. First, the "veracity" prong was not satisfied because, "[t]here was simply no basis [for] conclud[ing] that the anonymous person [who wrote the letter to the Bloomingdale Police Department] was credible." The court indicated that corroboration by police of details contained in the letter might never satisfy the "veracity" prong, and in any event, could not do so if, as in the present case, only "innocent" details are corroborated. In addition, the letter gave no indication of the basis of its writer's knowledge of the *230 Gateses' activities. The Illinois court understood as permitting the detail contained in a tip to be used to infer that the informant had a reliable basis for his statements, but it thought that the anonymous letter failed to provide sufficient detail to permit such an inference. Thus, it concluded that no showing of probable cause had been made. We agree with the Illinois Supreme Court that an informant's "veracity," "reliability," and "basis of knowledge" are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case,[] which the opinion of the Supreme Court of Illinois would imply. Rather, as detailed below, they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place. III This totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause[6] than *231 is any rigid demand that specific "tests" be satisfied by every informant's tip. Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a "practical, nontechnical concepti" 338 U.S. "In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Our observation in United regarding "particularized suspicion," is also applicable to the probable-cause standard: "The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and *232 so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." As these comments illustrate, probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules. Informants' tips doubtless come in many shapes and sizes from many different types of persons. As we said in : "Informants' tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability." Rigid legal rules are ill-suited to an area of such diversity. "One simple rule will not cover every situati" [7] *233 Moreover, the "two-pronged test" directs analysis into two largely independent channels — the informant's "veracity' or "reliability" and his "basis of knowledge." See nn. and There are persuasive arguments against according these two elements such independent status. Instead, they are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. See, e. g., at 16-; United 03 U.S. 73 If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip. See United[8] Likewise, if an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — we have found *23 rigorous scrutiny of the basis of his knowledge unnecessary. Conversely, even if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case. Unlike a totality-of-the-circumstances analysis, which permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip, the "two-pronged test" has encouraged an excessively technical dissection of informants' tips,[] with undue attention *23 being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate. As early as Chief Justice Marshall observed, in a closely related context: "[T]he term `probable cause,' according to its usual acceptation, means less than evidence which would justify condemnation It imports a seizure made under circumstances which warrant suspici" More recently, we said that "the quanta of proof" appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant. Brinegar, Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decisi While an effort to fix some general, numerically precise degree of certainty corresponding to "probable cause" may not be helpful, it is clear that "only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause." See Model Code of Pre-Arraignment Procedure 210.1(7) ; 1 W. LaFave, Search and Seizure 3.2(e) We also have recognized that affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigati Technical requirements of elaborate specificity once enacted under common law pleadings have no proper place in this area." United (16). Likewise, search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of "probable cause." See 07 U.S. 3, -30 The rigorous inquiry into the prongs and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our decision, cannot be reconciled with the fact that many warrants are — quite 07 U.S., at -30 — issued on the basis of nontechnical, *236 common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings. Likewise, given the informal, often hurried context in which it must be applied, the "built-in subtleties," 1 Md. App. 07, 28, of the "two-pronged test" are particularly unlikely to assist magistrates in determining probable cause. Similarly, we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's "determination of probable cause should be paid great deference by reviewing courts." "A grudging or negative attitude by reviewing courts toward warrants," 380 U. S., at is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner." If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the Warrant Clause that might develop at the time of the search. In addition, the possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct, by assuring "the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." United Reflecting this preference for the warrant process, the traditional standard for review of an issuing magistrate's probable-cause determination has been that so long as the magistrate had a "substantial basis for conclud[ing]" that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. 362 U.S. 27, (160). See United v. *237 03 U. S., at 77-83.[10] We think reaffirmation of this standard better serves the purpose of encouraging recourse to the warrant procedure and is more consistent with our traditional deference to the probable-cause determinations of magistrates than is the "two-pronged test." Finally, the direction taken by decisions following poorly serves "[t]he most basic function of any government": "to provide for the security of the individual and of his property." 3 (166) The strictures that inevitably accompany the "two-pronged test" cannot avoid seriously impeding the task of law enforcement, see, e. g., n. If, as the Illinois Supreme Court apparently thought, that test must be rigorously applied in every case, anonymous tips would be of greatly diminished value in police work. Ordinary citizens, like ordinary witnesses, see Advisory Committee's Notes on Fed. Rule Evid. 701, 28 U.S. C. App., p. 70, generally do not provide extensive recitations of the basis of their everyday observations. Likewise, as the Illinois Supreme Court observed in this case, the veracity of persons supplying anonymous tips is by hypothesis largely unknown, and unknowable. As a result, anonymous tips seldom could survive a rigorous application of either of the prongs. Yet, such tips, particularly when supplemented by *238 independent police investigation, frequently contribute to the solution of otherwise "perfect crimes." While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not. For all these reasons, we conclude that it is wiser to abandon the "two-pronged test" established by our decisions in Aguilar and[11] In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations. See United (16); 338 U.S. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for conclud[ing]" that probable cause *23 existed. 362 U. S., at We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Our earlier cases illustrate the limits beyond which a magistrate may not venture in issuing a warrant. A sworn statement of an affiant that "he has cause to suspect and does believe" that liquor illegally brought into the United is located on certain premises will not do. An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause, and the wholly conclusory statement at issue in Nathanson failed to meet this requirement. An officer's statement that "[a]ffiants have received reliable information from a credible person and do believe" that heroin is stored in a home, is likewise inadequate. As in Nathanson, this is a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause. Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued. But when we move beyond the "bare bones" affidavits present in cases such as Nathanson and Aguilar, this area simply does not lend itself to a prescribed set of rules, like that which had developed from Instead, the flexible, common-sense standard articulated in Jones, and Brinegar better serves the purposes of the Fourth Amendment's probable-cause requirement. JUSTICE BRENNAN'S dissent suggests in several places that the approach we take today somehow downgrades the *20 role of the neutral magistrate, because Aguilar and "preserve the role of magistrates as independent arbiters of probable cause" Post, at 287. Quite the contrary, we believe, is the case. The essential protection of the warrant requirement of the Fourth Amendment, as stated in Johnson v. United (18), is in "requiring that [the usual inferences which reasonable men draw from evidence] be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Nothing in our opinion in any way lessens the authority of the magistrate to draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant; indeed, he is freer than under the regime of Aguilar and to draw such inferences, or to refuse to draw them if he is so minded. The real gist of JUSTICE BRENNAN'S criticism seems to be a second argument, somewhat at odds with the first, that magistrates should be restricted in their authority to make probable-cause determinations by the standards laid down in Aguilar and and that such findings "should not be authorized unless there is some assurance that the information on which they are based has been obtained in a reliable way by an honest or credible pers" Post, at 283. However, under our opinion magistrates remain perfectly free to exact such assurances as they deem necessary, as well as those required by this opinion, in making probable-cause determinations. JUSTICE BRENNAN would apparently prefer that magistrates be restricted in their findings of probable cause by the development of an elaborate body of case law dealing with the "veracity" prong of the test, which in turn is broken down into two "spurs" — the informant's "credibility" and the "reliability" of his information, together with the "basis of knowledge" prong of the test. See n. That such a labyrinthine body of judicial refinement bears any relationship to familiar definitions of *21 probable cause is hard to imagine. As previously noted, probable cause deals "with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act," 338 U. S., JUSTICE BRENNAN'S dissent also suggests that "[w]ords such as `practical,' `nontechnical,' and `common sense,' as used in the Court's opinion, are but code words for an overly permissive attitude towards police practices in derogation of the rights secured by the Fourth Amendment." Post, at 20. An easy, but not a complete, answer to this rather florid statement would be that nothing we know about Justice Rutledge suggests that he would have used the words he chose in Brinegar in such a manner. More fundamentally, no one doubts that "under our Constitution only measures consistent with the Fourth Amendment may be employed by government to cure [the horrors of drug trafficking]," post, at 20; but this agreement does not advance the inquiry as to which measures are, and which measures are not, consistent with the Fourth Amendment. "Fidelity" to the commands of the Constitution suggests balanced judgment rather than exhortati The highest "fidelity" is not achieved by the judge who instinctively goes furthest in upholding even the most bizarre claim of individual constitutional rights, any more than it is achieved by a judge who instinctively goes furthest in accepting the most restrictive claims of governmental authorities. The task of this Court, as of other courts, is to "hold the balance true," and we think we have done that in this case. IV Our decisions applying the totality-of-the-circumstances analysis outlined above have consistently recognized the value of corroboration of details of an informant's tip by independent police work. In 362 U. S., at 26, we held that an affidavit relying on hearsay "is not to *22 be deemed insufficient on that score, so long as a substantial basis for crediting the hearsay is presented." We went on to say that even in making a warrantless arrest an officer "may rely upon information received through an informant, rather than upon his direct observations, so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge." Likewise, we recognized the probative value of corroborative efforts of police officials in Aguilar — the source of the "two-pronged test" — by observing that if the police had made some effort to corroborate the informant's report at issue, "an entirely different case" would have been presented. Aguilar, n. 1. Our decision in Draper v. United 38 U.S. 307 (1), however, is the classic case on the value of corroborative efforts of police officials. There, an informant named Hereford reported that Draper would arrive in Denver on a train from Chicago on one of two days, and that he would be carrying a quantity of heroin. The informant also supplied a fairly detailed physical description of Draper, and predicted that he would be wearing a light colored raincoat, brown slacks, and black shoes, and would be walking "real fast." at 30. Hereford gave no indication of the basis for his informati[12] On one of the stated dates police officers observed a man matching this description exit a train arriving from Chicago; his attire and luggage matched Hereford's report and he was *23 walking rapidly. We explained in Draper that, by this point in his investigation, the arresting officer "had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford's information being thus personally verified, [the officer] had `reasonable grounds' to believe that the remaining unverified bit of Hereford's information — that Draper would have the heroin with him — was likewise true," The showing of probable cause in the present case was fully as compelling as that in Draper. Even standing alone, the facts obtained through the independent investigation of Mader and the DEA at least suggested that the Gateses were involved in drug trafficking. In addition to being a popular vacation site, Florida is well known as a source of narcotics and other illegal drugs. See United v. Mendenhall, 6 U.S. 62 ; DEA, Narcotics Intelligence Estimate, The Supply of Drugs to the U. S. Illicit Market From Foreign and Domestic Sources in pp. 8-. Lance Gates' flight to West Palm Beach, his brief, overnight stay in a motel, and apparent immediate return north to Chicago in the family car, conveniently awaiting him in West Palm Beach, is as suggestive of a prearranged drug run, as it is of an ordinary vacation trip. In addition, the judge could rely on the anonymous letter, which had been corroborated in major part by Mader's efforts — just as had occurred in Draper.[13] The Supreme Court *2 of Illinois reasoned that Draper involved an informant who had given reliable information on previous occasions, while the honesty and reliability of the anonymous informant in this case were unknown to the Bloomingdale police. While this distinction might be an apt one at the time the Police Department received the anonymous letter, it became far less significant after Mader's independent investigative work occurred. The corroboration of the letter's predictions that the Gateses' car would be in Florida, that Lance Gates would fly to Florida in the next day or so, and that he would drive the car north toward Bloomingdale all indicated, albeit not with certainty, that the informant's other assertions also were true. "[B]ecause an informant is right about some things, he is more probably right about other facts," 33 U. S., at 27 — including the claim regarding the Gateses' illegal activity. This may well not be the type of "reliability" or "veracity" necessary to satisfy some views of the "veracity prong" of but we think it suffices for the practical, common-sense judgment called for in making a probable-cause determinati It is enough, for purposes of assessing probable cause, that "[c]orroboration through other sources of information reduced the *2 chances of a reckless or prevaricating tale," thus providing "a substantial basis for crediting the hearsay." 362 U. S., at 26, Finally, the anonymous letter contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. The letterwriter's accurate information as to the travel plans of each of the Gateses was of a character likely obtained only from the Gateses themselves, or from someone familiar with their not entirely ordinary travel plans. If the informant had access to accurate information of this type a magistrate could conclude that it was not unlikely that he also had access to reliable information of the Gateses' alleged illegal activities.[1] Of *26A course, the Gateses' travel plans might have been learned from a talkative neighbor or travel agent; under the "two-pronged test" developed from the character of the details in the anonymous letter might well not permit a sufficiently clear inference regarding the letterwriter's "basis of knowledge." But, as discussed previously, at 23, probable cause does not demand the certainty we associate with formal trials. It is enough that there was a fair probability that the writer of the anonymous letter had obtained his entire story either from the Gateses or someone they trusted. And corroboration of major portions of the letter's predictions provides just this probability. It is apparent, therefore, that the judge issuing the warrant had a "substantial basis for conclud[ing]" that probable cause to search the Gateses' home and car existed. The judgment of the Supreme Court of Illinois therefore must be Reversed. *26B JUSTICE WHITE, concurring in the judgment.

Justice Burger

majority

Burks v. United States

https://www.courtlistener.com/opinion/109891/burks-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/109891/

1977-109

We granted certiorari to resolve the question of whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury's verdict. I Petitioner Burks was tried in the United States District Court for the crime of robbing a federally insured bank by use of a dangerous weapon, a violation of 18 U.S. C. § 2113 (d) (1976 ed.). Burks' principal defense was insanity. To prove this *3 claim petitioner produced three expert witnesses who testified, albeit with differing diagnoses of his mental condition, that he suffered from a mental illness at the time of the robbery, which rendered him substantially incapable of conforming his conduct to the requirements of the law. In rebuttal the Government offered the testimony of two experts, one of whom testified that although petitioner possessed a character disorder, he was not mentally ill. The other prosecution witness acknowledged a character disorder in petitioner, but gave a rather ambiguous answer to the question of whether Burks had been capable of conforming his conduct to the law. Lay witnesses also testified for the Government, expressing their opinion that petitioner appeared to be capable of normal functioning and was sane at the time of the alleged offense. Before the case was submitted to the jury, the court denied a motion for a judgment of acquittal. The jury found Burks guilty as charged. Thereafter, he filed a timely motion for a new trial, maintaining, among other things, that "[t]he evidence was insufficient to support the verdict." The motion was denied by the District Court, which concluded that petitioner's challenge to the sufficiency of the evidence was "utterly without merit."[1] On appeal petitioner narrowed the issues by admitting the affirmative factual elements of the charge against him, leaving only his claim concerning criminal responsibility to be resolved. With respect to this point, the Court of Appeals agreed with petitioner's claim that the evidence was insufficient to support the verdict and reversed his conviction. 547 F.2d 968 (CA6 1976). The court began by noting that "the government has the burden of proving sanity [beyond a reasonable doubt] once a prima facie defense of insanity has been raised."[2]Id., *4 at 969. Petitioner had met his obligation, the court indicated, by presenting "the specific testimony of three experts with unchallenged credentials." Id., at 970. But the reviewing court went on to hold that the United States had not fulfilled its burden since the prosecution's evidence with respect to Burks' mental condition, even when viewed in the light most favorable to the Government, did not "effectively rebu[t]" petitioner's proof with respect to insanity and criminal responsibility. Ibid. In particular, the witnesses presented by the prosecution failed to "express definite opinions on the precise questions which this Court has identified as critical in cases involving the issue of sanity." Ibid. At this point, the Court of Appeals, rather than terminating the case against petitioner, remanded to the District Court "for a determination of whether a directed verdict of acquittal should be entered or a new trial ordered." Ibid. Indicating that the District Court should choose the appropriate course "from a balancing of the equities," ibid., the court explicitly adopted the procedures utilized by the Fifth Circuit in United States v. Bass, 490 F.2d 846, 852-853 (1974), "as a guide" to be used on remand: "[W]e reverse and remand the case to the district court where the defendant will be entitled to a directed verdict of acquittal unless the government presents sufficient additional evidence to carry its burden on the issue of defendant's sanity. As we noted earlier, the question of sufficiency of the evidence to make an issue for the jury on the defense of insanity is a question of law to be decided by the trial judge. . . . If the district court, sitting without the presence of the jury, is satisfied by the government's presentation, it may order a new trial. . . . Even if the government presents additional evidence, the district judge may refuse to order a new trial if he finds from the record that the prosecution had the opportunity fully to develop its case or in fact did so at the first trial." *5 The Court of Appeals assumed it had the power to order this "balancing" remedy by virtue of the fact that Burks had explicitly requested a new trial. As authority for this holding the court cited, inter alia, 28 U.S. C. § 2106,[3] and Bryan v. United States, 338 U.S. 552 (1950). 547 F.2d, at 970. II The United States has not cross-petitioned for certiorari on the question of whether the Court of Appeals was correct in holding that the Government had failed to meet its burden of proof with respect to the claim of insanity. Accordingly, that issue is not open for review here. Given this posture, we are squarely presented with the question of whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury.[4] Petitioner's argument is straightforward. He contends that the Court of Appeals' holding was nothing more or less than a decision that the District Court had erred by not granting his motion for a judgment of acquittal. By implication, he argues, the appellate reversal was the operative equivalent of a district court's judgment of acquittal, entered either before or after verdict. Petitioner points out, however, that had the District Court found the evidence at the first trial inadequate, as the Court of Appeals said it should have done, a second trial would violate the Double Jeopardy Clause of the *6 Fifth Amendment. Therefore, he maintains, it makes no difference that the determination of evidentiary insufficiency was made by a reviewing court since the double jeopardy considerations are the same, regardless of which court decides that a judgment of acquittal is in order. The position advanced by petitioner has not been embraced by our prior holdings. Indeed, as the Court of Appeals here recognized, Bryan v. United States, supra, would appear to be contrary. In Bryan the defendant was convicted in the District Court for evasion of federal income tax laws. Bryan had moved for a judgment of acquittal both at the close of the Government's case and when all of the evidence had been presented. After the verdict was returned he renewed these motions, but asked—in the alternative—for a new trial. These motions were all denied. The Court of Appeals reversed the conviction on the specific ground that the evidence was insufficient to sustain the verdict and remanded the case for a new trial. Certiorari was then granted to determine whether the Court of Appeals had properly ordered a new trial, or whether it should have entered a judgment of acquittal. In affirming the Court of Appeals, this Court decided, first, that the Court of Appeals had statutory authority, under 28 U.S. C. § 2106, to direct a new trial. But Bryan had also maintained that notwithstanding § 2106 a retrial was prohibited by the Double Jeopardy Clause, a contention which was dismissed in one paragraph: "Petitioner's contention that to require him to stand trial again would be to place him twice in jeopardy is not persuasive. He sought and obtained the reversal of his conviction, assigning a number of alleged errors on appeal, including denial of his motion for judgment of acquittal. `. . . [W]here the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial.' Francis v. Resweber, 329 U.S. 459, 462. See Trono v. United States, 199 U.S. 521, 533-534." 338 U.S., at 560. *7 Five years after Bryan was decided, a similar claim of double jeopardy was presented to the Court in Sapir v. United States, 348 U.S. 373 (1955). Sapir had been convicted of conspiracy by a jury in the District Court. After the trial court denied a motion for acquittal, he obtained a reversal in the Court of Appeals, which held that the motion should have been granted since the evidence was insufficient to sustain a conviction. In a brief per curiam opinion, this Court, without explanation, reversed the Court of Appeals' decision to remand the petitioner's case for a new trial. Concurring in the Sapir judgment, which directed the dismissal of the indictment, Mr. Justice Douglas indicated his basis for reversal: "The correct rule was stated in Kepner v. United States, 195 U.S. 100, at 130, `It is, then, the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered . . . .' If the jury had acquitted, there plainly would be double jeopardy to give the Government another go at this citizen. If, as in the Kepner case, the trial judge had rendered a verdict of acquittal, the guarantee against double jeopardy would prevent a new trial of the old offense. I see no difference when the appellate court orders a judgment of acquittal for lack of evidence." Id., at 374. Up to this point, Mr. Justice Douglas' explication is, of course, precisely that urged on us by petitioner, and presumably would have been applicable to Bryan as well. But the concurrence in Sapir then undertook to distinguish Bryan: "If petitioner [Sapir] had asked for a new trial, different considerations would come into play, for then the defendant opens the whole record for such disposition as might be just. See Bryan v. United States, 338 U.S. 552." 348 U. S., at 374. (Emphasis added.) *8 Shortly after Sapir, in Yates v. United States, 354 U.S. 298 (1957), the Court adopted much the same reasoning as that employed by the Sapir concurrence. In Yates, this Court— without citing Sapir—ordered acquittals for some defendants in the case, but new trials for others, when one of the main contentions of the petitioners concerned the insufficiency of the evidence. As an explanation for the differing remedies, the Court stated: "We think we may do this by drawing on our power under 28 U.S. C. § 2106, because under that statute we would no doubt be justified in refusing to order acquittal even where the evidence might be deemed palpably insufficient, particularly since petitioners have asked in the alternative for a new trial as well as for acquittal. See Bryan v. United States, 338 U.S. 552." 354 U. S., at 328. The Yates decision thus paralleled Sapir's concurrence in the sense that both would allow a new trial to correct evidentiary insufficiency if the defendant had requested such relief—even as an alternative to a motion for acquittal. But the language in Yates was also susceptible of a broader reading, namely, that appellate courts have full authority to order a new trial as a remedy for evidentiary insufficiency, even when the defendant has moved only for a judgment of acquittal. Three years later in Forman v. United States, 361 U.S. 416 (1960), the Court again treated these questions. There a conviction was reversed by the Court of Appeals due to an improper instruction to the jury, i. e., trial error, as opposed to evidentiary insufficiency. Although the petitioner in Forman had moved both for a new trial and judgment of acquittal, he argued that a new trial would not be appropriate relief since he had requested a judgment of acquittal with respect to the specific trial error on which this Court agreed with the Court of Appeals. Without distinguishing between a reversal due to trial error and reversal resulting solely from evidentiary *9 insufficiency, this Court held that a new trial did not involve double jeopardy: "It is elementary in our law that a person can be tried a second time for an offense when his prior conviction for that same offense has been set aside by his appeal. United States v. Ball, 163 U.S. 662, 672 (1896). . . . Even though petitioner be right in his claim that he did not request a new trial with respect to the portion of the charge dealing with the statute of limitations, still his plea of double jeopardy must fail. Under 28 U.S. C. § 2106, the Court of Appeals has full power to go beyond the particular relief sought. See Ball, and other cases, supra." Id., at 425. Until this stage in the Forman opinion the Court seemed to adopt the more expansive implication of Yates, i. e., that an appellate court's choice of remedies for an unfair conviction— whether reversal be compelled by failure of proof or trial error—would not turn on the relief requested by the defendant. The Forman decision, however, was not entirely free from ambiguity. In the course of meeting the petitioner's argument that Sapir demanded a judgment of acquittal, the Court noted two differences between those cases. In the first place, "the order to dismiss in Sapir was based on the insufficiency of the evidence, which could be cured only by the introduction of new evidence"; in Forman, however, "`[t]he jury was simply not properly instructed.'" 361 U.S., at 426. In addition, "Sapir made no motion for a new trial in the District Court, while here petitioner [Forman] filed such a motion. That was a decisive factor in Sapir's case." Ibid. (Emphasis added.) The Court's holdings in this area, beginning with Bryan, can hardly be characterized as models of consistency and clarity. Bryan seemingly stood for the proposition that an appellate court could order whatever relief was "appropriate" *10 or "equitable," regardless of what considerations prompted reversal. A somewhat different course was taken by the concurrence in Sapir, where it was suggested that a reversal for evidentiary insufficiency would require a judgment of acquittal unless the defendant had requested a new trial. Yates, on the contrary, implied that new trials could be ordered to cure prior inadequacies of proof even when the defendant had not so moved. While not completely resolving these ambiguities, Forman suggested that a reviewing court could go beyond the relief requested by a defendant and order a new trial under some circumstances. In discussing Sapir, however, the Forman Court intimated that a different result might follow if the conviction was reversed for evidentiary insufficiency and the defendant had not requested a new trial. After the Bryan-Forman line of decisions at least one proposition emerged: A defendant who requests a new trial as one avenue of relief may be required to stand trial again, even when his conviction was reversed due to failure of proof at the first trial. Given that petitioner here appealed from a denial of a motion for a new trial—although he had moved for acquittal during trial—our prior cases would seem to indicate that the Court of Appeals had power to remand on the terms it ordered. To reach a different result will require a departure from those holdings. III It is unquestionably true that the Court of Appeals' decision "represente[d] a resolution, correct or not, of some or all of the factual elements of the offense charged." United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). By deciding that the Government had failed to come forward with sufficient proof of petitioner's capacity to be responsible for criminal acts, that court was clearly saying that Burks' criminal culpability had not been established. If the District Court had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have *11 been entered[5] and, of course, petitioner could not be retried for the same offense. See Fong Foo v. United States, 369 U.S. 141 (1962); Kepner v. United States, 195 U.S. 100 (1904). Consequently, as Mr. Justice Douglas correctly perceived in Sapir, it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient, see 348 U.S., at 374. The appellate decision unmistakably meant that the District Court had erred in failing to grant a judgment of acquittal. To hold otherwise would create a purely arbitrary distinction between those in petitioner's position and others who would enjoy the benefit of a correct decision by the District Court. See Sumpter v. DeGroote, 552 F.2d 1206, 1211-1212 (CA7 1977). The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.[6] This is central to the objective of the prohibition against successive trials. The Clause does not allow "the State . . . to make repeated attempts to convict an individual for an alleged offense," since "[t]he constitutional prohibition against `double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." Green v. United States, 355 U.S. 184, 187 (1957); see Serfass v. United States, 420 U.S. 377, 387-388 (1975); United States v. Jorn, 400 U.S. 470, 479 (1971). *12 Nonetheless, as the discussion in Part II, supra, indicates, our past holdings do not appear consistent with what we believe the Double Jeopardy Clause commands. A close reexamination of those precedents, however, persuades us that they have not properly construed the Clause, and accordingly should no longer be followed. Reconsideration must begin with Bryan v. United States. The brief and somewhat cursory examination of the double jeopardy issue there was limited to stating that "`where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial,'" 338 U.S., at 560, citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462 (1947), and Trono v. United States, 199 U.S. 521, 533-534 (1905). These two cited authorities, which represent the totality of the Court's analysis, add little, if anything, toward resolving the double jeopardy problem presented by Bryan. Resweber involved facts completely unrelated to evidentiary insufficiency. There, in what were admittedly "unusual circumstances," 329 U.S., at 461, the Court decided that a State would be allowed another chance to carry out the execution of one properly convicted and under sentence of death after an initial attempted electrocution failed due to some mechanical difficulty. In passing, the opinion stated: "But where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial. United States v. Ball, 163 U.S. 662, 672." Id., at 462. Trono made a similar comment, citing Ball for the proposition that "if the judgment of conviction be reversed on [the defendant's] own appeal, he cannot avail himself of the once-in-jeopardy provision as a bar to a new trial of the offense for which he was convicted." 199 U.S., at 533-534.[7] *13 The common ancestor of these statements in Resweber and Trono, then, is United States v. Ball, which provides a logical starting point for unraveling the conceptual confusion arising from Bryan and the cases which have followed in its wake. This is especially true since Ball appears to represent the first instance in which this Court considered in any detail the double jeopardy implications of an appellate reversal. North Carolina v. Pearce, 395 U.S. 711, 719-720 (1969). Ball came before the Court twice, the first occasion being on writ of error from federal convictions for murder. On this initial review, those defendants who had been found guilty obtained a reversal of their convictions due to a fatally defective indictment. On remand after appeal, the trial court dismissed the flawed indictment and proceeded to retry the defendants on a new indictment. They were again convicted and the defendants came once more to this Court, arguing that their second trial was barred because of former jeopardy. The Court rejected this plea in a brief statement: "[A] defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offense of which he had been convicted. Hopt v. Utah, 104 U.S. 631; 110 U.S. 574; 114 U.S. 488; 120 U.S. 430; Regina v. Drury, 3 Cox Crim. Cas. 544; S. C. 3 Car. & Kirw. 193; Commonwealth v. Gould, 12 Gray, 171." 163 U.S., at 672. *14 The reversal in Ball was therefore based not on insufficiency of evidence but rather on trial error, i. e., failure to dismiss a faulty indictment. Moreover, the cases cited as authority by Ball were ones involving trial errors.[8] We have no doubt that Ball was correct in allowing a new trial to rectify trial error: "The principle that [the Double Jeopardy Clause] does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence." United States v. Tateo, 377 U.S. 463, 465 (1964) (emphasis supplied). See United States v. Wilson, 420 U.S. 332, 341 n. 9 (1975); Forman, 361 U. S., at 425. As we have seen in Part II, supra, the cases which have arisen since Ball generally do not distinguish *15 between reversals due to trial error and those resulting from evidentiary insufficiency. We believe, however, that the failure to make this distinction has contributed substantially to the present state of conceptual confusion existing in this area of the law. Consequently, it is important to consider carefully the respective roles of these two types of reversals in double jeopardy analysis. Various rationales have been advanced to support the policy of allowing retrial to correct trial error,[9] but in our view the most reasonable justification is that advanced by Tateo, supra, at 466: "It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction." See Wilson, supra, at 343-344, n. 11; Wade v. Hunter, 336 U.S. 684, 688-689 (1949). In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. See Note, Double Jeopardy: A New Trial After *16 Appellate Reversal for Insufficient Evidence, 31 U. Chi. L. Rev. 365, 370 (1964). The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.[10] Moreover, such an appellate reversal means that the government's case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury's verdict of acquittal—no matter how erroneous its decision—it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty. The importance of a reversal on grounds of evidentiary insufficiency for purposes of inquiry under the Double Jeopardy Clause is underscored by the fact that a federal court's role in deciding whether a case should be considered by the jury is quite limited. Even the trial court, which has heard the testimony of witnesses firsthand, is not to weigh the evidence or assess the credibility of witnesses when it judges the merits of a motion for acquittal. See United States v. Wolfenbarger, 426 F.2d 992, 994 (CA6 1970); United States v. Nelson, 419 F.2d 1237, 1241 (CA9 1969); McClard v. United States, 386 F.2d 495, 497 (CA8 1968); Curley v. United States, 81 U. S. App. D. C. 389, 392, 160 F.2d 229, 232-233, cert. denied, 331 U.S. 837 (1947). The prevailing rule has long been that a district judge is to submit a case to the jury if the evidence and inferences therefrom most favorable to the prosecution would warrant the jury's finding the defendant guilty beyond a reasonable doubt. See C. Wright, Federal Practice and *17 Procedure § 467, pp. 259-260 (1969); e. g., Powell v. United States, 135 U. S. App. D. C. 254, 257, 418 F.2d 470, 473 (1969); Crawford v. United States, 126 U. S. App. D. C. 156, 158, 375 F.2d 332, 334 (1967). Obviously a federal appellate court applies no higher a standard; rather, it must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the Government, to uphold the jury's decision. See Glasser v. United States, 315 U.S. 60, 80 (1942). While this is not the appropriate occasion to re-examine in detail the standards for appellate reversal on grounds of insufficient evidence, it is apparent that such a decision will be confined to cases where the prosecution's failure is clear.[11] Given the requirements for entry of a judgment of acquittal. the purposes of the Clause would be negated were we to afford the government an opportunity for the proverbial "second bite at the apple." In our view it makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy. It cannot be meaningfully said that a person "waives" his right to a judgment of acquittal by moving for a new trial. See Green v. United States, 355 U. S., at 191-198. Moreover, as Forman, 361 U. S., at 425, has indicated, an appellate court is authorized by § 2106 to "go beyond the particular relief sought" in order to provide that relief which *18 would be "just under the circumstances." Since we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only "just" remedy available for that court is the direction of a judgment of acquittal. To the extent that our prior decisions suggest that by moving for a new trial, a defendant waives his right to a judgment of acquittal on the basis of evidentiary insufficiency, those cases are overruled. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. Reversed and remanded.

We granted certiorari to resolve the question of whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury's verdict I Petitioner Burks was tried in the United District Court for the crime of robbing a federally insured bank by use of a dangerous weapon, a violation of 18 US C 2113 (d) ( ed) Burks' principal defense was insanity To prove this *3 claim petitioner produced three expert witnesses who testified, albeit with differing diagnoses of his mental condition, that he suffered from a mental illness at the time of the robbery, which rendered him substantially incapable of conforming his conduct to the requirements of the law In rebuttal the Government offered the testimony of two experts, one of whom testified that although petitioner possessed a character disorder, he was not mentally ill The other prosecution witness acknowledged a character disorder in petitioner, but gave a rather ambiguous answer to the question of whether Burks had been capable of conforming his conduct to the law Lay witnesses also testified for the Government, expressing their opinion that petitioner appeared to be capable of normal functioning and was sane at the time of the alleged offense Before the case was submitted to the jury, the court denied a motion for a judgment of acquittal The jury found Burks guilty as charged Thereafter, he filed a timely motion for a new trial, maintaining, among other things, that "[t]he evidence was insufficient to support the verdict" The motion was denied by the District Court, which concluded that petitioner's challenge to the sufficiency of the evidence was "utterly without merit"[1] On appeal petitioner narrowed the issues by admitting the affirmative factual elements of the charge against him, leaving only his claim concerning criminal responsibility to be resolved With respect to this point, the Court of Appeals agreed with petitioner's claim that the evidence was insufficient to support the verdict and reversed his conviction The court began by noting that "the government has the burden of proving sanity [beyond a reasonable doubt] once a prima facie defense of insanity has been raised"[2] *4 at 969 Petitioner had met his obligation, the court indicated, by presenting "the specific testimony of three experts with unchallenged credentials" But the reviewing court went on to hold that the United had not fulfilled its burden since the prosecution's evidence with respect to Burks' mental condition, even when viewed in the light most favorable to the Government, did not "effectively rebu[t]" petitioner's proof with respect to insanity and criminal responsibility In particular, the witnesses presented by the prosecution failed to "express definite opinions on the precise questions which this Court has identified as critical in involving the issue of sanity" At this point, the Court of Appeals, rather than terminating the case against petitioner, remanded to the District Court "for a determination of whether a directed verdict of acquittal should be entered or a new trial ordered" Indicating that the District Court should choose the appropriate course "from a balancing of the equities," ibid, the court explicitly adopted the procedures utilized by the Fifth Circuit in United "as a guide" to be used on remand: "[W]e reverse and remand the case to the district court where the defendant will be entitled to a directed verdict of acquittal unless the government presents sufficient additional evidence to carry its burden on the issue of defendant's sanity As we noted earlier, the question of sufficiency of the evidence to make an issue for the jury on the defense of insanity is a question of law to be decided by the trial judge If the district court, sitting without the presence of the jury, is satisfied by the government's presentation, it may order a new trial Even if the government presents additional evidence, the district judge may refuse to order a new trial if he finds from the record that the prosecution had the opportunity fully to develop its case or in fact did so at the first trial" *5 The Court of Appeals assumed it had the power to order this "balancing" remedy by virtue of the fact that Burks had explicitly requested a new trial As authority for this holding the court cited, inter alia, 28 US C 2106,[3] and 547 F2d, The United has not cross-petitioned for certiorari on the question of whether the Court of Appeals was correct in holding that the Government had failed to meet its burden of proof with respect to the claim of insanity Accordingly, that issue is not open for review here Given this posture, we are squarely presented with the question of whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury[4] Petitioner's argument is straightforward He contends that the Court of Appeals' holding was nothing more or less than a decision that the District Court had erred by not granting his motion for a judgment of acquittal By implication, he argues, the appellate reversal was the operative equivalent of a district court's judgment of acquittal, entered either before or after verdict Petitioner points out, however, that had the District Court found the evidence at the first trial inadequate, as the Court of Appeals said it should have done, a second trial would violate the Double Jeopardy Clause of the *6 Fifth Amendment Therefore, he maintains, it makes no difference that the determination of evidentiary insufficiency was made by a reviewing court since the double jeopardy considerations are the same, regardless of which court decides that a judgment of acquittal is in order The position advanced by petitioner has not been embraced by our prior holdings Indeed, as the Court of Appeals here recognized, would appear to be contrary In Bryan the defendant was convicted in the District Court for evasion of federal income tax laws Bryan had moved for a judgment of acquittal both at the close of the Government's case and when all of the evidence had been presented After the verdict was returned he renewed these motions, but asked—in the alternative—for a new trial These motions were all denied The Court of Appeals reversed the conviction on the specific ground that the evidence was insufficient to sustain the verdict and remanded the case for a new trial Certiorari was then granted to determine whether the Court of Appeals had properly ordered a new trial, or whether it should have entered a judgment of acquittal In affirming the Court of Appeals, this Court decided, first, that the Court of Appeals had statutory authority, under 28 US C 2106, to direct a new trial But Bryan had also maintained that notwithstanding 2106 a retrial was prohibited by the Double Jeopardy Clause, a contention which was dismissed in one paragraph: "Petitioner's contention that to require him to stand trial again would be to place him twice in jeopardy is not persuasive He sought and obtained the reversal of his conviction, assigning a number of alleged errors on appeal, including denial of his motion for judgment of acquittal ` [W]here the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial' Francis v Resweber, 329 US 459, See Trono v United 199 US 521, " 338 US, at 560 *7 Five years after Bryan was decided, a similar claim of double jeopardy was presented to the Court in Sapir v United 348 US 373 Sapir had been convicted of conspiracy by a jury in the District Court After the trial court denied a motion for acquittal, he obtained a reversal in the Court of Appeals, which held that the motion should have been granted since the evidence was insufficient to sustain a conviction In a brief per curiam opinion, this Court, without explanation, reversed the Court of Appeals' decision to remand the petitioner's case for a new trial Concurring in the Sapir judgment, which directed the dismissal of the indictment, Mr Justice Douglas indicated his basis for reversal: "The correct rule was stated in Kepner v United 195 US 100, `It is, then, the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered ' If the jury had acquitted, there plainly would be double jeopardy to give the Government another go at this citizen If, as in the Kepner case, the trial judge had rendered a verdict of acquittal, the guarantee against double jeopardy would prevent a new trial of the old offense I see no difference when the appellate court orders a judgment of acquittal for lack of evidence" Up to this point, Mr Justice Douglas' explication is, of course, precisely that urged on us by petitioner, and presumably would have been applicable to Bryan as well But the concurrence in Sapir then undertook to distinguish Bryan: "If petitioner [Sapir] had asked for a new trial, different considerations would come into play, for then the defendant opens the whole record for such disposition as might be just See " 348 U S, (Emphasis added) *8 Shortly after Sapir, in Yates v United 354 US 298 the Court adopted much the same reasoning as that employed by the Sapir concurrence In Yates, this Court— without citing Sapir—ordered acquittals for some defendants in the case, but new trials for others, when one of the main contentions of the petitioners concerned the insufficiency of the evidence As an explanation for the differing remedies, the Court stated: "We think we may do this by drawing on our power under 28 US C 2106, because under that statute we would no doubt be justified in refusing to order acquittal even where the evidence might be deemed palpably insufficient, particularly since petitioners have asked in the alternative for a new trial as well as for acquittal See " 354 U S, at 328 The Yates decision thus paralleled Sapir's concurrence in the sense that both would allow a new trial to correct evidentiary insufficiency if the defendant had requested such relief—even as an alternative to a motion for acquittal But the language in Yates was also susceptible of a broader reading, namely, that appellate courts have full authority to order a new trial as a remedy for evidentiary insufficiency, even when the defendant has moved only for a judgment of acquittal Three years later in v United 361 US 416 the Court again treated these questions There a conviction was reversed by the Court of Appeals due to an improper instruction to the jury, i e, trial error, as opposed to evidentiary insufficiency Although the petitioner in had moved both for a new trial and judgment of acquittal, he argued that a new trial would not be appropriate relief since he had requested a judgment of acquittal with respect to the specific trial error on which this Court agreed with the Court of Appeals Without distinguishing between a reversal due to trial error and reversal resulting solely from evidentiary *9 insufficiency, this Court held that a new trial did not involve double jeopardy: "It is elementary in our law that a person can be tried a second time for an offense when his prior conviction for that same offense has been set aside by his appeal United v Ball, 163 US 662, Even though petitioner be right in his claim that he did not request a new trial with respect to the portion of the charge dealing with the statute of limitations, still his plea of double jeopardy must fail Under 28 US C 2106, the Court of Appeals has full power to go beyond the particular relief sought See Ball, and other supra" Until this stage in the opinion the Court seemed to adopt the more expansive implication of Yates, i e, that an appellate court's choice of remedies for an unfair conviction— whether reversal be compelled by failure of proof or trial error—would not turn on the relief requested by the defendant The decision, however, was not entirely free from ambiguity In the course of meeting the petitioner's argument that Sapir demanded a judgment of acquittal, the Court noted two differences between those In the first place, "the order to dismiss in Sapir was based on the insufficiency of the evidence, which could be cured only by the introduction of new evidence"; in however, "`[t]he jury was simply not properly instructed'" 361 US, at 426 In addition, "Sapir made no motion for a new trial in the District Court, while here petitioner [] filed such a motion That was a decisive factor in Sapir's case" (Emphasis added) The Court's holdings in this area, beginning with Bryan, can hardly be characterized as models of consistency and clarity Bryan seemingly stood for the proposition that an appellate court could order whatever relief was "appropriate" *10 or "equitable," regardless of what considerations prompted reversal A somewhat different course was taken by the concurrence in Sapir, where it was suggested that a reversal for evidentiary insufficiency would require a judgment of acquittal unless the defendant had requested a new trial Yates, on the contrary, implied that new trials could be ordered to cure prior inadequacies of proof even when the defendant had not so moved While not completely resolving these ambiguities, suggested that a reviewing court could go beyond the relief requested by a defendant and order a new trial under some circumstances In discussing Sapir, however, the Court intimated that a different result might follow if the conviction was reversed for evidentiary insufficiency and the defendant had not requested a new trial After the Bryan- line of decisions at least one proposition emerged: A defendant who requests a new trial as one avenue of relief may be required to stand trial again, even when his conviction was reversed due to failure of proof at the first trial Given that petitioner here appealed from a denial of a motion for a new trial—although he had moved for acquittal during trial—our prior would seem to indicate that the Court of Appeals had power to remand on the terms it ordered To reach a different result will require a departure from those holdings I It is unquestionably true that the Court of Appeals' decision "represente[d] a resolution, correct or not, of some or all of the factual elements of the offense charged" United v Martin Linen Supply Co, 430 US 564, By deciding that the Government had failed to come forward with sufficient proof of petitioner's capacity to be responsible for criminal acts, that court was clearly saying that Burks' criminal culpability had not been established If the District Court had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have *11 been entered[5] and, of course, petitioner could not be retried for the same offense See Fong Foo v United 369 US 141 ; Kepner v United 195 US 100 Consequently, as Mr Justice Douglas correctly perceived in Sapir, it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient, see 348 US, The appellate decision unmistakably meant that the District Court had erred in failing to grant a judgment of acquittal To hold otherwise would create a purely arbitrary distinction between those in petitioner's position and others who would enjoy the benefit of a correct decision by the District Court See Sumpter v DeGroote, 552 F2d 1206, The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding[6] This is central to the objective of the prohibition against successive trials The Clause does not allow "the State to make repeated attempts to convict an individual for an alleged offense," since "[t]he constitutional prohibition against `double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense" Green v United 355 US 184, ; see Serfass v United 420 US 377, ; United v Jorn, 400 US 470, *12 Nonetheless, as the discussion in Part indicates, our past holdings do not appear consistent with what we believe the Double Jeopardy Clause commands A close reexamination of those precedents, however, persuades us that they have not properly construed the Clause, and accordingly should no longer be followed Reconsideration must begin with The brief and somewhat cursory examination of the double jeopardy issue there was limited to stating that "`where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial,'" 338 US, at 560, citing Louisiana ex rel Francis v Resweber, 329 US 459, and Trono v United 199 US 521, These two cited authorities, which represent the totality of the Court's analysis, add little, if anything, toward resolving the double jeopardy problem presented by Bryan Resweber involved facts completely unrelated to evidentiary insufficiency There, in what were admittedly "unusual circumstances," 329 US, at 461, the Court decided that a State would be allowed another chance to carry out the execution of one properly convicted and under sentence of death after an initial attempted electrocution failed due to some mechanical difficulty In passing, the opinion stated: "But where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial United v Ball, 163 US 662, " at Trono made a similar comment, citing Ball for the proposition that "if the judgment of conviction be reversed on [the defendant's] own appeal, he cannot avail himself of the once-in-jeopardy provision as a bar to a new trial of the offense for which he was convicted" 199 US, at [7] *13 The common ancestor of these statements in Resweber and Trono, then, is United v Ball, which provides a logical starting point for unraveling the conceptual confusion arising from Bryan and the which have followed in its wake This is especially true since Ball appears to represent the first instance in which this Court considered in any detail the double jeopardy implications of an appellate reversal North Carolina v Pearce, 395 US 711, Ball came before the Court twice, the first occasion being on writ of error from federal convictions for murder On this initial review, those defendants who had been found guilty obtained a reversal of their convictions due to a fatally defective indictment On remand after appeal, the trial court dismissed the flawed indictment and proceeded to retry the defendants on a new indictment They were again convicted and the defendants came once more to this Court, arguing that their second trial was barred because of former jeopardy The Court rejected this plea in a brief statement: "[A] defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offense of which he had been convicted Hopt v Utah, 104 US 631; 110 US 574; 114 US 488; 120 US 430; Regina v Drury, 3 Cox Crim Cas 544; S C 3 Car & Kirw 193; Commonwealth v Gould, " 163 US, at *14 The reversal in Ball was therefore based not on insufficiency of evidence but rather on trial error, i e, failure to dismiss a faulty indictment Moreover, the cited as authority by Ball were ones involving trial errors[8] We have no doubt that Ball was correct in allowing a new trial to rectify trial error: "The principle that [the Double Jeopardy Clause] does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence" United v 377 US 463, See United v 420 US 332, 341 n 9 ; 361 U S, As we have seen in Part the which have arisen since Ball generally do not distinguish *15 between reversals due to trial error and those resulting from evidentiary insufficiency We believe, however, that the failure to make this distinction has contributed substantially to the present state of conceptual confusion existing in this area of the law Consequently, it is important to consider carefully the respective roles of these two types of reversals in double jeopardy analysis Various rationales have been advanced to support the policy of allowing retrial to correct trial error,[9] but in our view the most reasonable justification is that advanced by at 466: "It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction" See at 343-344, n 11; Wade v Hunter, 336 US 684, In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case As such, it implies nothing with respect to the guilt or innocence of the defendant Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e g, incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished See Note, Double Jeopardy: A New Trial After *16 Appellate Reversal for Insufficient Evidence, 31 U Chi L Rev 365, The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble[10] Moreover, such an appellate reversal means that the government's case was so lacking that it should not have even been submitted to the jury Since we necessarily afford absolute finality to a jury's verdict of acquittal—no matter how erroneous its decision—it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty The importance of a reversal on grounds of evidentiary insufficiency for purposes of inquiry under the Double Jeopardy Clause is underscored by the fact that a federal court's role in deciding whether a case should be considered by the jury is quite limited Even the trial court, which has heard the testimony of witnesses firsthand, is not to weigh the evidence or assess the credibility of witnesses when it judges the merits of a motion for acquittal See United v Wolfenbarger, 426 F2d 992, ; United v Nelson, 419 F2d 1237, ; McClard v United 386 F2d 495, ; Curley v United 81 U S App D C 389, 392, 160 F2d 229, cert denied, 331 US 837 The prevailing rule has long been that a district judge is to submit a case to the jury if the evidence and inferences therefrom most favorable to the prosecution would warrant the jury's finding the defendant guilty beyond a reasonable doubt See C Wright, Federal Practice and *17 Procedure 467, pp 259-260 ; e g, Powell v United 135 U S App D C 254, 257, 418 F2d 470, ; Crawford v United 126 U S App D C 156, 158, 375 F2d 332, Obviously a federal appellate court applies no higher a standard; rather, it must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the Government, to uphold the jury's decision See Glasser v United 315 US 60, While this is not the appropriate occasion to re-examine in detail the standards for appellate reversal on grounds of insufficient evidence, it is apparent that such a decision will be confined to where the prosecution's failure is clear[11] Given the requirements for entry of a judgment of acquittal the purposes of the Clause would be negated were we to afford the government an opportunity for the proverbial "second bite at the apple" In our view it makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy It cannot be meaningfully said that a person "waives" his right to a judgment of acquittal by moving for a new trial See Green v United 355 U S, at 191-198 Moreover, as 361 U S, has indicated, an appellate court is authorized by 2106 to "go beyond the particular relief sought" in order to provide that relief which *18 would be "just under the circumstances" Since we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only "just" remedy available for that court is the direction of a judgment of acquittal To the extent that our prior decisions suggest that by moving for a new trial, a defendant waives his right to a judgment of acquittal on the basis of evidentiary insufficiency, those are overruled Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion Reversed and remanded

Justice Marshall

second_dissenting

Gooding v. United States

https://www.courtlistener.com/opinion/109017/gooding-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/109017/

1973-097

I agree with my Brother DOUGLAS that the provisions of the District of Columbia Code requiring a showing of need for execution of a search warrant at night govern the search involved in this case, and, accordingly, I join in his dissenting opinion. A majority of the Court, however, rejects this argument and goes on to discuss the standards imposed by 21 U.S. C. § 879 (a) upon issuance of search warrants for nighttime execution in federal narcotics cases. Obviously, the Court's interpretation of § 879 (a) is of far greater significance, of national rather than purely local concern. I cannot let the Court's construction of § 879 (a) pass without registering my dissent on this issue as well. The opinion of the Court, it seems to me, analyzes the § 879 (a) issue in a vacuum, without any discussion of some of the important policy considerations which underlie this question of statutory interpretation. Perhaps a partial vacuum would be a more appropriate description, since the Court is obviously fully cognizant of the substantial governmental interest in enforcement of the narcotics laws, an interest which its interpretation of § 879 (a) so well serves. But plainly there are other concerns implicated in our interpretation of this congressional *462 enactment restricting the issuance of search warrants—the protection of individual privacy which is the very purpose of the statute's search warrant requirement and which of course is given constitutional recognition in the Fourth Amendment. The Court seems totally oblivious to these constitutional considerations. Taking them into account, I find that the only acceptable interpretation of the statute is one which requires some additional justification for authorizing a nighttime search over and above the ordinary showing of probable cause to believe that a crime has been committed and that evidence of the crime will be found upon the search. Fundamentally at issue in this case is the extent of the protection which we will all enjoy from police intrusion into the privacy of our homes during the middle of the night. The Fourth Amendment was intended to protect our reasonable expectations of privacy from unjustified governmental intrusion. Katz v. United States, 389 U.S. 347, 360-362 (1967) (Harlan, J., concurring). In my view, there is no expectation of privacy more reasonable and more demanding of constitutional protection than our right to expect that we will be let alone in the privacy of our homes during the night. The idea of the police unnecessarily forcing their way into the home in the middle of the night—frequently, in narcotics cases, without knocking and announcing their purpose—rousing the residents out of their beds, and forcing them to stand by in indignity in their night clothes while the police rummage through their belongings does indeed smack of a " `police state' lacking in the respect for . . . the right of privacy dictated by the U. S. Constitution." S. Rep. No. 91-538, p. 12 (1969). The public outrage at the series of mistaken nighttime raids by narcotics agents in Collinsville, Illinois, last *463 April, see N. Y. Times, Apr. 29, 1973, p. 1, col. 5; N. Y. Times, Apr. 30, 1973, p. 30, col. 1, serves to emphasize just how inconsistent with our constitutional guarantees such nighttime searches are. This Court has consistently recognized that the intrusion upon privacy engendered by a search of a residence at night is of an order of magnitude greater than that produced by an ordinary search. Mr. Justice Harlan observed in holding a nighttime search unconstitutional in Jones v. United States, 357 U.S. 493, 498 (1958): "[I]t is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home." In Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971), the Court again recognized that a midnight entry into a home was an "extremely serious intrusion." And our decision in Griswold v. Connecticut, 381 U.S. 479 (1965), was in large part based upon our revulsion at the thought of nighttime searches of the marital bedroom to discover evidence of illegal contraceptive use. See id., at 485-486. It is small wonder, then, that Congress has consistently required more stringent justification for nighttime searches than that needed to authorize a search during the day. The first congressional enactment setting out comprehensive search warrant procedures, § 10 of Tit. XI of the Espionage Act of 1917, 40 Stat. 217, 229, 18 U.S. C. § 620 (1940 ed.), required that the affiant must be "positive" that the property to be seized was on the premises to justify a nighttime search. When the provisions of the Espionage Act were replaced by the Federal Rules of Criminal Procedure in 1946, this requirement of positivity was carried forward in Rule 41. Despite the stringency of this requirement, it remained with us until very recently, until the 1972 amendments to Rule 41. And although the Rule was then modified to require *464 "reasonable cause" for nighttime execution of a warrant, significantly the amended Rule retained the principle that nighttime searches require an additional showing of justification over and above probable cause. Congress has also manifested its concern for protection of individual privacy against nighttime searches in its legislation for the District of Columbia, as MR. JUSTICE DOUGLAS' opinion amply demonstrates with respect to enactment of the D. C. Court Reform and Criminal Procedure Act in 1970. Ante, at 460.[1] The strong policy underlying these congressional enactments is clear. As even the Government in this case concedes, "searches conducted in the middle of the night . . . involve a greater intrusion than ordinary searches and therefore require a greater justification." Brief for United States 14. In my view, this principle may well be a constitutional imperative. It is by now established Fourth Amendment doctrine that increasingly severe standards of probable cause are necessary to justify increasingly intrusive searches. In Camara v. Municipal Court, 387 U.S. 523 (1967), after holding that search warrants were required to authorize administrative inspections, we held that the quantum of probable cause required for issuance of an inspection warrant must be determined in part by the reasonableness of the proposed search. As MR. JUSTICE WHITE stated, "there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails." Id., at 536-537. The Court in Camara thus approved the issuance *465 of area inspection warrants in part because such searches "involve a relatively limited invasion of the urban citizen's privacy." Id., at 537. See also Terry v. Ohio, 392 U.S. 1, 20-21 (1968); Couch v. United States, 409 U.S. 322, 349 n. 6 (1973) (MARSHALL, J., dissenting). I do not regard this principle as a one-way street, to be used only to water down the requirement of probable cause when necessary to authorize governmental intrusions. In some situations—and the search of a private home during nighttime would seem to be a paradigm— this principle requires a showing of additional justification for a search over and above, the ordinary showing of probable cause. Cf. Stanford v. Texas, 379 U.S. 476, 485-486 (1965). Of course, this constitutional question is not presented in this case and need not be resolved here. But the long history of congressional authorization of nighttime searches only upon a showing of additional justification, the strong constitutionally based policy which these statutes implement, and the substantial constitutional question posed by the majority's interpretation of § 879 (a) are surely relevant to the question of statutory interpretation with which we are faced. Viewed against this background, I think it is plain that the majority's interpretation of the statute should be rejected. Section 879 (a) provides that search warrants may be executed at night only if "there is probable cause to believe that grounds exist for the warrant and for its service at such time." It seems to me quite clear that the statute, on its face, imposes two distinct requirements: that there be probable cause for the issuance of the warrant, and that there be cause "for its service at such time." While the Court relies on legislative history which suggests that § 879 (a) merely "incorporates" the provisions of its predecessor, 18 U.S. C. § 1405 (1964 ed.), the plain *466 fact is that § 879 (a) does far more than this: it also adds to the language of § 1405 the final clause—"and for its service at such time"—which is at the heart of the dispute in this case. I can see no plausible interpretation of this final clause other than that it imposes an additional requirement of justification for a search at night over and above a showing of probable cause. The Court, while conceding this to be a "possible" meaning of the statute's final clause, argues that "it is by no means the only possible meaning attributable to the words." Ante, at 455. Unfortunately, the Court then fails to come forward with any alternative interpretation of these final words of § 879 (a). Instead, the Court simply reads the disputed language out of the statute entirely, and decrees that the statute shall be interpreted as if it were not there. The Court holds that the statute requires only "a showing that the contraband is likely to be on the property or person to be searched at that time" to justify nighttime execution of a search warrant. Ante, at 458. But the showing of probable cause required for issuance of any warrant necessarily includes a showing that the objects to be seized will probably be found on the premises at the time of the search. See Sgro v. United States, 287 U.S. 206, 210-211 (1932); Schoeneman v. United States, 115 U. S. App. D. C. 110, 113, 317 F.2d 173, 176-177 (1963); Rosencranz v. United States, 356 F.2d 310, 315-318 (CA1 1966). This requirement is clearly imposed by the Fourth Amendment itself. It is also clearly mandated by the first part of the statutory language, which merely incorporates the constitutional requirement of probable cause for issuance of the warrant. The majority's interpretation of the statute thus leaves the final clause of § 879 (a)—the language in controversy here—totally without meaning. See United States v. Thomas, 294 A.2d 164, 170 (DC Ct. App.) *467 (Kelly, J., dissenting), cert. denied, 409 U.S. 992 (1972); United States v. Gooding, 155 U. S. App. D. C. 259, 273, 477 F.2d 428, 442 (1973) (Robinson, J., concurring in result). I cannot subscribe to such an evisceration of the statute.[2] *468 The Court bases its holding upon the meager recorded legislative history of § 879 (a). But when the language of a statute is as clear and unambiguous as it is here, it is neither helpful nor appropriate to look to its legislative history. Ex parte Collett, 337 U.S. 55, 61 (1949); United States v. Oregon, 366 U.S. 643, 648 (1961). While committee reports in particular are often a helpful guide to the meaning of ambiguous statutory language, even they must be disregarded if inconsistent with the plain language of the statute. Helvering v. City Bank Farmers Trust Co., 296 U.S. 85, 89 (1935); George Van Camp & Sons Co. v. American Can Co., 278 U.S. 245, 253-254 (1929). It is the language of the statute, as enacted by the Congress, that is the law of the land, not the language of a committee report which may or may not represent accurately the views of the hundreds of other legislators who voted for the bill. In any event, even if resort to examination of the legislative history were appropriate here, I do not find it nearly so conclusive as does the majority of the Court. The Court relies on a single brief statement on § 879 (a) in the committee report stating that the statute merely incorporated the provisions of § 1405, which had been construed not to impose any requirement for a nighttime search warrant over and above probable cause. Yet this statement fails to provide any explanation for the language which Congress added to § 1405, the language *469 in controversy here. As to the meaning—or, as the Court would have it, the lack of meaning—of this language, the Court relies basically upon the law enforcement goals of the Department of Justice and the silence of Congress. But, as we have frequently warned, "[i]t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law." Girouard v. United States, 328 U.S. 61, 69 (1946); see H. M. Hart & A. Sacks, The Legal Process:Basic Problems in the Making and Application of Law 1395-1398 (tent. ed. 1958), and cases there cited. The Court in effect presumes from Congress' failure to explain the meaning of the final clause of § 879 (a) its acquiescence in the Justice Department's apparent view that this language in fact serves no purpose. I would presume the contrary. Congress' consistent protection of nighttime privacy by imposing restrictions upon the availability of warrants for nighttime searches reinforces the unambiguous statutory language. Both lead me to the conclusion that the final clause of § 879 (a) must be viewed as another congressional manifestation of its strong policy against nighttime intrusions into the home. I do not think that this interpretation is at all inconsistent with the narcotics law-enforcement objectives which were the principal focus of this legislation. The requirement that cause be shown for the necessity of a nighttime search is still a substantial easing of the requirement of positivity which was then embodied in Rule 41, and which would otherwise have applied to many of the searches now covered by § 879 (a). I respectfully dissent.

I agree with my Brother DOUGLAS that the provisions of the District of Columbia Code requiring a showing of need for execution of a search warrant at night govern the search involved in this case, and, accordingly, I join in his dissenting opinion. A majority of the Court, however, rejects this argument and goes on to discuss the standards imposed by 21 U.S. C. 879 (a) upon issuance of search warrants for nighttime execution in federal narcotics cases. Obviously, the Court's interpretation of 879 (a) is of far greater significance, of national rather than purely local concern. I cannot let the Court's construction of 879 (a) pass without registering my dissent on this issue as well. The opinion of the Court, it seems to me, analyzes the 879 (a) issue in a vacuum, without any discussion of some of the important policy considerations which underlie this question of statutory interpretation. Perhaps a partial vacuum would be a more appropriate description, since the Court is obviously fully cognizant of the substantial governmental interest in enforcement of the narcotics laws, an interest which its interpretation of 879 (a) so well serves. But plainly there are other concerns implicated in our interpretation of this congressional *462 enactment restricting the issuance of search warrants—the protection of individual privacy which is the very purpose of the statute's search warrant requirement and which of course is given constitutional recognition in the Fourth Amendment. The Court seems totally oblivious to these constitutional considerations. Taking them into account, I find that the only acceptable interpretation of the statute is one which requires some additional justification for authorizing a nighttime search over and above the ordinary showing of probable cause to believe that a crime has been committed and that evidence of the crime will be found upon the search. Fundamentally at issue in this case is the extent of the protection which we will all enjoy from police intrusion into the privacy of our homes during the middle of the night. The Fourth Amendment was intended to protect our reasonable expectations of privacy from unjustified governmental intrusion. In my view, there is no expectation of privacy more reasonable and more demanding of constitutional protection than our right to expect that we will be let alone in the privacy of our homes during the night. The idea of the police unnecessarily forcing their way into the home in the middle of the night—frequently, in narcotics cases, without knocking and announcing their purpose—rousing the residents out of their beds, and forcing them to stand by in indignity in their night clothes while the police rummage through their belongings does indeed smack of a " `police state' lacking in the respect for the right of privacy dictated by the U. S. Constitution." S. Rep. No. 91-538, p. 12 (19). The public outrage at the series of mistaken nighttime raids by narcotics agents in Collinsville, Illinois, last *463 April, see N. Y. Times, Apr. 29, p. 1, col. 5; N. Y. Times, Apr. 30, p. 30, col. 1, serves to emphasize just how inconsistent with our constitutional guarantees such nighttime searches are. This Court has consistently recognized that the intrusion upon privacy engendered by a search of a residence at night is of an order of magnitude greater than that produced by an ordinary search. Mr. Justice Harlan observed in holding a nighttime search unconstitutional in : "[I]t is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home." In the Court again recognized that a midnight entry into a home was an "extremely serious intrusion." And our decision in was in large part based upon our revulsion at the thought of nighttime searches of the marital bedroom to discover evidence of illegal contraceptive use. See It is small wonder, then, that Congress has consistently required more stringent justification for nighttime searches than that needed to authorize a search during the day. The first congressional enactment setting out comprehensive search warrant procedures, 10 of Tit. XI of the Espionage Act of 1917, 229, 18 U.S. C. 620 (1940 ed.), required that the affiant must be "positive" that the property to be seized was on the premises to justify a nighttime search. When the provisions of the Espionage Act were replaced by the Federal Rules of Criminal Procedure in 1946, this requirement of positivity was carried forward in Rule 41. Despite the stringency of this requirement, it remained with us until very recently, until the 1972 amendments to Rule 41. And although the Rule was then modified to require *464 "reasonable cause" for nighttime execution of a warrant, significantly the amended Rule retained the principle that nighttime searches require an additional showing of justification over and above probable cause. Congress has also manifested its concern for protection of individual privacy against nighttime searches in its legislation for the District of Columbia, as MR. JUSTICE DOUGLAS' opinion amply demonstrates with respect to enactment of the D. C. Court Reform and Criminal Procedure Act in 1970. Ante, at 460.[1] The strong policy underlying these congressional enactments is clear. As even the Government in this case concedes, "searches conducted in the middle of the night involve a greater intrusion than ordinary searches and therefore require a greater justification." Brief for United States 14. In my view, this principle may well be a constitutional imperative. It is by now established Fourth Amendment doctrine that increasingly severe standards of probable cause are necessary to justify increasingly intrusive searches. In after holding that search warrants were required to authorize administrative inspections, we held that the quantum of probable cause required for issuance of an inspection warrant must be determined in part by the reasonableness of the proposed search. As MR. JUSTICE WHITE stated, "there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails." The Court in Camara thus approved the issuance *465 of area inspection warrants in part because such searches "involve a relatively limited invasion of the urban citizen's privacy." See also ; I do not regard this principle as a one-way street, to be used only to water down the requirement of probable cause when necessary to authorize governmental intrusions. In some situations—and the search of a private home during nighttime would seem to be a paradigm— this principle requires a showing of additional justification for a search over and above, the ordinary showing of probable cause. Cf. Of course, this constitutional question is not presented in this case and need not be resolved here. But the long history of congressional authorization of nighttime searches only upon a showing of additional justification, the strong constitutionally based policy which these statutes implement, and the substantial constitutional question posed by the majority's interpretation of 879 (a) are surely relevant to the question of statutory interpretation with which we are faced. Viewed against this background, I think it is plain that the majority's interpretation of the statute should be rejected. Section 879 (a) provides that search warrants may be executed at night only if "there is probable cause to believe that grounds exist for the warrant and for its service at such time." It seems to me quite clear that the statute, on its face, imposes two distinct requirements: that there be probable cause for the issuance of the warrant, and that there be cause "for its service at such time." While the Court relies on legislative history which suggests that 879 (a) merely "incorporates" the provisions of its predecessor, 18 U.S. C. 1405 (1964 ed.), the plain *466 fact is that 879 (a) does far more than this: it also adds to the language of 1405 the final clause—"and for its service at such time"—which is at the heart of the dispute in this case. I can see no plausible interpretation of this final clause other than that it imposes an additional requirement of justification for a search at night over and above a showing of probable cause. The Court, while conceding this to be a "possible" meaning of the statute's final clause, argues that "it is by no means the only possible meaning attributable to the words." Ante, at 455. Unfortunately, the Court then fails to come forward with any alternative interpretation of these final words of 879 (a). Instead, the Court simply reads the disputed language out of the statute entirely, and decrees that the statute shall be interpreted as if it were not there. The Court holds that the statute requires only "a showing that the contraband is likely to be on the property or person to be searched at that time" to justify nighttime execution of a search warrant. Ante, at 458. But the showing of probable cause required for issuance of any warrant necessarily includes a showing that the objects to be seized will probably be found on the premises at the time of the search. See ; ; This requirement is clearly imposed by the Fourth Amendment itself. It is also clearly mandated by the first part of the statutory language, which merely incorporates the constitutional requirement of probable cause for issuance of the warrant. The majority's interpretation of the statute thus leaves the final clause of 879 (a)—the language in controversy here—totally without meaning. See United (DC Ct. App.) *467 (Kelly, J., dissenting), cert. denied, ; United F.2d 428, I cannot subscribe to such an evisceration of the statute.[2] *468 The Court bases its holding upon the meager recorded legislative history of 879 (a). But when the language of a statute is as clear and unambiguous as it is here, it is neither helpful nor appropriate to look to its legislative history. Ex parte Collett, ; United (19). While committee reports in particular are often a helpful guide to the meaning of ambiguous statutory language, even they must be disregarded if inconsistent with the plain language of the statute. ; George Van Camp & Sons It is the language of the statute, as enacted by the Congress, that is the law of the land, not the language of a committee report which may or may not represent accurately the views of the hundreds of other legislators who voted for the bill. In any event, even if resort to examination of the legislative history were appropriate here, I do not find it nearly so conclusive as does the majority of the Court. The Court relies on a single brief statement on 879 (a) in the committee report stating that the statute merely incorporated the provisions of 1405, which had been construed not to impose any requirement for a nighttime search warrant over and above probable cause. Yet this statement fails to provide any explanation for the language which Congress added to 1405, the language *4 in controversy here. As to the meaning—or, as the Court would have it, the lack of meaning—of this language, the Court relies basically upon the law enforcement goals of the Department of Justice and the silence of Congress. But, as we have frequently warned, "[i]t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law." 328 U.S. ; see H. M. Hart & A. Sacks, The Legal Process:Basic Problems in the Making and Application of Law 1395-1398 and cases there cited. The Court in effect presumes from Congress' failure to explain the meaning of the final clause of 879 (a) its acquiescence in the Justice Department's apparent view that this language in fact serves no purpose. I would presume the contrary. Congress' consistent protection of nighttime privacy by imposing restrictions upon the availability of warrants for nighttime searches reinforces the unambiguous statutory language. Both lead me to the conclusion that the final clause of 879 (a) must be viewed as another congressional manifestation of its strong policy against nighttime intrusions into the home. I do not think that this interpretation is at all inconsistent with the narcotics law-enforcement objectives which were the principal focus of this legislation. The requirement that cause be shown for the necessity of a nighttime search is still a substantial easing of the requirement of positivity which was then embodied in Rule 41, and which would otherwise have applied to many of the searches now covered by 879 (a). I respectfully dissent.

Justice Brennan

concurring

Massachusetts Mut. Life Ins. Co. v. Russell

https://www.courtlistener.com/opinion/111499/massachusetts-mut-life-ins-co-v-russell/

https://www.courtlistener.com/api/rest/v3/clusters/111499/

1984-150

Section 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S. C. § 1132(a), provides a wide array of measures to employee-benefit plan participants and beneficiaries by which they may enforce their rights under ERISA and under the terms of their plans. A participant *149 or beneficiary may file a civil action, for example, (1) "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan," § 502(a)(1)(B); (2) "for appropriate relief under section 409," § 502(a)(2); and (3) "to enjoin any act or practice which violates any provision of this title or the terms of the plan, or. . . to obtain other appropriate equitable relief . . . to redress such violations," § 502(a)(3) (emphasis added).[1] This case presents a single, narrow question: whether the § 409 "appropriate relief" referred to in § 502(a)(2) includes individual recovery by a participant or beneficiary of extracontractual damages for breach of fiduciary duty. The Court of Appeals for the Ninth Circuit held that, because § 409 broadly authorizes "such other equitable or remedial relief as the court may deem appropriate,"[2] participants and beneficiaries *150 may recover such damages under that section. 722 F.2d 482, 488-489 (1983). I agree with the Court's decision today that § 409 is more fairly read in context as providing "remedies that would protect the entire plan" rather than individuals, ante, at 142, and that participants and beneficiaries accordingly must look elsewhere in ERISA for personal relief. Indeed, since § 502(a)(3) already provides participants and beneficiaries with "other appropriate equitable relief . . . to redress [ERISA] violations," there is no reason to construe § 409 expansively in order to bring these individuals under the penumbra of "equitable or remedial relief." This does not resolve, of course, whether and to what extent extracontractual damages are available under § 502(a)(3). This question was not addressed by the courts below and was not briefed by the parties and amici. Thus the Court properly emphasizes that "we have no occasion to consider whether any other provision of ERISA authorizes recovery of extracontractual damages." Ante, at 139, n. 5. Accordingly, we save for another day the questions (1) to what extent a fiduciary's mishandling of a claim might constitute an actionable breach of the fiduciary duties set forth in § 404(a), and (2) the nature and extent of the "appropriate equitable relief . . . to redress" such violations under § 502(a)(3). There is dicta in the Court's opinion, however, that could be construed as sweeping more broadly than the narrow ground of resolution set forth above. Although the Court *151 takes care to limit the binding effect of its decision to the terms of § 409,[3] its opinion at some points seems to speak generally of whether fiduciaries ever may be held personally liable to beneficiaries for extracontractual damages.[4] Moreover, some of the Court's remarks are simply incompatible with the structure, legislative history, and purposes of ERISA. The Court's ambiguous discussion is certainly subject to different readings, and in any event is without controlling significance beyond the question of relief under § 409. I write separately to outline what I believe is the proper approach for courts to take in construing ERISA's provisions and to emphasize the issues left open under today's decision. Fiduciary Duties in Claims Administration There is language in the Court's opinion that might be read as suggesting that the fiduciary duties imposed by ERISA on plan administrators for the most part run only to the plan itself, as opposed to individual beneficiaries. See ante, at 142-144. The Court apparently thinks there might be some significance in the fact that an administrator's fiduciary duties "are described in Part 4 of Title 1 of the Act . . . whereas the statutory provisions relating to claim procedures are found in Part 5." Ante, at 143. Accordingly, the Court seems to believe that the duties and remedies associated with claims processing might be restricted to those explicitly spelled out in §§ 502(a)(1)(B) and 503. Ante, at 142-144. To the extent the Court suggests that administrators might not be fully subject to strict fiduciary duties to participants and beneficiaries in the processing of their claims and *152 to traditional trust-law remedies for breaches of those duties, I could not more strongly disagree. As the Court acknowledges in a footnote, ante, at 142, n. 9, § 404(a) sets forth the governing standard that "a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and — (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries."[5] That section also provides that, in carrying out these duties, a fiduciary shall exercise "the care, skill, prudence, and diligence" of a "prudent man acting in like capacity." The legislative history demonstrates that Congress intended by § 404(a) to incorporate the fiduciary standards of trust law into ERISA,[6] and it is black-letter trust law that fiduciaries *153 owe strict duties running directly to beneficiaries in the administration and payment of trust benefits.[7] The legislative history also shows that Congress intended these fiduciary standards to govern the ERISA claims-administration process.[8] Moreover, the Court's suggestion concerning the distinction between Parts 4 and 5 of Title I is thoroughly unconvincing. Section 502(a)(3) authorizes the award of "appropriate equitable relief" directly to a participant or beneficiary to "redress" "any act or practice which violates any provision of this title or the terms of the plan."[9] This section and *154 § 404(a)'s fiduciary-duty standards both appear in Title I, which is entitled "PROTECTION OF EMPLOYEE BENEFIT RIGHTS." A beneficiary therefore may obtain "appropriate equitable relief" whenever an administrator breaches the fiduciary duties set forth in § 404(a).[10] Accordingly, an administrator's claims-processing duties and a beneficiary's corresponding remedies are not at all necessarily limited to the terms of §§ 502(a)(1)(B) and 503. In light of the Court's narrow holding, see ante, at 139, n. 5, further consideration of these important issues remains open for another day when the disposition of a controversy might really turn on them. Judicial Construction of ERISA Russell argues that a private right of action for beneficiaries and participants should be read into § 409. Because the Court has concluded that Congress' intent and ERISA's overall structure restrict the scope of § 409 to recovery on behalf of a plan, ante, at 139-142, such a private right is squarely barred under the standards set forth in Cort v. Ash, 422 U.S. 66, 78 (1975).[11] *155 In disposing of this relatively straightforward issue, the Court makes some observations about the role of courts generally in construing and enforcing ERISA. The Court suggests, for example, that Congress "crafted" ERISA with "carefully integrated" remedies so as to create an "interlocking, interrelated, and interdependent remedial scheme" that courts should not "tamper with." Ante, at 146, 147. The Court's discussion, I say respectfully, is both unnecessary and to some extent completely erroneous. The Court may or may not be correct as a general matter with respect to implying private rights of action under ERISA; as the respondent has sought such an implied right only under § 409,[12] we of course cannot purport to resolve this question in the many other contexts in which it might arise under the statute. Moreover, the Court's remarks about the constrictive judicial role in enforcing ERISA's remedial scheme are inaccurate insofar as Congress provided in § 502(a)(3) that beneficiaries could recover, in addition to the remedies explicitly set forth in that section, "other appropriate equitable relief . . . to redress" ERISA violations. Congress already had instructed that beneficiaries could recover benefits, obtain broad injunctive and declaratory relief for their own personal benefit or for the benefit of their plans, and secure attorney's fees, so this additional provision can only be read precisely as authorizing federal courts to "fine-tune" ERISA's remedial scheme. Thus while it may well be that courts generally may not find implied private remedies in ERISA, the Court's remarks have little bearing on how courts are to go about construing the private remedy that Congress explicitly provided in § 502(a)(3). *156 The legislative history demonstrates that Congress intended federal courts to develop federal common law in fashioning the additional "appropriate equitable relief." In presenting the Conference Report to the full Senate, for example, Senator Javits, ranking minority member of the Senate Committee on Labor and Public Welfare and one of the two principal Senate sponsors of ERISA, stated that "[i]t is also intended that a body of Federal substantive law will be developed by the courts to deal with issues involving rights and obligations under private welfare and pension plans."[13] Senator Williams, the Committee's Chairman and the Act's other principal Senate sponsor, similarly emphasized that suits involving beneficiaries' rights "will be regarded as arising under the laws of the United States, in similar fashion to those brought under section 301 of the Labor Management Relations Act."[14] Section 301, of course, "authorizes federal courts to fashion a body of federal law" in the context of collective-bargaining agreements, to be derived by "looking at the policy of the legislation and fashioning a remedy that will effectuate that policy." Textile Workers v. Lincoln Mills, 353 U.S. 448, 451, 457 (1957).[15] ERISA's legislative history also demonstrates beyond question that Congress intended to engraft trust-law principles onto the enforcement *157 scheme, see n. 6, supra, and a fundamental concept of trust law is that courts "will give to the beneficiaries of a trust such remedies as are necessary for the protection of their interests."[16] Thus ERISA was not so "carefully integrated" and "crafted" as to preclude further judicial delineation of appropriate rights and remedies; far from barring such a process, the statute explicitly directs that courts shall undertake it. The Court today expressly reserves the question whether extracontractual damages might be one form of "other appropriate relief" under § 502(a)(3). Ante, at 139, n. 5. I believe that, in resolving this and other questions concerning appropriate relief under ERISA, courts should begin by ascertaining the extent to which trust and pension law as developed by state and federal courts provide for recovery by the beneficiary above and beyond the benefits that have been withheld;[17] this is the logical first step, given that Congress intended to incorporate trust law into ERISA's equitable remedies.[18] If a requested form of additional relief is *158 available under state trust law, courts should next consider whether allowance of such relief would significantly conflict with some other aspect of the ERISA scheme. In addition, courts must always bear in mind the ultimate consideration whether allowance or disallowance of particular relief would best effectuate the underlying purposes of ERISA — enforcement of strict fiduciary standards of care in the administration of all aspects of pension plans and promotion of the best interests of participants and beneficiaries. See supra, at 152-153. I concur in the judgment of the Court.

Section 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S. C. 1132(a), provides a wide array of measures to employee-benefit plan participants and beneficiaries by which they may enforce their rights under ERISA and under the terms of their plans. A participant *149 or beneficiary may file a civil action, for example, (1) "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan," 502(a)(1)(B); (2) "for appropriate relief under section 409," 502(a)(2); and (3) "to enjoin any act or practice which violates any provision of this title or the terms of the plan, or. to obtain other appropriate equitable relief to redress such violations," 502(a)(3) (emphasis added).[1] This case presents a single, narrow question: whether the 409 "appropriate relief" referred to in 502(a)(2) includes individual recovery by a participant or beneficiary of extracontractual damages for breach of fiduciary duty. The Court of Appeals for the Ninth Circuit held that, because 409 broadly authorizes "such other equitable or remedial relief as the court may deem appropriate,"[2] participants and beneficiaries *150 may recover such damages under that section. I agree with the Court's decision today that 409 is more fairly read in context as providing "remedies that would protect the entire plan" rather than individuals, ante, at 142, and that participants and beneficiaries accordingly must look elsewhere in ERISA for personal relief. Indeed, since 502(a)(3) already provides participants and beneficiaries with "other appropriate equitable relief to redress [ERISA] violations," there is no reason to construe 409 expansively in order to bring these individuals under the penumbra of "equitable or remedial relief." This does not resolve, of course, whether and to what extent extracontractual damages are available under 502(a)(3). This question was not addressed by the courts below and was not briefed by the parties and amici. Thus the Court properly emphasizes that "we have no occasion to consider whether any other provision of ERISA authorizes recovery of extracontractual damages." Ante, at 139, n. 5. Accordingly, we save for another day the questions (1) to what extent a fiduciary's mishandling of a claim might constitute an actionable breach of the fiduciary duties set forth in 404(a), and (2) the nature and extent of the "appropriate equitable relief to redress" such violations under 502(a)(3). There is dicta in the Court's opinion, however, that could be construed as sweeping more broadly than the narrow ground of resolution set forth above. Although the Court *151 takes care to limit the binding effect of its decision to the terms of 409,[3] its opinion at some points seems to speak generally of whether fiduciaries ever may be held personally liable to beneficiaries for extracontractual damages.[4] Moreover, some of the Court's remarks are simply incompatible with the structure, legislative history, and purposes of ERISA. The Court's ambiguous discussion is certainly subject to different readings, and in any event is without controlling significance beyond the question of relief under 409. I write separately to outline what I believe is the proper approach for courts to take in construing ERISA's provisions and to emphasize the issues left open under today's decision. Fiduciary Duties in Claims Administration There is language in the Court's opinion that might be read as suggesting that the fiduciary duties imposed by ERISA on plan administrators for the most part run only to the plan itself, as opposed to individual beneficiaries. See ante, at 142-144. The Court apparently thinks there might be some significance in the fact that an administrator's fiduciary duties "are described in Part 4 of Title 1 of the Act whereas the statutory provisions relating to claim procedures are found in Part 5." Ante, at 143. Accordingly, the Court seems to believe that the duties and remedies associated with claims processing might be restricted to those explicitly spelled out in 502(a)(1)(B) and 503. Ante, at 142-144. To the extent the Court suggests that administrators might not be fully subject to strict fiduciary duties to participants and beneficiaries in the processing of their claims and *152 to traditional trust-law remedies for breaches of those duties, I could not more strongly disagree. As the Court acknowledges in a footnote, ante, at 142, n. 9, 404(a) sets forth the governing standard that "a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and — (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries."[5] That section also provides that, in carrying out these duties, a fiduciary shall exercise "the care, skill, prudence, and diligence" of a "prudent man acting in like capacity." The legislative history demonstrates that Congress intended by 404(a) to incorporate the fiduciary standards of trust law into ERISA,[] and it is black-letter trust law that fiduciaries *153 owe strict duties running directly to beneficiaries in the administration and payment of trust benefits.[7] The legislative history also shows that Congress intended these fiduciary standards to govern the ERISA claims-administration process.[8] Moreover, the Court's suggestion concerning the distinction between Parts 4 and 5 of Title I is thoroughly unconvincing. Section 502(a)(3) authorizes the award of "appropriate equitable relief" directly to a participant or beneficiary to "redress" "any act or practice which violates any provision of this title or the terms of the plan."[9] This section and *154 404(a)'s fiduciary-duty standards both appear in Title I, which is entitled "PROTECTION OF EMPLOYEE BENEFIT RIGHTS." A beneficiary therefore may obtain "appropriate equitable relief" whenever an administrator breaches the fiduciary duties set forth in 404(a).[10] Accordingly, an administrator's claims-processing duties and a beneficiary's corresponding remedies are not at all necessarily limited to the terms of 502(a)(1)(B) and 503. In light of the Court's narrow holding, see ante, at 139, n. 5, further consideration of these important issues remains open for another day when the disposition of a controversy might really turn on them. Judicial Construction of ERISA Russell argues that a private right of action for beneficiaries and participants should be read into 409. Because the Court has concluded that Congress' intent and ERISA's overall structure restrict the scope of 409 to recovery on behalf of a plan, ante, at 139-142, such a private right is squarely barred under the standards set forth in[11] *155 In disposing of this relatively straightforward issue, the Court makes some observations about the role of courts generally in construing and enforcing ERISA. The Court suggests, for example, that Congress "crafted" ERISA with "carefully integrated" remedies so as to create an "interlocking, interrelated, and interdependent remedial scheme" that courts should not "tamper with." Ante, at 14, 147. The Court's discussion, I say respectfully, is both unnecessary and to some extent completely erroneous. The Court may or may not be correct as a general matter with respect to implying private rights of action under ERISA; as the respondent has sought such an implied right only under 409,[12] we of course cannot purport to resolve this question in the many other contexts in which it might arise under the statute. Moreover, the Court's remarks about the constrictive judicial role in enforcing ERISA's remedial scheme are inaccurate insofar as Congress provided in 502(a)(3) that beneficiaries could recover, in addition to the remedies explicitly set forth in that section, "other appropriate equitable relief to redress" ERISA violations. Congress already had instructed that beneficiaries could recover benefits, obtain broad injunctive and declaratory relief for their own personal benefit or for the benefit of their plans, and secure attorney's fees, so this additional provision can only be read precisely as authorizing federal courts to "fine-tune" ERISA's remedial scheme. Thus while it may well be that courts generally may not find implied private remedies in ERISA, the Court's remarks have little bearing on how courts are to go about construing the private remedy that Congress explicitly provided in 502(a)(3). *15 The legislative history demonstrates that Congress intended federal courts to develop federal common law in fashioning the additional "appropriate equitable relief." In presenting the Conference Report to the full Senate, for example, Senator Javits, ranking minority member of the Senate Committee on Labor and Public Welfare and one of the two principal Senate sponsors of ERISA, stated that "[i]t is also intended that a body of Federal substantive law will be developed by the courts to deal with issues involving rights and obligations under private welfare and pension plans."[13] Senator Williams, the Committee's Chairman and the Act's other principal Senate sponsor, similarly emphasized that suits involving beneficiaries' rights "will be regarded as arising under the laws of the United States, in similar fashion to those brought under section 301 of the Labor Management Relations Act."[14] Section 301, of course, "authorizes federal courts to fashion a body of federal law" in the context of collective-bargaining agreements, to be derived by "looking at the policy of the legislation and fashioning a remedy that will effectuate that policy." Textile[15] ERISA's legislative history also demonstrates beyond question that Congress intended to engraft trust-law principles onto the enforcement *157 scheme, see n. and a fundamental concept of trust law is that courts "will give to the beneficiaries of a trust such remedies as are necessary for the protection of their interests."[1] Thus ERISA was not so "carefully integrated" and "crafted" as to preclude further judicial delineation of appropriate rights and remedies; far from barring such a process, the statute explicitly directs that courts shall undertake it. The Court today expressly reserves the question whether extracontractual damages might be one form of "other appropriate relief" under 502(a)(3). Ante, at 139, n. 5. I believe that, in resolving this and other questions concerning appropriate relief under ERISA, courts should begin by ascertaining the extent to which trust and pension law as developed by state and federal courts provide for recovery by the beneficiary above and beyond the benefits that have been withheld;[17] this is the logical first step, given that Congress intended to incorporate trust law into ERISA's equitable remedies.[18] If a requested form of additional relief is *158 available under state trust law, courts should next consider whether allowance of such relief would significantly conflict with some other aspect of the ERISA scheme. In addition, courts must always bear in mind the ultimate consideration whether allowance or disallowance of particular relief would best effectuate the underlying purposes of ERISA — enforcement of strict fiduciary standards of care in the administration of all aspects of pension plans and promotion of the best interests of participants and beneficiaries. See I concur in the judgment of the Court.

Justice Douglas

dissenting

Dyson v. Stein

https://www.courtlistener.com/opinion/108270/dyson-v-stein/

https://www.courtlistener.com/api/rest/v3/clusters/108270/

1970-042

I The two raids in this case were search-and-destroy missions in the Vietnamese sense of the phrase. In each case the police came at night. The first search warrant authorized a search and seizure of "obscene articles and materials, to-wit: pictures, photographs, drawings and obscene literature" concealed at a given *205 address. The seizures included: two tons of a newspaper (Dallas Notes), one photograph enlarger, two portable typewriters, two electric typewriters, one camera, "numerous obscene photographs," and $5.43 in money.[1] The second warrant was issued 16 days later, in response to a claim that marihuana was concealed on the premises. It authorized the officers "to search for and seize the said narcotic drug and dangerous drug in accordance with the law in such cases provided." Not finding any marihuana on the premises, the sergeant asked instructions from his lieutenant. He was told to seize pornographic literature and any equipment used to make it. He "didn't know what to seize and what not to seize so [he] just took everything." "Everything" included a Polaroid camera, a Kodak Brownie, a Flocon camera, a Kodak lamp, a floating fixture lamp, a three-drawer desk containing printers' supplies, a drafting square, a drafting table, two drawing boards, a mailing tube, two telephones, a stapler, five cardboard boxes containing documents, one electric typewriter, and one typewriter desk. A poster of Mao Tse-tung, credit cards, costume jewelry, cans of spices, a brown sweater, and *206 a statue of a man and woman in an embrace were also seized. Thus the newspaper Dallas Notes, a bi-monthly, was effectively put out of business.[2] It would be difficult to find in our books a more lawless search-and-destroy raid, unless it be the one in Kremen v. United States, 353 U.S. 346. If this search-and-destroy technique can be employed against this Dallas newspaper, then it can be done to the New York Times, the Washington Post, the Seattle Post Intelligencer, the Yakima Herald-Republic, the Sacramento Bee, and all the rest of our newspapers. For, as I shall point out, the Texas statute governing "obscenity"[3] is plainly unconstitutional. *207 Government certainly has no power to close down newspapers. Even censorship—whether for obscenity, for irresponsible reporting or editorials, or otherwise— is taboo. As Chief Justice Hughes said in Near v. Minnesota, 283 U.S. 697, decided in 1931: "[T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege." Id., at 719-720. I agree with that view. It is said, however, that these issues are not before us as the case has been remanded to a single judge to pass on them. But we deal with plain error, as the state statute is unconstitutional on its face and we should put an end to lawless raids under it.[4] *208 II The constitutional mandate that government[5] "shall make no law . . . abridging the freedom of speech, or of the press" precludes in my view any form of censorship. Vicious, irresponsible, and depraved as the press often is, the constitutional remedy is not censorship.[6] The antidote is education, pinning our faith to the Jeffersonian creed that by education we may in time become a mature people.[7] *209 I have set forth my views over and over again as to why the First Amendment should be strictly construed; and they need not be repeated here. It is difficult— indeed impossible—to read the constitutional mandate that government "shall make no law" abridging freedom of the press to mean that government "may make some laws" abridging that freedom. Certainly a strict constructionist cannot so read it. "The Court says it has been trying to balance the interests of society in protecting itself from the supposed evils of obscene material with the real interest in freedom of expression. There is ample evidence that the clear and definite language of the first amendment was intended to preclude the very problem of balancing assumed by the Court. The first amendment holds that the interest of society in freedom of expression[8] is more important than the harm that might flow from obscene material. The very interest in protection from injury from obscene material would be better served by allowing each individual to make a free appraisal of pornographic material. A hallmark of an immature and insecure society is the censorship of ideas. Censorship, which insulates all from what some suppose to be evil, merely magnifies that insecurity. If society does such a poor job of educating itself so that four letter words and explicit pictures are dangerous, the remedy is to improve the educational process, not *210 to outlaw certain publications. While the first amendment does not mandate better education it does prohibit the censorship of ideas. This use of a balancing test evidences a misconception of the constitutional nature of society. There is nothing to balance. Society's security flows directly and solely from the freedom and security of each individual." 31 Albany L. Rev. 143, 151 (1967). If I am correct in concluding that a State can make "no law" censoring the press because of obscenity, then a publisher threatened by such a law can go into a federal court to enjoin state officials from enforcing the law, as I made clear in my dissent in Younger v. Harris, ante, at 59. The special circumstances where such federal intervention is permissible are not restricted to bad faith on the part of state officials or the threat of multiple prosecutions. As Mr. Justice Butler, writing for the Court, said in Terrace v. Thompson, 263 U.S. 197, 214: "Equity jurisdiction will be exercised to enjoin the threatened enforcement of a state law which contravenes the Federal Constitution wherever it is essential in order effectually to protect property rights and the rights of persons against injuries otherwise irremediable; and in such a case a person, who as an officer of the State is clothed with the duty of enforcing its laws and who threatens and is about to commence proceedings, either civil or criminal, to enforce such a law against parties affected, may be enjoined from such action by a federal court of equity." And see Watson v. Buck, 313 U.S. 387, 402. No possible construction of this state law can save it. This is not a situation where mere overbreadth of a state statute may have chilling or crippling effects on First Amendment rights. This is a case where Texas has *211 entered a field which the Constitution bars all the States and the Federal Government from entering. The Texas obscenity statute, as I view it, meets precisely the hypothetical statute we discussed in Watson v. Buck, 313 U.S. 387, 402: "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 whomever an effort might be made to apply it." No clearer case justifying federal intervention to prevent a state criminal trial can be imagined. No pending prosecutions are sought to be enjoined, only future ones.[9] Such an injunction is not impermissible under 28 U.S. C. § 2283. See Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, and my dissent in Younger v. Harris, ante, at 65. Appellee also asked for declaratory relief. If Zwickler v. Koota, 389 U.S. 241, means anything, it means that such relief can also be granted. III If a publication deemed "obscene" is not under the umbrella of the First Amendment, then I do not see how it enjoys many constitutional safeguards. That which is out from under the First Amendment would normally be subject to the police power of the States. Yet the Constitution contains no standards or suggestions of standards respecting the vast array of subjects that various vocal groups would like to have suppressed— obscenity, sacrilege, un-Americanism, anti-clerical ideas, atheistic or anti-ecclesiastical ideas, Communism, racism, *212 and so on. Under the Constitution as written there are no standards of "good" or "bad" for the press. Since there is no constitutional definition of obscenity, the definition must be largely, if not exclusively, for legislative determination. Absent a controlling constitutional standard, I would think that a legislature could treat literature as it treats sewage effluent or infectious disease. That is not a happy prospect, for some would put even the Song of Solomon under the ban. It is, I fear, where we end once we lose our First Amendment moorings. Administrative censorship, however, is one thing. Criminal punishment is quite another. Publishing "obscene" literature cannot, as I view it, be made a crime under our constitutional standards. "Whatever `obscenity' is, it is immeasurable as a crime and delineable only as a sin. As a sin, it is present only in the minds of some and not in the minds of others. It is entirely too subjective for legal sanction. There are as many different definitions of obscenity as there are men; and they are as unique to the individual as are his dreams." Note, The Substantive Law of Obscenity: An Adventure in Quicksand, 13 N.Y. L. F. 81, 131 (1967). What appeals to "prurient interests" describes sin to some but not to others and seems to me to be far too vague to pass muster as a criminal, as distinguished from an administrative, statute.[10] *213 I see no help on the vagueness problem even if the test "utterly without redeeming social importance" were added to the criminal standard, as it was in Jacobellis v. Ohio, 378 U.S. 184, 191.[11] That is a measurement which again is wholly subjective. It cannot be related to anything but the judge's or jurors' sophistication or stage of cultural development. Nor do I think the problem is helped by introducing the concept of "contemporary community standards" whether that refers to the public at large or a local county or town standard. Id., at 193. The two tests—this Court's and that of Texas—seem to me to be substantially identical. I do not see how either can be held to be constitutional. The standard of guilt is wholly subjective. The jurors can convict or acquit according to their own personal tastes, their cultural standard, their literacy, and their tolerance for opposed ideas. And the same would be true of judges. It means that a book that is hailed as wholesome in one county may be the cause of punishment in another county of the same State. The evidence in obscenity prosecutions is usually expert testimony. Analysts, English literature scholars, and others often have helpful and informed views, one way or the other. It seems impossible, if we continue to sanction the use of these vague standards in criminal prosecutions, that verdicts will be rendered which are based on the record and not on the emotional factors reflecting the prejudices of the judge or jurors. Uncertainty, rather than certainty, is the standard. The book, play, poem, or movie is approved or condemned on the basis of the personal beliefs of the judge or jurors, not on the ban of a statute containing clear and objective standards. *214 The concept of "utterly without redeeming social importance" will divide even the experts. It is risky and perilous business to send men to prison on such provocative issues, which confuse people and create irreconcilable differences even among the judges who sentence them or approve their convictions. In these criminal cases dealing with obscenity, we leave people confused and in the dark as to whether they are or are not criminals. Criminal laws must give fair warning; and a person receives no real warning when he crosses the line between the lawful and the unlawful, under the Texas statute[12] or under the standard approved by the Court. Where constitutional rights may be infringed, Winters v. New York, 333 U.S. 507, should be our guide. There an "obscene" magazine was defined to include those which "massed" stories of bloodshed and lust to incite crimes. Id., at 513. We held that standard to be too vague to satisfy constitutional standards.[13] "The standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement. The crime `must be defined with appropriate definiteness.'. . . There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. *215 The vagueness may be from uncertainty in regard to persons within the scope of the act, . . . or in regard to the applicable tests to ascertain guilt." Id., at 515-516. And see Wright v. Georgia, 373 U.S. 284, 292; Smith v. California, 361 U.S. 147, 151; United States v. Harriss, 347 U.S. 612; Beauharnais v. Illinois, 343 U.S. 250, 264; Williams v. United States, 341 U.S. 97; Cantwell v. Connecticut, 310 U.S. 296. My view, however, is that any regime of censorship over literature whether expressed in a criminal statute[14] or an administrative[15] procedure is unconstitutional by reason of the command of the First Amendment.

I The two raids in this case were search-and-destroy missions in the Vietnamese sense of the phrase. In each case the police came at night. The first search warrant authorized a search and seizure of "obscene articles and materials, to-wit: pictures, photographs, drawings and obscene literature" concealed at a given *205 address. The seizures included: two tons of a newspaper (Dallas Notes), one photograph enlarger, two portable typewriters, two electric typewriters, one camera, "numerous obscene photographs," and $5.43 in money.[1] The second warrant was issued 16 days later, in response to a claim that marihuana was concealed on the premises. It authorized the officers "to search for and seize the said narcotic drug and dangerous drug in accordance with the law in such cases provided." Not finding any marihuana on the premises, the sergeant asked instructions from his lieutenant. He was told to seize pornographic literature and any equipment used to make it. He "didn't know what to seize and what not to seize so [he] just took everything." "Everything" included a Polaroid camera, a Kodak Brownie, a Flocon camera, a Kodak lamp, a floating fixture lamp, a three-drawer desk containing printers' supplies, a drafting square, a drafting table, two drawing boards, a mailing tube, two telephones, a stapler, five cardboard boxes containing documents, one electric typewriter, and one typewriter desk. A poster of Mao Tse-tung, credit cards, costume jewelry, cans of spices, a brown sweater, and *206 a statue of a man and woman in an embrace were also seized. Thus the newspaper Dallas Notes, a bi-monthly, was effectively put out of business.[2] It would be difficult to find in our books a more lawless search-and-destroy raid, unless it be the one in If this search-and-destroy technique can be employed against this Dallas newspaper, then it can be done to the New York Times, the Washington Post, the Seattle Post Intelligencer, the Yakima Herald-Republic, the Sacramento Bee, and all the rest of our newspapers. For, as I shall point out, the Texas statute governing "obscenity"[3] is plainly unconstitutional. *207 Government certainly has no power to close down newspapers. Even censorship—whether for obscenity, for irresponsible reporting or editorials, or otherwise— is taboo. As Chief Justice Hughes said in decided in 1931: "[T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege." I agree with that view. It is said, however, that these issues are not before us as the case has been remanded to a single judge to pass on them. But we deal with plain error, as the state statute is unconstitutional on its face and we should put an end to lawless raids under it.[4] *208 II The constitutional mandate that government[5] "shall make no law abridging the freedom of speech, or of the press" precludes in my view any form of censorship. Vicious, irresponsible, and depraved as the press often is, the constitutional remedy is not censorship.[6] The antidote is education, pinning our faith to the Jeffersonian creed that by education we may in time become a mature people.[7] *209 I have set forth my views over and over again as to why the First Amendment should be strictly construed; and they need not be repeated here. It is difficult— indeed impossible—to read the constitutional mandate that government "shall make no law" abridging freedom of the press to mean that government "may make some laws" abridging that freedom. Certainly a strict constructionist cannot so read it. "The Court says it has been trying to balance the interests of society in protecting itself from the supposed evils of obscene material with the real interest in freedom of expression. There is ample evidence that the clear and definite language of the first amendment was intended to preclude the very problem of balancing assumed by the Court. The first amendment holds that the interest of society in freedom of expression[8] is more important than the harm that might flow from obscene material. The very interest in protection from injury from obscene material would be better served by allowing each individual to make a free appraisal of pornographic material. A hallmark of an immature and insecure society is the censorship of ideas. Censorship, which insulates all from what some suppose to be evil, merely magnifies that insecurity. If society does such a poor job of educating itself so that four letter words and explicit pictures are dangerous, the remedy is to improve the educational process, not *210 to outlaw certain publications. While the first amendment does not mandate better education it does prohibit the censorship of ideas. This use of a balancing test evidences a misconception of the constitutional nature of society. There is nothing to balance. Society's security flows directly and solely from the freedom and security of each individual." 31 Albany L. Rev. 143, (1967). If I am correct in concluding that a State can make "no law" censoring the press because of obscenity, then a publisher threatened by such a law can go into a federal court to enjoin state officials from enforcing the law, as I made clear in my dissent in Younger v. Harris, ante, at 59. The special circumstances where such federal intervention is permissible are not restricted to bad faith on the part of state officials or the threat of multiple prosecutions. As Mr. Justice Butler, writing for the Court, said in U.S. 197, 214: "Equity jurisdiction will be exercised to enjoin the threatened enforcement of a state law which contravenes the Federal Constitution wherever it is essential in order effectually to protect property rights and the rights of persons against injuries otherwise irremediable; and in such a case a person, who as an officer of the State is clothed with the duty of enforcing its laws and who threatens and is about to commence proceedings, either civil or criminal, to enforce such a law against parties affected, may be enjoined from such action by a federal court of equity." And see No possible construction of this state law can save it. This is not a situation where mere overbreadth of a state statute may have chilling or crippling effects on First Amendment rights. This is a case where Texas has *211 entered a field which the Constitution bars all the States and the Federal Government from entering. The Texas obscenity statute, as I view it, meets precisely the hypothetical statute we discussed in : "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 whomever an effort might be made to apply it." No clearer case justifying federal intervention to prevent a state criminal trial can be imagined. No pending prosecutions are sought to be enjoined, only future ones.[9] Such an injunction is not impermissible under 28 U.S. C. 2283. See 484 n. 2, and my dissent in Younger v. Harris, ante, at 65. Appellee also asked for declaratory relief. If means anything, it means that such relief can also be granted. III If a publication deemed "obscene" is not under the umbrella of the First Amendment, then I do not see how it enjoys many constitutional safeguards. That which is out from under the First Amendment would normally be subject to the police power of the States. Yet the Constitution contains no standards or suggestions of standards respecting the vast array of subjects that various vocal groups would like to have suppressed— obscenity, sacrilege, un-Americanism, anti-clerical ideas, atheistic or anti-ecclesiastical ideas, Communism, racism, *212 and so on. Under the Constitution as written there are no standards of "good" or "bad" for the press. Since there is no constitutional definition of obscenity, the definition must be largely, if not exclusively, for legislative determination. Absent a controlling constitutional standard, I would think that a legislature could treat literature as it treats sewage effluent or infectious disease. That is not a happy prospect, for some would put even the Song of Solomon under the ban. It is, I fear, where we end once we lose our First Amendment moorings. Administrative censorship, however, is one thing. Criminal punishment is quite another. Publishing "obscene" literature cannot, as I view it, be made a crime under our constitutional standards. "Whatever `obscenity' is, it is immeasurable as a crime and delineable only as a sin. As a sin, it is present only in the minds of some and not in the minds of others. It is entirely too subjective for legal sanction. There are as many different definitions of obscenity as there are men; and they are as unique to the individual as are his dreams." Note, The Substantive Law of Obscenity: An Adventure in Quicksand, 13 N.Y. L. F. 81, 131 (1967). What appeals to "prurient interests" describes sin to some but not to others and seems to me to be far too vague to pass muster as a criminal, as distinguished from an administrative, statute.[10] *213 I see no help on the vagueness problem even if the test "utterly without redeeming social importance" were added to the criminal standard, as it was in[11] That is a measurement which again is wholly subjective. It cannot be related to anything but the judge's or jurors' sophistication or stage of cultural development. Nor do I think the problem is helped by introducing the concept of "contemporary community standards" whether that refers to the public at large or a local county or town standard. The two tests—this Court's and that of Texas—seem to me to be substantially identical. I do not see how either can be held to be constitutional. The standard of guilt is wholly subjective. The jurors can convict or acquit according to their own personal tastes, their cultural standard, their literacy, and their tolerance for opposed ideas. And the same would be true of judges. It means that a book that is hailed as wholesome in one county may be the cause of punishment in another county of the same State. The evidence in obscenity prosecutions is usually expert testimony. Analysts, English literature scholars, and others often have helpful and informed views, one way or the other. It seems impossible, if we continue to sanction the use of these vague standards in criminal prosecutions, that verdicts will be rendered which are based on the record and not on the emotional factors reflecting the prejudices of the judge or jurors. Uncertainty, rather than certainty, is the standard. The book, play, poem, or movie is approved or condemned on the basis of the personal beliefs of the judge or jurors, not on the ban of a statute containing clear and objective standards. *214 The concept of "utterly without redeeming social importance" will divide even the experts. It is risky and perilous business to send men to prison on such provocative issues, which confuse people and create irreconcilable differences even among the judges who sentence them or approve their convictions. In these criminal cases dealing with obscenity, we leave people confused and in the dark as to whether they are or are not criminals. Criminal laws must give fair warning; and a person receives no real warning when he crosses the line between the lawful and the unlawful, under the Texas statute[12] or under the standard approved by the Court. Where constitutional rights may be infringed, should be our guide. There an "obscene" magazine was defined to include those which "massed" stories of bloodshed and lust to incite crimes. We held that standard to be too vague to satisfy constitutional standards.[13] "The standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement. The crime `must be defined with appropriate definiteness.'. There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. *215 The vagueness may be from uncertainty in regard to persons within the scope of the act, or in regard to the applicable tests to ascertain guilt." And see ; ; United ; ; ; My view, however, is that any regime of censorship over literature whether expressed in a criminal statute[14] or an administrative[15] procedure is unconstitutional by reason of the command of the First Amendment.

Justice White

majority

Helling v. McKinney

https://www.courtlistener.com/opinion/112888/helling-v-mckinney/

https://www.courtlistener.com/api/rest/v3/clusters/112888/

1992-099

This case requires us to decide whether the health risk posed by involuntary exposure of a prison inmate to environmental *28 tobacco smoke (ETS) can form the basis of a claim for relief under the Eighth Amendment. I Respondent is serving a sentence of imprisonment in the Nevada prison system. At the time that this case arose, respondent was an inmate in the Nevada State Prison in Carson City, Nevada. Respondent filed a pro se civil rights complaint in United States District Court under Rev. Stat. § 1979, 42 U.S. C. § 1983, naming as defendants the director of the prison, the warden, the associate warden, a unit counselor, and the manager of the prison store. The complaint, dated December 18, 1986, alleged that respondent was assigned to a cell with another inmate who smoked five packs of cigarettes a day. App. 6. The complaint also stated that cigarettes were sold to inmates without properly informing of the health hazards a nonsmoking inmate would encounter by sharing a room with an inmate who smoked, id., at 7-8, and that certain cigarettes burned continuously, releasing some type of chemical, id., at 9. Respondent complained of certain health problems allegedly caused by exposure to cigarette smoke. Respondent sought injunctive relief and damages for, inter alia, subjecting him to cruel and unusual punishment by jeopardizing his health. Id., at 14. The parties consented to a jury trial before a Magistrate. The Magistrate viewed respondent's suit as presenting two issues of law: (1) whether respondent had a constitutional right to be housed in a smoke-free environment, and (2) whether defendants were deliberately indifferent to respondent's serious medical needs. App. to Pet. for Cert. D2—D3. The Magistrate, after citing applicable authority, concluded that respondent had no constitutional right to be free from cigarette smoke: While "society may be moving toward an opinion as to the propriety of non-smoking and a smoke-free environment," society cannot yet completely agree on the resolution of these issues. Id., at D3, D6. The Magistrate *29 found that respondent nonetheless could state a claim for deliberate indifference to serious medical needs if he could prove the underlying facts, but held that respondent had failed to present evidence showing either medical problems that were traceable to cigarette smoke or deliberate indifference to them. Id., at D6—D10. The Magistrate therefore granted petitioners' motion for a directed verdict and granted judgment for the defendants. Id., at D10. The Court of Appeals affirmed the Magistrate's grant of a directed verdict on the issue of deliberate indifference to respondent's immediate medical symptoms. McKinney v. Anderson, 924 F.2d 1500, 1512 (CA9 1991). The Court of Appeals also held that the defendants were immune from liability for damages since there was at the time no clearly established law imposing liability for exposing prisoners to ETS.[*] Although it agreed that respondent did not have a constitutional right to a smoke-free prison environment, the court held that respondent had stated a valid cause of action under the Eighth Amendment by alleging that he had been involuntarily exposed to levels of ETS that posed an unreasonable risk of harm to his future health. Id., at 1509. In support of this judgment, the court noticed scientific opinion supporting respondent's claim that sufficient exposure to ETS could endanger one's health. Id., at 1505-1507. The court also concluded that society's attitude had evolved to the point that involuntary exposure to unreasonably dangerous levels of ETS violated current standards of decency. Id., at 1508. The court therefore held that the Magistrate erred by directing a verdict without permitting respondent to prove that his exposure to ETS was sufficient to constitute an unreasonable danger to his future health. Petitioners sought review in this Court. In the meantime, this Court had decided Wilson v. Seiter, 501 U.S. 294 (1991), which held that, while the Eighth Amendment applies *30 to conditions of confinement that are not formally imposed as a sentence for a crime, such claims require proof of a subjective component, and that where the claim alleges inhumane conditions of confinement or failure to attend to a prisoner's medical needs, the standard for that state of mind is the "deliberate indifference" standard of Estelle v. Gamble, 429 U.S. 97 (1976). We granted certiorari in this case, vacated the judgment below, and remanded the case to the Court of Appeals for further consideration in light of Seiter. 502 U.S. 903 (1991). On remand, the Court of Appeals noted that Seiter added an additional subjective element that respondent had to prove to make out an Eighth Amendment claim, but did not vitiate its determination that it would be cruel and unusual punishment to house a prisoner in an environment exposing him to levels of ETS that pose an unreasonable risk of harming his health—the objective component of respondent's Eighth Amendment claim. McKinney v. Anderson, 959 F.2d 853, 854 (CA9 1992). The Court of Appeals therefore reinstated its previous judgment and remanded for proceedings consistent with its prior opinion and with Seiter. 959 F. 2d, at 854. Petitioners again sought review in this Court, contending that the decision below was in conflict with the en banc decision of the Court of Appeals for the Tenth Circuit in Clemmons v. Bohannon, 956 F.2d 1523 (1992). We granted certiorari. 505 U.S. 1218 (1992). We affirm. II The petition for certiorari which we granted not only challenged the Court of Appeals' holding that respondent had stated a valid Eighth Amendment claim, but also asserted, as did its previous petition, that it was improper for the Court of Appeals to decide the question at all. Pet. for Cert. 25-29. Petitioners claim that respondent's complaint rested only on the alleged current effects of exposure to cigarette *31 smoke, not on the possible future effects; that the issues framed for trial were likewise devoid of such an issue; and that such a claim was not presented, briefed, or argued on appeal and that the Court of Appeals erred in sua sponte deciding it. Ibid. Brief for Petitioners 46-49. The Court of Appeals was apparently of the view that the claimed entitlement to a smoke-free environment subsumed the claim that exposure to ETS could endanger one's future health. From its examination of the record, the court stated that "[b]oth before and during trial, McKinney sought to litigate the degree of his exposure to ETS and the actual and potential effects of such exposure on his health," 924 F.2d, at 1503; stated that the Magistrate had excluded evidence relating to the potential health effects of exposure to ETS; and noted that two of the issues on appeal addressed whether the Magistrate erred in holding as a matter of law that compelled exposure to ETS does not violate a prisoner's rights and whether it was error to refuse to appoint an expert witness to testify about the health effects of such exposure. While the record is ambiguous and the Court of Appeals might well have affirmed the Magistrate, we hesitate to dispose of this case on the basis that the court misread the record before it. We passed over the same claim when we vacated the judgment below and remanded when the case was first before us, Pet. for Cert., O. T. 1991, No. 91-269, pp. 23-26, and the primary question on which certiorari was granted, and the question to which petitioners have devoted the bulk of their briefing and argument, is whether the court below erred in holding that McKinney had stated an Eighth Amendment claim on which relief could be granted by alleging that his compelled exposure to ETS poses an unreasonable risk to his health. III It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. As we said *32 in DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 199-200 (1989): "[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being. . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e. g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment . . . ." Contemporary standards of decency require no less. Estelle v. Gamble, 429 U. S., at 103-104. In Estelle, we concluded that although accidental or inadvertent failure to provide adequate medical care to a prisoner would not violate the Eighth Amendment, "deliberate indifference to serious medical needs of prisoners" violates the Amendment because it constitutes the unnecessary and wanton infliction of pain contrary to contemporary standards of decency. Id., at 104. Wilson v. Seiter, 501 U.S. 294 (1991), later held that a claim that the conditions of a prisoner's confinement violate the Eighth Amendment requires an inquiry into the prison officials' state of mind. "`Whether one characterizes the treatment received by [the prisoner] as inhuman conditions of confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to apply the "deliberate indifference" standard articulated in Estelle.'" Id., at 303. Petitioners are well aware of these decisions, but they earnestly submit that unless McKinney can prove that he is currently suffering serious medical problems caused by exposure to ETS, there can be no violation of the Eighth Amendment. That Amendment, it is urged, does not protect *33 against prison conditions that merely threaten to cause health problems in the future, no matter how grave and imminent the threat. We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year. In Hutto v. Finney, 437 U.S. 678, 682 (1978), we noted that inmates in punitive isolation were crowded into cells and that some of them had infectious maladies such as hepatitis and venereal disease. This was one of the prison conditions for which the Eighth Amendment required a remedy, even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed. We would think that a prison inmate also could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery. Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms. That the Eighth Amendment protects against future harm to inmates is not a novel proposition. The Amendment, as we have said, requires that inmates be furnished with the basic human needs, one of which is "reasonable safety." DeShaney, supra, at 200. It is "cruel and unusual punishment to hold convicted criminals in unsafe conditions." Youngberg v. Romeo, 457 U.S. 307, 315-316 (1982). It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them. The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event. Two of them were cited with approval in Rhodes v. Chapman, 452 U.S. 337, 352, n. 17 (1981). Gates v. Collier, 501 F.2d 1291 *34 (CA5 1974), held that inmates were entitled to relief under the Eighth Amendment when they proved threats to personal safety from exposed electrical wiring, deficient firefighting measures, and the mingling of inmates with serious contagious diseases with other prison inmates. Ramos v. Lamm, 639 F.2d 559, 572 (CA10 1980), stated that a prisoner need not wait until he is actually assaulted before obtaining relief. As respondent points out, the Court of Appeals cases to the effect that the Eighth Amendment protects against sufficiently imminent dangers as well as current unnecessary and wanton infliction of pain and suffering are legion. See Brief for Respondent 24-27. We thus reject petitioners' central thesis that only deliberate indifference to current serious health problems of inmates is actionable under the Eighth Amendment. The United States as amicus curiae supporting petitioners does not contend that the Amendment permits "even those conditions of confinement that truly pose a significant risk of proximate and substantial harm to an inmate, so long as the injury has not yet occurred and the inmate does not yet suffer from its effects." Brief for United States as Amicus Curiae 19. Hutto v. Finney, the United States observes, teaches as much. The Government recognizes that there may be situations in which exposure to toxic or similar substances would "present a risk of sufficient likelihood or magnitude—and in which there is a sufficiently broad consensus that exposure of anyone to the substance should therefore be prevented—that" the Amendment's protection would be available even though the effects of exposure might not be manifested for some time. Brief for United States as Amicus Curiae 19. But the United States submits that the harm to any particular individual from exposure to ETS is speculative, that the risk is not sufficiently grave to implicate a "`serious medical nee[d],'" and that exposure to ETS is not contrary to current standards of decency. Id., at 20-22. It would be premature for us, however, as a matter of law to *35 reverse the Court of Appeals on the basis suggested by the United States. The Court of Appeals has ruled that McKinney's claim is that the level of ETS to which he has been involuntarily exposed is such that his future health is unreasonably endangered and has remanded to permit McKinney to attempt to prove his case. In the course of such proof, he must also establish that it is contrary to current standards of decency for anyone to be so exposed against his will and that prison officials are deliberately indifferent to his plight. We cannot rule at this juncture that it will be impossible for McKinney, on remand, to prove an Eighth Amendment violation based on exposure to ETS. IV We affirm the holding of the Court of Appeals that McKinney states a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health. We also affirm the remand to the District Court to provide an opportunity for McKinney to prove his allegations, which will require him to prove both the subjective and objective elements necessary to prove an Eighth Amendment violation. The District Court will have the usual authority to control the order of proof, and if there is a failure of proof on the first element that it chooses to consider, it would not be an abuse of discretion to give judgment for petitioners without taking further evidence. McKinney must also prove that he is entitled to the remedy of an injunction. With respect to the objective factor, McKinney must show that he himself is being exposed to unreasonably high levels of ETS. Plainly relevant to this determination is the fact that McKinney has been moved from Carson City to Ely State Prison and is no longer the cellmate of a five-pack-aday smoker. While he is subject to being moved back to Carson City and to being placed again in a cell with a heavy *36 smoker, the fact is that at present he is not so exposed. Moreover, the director of the Nevada State Prisons adopted a formal smoking policy on January 10, 1992. This policy restricts smoking in "program, food preparation/serving, recreational and medical areas" to specifically designated areas. It further provides that wardens may, contingent on space availability, designate nonsmoking areas in dormitory settings, and that institutional classification committees may make reasonable efforts to respect the wishes of nonsmokers where double bunking obtains. See App. to Brief for United States as Amicus Curiae A1—A2. It is possible that the new policy will be administered in a way that will minimize the risk to McKinney and make it impossible for him to prove that he will be exposed to unreasonable risk with respect to his future health or that he is now entitled to an injunction. Also with respect to the objective factor, determining whether McKinney's conditions of confinement violate the Eighth Amendment requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to ETS. It also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate. On remand, the subjective factor, deliberate indifference, should be determined in light of the prison authorities' current attitudes and conduct, which may have changed considerably since the judgment of the Court of Appeals. Indeed, the adoption of the smoking policy mentioned above will bear heavily on the inquiry into deliberate indifference. In this respect we note that at oral argument McKinney's counsel was of the view that depending on how the new policy was administered, it could be very difficult to demonstrate that *37 prison authorities are ignoring the possible dangers posed by exposure to ETS. Tr. of Oral Arg. 33. The inquiry into this factor also would be an appropriate vehicle to consider arguments regarding the realities of prison administration. V The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. So ordered.

This case requires us to decide whether the health risk posed by involuntary exposure of a prison inmate to environmental *28 tobacco smoke (ETS) can form the basis of a claim for relief under the Eighth Amendment. I Respondent is serving a sentence of imprisonment in the Nevada prison system. At the time that this case arose, respondent was an inmate in the Nevada State Prison in Carson City, Nevada. Respondent filed a pro se civil rights complaint in United States District Court under Rev. Stat. 1979, 42 U.S. C. 1983, naming as defendants the director of the prison, the warden, the associate warden, a unit counselor, and the manager of the prison store. The complaint, dated December 18, 1986, alleged that respondent was assigned to a cell with another inmate who smoked five packs of cigarettes a day. App. 6. The complaint also stated that cigarettes were sold to inmates without properly informing of the health hazards a nonsmoking inmate would encounter by sharing a room with an inmate who smoked, and that certain cigarettes burned continuously, releasing some type of chemical, Respondent complained of certain health problems allegedly caused by exposure to cigarette smoke. Respondent sought injunctive relief and damages for, inter alia, subjecting him to cruel and unusual punishment by jeopardizing his health. The parties consented to a jury trial before a Magistrate. The Magistrate viewed respondent's suit as presenting two issues of law: (1) whether respondent had a constitutional right to be housed in a smoke-free environment, and (2) whether defendants were deliberately indifferent to respondent's serious medical needs. App. to Pet. for Cert. D2—D3. The Magistrate, after citing applicable authority, concluded that respondent had no constitutional right to be free from cigarette smoke: While "society may be moving toward an opinion as to the propriety of non-smoking and a smoke-free environment," society cannot yet completely agree on the resolution of these issues. at D3, D6. The Magistrate *29 found that respondent nonetheless could state a claim for deliberate indifference to serious medical needs if he could prove the underlying facts, but held that respondent had failed to present evidence showing either medical problems that were traceable to cigarette smoke or deliberate indifference to them. at D6—D10. The Magistrate therefore granted petitioners' motion for a directed verdict and granted judgment for the defendants. at D10. The Court of Appeals affirmed the Magistrate's grant of a directed verdict on the issue of deliberate indifference to respondent's immediate medical symptoms. The Court of Appeals also held that the defendants were immune from liability for damages since there was at the time no clearly established law imposing liability for exposing prisoners to ETS.[*] Although it agreed that respondent did not have a constitutional right to a smoke-free prison environment, the court held that respondent had stated a valid cause of action under the Eighth Amendment by alleging that he had been involuntarily exposed to levels of ETS that posed an unreasonable risk of harm to his future health. In support of this judgment, the court noticed scientific opinion supporting respondent's claim that sufficient exposure to ETS could endanger one's health. The court also concluded that society's attitude had evolved to the point that involuntary exposure to unreasonably dangerous levels of ETS violated current standards of decency. The court therefore held that the Magistrate erred by directing a verdict without permitting respondent to prove that his exposure to ETS was sufficient to constitute an unreasonable danger to his future health. Petitioners sought review in this Court. In the meantime, this Court had decided which held that, while the Eighth Amendment applies *30 to conditions of confinement that are not formally imposed as a sentence for a crime, such claims require proof of a subjective component, and that where the claim alleges inhumane conditions of confinement or failure to attend to a prisoner's medical needs, the standard for that state of mind is the "deliberate indifference" standard of We granted certiorari in this case, vacated the judgment below, and remanded the case to the Court of Appeals for further consideration in light of Seiter. On remand, the Court of Appeals noted that Seiter added an additional subjective element that respondent had to prove to make out an Eighth Amendment claim, but did not vitiate its determination that it would be cruel and unusual punishment to house a prisoner in an environment exposing him to levels of ETS that pose an unreasonable risk of harming his health—the objective component of respondent's Eighth Amendment claim. The Court of Appeals therefore reinstated its previous judgment and remanded for proceedings consistent with its prior opinion and with Seiter. 959 F. 2d, at Petitioners again sought review in this Court, contending that the decision below was in conflict with the en banc decision of the Court of Appeals for the Tenth Circuit in We granted certiorari. We affirm. II The petition for certiorari which we granted not only challenged the Court of Appeals' holding that respondent had stated a valid Eighth Amendment claim, but also asserted, as did its previous petition, that it was improper for the Court of Appeals to decide the question at all. Pet. for Cert. 25-29. Petitioners claim that respondent's complaint rested only on the alleged current effects of exposure to cigarette *31 smoke, not on the possible future effects; that the issues framed for trial were likewise devoid of such an issue; and that such a claim was not presented, briefed, or argued on appeal and that the Court of Appeals erred in sua sponte deciding it. Brief for Petitioners 46-49. The Court of Appeals was apparently of the view that the claimed entitlement to a smoke-free environment subsumed the claim that exposure to ETS could endanger one's future health. From its examination of the record, the court stated that "[b]oth before and during trial, McKinney sought to litigate the degree of his exposure to ETS and the actual and potential effects of such exposure on his health," ; stated that the Magistrate had excluded evidence relating to the potential health effects of exposure to ETS; and noted that two of the issues on appeal addressed whether the Magistrate erred in holding as a matter of law that compelled exposure to ETS does not violate a prisoner's rights and whether it was error to refuse to appoint an expert witness to testify about the health effects of such exposure. While the record is ambiguous and the Court of Appeals might well have affirmed the Magistrate, we hesitate to dispose of this case on the basis that the court misread the record before it. We passed over the same claim when we vacated the judgment below and remanded when the case was first before us, Pet. for Cert., O. T. No. 91-269, pp. 23-26, and the primary question on which certiorari was granted, and the question to which petitioners have devoted the bulk of their briefing and argument, is whether the court below erred in holding that McKinney had stated an Eighth Amendment claim on which relief could be granted by alleging that his compelled exposure to ETS poses an unreasonable risk to his health. III It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. As we said *32 in : "[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being. The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e. g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment" Contemporary standards of decency require no less. -104. In Estelle, we concluded that although accidental or inadvertent failure to provide adequate medical care to a prisoner would not violate the Eighth Amendment, "deliberate indifference to serious medical needs of prisoners" violates the Amendment because it constitutes the unnecessary and wanton infliction of pain contrary to contemporary standards of decency. later held that a claim that the conditions of a prisoner's confinement violate the Eighth Amendment requires an inquiry into the prison officials' state of mind. "`Whether one characterizes the treatment received by [the prisoner] as inhuman conditions of confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to apply the "deliberate indifference" standard articulated in Estelle.'" Petitioners are well aware of these decisions, but they earnestly submit that unless McKinney can prove that he is currently suffering serious medical problems caused by exposure to ETS, there can be no violation of the Eighth Amendment. That Amendment, it is urged, does not protect *33 against prison conditions that merely threaten to cause health problems in the future, no matter how grave and imminent the threat. We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year. In we noted that inmates in punitive isolation were crowded into cells and that some of them had infectious maladies such as hepatitis and venereal disease. This was one of the prison conditions for which the Eighth Amendment required a remedy, even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed. We would think that a prison inmate also could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery. Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms. That the Eighth Amendment protects against future harm to inmates is not a novel proposition. The Amendment, as we have said, requires that inmates be furnished with the basic human needs, one of which is "reasonable safety." It is "cruel and unusual punishment to hold convicted criminals in unsafe conditions." It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them. The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event. Two of them were cited with approval in held that inmates were entitled to relief under the Eighth Amendment when they proved threats to personal safety from exposed electrical wiring, deficient firefighting measures, and the mingling of inmates with serious contagious diseases with other prison inmates. stated that a prisoner need not wait until he is actually assaulted before obtaining relief. As respondent points out, the Court of Appeals cases to the effect that the Eighth Amendment protects against sufficiently imminent dangers as well as current unnecessary and wanton infliction of pain and suffering are legion. See Brief for Respondent 24-27. We thus reject petitioners' central thesis that only deliberate indifference to current serious health problems of inmates is actionable under the Eighth Amendment. The United States as amicus curiae supporting petitioners does not contend that the Amendment permits "even those conditions of confinement that truly pose a significant risk of proximate and substantial harm to an inmate, so long as the injury has not yet occurred and the inmate does not yet suffer from its effects." Brief for United States as Amicus Curiae 19. the United States observes, teaches as much. The Government recognizes that there may be situations in which exposure to toxic or similar substances would "present a risk of sufficient likelihood or magnitude—and in which there is a sufficiently broad consensus that exposure of anyone to the substance should therefore be prevented—that" the Amendment's protection would be available even though the effects of exposure might not be manifested for some time. Brief for United States as Amicus Curiae 19. But the United States submits that the harm to any particular individual from exposure to ETS is speculative, that the risk is not sufficiently grave to implicate a "`serious medical nee[d],'" and that exposure to ETS is not contrary to current standards of decency. It would be premature for us, however, as a matter of law to *35 reverse the Court of Appeals on the basis suggested by the United States. The Court of Appeals has ruled that McKinney's claim is that the level of ETS to which he has been involuntarily exposed is such that his future health is unreasonably endangered and has remanded to permit McKinney to attempt to prove his case. In the course of such proof, he must also establish that it is contrary to current standards of decency for anyone to be so exposed against his will and that prison officials are deliberately indifferent to his plight. We cannot rule at this juncture that it will be impossible for McKinney, on remand, to prove an Eighth Amendment violation based on exposure to ETS. IV We affirm the holding of the Court of Appeals that McKinney states a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health. We also affirm the remand to the District Court to provide an opportunity for McKinney to prove his allegations, which will require him to prove both the subjective and objective elements necessary to prove an Eighth Amendment violation. The District Court will have the usual authority to control the order of proof, and if there is a failure of proof on the first element that it chooses to consider, it would not be an abuse of discretion to give judgment for petitioners without taking further evidence. McKinney must also prove that he is entitled to the remedy of an injunction. With respect to the objective factor, McKinney must show that he himself is being exposed to unreasonably high levels of ETS. Plainly relevant to this determination is the fact that McKinney has been moved from Carson City to Ely State Prison and is no longer the cellmate of a five-pack-aday smoker. While he is subject to being moved back to Carson City and to being placed again in a cell with a heavy *36 smoker, the fact is that at present he is not so exposed. Moreover, the director of the Nevada State Prisons adopted a formal smoking policy on January 10, This policy restricts smoking in "program, food preparation/serving, recreational and medical areas" to specifically designated areas. It further provides that wardens may, contingent on space availability, designate nonsmoking areas in dormitory settings, and that institutional classification committees may make reasonable efforts to respect the wishes of nonsmokers where double bunking obtains. See App. to Brief for United States as Amicus Curiae A1—A2. It is possible that the new policy will be administered in a way that will minimize the risk to McKinney and make it impossible for him to prove that he will be exposed to unreasonable risk with respect to his future health or that he is now entitled to an injunction. Also with respect to the objective factor, determining whether McKinney's conditions of confinement violate the Eighth Amendment requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to ETS. It also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate. On remand, the subjective factor, deliberate indifference, should be determined in light of the prison authorities' current attitudes and conduct, which may have changed considerably since the judgment of the Court of Appeals. Indeed, the adoption of the smoking policy mentioned above will bear heavily on the inquiry into deliberate indifference. In this respect we note that at oral argument McKinney's counsel was of the view that depending on how the new policy was administered, it could be very difficult to demonstrate that *37 prison authorities are ignoring the possible dangers posed by exposure to ETS. Tr. of Oral Arg. 33. The inquiry into this factor also would be an appropriate vehicle to consider arguments regarding the realities of prison administration. V The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. So ordered.

Justice Powell

majority

PC Pfeiffer Co. v. Ford

https://www.courtlistener.com/opinion/110157/pc-pfeiffer-co-v-ford/

https://www.courtlistener.com/api/rest/v3/clusters/110157/

1979-006

The question in this case is whether two workers were engaged in "maritime employment," as defined by § 2 (3) of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1425, as amended, 86 Stat. 1251, 33 U.S. C. § 902 (3), when they sustained injuries for which they seek compensation. I On April 12, 1973, Diverson Ford accidentally struck the middle finger of his left hand with a hammer while working on a public dock in the Port of Beaumont, Tex. On the day of his injury, Ford was employed by the P. C. Pfeiffer Co. to fasten military vehicles onto railroad flatcars. The vehicles had been delivered to the port by ship a number of days before the accident, stored, and then loaded onto flatcars the day before. The flatcars would take the vehicles to their inland destination. Ford was working out of the warehousemen's local on the day of the accident. Agreements between employers, the warehousemen's union, and the longshoremen's union limit the tasks that warehousemen may perform in the Port of Beaumont. Warehousemen may not move cargo directly from a vessel either to a point of rest in storage or to a railroad car. Nor may they move cargo from a shoreside point of rest directly onto a vessel. These jobs are reserved for longshoremen. App. 10-11. On May 2, 1973, Will Bryant was injured while unloading a bale of cotton from a dray wagon into a pier warehouse. Bryant was working as a cotton header for the Ayers Steamship Co. in the Port of Galveston, Tex. Cotton arrives at the port from inland shippers and enters storage in cotton *72 compress-warehouses. The cotton then goes by dray wagon to pier warehouses where a driver and two cotton headers unload and store it. Longshoremen later move the cotton from the pier warehouses onto ships. Contractual agreements between employers, the cotton headers' union, and the longshoremen's union distinguish the work that cotton headers may perform from the tasks assignable to longshoremen. Cotton headers may only load cotton off dray wagons into the pier warehouses or move cotton within a pier warehouse. Cargo moved directly from the ship to shoreside transportation, or directly from shoreside transportation to the ship, is handled solely by longshoremen. Id., at 25, 48-49, 57-58, 60-61. II Before 1972, neither Ford nor Bryant could have received compensation under the Longshoremen's and Harbor Workers' Compensation Act because his injury occurred on land. The pre-1972 Act was simply an effort to fill the gap in workmen's compensation coverage created by this Court's decision in Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917), which held that state compensation systems could not reach longshoremen injured seaward of the water's edge.[1] A single situs requirement in § 3 (a) of the Act governed the scope of its coverage. That requirement limited coverage to workers whose "disability or death result[ed] from an injury occurring upon the navigable waters of the United States (including any dry dock). . . ." 44 Stat. 1426. In light of Jensen and the limited purpose of the Act, the situs test was understood to draw a sharp line between injuries sustained over water and those suffered on land. Thus, in *73 Nacirema Operating Co. v. Johnson, 396 U.S. 212, 218-220 (1969), this Court held that the Act did not extend to injuries occurring on a pier attached to the land. Although the Court recognized that inequities might result from rigid adherence to the Jensen line, the Court concluded that "[t]he invitation to move that line landward must be addressed to Congress, not to this Court." 396 U.S., at 224.[2] Congress responded with the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972 (1972 Act).[3] The Act now extends coverage to more workers by replacing the single-situs requirement with a two-part situs and status standard. The newly broadened situs test provides compensation for an "employee" whose disability or death "results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel)." § 3 (a), 33 U.S. C. § 903 (a). The status test defines an employee as "any person *74 engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker. . . ." § 2 (3), 33 U.S. C. § 902 (3). To be eligible for compensation, a person must be an employee as defined by § 2 (3) who sustains injury on the situs defined by § 3 (a). III This Court first considered the scope of § 2 (3)'s status requirement in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977). That case concerned the claims of two workers, Blundo and Caputo. Blundo was on a pier checking cargo as it was removed from a container when he suffered a fall.[4] Caputo sustained injury while rolling a loaded dolly into a consignee's truck.[5] We recognized that neither the 1972 Act nor its legislative history states explicitly whether workers like Blundo and Caputo, who handle cargo between sea and land transportation, are employees within the meaning of § 2 (3). The Court found, however, that consideration of the legislative history in light of the remedial purposes behind the expansion of coverage reveals a clear intent to cover such workers. 432 U.S., at 267-278. One of the reasons Congress expanded coverage in 1972 was that containerization permits loading and unloading tasks traditionally conducted aboard ship to be performed on the land. Such tasks are "longshoring operations." Id., at 270-271. Blundo's job of checking and marking goods as they *75 were removed from a container was an integral part of the unloading process even though the container had been removed from a ship and trucked to a different pier before being emptied. Therefore, Blundo was an employee within the meaning of § 2 (3). 432 U.S., at 271. Caputo, working as part of the traditional process of moving goods from ship to land transportation, was unaffected by the advent of containerization. But the Court recognized another congressional purpose relevant to the resolution of Caputo's claim. Congress wanted to ensure that a worker who could have been covered part of the time by the pre-1972 Act would be completely covered by the 1972 Act. By enlarging the covered situs and enacting the status requirement, Congress intended that a worker's eligibility for federal benefits would not depend on whether he was injured while walking down a gangway or while taking his first step onto the land. Congress therefore counted as "longshoremen" persons who spend "at least some of their time in indisputably longshoring operations." Id., at 273. Caputo, who could have been assigned to loading containers and barges as well as trucks, was such a person. Ibid. Accordingly, the Court did not have to decide whether Caputo's work was "maritime employment" simply because he "engaged in the final steps of moving cargo from maritime to land transportation: putting it in the consignee's truck." Id., at 272. In holding that Blundo and Caputo were covered by the Act, Northeast Marine Terminal explicitly rejected the "point of rest" theory. Under that test, maritime employment would include only the portion of the unloading process that takes place before the stevedoring gang places cargo onto the dock. For example, a worker who carried cargo directly from a ship to a warehouse or a truck would be engaged in maritime employment, but one who carried cargo from a warehouse to a truck would not. In loading operations, only workers employed to the seaside of the last point of rest would be covered. *76 We explained that application of the point-of-rest test would be inconsistent with congressional intent. First, the concept, although well known in the maritime industry, was not mentioned in the Act or its legislative history. Second, the standard excludes from coverage employees like Blundo whose work was shifted landward by the use of containers. Third, the test conflicts with the express purpose of the Act because it allows workers to walk in and out of coverage as their work moves to different sides of a point of rest. Id., at 275-276. In sum, "[a] theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts the coverage of a remedial Act designed to extend coverage [was] incapable of defeating our conclusion that Blundo and Caputo [were] `employees.'" Id., at 278-279. Most of the litigation in the present case took place before our decision in Northeast Marine Terminal. At the initial administrative level, both Ford's and Bryant's claims for coverage were denied by Administrative Law Judges applying the point-of-rest doctrine. The Benefits Review Board reversed both decisions. The Court of Appeals for the Fifth Circuit affirmed. Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533 (1976). The court rejected the point-of-rest theory, holding instead that the 1972 Act covers all workers directly involved in the work of loading, unloading, repairing, building, or breaking a vessel. Id., at 539-540. The court found that "Ford's work of fastening the vehicles to the flat cars was . . . the last step in transferring this cargo from sea to land transportation," id., at 543, and that Bryant's work "was an integral part of the ongoing process of moving cargo between land transportation and a ship," id., at 544. Accordingly, the Court of Appeals concluded that both men were covered by the 1972 Act. We granted certiorari, vacated, and remanded for reconsideration in light of Northeast Marine Terminal. 433 U.S. 904 *77 (1977). On remand, the Fifth Circuit reaffirmed the reasoning of its earlier opinion. 575 F.2d 79, 80 (1978) (percuriam). We again granted certiorari, 439 U.S. 978 (1978), and we now affirm. IV Petitioners urge that Ford and Bryant are not covered by the 1972 Act because they were not engaged in "maritime employment."[6] Petitioners suggest that a person is engaged in maritime employment only if, on the day of his injury, he could have been assigned to perform work upon the navigable waters of the United States. By navigable waters, the petitioners do not mean the broad situs defined in § 3 (a), as amended by the 1972 Act; rather they refer to places seaward of the Jensen line. In other words, petitioners argue that the 1972 Act covers only workers who are working or who may be assigned to work over the water itself. They say that this formulation follows congressional intent to cover all workers who, before 1972, could have walked in and out of coverage during any given day.[7] *78 Petitioners' position is plainly inconsistent with the language and structure of the 1972 Act. The Act, as noted above, contains distinct situs and status requirements. The situs test of § 3 (a) allows recovery for an injury suffered on navigable waters or certain adjoining areas landward of the Jensen line. This test defines the broad geographic coverage of the Act. Section 2 (3) restricts the scope of coverage by further requiring that the injured worker must have been engaged in "maritime employment." This section defines the Act's occupational requirements. The term "maritime employment" refers to the nature of a worker's activities. Thus, § 2 (3) uses the phrase "longshorem[e]n or other person[s] engaged in longshoring operations" as one example of workers who engage in maritime employment no matter where they do their job. Since § 3 (a) already limits the geographic coverage of the Act, § 2 (3) need not provide that longshoremen are covered only if they work in certain places. The use of the term "maritime employment" in § 2 (3), therefore, provides no support for the proposition that the statutory definition of an employee imports a geographic limitation narrower than the one defined in § 3 (a).[8] The difficulty with petitioners' position becomes even plainer when their interpretation is applied to a single statutory provision that contains both the status and the situs requirement. Section 2 (4), 33 U.S. C. § 902 (4), defines an "employer" as one "any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States" as broadly defined by § 3 (a). *79 If the term "maritime employment" referred only to work that might take employees seaward of the Jensen line, then the broader situs test in the final clause of this section would become virtually superfluous. We decline the invitation to construe "maritime employment" so as to create two differing situs requirements in a single sentence. By understanding the term "maritime employment" to embody an occupational rather than a geographic concept, we give the two phases in § 2 (4) distinct and consistent meanings. The discussion of coverage in the legislative history[9] also shows that Congress intended the term "maritime employment" to refer to status rather than situs. Committees in both Houses of Congress recognized: "[T]o take a typical example, cargo, whether in break bulk or containerized form, is typically unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters. The employees who perform this work would be covered under the bill for injuries sustained by them over the navigable waters or on the adjoining land area. The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity. Thus, employees whose responsibility is only *80 to pick up stored cargo for further trans-shipment would not be covered, nor would purely clerical employees whose jobs do not require them to participate in the loading or unloading of cargo."[10] This legislative history discusses workers solely in terms of what they are doing and never in terms of where they are working.[11] In adopting an occupational test that focuses on loading and unloading, Congress anticipated that some persons who work only on land would receive benefits under the 1972 Act. An obvious example of such a worker is Blundo. He was checking and marking cargo from a container that had been removed from a ship and moved overland to another pier before it was opened. Without any indication that he ever would be required to set foot on a ship, this Court held that he was covered by the 1972 Act because this type of work was maritime employment. Northeast Marine Terminal Co., 432 U. S., at 271. Land-based workers who do not handle containerized cargo also may be engaged in loading, unloading, repairing, or building a vessel. The Senate Subcommittee on Labor heard testimony that 30%-35% of ship repair work is done on land.[12]*81 Furthermore, the usual longshoring crew includes some men whose duties may be carried out solely on the land. A typical loading gang consists of persons who move cargo from a warehouse to the side of a ship, frontmen who attach the load to the ship's gear for lifting aboard the vessel, and a hold gang which stores cargo inside the ship.[13] Although the workers who carry the cargo to shipside and the frontmen who attach the cargo to the lifting devices need not board a ship to carry out their duties, they are incontestably longshoremen directly engaged in the loading process. Even the petitioners concede that some land-based workers are covered by the 1972 Act.[14] V The issue in this case thus becomes whether Ford and Bryant are the kind of land-based employees that Congress intended to encompass within the term "maritime employment." Both men engaged in the type of duties that longshoremen perform in transferring goods between ship and land transportation. If the cotton that Bryant was unloading had been brought directly from the compress-warehouse to a *82 ship, his task of moving cotton off a dray wagon would have been performed by a longshoreman.[15] Similarly, longshoremen— not warehousemen like Ford—would fasten military vehicles onto railroad flatcars if those vehicles went directly from a ship to the railroad cars.[16] The only basis for distinguishing Bryant or Ford from longshoremen who otherwise would perform the same work is the point-of-rest theory. That is, longshoremen in the Ports of Beaumont and Galveston would have performed the work done by Bryant and Ford had the cargo moved without interruption between land and sea transportation. Our unanimous opinion in Northeast Marine Terminal expressly decided that application of the point-of-rest test to define the scope of maritime employment would be contrary to congressional intent. Id., at 275-279. Thus, there is no principled basis for distinguishing Ford and Bryant from longshoremen who have been injured while performing the same tasks. We believe that § 2 (3)'s explicit use of the terms "longshoreman" and "other person engaged in longshoring operations" to describe persons engaged in maritime employment demonstrates that workers doing tasks traditionally performed by longshoremen are within the purview of the 1972 Act. We do not suggest that the scope of maritime employment depends upon the vagaries of union jurisdiction. 432 U.S., at 268, n. 30. Instead, the crucial factor is the nature of the activity to which a worker may be assigned. Persons moving cargo directly from ship to land transportation are engaged in maritime employment. Id., at 267, n. 28.[17] A worker responsible *83 for some portion of that activity is as much an integral part of the process of loading or unloading a ship as a person who participates in the entire process. We therefore hold that Ford and Bryant were engaged in maritime employment because they were engaged in intermediate steps of moving cargo between ship and land transportation.[18] Our decision serves the intent of Congress in creating the status requirement. First, it focuses upon the nature, not the location, of employment. Second, it does not extend coverage to all workers in the situs area. There is no doubt for example, that neither the driver of the truck carrying cotton to Galveston nor the locomotive engineer transporting military vehicles from Beaumont was engaged in maritime employment even though he was working on the marine situs. Such a person's "responsibility is only to pick up stored cargo for further trans-shipment." S. Rep. No. 92-1125, p. 13 (1972); H. R. Rep. No. 92-1441, p. 11 (1972); see Northeast Marine Terminal Co. v. Caputo, 432 U. S., at 267, 275, n. 37. Our decision today also serves the broader congressional purpose of expanding coverage. Congress intended to apply a simple, uniform standard of coverage. Adoption of the petitioners' test would conflict with that goal, because any individual worker's coverage would depend upon the assignment policies of his employer. For example, a land-based worker would be covered if his employer allowed him to alternate assignments with co-workers who work on the water, but he would not be covered if the employer never allowed him to board a ship. Congress did not intend the Act's coverage to shift with the employer's whim. See id., at 276, n. 38. In contrast, a definition *84 of maritime employment that reaches any worker who moves cargo between ship and land transportation will enable both workers and employers to predict with reasonable assurance who on the situs is protected by the 1972 Act. Because the Court of Appeals correctly determined that Ford and Bryant were engaged in maritime employment at the time of their injuries, its judgment is Affirmed.

The question in this case is whether two workers were engaged in "maritime employment," as defined by 2 (3) of the Longshoremen's and Harbor Workers' Compensation Act, as amended, 33 US C 902 (3), when they sustained injuries for which they seek compensation I On April 12, 1973, Diverson Ford accidentally struck the middle finger of his left hand with a hammer while working on a public dock in the Port of Beaumont, Tex On the day of his injury, Ford was employed by the P C Pfeiffer Co to fasten military vehicles onto railroad flatcars The vehicles had been delivered to the port by ship a number of days before the accident, stored, and then loaded onto flatcars the day before The flatcars would take the vehicles to their inland destination Ford was working out of the warehousemen's local on the day of the accident Agreements between employers, the warehousemen's union, and the longshoremen's union limit the tasks that warehousemen may perform in the Port of Beaumont Warehousemen may not move cargo directly from a vessel either to a point of rest in storage or to a railroad car Nor may they move cargo from a shoreside point of rest directly onto a vessel These jobs are reserved for longshoremen App 10-11 On May 2, 1973, Will Bryant was injured while unloading a bale of cotton from a dray wagon into a pier warehouse Bryant was working as a cotton header for the Ayers Steamship Co in the Port of Galveston, Tex Cotton arrives at the port from inland shippers and enters storage in cotton *72 compress-warehouses The cotton then goes by dray wagon to pier warehouses where a driver and two cotton headers unload and store it Longshoremen later move the cotton from the pier warehouses onto ships Contractual agreements between employers, the cotton headers' union, and the longshoremen's union distinguish the work that cotton headers may perform from the tasks assignable to longshoremen Cotton headers may only load cotton off dray wagons into the pier warehouses or move cotton within a pier warehouse Cargo moved directly from the ship to shoreside transportation, or directly from shoreside transportation to the ship, is handled solely by longshoremen II Before 1972, neither Ford nor Bryant could have received compensation under the Longshoremen's and Harbor Workers' Compensation Act because his injury occurred on land The pre-1972 Act was simply an effort to fill the gap in workmen's compensation coverage created by this Court's decision in Southern Pacific which held that state compensation systems could not reach longshoremen injured seaward of the water's edge[1] A single situs requirement in 3 (a) of the Act governed the scope of its coverage That requirement limited coverage to workers whose "disability or death result[ed] from an injury occurring upon the navigable waters of the United States (including any dry dock) " In light of Jensen and the limited purpose of the Act, the situs test was understood to draw a sharp line between injuries sustained over water and those suffered on land Thus, in *73 Nacirema Operating this Court held that the Act did not extend to injuries occurring on a pier attached to the land Although the Court recognized that inequities might result from rigid adherence to the Jensen line, the Court concluded that "[t]he invitation to move that line landward must be addressed to Congress, not to this Court" [2] Congress responded with the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972 (1972 Act)[3] The Act now extends coverage to more workers by replacing the single-situs requirement with a two-part situs and status standard The newly broadened situs test provides compensation for an "employee" whose disability or death "results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel)" 3 (a), 33 US C 903 (a) The status test defines an employee as "any person *74 engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker " 2 (3), 33 US C 902 (3) To be eligible for compensation, a person must be an employee as defined by 2 (3) who sustains injury on the situs defined by 3 (a) III This Court first considered the scope of 2 (3)'s status requirement in Northeast Marine Terminal That case concerned the claims of two workers, Blundo and Blundo was on a pier checking cargo as it was removed from a container when he suffered a fall[4] sustained injury while rolling a loaded dolly into a consignee's truck[5] We recognized that neither the 1972 Act nor its legislative history states explicitly whether workers like Blundo and who handle cargo between sea and land transportation, are employees within the meaning of 2 (3) The Court found, however, that consideration of the legislative history in light of the remedial purposes behind the expansion of coverage reveals a clear intent to cover such -278 One of the reasons Congress expanded coverage in 1972 was that containerization permits loading and unloading tasks traditionally conducted aboard ship to be performed on the land Such tasks are "longshoring operations" Blundo's job of checking and marking goods as they *75 were removed from a container was an integral part of the unloading process even though the container had been removed from a ship and trucked to a different pier before being emptied Therefore, Blundo was an employee within the meaning of 2 (3) working as part of the traditional process of moving goods from ship to land transportation, was unaffected by the advent of containerization But the Court recognized another congressional purpose relevant to the resolution of 's claim Congress wanted to ensure that a worker who could have been covered part of the time by the pre-1972 Act would be completely covered by the 1972 Act By enlarging the covered situs and enacting the status requirement, Congress intended that a worker's eligibility for federal benefits would not depend on whether he was injured while walking down a gangway or while taking his first step onto the land Congress therefore counted as "longshoremen" persons who spend "at least some of their time in indisputably longshoring operations" who could have been assigned to loading containers and barges as well as trucks, was such a person Ibid Accordingly, the Court did not have to decide whether 's work was "maritime employment" simply because he "engaged in the final steps of moving cargo from maritime to land transportation: putting it in the consignee's truck" In holding that Blundo and were covered by the Act, Northeast Marine Terminal explicitly rejected the "point of rest" theory Under that test, maritime employment would include only the portion of the unloading process that takes place before the stevedoring gang places cargo onto the dock For example, a worker who carried cargo directly from a ship to a warehouse or a truck would be engaged in maritime employment, but one who carried cargo from a warehouse to a truck would not In loading operations, only workers employed to the seaside of the last point of rest would be covered *76 We explained that application of the point-of-rest test would be inconsistent with congressional intent First, the concept, although well known in the maritime industry, was not mentioned in the Act or its legislative history Second, the standard excludes from coverage employees like Blundo whose work was shifted landward by the use of containers Third, the test conflicts with the express purpose of the Act because it allows workers to walk in and out of coverage as their work moves to different sides of a point of rest In sum, "[a] theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts the coverage of a remedial Act designed to extend coverage [was] incapable of defeating our conclusion that Blundo and [were] `employees'" Most of the litigation in the present case took place before our decision in Northeast Marine Terminal At the initial administrative level, both Ford's and Bryant's claims for coverage were denied by Administrative Law Judges applying the point-of-rest doctrine The Benefits Review Board reversed both decisions The Court of Appeals for the Fifth Circuit affirmed Jacksonville Shipyards, Inc v Perdue, 539 F2d 533 The court rejected the point-of-rest theory, holding instead that the 1972 Act covers all workers directly involved in the work of loading, unloading, repairing, building, or breaking a vessel The court found that "Ford's work of fastening the vehicles to the flat cars was the last step in transferring this cargo from sea to land transportation," id, and that Bryant's work "was an integral part of the ongoing process of moving cargo between land transportation and a ship," id, Accordingly, the Court of Appeals concluded that both men were covered by the 1972 Act We granted certiorari, vacated, and remanded for reconsideration in light of Northeast Marine Terminal 433 US 904 On remand, the Fifth Circuit reaffirmed the reasoning of its earlier opinion 575 F2d 79, We again granted certiorari, 439 US 978 and we now affirm IV Petitioners urge that Ford and Bryant are not covered by the 1972 Act because they were not engaged in "maritime employment"[6] Petitioners suggest that a person is engaged in maritime employment only if, on the day of his injury, he could have been assigned to perform work upon the navigable waters of the United States By navigable waters, the petitioners do not mean the broad situs defined in 3 (a), as amended by the 1972 Act; rather they refer to places seaward of the Jensen line In other words, petitioners argue that the 1972 Act covers only workers who are working or who may be assigned to work over the water itself They say that this formulation follows congressional intent to cover all workers who, before 1972, could have walked in and out of coverage during any given day[7] *78 Petitioners' position is plainly inconsistent with the language and structure of the 1972 Act The Act, as noted above, contains distinct situs and status requirements The situs test of 3 (a) allows recovery for an injury suffered on navigable waters or certain adjoining areas landward of the Jensen line This test defines the broad geographic coverage of the Act Section 2 (3) restricts the scope of coverage by further requiring that the injured worker must have been engaged in "maritime employment" This section defines the Act's occupational requirements The term "maritime employment" refers to the nature of a worker's activities Thus, 2 (3) uses the phrase "longshorem[e]n or other person[s] engaged in longshoring operations" as one example of workers who engage in maritime employment no matter where they do their job Since 3 (a) already limits the geographic coverage of the Act, 2 (3) need not provide that longshoremen are covered only if they work in certain places The use of the term "maritime employment" in 2 (3), therefore, provides no support for the proposition that the statutory definition of an employee imports a geographic limitation narrower than the one defined in 3 (a)[8] The difficulty with petitioners' position becomes even plainer when their interpretation is applied to a single statutory provision that contains both the status and the situs requirement Section 2 (4), 33 US C 902 (4), defines an "employer" as one "any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States" as broadly defined by 3 (a) *79 If the term "maritime employment" referred only to work that might take employees seaward of the Jensen line, then the broader situs test in the final clause of this section would become virtually superfluous We decline the invitation to construe "maritime employment" so as to create two differing situs requirements in a single sentence By understanding the term "maritime employment" to embody an occupational rather than a geographic concept, we give the two phases in 2 (4) distinct and consistent meanings The discussion of coverage in the legislative history[9] also shows that Congress intended the term "maritime employment" to refer to status rather than situs Committees in both Houses of Congress recognized: "[T]o take a typical example, cargo, whether in break bulk or containerized form, is typically unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters The employees who perform this work would be covered under the bill for injuries sustained by them over the navigable waters or on the adjoining land area The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity Thus, employees whose responsibility is only * to pick up stored cargo for further trans-shipment would not be covered, nor would purely clerical employees whose jobs do not require them to participate in the loading or unloading of cargo"[10] This legislative history discusses workers solely in terms of what they are doing and never in terms of where they are working[11] In adopting an occupational test that focuses on loading and unloading, Congress anticipated that some persons who work only on land would receive benefits under the 1972 Act An obvious example of such a worker is Blundo He was checking and marking cargo from a container that had been removed from a ship and moved overland to another pier before it was opened Without any indication that he ever would be required to set foot on a ship, this Court held that he was covered by the 1972 Act because this type of work was maritime employment Northeast Marine Terminal Co, 432 U S, at 271 Land-based workers who do not handle containerized cargo also may be engaged in loading, unloading, repairing, or building a vessel The Senate Subcommittee on Labor heard testimony that 30%-35% of ship repair work is done on land[12]*81 Furthermore, the usual longshoring crew includes some men whose duties may be carried out solely on the land A typical loading gang consists of persons who move cargo from a warehouse to the side of a ship, frontmen who attach the load to the ship's gear for lifting aboard the vessel, and a hold gang which stores cargo inside the ship[13] Although the workers who carry the cargo to shipside and the frontmen who attach the cargo to the lifting devices need not board a ship to carry out their duties, they are incontestably longshoremen directly engaged in the loading process Even the petitioners concede that some land-based workers are covered by the 1972 Act[14] V The issue in this case thus becomes whether Ford and Bryant are the kind of land-based employees that Congress intended to encompass within the term "maritime employment" Both men engaged in the type of duties that longshoremen perform in transferring goods between ship and land transportation If the cotton that Bryant was unloading had been brought directly from the compress-warehouse to a *82 ship, his task of moving cotton off a dray wagon would have been performed by a longshoreman[15] Similarly, longshoremen— not warehousemen like Ford—would fasten military vehicles onto railroad flatcars if those vehicles went directly from a ship to the railroad cars[16] The only basis for distinguishing Bryant or Ford from longshoremen who otherwise would perform the same work is the point-of-rest theory That is, longshoremen in the Ports of Beaumont and Galveston would have performed the work done by Bryant and Ford had the cargo moved without interruption between land and sea transportation Our unanimous opinion in Northeast Marine Terminal expressly decided that application of the point-of-rest test to define the scope of maritime employment would be contrary to congressional intent Thus, there is no principled basis for distinguishing Ford and Bryant from longshoremen who have been injured while performing the same tasks We believe that 2 (3)'s explicit use of the terms "longshoreman" and "other person engaged in longshoring operations" to describe persons engaged in maritime employment demonstrates that workers doing tasks traditionally performed by longshoremen are within the purview of the 1972 Act We do not suggest that the scope of maritime employment depends upon the vagaries of union jurisdiction 432 US, at 268, n 30 Instead, the crucial factor is the nature of the activity to which a worker may be assigned Persons moving cargo directly from ship to land transportation are engaged in maritime employment at 267, n 28[17] A worker responsible *83 for some portion of that activity is as much an integral part of the process of loading or unloading a ship as a person who participates in the entire process We therefore hold that Ford and Bryant were engaged in maritime employment because they were engaged in intermediate steps of moving cargo between ship and land transportation[18] Our decision serves the intent of Congress in creating the status requirement First, it focuses upon the nature, not the location, of employment Second, it does not extend coverage to all workers in the situs area There is no doubt for example, that neither the driver of the truck carrying cotton to Galveston nor the locomotive engineer transporting military vehicles from Beaumont was engaged in maritime employment even though he was working on the marine situs Such a person's "responsibility is only to pick up stored cargo for further trans-shipment" S Rep No 92-1125, p 13 (1972); H R Rep No 92-1441, p 11 (1972); see Northeast Marine Terminal 432 U S, at 267, 275, n 37 Our decision today also serves the broader congressional purpose of expanding coverage Congress intended to apply a simple, uniform standard of coverage Adoption of the petitioners' test would conflict with that goal, because any individual worker's coverage would depend upon the assignment policies of his employer For example, a land-based worker would be covered if his employer allowed him to alternate assignments with co-workers who work on the water, but he would not be covered if the employer never allowed him to board a ship Congress did not intend the Act's coverage to shift with the employer's whim See id, at 276, n 38 In contrast, a definition *84 of maritime employment that reaches any worker who moves cargo between ship and land transportation will enable both workers and employers to predict with reasonable assurance who on the situs is protected by the 1972 Act Because the Court of Appeals correctly determined that Ford and Bryant were engaged in maritime employment at the time of their injuries, its judgment is Affirmed

Justice Kennedy

majority

Abbott v. Abbott

https://www.courtlistener.com/opinion/146554/abbott-v-abbott/

https://www.courtlistener.com/api/rest/v3/clusters/146554/

2009-048

This case presents, as it has from its inception in the United States District Court, a question of interpretation under the Hague Convention on the Civil Aspects of In­ ternational Child Abduction (Convention), Oct. 24, 1980, T. I. A. S. No. 11670, S. Treaty Doc. No. 99–11. The United States is a contracting state to the Convention; and Congress has implemented its provisions through the International Child Abduction Remedies Act (ICARA), 102 Stat. 437, 42 U.S. C. §11601 et seq. The Convention provides that a child abducted in violation of “rights of custody” must be returned to the child’s country of habit­ ual residence, unless certain exceptions apply. Art. 1, S. Treaty Doc. No. 99–11, at 7 (Treaty Doc.). The question is whether a parent has a “righ[t] of custody” by reason of that parent’s ne exeat right: the authority to consent before the other parent may take the child to another country. I Timothy Abbott and Jacquelyn Vaye Abbott married in England in 1992. He is a British citizen, and she is a citizen of the United States. Mr. Abbott’s astronomy 2 ABBOTT v. ABBOTT Opinion of the Court profession took the couple to Hawaii, where their son A. J. A. was born in 1995. The Abbotts moved to La Serena, Chile, in 2002. There was marital discord, and the parents separated in March 2003. The Chilean courts granted the mother daily care and control of the child, while awarding the father “direct and regular” visitation rights, including visitation every other weekend and for the whole month of February each year. App. 9. Chilean law conferred upon Mr. Abbott what is com­ monly known as a ne exeat right: a right to consent before Ms. Abbott could take A. J. A. out of Chile. See Minors Law 16,618, art. 49 (Chile), App. to Pet. for Cert. 61a (granting a ne exeat right to any parent with visitation rights). In effect a ne exeat right imposes a duty on one parent that is a right in the other. After Mr. Abbott ob­ tained a British passport for A. J. A., Ms. Abbott grew concerned that Mr. Abbott would take the boy to Britain. She sought and obtained a “ne exeat of the minor” order from the Chilean family court, prohibiting the boy from being taken out of Chile. In August 2005, while proceedings before the Chilean court were pending, the mother removed the boy from Chile without permission from either the father or the court. A private investigator located the mother and the child in Texas. In February 2006, the mother filed for divorce in Texas state court. Part of the relief she sought was a modification of the father’s rights, including full power in her to determine the boy’s place of residence and an order limiting the father to supervised visitation in Texas. This litigation remains pending. Mr. Abbott brought an action in Texas state court, asking for visitation rights and an order requiring Ms. Abbott to show cause why the court should not allow Mr. Abbott to return to Chile with A. J. A. In February 2006, the court denied Mr. Abbott’s requested relief but granted him “liberal periods of possession” of A. J. A. throughout Cite as: 560 U. S. ____ (2010) 3 Opinion of the Court February 2006, provided Mr. Abbott remained in Texas. App. 42. In May 2006, Mr. Abbott filed the instant action in the United States District Court for the Western District of Texas. He sought an order requiring his son’s return to Chile pursuant to the Convention and enforcement provi­ sions of the ICARA. In July 2007, after holding a bench trial during which only Mr. Abbott testified, the District Court denied relief. The court held that the father’s ne exeat right did not constitute a right of custody under the Convention and, as a result, that the return remedy was not authorized. 495 F. Supp. 2d 635, 640. The United States Court of Appeals for the Fifth Circuit affirmed on the same rationale. The court held the father possessed no rights of custody under the Convention be­ cause his ne exeat right was only “a veto right over his son’s departure from Chile.” 542 F.3d 1081, 1087 (2008). The court expressed substantial agreement with the Court of Appeals for the Second Circuit in Croll v. Croll, 229 F.3d 133 (2000). Relying on American dictionary defini­ tions of “custody” and noting that ne exeat rights cannot be “ ‘actually exercised’ ” within the meaning of the Conven­ tion, Croll held that ne exeat rights are not rights of cus­ tody. Id., at 138–141 (quoting Art. 3(b), Treaty Doc., at 7). A dissenting opinion in Croll was filed by then-Judge Sotomayor. The dissent maintained that a ne exeat right is a right of custody because it “provides a parent with decisionmaking authority regarding a child’s international relocation.” 229 F.3d, at 146. The Courts of Appeals for the Fourth and Ninth Circuits adopted the conclusion of the Croll majority. See Fawcett v. McRoberts, 326 F.3d 491, 500 (CA4 2003); Gonzalez v. Gutierrez, 311 F.3d 942, 949 (CA9 2002). The Court of Appeals for the Eleventh Circuit has followed the reason­ ing of the Croll dissent. Furnes v. Reeves, 362 F.3d 702, 720, n. 15 (2004). Certiorari was granted to resolve the 4 ABBOTT v. ABBOTT Opinion of the Court conflict. 557 U. S. ___ (2009). II The Convention was adopted in 1980 in response to the problem of international child abductions during domestic disputes. The Convention seeks “to secure the prompt return of children wrongfully removed to or retained in any Contracting State,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Art. 1, Treaty Doc., at 7. The provisions of the Convention of most relevance at the outset of this discussion are as follows: “Article 3: The removal or the retention of the child is to be considered wrongful where— “a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the re­ moval or retention; and “b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. . . . . . “Article 5: For the purposes of this Convention— “a ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence; “b ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence. . . . . . “Article 12: Where a child has been wrongfully re­ Cite as: 560 U. S. ____ (2010) 5 Opinion of the Court moved or retained in terms of Article 3 . . . the author­ ity concerned shall order the return of the child forthwith.” Id., at 7, 9. The Convention’s central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must “order the return of the child forthwith,” unless certain exceptions apply. See, e.g., Arts. 4, 12, ibid. A removal is “wrongful” where the child was removed in violation of “rights of custody.” The Conven­ tion defines “rights of custody” to “include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Art. 5(a), id., at 7. A return remedy does not alter the pre-ab­ duction allocation of custody rights but leaves custodial decisions to the courts of the country of habitual residence. Art. 19, id., at 11. The Convention also recognizes “rights of access,” but offers no return remedy for a breach of those rights. Arts. 5(b), 21, id., at 7, 11. The United States has implemented the Convention through the ICARA. The statute authorizes a person who seeks a child’s return to file a petition in state or federal court and instructs that the court “shall decide the case in accordance with the Convention.” 42 U.S. C. §§11603(a), (b), (d). If the child in question has been “wrongfully removed or retained within the meaning of the Conven­ tion,” the child shall be “promptly returned,” unless an exception is applicable. §11601(a)(4). III As the parties agree, the Convention applies to this dispute. A. J. A. is under 16 years old; he was a habitual resident of Chile; and both Chile and the United States are contracting states. The question is whether A. J. A. was “wrongfully removed” from Chile, in other words, whether he was removed in violation of a right of custody. 6 ABBOTT v. ABBOTT Opinion of the Court This Court’s inquiry is shaped by the text of the Conven­ tion; the views of the United States Department of State; decisions addressing the meaning of “rights of custody” in courts of other contracting states; and the purposes of the Convention. After considering these sources, the Court determines that Mr. Abbott’s ne exeat right is a right of custody under the Convention. A “The interpretation of a treaty, like the interpretation of a statute, begins with its text.” Medellín v. Texas, 552 U.S. 491, 506 (2008). This Court consults Chilean law to determine the content of Mr. Abbott’s right, while follow­ ing the Convention’s text and structure to decide whether the right at issue is a “righ[t] of custody.” Chilean law granted Mr. Abbott a joint right to decide his child’s country of residence, otherwise known as a ne exeat right. Minors Law 16,618, art. 49 (Chile), App. to Pet. for Cert. 61a, 62a, provides that “[o]nce the court has decreed” that one of the parents has visitation rights, that parent’s “authorization . . . shall also be required” before the child may be taken out of the country, subject to court override only where authorization “cannot be granted or is denied without good reason.” Mr. Abbott has “direct and regular” visitation rights and it follows from Chilean law, that he has a shared right to determine his son’s country of residence under this provision. App. 9. To support the conclusion that Mr. Abbott’s right under Chilean law gives him a joint right to decide his son’s country of residence, it is notable that a Chilean agency has explained that Mi­ nors Law 16,618 is a “right to authorize the minors’ exit” from Chile and that this provision means that neither parent can “unilaterally” “establish the [child’s] place of residence.” Letter from Paula Strap Camus, Director General, Corporation of Judicial Assistance of the Region Metropolitana, to National Center for Missing and Ex­ Cite as: 560 U. S. ____ (2010) 7 Opinion of the Court ploited Children (Jan. 17, 2006), App. to Pet. for Cert. in Villegas Duran v. Arribada Beaumont, No. 08–775, pp. 35a–37a, cert. pending. The Convention recognizes that custody rights can be decreed jointly or alone, see Art. 3(a), Treaty Doc., at 7; and Mr. Abbott’s joint right to determine his son’s country of residence is best classified as a joint right of custody, as the Convention defines that term. The Convention defines “rights of custody” to “include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Art. 5(a), ibid. Mr. Abbott’s ne exeat right gives him both the joint “right to determine the child’s place of residence” and joint “rights relating to the care of the person of the child.” Mr. Abbott’s joint right to decide A. J. A.’s country of residence allows him to “determine the child’s place of residence.” The phrase “place of residence” encompasses the child’s country of residence, especially in light of the Convention’s explicit purpose to prevent wrongful removal across international borders. See Convention Preamble, Treaty Doc., at 7. And even if “place of residence” refers only to the child’s street address within a country, a ne exeat right still entitles Mr. Abbott to “determine” that place. “[D]etermine” can mean “[t]o fix conclusively or authoritatively,” Webster’s New International Dictionary 711 (2d ed. 1954) (2d definition), but it can also mean “[t]o set bounds or limits to,” ibid. (1st definition), which is what Mr. Abbott’s ne exeat right allows by ensuring that A. J. A. cannot live at any street addresses outside of Chile. It follows that the Convention’s protection of a parent’s custodial “right to determine the child’s place of residence” includes a ne exeat right. Mr. Abbott’s joint right to determine A. J. A.’s country of residence also gives him “rights relating to the care of the person of the child.” Art. 5(a), Treaty Doc., at 7. Few decisions are as significant as the language the child 8 ABBOTT v. ABBOTT Opinion of the Court speaks, the identity he finds, or the culture and traditions she will come to absorb. These factors, so essential to self­ definition, are linked in an inextricable way to the child’s country of residence. One need only consider the different childhoods an adolescent will experience if he or she grows up in the United States, Chile, Germany, or North Korea, to understand how choosing a child’s country of residence is a right “relating to the care of the person of the child.” The Court of Appeals described Mr. Abbott’s right to take part in making this decision as a mere “veto,” 542 F.3d, at 1087; but even by that truncated description, the father has an essential role in deciding the boy’s country of resi­ dence. For example, Mr. Abbott could condition his con­ sent to a change in country on A. J. A.’s moving to a city outside Chile where Mr. Abbott could obtain an astronomy position, thus allowing the father to have continued con­ tact with the boy. That a ne exeat right does not fit within traditional notions of physical custody is beside the point. The Con­ vention defines “rights of custody,” and it is that definition that a court must consult. This uniform, text-based ap­ proach ensures international consistency in interpreting the Convention. It forecloses courts from relying on defi­ nitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrange­ ments in other countries or in different legal traditions, including the civil-law tradition. And, in any case, our own legal system has adopted conceptions of custody that accord with the Convention’s broad definition. Joint legal custody, in which one parent cares for the child while the other has joint decisionmaking authority concerning the child’s welfare, has become increasingly common. See Singer, Dispute Resolution and the Postdivorce Family: Implications of a Paradigm Shift, 47 Family Ct. Rev. 363, 366 (2009) (“[A] recent study of child custody outcomes in North Carolina indicated that almost 70% of all custody Cite as: 560 U. S. ____ (2010) 9 Opinion of the Court resolutions included joint legal custody, as did over 90% of all mediated custody agreements”); E. Maccoby & R. Mnookin, Dividing the Child: Social and Legal Dilemmas of Custody 107 (1992) (“[F]or 79% of our entire sample, the [California] divorce decree provided for joint legal cus­ tody”); see generally Elrod, Reforming the System to Pro­ tect Children in High Conflict Custody Cases, 28 Wm. Mitchell L. Rev. 495, 505–508 (2001). Ms. Abbott gets the analysis backwards in claiming that a ne exeat right is not a right of custody because the Con­ vention requires that any right of custody must be capable of exercise. The Convention protects rights of custody when “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” Art. 3(b), Treaty Doc., at 7. In cases like this one, a ne exeat right is by its nature inchoate and so has no operative force except when the other parent seeks to remove the child from the country. If that occurs, the parent can exercise the ne exeat right by declining consent to the exit or placing conditions to ensure the move will be in the child’s best interests. When one parent removes the child without seeking the ne exeat holder’s consent, it is an instance where the right would have been “exercised but for the removal or retention.” Ibid. The Court of Appeals’ conclusion that a breach of a ne exeat right does not give rise to a return remedy would render the Convention meaningless in many cases where it is most needed. The Convention provides a return remedy when a parent takes a child across international borders in violation of a right of custody. The Convention provides no return remedy when a parent removes a child in violation of a right of access but requires contracting states “to promote the peaceful enjoyment of access rights.” Art. 21, id., at 11. For example, a court may force the custodial parent to pay the travel costs of visitation, 10 ABBOTT v. ABBOTT Opinion of the Court see, e.g., Viragh v. Foldes, 415 Mass. 96, 109–111, 612 N.E.2d 241, 249–250 (1993), or make other provisions for the noncustodial parent to visit his or her child, see §11603(b) (authorizing petitions to “secur[e] the effective exercise of rights of access to a child”). But unlike rights of access, ne exeat rights can only be honored with a return remedy because these rights depend on the child’s location being the country of habitual residence. Any suggestion that a ne exeat right is a “righ[t] of access” is illogical and atextual. The Convention defines “rights of access” as “includ[ing] the right to take a child for a limited period of time to a place other than the child’s habitual residence,” Art. 5(b), Treaty Doc., at 7, and ICARA defines that same term as “visitation rights,” §11602(7). The joint right to decide a child’s country of residence is not even arguably a “right to take a child for a limited period of time” or a “visitation righ[t].” Reaching the commonsense conclusion that a ne exeat right does not fit these definitions of “rights of access” honors the Con­ vention’s distinction between rights of access and rights of custody. Ms. Abbott argues that the ne exeat order in this case cannot create a right of custody because it merely protects a court’s jurisdiction over the child. Even if this argument were correct, it would not be dispositive. Ms. Abbott contends the Chilean court’s ne exeat order contains no parental consent provision and so awards the father no rights, custodial or otherwise. See Brief for Respondent 22; but see 495 F. Supp. 2d, at 638, n. 3 (the District Court treating the order as containing a consent provision); 542 F.3d, at 1084 (same for the Court of Appeals). Even a ne exeat order issued to protect a court’s jurisdiction pend­ ing issuance of further decrees is consistent with allowing a parent to object to the child’s removal from the country. This Court need not decide the status of ne exeat orders lacking parental consent provisions, however; for here the Cite as: 560 U. S. ____ (2010) 11 Opinion of the Court father relies on his rights under Minors Law 16,618. Mr. Abbott’s rights derive not from the order but from Minors Law 16,618. That law requires the father’s consent before the mother can remove the boy from Chile, subject only to the equitable power family courts retain to override any joint custodial arrangements in times of disagreement. Minors Law 16,618; see 1 J. Atkinson, Modern Child Custody Practice §6–11 (2d ed. 2009) (“[T]he court remains the final arbiter and may resolve the [dispute between joint custodians] itself or designate one parent as having final authority on certain issues affecting the child”); Lombardo v. Lombardo, 202 Mich. App. 151, 159, 507 N.W.2d 788, 792 (1993) (“[W]here the parents as joint custodians cannot agree on important matters such as education, it is the court’s duty to determine the issue in the best interests of the child”). The consent provision in Minors Law 16,618 confers upon the father the joint right to determine his child’s country of residence. This is a right of custody under the Convention. B This Court’s conclusion that Mr. Abbott possesses a right of custody under the Convention is supported and informed by the State Department’s view on the issue. The United States has endorsed the view that ne exeat rights are rights of custody. In its brief before this Court the United States advises that “the Department of State, whose Office of Children’s Issues serves as the Central Authority for the United States under the Convention, has long understood the Convention as including ne exeat rights among the protected ‘rights of custody.’ ” Brief for United States as Amicus Curiae 21; see Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184–185, n. 10 (1982) (deferring to the Executive’s interpretation of a treaty as memorialized in a brief before this Court). It is well settled that the Executive Branch’s interpretation of 12 ABBOTT v. ABBOTT Opinion of the Court a treaty “is entitled to great weight.” Id., at 185. There is no reason to doubt that this well-established canon of deference is appropriate here. The Executive is well in­ formed concerning the diplomatic consequences resulting from this Court’s interpretation of “rights of custody,” including the likely reaction of other contracting states and the impact on the State Department’s ability to re­ claim children abducted from this country. C This Court’s conclusion that ne exeat rights are rights of custody is further informed by the views of other contract­ ing states. In interpreting any treaty, “[t]he ‘opinions of our sister signatories’ . . . are ‘entitled to considerable weight.’ ” El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999) (quoting Air France v. Saks, 470 U.S. 392, 404 (1985)). The principle applies with special force here, for Congress has directed that “uniform inter­ national interpretation of the Convention” is part of the Convention’s framework. See §11601(b)(3)(B). A review of the international case law confirms broad acceptance of the rule that ne exeat rights are rights of custody. In an early decision, the English High Court of Justice explained that a father’s “right to ensure that the child remain[ed] in Australia or live[d] anywhere outside Australia only with his approval” is a right of custody requiring return of the child to Australia. C. v. C., [1989] 1 W. L. R. 654, 658 (C. A.). Lords of the House of Lords have agreed, noting that C. v. C.’s conclusion is “settled, so far as the United Kingdom is concerned” and “appears to be the majority [view] of the common law world.” See In re D (A Child), [2007] 1 A. C. 619, 628, 633, 635 (2006). The Supreme Court of Israel follows the same rule, concluding that “the term ‘custody’ should be interpreted in an expansive way, so that it will apply [i]n every case in which there is a need for the consent of one of the parents Cite as: 560 U. S. ____ (2010) 13 Opinion of the Court to remove the children from one country to another.” CA 5271/92 Foxman v. Foxman, [1992], §§3(D), 4 (K. Chagall transl.). The High Courts of Austria, South Africa, and Germany are in accord. See Oberster Gerichtshof [O. G. H.] [Supreme Court] Feb. 5, 1992, 2 Ob 596/91 (Austria) (“Since the English Custody Court had ordered that the children must not be removed from England and Wales without the father’s written consent, both parents had, in effect, been granted joint custody concerning the children’s place of residence”); Sonderup v. Tondelli, 2001(1) SA 1171, 1183 (Constitutional Ct. of South Africa 2000) (“[The mother’s] failure to return to British Colum­ bia with the child . . . was a breach of the conditions upon which she was entitled to exercise her rights of custody and . . . therefore constituted a wrongful retention . . . as contemplated by [Article 3] of the Convention”); Bundes­ verfassungsgericht [BVerfG] [Federal Constitutional Court of Germany] July 18, 1997, 2 BvR 1126/97, ¶15 (the Convention requires a return remedy for a violation of the “right to have a say in the child’s place of residence”). Appellate courts in Australia and Scotland agree. See In the Marriage of Resina [1991] FamCA 33 (Austl., May 22, 1991), ¶¶18–27; A. J. v. F. J., [2005] CSIH 36, 2005 1 S. C. 428, 435–436. It is true that some courts have stated a contrary view, or at least a more restrictive one. The Canadian Supreme Court has said ne exeat orders are “usually intended” to protect access rights. Thomson v. Thomson, [1994] 3 S. C. R. 551, 589–590, 119 Dall. L. R. (4th) 253, 281; see D. S. v. V. W., [1996] 2 S. C. R. 108, 134 Dall. L. R. (4th) 481. But the Canadian cases are not precisely on point here. Thomson ordered a return remedy based on an interim ne exeat order, and only noted in dicta that it may not order such a remedy pursuant to a permanent ne exeat order. See [1994] 3 S. C. R., at 589–590, 119 Dall. L. R. (4th), at 281. D. S. involved a parent’s claim based on an im­ 14 ABBOTT v. ABBOTT Opinion of the Court plicit ne exeat right and, in any event, the court ordered a return remedy on a different basis. See [1996] 2 S. C. R., at 140–141, 142, 134 Dall. L. R. (4th), at 503–504, 505. French courts are divided. A French Court of Appeals held that “the right to accept or refuse the removal of the children’s residence” outside of a region was “a joint exer­ cise of rights of custody.” Public Ministry v. M. B., [CA] Aix-en-Provence, 6e ch., Mar. 23, 1989, Rev. crit. dr. inter­ nat. Privé 79(3), July–Sept. 1990, 529, 533–535. A trial court in a different region of France rejected this view, relying on the mother’s “fundamental liberty” to establish her domicil. See Attorney for the Republic at Périgueux v. Mrs. S., [T. G. I.] Périgueux, Mar. 17, 1992, Rev. cr. dr. internat. Privé 82(4) Oct.–Dec. 1993, 650, 651–653, note Bertrand Ancel, D. 1992, note G. C. Scholars agree that there is an emerging international consensus that ne exeat rights are rights of custody, even if that view was not generally formulated when the Conven­ tion was drafted in 1980. At that time, joint custodial arrangements were unknown in many of the contracting states, and the status of ne exeat rights was not yet well understood. See 1980 Conférence de La Haye de droit international privé, Enlèvement d’enfants, morning meet­ ing of Wed., Oct. 8, 1980 (discussion by Messrs. Leal & van Boeschoten), in 3 Actes et Documents de la Quatorzième session, pp. 263–266 (1982) (Canadian and Dutch dele­ gates disagreeing whether the Convention protected ne exeat rights, while agreeing that it should protect such rights). Since 1980, however, joint custodial arrange­ ments have become more common. See supra, at 8–9. And, within this framework, most contracting states and scholars now recognize that ne exeat rights are rights of custody. See, e.g., Hague Conference on Private Interna­ tional Law: Transfrontier Contact Concerning Children: General Principles and Guide to Good Practice §9.3, p. 43 (2008) (“[P]reponderance of the case law supports the Cite as: 560 U. S. ____ (2010) 15 Opinion of the Court view” that ne exeat rights are “rights of custody” (footnote omitted)); Hague Conference on Private International Law: Overall Conclusions of the Special Commission of Oct. 1989 on the Operation of the Hague Convention of 25 Oct. 1980 on the Civil Aspects of International Child Abduction, reprinted in 29 I. L. M. 219, 222, ¶9 (1990); Hague Conference on Private International Law: Report of the Second Special Commission Meeting to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction 11 (1993), reprinted in 33 I. L. M. 225 (1994); Silberman, The Hague Child Abduc­ tion Convention Turns Twenty: Gender Politics and Other Issues, 33 N. Y. U. J. Int’l L. & Pol. 221, 226–232, and n. 13 (2000); Whitman, Croll v. Croll: The Second Circuit Limits “Custody Rights” Under the Hague Convention on the Civil Aspects of International Child Abduction, 9 Tulane J. Int’l & Comp. L. 605, 611–616 (2001). A history of the Convention, known as the Pérez-Vera Report, has been cited both by the parties and by Courts of Appeals that have considered this issue. See 1980 Con­ férence de La Haye de droit international privé, Enlève­ ment d’enfants, E. Pérez-Vera, Explanatory Report (Pérez- Vera Report or Report), in 3 Actes et Documents de la Quatorzième session, pp. 425–473 (1982). We need not decide whether this Report should be given greater weight than a scholarly commentary. Compare Hague Interna­ tional Child Abduction Convention; Text and Legal Analy­ sis, 51 Fed. Reg. 10503–10506 (1986) (identifying the Report as the “official history” of the Convention and “a source of background on the meaning of the provisions of the Convention”), with Pérez-Vera Report ¶8, at 427–428 (“[the Report] has not been approved by the Conference, and it is possible that, despite the Rapporter’s [sic] efforts to remain objective, certain passages reflect a viewpoint which is in part subjective”). It suffices to note that the Report supports the conclusion that ne exeat rights are 16 ABBOTT v. ABBOTT Opinion of the Court rights of custody. The Report explains that rather than defining custody in precise terms or referring to the laws of different nations pertaining to parental rights, the Convention uses the unadorned term “rights of custody” to recognize “all the ways in which custody of children can be exercised” through “a flexible interpretation of the terms used, which allows the greatest possible number of cases to be brought into consideration.” Id., ¶¶67, 71, at 446, 447–448. Thus the Report rejects the notion that because ne exeat rights do not encompass the right to make medi­ cal or some other important decisions about a child’s life they cannot be rights of custody. Indeed, the Report is fully consistent with the conclusion that ne exeat rights are just one of the many “ways in which custody of chil­ dren can be exercised.” Id., ¶ 71, at 447. D Adopting the view that the Convention provides a re­ turn remedy for violations of ne exeat rights accords with its objects and purposes. The Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence. See Convention Preamble, Treaty Doc., at 7. Ordering a return remedy does not alter the existing allocation of custody rights, Art. 19, id., at 11, but does allow the courts of the home coun­ try to decide what is in the child’s best interests. It is the Convention’s premise that courts in contracting states will make this determination in a responsible manner. Custody decisions are often difficult. Judges must strive always to avoid a common tendency to prefer their own society and culture, a tendency that ought not interfere with objective consideration of all the factors that should be weighed in determining the best interests of the child. This judicial neutrality is presumed from the mandate of the Convention, which affirms that the contracting states Cite as: 560 U. S. ____ (2010) 17 Opinion of the Court are “[f]irmly convinced that the interests of children are of paramount importance in matters relating to their cus­ tody.” Convention Preamble, Treaty Doc., at 7. Interna­ tional law serves a high purpose when it underwrites the determination by nations to rely upon their domes­ tic courts to enforce just laws by legitimate and fair proceedings. To interpret the Convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, would run counter to the Convention’s purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes. Ms. Abbott removed A. J. A. from Chile while Mr. Abbott’s request to enhance his relation­ ship with his son was still pending before Chilean courts. After she landed in Texas, the mother asked the state court to diminish or eliminate the father’s custodial and visitation rights. The Convention should not be inter­ preted to permit a parent to select which country will adjudicate these questions by bringing the child to a dif­ ferent country, in violation of a ne exeat right. Denying a return remedy for the violation of such rights would “le­ gitimize the very action—removal of the child—that the home country, through its custody order [or other provi­ sion of law], sought to prevent” and would allow “parents to undermine the very purpose of the Convention.” Croll, 229 F.3d, at 147 (Sotomayor, J., dissenting). This Court should be most reluctant to adopt an interpretation that gives an abducting parent an advantage by coming here to avoid a return remedy that is granted, for instance, in the United Kingdom, Israel, Germany, and South Africa. See supra, at 12–13. Requiring a return remedy in cases like this one helps deter child abductions and respects the Convention’s purpose to prevent harms resulting from abductions. An abduction can have devastating consequences for a child. 18 ABBOTT v. ABBOTT Opinion of the Court “Some child psychologists believe that the trauma children suffer from these abductions is one of the worst forms of child abuse.” H. R. Rep. No. 103–390, p. 2 (1993). A child abducted by one parent is separated from the second parent and the child’s support system. Studies have shown that separation by abduction can cause psychologi­ cal problems ranging from depression and acute stress disorder to posttraumatic stress disorder and identity­ formation issues. See N. Faulkner, Parental Child Abduc­ tion is Child Abuse (1999), http://www.prevent-abuse­ now.com/unreport.htm (as visited May 13, 2010, and available in Clerk of Court’s case file). A child abducted at an early age can experience loss of community and stabil­ ity, leading to loneliness, anger, and fear of abandonment. See Huntington, Parental Kidnapping: A New Form of Child Abuse (1982), in American Prosecutors Research Institute’s National Center for Prosecution of Child Abuse, Parental Abduction Project, Investigation and Prosecution of Parental Abduction (1995) (App. A). Abductions may prevent the child from forming a relationship with the left­ behind parent, impairing the child’s ability to mature. See Faulkner, supra, at 5. IV While a parent possessing a ne exeat right has a right of custody and may seek a return remedy, a return order is not automatic. Return is not required if the abducting parent can establish that a Convention exception applies. One exception states return of the child is not required when “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Art. 13(b), Treaty Doc., at 10. If, for example, Ms. Abbott could demonstrate that returning to Chile would put her own safety at grave risk, the court could consider whether this is sufficient to show that the child too would suffer “psy­ Cite as: 560 U. S. ____ (2010) 19 Opinion of the Court chological harm” or be placed “in an intolerable situation.” See, e.g., Baran v. Beaty, 526 F.3d 1340, 1352–1353 (CA11 2008); Walsh v. Walsh, 221 F.3d 204, 220–221 (CA1 2000). The Convention also allows courts to decline to order removal if the child objects, if the child has reached a sufficient “age and degree of maturity at which it is appropriate to take account of its views.” Art. 13(b), Treaty Doc., at 10. The proper interpretation and applica­ tion of these and other exceptions are not before this Court. These matters may be addressed on remand. * * * 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. Cite as: 560 U. S. ____ (2010) 1 STEVENS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 08–645 _________________ TIMOTHY MARK CAMERON ABBOTT, PETITIONER v.

This case presents, as it has from its inception in the United States District Court, a question of interpretation under the Hague Convention on the Civil Aspects of In­ ternational Child Abduction (Convention), Oct. 24, 1980, T. I. A. S. No. 11670, S. Treaty Doc. No. 99–11. The United States is a contracting state to the Convention; and Congress has implemented its provisions through the International Child Abduction Remedies Act (ICARA), 102 Stat. 437, 42 U.S. C. et seq. The Convention provides that a child abducted in violation of “rights of custody” must be returned to the child’s country of habit­ ual residence, unless certain exceptions apply. Art. 1, S. Treaty Doc. No. 99–11, (Treaty Doc.). The question is whether a parent has a “righ[t] of custody” by reason of that parent’s ne exeat right: the authority to consent before the other parent may take the child to another country. I Timothy Abbott and Jacquelyn Vaye Abbott married in England in 1992. He is a British citizen, and she is a citizen of the United States. Mr. Abbott’s astronomy 2 ABBOTT v. ABBOTT Opinion of the Court profession took the couple to Hawaii, where their son A. J. A. was born in 1995. The Abbotts moved to La Serena, Chile, in There was marital discord, and the parents separated in March The Chilean courts granted the mother daily care and control of the child, while awarding the father “direct and regular” visitation rights, including visitation every other weekend and for the whole month of February each year. App. 9. Chilean law conferred upon Mr. Abbott what is com­ monly known as a ne exeat right: a right to consent before Ms. Abbott could take A. J. A. out of Chile. See Minors Law 16,618, art. 49 (Chile), App. to Pet. for Cert. 61a (granting a ne exeat right to any parent with visitation rights). In effect a ne exeat right imposes a duty on one parent that is a right in the other. After Mr. Abbott ob­ tained a British passport for A. J. A., Ms. Abbott grew concerned that Mr. Abbott would take the boy to Britain. She sought and obtained a “ne exeat of the minor” order from the Chilean family court, prohibiting the boy from being taken out of Chile. In August 2005, while proceedings before the Chilean court were pending, the mother removed the boy from Chile without permission from either the father or the court. A private investigator located the mother and the child in Texas. In February 2006, the mother filed for divorce in Texas state court. Part of the relief she sought was a modification of the father’s rights, including full power in her to determine the boy’s place of residence and an order limiting the father to supervised visitation in Texas. This litigation remains pending. Mr. Abbott brought an action in Texas state court, asking for visitation rights and an order requiring Ms. Abbott to show cause why the court should not allow Mr. Abbott to return to Chile with A. J. A. In February 2006, the court denied Mr. Abbott’s requested relief but granted him “liberal periods of possession” of A. J. A. throughout Cite as: 560 U. S. (2010) 3 Opinion of the Court February 2006, provided Mr. Abbott remained in Texas. App. 42. In May 2006, Mr. Abbott filed the instant action in the United States District Court for the Western District of Texas. He sought an order requiring his son’s return to Chile pursuant to the Convention and enforcement provi­ sions of the ICARA. In July 2007, after holding a bench trial during which only Mr. Abbott testified, the District Court denied relief. The court held that the father’s ne exeat right did not constitute a right of custody under the Convention and, as a result, that the return remedy was not authorized. The United States Court of Appeals for the Fifth Circuit affirmed on the same rationale. The court held the father possessed no rights of custody under the Convention be­ cause his ne exeat right was only “a veto right over his son’s departure from Chile.” The court expressed substantial agreement with the Court of Appeals for the Second Circuit in Croll v. Croll, 229 F.3d 133 (2000). Relying on American dictionary defini­ tions of “custody” and noting that ne exeat rights cannot be “ ‘actually exercised’ ” within the meaning of the Conven­ tion, Croll held that ne exeat rights are not rights of cus­ tody. at 138–141 (quoting Art. 3(b), Treaty Doc., ). A dissenting opinion in Croll was filed by then-Judge Sotomayor. The dissent maintained that a ne exeat right is a right of custody because it “provides a parent with decisionmaking authority regarding a child’s international relocation.” The Courts of Appeals for the Fourth and Ninth Circuits adopted the conclusion of the Croll majority. See Fawcett v. McRoberts, ; Gonzalez v. Gutierrez, The Court of Appeals for the Eleventh Circuit has followed the reason­ ing of the Croll dissent. 720, n. 15 (2004). Certiorari was granted to resolve the 4 ABBOTT v. ABBOTT Opinion of the Court conflict. 557 U. S. (2009). II The Convention was adopted in 1980 in response to the problem of international child abductions during domestic disputes. The Convention seeks “to secure the prompt return of children wrongfully removed to or retained in any Contracting State,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Art. 1, Treaty Doc., The provisions of the Convention of most relevance at the outset of this discussion are as follows: “Article 3: The removal or the retention of the child is to be considered wrongful where— “a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the re­ moval or retention; and “b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. “Article 5: For the purposes of this Convention— “a ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence; “b ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence. “Article 12: Where a child has been wrongfully re­ Cite as: 560 U. S. (2010) 5 Opinion of the Court moved or retained in terms of Article 3 the author­ ity concerned shall order the return of the child forthwith.” The Convention’s central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must “order the return of the child forthwith,” unless certain exceptions apply. See, e.g., Arts. 4, 12, A removal is “wrongful” where the child was removed in violation of “rights of custody.” The Conven­ tion defines “rights of custody” to “include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Art. 5(a), A return remedy does not alter the pre-ab­ duction allocation of custody rights but leaves custodial decisions to the courts of the country of habitual residence. Art. 19, The Convention also recognizes “rights of access,” but offers no return remedy for a breach of those rights. Arts. 5(b), 21, 11. The United States has implemented the Convention through the ICARA. The statute authorizes a person who seeks a child’s return to file a petition in state or federal court and instructs that the court “shall decide the case in accordance with the Convention.” 42 U.S. C. (b), (d). If the child in question has been “wrongfully removed or retained within the meaning of the Conven­ tion,” the child shall be “promptly returned,” unless an exception is applicable. (a)(4). III As the parties agree, the Convention applies to this dispute. A. J. A. is under 16 years old; he was a habitual resident of Chile; and both Chile and the United States are contracting states. The question is whether A. J. A. was “wrongfully removed” from Chile, in other words, whether he was removed in violation of a right of custody. 6 ABBOTT v. ABBOTT Opinion of the Court This Court’s inquiry is shaped by the text of the Conven­ tion; the views of the United States Department of State; decisions addressing the meaning of “rights of custody” in courts of other contracting states; and the purposes of the Convention. After considering these sources, the Court determines that Mr. Abbott’s ne exeat right is a right of custody under the Convention. A “The interpretation of a treaty, like the interpretation of a statute, begins with its text.” Medellín v. Texas, 552 U.S. 491, 506 This Court consults Chilean law to determine the content of Mr. Abbott’s right, while follow­ ing the Convention’s text and structure to decide whether the right at issue is a “righ[t] of custody.” Chilean law granted Mr. Abbott a joint right to decide his child’s country of residence, otherwise known as a ne exeat right. Minors Law 16,618, art. 49 (Chile), App. to Pet. for Cert. 61a, 62a, provides that “[o]nce the court has decreed” that one of the parents has visitation rights, that parent’s “authorization shall also be required” before the child may be taken out of the country, subject to court override only where authorization “cannot be granted or is denied without good reason.” Mr. Abbott has “direct and regular” visitation rights and it follows from Chilean law, that he has a shared right to determine his son’s country of residence under this provision. App. 9. To support the conclusion that Mr. Abbott’s right under Chilean law gives him a joint right to decide his son’s country of residence, it is notable that a Chilean agency has explained that Mi­ nors Law 16,618 is a “right to authorize the minors’ exit” from Chile and that this provision means that neither parent can “unilaterally” “establish the [child’s] place of residence.” Letter from Paula Strap Camus, Director General, Corporation of Judicial Assistance of the Region Metropolitana, to National Center for Missing and Ex­ Cite as: 560 U. S. (2010) 7 Opinion of the Court ploited Children (Jan. 17, 2006), App. to Pet. for Cert. in Villegas Duran v. Arribada Beaumont, No. 08–775, pp. 35a–37a, cert. pending. The Convention recognizes that custody rights can be decreed jointly or alone, see Art. 3(a), Treaty Doc., ; and Mr. Abbott’s joint right to determine his son’s country of residence is best classified as a joint right of custody, as the Convention defines that term. The Convention defines “rights of custody” to “include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Art. 5(a), Mr. Abbott’s ne exeat right gives him both the joint “right to determine the child’s place of residence” and joint “rights relating to the care of the person of the child.” Mr. Abbott’s joint right to decide A. J. A.’s country of residence allows him to “determine the child’s place of residence.” The phrase “place of residence” encompasses the child’s country of residence, especially in light of the Convention’s explicit purpose to prevent wrongful removal across international borders. See Convention Preamble, Treaty Doc., And even if “place of residence” refers only to the child’s street address within a country, a ne exeat right still entitles Mr. Abbott to “determine” that place. “[D]etermine” can mean “[t]o fix conclusively or authoritatively,” Webster’s New International Dictionary 711 (2d ed. 1954) (2d definition), but it can also mean “[t]o set bounds or limits to,” which is what Mr. Abbott’s ne exeat right allows by ensuring that A. J. A. cannot live at any street addresses outside of Chile. It follows that the Convention’s protection of a parent’s custodial “right to determine the child’s place of residence” includes a ne exeat right. Mr. Abbott’s joint right to determine A. J. A.’s country of residence also gives him “rights relating to the care of the person of the child.” Art. 5(a), Treaty Doc., Few decisions are as significant as the language the child 8 ABBOTT v. ABBOTT Opinion of the Court speaks, the identity he finds, or the culture and traditions she will come to absorb. These factors, so essential to self­ definition, are linked in an inextricable way to the child’s country of residence. One need only consider the different childhoods an adolescent will experience if he or she grows up in the United States, Chile, Germany, or North Korea, to understand how choosing a child’s country of residence is a right “relating to the care of the person of the child.” The Court of Appeals described Mr. Abbott’s right to take part in making this decision as a mere “veto,” 542 F.3d, at ; but even by that truncated description, the father has an essential role in deciding the boy’s country of resi­ dence. For example, Mr. Abbott could condition his con­ sent to a change in country on A. J. A.’s moving to a city outside Chile where Mr. Abbott could obtain an astronomy position, thus allowing the father to have continued con­ tact with the boy. That a ne exeat right does not fit within traditional notions of physical custody is beside the point. The Con­ vention defines “rights of custody,” and it is that definition that a court must consult. This uniform, text-based ap­ proach ensures international consistency in interpreting the Convention. It forecloses courts from relying on defi­ nitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrange­ ments in other countries or in different legal traditions, including the civil-law tradition. And, in any case, our own legal system has adopted conceptions of custody that accord with the Convention’s broad definition. Joint legal custody, in which one parent cares for the child while the other has joint decisionmaking authority concerning the child’s welfare, has become increasingly common. See Singer, Dispute Resolution and the Postdivorce Family: Implications of a Paradigm Shift, 47 Family Ct. Rev. 363, 366 (2009) (“[A] recent study of child custody outcomes in North Carolina indicated that almost 70% of all custody Cite as: 560 U. S. (2010) 9 Opinion of the Court resolutions included joint legal custody, as did over 90% of all mediated custody agreements”); E. Maccoby & R. Mnookin, Dividing the Child: Social and Legal Dilemmas of Custody 107 (1992) (“[F]or 79% of our entire sample, the [California] divorce decree provided for joint legal cus­ tody”); see generally Elrod, Reforming the System to Pro­ tect Children in High Conflict Custody Cases, 28 Wm. Mitchell L. Rev. 495, 505–508 (2001). Ms. Abbott gets the analysis backwards in claiming that a ne exeat right is not a right of custody because the Con­ vention requires that any right of custody must be capable of exercise. The Convention protects rights of custody when “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” Art. 3(b), Treaty Doc., In cases like this one, a ne exeat right is by its nature inchoate and so has no operative force except when the other parent seeks to remove the child from the country. If that occurs, the parent can exercise the ne exeat right by declining consent to the exit or placing conditions to ensure the move will be in the child’s best interests. When one parent removes the child without seeking the ne exeat holder’s consent, it is an instance where the right would have been “exercised but for the removal or retention.” The Court of Appeals’ conclusion that a breach of a ne exeat right does not give rise to a return remedy would render the Convention meaningless in many cases where it is most needed. The Convention provides a return remedy when a parent takes a child across international borders in violation of a right of custody. The Convention provides no return remedy when a parent removes a child in violation of a right of access but requires contracting states “to promote the peaceful enjoyment of access rights.” Art. 21, For example, a court may force the custodial parent to pay the travel costs of visitation, 10 ABBOTT v. ABBOTT Opinion of the Court see, e.g., 109–111, 612 N.E.2d 241, 249–250 (1993), or make other provisions for the noncustodial parent to visit his or her child, see (authorizing petitions to “secur[e] the effective exercise of rights of access to a child”). But unlike rights of access, ne exeat rights can only be honored with a return remedy because these rights depend on the child’s location being the country of habitual residence. Any suggestion that a ne exeat right is a “righ[t] of access” is illogical and atextual. The Convention defines “rights of access” as “includ[ing] the right to take a child for a limited period of time to a place other than the child’s habitual residence,” Art. 5(b), Treaty Doc., and ICARA defines that same term as “visitation rights,” The joint right to decide a child’s country of residence is not even arguably a “right to take a child for a limited period of time” or a “visitation righ[t].” Reaching the commonsense conclusion that a ne exeat right does not fit these definitions of “rights of access” honors the Con­ vention’s distinction between rights of access and rights of custody. Ms. Abbott argues that the ne exeat order in this case cannot create a right of custody because it merely protects a court’s jurisdiction over the child. Even if this argument were correct, it would not be dispositive. Ms. Abbott contends the Chilean court’s ne exeat order contains no parental consent provision and so awards the father no rights, custodial or otherwise. See Brief for Respondent 22; but see n. 3 (the District Court treating the order as containing a consent provision); 542 F.3d, at 1084 (same for the Court of Appeals). Even a ne exeat order issued to protect a court’s jurisdiction pend­ ing issuance of further decrees is consistent with allowing a parent to object to the child’s removal from the country. This Court need not decide the status of ne exeat orders lacking parental consent provisions, however; for here the Cite as: 560 U. S. (2010) 11 Opinion of the Court father relies on his rights under Minors Law 16,618. Mr. Abbott’s rights derive not from the order but from Minors Law 16,618. That law requires the father’s consent before the mother can remove the boy from Chile, subject only to the equitable power family courts retain to override any joint custodial arrangements in times of disagreement. Minors Law 16,618; see 1 J. Atkinson, Modern Child Custody Practice (2d ed. 2009) (“[T]he court remains the final arbiter and may resolve the [dispute between joint custodians] itself or designate one parent as having final authority on certain issues affecting the child”); N.W.2d 788, 792 (1993) (“[W]here the parents as joint custodians cannot agree on important matters such as education, it is the court’s duty to determine the issue in the best interests of the child”). The consent provision in Minors Law 16,618 confers upon the father the joint right to determine his child’s country of residence. This is a right of custody under the Convention. B This Court’s conclusion that Mr. Abbott possesses a right of custody under the Convention is supported and informed by the State Department’s view on the issue. The United States has endorsed the view that ne exeat rights are rights of custody. In its brief before this Court the United States advises that “the Department of State, whose Office of Children’s Issues serves as the Central Authority for the United States under the Convention, has long understood the Convention as including ne exeat rights among the protected ‘rights of custody.’ ” Brief for United States as Amicus Curiae 21; see Sumitomo Shoji America, 184–185, n. 10 (1982) (deferring to the Executive’s interpretation of a treaty as memorialized in a brief before this Court). It is well settled that the Executive Branch’s interpretation of 12 ABBOTT v. ABBOTT Opinion of the Court a treaty “is entitled to great weight.” There is no reason to doubt that this well-established canon of deference is appropriate here. The Executive is well in­ formed concerning the diplomatic consequences resulting from this Court’s interpretation of “rights of custody,” including the likely reaction of other contracting states and the impact on the State Department’s ability to re­ claim children abducted from this country. C This Court’s conclusion that ne exeat rights are rights of custody is further informed by the views of other contract­ ing states. In interpreting any treaty, “[t]he ‘opinions of our sister signatories’ are ‘entitled to considerable weight.’ ” El Al Israel Airlines, (quoting Air France v. Saks, 470 U.S. 392, 404 (1985)). The principle applies with special force here, for Congress has directed that “uniform inter­ national interpretation of the Convention” is part of the Convention’s framework. See (b)(3)(B). A review of the international case law confirms broad acceptance of the rule that ne exeat rights are rights of custody. In an early decision, the English High Court of Justice explained that a father’s “right to ensure that the child remain[ed] in Australia or live[d] anywhere outside Australia only with his approval” is a right of custody requiring return of the child to Australia. C. v. C., [1989] 1 W. L. R. 654, 658 (C. A.). Lords of the House of Lords have agreed, noting that C. v. C.’s conclusion is “settled, so far as the United Kingdom is concerned” and “appears to be the majority [view] of the common law world.” See In re D (A Child), [2007] 1 A. C. 619, 628, 633, 635 (2006). The Supreme Court of Israel follows the same rule, concluding that “the term ‘custody’ should be interpreted in an expansive way, so that it will apply [i]n every case in which there is a need for the consent of one of the parents Cite as: 560 U. S. (2010) 13 Opinion of the Court to remove the children from one country to another.” CA 5271/92 Foxman v. Foxman, [1992], 4 (K. Chagall transl.). The High Courts of Austria, South Africa, and Germany are in accord. See Oberster Gerichtshof [O. G. H.] [Supreme Court] Feb. 5, 1992, 2 Ob 596/91 (Austria) (“Since the English Custody Court had ordered that the children must not be removed from England and Wales without the father’s written consent, both parents had, in effect, been granted joint custody concerning the children’s place of residence”); Sonderup v. Tondelli, 2001(1) SA 1171, 1183 (Constitutional Ct. of South Africa 2000) (“[The mother’s] failure to return to British Colum­ bia with the child was a breach of the conditions upon which she was entitled to exercise her rights of custody and therefore constituted a wrongful retention as contemplated by [Article 3] of the Convention”); Bundes­ verfassungsgericht [BVerfG] [Federal Constitutional Court of Germany] July 18, 1997, 2 BvR 1126/97, ¶15 (the Convention requires a return remedy for a violation of the “right to have a say in the child’s place of residence”). Appellate courts in Australia and Scotland agree. See In the Marriage of Resina [1991] FamCA 33 (Austl., May 22, 1991), ¶¶18–27; A. J. v. F. J., [2005] CSIH 36, 2005 1 S. C. 428, 435–436. It is true that some courts have stated a contrary view, or at least a more restrictive one. The Canadian Supreme Court has said ne exeat orders are “usually intended” to protect access rights. Thomson v. Thomson, [1994] 3 S. C. R. 551, 589–590, 119 Dall. L. R. (4th) 253, 281; see D. S. v. V. W., [1996] 2 S. C. R. 108, 134 Dall. L. R. (4th) 481. But the Canadian cases are not precisely on point here. Thomson ordered a return remedy based on an interim ne exeat order, and only noted in dicta that it may not order such a remedy pursuant to a permanent ne exeat order. See [1994] 3 S. C. R., 89–590, 119 Dall. L. R. (4th), at 281. D. S. involved a parent’s claim based on an im­ 14 ABBOTT v. ABBOTT Opinion of the Court plicit ne exeat right and, in any event, the court ordered a return remedy on a different basis. See [1996] 2 S. C. R., at 140–141, 142, 134 Dall. L. R. (4th), 03–504, 505. French courts are divided. A French Court of Appeals held that “the right to accept or refuse the removal of the children’s residence” outside of a region was “a joint exer­ cise of rights of custody.” Public Ministry v. M. B., [CA] Aix-en-Provence, 6e ch., Mar. 23, 1989, Rev. crit. dr. inter­ nat. Privé 79(3), July–Sept. 1990, 529, 533–535. A trial court in a different region of France rejected this view, relying on the mother’s “fundamental liberty” to establish her domicil. See Attorney for the Republic at Périgueux v. Mrs. S., [T. G. I.] Périgueux, Mar. 17, 1992, Rev. cr. dr. internat. Privé 82(4) Oct.–Dec. 1993, 650, 651–653, note Bertrand Ancel, D. 1992, note G. C. Scholars agree that there is an emerging international consensus that ne exeat rights are rights of custody, even if that view was not generally formulated when the Conven­ tion was drafted in 1980. At that time, joint custodial arrangements were unknown in many of the contracting states, and the status of ne exeat rights was not yet well understood. See 1980 Conférence de La Haye de droit international privé, Enlèvement d’enfants, morning meet­ ing of Wed., Oct. 8, 1980 (discussion by Messrs. Leal & van Boeschoten), in 3 Actes et Documents de la Quatorzième session, pp. 263–266 (1982) (Canadian and Dutch dele­ gates disagreeing whether the Convention protected ne exeat rights, while agreeing that it should protect such rights). Since 1980, however, joint custodial arrange­ ments have become more common. See at 8–9. And, within this framework, most contracting states and scholars now recognize that ne exeat rights are rights of custody. See, e.g., Hague Conference on Private Interna­ tional Law: Transfrontier Contact Concerning Children: General Principles and Guide to Good Practice p. 43 (“[P]reponderance of the case law supports the Cite as: 560 U. S. (2010) 15 Opinion of the Court view” that ne exeat rights are “rights of custody” (footnote omitted)); Hague Conference on Private International Law: Overall Conclusions of the Special Commission of Oct. 1989 on the Operation of the Hague Convention of 25 Oct. 1980 on the Civil Aspects of International Child Abduction, reprinted in 29 I. L. M. 219, 222, ¶9 (1990); Hague Conference on Private International Law: Report of the Second Special Commission Meeting to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction 11 (1993), reprinted in 33 I. L. M. 225 (1994); Silberman, The Hague Child Abduc­ tion Convention Turns Twenty: Gender Politics and Other Issues, 33 N. Y. U. J. Int’l L. & Pol. 221, 226–232, and n. 13 (2000); Whitman, Croll v. Croll: The Second Circuit Limits “Custody Rights” Under the Hague Convention on the Civil Aspects of International Child Abduction, 9 Tulane J. Int’l & Comp. L. 605, 611–616 (2001). A history of the Convention, known as the Pérez-Vera Report, has been cited both by the parties and by Courts of Appeals that have considered this issue. See 1980 Con­ férence de La Haye de droit international privé, Enlève­ ment d’enfants, E. Pérez-Vera, Explanatory Report (Pérez- Vera Report or Report), in 3 Actes et Documents de la Quatorzième session, pp. 425–473 (1982). We need not decide whether this Report should be given greater weight than a scholarly commentary. Compare Hague Interna­ tional Child Abduction Convention; Text and Legal Analy­ sis, –10506 (1986) (identifying the Report as the “official history” of the Convention and “a source of background on the meaning of the provisions of the Convention”), with Pérez-Vera Report ¶8, at 427–428 (“[the Report] has not been approved by the Conference, and it is possible that, despite the Rapporter’s [sic] efforts to remain objective, certain passages reflect a viewpoint which is in part subjective”). It suffices to note that the Report supports the conclusion that ne exeat rights are 16 ABBOTT v. ABBOTT Opinion of the Court rights of custody. The Report explains that rather than defining custody in precise terms or referring to the laws of different nations pertaining to parental rights, the Convention uses the unadorned term “rights of custody” to recognize “all the ways in which custody of children can be exercised” through “a flexible interpretation of the terms used, which allows the greatest possible number of cases to be brought into consideration.” at 446, 447–448. Thus the Report rejects the notion that because ne exeat rights do not encompass the right to make medi­ cal or some other important decisions about a child’s life they cannot be rights of custody. Indeed, the Report is fully consistent with the conclusion that ne exeat rights are just one of the many “ways in which custody of chil­ dren can be exercised.” at 447. D Adopting the view that the Convention provides a re­ turn remedy for violations of ne exeat rights accords with its objects and purposes. The Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence. See Convention Preamble, Treaty Doc., Ordering a return remedy does not alter the existing allocation of custody rights, Art. 19, but does allow the courts of the home coun­ try to decide what is in the child’s best interests. It is the Convention’s premise that courts in contracting states will make this determination in a responsible manner. Custody decisions are often difficult. Judges must strive always to avoid a common tendency to prefer their own society and culture, a tendency that ought not interfere with objective consideration of all the factors that should be weighed in determining the best interests of the child. This judicial neutrality is presumed from the mandate of the Convention, which affirms that the contracting states Cite as: 560 U. S. (2010) 17 Opinion of the Court are “[f]irmly convinced that the interests of children are of paramount importance in matters relating to their cus­ tody.” Convention Preamble, Treaty Doc., Interna­ tional law serves a high purpose when it underwrites the determination by nations to rely upon their domes­ tic courts to enforce just laws by legitimate and fair proceedings. To interpret the Convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, would run counter to the Convention’s purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes. Ms. Abbott removed A. J. A. from Chile while Mr. Abbott’s request to enhance his relation­ ship with his son was still pending before Chilean courts. After she landed in Texas, the mother asked the state court to diminish or eliminate the father’s custodial and visitation rights. The Convention should not be inter­ preted to permit a parent to select which country will adjudicate these questions by bringing the child to a dif­ ferent country, in violation of a ne exeat right. Denying a return remedy for the violation of such rights would “le­ gitimize the very action—removal of the child—that the home country, through its custody order [or other provi­ sion of law], sought to prevent” and would allow “parents to undermine the very purpose of the Convention.” Croll, This Court should be most reluctant to adopt an interpretation that gives an abducting parent an advantage by coming here to avoid a return remedy that is granted, for instance, in the United Kingdom, Israel, Germany, and South Africa. See at 12–13. Requiring a return remedy in cases like this one helps deter child abductions and respects the Convention’s purpose to prevent harms resulting from abductions. An abduction can have devastating consequences for a child. 18 ABBOTT v. ABBOTT Opinion of the Court “Some child psychologists believe that the trauma children suffer from these abductions is one of the worst forms of child abuse.” H. R. Rep. No. 103–390, p. 2 (1993). A child abducted by one parent is separated from the second parent and the child’s support system. Studies have shown that separation by abduction can cause psychologi­ cal problems ranging from depression and acute stress disorder to posttraumatic stress disorder and identity­ formation issues. See N. Parental Child Abduc­ tion is Child Abuse http://www.prevent-abuse­ now.com/unreport.htm (as visited May 13, 2010, and available in Clerk of Court’s case file). A child abducted at an early age can experience loss of community and stabil­ ity, leading to loneliness, anger, and fear of abandonment. See Huntington, Parental Kidnapping: A New Form of Child Abuse (1982), in American Prosecutors Research Institute’s National Center for Prosecution of Child Abuse, Parental Abduction Project, Investigation and Prosecution of Parental Abduction (1995) (App. A). Abductions may prevent the child from forming a relationship with the left­ behind parent, impairing the child’s ability to mature. See IV While a parent possessing a ne exeat right has a right of custody and may seek a return remedy, a return order is not automatic. Return is not required if the abducting parent can establish that a Convention exception applies. One exception states return of the child is not required when “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Art. 13(b), Treaty Doc., at 10. If, for example, Ms. Abbott could demonstrate that returning to Chile would put her own safety at grave risk, the court could consider whether this is sufficient to show that the child too would suffer “psy­ Cite as: 560 U. S. (2010) 19 Opinion of the Court chological harm” or be placed “in an intolerable situation.” See, e.g., 1352–1353 ; 220–221 (CA1 2000). The Convention also allows courts to decline to order removal if the child objects, if the child has reached a sufficient “age and degree of maturity at which it is appropriate to take account of its views.” Art. 13(b), Treaty Doc., at 10. The proper interpretation and applica­ tion of these and other exceptions are not before this Court. These matters may be addressed on remand. * * * 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. Cite as: 560 U. S. (2010) 1 STEVENS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 08–645 TIMOTHY MARK CAMERON ABBOTT, PETITIONER v.

Justice Stevens

majority

Cincinnati v. Discovery Network, Inc.

https://www.courtlistener.com/opinion/112836/cincinnati-v-discovery-network-inc/

https://www.courtlistener.com/api/rest/v3/clusters/112836/

1992-047

Motivated by its interest in the safety and attractive appearance of its streets and sidewalks, the city of Cincinnati has refused to allow respondents to distribute their commercial publications through freestanding newsracks located on public property. The question presented is whether this refusal is consistent with the First Amendment.[1] In agreement with the District Court and the Court of Appeals, we hold that it is not. I Respondent Discovery Network, Inc., is engaged in the business of providing adult educational, recreational, and social programs to individuals in the Cincinnati area. It advertises those programs in a free magazine that it publishes nine times a year. Although these magazines consist primarily of promotional material pertaining to Discovery's courses, they also include some information about current events of general interest. Approximately one-third of these magazines are distributed through the 38 newsracks that the city authorized Discovery to place on public property in 1989. Respondent Harmon Publishing Company, Inc., publishes and distributes a free magazine that advertises real estate for sale at various locations throughout the United States. The magazine contains listings and photographs of available *413 residential properties in the greater Cincinnati area, and also includes some information about interest rates, market trends, and other real estate matters. In 1989, Harmon received the city's permission to install 24 newsracks at approved locations. About 15% of its distribution in the Cincinnati area is through those devices. In March 1990, the city's Director of Public Works notified each of the respondents that its permit to use dispensing devices on public property was revoked, and ordered the newsracks removed within 30 days. Each notice explained that respondent's publication was a "commercial handbill" within the meaning of § 714-1—C of the Municipal Code[2] and therefore § 714-23 of the code[3] prohibited its distribution on public property. Respondents were granted administrative hearings and review by the Sidewalk Appeals Committee. Although the Committee did not modify the city's position, *414 it agreed to allow the dispensing devices to remain in place pending a judicial determination of the constitutionality of its prohibition. Respondents then commenced this litigation in the United States District Court for the Southern District of Ohio. After an evidentiary hearing the District Court concluded that "the regulatory scheme advanced by the City of Cincinnati completely prohibiting the distribution of commercial handbills on the public right of way violates the First Amendment."[4] The court found that both publications were "commercial speech" entitled to First Amendment protection because they concerned lawful activity and were not misleading. While it recognized that a city "may regulate publication dispensing devices pursuant to its substantial interest in promoting safety and esthetics on or about the public right of way,"[5] the District Court held, relying on Board of Trustees of State University of N. Y. v. Fox, 492 U.S. 469 (1989), that the city had the burden of establishing "a reasonable `fit' between the legislature's ends and the means chosen to accomplish those ends." App. to Pet. for Cert. 23a. (quoting Fox, 492 U. S., at 480). It explained that the "fit" in this case was unreasonable because the number of newsracks dispensing commercial handbills was "minute" compared with the total number (1,500-2,000) on the public right of way, and because they affected public safety in only a minimal way. Moreover, the practices in other communities indicated that the city's safety and esthetic interests could be adequately protected "by regulating the size, shape, number or placement of such devices." App. to Pet. for Cert. 24a.[6] *415 On appeal, the city argued that since a number of courts had held that a complete ban on the use of newsracks dispensing traditional newspapers would be unconstitutional,[7] and that the "Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression," Central Hudson Gas & Electric Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557, 563 (1980), its preferential treatment of newspapers over commercial publications was a permissible method of serving its legitimate interest in ensuring safe streets and regulating visual blight.[8] The Court of Appeals disagreed, holding that the lesser status of commercial speech is relevant only when its regulation was designed either to prevent false or misleading advertising, or to alleviate distinctive adverse effects of the specific speech at issue. Because Cincinnati sought to regulate only the "manner" in which respondents' publications were distributed, as opposed to their content or any harm caused by their content, the court reasoned that respondents' publications had "high value" for purposes of the Fox "reasonable fit" test. 946 F.2d 464, 471 (CA6 1991) (italics omitted). Applying that test, the Court of Appeals agreed with the District Court that the burden placed on speech "cannot be justified by the paltry gains in safety and beauty achieved by the ordinance." Ibid.[9] The importance of the Court of *416 Appeals decision, together with the dramatic growth in the use of newsracks throughout the country,[10] prompted our grant of certiorari. 503 U.S. 918 (1992). II There is no claim in this case that there is anything unlawful or misleading about the contents of respondents' publications. Moreover, respondents do not challenge their characterization as "commercial speech." Nor do respondents question the substantiality of the city's interest in safety and esthetics. It was, therefore, proper for the District Court and the Court of Appeals to judge the validity of the city's prohibition under the standards we set forth in Central Hudson and Fox .[11] It was the city's burden to establish a "reasonable fit" between its legitimate interests in safety and esthetics and its choice of a limited and selective prohibition of newsracks as the means chosen to serve those interests.[12] *417 There is ample support in the record for the conclusion that the city did not "establish the reasonable fit we require." Fox, 492 U. S., at 480. The ordinance on which it relied was an outdated prohibition against the distribution of any commercial handbills on public property. It was enacted long before any concern about newsracks developed. Its apparent purpose was to prevent the kind of visual blight caused by littering, rather than any harm associated with permanent, freestanding dispensing devices. The fact that the city failed to address its recently developed concern about newsracks by regulating their size, shape, appearance, or number indicates that it has not "carefully calculated" the costs and benefits associated with the burden on speech imposed by its prohibition.[13] The benefit to be derived *418 from the removal of 62 newsracks while about 1,500— 2,000 remain in place was considered "minute" by the District Court and "paltry" by the Court of Appeals. We share their evaluation of the "fit" between the city's goal and its method of achieving it. In seeking reversal, the city argues that it is wrong to focus attention on the relatively small number of newsracks affected by its prohibition, because the city's central concern is with the overall number of newsracks on its sidewalks, rather than with the unattractive appearance of a handful of dispensing devices. It contends, first, that a categorical prohibition on the use of newsracks to disseminate commercial messages burdens no more speech than is necessary to further its interest in limiting the number of newsracks; and, second, that the prohibition is a valid "time, place, and manner" regulation because it is content neutral and leaves open ample alternative channels of communication. We consider these arguments in turn. III The city argues that there is a close fit between its ban on newsracks dispensing "commercial handbills" and its interests in safety and esthetics because every decrease in the number of such dispensing devices necessarily effects an increase in safety and an improvement in the attractiveness of the cityscape. In the city's view, the prohibition is thus entirely related to its legitimate interests in safety and esthetics. We accept the validity of the city's proposition, but consider it an insufficient justification for the discrimination against respondents' use of newsracks that are no more harmful than the permitted newsracks, and have only a minimal impact on the overall number of newsracks on the city's sidewalks. The major premise supporting the city's argument is the proposition that commercial speech has only a *419 low value. Based on that premise, the city contends that the fact that assertedly more valuable publications are allowed to use newsracks does not undermine its judgment that its esthetic and safety interests are stronger than the interest in allowing commercial speakers to have similar access to the reading public. We cannot agree. In our view, the city's argument attaches more importance to the distinction between commercial and noncommercial speech than our cases warrant and seriously underestimates the value of commercial speech. This very case illustrates the difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category. For respondents' publications share important characteristics with the publications that the city classifies as "newspapers." Particularly, they are "commercial handbills" within the meaning of § 714-1—C of the city's code because they contain advertising, a feature that apparently also places ordinary newspapers within the same category.[14] Separate provisions in the code specifically authorize the distribution of "newspapers" on the public right of way, but that term is not defined.[15] Presumably, respondents' publications do not qualify as newspapers because an examination of their content discloses a higher ratio of advertising to other text, such as news and feature stories, than is found in the exempted publications.[16] Indeed, Cincinnati's City *420 Manager has determined that publications that qualify as newspapers and therefore can be distributed by newsrack are those that are published daily and/or weekly and "primarily presen[t] coverage of, and commentary on, current events." App. 230 (emphasis added). The absence of a categorical definition of the difference between "newspapers" and "commercial handbills" in the city's code is also a characteristic of our opinions considering the constitutionality of regulations of commercial speech. Fifty years ago, we concluded that the distribution of a commercial handbill was unprotected by the First Amendment, even though half of its content consisted of political protest. Valentine v. Chrestensen, 316 U.S. 52 (1942). A few years later, over Justice Black's dissent, we held that the "commercial feature" of door-to-door solicitation of magazine subscriptions was a sufficient reason for denying First Amendment protection to that activity. Breard v. Alexandria, 341 U.S. 622 (1951). Subsequent opinions, however, recognized that important commercial attributes of various forms of communication do not qualify their entitlement to constitutional protection. Thus, in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), we explained: "We begin with several propositions that already are settled or beyond serious dispute. It is clear, for example, that speech does not lose its First Amendment protection because money is spent to project it, as in a paid advertisement of one form or another. Buckley v. Valeo, 424 U.S. 1, 35-59 (1976); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S., at 384; New York Times Co. v. Sullivan, 376 U. S., at 266. Speech likewise is protected even though it is carried in a form that is `sold' for profit, Smith v. California, 361 U.S. 147, 150 (1959) (books); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952) (motion pictures); Murdock v. *421 Pennsylvania, 319 U. S., at 111 (religious literature), and even though it may involve a solicitation to purchase or otherwise pay or contribute money. New York Times Co. v. Sullivan, supra; NAACP v. Button, 371 U.S. 415, 429 (1963); Jamison v. Texas, 318 U. S., at 417; Cantwell v. Connecticut, 310 U.S. 296, 306-307 (1940). "If there is a kind of commercial speech that lacks all First Amendment protection, therefore it must be distinguished by its content. Yet the speech whose content deprives it of protection cannot simply be speech on a commercial subject. No one would contend that our pharmacist may be prevented from being heard on the subject of whether, in general, pharmaceutical prices should be regulated, or their advertisement forbidden. Nor can it be dispositive that a commercial advertisement is noneditorial, and merely reports a fact. Purely factual matter of public interest may claim protection. Bigelow v. Virginia, 421 U. S., at 822; Thornhill v. Alabama, 310 U.S. 88, 102 (1940)." Id., at 761-762. We then held that even speech that does no more than propose a commercial transaction is protected by the First Amendment. Id., at 762.[17] *422 In later opinions we have stated that speech proposing a commercial transaction is entitled to lesser protection than other constitutionally guaranteed expression. See Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-456 (1978). We have also suggested that such lesser protection was appropriate for a somewhat larger category of commercial speech—"that is, expression related solely to the economic interests of the speaker and its audience." Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S., at 561. We did not, however, use that definition in either Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), or in Board of Trustees of State University of N. Y. v. Fox, 492 U.S. 469 (1989). In the Bolger case we held that a federal statute prohibiting the mailing of unsolicited advertisements for contraceptives could not be applied to the appellee's promotional materials. Most of the appellee's mailings consisted primarily of price and quantity information, and thus fell "within the core notion of commercial speech—'speech which does "no more than propose a commercial transaction."` " Bolger, 463 U. S., at 66 (quoting Virginia Pharmacy, 425 U. S., at 762, in turn quoting Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 385 (1973)). Relying in part on the appellee's economic motivation, the Court also answered the "closer question" about the proper *423 label for informational pamphlets that were concededly advertisements referring to a specific product, and concluded that they also were "commercial speech." 463 U.S., at 66-67. It is noteworthy that in reaching that conclusion we did not simply apply the broader definition of commercial speech advanced in Central Hudson —a definition that obviously would have encompassed the mailings—but rather "examined [them] carefully to ensure that speech deserving of greater constitutional protection is not inadvertently suppressed." 463 U.S., at 66.[18] In Fox, we described the category even more narrowly, by characterizing the proposal of a commercial transaction as "the test for identifying commercial speech." 492 U.S., at 473-474 (emphasis added). Under the Fox test it is clear that much of the material in ordinary newspapers is commercial speech and, conversely, that the editorial content in respondents' promotional publications is not what we have described as "core" commercial speech. There is no doubt a "commonsense" basis for distinguishing between the two, but under both the city's code and our cases the difference is a matter of degree.[19] *424 Nevertheless, for the purpose of deciding this case, we assume that all of the speech barred from Cincinnati's sidewalks is what we have labeled "core" commercial speech and that no such speech is found in publications that are allowed to use newsracks. We nonetheless agree with the Court of Appeals that Cincinnati's actions in this case run afoul of the First Amendment. Not only does Cincinnati's categorical ban on commercial newsracks place too much importance on the distinction between commercial and noncommercial speech, but in this case, the distinction bears no relationship whatsoever to the particular interests that the city has asserted. It is therefore an impermissible means of responding to the city's admittedly legitimate interests. Cf. Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 120 (1991) (distinction drawn by Son of Sam law between income derived from criminal's descriptions of his crime and other sources "has nothing to do with" State's interest in transferring proceeds of crime from criminals to victims); Carey v. Brown, 447 U.S. 455, 465 (1980) (State's interest in residential privacy cannot sustain statute permitting labor picketing, but prohibiting nonlabor picketing *425 when "nothing in the content-based labor-nonlabor distinction has any bearing whatsoever on privacy").[20] The city has asserted an interest in esthetics, but respondent publishers' newsracks are no greater an eyesore than the newsracks permitted to remain on Cincinnati's sidewalks. Each newsrack, whether containing "newspapers" or "commercial handbills," is equally unattractive. While there was some testimony in the District Court that commercial publications are distinct from noncommercial publications in their capacity to proliferate, the evidence of such was exceedingly weak, the Court of Appeals discounted it, 946 F.2d, at 466-467, and n. 3, and Cincinnati does not reassert that particular argument in this Court. As we *426 have explained, the city's primary concern, as argued to us, is with the aggregate number of newsracks on its streets. On that score, however, all newsracks, regardless of whether they contain commercial or noncommercial publications, are equally at fault. In fact, the newspapers are arguably the greater culprit because of their superior number. Cincinnati has not asserted an interest in preventing commercial harms by regulating the information distributed by respondent publishers' newsracks, which is, of course, the typical reason why commercial speech can be subject to greater governmental regulation than noncommercial speech. See, e. g., Bolger, 463 U. S., at 81 (Stevens, J., concurring in judgment) ("[T]he commercial of a message may provide a justification for regulation that is not present when the communication has no commercial aspects character"); Ohralik v. Ohio State Bar Assn., 436 U. S., at 455-456 (commercial speech, unlike other varieties of speech, "occurs in an area traditionally subject to government regulation").[21] A closer examination of one of the cases we have mentioned, Bolger v. Youngs Drug Products, demonstrates the fallacy of the city's argument that a reasonable fit is established by the mere fact that the entire burden imposed on commercial speech by its newsrack policy may in some small way limit the total number of newsracks on Cincinnati's sidewalks. Here, the city contends that safety concerns and visual blight may be addressed by a prohibition that distinguishes *427 between commercial and noncommercial publications that are equally responsible for those problems. In Bolger, however, in rejecting the Government's reliance on its interest in protecting the public from "offensive" speech, "[we] specifically declined to recognize a distinction between commercial and noncommercial speech that would render this interest a sufficient justification for a prohibition of commercial speech." 463 U.S., at 71-72 (citing Carey v. Population Services International, 431 U.S. 678, 701, n. 28 (1977)). Moreover, the fact that the regulation "provide[d] only the most limited incremental support for the interest asserted," 463 U.S., at 73—that it achieved only a "marginal degree of protection," ibid., for that interest—supported our holding that the prohibition was invalid. Finally, in Bolger, as in this case, the burden on commercial speech was imposed by denying the speaker access to one method of distribution— there the United States mails, and here the placement of newsracks on public property—without interfering with alternative means of access to the audience. As then-Justice Rehnquist explained in his separate opinion, that fact did not minimize the significance of the burden: "[T]he Postal Service argues that Youngs can communicate with the public otherwise than through the mail. [This argument falls] wide of the mark. A prohibition on the use of the mails is a significant restriction of First Amendment rights. We have noted that ` "[t]he United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is as much a part of free speech as the right to use our tongues."` Blount v. Rizzi, 400 U. S., at 416, quoting Milwaukee Social Democratic Publishing Co. v. Burle- son, 255 U.S. 407, 437 (1921) (Holmes, J., dissenting)." Id., at 79-80 (footnote omitted). In a similar vein, even if we assume, arguendo, that the city might entirely prohibit the use of newsracks on public *428 property, as long as this avenue of communication remains open, these devices continue to play a significant role in the dissemination of protected speech. In the absence of some basis for distinguishing between "newspapers" and "commercial handbills" that is relevant to an interest asserted by the city, we are unwilling to recognize Cincinnati's bare assertion that the "low value" of commercial speech is a sufficient justification for its selective and categorical ban on newsracks dispensing "commercial handbills." Our holding, however, is narrow. As should be clear from the above discussion, we do not reach the question whether, given certain facts and under certain circumstances, a community might be able to justify differential treatment of commercial and noncommercial newsracks. We simply hold that on this record Cincinnati has failed to make such a showing. Because the distinction Cincinnati has drawn has absolutely no bearing on the interests it has asserted, we have no difficulty concluding, as did the two courts below, that the city has not established the "fit" between its goals and its chosen means that is required by our opinion in Fox. It remains to consider the city's argument that its prohibition is a permissible time, place, and manner regulation. IV The Court has held that government may impose reasonable restrictions on the time, place, or manner of engaging in protected speech provided that they are adequately justified "`without reference to the content of the regulated speech.' " Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), quoting Clark v. Community for Creative NonViolence, 468 U.S. 288, 293 (1984). Thus, a prohibition against the use of sound trucks emitting "loud and raucous" noise in residential neighborhoods is permissible if it applies equally to music, political speech, and advertising. See generally *429 Kovacs v. Cooper, 336 U.S. 77 (1949). The city contends that its regulation of newsracks qualifies as such a restriction because the interests in safety and esthetics that it serves are entirely unrelated to the content of respondents' publications. Thus, the argument goes, the justification for the regulation is content neutral. The argument is unpersuasive because the very basis for the regulation is the difference in content between ordinary newspapers and commercial speech. True, there is no evidence that the city has acted with animus toward the ideas contained within respondents' publications, but just last Term we expressly rejected the argument that "discriminatory . . . treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas." Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S., at 117. Regardless of the mens rea of the city, it has enacted a sweeping ban on the use of newsracks that distribute "commercial handbills," but not "newspapers." Under the city's newsrack policy, whether any particular newsrack falls within the ban is determined by the content of the publication resting inside that newsrack. Thus, by any commonsense understanding of the term, the ban in this case is "content based." Nor are we persuaded that our statements that the test for whether a regulation is content based turns on the "justification" for the regulation, see, e. g., Ward, 491 U. S., at 791; Clark, 468 U. S., at 293, compel a different conclusion. We agree with the city that its desire to limit the total number of newsracks is "justified" by its interests in safety and esthetics. The city has not, however, limited the number of newsracks; it has limited (to zero) the number of newsracks distributing commercial publications. As we have explained, there is no justification for that particular regulation other than the city's naked assertion that commercial speech has "low value." It is the absence of a neutral *430 justification for its selective ban on newsracks that prevents the city from defending its newsrack policy as content neutral. By the same reasoning, the city's heavy reliance on Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), is misplaced. In Renton, a city ordinance imposed particular zoning regulations on movie theaters showing adult films. The Court recognized that the ordinance did not fall neatly into the "content-based" or "content-neutral" category in that "the ordinance treats theaters that specialize in adult films differently from other kinds of theaters." Id., at 47. We upheld the regulation, however, largely because it was justified not by an interest in suppressing adult films, but by the city's concern for the "secondary effects" of such theaters on the surrounding neighborhoods. Id., at 47-49. In contrast to the speech at issue in Renton, there are no secondary effects attributable to respondent publishers' newsracks that distinguish them from the newsracks Cincinnati permits to remain on its sidewalks. In sum, the city's newsrack policy is neither content neutral nor, as demonstrated in Part III, supra, "narrowly tailored." Thus, regardless of whether or not it leaves open ample alternative channels of communication, it cannot be justified as a legitimate time, place, or manner restriction on protected speech. Cincinnati has enacted a sweeping ban that bars from its sidewalks a whole class of constitutionally protected speech. As did the District Court and the Court of Appeals, we conclude that Cincinnati has failed to justify that policy. The regulation is not a permissible regulation of commercial speech, for on this record it is clear that the interests that Cincinnati has asserted are unrelated to any distinction between "commercial handbills" and "newspapers." Moreover, because the ban is predicated on the content of the publications distributed by the subject newsracks, it is not a valid time, place, or manner restriction on protected speech. *431 For these reasons, Cincinnati's categorical ban on the distribution, via newsrack, of "commercial handbills" cannot be squared with the dictates of the First Amendment. The judgment of the Court of Appeals is Affirmed.

Motivated by its iterest i the safety ad attractive appearace of its streets ad sidewalks, the city of Ciciati has refused to allow respodets to distribute their commercial publicatios through freestadig ewsracks located o public property. The questio preseted is whether this refusal is cosistet with the First Amedmet.[1] I agreemet with the District Court ad the Court of Appeals, we hold that it is ot. I Respodet Discovery Network, Ic., is egaged i the busiess of providig adult educatioal, recreatioal, ad social programs to idividuals i the Ciciati area. It advertises those programs i a free magazie that it publishes ie times a year. Although these magazies cosist primarily of promotioal material pertaiig to Discovery's courses, they also iclude some iformatio about curret evets of geeral iterest. Approximately oe-third of these magazies are distributed through the 38 ewsracks that the city authorized Discovery to place o public property i 1989. Respodet Harmo Publishig Compay, Ic., publishes ad distributes a free magazie that advertises real estate for sale at various locatios throughout the Uited States. The magazie cotais listigs ad photographs of available *413 residetial properties i the greater Ciciati area, ad also icludes some iformatio about iterest rates, market treds, ad other real estate matters. I 1989, Harmo received the city's permissio to istall 24 ewsracks at approved locatios. About 15% of its distributio i the Ciciati area is through those devices. I March 1990, the city's Director of Public Works otified each of the respodets that its permit to use dispesig devices o public property was revoked, ad ordered the ewsracks removed withi 30 days. Each otice explaied that respodet's publicatio was a "commercial hadbill" withi the meaig of 714-1—C of the Muicipal Code[2] ad therefore 714-23 of the code[3] prohibited its distributio o public property. Respodets were grated admiistrative hearigs ad review by the Sidewalk Appeals Committee. Although the Committee did ot modify the city's positio, *414 it agreed to allow the dispesig devices to remai i place pedig a judicial determiatio of the costitutioality of its prohibitio. Respodets the commeced this litigatio i the Uited States District Court for the Souther District of Ohio. After a evidetiary hearig the District Court cocluded that "the regulatory scheme advaced by the City of Ciciati completely prohibitig the distributio of commercial hadbills o the public right of way violates the First Amedmet."[4] The court foud that both publicatios were "commercial speech" etitled to First Amedmet protectio because they cocered lawful activity ad were ot misleadig. While it recogized that a city "may regulate publicatio dispesig devices pursuat to its substatial iterest i promotig safety ad esthetics o or about the public right of way,"[5] the District Court held, relyig o Board of Trustees of State Uiversity of N. that the city had the burde of establishig "a reasoable `fit' betwee the legislature's eds ad the meas chose to accomplish those eds." App. to Pet. for Cert. 23a. (quotig ). It explaied that the "fit" i this case was ureasoable because the umber of ewsracks dispesig commercial hadbills was "miute" compared with the total umber (1,500-2,000) o the public right of way, ad because they affected public safety i oly a miimal way. Moreover, the practices i other commuities idicated that the city's safety ad esthetic iterests could be adequately protected "by regulatig the size, shape, umber or placemet of such devices." App. to Pet. for Cert. 24a.[6] *415 O appeal, the city argued that sice a umber of courts had held that a complete ba o the use of ewsracks dispesig traditioal ewspapers would be ucostitutioal,[7] ad that the "Costitutio accords a lesser protectio to commercial speech tha to other costitutioally guarateed expressio," Cetral Hudso Gas & Electric its preferetial treatmet of ewspapers over commercial publicatios was a permissible method of servig its legitimate iterest i esurig safe streets ad regulatig visual blight.[8] The Court of Appeals disagreed, holdig that the lesser status of commercial speech is relevat oly whe its regulatio was desiged either to prevet false or misleadig advertisig, or to alleviate distictive adverse effects of the specific speech at issue. Because Ciciati sought to regulate oly the "maer" i which respodets' publicatios were distributed, as opposed to their cotet or ay harm caused by their cotet, the court reasoed that respodets' publicatios had "high value" for purposes of the "reasoable fit" test. Applyig that test, the Court of Appeals agreed with the District Court that the burde placed o speech "caot be justified by the paltry gais i safety ad beauty achieved by the ordiace." Ibid.[9] The importace of the Court of *416 Appeals decisio, together with the dramatic growth i the use of ewsracks throughout the coutry,[10] prompted our grat of certiorari. II There is o claim i this case that there is aythig ulawful or misleadig about the cotets of respodets' publicatios. Moreover, respodets do ot challege their characterizatio as "commercial speech." Nor do respodets questio the substatiality of the city's iterest i safety ad esthetics. It was, therefore, proper for the District Court ad the Court of Appeals to judge the validity of the city's prohibitio uder the stadards we set forth i Cetral Hudso ad[11] It was the city's burde to establish a "reasoable fit" betwee its legitimate iterests i safety ad esthetics ad its choice of a limited ad selective prohibitio of ewsracks as the meas chose to serve those iterests.[12] *417 There is ample support i the record for the coclusio that the city did ot "establish the reasoable fit we require." The ordiace o which it relied was a outdated prohibitio agaist the distributio of ay commercial hadbills o public property. It was eacted log before ay cocer about ewsracks developed. Its apparet purpose was to prevet the kid of visual blight caused by litterig, rather tha ay harm associated with permaet, freestadig dispesig devices. The fact that the city failed to address its recetly developed cocer about ewsracks by regulatig their size, shape, appearace, or umber idicates that it has ot "carefully calculated" the costs ad beefits associated with the burde o speech imposed by its prohibitio.[13] The beefit to be derived *418 from the removal of 62 ewsracks while about 1,500— 2,000 remai i place was cosidered "miute" by the District Court ad "paltry" by the Court of Appeals. We share their evaluatio of the "fit" betwee the city's goal ad its method of achievig it. I seekig reversal, the city argues that it is wrog to focus attetio o the relatively small umber of ewsracks affected by its prohibitio, because the city's cetral cocer is with the overall umber of ewsracks o its sidewalks, rather tha with the uattractive appearace of a hadful of dispesig devices. It coteds, first, that a categorical prohibitio o the use of ewsracks to dissemiate commercial messages burdes o more speech tha is ecessary to further its iterest i limitig the umber of ewsracks; ad, secod, that the prohibitio is a valid "time, place, ad maer" regulatio because it is cotet eutral ad leaves ope ample alterative chaels of commuicatio. We cosider these argumets i tur. The city argues that there is a close fit betwee its ba o ewsracks dispesig "commercial hadbills" ad its iterests i safety ad esthetics because every decrease i the umber of such dispesig devices ecessarily effects a icrease i safety ad a improvemet i the attractiveess of the cityscape. I the city's view, the prohibitio is thus etirely related to its legitimate iterests i safety ad esthetics. We accept the validity of the city's propositio, but cosider it a isufficiet justificatio for the discrimiatio agaist respodets' use of ewsracks that are o more harmful tha the permitted ewsracks, ad have oly a miimal impact o the overall umber of ewsracks o the city's sidewalks. The major premise supportig the city's argumet is the propositio that commercial speech has oly a *419 low value. Based o that premise, the city coteds that the fact that assertedly more valuable publicatios are allowed to use ewsracks does ot udermie its judgmet that its esthetic ad safety iterests are stroger tha the iterest i allowig commercial speakers to have similar access to the readig public. We caot agree. I our view, the city's argumet attaches more importace to the distictio betwee commercial ad ocommercial speech tha our cases warrat ad seriously uderestimates the value of commercial speech. This very case illustrates the difficulty of drawig bright lies that will clearly cabi commercial speech i a distict category. For respodets' publicatios share importat characteristics with the publicatios that the city classifies as "ewspapers." Particularly, they are "commercial hadbills" withi the meaig of 714-1—C of the city's code because they cotai advertisig, a feature that apparetly also places ordiary ewspapers withi the same category.[14] Separate provisios i the code specifically authorize the distributio of "ewspapers" o the public right of way, but that term is ot defied.[15] Presumably, respodets' publicatios do ot qualify as ewspapers because a examiatio of their cotet discloses a higher ratio of advertisig to other text, such as ews ad feature stories, tha is foud i the exempted publicatios.[16] Ideed, Ciciati's City *420 Maager has determied that publicatios that qualify as ewspapers ad therefore ca be distributed by ewsrack are those that are published daily ad/or weekly ad "primarily prese[t] coverage of, ad commetary o, curret evets." App. 230 The absece of a categorical defiitio of the differece betwee "ewspapers" ad "commercial hadbills" i the city's code is also a characteristic of our opiios cosiderig the costitutioality of regulatios of commercial speech. Fifty years ago, we cocluded that the distributio of a commercial hadbill was uprotected by the First Amedmet, eve though half of its cotet cosisted of political protest. A few years later, over Justice Black's disset, we held that the "commercial feature" of door-to-door solicitatio of magazie subscriptios was a sufficiet reaso for deyig First Amedmet protectio to that activity. Subsequet opiios, however, recogized that importat commercial attributes of various forms of commuicatio do ot qualify their etitlemet to costitutioal protectio. Thus, i Virgiia State of we explaied: "We begi with several propositios that already are settled or beyod serious dispute. It is clear, for example, that speech does ot lose its First Amedmet protectio because moey is spet to project it, as i a paid advertisemet of oe form or aother. ; Pittsburgh Press Co. v. Huma Relatios Comm', ; New Times Co. v. Sulliva, Speech likewise is protected eve though it is carried i a form that is `sold' for profit, Smith v. Califoria, ; Joseph Bursty, Ic. v. Wilso, (motio pictures); Murdock v. *421 Pesylvaia, ad eve though it may ivolve a solicitatio to purchase or otherwise pay or cotribute moey. New Times Co. v. Sulliva, NAACP v. Butto, ; Jamiso v. ; Catwell v. Coecticut, "If there is a kid of commercial speech that lacks all First Amedmet protectio, therefore it must be distiguished by its cotet. Yet the speech whose cotet deprives it of protectio caot simply be speech o a commercial subject. No oe would coted that our pharmacist may be preveted from beig heard o the subject of whether, i geeral, pharmaceutical prices should be regulated, or their advertisemet forbidde. Nor ca it be dispositive that a commercial advertisemet is oeditorial, ad merely reports a fact. Purely factual matter of public iterest may claim protectio. Bigelow v. Virgiia, ; Thorhill v. Alabama," We the held that eve speech that does o more tha propose a commercial trasactio is protected by the First Amedmet.[17] *422 I later opiios we have stated that speech proposig a commercial trasactio is etitled to lesser protectio tha other costitutioally guarateed expressio. See Ohralik v. Ohio State Bar Ass., We have also suggested that such lesser protectio was appropriate for a somewhat larger category of commercial speech—"that is, expressio related solely to the ecoomic iterests of the speaker ad its audiece." Cetral Hudso Gas & Electric Corp. v. Public Service Comm' of New We did ot, however, use that defiitio i either v. Yougs Drug Products Corp., or i Board of Trustees of State Uiversity of N. I the case we held that a federal statute prohibitig the mailig of usolicited advertisemets for cotraceptives could ot be applied to the appellee's promotioal materials. Most of the appellee's mailigs cosisted primarily of price ad quatity iformatio, ad thus fell "withi the core otio of commercial speech—'speech which does "o more tha propose a commercial trasactio."` " ). Relyig i part o the appellee's ecoomic motivatio, the Court also aswered the "closer questio" about the proper *423 label for iformatioal pamphlets that were cocededly advertisemets referrig to a specific product, ad cocluded that they also were "commercial speech." -67. It is oteworthy that i reachig that coclusio we did ot simply apply the broader defiitio of commercial speech advaced i Cetral Hudso —a defiitio that obviously would have ecompassed the mailigs—but rather "examied [them] carefully to esure that speech deservig of greater costitutioal protectio is ot iadvertetly suppressed."[18] I we described the category eve more arrowly, by characterizig the proposal of a commercial trasactio as "the test for idetifyig commercial speech." -474 Uder the test it is clear that much of the material i ordiary ewspapers is commercial speech ad, coversely, that the editorial cotet i respodets' promotioal publicatios is ot what we have described as "core" commercial speech. There is o doubt a "commosese" basis for distiguishig betwee the two, but uder both the city's code ad our cases the differece is a matter of degree.[19] *424 Nevertheless, for the purpose of decidig this case, we assume that all of the speech barred from Ciciati's sidewalks is what we have labeled "core" commercial speech ad that o such speech is foud i publicatios that are allowed to use ewsracks. We oetheless agree with the Court of Appeals that Ciciati's actios i this case ru afoul of the First Amedmet. Not oly does Ciciati's categorical ba o commercial ewsracks place too much importace o the distictio betwee commercial ad ocommercial speech, but i this case, the distictio bears o relatioship whatsoever to the particular iterests that the city has asserted. It is therefore a impermissible meas of respodig to the city's admittedly legitimate iterests. Cf. Simo & Schuster, Ic. v. Members of N. Y. State Crime Victims (distictio draw by So of Sam law betwee icome derived from crimial's descriptios of his crime ad other sources "has othig to do with" State's iterest i trasferrig proceeds of crime from crimials to victims); Carey v. Brow, (State's iterest i residetial privacy caot sustai statute permittig labor picketig, but prohibitig olabor picketig *425 whe "othig i the cotet-based labor-olabor distictio has ay bearig whatsoever o privacy").[20] The city has asserted a iterest i esthetics, but respodet publishers' ewsracks are o greater a eyesore tha the ewsracks permitted to remai o Ciciati's sidewalks. Each ewsrack, whether cotaiig "ewspapers" or "commercial hadbills," is equally uattractive. While there was some testimoy i the District Court that commercial publicatios are distict from ocommercial publicatios i their capacity to proliferate, the evidece of such was exceedigly weak, the Court of Appeals discouted it, -467, ad 3, ad Ciciati does ot reassert that particular argumet i this Court. As we *426 have explaied, the city's primary cocer, as argued to us, is with the aggregate umber of ewsracks o its streets. O that score, however, all ewsracks, regardless of whether they cotai commercial or ocommercial publicatios, are equally at fault. I fact, the ewspapers are arguably the greater culprit because of their superior umber. Ciciati has ot asserted a iterest i prevetig commercial harms by regulatig the iformatio distributed by respodet publishers' ewsracks, which is, of course, the typical reaso why commercial speech ca be subject to greater govermetal regulatio tha ocommercial speech. See, e. g., (Steves, J., cocurrig i judgmet) ("[T]he commercial of a message may provide a justificatio for regulatio that is ot preset whe the commuicatio has o commercial aspects character"); Ohralik v. Ohio State Bar Ass., 436 U. S., at (commercial speech, ulike other varieties of speech, "occurs i a area traditioally subject to govermet regulatio").[21] A closer examiatio of oe of the cases we have metioed, v. Yougs Drug Products, demostrates the fallacy of the city's argumet that a reasoable fit is established by the mere fact that the etire burde imposed o commercial speech by its ewsrack policy may i some small way limit the total umber of ewsracks o Ciciati's sidewalks. Here, the city coteds that safety cocers ad visual blight may be addressed by a prohibitio that distiguishes *427 betwee commercial ad ocommercial publicatios that are equally resposible for those problems. I however, i rejectig the Govermet's reliace o its iterest i protectig the public from "offesive" speech, "[we] specifically declied to recogize a distictio betwee commercial ad ocommercial speech that would reder this iterest a sufficiet justificatio for a prohibitio of commercial speech." -72 ). Moreover, the fact that the regulatio "provide[d] oly the most limited icremetal support for the iterest asserted," —that it achieved oly a "margial degree of protectio," ibid., for that iterest—supported our holdig that the prohibitio was ivalid. Fially, i as i this case, the burde o commercial speech was imposed by deyig the speaker access to oe method of distributio— there the Uited States mails, ad here the placemet of ewsracks o public property—without iterferig with alterative meas of access to the audiece. As the-Justice Rehquist explaied i his separate opiio, that fact did ot miimize the sigificace of the burde: "[T]he Postal Service argues that Yougs ca commuicate with the public otherwise tha through the mail. [This argumet falls] wide of the mark. A prohibitio o the use of the mails is a sigificat restrictio of First Amedmet rights. We have oted that ` "[t]he Uited States may give up the Post Office whe it sees fit, but while it carries it o the use of the mails is as much a part of free speech as the right to use our togues."` Blout v. quotig Milwaukee Social Democratic Publishig Co. v. Burle- so, (Holmes, J., dissetig)." (footote omitted). I a similar vei, eve if we assume, arguedo, that the city might etirely prohibit the use of ewsracks o public *428 property, as log as this aveue of commuicatio remais ope, these devices cotiue to play a sigificat role i the dissemiatio of protected speech. I the absece of some basis for distiguishig betwee "ewspapers" ad "commercial hadbills" that is relevat to a iterest asserted by the city, we are uwillig to recogize Ciciati's bare assertio that the "low value" of commercial speech is a sufficiet justificatio for its selective ad categorical ba o ewsracks dispesig "commercial hadbills." Our holdig, however, is arrow. As should be clear from the above discussio, we do ot reach the questio whether, give certai facts ad uder certai circumstaces, a commuity might be able to justify differetial treatmet of commercial ad ocommercial ewsracks. We simply hold that o this record Ciciati has failed to make such a showig. Because the distictio Ciciati has draw has absolutely o bearig o the iterests it has asserted, we have o difficulty cocludig, as did the two courts below, that the city has ot established the "fit" betwee its goals ad its chose meas that is required by our opiio i It remais to cosider the city's argumet that its prohibitio is a permissible time, place, ad maer regulatio. IV The Court has held that govermet may impose reasoable restrictios o the time, place, or maer of egagig i protected speech provided that they are adequately justified "`without referece to the cotet of the regulated speech.' " v. Rock Agaist Racism, quotig v. Commuity for Creative NoViolece, Thus, a prohibitio agaist the use of soud trucks emittig "loud ad raucous" oise i residetial eighborhoods is permissible if it applies equally to music, political speech, ad advertisig. See geerally * The city coteds that its regulatio of ewsracks qualifies as such a restrictio because the iterests i safety ad esthetics that it serves are etirely urelated to the cotet of respodets' publicatios. Thus, the argumet goes, the justificatio for the regulatio is cotet eutral. The argumet is upersuasive because the very basis for the regulatio is the differece i cotet betwee ordiary ewspapers ad commercial speech. True, there is o evidece that the city has acted with aimus toward the ideas cotaied withi respodets' publicatios, but just last Term we expressly rejected the argumet that "discrimiatory treatmet is suspect uder the First Amedmet oly whe the legislature iteds to suppress certai ideas." Simo & Schuster, Ic. v. Members of N. Y. State Crime Victims Regardless of the mes rea of the city, it has eacted a sweepig ba o the use of ewsracks that distribute "commercial hadbills," but ot "ewspapers." Uder the city's ewsrack policy, whether ay particular ewsrack falls withi the ba is determied by the cotet of the publicatio restig iside that ewsrack. Thus, by ay commosese uderstadig of the term, the ba i this case is "cotet based." Nor are we persuaded that our statemets that the test for whether a regulatio is cotet based turs o the "justificatio" for the regulatio, see, e. g., 491 U. S., at ; 468 U. S., at compel a differet coclusio. We agree with the city that its desire to limit the total umber of ewsracks is "justified" by its iterests i safety ad esthetics. The city has ot, however, limited the umber of ewsracks; it has limited (to zero) the umber of ewsracks distributig commercial publicatios. As we have explaied, there is o justificatio for that particular regulatio other tha the city's aked assertio that commercial speech has "low value." It is the absece of a eutral *430 justificatio for its selective ba o ewsracks that prevets the city from defedig its ewsrack policy as cotet eutral. By the same reasoig, the city's heavy reliace o Reto v. Playtime Theatres, Ic., is misplaced. I Reto, a city ordiace imposed particular zoig regulatios o movie theaters showig adult films. The Court recogized that the ordiace did ot fall eatly ito the "cotet-based" or "cotet-eutral" category i that "the ordiace treats theaters that specialize i adult films differetly from other kids of theaters." We upheld the regulatio, however, largely because it was justified ot by a iterest i suppressig adult films, but by the city's cocer for the "secodary effects" of such theaters o the surroudig eighborhoods. -49. I cotrast to the speech at issue i Reto, there are o secodary effects attributable to respodet publishers' ewsracks that distiguish them from the ewsracks Ciciati permits to remai o its sidewalks. I sum, the city's ewsrack policy is either cotet eutral or, as demostrated i Part "arrowly tailored." Thus, regardless of whether or ot it leaves ope ample alterative chaels of commuicatio, it caot be justified as a legitimate time, place, or maer restrictio o protected speech. Ciciati has eacted a sweepig ba that bars from its sidewalks a whole class of costitutioally protected speech. As did the District Court ad the Court of Appeals, we coclude that Ciciati has failed to justify that policy. The regulatio is ot a permissible regulatio of commercial speech, for o this record it is clear that the iterests that Ciciati has asserted are urelated to ay distictio betwee "commercial hadbills" ad "ewspapers." Moreover, because the ba is predicated o the cotet of the publicatios distributed by the subject ewsracks, it is ot a valid time, place, or maer restrictio o protected speech. *431 For these reasos, Ciciati's categorical ba o the distributio, via ewsrack, of "commercial hadbills" caot be squared with the dictates of the First Amedmet. The judgmet of the Court of Appeals is Affirmed.

Justice Scalia

dissenting

Morrison v. Olson

https://www.courtlistener.com/opinion/112139/morrison-v-olson/

https://www.courtlistener.com/api/rest/v3/clusters/112139/

1987-149

It is the proud boast of our democracy that we have "a government of laws and not of men." Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows: "In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men." The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty." The Federalist No. 47, p. 301 (C. Rossiter ed. 1961) (hereinafter Federalist). Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours. The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. Article I, § 1, provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United *698 States, which shall consist of a Senate and House of Representatives." Article III, § 1, provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." And the provision at issue here, Art. II, § 1, cl. 1, provides that "[t]he executive Power shall be vested in a President of the United States of America." But just as the mere words of a Bill of Rights are not self-effectuating, the Framers recognized "[t]he insufficiency of a mere parchment delineation of the boundaries" to achieve the separation of powers. Federalist No. 73, p. 442 (A. Hamilton). "[T]he great security," wrote Madison, "against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack." Federalist No. 51, pp. 321-322. Madison continued: "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. . . . As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified." Id., at 322-323. The major "fortification" provided, of course, was the veto power. But in addition to providing fortification, the Founders conspicuously and very consciously declined to sap the Executive's strength in the same way they had weakened *699 the Legislature: by dividing the executive power. Proposals to have multiple executives, or a council of advisers with separate authority were rejected. See 1 M. Farrand, Records of the Federal Convention of 1787, pp. 66, 71-74, 88, 91-92 (rev. ed. 1966); 2 id., at 335-337, 533, 537, 542. Thus, while "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives," U. S. Const., Art. I, § 1 (emphasis added), "[t]he executive Power shall be vested in a President of the United States," Art. II, § 1, cl. 1 (emphasis added). That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish — so that "a gradual concentration of the several powers in the same department," Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf. I The present case began when the Legislative and Executive Branches became "embroiled in a dispute concerning the scope of the congressional investigatory power," United States v. House of Representatives of United States, 556 F. Supp. 150, 152 (DC 1983), which — as is often the case with such interbranch conflicts — became quite acrimonious. In the course of oversight hearings into the administration of the Superfund by the Environmental Protection Agency (EPA), two Subcommittees of the House of Representatives requested and then subpoenaed numerous internal EPA documents. The President responded by personally directing the EPA Administrator not to turn over certain of the documents, *700 see Memorandum of November 30, 1982, from President Reagan for the Administrator, Environmental Protection Agency, reprinted in H. R. Rep. No. 99-435, pp. 1166-1167 (1985), and by having the Attorney General notify the congressional Subcommittees of this assertion of executive privilege, see Letters of November 30, 1982, from Attorney General William French Smith to Hon. John D. Dingell and Hon. Elliott H. Levitas, reprinted, id., at 1168-1177. In his decision to assert executive privilege, the President was counseled by appellee Olson, who was then Assistant Attorney General of the Department of Justice for the Office of Legal Counsel, a post that has traditionally had responsibility for providing legal advice to the President (subject to approval of the Attorney General). The House's response was to pass a resolution citing the EPA Administrator, who had possession of the documents, for contempt. Contempt of Congress is a criminal offense. See 2 U.S. C. § 192. The United States Attorney, however, a member of the Executive Branch, initially took no steps to prosecute the contempt citation. Instead, the Executive Branch sought the immediate assistance of the Third Branch by filing a civil action asking the District Court to declare that the EPA Administrator had acted lawfully in withholding the documents under a claim of executive privilege. See ibid. The District Court declined (in my view correctly) to get involved in the controversy, and urged the other two branches to try "[c]ompromise and cooperation, rather than confrontation." 556 F. Supp., at 153. After further haggling, the two branches eventually reached an agreement giving the House Subcommittees limited access to the contested documents. Congress did not, however, leave things there. Certain Members of the House remained angered by the confrontation, particularly by the role played by the Department of Justice. Specifically, the Judiciary Committee remained disturbed by the possibility that the Department had persuaded the President to assert executive privilege despite reservations by the *701 EPA; that the Department had "deliberately and unnecessarily precipitated a constitutional confrontation with Congress"; that the Department had not properly reviewed and selected the documents as to which executive privilege was asserted; that the Department had directed the United States Attorney not to present the contempt certification involving the EPA Administrator to a grand jury for prosecution; that the Department had made the decision to sue the House of Representatives; and that the Department had not adequately advised and represented the President, the EPA, and the EPA Administrator. H. R. Rep. No. 99-435, p. 3 (1985) (describing unresolved "questions" that were the basis of the Judiciary Committee's investigation). Accordingly, staff counsel of the House Judiciary Committee were commissioned (apparently without the knowledge of many of the Committee's members, see id., at 731) to investigate the Justice Department's role in the controversy. That investigation lasted 2 1/2 years, and produced a 3,000-page report issued by the Committee over the vigorous dissent of all but one of its minority-party members. That report, which among other charges questioned the truthfulness of certain statements made by Assistant Attorney General Olson during testimony in front of the Committee during the early stages of its investigation, was sent to the Attorney General along with a formal request that he appoint an independent counsel to investigate Mr. Olson and others. As a general matter, the Act before us here requires the Attorney General to apply for the appointment of an independent counsel within 90 days after receiving a request to do so, unless he determines within that period that "there are no reasonable grounds to believe that further investigation or prosecution is warranted." 28 U.S. C. § 592(b)(1). As a practical matter, it would be surprising if the Attorney General had any choice (assuming this statute is constitutional) but to seek appointment of an independent counsel to pursue the charges against the principal object of the congressional *702 request, Mr. Olson. Merely the political consequences (to him and the President) of seeming to break the law by refusing to do so would have been substantial. How could it not be, the public would ask, that a 3,000-page indictment drawn by our representatives over 2 1/2 years does not even establish "reasonable grounds to believe" that further investigation or prosecution is warranted with respect to at least the principal alleged culprit? But the Act establishes more than just practical compulsion. Although the Court's opinion asserts that the Attorney General had "no duty to comply with the [congressional] request," ante, at 694, that is not entirely accurate. He had a duty to comply unless he could conclude that there were "no reasonable grounds to believe," not that prosecution was warranted, but merely that "further investigation" was warranted, 28 U.S. C. § 592(b)(1) (1982 ed., Supp. V) (emphasis added), after a 90-day investigation in which he was prohibited from using such routine investigative techniques as grand juries, plea bargaining, grants of immunity, or even subpoenas, see § 592(a)(2). The Court also makes much of the fact that "the courts are specifically prevented from reviewing the Attorney General's decision not to seek appointment, § 592(f)." Ante, at 695. Yes,[1] but Congress is not prevented from reviewing it. The context of this statute is acrid with the smell of threatened impeachment. Where, as here, a request for appointment of an independent *703 counsel has come from the Judiciary Committee of either House of Congress, the Attorney General must, if he decides not to seek appointment, explain to that Committee why. See also 28 U.S. C. § 595(c) (1982 ed., Supp. V) (independent counsel must report to the House of Representatives information "that may constitute grounds for an impeachment"). Thus, by the application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts, and is worth the cost in money and in possible damage to other governmental interests; and not even, leaving aside those normally considered factors, because the President or his authorized subordinates necessarily believe that an investigation is likely to unearth a violation worth prosecuting; but only because the Attorney General cannot affirm, as Congress demands, that there are no reasonable grounds to believe that further investigation is warranted. The decisions regarding the scope of that further investigation, its duration, and, finally, whether or not prosecution should ensue, are likewise beyond the control of the President and his subordinates. II If to describe this case is not to decide it, the concept of a government of separate and coordinate powers no longer has meaning. The Court devotes most of its attention to such relatively technical details as the Appointments Clause and the removal power, addressing briefly and only at the end of its opinion the separation of powers. As my prologue suggests, *704 I think that has it backwards. Our opinions are full of the recognition that it is the principle of separation of powers, and the inseparable corollary that each department's "defense must . . . be made commensurate to the danger of attack," Federalist No. 51, p. 322 (J. Madison), which gives comprehensible content to the Appointments Clause, and determines the appropriate scope of the removal power. Thus, while I will subsequently discuss why our appointments and removal jurisprudence does not support today's holding, I begin with a consideration of the fountainhead of that jurisprudence, the separation and equilibration of powers. First, however, I think it well to call to mind an important and unusual premise that underlies our deliberations, a premise not expressly contradicted by the Court's opinion, but in my view not faithfully observed. It is rare in a case dealing, as this one does, with the constitutionality of a statute passed by the Congress of the United States, not to find anywhere in the Court's opinion the usual, almost formulary caution that we owe great deference to Congress' view that what it has done is constitutional, see, e. g., Rostker v. Goldberg, 453 U.S. 57, 64 (1981); Fullilove v. Klutznick, 448 U.S. 448, 472 (1980) (opinion of Burger, C. J.); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102 (1973); United States v. National Dairy Products Corp., 372 U.S. 29, 32 (1963), and that we will decline to apply the statute only if the presumption of constitutionality can be overcome, see Fullilove, supra, at 473; Columbia Broadcasting, supra, at 103. That caution is not recited by the Court in the present case because it does not apply. Where a private citizen challenges action of the Government on grounds unrelated to separation of powers, harmonious functioning of the system demands that we ordinarily give some deference, or a presumption of validity, to the actions of the political branches in what is agreed, between themselves at least, to be within their respective spheres. But where the issue pertains to separation of powers, *705 and the political branches are (as here) in disagreement, neither can be presumed correct. The reason is stated concisely by Madison: "The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers . . . ." Federalist No. 49, p. 314. The playing field for the present case, in other words, is a level one. As one of the interested and coordinate parties to the underlying constitutional dispute, Congress, no more than the President, is entitled to the benefit of the doubt. To repeat, Article II, § 1, cl. 1, of the Constitution provides: "The executive Power shall be vested in a President of the United States." As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void. The Court concedes that "[t]here is no real dispute that the functions performed by the independent counsel are `executive'," though it qualifies that concession by adding "in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch." Ante, at 691. The qualifier adds nothing but atmosphere. *706 In what other sense can one identify "the executive Power" that is supposed to be vested in the President (unless it includes everything the Executive Branch is given to do) except by reference to what has always and everywhere — if conducted by government at all — been conducted never by the legislature, never by the courts, and always by the executive. There is no possible doubt that the independent counsel's functions fit this description. She is vested with the "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General." 28 U.S. C. § 594(a) (1982 ed., Supp. V) (emphasis added). Governmental investigation and prosecution of crimes is a quintessentially executive function. See Heckler v. Chaney, 470 U.S. 821, 832 (1985); Buckley v. Valeo, 424 U.S. 1, 138 (1976); United States v. Nixon, 418 U.S. 683, 693 (1974). As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute, but I cannot refrain from pointing out that the Court greatly exaggerates the extent of that "some" Presidential control. "Most importan[t]" among these controls, the Court asserts, is the Attorney General's "power to remove the counsel for `good cause.' " Ante, at 696. This is somewhat like referring to shackles as an effective means of locomotion. As we recognized in Humphrey's Executor v. United States, 295 U.S. 602 (1935) — indeed, what Humphrey's Executor was all about — limiting removal power to "good cause" is an impediment to, not an effective grant of, Presidential control. We said that limitation was necessary with respect to members of the Federal Trade Commission, which we found to be "an agency of the legislative and judicial *707 departments," and "wholly disconnected from the executive department," id., at 630, because "it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will." Id., at 629. What we in Humphrey's Executor found to be a means of eliminating Presidential control, the Court today considers the "most importan[t]" means of assuring Presidential control. Congress, of course, operated under no such illusion when it enacted this statute, describing the "good cause" limitation as "protecting the independent counsel's ability to act independently of the President's direct control" since it permits removal only for "misconduct." H. R. Conf. Rep. 100-452, p. 37 (1987). Moving on to the presumably "less important" controls that the President retains, the Court notes that no independent counsel may be appointed without a specific request from the Attorney General. As I have discussed above, the condition that renders such a request mandatory (inability to find "no reasonable grounds to believe" that further investigation is warranted) is so insubstantial that the Attorney General's discretion is severely confined. And once the referral is made, it is for the Special Division to determine the scope and duration of the investigation. See 28 U.S. C. § 593(b) (1982 ed., Supp. V). And in any event, the limited power over referral is irrelevant to the question whether, once appointed, the independent counsel exercises executive power free from the President's control. Finally, the Court points out that the Act directs the independent counsel to abide by general Justice Department policy, except when not "possible." See 28 U.S. C. § 594(f) (1982 ed., Supp. V). The exception alone shows this to be an empty promise. Even without that, however, one would be hard put to come up with many investigative or prosecutorial "policies" (other than those imposed by the Constitution or by Congress through law) that are absolute. Almost all investigative and prosecutorial decisions *708 — including the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted — involve the balancing of innumerable legal and practical considerations. Indeed, even political considerations (in the nonpartisan sense) must be considered, as exemplified by the recent decision of an independent counsel to subpoena the former Ambassador of Canada, producing considerable tension in our relations with that country. See N. Y. Times, May 29, 1987, p. A12, col. 1. Another pre-eminently political decision is whether getting a conviction in a particular case is worth the disclosure of national security information that would be necessary. The Justice Department and our intelligence agencies are often in disagreement on this point, and the Justice Department does not always win. The present Act even goes so far as specifically to take the resolution of that dispute away from the President and give it to the independent counsel. 28 U.S. C. § 594(a)(6) (1982 ed., Supp. V). In sum, the balancing of various legal, practical, and political considerations, none of which is absolute, is the very essence of prosecutorial discretion. To take this away is to remove the core of the prosecutorial function, and not merely "some" Presidential control. As I have said, however, it is ultimately irrelevant how much the statute reduces Presidential control. The case is over when the Court acknowledges, as it must, that "[i]t is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity." Ante, at 695. It effects a revolution in our constitutional jurisprudence for the Court, once it has determined that (1) purely executive functions are at issue here, and (2) those functions have been given to a person whose actions are not fully within the supervision and control of the President, nonetheless to proceed further to sit in judgment of whether "the President's need to control the exercise of [the independent counsel's] *709 discretion is so central to the functioning of the Executive Branch" as to require complete control, ante, at 691 (emphasis added), whether the conferral of his powers upon someone else "sufficiently deprives the President of control over the independent counsel to interfere impermissibly with [his] constitutional obligation to ensure the faithful execution of the laws," ante, at 693 (emphasis added), and whether "the Act give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties," ante, at 696 (emphasis added). It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are. The utter incompatibility of the Court's approach with our constitutional traditions can be made more clear, perhaps, by applying it to the powers of the other two branches. Is it conceivable that if Congress passed a statute depriving itself of less than full and entire control over some insignificant area of legislation, we would inquire whether the matter was "so central to the functioning of the Legislative Branch" as really to require complete control, or whether the statute gives Congress "sufficient control over the surrogate legislator to ensure that Congress is able to perform its constitutionally assigned duties"? Of course we would have none of that. Once we determined that a purely legislative power was at issue we would require it to be exercised, wholly and entirely, by Congress. Or to bring the point closer to home, consider a statute giving to non-Article III judges just a tiny bit of purely judicial power in a relatively insignificant field, with substantial control, though not total control, in the courts — perhaps "clear error" review, which would be a fair judicial equivalent of the Attorney General's "for cause" removal power here. Is there any doubt that we would not pause to inquire whether the matter was "so central to the *710 functioning of the Judicial Branch" as really to require complete control, or whether we retained "sufficient control over the matters to be decided that we are able to perform our constitutionally assigned duties"? We would say that our "constitutionally assigned duties" include complete control over all exercises of the judicial power — or, as the plurality opinion said in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58-59 (1982): "The inexorable command of [Article III] is clear and definite: The judicial power of the United States must be exercised by courts having the attributes prescribed in Art. III." We should say here that the President's constitutionally assigned duties include complete control over investigation and prosecution of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States. Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. See Civil Rights Act of 1964, Title VII, 42 U.S. C. § 2000e et seq. (prohibiting "employers," not defined to include the United States, from discriminating on the basis of race, color, religion, sex, or national origin). No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. See United States v. Will, 449 U.S. 200, 211-217 (1980). A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, "[i]t is a truism that constitutional protections have costs." Coy v. Iowa, post, at 1020. While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty. *711 The checks against any branch's abuse of its exclusive powers are twofold: First, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes, cf. United States v. Lovett, 328 U.S. 303 (1946); and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more "dangerous to the political rights of the Constitution," Federalist No. 78, p. 465) who are guilty of abuse. Political pressures produced special prosecutors — for Teapot Dome and for Watergate, for example — long before this statute created the independent counsel. See Act of Feb. 8, 1924, ch. 16, 43 Stat. 5-6; 38 Fed. Reg. 30738 (1973). The Court has, nonetheless, replaced the clear constitutional prescription that the executive power belongs to the President with a "balancing test." What are the standards to determine how the balance is to be struck, that is, how much removal of Presidential power is too much? Many countries of the world get along with an executive that is much weaker than ours — in fact, entirely dependent upon the continued support of the legislature. Once we depart from the text of the Constitution, just where short of that do we stop? The most amazing feature of the Court's opinion is that it does not even purport to give an answer. It simply announces, with no analysis, that the ability to control the decision whether to investigate and prosecute the President's closest advisers, and indeed the President himself, is not "so central to the functioning of the Executive Branch" as to be constitutionally required to be within the President's control. Apparently that is so because we say it is so. Having abandoned as the basis for our decisionmaking the text of Article II that "the executive Power" must be vested in the President, the Court does not even attempt to craft a substitute criterion — a "justiciable standard," see, e. g., Baker v. Carr, *712 369 U.S. 186, 210 (1962); Coleman v. Miller, 307 U.S. 433, 454-455 (1939), however remote from the Constitution — that today governs, and in the future will govern, the decision of such questions. Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all. In my view, moreover, even as an ad hoc, standardless judgment the Court's conclusion must be wrong. Before this statute was passed, the President, in taking action disagreeable to the Congress, or an executive officer giving advice to the President or testifying before Congress concerning one of those many matters on which the two branches are from time to time at odds, could be assured that his acts and motives would be adjudged — insofar as the decision whether to conduct a criminal investigation and to prosecute is concerned — in the Executive Branch, that is, in a forum attuned to the interests and the policies of the Presidency. That was one of the natural advantages the Constitution gave to the Presidency, just as it gave members of Congress (and their staffs) the advantage of not being prosecutable for anything said or done in their legislative capacities. See U. S. Const., Art. I, § 6, cl. 1; Gravel v. United States, 408 U.S. 606 (1972). It is the very object of this legislation to eliminate that assurance of a sympathetic forum. Unless it can honestly be said that there are "no reasonable grounds to believe" that further investigation is warranted, further investigation must ensure; and the conduct of the investigation, and determination of whether to prosecute, will be given to a person neither selected by nor subject to the control of the President — who will in turn assemble a staff by finding out, presumably, who is willing to put aside whatever else they are doing, for an indeterminate period of time, in order to investigate and prosecute the President or a particular named individual in his administration. The prospect is frightening (as I will discuss *713 at some greater length at the conclusion of this opinion) even outside the context of a bitter, interbranch political dispute. Perhaps the boldness of the President himself will not be affected — though I am not even sure of that. (How much easier it is for Congress, instead of accepting the political damage attendant to the commencement of impeachment proceedings against the President on trivial grounds — or, for that matter, how easy it is for one of the President's political foes outside of Congress — simply to trigger a debilitating criminal investigation of the Chief Executive under this law.) But as for the President's high-level assistants, who typically have no political base of support, it is as utterly unrealistic to think that they will not be intimidated by this prospect, and that their advice to him and their advocacy of his interests before a hostile Congress will not be affected, as it would be to think that the Members of Congress and their staffs would be unaffected by replacing the Speech or Debate Clause with a similar provision. It deeply wounds the President, by substantially reducing the President's ability to protect himself and his staff. That is the whole object of the law, of course, and I cannot imagine why the Court believes it does not succeed. Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. Nothing is so politically effective as the ability to charge that one's opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, "crooks." And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution. The present statute provides ample means for that sort of attack, assuring that massive and lengthy investigations will occur, not merely when the Justice Department in the application of its usual standards believes they are called for, but whenever it *714 cannot be said that there are "no reasonable grounds to believe" they are called for. The statute's highly visible procedures assure, moreover, that unlike most investigations these will be widely known and prominently displayed. Thus, in the 10 years since the institution of the independent counsel was established by law, there have been nine highly publicized investigations, a source of constant political damage to two administrations. That they could not remotely be described as merely the application of "normal" investigatory and prosecutory standards is demonstrated by, in addition to the language of the statute ("no reasonable grounds to believe"), the following facts: Congress appropriates approximately $50 million annually for general legal activities, salaries, and expenses of the Criminal Division of the Department of Justice. See 1989 Budget Request of the Department of Justice, Hearings before a Subcommittee of the House Committee on Appropriations, 100th Cong., 2d Sess., pt. 6, pp. 284-285 (1988) (DOJ Budget Request). This money is used to support "[f]ederal appellate activity," "[o]rganized crime prosecution," "[p]ublic integrity" and "[f]raud" matters, "[n]arcotic & dangerous drug prosecution," "[i]nternal security," "[g]eneral litigation and legal advice," "special investigations," "[p]rosecution support," "[o]rganized crime drug enforcement," and "[m]anagement & administration." Id., at 284. By comparison, between May 1986 and August 1987, four independent counsel (not all of whom were operating for that entire period of time) spent almost $5 million (one-tenth of the amount annually appropriated to the entire Criminal Division), spending almost $1 million in the month of August 1987 alone. See Washington Post, Oct. 21, 1987, p. A21, col. 5. For fiscal year 1989, the Department of Justice has requested $52 million for the entire Criminal Division, DOJ Budget Request 285, and $7 million to support the activities of independent counsel, id., at 25. In sum, this statute does deprive the President of substantial control over the prosecutory functions performed by the *715 independent counsel, and it does substantially affect the balance of powers. That the Court could possibly conclude otherwise demonstrates both the wisdom of our former constitutional system, in which the degree of reduced control and political impairment were irrelevant, since all purely executive power had to be in the President; and the folly of the new system of standardless judicial allocation of powers we adopt today. III As I indicated earlier, the basic separation-of-powers principles I have discussed are what give life and content to our jurisprudence concerning the President's power to appoint and remove officers. The same result of unconstitutionality is therefore plainly indicated by our case law in these areas. Article II, § 2, cl. 2, of the Constitution provides as follows: "[The President] shall nominate, and by and with the Advice and Consent of the the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Because appellant (who all parties and the Court agree is an officer of the United States, ante, at 671, n. 12) was not appointed by the President with the advice and consent of the Senate, but rather by the Special Division of the United States Court of Appeals, her appointment is constitutional only if (1) she is an "inferior" officer within the meaning of the above Clause, and (2) Congress may vest her appointment in a court of law. As to the first of these inquiries, the Court does not attempt to "decide exactly" what establishes the line between *716 principal and "inferior" officers, but is confident that, whatever the line may be, appellant "clearly falls on the `inferior officer' side" of it. Ante, at 671. The Court gives three reasons: First, she "is subject to removal by a higher Executive Branch official," namely, the Attorney General. Ibid. Second, she is "empowered by the Act to perform only certain, limited duties." Ibid. Third, her office is "limited in jurisdiction" and "limited in tenure." Ante, at 672. The first of these lends no support to the view that appellant is an inferior officer. Appellant is removable only for "good cause" or physical or mental incapacity. 28 U.S. C. § 596(a)(1) (1982 ed., Supp. V). By contrast, most (if not all) principal officers in the Executive Branch may be removed by the President at will. I fail to see how the fact that appellant is more difficult to remove than most principal officers helps to establish that she is an inferior officer. And I do not see how it could possibly make any difference to her superior or inferior status that the President's limited power to remove her must be exercised through the Attorney General. If she were removable at will by the Attorney General, then she would be subordinate to him and thus properly designated as inferior; but the Court essentially admits that she is not subordinate. See ante, at 671. If it were common usage to refer to someone as "inferior" who is subject to removal for cause by another, then one would say that the President is "inferior" to Congress. The second reason offered by the Court — that appellant performs only certain, limited duties — may be relevant to whether she is an inferior officer, but it mischaracterizes the extent of her powers. As the Court states: "Admittedly, the Act delegates to appellant [the] `full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice.' " Ibid., quoting 28 U.S. C. § 594(a) (1982 ed., Supp. V) (emphasis *717 added).[2] Moreover, in addition to this general grant of power she is given a broad range of specifically enumerated powers, including a power not even the Attorney General possesses: to "contes[t] in court . . . any claim of privilege or attempt to withhold evidence on grounds of national security." § 594(a)(6).[3] Once all of this is "admitted," it seems *718 to me impossible to maintain that appellant's authority is so "limited" as to render her an inferior officer. The Court seeks to brush this away by asserting that the independent counsel's power does not include any authority to "formulate policy for the Government or the Executive Branch." Ante, at 671. But the same could be said for all officers of the Government, with the single exception of the President. All of them only formulate policy within their respective spheres of responsibility — as does the independent counsel, who must comply with the policies of the Department of Justice only to the extent possible. § 594(f). The final set of reasons given by the Court for why the independent counsel clearly is an inferior officer emphasizes the limited nature of her jurisdiction and tenure. Taking the latter first, I find nothing unusually limited about the independent counsel's tenure. To the contrary, unlike most high ranking Executive Branch officials, she continues to serve until she (or the Special Division) decides that her work is substantially completed. See §§ 596(b)(1), (b)(2). This particular independent prosecutor has already served more than two years, which is at least as long as many Cabinet officials. As to the scope of her jurisdiction, there can be no doubt that is small (though far from unimportant). But within it she exercises more than the full power of the Attorney General. The Ambassador to Luxembourg is not anything less than a principal officer, simply because Luxembourg is small. And the federal judge who sits in a small district is not for that reason "inferior in rank and authority." If the mere fragmentation of executive responsibilities into small compartments suffices to render the heads of each of those compartments inferior officers, then Congress could deprive the President of the right to appoint his chief law enforcement officer by dividing up the Attorney General's responsibilities among a number of "lesser" functionaries. *719 More fundamentally, however, it is not clear from the Court's opinion why the factors it discusses — even if applied correctly to the facts of this case — are determinative of the question of inferior officer status. The apparent source of these factors is a statement in United States v. Germaine, 99 U.S. 508, 511 (1879) (discussing United States v. Hartwell, 6 Wall. 385, 393 (1868)), that "the term [officer] embraces the ideas of tenure, duration, emolument, and duties." See ante, at 672. Besides the fact that this was dictum, it was dictum in a case where the distinguishing characteristics of inferior officers versus superior officers were in no way relevant, but rather only the distinguishing characteristics of an "officer of the United States" (to which the criminal statute at issue applied) as opposed to a mere employee. Rather than erect a theory of who is an inferior officer on the foundation of such an irrelevancy, I think it preferable to look to the text of the Constitution and the division of power that it establishes. These demonstrate, I think, that the independent counsel is not an inferior officer because she is not subordinate to any officer in the Executive Branch (indeed, not even to the President). Dictionaries in use at the time of the Constitutional Convention gave the word "inferiour" two meanings which it still bears today: (1) "[l]ower in place, . . . station,. . . rank of life, . . . value or excellency," and (2) "[s]ubordinate." S. Johnson, Dictionary of the English Language (6th ed. 1785). In a document dealing with the structure (the constitution) of a government, one would naturally expect the word to bear the latter meaning — indeed, in such a context it would be unpardonably careless to use the word unless a relationship of subordination was intended. If what was meant was merely "lower in station or rank," one would use instead a term such as "lesser officers." At the only other point in the Constitution at which the word "inferior" appears, it plainly connotes a relationship of subordination. Article III vests the judicial power of the United States in "one supreme Court, and in such inferior Courts as *720 the Congress may from time to time ordain and establish." U. S. Const., Art. III, § 1 (emphasis added). In Federalist No. 81, Hamilton pauses to describe the "inferior" courts authorized by Article III as inferior in the sense that they are "subordinate" to the Supreme Court. See id., at 485, n., 490, n. That "inferior" means "subordinate" is also consistent with what little we know about the evolution of the Appointments Clause. As originally reported to the Committee on Style, the Appointments Clause provided no "exception" from the standard manner of appointment (President with the advice and consent of the Senate) for inferior officers. 2 M. Farrand, Records of the Federal Convention of 1787, pp. 498-499, 599 (rev. ed. 1966). On September 15, 1787, the last day of the Convention before the proposed Constitution was signed, in the midst of a host of minor changes that were being considered, Gouverneur Morris moved to add the exceptions clause. Id., at 627. No great debate ensued; the only disagreement was over whether it was necessary at all. Id., at 627-628. Nobody thought that it was a fundamental change, excluding from the President's appointment power and the Senate's confirmation power a category of officers who might function on their own, outside the supervision of those appointed in the more cumbersome fashion. And it is significant that in the very brief discussion Madison mentions (as in apparent contrast to the "inferior officers" covered by the provision) "Superior Officers." Id., at 637. Of course one is not a "superior officer" without some supervisory responsibility, just as, I suggest, one is not an "inferior officer" within the meaning of the provision under discussion unless one is subject to supervision by a "superior officer." It is perfectly obvious, therefore, both from the relative brevity of the discussion this addition received, and from the content of that discussion, that it was intended merely to make clear (what Madison thought already was clear, see id., at 627) that those officers appointed by the President with Senate *721 approval could on their own appoint their subordinates, who would, of course, by chain of command still be under the direct control of the President. This interpretation is, moreover, consistent with our admittedly sketchy precedent in this area. For example, in United States v. Eaton, 169 U.S. 331 (1898), we held that the appointment by an Executive Branch official other than the President of a "vice-consul," charged with the duty of temporarily performing the function of the consul, did not violate the Appointments Clause. In doing so, we repeatedly referred to the "vice-consul" as a "subordinate" officer. Id., at 343. See also United States v. Germaine, supra, at 511 (comparing "inferior" commissioners and bureau officers to heads of department, describing the former as "mere . . . subordinates") (dicta); United States v. Hartwell, supra, at 394 (describing clerk appointed by Assistant Treasurer with approval of Secretary of the Treasury as a "subordinate office[r]") (dicta). More recently, in United States v. Nixon, 418 U.S. 683 (1974), we noted that the Attorney General's appointment of the Watergate Special Prosecutor was made pursuant to the Attorney General's "power to appoint subordinate officers to assist him in the discharge of his duties." Id., at 694 (emphasis added). The Court's citation of Nixon as support for its view that the independent counsel is an inferior officer is simply not supported by a reading of the case. We explicitly stated that the Special Prosecutor was a "subordinate office[r]," ibid., because, in the end, the President or the Attorney General could have removed him at any time, if by no other means than amending or revoking the regulation defining his authority. Id., at 696. Nor are any of the other cases cited by the Court in support of its view inconsistent with the natural reading that an inferior officer must at least be subordinate to another officer of the United States. In Ex parte Siebold, 100 U.S. 371 (1880), we upheld the appointment by a court of federal "Judges of Election," who were charged with various duties involving the overseeing *722 of local congressional elections. Contrary to the Court's assertion, see ante, at 673, we did not specifically find that these officials were inferior officers for purposes of the Appointments Clause, probably because no one had contended that they were principal officers. Nor can the case be said to represent even an assumption on our part that they were inferior without being subordinate. The power of assisting in the judging of elections that they were exercising was assuredly not a purely executive power, and if we entertained any assumption it was probably that they, like the marshals who assisted them, see Siebold, 100 U. S., at 380, were subordinate to the courts, see id., at 397. Similarly, in GoBart Importing Co. v. United States, 282 U.S. 344 (1931), where we held that United States commissioners were inferior officers, we made plain that they were subordinate to the district courts which appointed them: "The commissioner acted not as a court, or as a judge of any court, but as a mere officer of the district court in proceedings of which that court had authority to take control at any time." Id., at 354. To be sure, it is not a sufficient condition for "inferior" officer status that one be subordinate to a principal officer. Even an officer who is subordinate to a department head can be a principal officer. That is clear from the brief exchange following Gouverneur Morris' suggestion of the addition of the exceptions clause for inferior officers. Madison responded: "It does not go far enough if it be necessary at all — Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices." 2 M. Farrand, Records of the Federal Convention, of 1787, p. 627 (rev. ed. 1966) (emphasis added). But it is surely a necessary condition for inferior officer status that the officer be subordinate to another officer. The independent counsel is not even subordinate to the President. The Court essentially admits as much, noting that "appellant may not be `subordinate' to the Attorney General *723 (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act." Ante, at 671. In fact, there is no doubt about it. As noted earlier, the Act specifically grants her the "full power and independent authority to exercise all investigative and prosecutorial functions of the Department of Justice," 28 U.S. C. § 594(a) (1982 ed., Supp. V), and makes her removable only for "good cause," a limitation specifically intended to ensure that she be independent of, not subordinate to, the President and the Attorney General. See H. R. Conf. Rep. No. 100-452, p. 37 (1987). Because appellant is not subordinate to another officer, she is not an "inferior" officer and her appointment other than by the President with the advice and consent of the Senate is unconstitutional. IV I will not discuss at any length why the restrictions upon the removal of the independent counsel also violate our established precedent dealing with that specific subject. For most of it, I simply refer the reader to the scholarly opinion of Judge Silberman for the Court of Appeals below. See In re Sealed Case, 267 U. S. App. D. C. 178, 838 F.2d 476 (1988). I cannot avoid commenting, however, about the essence of what the Court has done to our removal jurisprudence today. There is, of course, no provision in the Constitution stating who may remove executive officers, except the provisions for removal by impeachment. Before the present decision it was established, however, (1) that the President's power to remove principal officers who exercise purely executive powers could not be restricted, see Myers v. United States, 272 U.S. 52, 127 (1926), and (2) that his power to remove inferior officers who exercise purely executive powers, and whose appointment Congress had removed from the usual procedure of Presidential appointment with Senate consent, could be restricted, at least where the appointment had been made by *724 an officer of the Executive Branch, see ibid.; United States v. Perkins, 116 U.S. 483, 485 (1886).[4] The Court could have resolved the removal power issue in this case by simply relying upon its erroneous conclusion that the independent counsel was an inferior officer, and then extending our holding that the removal of inferior officers appointed by the Executive can be restricted, to a new holding that even the removal of inferior officers appointed by the courts can be restricted. That would in my view be a considerable and unjustified extension, giving the Executive full discretion in neither the selection nor the removal of a purely executive officer. The course the Court has chosen, however, is even worse. Since our 1935 decision in Humphrey's Executor v. United States, 295 U.S. 602 — which was considered by many at the time the product of an activist, anti-New Deal Court bent on reducing the power of President Franklin Roosevelt — it has been established that the line of permissible restriction upon removal of principal officers lies at the point at which the powers exercised by those officers are no longer purely executive. Thus, removal restrictions have been generally regarded as lawful for so-called "independent regulatory *725 agencies," such as the Federal Trade Commission, see ibid.; 15 U.S. C. § 41, the Interstate Commerce Commission, see 49 U.S. C. § 10301(c) (1982 ed., Supp. IV), and the Consumer Product Safety Commission, see 15 U.S. C. § 2053(a), which engage substantially in what has been called the "quasi-legislative activity" of rulemaking, and for members of Article I courts, such as the Court of Military Appeals, see 10 U.S. C. § 867(a)(2), who engage in the "quasi-judicial" function of adjudication. It has often been observed, correctly in my view, that the line between "purely executive" functions and "quasi-legislative" or "quasi-judicial" functions is not a clear one or even a rational one. See ante, at 689-691; Bowsher v. Synar, 478 U.S. 714, 761, n. 3 (1986) (WHITE, J., dissenting); FTC v. Ruberoid Co., 343 U.S. 470, 487-488 (1952) (Jackson, J., dissenting). But at least it permitted the identification of certain officers, and certain agencies, whose functions were entirely within the control of the President. Congress had to be aware of that restriction in its legislation. Today, however, Humphrey's Executor is swept into the dustbin of repudiated constitutional principles. "[O]ur present considered view," the Court says, "is that the determination of whether the Constitution allows Congress to impose a `good cause'-type restriction on the President's power to remove an official cannot be made to turn on whether or not that official is classified as `purely executive.' " Ante, at 689. What Humphrey's Executor (and presumably Myers) really means, we are now told, is not that there are any "rigid categories of those officials who may or may not be removed at will by the President," but simply that Congress cannot "interefere with the President's exercise of the `executive power' and his constitutionally appointed duty to `take care that the laws be faithfully executed,' " ante, at 689-690. One can hardly grieve for the shoddy treatment given today to Humphrey's Executor, which, after all, accorded the same indignity (with much less justification) to Chief Justice *726 Taft's opinion 10 years earlier in Myers v. United States, 272 U.S. 52 (1926) — gutting, in six quick pages devoid of textual or historical precedent for the novel principle it set forth, a carefully researched and reasoned 70-page opinion. It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit. But one must grieve for the Constitution. Humphrey's Executor at least had the decency formally to observe the constitutional principle that the President had to be the repository of all executive power, see 295 U.S., at 627-628, which, as Myers carefully explained, necessarily means that he must be able to discharge those who do not perform executive functions according to his liking. As we noted in Bowsher, once an officer is appointed " `it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey.' " 478 U.S., at 726, quoting Synar v. United States, 626 F. Supp. 1374, 1401 (DC 1986) (Scalia, Johnson, and Gasch, JJ.). By contrast, "our present considered view" is simply that any executive officer's removal can be restricted, so long as the President remains "able to accomplish his constitutional role." Ante, at 690. There are now no lines. If the removal of a prosecutor, the virtual embodiment of the power to "take care that the laws be faithfully executed," can be restricted, what officer's removal cannot? This is an open invitation for Congress to experiment. What about a special Assistant Secretary of State, with responsibility for one very narrow area of foreign policy, who would not only have to be confirmed by the Senate but could also be removed only pursuant to certain carefully designed restrictions? Could this possibly render the President "[un]able to accomplish his constitutional role"? Or a special Assistant Secretary of Defense for Procurement? The possibilities are endless, and the Court does not understand what the separation of powers, what "[a]mbition . . . counteract[ing] ambition." Federalist No. 51, p. 322 (Madison), is all about, if it does not expect Congress to try them. As far as I can discern from the Court's opinion, it is now *727 open season upon the President's removal power for all executive officers, with not even the superficially principled restriction of Humphrey's Executor as cover. The Court essentially says to the President: "Trust us. We will make sure that you are able to accomplish your constitutional role." I think the Constitution gives the President — and the people — more protection than that. V The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom. Those who hold or have held offices covered by the Ethics in Government Act are entitled to that protection as much as the rest of us, and I conclude my discussion by considering the effect of the Act upon the fairness of the process they receive. Only someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation. Justice Robert Jackson, when he was Attorney General under President Franklin Roosevelt, described it in a memorable speech to United States Attorneys, as follows: "There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff will be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on *728 any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain. "If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself." R. Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys, April 1, 1940. Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect. Moreover, when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable *729 sense of proportion, the President pays the cost in political damage to his administration. If federal prosecutors "pick people that [they] thin[k] [they] should get, rather than cases that need to be prosecuted," if they amass many more resources against a particular prominent individual, or against a particular class of political protesters, or against members of a particular political party, than the gravity of the alleged offenses or the record of successful prosecutions seems to warrant, the unfairness will come home to roost in the Oval Office. I leave it to the reader to recall the examples of this in recent years. That result, of course, was precisely what the Founders had in mind when they provided that all executive powers would be exercised by a single Chief Executive. As Hamilton put it, "[t]he ingredients which constitute safety in the republican sense are a due dependence on the people, and a due responsibility." Federalist No. 70, p. 424. The President is directly dependent on the people, and since there is only one President, he is responsible. The people know whom to blame, whereas "one of the weightiest objections to a plurality in the executive. . . is that it tends to conceal faults and destroy responsibility." Id., at 427. That is the system of justice the rest of us are entitled to, but what of that select class consisting of present or former high-level Executive Branch officials? If an allegation is made against them of any violation of any federal criminal law (except Class B or C misdemeanors or infractions) the Attorney General must give it his attention. That in itself is not objectionable. But if, after a 90-day investigation without the benefit of normal investigatory tools, the Attorney General is unable to say that there are "no reasonable grounds to believe" that further investigation is warranted, a process is set in motion that is not in the full control of persons "dependent on the people," and whose flaws cannot be blamed on the President. An independent counsel is selected, and the scope of his or her authority prescribed, by a *730 panel of judges. What if they are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? There is no remedy for that, not even a political one. Judges, after all, have life tenure, and appointing a surefire enthusiastic prosecutor could hardly be considered an impeachable offense. So if there is anything wrong with the selection, there is effectively no one to blame. The independent counsel thus selected proceeds to assemble a staff. As I observed earlier, in the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"? To be sure, the investigation must relate to the area of criminal offense specified by the life-tenured judges. But that has often been (and nothing prevents it from being) very broad — and should the independent counsel or his or her staff come up with something beyond that scope, nothing prevents him or her from asking the judges to expand his or her authority or, if that does not work, referring it to the Attorney General, whereupon the whole process would recommence and, if there was "reasonable basis to believe" that further investigation was warranted, that new offense would be referred to the Special Division, which would in all likelihood assign it to the same *731 independent counsel. It seems to me not conducive to fairness. But even if it were entirely evident that unfairness was in fact the result — the judges hostile to the administration, the independent counsel an old foe of the President, the staff refugees from the recently defeated administration — there would be no one accountable to the public to whom the blame could be assigned. I do not mean to suggest that anything of this sort (other than the inevitable self-selection of the prosecutory staff) occurred in the present case. I know and have the highest regard for the judges on the Special Division, and the independent counsel herself is a woman of accomplishment, impartiality, and integrity. But the fairness of a process must be adjudged on the basis of what it permits to happen, not what it produced in a particular case. It is true, of course, that a similar list of horribles could be attributed to an ordinary Justice Department prosecution — a vindictive prosecutor, an antagonistic staff, etc. But the difference is the difference that the Founders envisioned when they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished. The above described possibilities of irresponsible conduct must, as I say, be considered in judging the constitutional acceptability of this process. But they will rarely occur, and in the average case the threat to fairness is quite different. As described in the brief filed on behalf of three ex-Attorneys General from each of the last three administrations: "The problem is less spectacular but much more worrisome. It is that the institutional environment of the Independent Counsel — specifically, her isolation from the Executive Branch and the internal checks and balances it supplies — is designed to heighten, not to check, all of the occupational hazards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests." Brief for Edward *732 H. Levi, Griffin B. Bell, and William French Smith as Amici Curiae 11. It is, in other words, an additional advantage of the unitary Executive that it can achieve a more uniform application of the law. Perhaps that is not always achieved, but the mechanism to achieve it is there. The mini-Executive that is the independent counsel, however, operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide. What would normally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year. How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile — with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it. * * * The notion that every violation of law should be prosecuted, including — indeed, especially — every violation by those in high places, is an attractive one, and it would be risky to argue in an election campaign that that is not an absolutely overriding value. Fiat justitia, ruat coelum. Let justice be done, though the heavens may fall. The reality is, however, that it is not an absolutely overriding value, and it *733 was with the hope that we would be able to acknowledge and apply such realities that the Constitution spared us, by life tenure, the necessity of election campaigns. I cannot imagine that there are not many thoughtful men and women in Congress who realize that the benefits of this legislation are far outweighed by its harmful effect upon our system of government, and even upon the nature of justice received by those men and women who agree to serve in the Executive Branch. But it is difficult to vote not to enact, and even more difficult to vote to repeal, a statute called, appropriately enough, the Ethics in Government Act. If Congress is controlled by the party other than the one to which the President belongs, it has little incentive to repeal it; if it is controlled by the same party, it dare not. By its shortsighted action today, I fear the Court has permanently encumbered the Republic with an institution that will do it great harm. Worse than what it has done, however, is the manner in which it has done it. A government of laws means a government of rules. Today's decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law. It extends into the very heart of our most significant constitutional function the "totality of the circumstances" mode of analysis that this Court has in recent years become fond of. Taking all things into account, we conclude that the power taken away from the President here is not really too much. The next time executive power is assigned to someone other than the President we may conclude, taking all things into account, that it is too much. That opinion, like this one, will not be confined by any rule. We will describe, as we have today (though I hope more accurately) the effects of the provision in question, and will authoritatively announce: "The President's need to control the exercise of the [subject officer's] discretion is so central to the functioning of the Executive Branch as to require complete control." This is not analysis; it is ad hoc judgment. And it fails to explain why it is not true that — as the text of *734 the Constitution seems to require, as the Founders seemed to expect, and as our past cases have uniformly assumed — all purely executive power must be under the control of the President. The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that "[t]he executive Power shall be vested in a President of the United States."

It is the proud boast of our democracy that we have "a government of laws and not of men." Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows: "In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men." The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty." The Federalist No. 47, p. 301 (C. Rossiter ed. 1961) (hereinafter Federalist). Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours. The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. Article I, 1, provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United *698 States, which shall consist of a Senate and House of Representatives." Article III, 1, provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." And the provision at issue here, Art. II, 1, cl. 1, provides that "[t]he executive Power shall be vested in a President of the United States of America." But just as the mere words of a Bill of Rights are not self-effectuating, the Framers recognized "[t]he insufficiency of a mere parchment delineation of the boundaries" to achieve the separation of powers. Federalist No. 73, p. 442 (A. Hamilton). "[T]he great security," wrote Madison, "against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack." Federalist No. 51, pp. 1-2. Madison continued: "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified." The major "fortification" provided, of course, was the veto power. But in addition to providing fortification, the Founders conspicuously and very consciously declined to sap the Executive's strength in the same way they had weakened *699 the Legislature: by dividing the executive power. Proposals to have multiple executives, or a council of advisers with separate authority were rejected. See 1 M. Farrand, Records of the Federal Convention of 1787, pp. 66, 71-74, 88, 91-92 (rev. ed. 1966); 2 Thus, while "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives," U. S. Const., Art. I, 1 "[t]he executive Power shall be vested in a President of the United States," Art. II, 1, cl. 1 That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish — so that "a gradual concentration of the several powers in the same department," Federalist No. 51, p. 1 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf. I The present case began when the Legislative and Executive Branches became "embroiled in a dispute concerning the scope of the congressional investigatory power," United which — as is often the case with such interbranch conflicts — became quite acrimonious. In the course of oversight hearings into the administration of the Superfund by the Environmental Protection Agency (EPA), two Subcommittees of the House of Representatives requested and then subpoenaed numerous internal EPA documents. The President responded by personally directing the EPA Administrator not to turn over certain of the documents, *700 see Memorandum of November 30, 1982, from President Reagan for the Administrator, Environmental Protection Agency, reprinted in H. R. Rep. No. 99-435, pp. 1166-1167 and by having the Attorney General notify the congressional Subcommittees of this assertion of executive privilege, see Letters of November 30, 1982, from Attorney General William French Smith to Hon. John D. Dingell and Hon. Elliott H. Levitas, reprinted, In his decision to assert executive privilege, the President was counseled by appellee Olson, who was then Assistant Attorney General of the Department of Justice for the Office of Legal Counsel, a post that has traditionally had responsibility for providing legal advice to the President (subject to approval of the Attorney General). The House's response was to pass a resolution citing the EPA Administrator, who had possession of the documents, for contempt. Contempt of Congress is a criminal offense. See 2 U.S. C. 192. The United States Attorney, however, a member of the Executive Branch, initially took no steps to prosecute the contempt citation. Instead, the Executive Branch sought the immediate assistance of the Third Branch by filing a civil action asking the District Court to declare that the EPA Administrator had acted lawfully in withholding the documents under a claim of executive privilege. See The District Court declined (in my view correctly) to get involved in the controversy, and urged the other two branches to try "[c]ompromise and cooperation, rather than confrontation." After further haggling, the two branches eventually reached an agreement giving the House Subcommittees limited access to the contested documents. Congress did not, however, leave things there. Certain Members of the House remained angered by the confrontation, particularly by the role played by the Department of Justice. Specifically, the Judiciary Committee remained disturbed by the possibility that the Department had persuaded the President to assert executive privilege despite reservations by the *701 EPA; that the Department had "deliberately and unnecessarily precipitated a constitutional confrontation with Congress"; that the Department had not properly reviewed and selected the documents as to which executive privilege was asserted; that the Department had directed the United States Attorney not to present the contempt certification involving the EPA Administrator to a grand jury for prosecution; that the Department had made the decision to sue the House of Representatives; and that the Department had not adequately advised and represented the President, the EPA, and the EPA Administrator. H. R. Rep. No. 99-435, p. 3 (describing unresolved "questions" that were the basis of the Judiciary Committee's investigation). Accordingly, staff counsel of the House Judiciary Committee were commissioned (apparently without the knowledge of many of the Committee's members, see ) to investigate the Justice Department's role in the controversy. That investigation lasted 2 1/2 years, and produced a 3,000-page report issued by the Committee over the vigorous dissent of all but one of its minority-party members. That report, which among other charges questioned the truthfulness of certain statements made by Assistant Attorney General Olson during testimony in front of the Committee during the early stages of its investigation, was sent to the Attorney General along with a formal request that he appoint an independent counsel to investigate Mr. Olson and others. As a general matter, the Act before us here requires the Attorney General to apply for the appointment of an independent counsel within 90 days after receiving a request to do so, unless he determines within that period that "there are no reasonable grounds to believe that further investigation or prosecution is warranted." 28 U.S. C. 592(b)(1). As a practical matter, it would be surprising if the Attorney General had any choice (assuming this statute is constitutional) but to seek appointment of an independent counsel to pursue the charges against the principal object of the congressional *702 request, Mr. Olson. Merely the political consequences (to him and the President) of seeming to break the law by refusing to do so would have been substantial. How could it not be, the public would ask, that a 3,000-page indictment drawn by our representatives over 2 1/2 years does not even establish "reasonable grounds to believe" that further investigation or prosecution is warranted with respect to at least the principal alleged culprit? But the Act establishes more than just practical compulsion. Although the Court's opinion asserts that the Attorney General had "no duty to comply with the [congressional] request," ante, that is not entirely accurate. He had a duty to comply unless he could conclude that there were "no reasonable grounds to believe," not that prosecution was warranted, but merely that "further investigation" was warranted, 28 U.S. C. 592(b)(1) (1982 ed., Supp. V) after a 90-day investigation in which he was prohibited from using such routine investigative techniques as grand juries, plea bargaining, grants of immunity, or even subpoenas, see 592(a)(2). The Court also makes much of the fact that "the courts are specifically prevented from reviewing the Attorney General's decision not to seek appointment, 592(f)." Ante, at 695. Yes,[1] but Congress is not prevented from reviewing it. The context of this statute is acrid with the smell of threatened impeachment. Where, as here, a request for appointment of an independent *703 counsel has come from the Judiciary Committee of either House of Congress, the Attorney General must, if he decides not to seek appointment, explain to that Committee why. See also 28 U.S. C. 595(c) (1982 ed., Supp. V) (independent counsel must report to the House of Representatives information "that may constitute grounds for an impeachment"). Thus, by the application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts, and is worth the cost in money and in possible damage to other governmental interests; and not even, leaving aside those normally considered factors, because the President or his authorized subordinates necessarily believe that an investigation is likely to unearth a violation worth prosecuting; but only because the Attorney General cannot affirm, as Congress demands, that there are no reasonable grounds to believe that further investigation is warranted. The decisions regarding the scope of that further investigation, its duration, and, finally, whether or not prosecution should ensue, are likewise beyond the control of the President and his subordinates. II If to describe this case is not to decide it, the concept of a government of separate and coordinate powers no longer has meaning. The Court devotes most of its attention to such relatively technical details as the Appointments Clause and the removal power, addressing briefly and only at the end of its opinion the separation of powers. As my prologue suggests, *704 I think that has it backwards. Our opinions are full of the recognition that it is the principle of separation of powers, and the inseparable corollary that each department's "defense must be made commensurate to the danger of attack," Federalist No. 51, p. 2 (J. Madison), which gives comprehensible content to the Appointments Clause, and determines the appropriate scope of the removal power. Thus, while I will subsequently discuss why our appointments and removal jurisprudence does not support today's holding, I begin with a consideration of the fountainhead of that jurisprudence, the separation and equilibration of powers. First, however, I think it well to call to mind an important and unusual premise that underlies our deliberations, a premise not expressly contradicted by the Court's opinion, but in my view not faithfully observed. It is rare in a case dealing, as this one does, with the constitutionality of a statute passed by the Congress of the United States, not to find anywhere in the Court's opinion the usual, almost formulary caution that we owe great deference to Congress' view that what it has done is constitutional, see, e. g., ; ; Columbia System, ; United and that we will decline to apply the statute only if the presumption of constitutionality can be overcome, see ; Columbia That caution is not recited by the Court in the present case because it does not apply. Where a private citizen challenges action of the Government on grounds unrelated to separation of powers, harmonious functioning of the system demands that we ordinarily give some deference, or a presumption of validity, to the actions of the political branches in what is agreed, between themselves at least, to be within their respective spheres. But where the issue pertains to separation of powers, *705 and the political branches are (as here) in disagreement, neither can be presumed correct. The reason is stated concisely by Madison: "The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers" Federalist No. 49, p. 314. The playing field for the present case, in other words, is a level one. As one of the interested and coordinate parties to the underlying constitutional dispute, Congress, no more than the President, is entitled to the benefit of the doubt. To repeat, Article II, 1, cl. 1, of the Constitution provides: "The executive Power shall be vested in a President of the United States." As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void. The Court concedes that "[t]here is no real dispute that the functions performed by the independent counsel are `executive'," though it qualifies that concession by adding "in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch." Ante, at 691. The qualifier adds nothing but atmosphere. *706 In what other sense can one identify "the executive Power" that is supposed to be vested in the President (unless it includes everything the Executive Branch is given to do) except by reference to what has always and everywhere — if conducted by government at all — been conducted never by the legislature, never by the courts, and always by the executive. There is no possible doubt that the independent counsel's functions fit this description. She is vested with the "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General." 28 U.S. C. 594(a) (1982 ed., Supp. V) Governmental investigation and prosecution of crimes is a quintessentially executive function. See 8 ; ; United As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute, but I cannot refrain from pointing out that the Court greatly exaggerates the extent of that "some" Presidential control. "Most importan[t]" among these controls, the Court asserts, is the Attorney General's "power to remove the counsel for `good cause.' " Ante, This is somewhat like referring to shackles as an effective means of locomotion. As we recognized in Humphrey's — indeed, what Humphrey's Executor was all about — limiting removal power to "good cause" is an impediment to, not an effective grant of, Presidential control. We said that limitation was necessary with respect to members of the Federal Trade Commission, which we found to be "an agency of the legislative and judicial *707 departments," and "wholly disconnected from the executive department," because "it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will." What we in Humphrey's Executor found to be a means of eliminating Presidential control, the Court today considers the "most importan[t]" means of assuring Presidential control. Congress, of course, operated under no such illusion when it enacted this statute, describing the "good cause" limitation as "protecting the independent counsel's ability to act independently of the President's direct control" since it permits removal only for "misconduct." H. R. Conf. Rep. 100-452, p. 37 (1987). Moving on to the presumably "less important" controls that the President retains, the Court notes that no independent counsel may be appointed without a specific request from the Attorney General. As I have discussed above, the condition that renders such a request mandatory (inability to find "no reasonable grounds to believe" that further investigation is warranted) is so insubstantial that the Attorney General's discretion is severely confined. And once the referral is made, it is for the Special Division to determine the scope and duration of the investigation. See 28 U.S. C. 593(b) (1982 ed., Supp. V). And in any event, the limited power over referral is irrelevant to the question whether, once appointed, the independent counsel exercises executive power free from the President's control. Finally, the Court points out that the Act directs the independent counsel to abide by general Justice Department policy, except when not "possible." See 28 U.S. C. 594(f) (1982 ed., Supp. V). The exception alone shows this to be an empty promise. Even without that, however, one would be hard put to come up with many investigative or prosecutorial "policies" (other than those imposed by the Constitution or by Congress through law) that are absolute. Almost all investigative and prosecutorial decisions *708 — including the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted — involve the balancing of innumerable legal and practical considerations. Indeed, even political considerations (in the nonpartisan sense) must be considered, as exemplified by the recent decision of an independent counsel to subpoena the former Ambassador of Canada, producing considerable tension in our relations with that country. See N. Y. Times, May 29, 1987, p. A12, col. 1. Another pre-eminently political decision is whether getting a conviction in a particular case is worth the disclosure of national security information that would be necessary. The Justice Department and our intelligence agencies are often in disagreement on this point, and the Justice Department does not always win. The present Act even goes so far as specifically to take the resolution of that dispute away from the President and give it to the independent counsel. 28 U.S. C. 594(a)(6) (1982 ed., Supp. V). In sum, the balancing of various legal, practical, and political considerations, none of which is absolute, is the very essence of prosecutorial discretion. To take this away is to remove the core of the prosecutorial function, and not merely "some" Presidential control. As I have said, however, it is ultimately irrelevant how much the statute reduces Presidential control. The case is over when the Court acknowledges, as it must, that "[i]t is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity." Ante, at 695. It effects a revolution in our constitutional jurisprudence for the Court, once it has determined that (1) purely executive functions are at issue here, and (2) those functions have been given to a person whose actions are not fully within the supervision and control of the President, nonetheless to proceed further to sit in judgment of whether "the President's need to control the exercise of [the independent counsel's] *709 discretion is so central to the functioning of the Executive Branch" as to require complete control, ante, at 691 whether the conferral of his powers upon someone else "sufficiently deprives the President of control over the independent counsel to interfere impermissibly with [his] constitutional obligation to ensure the faithful execution of the laws," ante, at and whether "the Act give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties," ante, It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are. The utter incompatibility of the Court's approach with our constitutional traditions can be made more clear, perhaps, by applying it to the powers of the other two branches. Is it conceivable that if Congress passed a statute depriving itself of less than full and entire control over some insignificant area of legislation, we would inquire whether the matter was "so central to the functioning of the Legislative Branch" as really to require complete control, or whether the statute gives Congress "sufficient control over the surrogate legislator to ensure that Congress is able to perform its constitutionally assigned duties"? Of course we would have none of that. Once we determined that a purely legislative power was at issue we would require it to be exercised, wholly and entirely, by Congress. Or to bring the point closer to home, consider a statute giving to non-Article III judges just a tiny bit of purely judicial power in a relatively insignificant field, with substantial control, though not total control, in the courts — perhaps "clear error" review, which would be a fair judicial equivalent of the Attorney General's "for cause" removal power here. Is there any doubt that we would not pause to inquire whether the matter was "so central to the *710 functioning of the Judicial Branch" as really to require complete control, or whether we retained "sufficient control over the matters to be decided that we are able to perform our constitutionally assigned duties"? We would say that our "constitutionally assigned duties" include complete control over all exercises of the judicial power — or, as the plurality opinion said in Northern Pipeline Construction : "The inexorable command of [Article III] is clear and definite: The judicial power of the United States must be exercised by courts having the attributes prescribed in Art. III." We should say here that the President's constitutionally assigned duties include complete control over investigation and prosecution of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States. Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. See Civil Rights Act of 19, Title VII, 42 U.S. C. 2000e et seq. (prohibiting "employers," not defined to include the United States, from discriminating on the basis of race, color, religion, sex, or national origin). No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. See United A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, "[i]t is a truism that constitutional protections have costs." Coy v. Iowa, post, at 0. While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty. *711 The checks against any branch's abuse of its exclusive powers are twofold: First, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes, cf. United 8 U.S. 303 ; and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more "dangerous to the political rights of the Constitution," Federalist No. 78, p. 465) who are guilty of abuse. Political pressures produced special prosecutors — for Teapot Dome and for Watergate, for example — long before this statute created the independent counsel. See Act of Feb. 8, 1924, ch. 16, -6; The Court has, nonetheless, replaced the clear constitutional prescription that the executive power belongs to the President with a "balancing test." What are the standards to determine how the balance is to be struck, that is, how much removal of Presidential power is too much? Many countries of the world get along with an executive that is much weaker than ours — in fact, entirely dependent upon the continued support of the legislature. Once we depart from the text of the Constitution, just where short of that do we stop? The most amazing feature of the Court's opinion is that it does not even purport to give an answer. It simply announces, with no analysis, that the ability to control the decision whether to investigate and prosecute the President's closest advisers, and indeed the President himself, is not "so central to the functioning of the Executive Branch" as to be constitutionally required to be within the President's control. Apparently that is so because we say it is so. Having abandoned as the basis for our decisionmaking the text of Article II that "the executive Power" must be vested in the President, the Court does not even attempt to craft a substitute criterion — a "justiciable standard," see, e. g., ; however remote from the Constitution — that today governs, and in the future will govern, the decision of such questions. Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all. In my view, moreover, even as an ad hoc, standardless judgment the Court's conclusion must be wrong. Before this statute was passed, the President, in taking action disagreeable to the Congress, or an executive officer giving advice to the President or testifying before Congress concerning one of those many matters on which the two branches are from time to time at odds, could be assured that his acts and motives would be adjudged — insofar as the decision whether to conduct a criminal investigation and to prosecute is concerned — in the Executive Branch, that is, in a forum attuned to the interests and the policies of the Presidency. That was one of the natural advantages the Constitution gave to the Presidency, just as it gave members of Congress (and their staffs) the advantage of not being prosecutable for anything said or done in their legislative capacities. See U. S. Const., Art. I, 6, cl. 1; It is the very object of this legislation to eliminate that assurance of a sympathetic forum. Unless it can honestly be said that there are "no reasonable grounds to believe" that further investigation is warranted, further investigation must ensure; and the conduct of the investigation, and determination of whether to prosecute, will be given to a person neither selected by nor subject to the control of the President — who will in turn assemble a staff by finding out, presumably, who is willing to put aside whatever else they are doing, for an indeterminate period of time, in order to investigate and prosecute the President or a particular named individual in his administration. The prospect is frightening (as I will discuss *713 at some greater length at the conclusion of this opinion) even outside the context of a bitter, interbranch political dispute. Perhaps the boldness of the President himself will not be affected — though I am not even sure of that. (How much easier it is for Congress, instead of accepting the political damage attendant to the commencement of impeachment proceedings against the President on trivial grounds — or, for that matter, how easy it is for one of the President's political foes outside of Congress — simply to trigger a debilitating criminal investigation of the Chief Executive under this law.) But as for the President's high-level assistants, who typically have no political base of support, it is as utterly unrealistic to think that they will not be intimidated by this prospect, and that their advice to him and their advocacy of his interests before a hostile Congress will not be affected, as it would be to think that the Members of Congress and their staffs would be unaffected by replacing the Speech or Debate Clause with a similar provision. It deeply wounds the President, by substantially reducing the President's ability to protect himself and his staff. That is the whole object of the law, of course, and I cannot imagine why the Court believes it does not succeed. Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. Nothing is so politically effective as the ability to charge that one's opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, "crooks." And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution. The present statute provides ample means for that sort of attack, assuring that massive and lengthy investigations will occur, not merely when the Justice Department in the application of its usual standards believes they are called for, but whenever it *714 cannot be said that there are "no reasonable grounds to believe" they are called for. The statute's highly visible procedures assure, moreover, that unlike most investigations these will be widely known and prominently displayed. Thus, in the 10 years since the institution of the independent counsel was established by law, there have been nine highly publicized investigations, a source of constant political damage to two administrations. That they could not remotely be described as merely the application of "normal" investigatory and prosecutory standards is demonstrated by, in addition to the language of the statute ("no reasonable grounds to believe"), the following facts: Congress appropriates approximately $50 million annually for general legal activities, salaries, and expenses of the Criminal Division of the Department of Justice. See 1989 Budget Request of the Department of Justice, Hearings before a Subcommittee of the House Committee on Appropriations, 100th Cong., 2d Sess., pt. 6, pp. 284-285 (DOJ Budget Request). This money is used to support "[f]ederal appellate activity," "[o]rganized crime prosecution," "[p]ublic integrity" and "[f]raud" matters, "[n]arcotic & dangerous drug prosecution," "[i]nternal security," "[g]eneral litigation and legal advice," "special investigations," "[p]rosecution support," "[o]rganized crime drug enforcement," and "[m]anagement & administration." By comparison, between May and August 1987, four independent counsel (not all of whom were operating for that entire period of time) spent almost $5 million (one-tenth of the amount annually appropriated to the entire Criminal Division), spending almost $1 million in the month of August 1987 alone. See Washington Post, Oct. 21, 1987, p. A21, col. 5. For fiscal year 1989, the Department of Justice has requested $52 million for the entire Criminal Division, DOJ Budget Request 285, and $7 million to support the activities of independent counsel, In sum, this statute does deprive the President of substantial control over the prosecutory functions performed by the *715 independent counsel, and it does substantially affect the balance of powers. That the Court could possibly conclude otherwise demonstrates both the wisdom of our former constitutional system, in which the degree of reduced control and political impairment were irrelevant, since all purely executive power had to be in the President; and the folly of the new system of standardless judicial allocation of powers we adopt today. III As I indicated earlier, the basic separation-of-powers principles I have discussed are what give life and content to our jurisprudence concerning the President's power to appoint and remove officers. The same result of unconstitutionality is therefore plainly indicated by our case law in these areas. Article II, 2, cl. 2, of the Constitution provides as follows: "[The President] shall nominate, and by and with the Advice and Consent of the the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Because appellant (who all parties and the Court agree is an officer of the United States, ante, at 671, n. 12) was not appointed by the President with the advice and consent of the Senate, but rather by the Special Division of the United States Court of Appeals, her appointment is constitutional only if (1) she is an "inferior" officer within the meaning of the above Clause, and (2) Congress may vest her appointment in a court of law. As to the first of these inquiries, the Court does not attempt to "decide exactly" what establishes the line between *716 principal and "inferior" officers, but is confident that, whatever the line may be, appellant "clearly falls on the `inferior officer' side" of it. Ante, at 671. The Court gives three reasons: First, she "is subject to removal by a higher Executive Branch official," namely, the Attorney General. Second, she is "empowered by the Act to perform only certain, limited duties." Third, her office is "limited in jurisdiction" and "limited in tenure." Ante, at 672. The first of these lends no support to the view that appellant is an inferior officer. Appellant is removable only for "good cause" or physical or mental incapacity. 28 U.S. C. 596(a)(1) (1982 ed., Supp. V). By contrast, most (if not all) principal officers in the Executive Branch may be removed by the President at will. I fail to see how the fact that appellant is more difficult to remove than most principal officers helps to establish that she is an inferior officer. And I do not see how it could possibly make any difference to her superior or inferior status that the President's limited power to remove her must be exercised through the Attorney General. If she were removable at will by the Attorney General, then she would be subordinate to him and thus properly designated as inferior; but the Court essentially admits that she is not subordinate. See ante, at 671. If it were common usage to refer to someone as "inferior" who is subject to removal for cause by another, then one would say that the President is "inferior" to Congress. The second reason offered by the Court — that appellant performs only certain, limited duties — may be relevant to whether she is an inferior officer, but it mischaracterizes the extent of her powers. As the Court states: "Admittedly, the Act delegates to appellant [the] `full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice.' " Ib quoting 28 U.S. C. 594(a) (1982 ed., Supp. V) (emphasis *717 added).[2] Moreover, in addition to this general grant of power she is given a broad range of specifically enumerated powers, including a power not even the Attorney General possesses: to "contes[t] in court any claim of privilege or attempt to withhold evidence on grounds of national security." 594(a)(6).[3] Once all of this is "admitted," it seems *718 to me impossible to maintain that appellant's authority is so "limited" as to render her an inferior officer. The Court seeks to brush this away by asserting that the independent counsel's power does not include any authority to "formulate policy for the Government or the Executive Branch." Ante, at 671. But the same could be said for all officers of the Government, with the single exception of the President. All of them only formulate policy within their respective spheres of responsibility — as does the independent counsel, who must comply with the policies of the Department of Justice only to the extent possible. 594(f). The final set of reasons given by the Court for why the independent counsel clearly is an inferior officer emphasizes the limited nature of her jurisdiction and tenure. Taking the latter first, I find nothing unusually limited about the independent counsel's tenure. To the contrary, unlike most high ranking Executive Branch officials, she continues to serve until she (or the Special Division) decides that her work is substantially completed. See 596(b)(1), (b)(2). This particular independent prosecutor has already served more than two years, which is at least as long as many Cabinet officials. As to the scope of her jurisdiction, there can be no doubt that is small (though far from unimportant). But within it she exercises more than the full power of the Attorney General. The Ambassador to Luxembourg is not anything less than a principal officer, simply because Luxembourg is small. And the federal judge who sits in a small district is not for that reason "inferior in rank and authority." If the mere fragmentation of executive responsibilities into small compartments suffices to render the heads of each of those compartments inferior officers, then Congress could deprive the President of the right to appoint his chief law enforcement officer by dividing up the Attorney General's responsibilities among a number of "lesser" functionaries. *719 More fundamentally, however, it is not clear from the Court's opinion why the factors it discusses — even if applied correctly to the facts of this case — are determinative of the question of inferior officer status. The apparent source of these factors is a statement in United that "the term [officer] embraces the ideas of tenure, duration, emolument, and duties." See ante, at 672. Besides the fact that this was dictum, it was dictum in a case where the distinguishing characteristics of inferior officers versus superior officers were in no way relevant, but rather only the distinguishing characteristics of an "officer of the United States" (to which the criminal statute at issue applied) as opposed to a mere employee. Rather than erect a theory of who is an inferior officer on the foundation of such an irrelevancy, I think it preferable to look to the text of the Constitution and the division of power that it establishes. These demonstrate, I think, that the independent counsel is not an inferior officer because she is not subordinate to any officer in the Executive Branch (indeed, not even to the President). Dictionaries in use at the time of the Constitutional Convention gave the word "inferiour" two meanings which it still bears today: (1) "[l]ower in place, station,. rank of life, value or excellency," and (2) "[s]ubordinate." S. Johnson, Dictionary of the English Language (6th ed. 1785). In a document dealing with the structure (the constitution) of a government, one would naturally expect the word to bear the latter meaning — indeed, in such a context it would be unpardonably careless to use the word unless a relationship of subordination was intended. If what was meant was merely "lower in station or rank," one would use instead a term such as "lesser officers." At the only other point in the Constitution at which the word "inferior" appears, it plainly connotes a relationship of subordination. Article III vests the judicial power of the United States in "one supreme Court, and in such inferior Courts as *720 the Congress may from time to time ordain and establish." U. S. Const., Art. III, 1 In Federalist No. 81, Hamilton pauses to describe the "inferior" courts authorized by Article III as inferior in the sense that they are "subordinate" to the Supreme Court. See n., 490, n. That "inferior" means "subordinate" is also consistent with what little we know about the evolution of the Appointments Clause. As originally reported to the Committee on Style, the Appointments Clause provided no "exception" from the standard manner of appointment (President with the advice and consent of the Senate) for inferior officers. 2 M. Farrand, Records of the Federal Convention of 1787, pp. 498-499, 599 (rev. ed. 1966). On September 15, 1787, the last day of the Convention before the proposed Constitution was signed, in the midst of a host of minor changes that were being considered, Gouverneur Morris moved to add the exceptions clause. No great debate ensued; the only disagreement was over whether it was necessary at all. -628. Nobody thought that it was a fundamental change, excluding from the President's appointment power and the Senate's confirmation power a category of officers who might function on their own, outside the supervision of those appointed in the more cumbersome fashion. And it is significant that in the very brief discussion Madison mentions (as in apparent contrast to the "inferior officers" covered by the provision) "Superior Officers." Of course one is not a "superior officer" without some supervisory responsibility, just as, I suggest, one is not an "inferior officer" within the meaning of the provision under discussion unless one is subject to supervision by a "superior officer." It is perfectly obvious, therefore, both from the relative brevity of the discussion this addition received, and from the content of that discussion, that it was intended merely to make clear (what Madison thought already was clear, see ) that those officers appointed by the President with Senate *721 approval could on their own appoint their subordinates, who would, of course, by chain of command still be under the direct control of the President. This interpretation is, moreover, consistent with our admittedly sketchy precedent in this area. For example, in United we held that the appointment by an Executive Branch official other than the President of a "vice-consul," charged with the duty of temporarily performing the function of the consul, did not violate the Appointments Clause. In doing so, we repeatedly referred to the "vice-consul" as a "subordinate" officer. See also United at (dicta); United (dicta). More recently, in United we noted that the Attorney General's appointment of the Watergate Special Prosecutor was made pursuant to the Attorney General's "power to appoint subordinate officers to assist him in the discharge of his duties." The Court's citation of Nixon as support for its view that the independent counsel is an inferior officer is simply not supported by a reading of the case. We explicitly stated that the Special Prosecutor was a "subordinate office[r]," ib because, in the end, the President or the Attorney General could have removed him at any time, if by no other means than amending or revoking the regulation defining his authority. Nor are any of the other cases cited by the Court in support of its view inconsistent with the natural reading that an inferior officer must at least be subordinate to another officer of the United States. In Ex parte we upheld the appointment by a court of federal "Judges of Election," who were charged with various duties involving the overseeing *722 of local congressional elections. Contrary to the Court's assertion, see ante, at 673, we did not specifically find that these officials were inferior officers for purposes of the Appointments Clause, probably because no one had contended that they were principal officers. Nor can the case be said to represent even an assumption on our part that they were inferior without being subordinate. The power of assisting in the judging of elections that they were exercising was assuredly not a purely executive power, and if we entertained any assumption it was probably that they, like the marshals who assisted them, see were subordinate to the courts, see Similarly, in GoBart Importing where we held that United States commissioners were inferior officers, we made plain that they were subordinate to the district courts which appointed them: "The commissioner acted not as a court, or as a judge of any court, but as a mere officer of the district court in proceedings of which that court had authority to take control at any time." To be sure, it is not a sufficient condition for "inferior" officer status that one be subordinate to a principal officer. Even an officer who is subordinate to a department head can be a principal officer. That is clear from the brief exchange following Gouverneur Morris' suggestion of the addition of the exceptions clause for inferior officers. Madison responded: "It does not go far enough if it be necessary at all — Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices." 2 M. Farrand, Records of the Federal Convention, of 1787, p. 627 (rev. ed. 1966) But it is surely a necessary condition for inferior officer status that the officer be subordinate to another officer. The independent counsel is not even subordinate to the President. The Court essentially admits as much, noting that "appellant may not be `subordinate' to the Attorney General *723 (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act." Ante, at 671. In fact, there is no doubt about it. As noted earlier, the Act specifically grants her the "full power and independent authority to exercise all investigative and prosecutorial functions of the Department of Justice," 28 U.S. C. 594(a) (1982 ed., Supp. V), and makes her removable only for "good cause," a limitation specifically intended to ensure that she be independent of, not subordinate to, the President and the Attorney General. See H. R. Conf. Rep. No. 100-452, p. 37 (1987). Because appellant is not subordinate to another officer, she is not an "inferior" officer and her appointment other than by the President with the advice and consent of the Senate is unconstitutional. IV I will not discuss at any length why the restrictions upon the removal of the independent counsel also violate our established precedent dealing with that specific subject. For most of it, I simply refer the reader to the scholarly opinion of Judge Silberman for the Court of Appeals below. See In re Sealed Case, 267 U. S. App. D. C. 178, I cannot avoid commenting, however, about the essence of what the Court has done to our removal jurisprudence today. There is, of course, no provision in the Constitution stating who may remove executive officers, except the provisions for removal by impeachment. Before the present decision it was established, however, (1) that the President's power to remove principal officers who exercise purely executive powers could not be restricted, see and (2) that his power to remove inferior officers who exercise purely executive powers, and whose appointment Congress had removed from the usual procedure of Presidential appointment with Senate consent, could be restricted, at least where the appointment had been made by *724 an officer of the Executive Branch, see ; United[4] The Court could have resolved the removal power issue in this case by simply relying upon its erroneous conclusion that the independent counsel was an inferior officer, and then extending our holding that the removal of inferior officers appointed by the Executive can be restricted, to a new holding that even the removal of inferior officers appointed by the courts can be restricted. That would in my view be a considerable and unjustified extension, giving the Executive full discretion in neither the selection nor the removal of a purely executive officer. The course the Court has chosen, however, is even worse. Since our 1935 decision in Humphrey's — which was considered by many at the time the product of an activist, anti-New Deal Court bent on reducing the power of President Franklin Roosevelt — it has been established that the line of permissible restriction upon removal of principal officers lies at the point at which the powers exercised by those officers are no longer purely executive. Thus, removal restrictions have been generally regarded as lawful for so-called "independent regulatory *725 agencies," such as the Federal Trade Commission, see ; 15 U.S. C. 41, the Interstate Commerce Commission, see 49 U.S. C. 10301(c) (1982 ed., Supp. IV), and the Consumer Product Safety Commission, see 15 U.S. C. 2053(a), which engage substantially in what has been called the "quasi-legislative activity" of rulemaking, and for members of Article I courts, such as the Court of Military Appeals, see 10 U.S. C. 867(a)(2), who engage in the "quasi-judicial" function of adjudication. It has often been observed, correctly in my view, that the line between "purely executive" functions and "quasi-legislative" or "quasi-judicial" functions is not a clear one or even a rational one. See ante, at 689-691; ; But at least it permitted the identification of certain officers, and certain agencies, whose functions were entirely within the control of the President. Congress had to be aware of that restriction in its legislation. Today, however, Humphrey's Executor is swept into the dustbin of repudiated constitutional principles. "[O]ur present considered view," the Court says, "is that the determination of whether the Constitution allows Congress to impose a `good cause'-type restriction on the President's power to remove an official cannot be made to turn on whether or not that official is classified as `purely executive.' " Ante, at 689. What Humphrey's Executor (and presumably Myers) really means, we are now told, is not that there are any "rigid categories of those officials who may or may not be removed at will by the President," but simply that Congress cannot "interefere with the President's exercise of the `executive power' and his constitutionally appointed duty to `take care that the laws be faithfully executed,' " ante, at 689-690. One can hardly grieve for the shoddy treatment given today to Humphrey's Executor, which, after all, accorded the same indignity (with much less justification) to Chief Justice *726 Taft's opinion 10 years earlier in — gutting, in six quick pages devoid of textual or historical precedent for the novel principle it set forth, a carefully researched and reasoned 70-page opinion. It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit. But one must grieve for the Constitution. Humphrey's Executor at least had the decency formally to observe the constitutional principle that the President had to be the repository of all executive power, see 295 U.S., -628, which, as Myers carefully explained, necessarily means that he must be able to discharge those who do not perform executive functions according to his liking. As we noted in Bowsher, once an officer is appointed " `it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey.' " quoting By contrast, "our present considered view" is simply that any executive officer's removal can be restricted, so long as the President remains "able to accomplish his constitutional role." Ante, at 690. There are now no lines. If the removal of a prosecutor, the virtual embodiment of the power to "take care that the laws be faithfully executed," can be restricted, what officer's removal cannot? This is an open invitation for Congress to experiment. What about a special Assistant Secretary of State, with responsibility for one very narrow area of foreign policy, who would not only have to be confirmed by the Senate but could also be removed only pursuant to certain carefully designed restrictions? Could this possibly render the President "[un]able to accomplish his constitutional role"? Or a special Assistant Secretary of Defense for Procurement? The possibilities are endless, and the Court does not understand what the separation of powers, what "[a]mbition counteract[ing] ambition." Federalist No. 51, p. 2 (Madison), is all about, if it does not expect Congress to try them. As far as I can discern from the Court's opinion, it is now *727 open season upon the President's removal power for all executive officers, with not even the superficially principled restriction of Humphrey's Executor as cover. The Court essentially says to the President: "Trust us. We will make sure that you are able to accomplish your constitutional role." I think the Constitution gives the President — and the people — more protection than that. V The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom. Those who hold or have held offices covered by the Ethics in Government Act are entitled to that protection as much as the rest of us, and I conclude my discussion by considering the effect of the Act upon the fairness of the process they receive. Only someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation. Justice Robert Jackson, when he was Attorney General under President Franklin Roosevelt, described it in a memorable speech to United States Attorneys, as follows: "There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff will be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on *728 any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain. "If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself." R. Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys, April 1, 1940. Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect. Moreover, when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable *729 sense of proportion, the President pays the cost in political damage to his administration. If federal prosecutors "pick people that [they] thin[k] [they] should get, rather than cases that need to be prosecuted," if they amass many more resources against a particular prominent individual, or against a particular class of political protesters, or against members of a particular political party, than the gravity of the alleged offenses or the record of successful prosecutions seems to warrant, the unfairness will come home to roost in the Oval Office. I leave it to the reader to recall the examples of this in recent years. That result, of course, was precisely what the Founders had in mind when they provided that all executive powers would be exercised by a single Chief Executive. As Hamilton put it, "[t]he ingredients which constitute safety in the republican sense are a due dependence on the people, and a due responsibility." Federalist No. 70, p. 424. The President is directly dependent on the people, and since there is only one President, he is responsible. The people know whom to blame, whereas "one of the weightiest objections to a plurality in the executive. is that it tends to conceal faults and destroy responsibility." That is the system of justice the rest of us are entitled to, but what of that select class consisting of present or former high-level Executive Branch officials? If an allegation is made against them of any violation of any federal criminal law (except Class B or C misdemeanors or infractions) the Attorney General must give it his attention. That in itself is not objectionable. But if, after a 90-day investigation without the benefit of normal investigatory tools, the Attorney General is unable to say that there are "no reasonable grounds to believe" that further investigation is warranted, a process is set in motion that is not in the full control of persons "dependent on the people," and whose flaws cannot be blamed on the President. An independent counsel is selected, and the scope of his or her authority prescribed, by a *730 panel of judges. What if they are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? There is no remedy for that, not even a political one. Judges, after all, have life tenure, and appointing a surefire enthusiastic prosecutor could hardly be considered an impeachable offense. So if there is anything wrong with the selection, there is effectively no one to blame. The independent counsel thus selected proceeds to assemble a staff. As I observed earlier, in the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"? To be sure, the investigation must relate to the area of criminal offense specified by the life-tenured judges. But that has often been (and nothing prevents it from being) very broad — and should the independent counsel or his or her staff come up with something beyond that scope, nothing prevents him or her from asking the judges to expand his or her authority or, if that does not work, referring it to the Attorney General, whereupon the whole process would recommence and, if there was "reasonable basis to believe" that further investigation was warranted, that new offense would be referred to the Special Division, which would in all likelihood assign it to the same *731 independent counsel. It seems to me not conducive to fairness. But even if it were entirely evident that unfairness was in fact the result — the judges hostile to the administration, the independent counsel an old foe of the President, the staff refugees from the recently defeated administration — there would be no one accountable to the public to whom the blame could be assigned. I do not mean to suggest that anything of this sort (other than the inevitable self-selection of the prosecutory staff) occurred in the present case. I know and have the highest regard for the judges on the Special Division, and the independent counsel herself is a woman of accomplishment, impartiality, and integrity. But the fairness of a process must be adjudged on the basis of what it permits to happen, not what it produced in a particular case. It is true, of course, that a similar list of horribles could be attributed to an ordinary Justice Department prosecution — a vindictive prosecutor, an antagonistic staff, etc. But the difference is the difference that the Founders envisioned when they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished. The above described possibilities of irresponsible conduct must, as I say, be considered in judging the constitutional acceptability of this process. But they will rarely occur, and in the average case the threat to fairness is quite different. As described in the brief filed on behalf of three ex-Attorneys General from each of the last three administrations: "The problem is less spectacular but much more worrisome. It is that the institutional environment of the Independent Counsel — specifically, her isolation from the Executive Branch and the internal checks and balances it supplies — is designed to heighten, not to check, all of the occupational hazards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests." Brief for Edward *7 H. Levi, Griffin B. Bell, and William French Smith as Amici Curiae 11. It is, in other words, an additional advantage of the unitary Executive that it can achieve a more uniform application of the law. Perhaps that is not always achieved, but the mechanism to achieve it is there. The mini-Executive that is the independent counsel, however, operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide. What would normally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year. How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile — with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it. * * * The notion that every violation of law should be prosecuted, including — indeed, especially — every violation by those in high places, is an attractive one, and it would be risky to argue in an election campaign that that is not an absolutely overriding value. Fiat justitia, ruat coelum. Let justice be done, though the heavens may fall. The reality is, however, that it is not an absolutely overriding value, and it *733 was with the hope that we would be able to acknowledge and apply such realities that the Constitution spared us, by life tenure, the necessity of election campaigns. I cannot imagine that there are not many thoughtful men and women in Congress who realize that the benefits of this legislation are far outweighed by its harmful effect upon our system of government, and even upon the nature of justice received by those men and women who agree to serve in the Executive Branch. But it is difficult to vote not to enact, and even more difficult to vote to repeal, a statute called, appropriately enough, the Ethics in Government Act. If Congress is controlled by the party other than the one to which the President belongs, it has little incentive to repeal it; if it is controlled by the same party, it dare not. By its shortsighted action today, I fear the Court has permanently encumbered the Republic with an institution that will do it great harm. Worse than what it has done, however, is the manner in which it has done it. A government of laws means a government of rules. Today's decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law. It extends into the very heart of our most significant constitutional function the "totality of the circumstances" mode of analysis that this Court has in recent years become fond of. Taking all things into account, we conclude that the power taken away from the President here is not really too much. The next time executive power is assigned to someone other than the President we may conclude, taking all things into account, that it is too much. That opinion, like this one, will not be confined by any rule. We will describe, as we have today (though I hope more accurately) the effects of the provision in question, and will authoritatively announce: "The President's need to control the exercise of the [subject officer's] discretion is so central to the functioning of the Executive Branch as to require complete control." This is not analysis; it is ad hoc judgment. And it fails to explain why it is not true that — as the text of *734 the Constitution seems to require, as the Founders seemed to expect, and as our past cases have uniformly assumed — all purely executive power must be under the control of the President. The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that "[t]he executive Power shall be vested in a President of the United States."

Justice Breyer

majority

Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC

https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/

https://www.courtlistener.com/api/rest/v3/clusters/4757657/

The Constitution’s Appointments Clause says that the President “shall nominate, and by and with the Advice and Con- sent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . .” Art. II, §2, cl. 2 (emphasis added). In 2016, Congress enacted the Puerto Rico Oversight, Man- agement, and Economic Stability Act (PROMESA). 130 Stat. 549, 48 U.S. C. §2101 et seq. That Act created a Fi- nancial Oversight and Management Board, and it provided, as relevant here, that the President could appoint its seven members without “the advice and consent of the Senate,” i.e., without Senate confirmation. The question before us is whether this method of appoint- ment violates the Constitution’s Senate confirmation re- quirement. In our view, the Appointments Clause governs the appointments of all officers of the United States, includ- ing those located in Puerto Rico. Yet two provisions of the Constitution empower Congress to create local offices for the District of Columbia and for Puerto Rico and the Terri- tories. See Art. I, §8, cl. 17; Art. IV, §3, cl. 2. And the Clause’s term “Officers of the United States” has never been understood to cover those whose powers and duties are pri- marily local in nature and derive from these two constitu- tional provisions. The Board’s statutory responsibilities consist of primarily local duties, namely, representing Puerto Rico in bankruptcy proceedings and supervising as- pects of Puerto Rico’s fiscal and budgetary policies. We therefore find that the Board members are not “Officers of Cite as: 590 U. S. ____ (2020) 3 Opinion of the Court the United States.” For that reason, the Appointments Clause does not dictate how the Board’s members must be selected. I A In 2006, tax advantages that had previously led major businesses to invest in Puerto Rico expired. See Small Business Job Protection Act of 1996, §1601, 110 Stat. 1827. Many industries left the island. Emigration increased. And the public debt of Puerto Rico’s government and its instru- mentalities soared, rising from $39.2 billion in 2005 to $71 billion in 2016. See Dept. of Treasury, Puerto Rico’s Eco- nomic and Fiscal Crisis 1, 3, https://www.treasury.gov/ connect/blog/Documents/Puerto_Ricos_fiscal_challenges.pdf; GAO, U. S. Territories: Public Debt Outlook 12 (GAO–18– 160, 2017). Puerto Rico found that it could not service that debt. Yet Puerto Rico could not easily restructure it. The Federal Bankruptcy Code’s municipality-related Chapter 9 did not apply to Puerto Rico (or to the District of Columbia). See 11 U.S. C. §§109(c), 101(52). But at the same time, federal bankruptcy law invalidated Puerto Rico’s own local “debt- restructuring” statutes. Puerto Rico v. Franklin Cal. Tax- Free Trust, 579 U. S. ___ (2016). In 2016, in response to Puerto Rico’s fiscal crisis, Congress enacted PROMESA. 130 Stat. 549, 48 U.S. C. §2101 et seq. PROMESA allows Puerto Rico and its entities to file for federal bankruptcy protection. See §§301, 302, 130 Stat. 577, 579; cf. 11 U.S. C. §901 (related to bankruptcies of lo- cal governments). The filing and subsequent proceedings are to take place in the United States District Court for the District of Puerto Rico, before a federal judge selected by the Chief Justice of the United States. PROMESA §§307– 308, 130 Stat. 582. PROMESA also created the Financial Oversight and Management Board—with seven members 4 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court appointed by the President and with the Governor serving as an ex officio member. §§101(b), (e), id., at 553, 554–555. PROMESA gives the Board authority to file for bankruptcy on behalf of Puerto Rico or its instrumentalities. §304(a), id., at 579. The Board can supervise and modify Puerto Rico’s laws (and budget) to “achieve fiscal responsibility and access to the capital markets.” §201(b), id., at 564; see §§201–207, id., at 563–575. And it can gather evidence and conduct investigations in support of these efforts. §104, id., at 558–561. As we have just said, PROMESA gives the President of the United States the power to appoint the Board’s seven members without Senate confirmation, so long as he selects six from lists prepared by congressional leaders. §101(e)(2)(A), id., at 554–555. B On August 31, 2016, President Obama selected the Board’s seven members in the manner just described. The Board established offices in Puerto Rico and New York, and soon filed bankruptcy petitions on behalf of the Common- wealth and (eventually) five Commonwealth entities. Title III Petition in No. 17–BK–3283 (PR); see Order Pursuant to PROMESA Section 304(g), No. 17–BK–3283 (PR, Oct. 9, 2019), Doc. 8829 (consolidating petitions filed on behalf of the Commonwealth of Puerto Rico, the Puerto Rico Sales Tax Financing Corporation, the Puerto Rico Highways and Transportation Authority, the Employees Retirement Sys- tem of the Government of the Commonwealth of Puerto Rico, the Puerto Rico Electric Power Authority, and the Puerto Rico Public Buildings Authority). And the Chief Justice then selected a federal judge to serve as bankruptcy judge for Puerto Rico. Designation of Presiding District Judge, No. 17–BK–3283 (PR, May 5, 2017), Doc. 4. After both court and Board had decided a number of mat- ters, several creditors moved to dismiss all proceedings on Cite as: 590 U. S. ____ (2020) 5 Opinion of the Court the ground that the Board members’ selection violated the Appointments Clause. The court denied the motions. See In re Financial Oversight and Management Bd. of Puerto Rico, 318 F. Supp. 3d 537, 556–557 (PR 2018). The credi- tors appealed to the United States Court of Appeals for the First Circuit. That court reversed. It held that the selec- tion of the Board’s members violated the Appointments Clause. 915 F.3d 838, 861 (2019). But it concluded that those Board actions taken prior to its decision remained valid under the “de facto officer” doctrine. Id., at 862–863; see, e.g., McDowell v. United States, 159 U.S. 596, 601 (1895) (judicial decisions could not later be attacked on ground that an unlawfully sitting judge presided); Ball v. United States, 140 U.S. 118, 128–129 (1891) (same). The Board, the United States, and various creditors then filed petitions for certiorari in this Court, some arguing that the appointments were constitutionally valid, others that the de facto officer doctrine did not apply. Compare Pets. for Cert. in Nos. 18–1334, 18–1496, 18–1514 with Pets. for Cert. in Nos. 18–1475, 18–1521. In light of the importance of the questions, we granted certiorari in all the petitions and consolidated them for argument. 588 U. S. ___ (2019). II Congress created the Board pursuant to its power under Article IV of the Constitution to “make all needful Rules and Regulations respecting the Territory . . . belonging to the United States.” §3, cl. 2; see PROMESA §101(b)(2), 130 Stat. 553. Some have argued in these cases that the Ap- pointments Clause simply does not apply in the context of Puerto Rico. But, like the Court of Appeals, we believe the Appointments Clause restricts the appointment of all offic- ers of the United States, including those who carry out their powers and duties in or in relation to Puerto Rico. The Constitution’s structure provides strong reason to be- lieve that is so. The Constitution separates the three basic 6 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court powers of Government—legislative, executive, and judi- cial—with each branch serving different functions. But the Constitution requires cooperation among the three branches in specified areas. Thus, to become law, proposed legislation requires the agreement of both Congress and the President (or, a supermajority in Congress). See INS v. Chadha, 462 U.S. 919, 955 (1983) (noting that the Consti- tution prescribes only four specific actions that Congress can take without bicameralism and presentment). At the same time, legislation must be consistent with constitu- tional constraints, and we usually look to the Judiciary as the ultimate interpreter of those constraints. The Appointments Clause reflects a similar allocation of responsibility, between President and Senate, in cases in- volving appointment to high federal office. That Clause re- flects the Founders’ reaction to “one of [their] generation’s greatest grievances against [pre-Revolutionary] executive power,” the manipulation of appointments. Freytag v. Com- missioner, 501 U.S. 868, 883 (1991); see also The Federalist No. 76, p. 455 (C. Rossiter ed. 1961) (A. Hamilton) (the Ap- pointments Clause helps to preserve democratic accounta- bility). The Founders addressed their concerns with the ap- pointment power by both concentrating it and distributing it. On the one hand, they ensured that primary responsi- bility for nominations would fall on the President, whom they deemed “less vulnerable to interest-group pressure and personal favoritism” than a collective body. Edmond v. United States, 520 U.S. 651, 659 (1997). See also The Fed- eralist No. 76, at 455 (“The sole and undivided responsibil- ity of one man will naturally beget a livelier sense of duty and a more exact regard to reputation”). On the other hand, they ensured that the Senate’s advice and consent power would provide “an excellent check upon a spirit of favorit- ism in the President and a guard against the appointment of unfit characters.” NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (slip op., at 2) (internal quotation marks Cite as: 590 U. S. ____ (2020) 7 Opinion of the Court omitted). By “limiting the appointment power” in this fash- ion, the Clause helps to “ensure that those who wielded [the appointments power] were accountable to political force and the will of the people.” Freytag, supra, at 884; see also Edmond, 520 U.S., at 659. “The blame of a bad nomination would fall upon the president singly and absolutely,” while “[t]he censure of rejecting a good one would lie entirely at the door of the senate.” Id., at 660 (internal quotation marks omitted). These other structural constraints, designed in part to ensure political accountability, apply to all exercises of fed- eral power, including those related to Article IV entities. Cf., e.g., Metropolitan Washington Airports Authority v. Cit- izens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 270–271 (1991) (MWAA) (separation-of-powers principles apply when Congress acts under its Article IV power to leg- islate “respecting . . . other Property”). See also, e.g., Act of Aug. 7, 1789, ch. 8, 1 Stat. 50 (the First Congress using bi- cameralism and presentment to make rules and regulations for the Northwest Territory). The objectives advanced by the Appointments Clause counsel strongly in favor of that Clause applying to the appointment of all “Officers of the United States.” Why should it be different when such an officer’s duties relate to Puerto Rico or other Article IV en- tities? Indeed, the Appointments Clause has no Article IV ex- ception. The Clause says in part that the President “shall nominate, and by and with the Advice and Con- sent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments . . . shall be established by Law . . . .” Art. II, §2, cl. 2. That text firmly indicates that it applies to the appointment of all “Officers of the United States.” And history confirms 8 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court this reading. Before the writing of the Constitution, Con- gress had enacted an ordinance that allowed Congress to appoint officers to govern the Northwest Territory. As soon as the Constitution became law, the First Congress “adapt[ed]” that ordinance “to the present Constitution of the United States,” Act of Aug. 7, 1789, 1 Stat. 51, in large part by providing for an appointment process consistent with the constraints of the Appointments Clause. In par- ticular, it provided for a Presidential-appointment, Senate- confirmation process for high-level territorial appointees who assumed federal, as well as local, duties. See id., at 52, n. (a); §1, id., at 53 (appointment by President, and confir- mation by Senate, of Governor, secretary, and members of the upper house); Act of Sept. 11, 1789, ch. 13, §1, 1 Stat. 68 (Governor “discharg[ed]” the federal “duties of superin- tendent of Indian affairs”). Later Congresses took a similar approach to later territorial Governors with federal duties. See Act of June 6, 1900, §10, 31 Stat. 325 (appointment of Governor of Territory of Alaska by President with confir- mation by Senate); §2, id., at 322 (federal duties of Alaska territorial Governor include entering into contracts in name of the United States and granting reprieves for federal of- fenses); Act of Mar. 2, 1819, §§3, 10, 3 Stat. 494, 495 (similar for Governor of Arkansas). We do not mean to suggest that every time Congress chooses to require advice and consent procedures it does so because they are constitutionally re- quired. At times, Congress may wish to require Senate con- firmation for policy reasons. Even so, Congress’ practice of requiring advice and consent for these Governors with im- portant federal duties supports the inference that Congress expected the Appointments Clause to apply to at least some officials with supervisory authority over the Territories. Given the Constitution’s structure, this history, roughly analogous case law, and the absence of any conflicting au- thority, we conclude that the Appointments Clause con- strains the appointments power as to all “Officers of the Cite as: 590 U. S. ____ (2020) 9 Opinion of the Court United States,” even when those officers exercise power in or related to Puerto Rico. III A The more difficult question before us is whether the Board members are officers of the United States such that the Appointments Clause requires Senate confirmation. If they are not officers of the United States, but instead are some other type of officer, the Appointments Clause says nothing about them. (No one suggests that they are “Am- bassadors,” “other public Ministers and Consuls,” or “Judges of the supreme Court.”) And as we shall see, the answer to this question turns on whether the Board mem- bers have primarily local powers and duties. The language at issue does not offer us much guidance for understanding the key term “of the United States.” The text suggests a distinction between federal officers—offic- ers exercising power of the National Government—and nonfederal officers—officers exercising power of some other government. The Constitution envisions a federalist struc- ture, with the National Government exercising limited fed- eral power and other, local governments—usually state governments—exercising more expansive power. But the Constitution recognizes that for certain localities, there will be no state government capable of exercising local power. Thus, two provisions of the Constitution, Article I, §8, cl. 17, and Article IV, §3, cl. 2, give Congress the power to legislate for those localities in ways “that would exceed its powers, or at least would be very unusual” in other contexts. Pal- more v. United States, 411 U.S. 389, 398 (1973). Using these powers, Congress has long legislated for entities that are not States—the District of Columbia and the Territo- ries. See District of Columbia v. John R. Thompson Co., 346 U.S. 100, 104–106 (1953). And, in doing so, Congress has both made local law directly and also created structures 10 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court of local government, staffed by local officials, who them- selves have made and enforced local law. Compare, e.g., Act of Mar. 2, 1962, §401, 76 Stat. 17 (changing D. C. liquor tax from $1.25 per gallon to $1.50 per gallon), with District of Columbia Self-Government and Governmental Reorganiza- tion Act, 87 Stat. 774 (giving local D. C. government pri- mary legislative control over local matters). This structure suggests that when Congress creates local offices using these two unique powers, the officers exercise power of the local government, not the Federal Government. Cf. Ameri- can Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546 (1828) (Marshall, C. J.) (territorial courts may exercise the judicial power of the Territories without the life tenure and salary protections mandated by Article III for federal judges); Cin- cinnati Soap Co. v. United States, 301 U.S. 308, 323 (1937) (territorial legislators may exercise the legislative power of the Territories without violating the nondelegation doc- trine). History confirms what the Constitution’s text and struc- ture suggest. See NLRB v. Noel Canning, 573 U.S. 513, 524 (2014) (relying on history and structure in interpreting the Recess Appointments Clause). See also McCulloch v. Maryland, 4 Wheat. 316, 401 (1819) (emphasizing the util- ity of historical practice in interpreting constitutional pro- visions). Longstanding practice indicates that a federal law’s creation of an office in this context does not automat- ically make its holder an “Officer of the United States.” Ra- ther, Congress has often used these two provisions to create local offices filled in ways other than those specified in the Appointments Clause. When the First Congress legislated for the Northwest Territories, for example, it created a House of Representatives for the Territory with members selected by election. It also created an upper house of the territorial legislature, whose members were appointed by the President (without Senate confirmation) from lists pro- Cite as: 590 U. S. ____ (2020) 11 Opinion of the Court vided by the elected, lower house. And it created magis- trates appointed by the Governor. See Act of Aug. 7, 1789, 1 Stat. 51, n. (a). The practice of creating by federal law local offices for the Territories and District of Columbia that are filled through election or local executive appointment has continued una- bated for more than two centuries. See, e.g., ibid. (North- west Territories local offices filled by election); Act of Apr. 7, 1798, §3, 1 Stat. 550 (Mississippi, same); Act of May 7, 1800, §2, 2 Stat. 59 (Indiana, same); Act of May 15, 1820, §3, 3 Stat. 584 (District of Columbia, same); Act of Apr. 30, 1900, §13, 31 Stat. 144 (Hawaii, same); Act of Aug. 24, 1912, §4, 37 Stat. 513 (Alaska, same); Act of Aug. 23, 1968, §4, 82 Stat. 837 (Virgin Islands, same); Act of Sept. 11, 1968, Pub. L. 90–497, §1, 82 Stat. 842 (Guam, same); Act of May 4, 1812, §3, 2 Stat. 723 (D. C. mayor appoints “all offices”); Act of June 4, 1812, §2, 2 Stat. 744 (Missouri Governor, similar); Act of Mar. 2, 1819, §3, 3 Stat. 494 (Arkansas, similar); Act of June 6, 1900, §2, 31 Stat. 322 (Alaska, similar); Act of Sept. 11, 1968, §1, 82 Stat. 843 (Guam, similar). Like JUSTICE THOMAS, post, at 6 (opinion concurring in judg- ment), we think the practice of the First Congress is strong evidence of the original meaning of the Constitution. We find this subsequent history similarly illuminates the text’s meaning. Puerto Rico’s history is no different. It reveals a longstanding practice of selecting public officials with im- portant local responsibilities in ways that the Appoint- ments Clause does not describe. In 1898, at the end of the Spanish-American War, the United States took responsibil- ity for determining the civil rights of Puerto Ricans as well as Puerto Rico’s political status. Treaty of Paris, Art. 9, Dec. 10, 1898, 30 Stat. 1759. In 1900, the Foraker Act pro- vided for Presidential appointment (with Senate confirma- tion) of Puerto Rico’s Governor, the heads of six depart- ments, the legislature’s upper house, and the justices of its 12 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court high court. Organic Act of 1900, §§ 17, 18, 33, 31 Stat. 81, 84. But it also provided for the selection, through popular election, of a lower legislative house with the power (subject to upper house concurrence) to “alter, amend, modify, and repeal any and all laws . . . of every character.” §§27, 32, id., at 82, 84. There is no indication that anyone thought members of the lower house, wielding important local re- sponsibilities, were “Officers of the United States.” Congress replaced the Foraker Act with the Jones Act in 1917. Organic Act of Puerto Rico, ch. 145, 39 Stat. 951. Un- der the Jones Act the Puerto Rican Senate was elected and consequently no longer satisfied the Appointments Clause criteria. See §26, id., at 958. Similarly, the Governor of Puerto Rico nominated four cabinet members, confirmed by the Senate of Puerto Rico. §13, id., at 955–956. The elected legislature retained “all local legislative powers,” including the power to appropriate funds. §§ 25, 34, 37, id., at 958, 962, 964. Congress amended the Jones Act in 1947 to provide for an elected Governor of Puerto Rico, and granted that Gov- ernor the power to appoint all cabinet officials. See Act of Aug. 5, 1947, ch. 490, §§ 1, 3, 61 Stat. 770, 771. The Presi- dent retained the power to appoint (with Federal Senate confirmation) judges, an auditor, and the new office of Co- ordinator of Federal Agencies, who was to supervise federal functions in Puerto Rico and recommend to higher federal officials ways to improve the quality of federal services. §6, id., at 772. In 1950, Congress enacted Public Law 600, “in the nature of a compact” with Puerto Rico and subject to approval by the voters of Puerto Rico. Act of July 3, 1950, ch. 446, §§1, 2, 64 Stat. 319. The Act adopted the Jones Act, as amended, as the Puerto Rican Federal Relations Act, and provided for the Jones Act’s substantial (but not complete) repeal upon the effective adoption of a contemplated Puerto Rican con- stitution. §§4, 5, id., at 319–320. Among the provisions of Cite as: 590 U. S. ____ (2020) 13 Opinion of the Court the Jones Act that Public Law 600 retained were several related to Puerto Rico’s public debt. Congress retained, for example, the triple-tax-exempt nature of Puerto Rican bonds. Jones Act, §3, 39 Stat. 953. It also retained a (later repealed) cap on the amount of public debt Puerto Rico or its subdivisions could accumulate. Ibid. In a public refer- endum, the citizens of Puerto Rico approved Public Law 600—including the limits on debt in §3 of the Federal Rela- tions Act—and then began the constitution-making pro- cess. Pub. L. 600, §§2, 3, 64 Stat. 319; see Act of July 3, 1952, 66 Stat. 327; A. Fernós-Isern, Original Intent in the Constitution of Puerto Rico 13 (2d ed. 2002). Puerto Rico’s popularly ratified Constitution, which Con- gress accepted with a few fairly minor changes, does not in- volve the President or the Senate in the appointment pro- cess for local officials. That Constitution provides for the election of Puerto Rico’s Governor and legislators. Art. III, §1; Art. IV, §1. And it provides for gubernatorial appoint- ment (and Puerto Rican Senate confirmation) of cabinet of- ficers. Art. IV, §5. The upshot is that Puerto Rico’s history reflects long- standing use of various methods for selecting officials with primarily local responsibilities. This history is consistent with the history of other entities that fall within the scope of Article IV and with the history of the District of Colum- bia. See supra, at 10–11. And it comports with our prece- dents, which have long acknowledged that Congress may structure local governments under Article IV and Article I in ways that do not precisely mirror the constitutional blue- print for the National Government. See, e.g., Benner v. Por- ter, 9 How. 235, 242 (1850). Cf. Glidden Co. v. Zdanok, 370 U.S. 530, 546 (1962) (plurality opinion) (recognizing that local governments created by Congress could, like govern- ments of the States, “dispense with protections deemed in- herent in a separation of governmental powers”). Some- times Congress has specified the use of methods that would 14 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court satisfy the Appointments Clause, other times it has speci- fied methods that would not satisfy the Appointments Clause, including elections and appointment by local offi- cials. Officials with primarily local duties have often fallen into the latter categories. We know of no case endorsing an Appointments Clause based challenge to such selection methods. Indeed, to read Appointments Clause constraints as binding Puerto Rican officials with primarily local duties would work havoc with Puerto Rico’s (federally ratified) democratic methods for selecting many of its officials. We thus conclude that while the Appointments Clause does restrict the appointment of “Officers of the United States” with duties in or related to the District of Columbia or an Article IV entity, it does not restrict the appointment of local officers that Congress vests with primarily local du- ties under Article IV, §3, or Article I, §8, cl. 17. B The question remains whether the Board members have primarily local powers and duties. We note that the Clause qualifies the phrase “Officers of the United States” with the words “whose Appointments . . . shall be established by Law.” And we also note that PROMESA says that the Board is “an entity within the territorial government” and “shall not be considered a department, agency, establish- ment, or instrumentality of the Federal Government.” §101(c), 130 Stat. 553. But the most these words show is that Congress did not intend to make the Board members “Officers of the United States.” It does not prove that, inso- far as the Constitution is concerned, they succeeded. But we think they have. Congress did not simply state that the Board is part of the local Puerto Rican government. Rather, Congress also gave the Board a structure, a set of duties, and related powers all of which are consistent with this statement. Cite as: 590 U. S. ____ (2020) 15 Opinion of the Court The government of Puerto Rico pays the Board’s ex- penses, including the salaries of its employees (the mem- bers serve without pay). §107, id., at 562; see §101(g), id., at 556. The Board possesses investigatory powers. It can hold hearings. §104(a), id., at 558. It can issue subpoenas, subject to Puerto Rico’s limits on personal jurisdiction and enforceable under Puerto Rico’s laws. §104(f ), id., at 559. And it can enforce those subpoenas in (and only in) Puerto Rico’s courts. §§104(f )(2), 106(a), id., at 559, 562. From its own offices in or outside of Puerto Rico, the Board works with the elected government of Puerto Rico to develop a fiscal plan that provides “a method to achieve fis- cal responsibility and access to the capital markets.” §201(b), id., at 564. If it finds it necessary, the Board can develop its own budget for Puerto Rico which is “deemed . . . approved” and becomes the operative budget. §202(e)(3), id., at 568. It can ensure compliance with the plan and budget by reviewing the Puerto Rico government’s laws and spending and by “direct[ing]” corrections or taking “such [other] actions as it considers necessary,” including pre- venting a law from taking effect. §§203(d), 204(a), id., at 569, 571. The Board controls the issuance of new debt for Puerto Rico. §207, id., at 575. The Board also may initiate bankruptcy proceedings for Puerto Rico or its instrumentalities. §304(a), id., at 579. It may take any related “action necessary on behalf of,” and it serves as “the representative of,” Puerto Rico or its instru- mentalities. §315, id., at 584. These proceedings take place in the U. S. District Court for Puerto Rico. §307, id., at 582. To repeat: The Board has broad investigatory powers: It can administer oaths, issue subpoenas, take evidence and demand data from governments and creditors alike. But these powers are backed by Puerto Rican, not federal, law: Subpoenas are governed by Puerto Rico’s personal jurisdic- tion statute; false testimony is punishable under the law of 16 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court Puerto Rico; the Board must seek enforcement of its sub- poenas by filing in the courts of Puerto Rico. See §104, id., at 558–561. These powers are primarily local in nature. The Board also oversees the development of Puerto Rico’s fiscal and budgetary plans. It receives and evaluates pro- posals from the elected Governor and legislature. It can create a budget “deemed” to be that of Puerto Rico. It can intervene when budgetary constraints are violated. And it has authority over the issuance of new debt. §§201–207, id., at 563–575. These powers, too, are quintessentially lo- cal. Each concerns the finances of the Commonwealth, not of the United States. The Board members in this respect discharge duties ordinarily held by local officials. Last, the Board has the power to initiate bankruptcy pro- ceedings. But in doing so, it acts not on behalf of the United States, but on behalf of, and in the interests of, Puerto Rico. The proceedings take place in federal court; but the same is true of all persons or entities who seek bankruptcy protec- tion. The Board here acts as a local government that might take precisely the same actions. See, e.g., 11 U.S. C. §§109(c), 921 (related to bankruptcies of local govern- ments). Some Board actions, of course, may have nationwide con- sequences. But the same can be said of many actions taken by many Governors or other local officials. Taking actions with nationwide consequences does not automatically transform a local official into an “Officer of the United States.” The challengers rely most heavily on the nation- wide effects of the bankruptcy proceedings. E.g., Brief for Aurelius et al. 31; Brief for Petitioner Unión de Trabaja- dores de la Industria Eléctrica y Riego, Inc. (UTIER) 49. But the same might be said of any major municipal, or even corporate, bankruptcy. E.g., In re Detroit, 504 B.R. 97 (Bkrtcy. Ct. ED Mich. 2013) (restructuring $18 billion in municipal debt). Cite as: 590 U. S. ____ (2020) 17 Opinion of the Court In short, the Board possesses considerable power—in- cluding the authority to substitute its own judgment for the considered judgment of the Governor and other elected offi- cials. But this power primarily concerns local matters. Congress’ law thus substitutes a different process for deter- mining certain local policies (related to local fiscal respon- sibility) in respect to local matters. And that is the critical point for current purposes. The local nature of the legisla- tion’s expressed purposes, the representation of local inter- ests in bankruptcy proceedings, the focus of the Board’s powers upon local expenditures, the local logistical support, the reliance on local laws in aid of the Board’s procedural powers—all these features when taken together and judged in the light of Puerto Rico’s history (and that of the Territo- ries and the District of Columbia)—make clear that the Board’s members have primarily local duties, such that their selection is not subject to the constraints of the Ap- pointments Clause. IV The Court of Appeals, pointing to three of this Court’s cases, reached the opposite conclusion. See Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), Freytag v. Commis- sioner, 501 U.S. 868, and Lucia v. SEC, 585 U. S. ___ (2018). It pointed out that the Court, in those cases, dis- cussed the term “Officer of the United States,” and it con- cluded that, for Appointments Clause purposes, an appoin- tee is such an “officer” if “(1) the appointee occupies a ‘continuing’ position established by federal law; (2) the ap- pointee ‘exercis[es] significant authority’; and (3) the signif- icant authority is exercised ‘pursuant to the laws of the United States.’ ” 915 F.3d, at 856. The Court of Appeals concluded that the Board members satisfied this test. See id., at 856–857. We do not believe these three cases set forth the critical legal test relevant here, however, and we do not apply any 18 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court test they might enunciate. Each of the cases considered an Appointments Clause problem concerning the importance or significance of duties that were indisputably federal or national in nature. In Buckley, the question was whether members of the Federal Election Commission—appointees carrying out federal-election related duties—were “officers” for Appointments Clause purposes. In Freytag, the Court asked the same question about special federal trial judges serving on federal tax courts. And in Lucia the Court asked the same question about federal administrative law judges carrying out Securities and Exchange Commission duties. Here, PROMESA, a federal law, creates the Board and its duties, and no one doubts their significance. But we cannot stop there. To do so would ignore the history we have dis- cussed—history stretching back to the founding. See supra, at 10–13. And failing to take account of the nature of an appointee’s federally created duties, i.e., whether they are primarily local versus primarily federal, would threaten in- terference with democratic (or local appointment) selection methods in numerous Article IV Territories and perhaps the District of Columbia as well. See, e.g., 48 U.S. C. §1422 (providing for an elected Governor of Guam); §1591 (same for Virgin Islands); District of Columbia Self-Government Act, §421, 87 Stat. 789 (same for D. C. Mayor); §422(2), 87 Stat. 790 (describing D. C. Mayor’s appointment powers); 48 U.S. C. §1422c (same for Guam’s Governor); §1597(c) (same for Virgin Islands). There is no reason to understand the Appointments Clause—which, at least in part, seeks to advance democratic accountability and broaden appoint- ments-related responsibility, see supra, at 6–7—as making it significantly more difficult for local residents of such ar- eas to share responsibility for the implementation of (stat- utorily created) primarily local duties. Neither the text nor the history of the Clause commands such a result. Neither do Lebron v. National Railroad Passenger Corpo- ration, 513 U.S. 374 (1995), or MWAA, 501 U.S. 252, help Cite as: 590 U. S. ____ (2020) 19 Opinion of the Court those challenging the Board’s constitutional legitimacy. Lebron considered whether, for First Amendment purposes, Amtrak was a governmental or a private entity. 513 U.S., at 379. All here agree that the Board is a Government en- tity, but that fact does not answer the “primarily local ver- sus primarily federal” question. In MWAA, the Court held that separation-of-powers principles forbid Members of Congress to become members of a board that controls fed- erally owned airports. 501 U.S., at 275–276 (relying on Bowsher v. Synar, 478 U.S. 714, 726 (1986), and INS v. Chadha, 462 U.S. 919, 952 (1983)). The Court expressly declined to answer any question related to the Appoint- ments Clause. 501 U.S., at 277, n. 23. While we have found no case from this Court directly on point, we believe that the Court’s analysis in O’Donoghue v. United States, 289 U.S. 516 (1933), and especially Palmore v. United States, 411 U.S. 389, provides a rough analogy. In O’Donoghue, the Court considered whether Article III’s tenure and salary protections applied to judges of the courts in the District of Columbia. The Court held that they did. Those courts, it believed, were “ ‘courts of the United States’ ” and “recipients of the judicial power of the United States.” 289 U.S., at 546, 548. The judges’ salaries conse- quently could not be reduced. Id., at 551. In Palmore, however, the Court reached what might seem the precisely opposite conclusion. A criminal defendant, in- voking O’Donoghue, argued that the D. C. Superior Court Judge could not constitutionally preside over the case be- cause the judge lacked Article III’s tenure protection, namely, life tenure. Palmore, supra, at 390. But the Court rejected the defendant’s argument. Why? How did it ex- plain O’Donoghue? The difference, said the Court, lies in the fact that, in the meantime, Congress had changed the nature of the District of Columbia court. Palmore, supra, at 406–407; see District of Columbia Court Reform and Criminal Procedure Act of 20 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court 1970, 84 Stat. 473. Congress changed what had been a uni- fied court system where judges adjudicated both local and federal issues into separate court systems, in one of which judges adjudicated primarily local issues. §111, id., at 475. Courts in that category had criminal jurisdiction over only those cases brought “ ‘under any law applicable exclusively to the District of Columbia.’ ” Id., at 486. Its judges served for 15-year terms. Id., at 491. This Court, in Palmore, considered a local judge presiding over a local court. Congress had created that court in the exercise of its Article I power to “exercise exclusive Legisla- tion in all Cases whatsoever” over the District of Columbia. See Art I, §8, cl. 17. The “focus” of these courts was “pri- marily upon . . . matters of strictly local concern.” 411 U.S., at 407. Hence, the nature of those courts was a “far cry” from that of the courts at issue in O’Donoghue. Palmore, 411 U.S., at 406. The Court added that Congress had created non-Article III courts under its Article IV powers. It wrote that Con- gress could also create non-Article III courts under its Arti- cle I powers. Id., at 403, 410. And it held that judges serv- ing on those non-Article III courts lacked Article III protections. Id., at 410. Palmore concerned Article I of the Constitution, not Arti- cle IV. And it concerned “the judicial Power of the United States,” not “Officers of the United States.” But it provides a rough analogy. It holds that Article III protections do not apply to an Article I court “focus[ed],” unlike the courts at issue in O’Donoghue, primarily on local matters. Here, Congress expressly invoked a constitutional provision al- lowing it to make local debt-related law (Article IV); it ex- pressly located the Board within the local government of Puerto Rico; it clearly indicated that it intended the Board’s members to be local officials; and it gave them primarily local powers, duties, and responsibilities. In his concurring opinion, JUSTICE THOMAS criticizes the Cite as: 590 U. S. ____ (2020) 21 Opinion of the Court inquiry we set out—whether an officer’s duties are primar- ily local or primarily federal—as too “amorphous,” post, at 10. But we think this is the test established by the Consti- tution’s text, as illuminated by historical practice. And we cannot see how Congress could avoid the strictures of the Appointments Clause by adding to a federal officer’s other obligations a large number of local duties. Indeed, we think that our test, tied as it is to both the text and the history of the Appointments Clause, is more rigorous than the bare inquiry into the “nature” of the officer’s authority that JUSTICE THOMAS proposes, and we believe it is more faith- ful to the Clause’s original meaning. Ibid. V We conclude, for the reasons stated, that the Constitu- tion’s Appointments Clause applies to the appointment of officers of the United States with powers and duties in and in relation to Puerto Rico, but that the congressionally man- dated process for selecting members of the Financial Over- sight and Management Board for Puerto Rico does not vio- late that Clause. Given this conclusion, we need not consider the request by some of the parties that we overrule the much-criticized “Insular Cases” and their progeny. See, e.g., Downes v. Bidwell, 182 U.S. 244, 287 (1901) (opinion of Brown, J.); Balzac v. Porto Rico, 258 U.S. 298, 309 (1922); Reid v. Covert, 354 U.S. 1, 14 (1957) (plurality opin- ion) (indicating that the Insular Cases should not be further extended); see also Brief for Official Committee of Unse- cured Creditors of All Title III Debtors (Other than COFINA) 20–25 (arguing that the Insular Cases support reversal on the Appointments Clause issue); Brief for UTIER 64–66 (encouraging us to overrule the Insular Cases); Brief for Virgin Islands Bar Association as Amicus Curiae 13–18 (same); Cabranes, Citizenship and the Amer- ican Empire, 127 U. Pa. L. Rev. 391, 436–442 (1978) (criti- cizing the Insular Cases); Littlefield, The Insular Cases, 15 22 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court Harv. L. Rev. 169 (1901) (same). Those cases did not reach this issue, and whatever their continued validity we will not extend them in these cases. See Reid, supra, at 14. Neither, since we hold the appointment method valid, need we consider the application of the de facto officer doc- trine. See Ryder v. United States, 515 U.S. 177 (1995) (dis- cussing the doctrine); see also, e.g., Brief for Aurelius et al. 48–69 (arguing the doctrine does not apply in this context); Brief for UTIER 69–85 (same); Reply Brief for United States 26–47 (insisting to the contrary); Brief for Cross-Re- spondent COFINA Senior Bondholders’ Coalition 14–46 (same). Finally, as JUSTICE SOTOMAYOR recognizes, post, at 8 (opinion concurring in judgment), we need not, and there- fore do not, decide questions concerning the application of the Federal Relations Act and Public Law 600. No party has argued that those Acts bear any significant relation to the answer to the Appointments Clause question now be- fore us. For these reasons, we reverse the judgment of the Court of Appeals and remand the cases for further proceedings consistent with this opinion. It is so ordered. Cite as: 590 U. S. ____ (2020) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ Nos. 18–1334, 18–1475, 18–1496, 18–1514 and 18–1521 _________________ FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, PETITIONER 18–1334 v. AURELIUS INVESTMENT, LLC, ET AL. AURELIUS INVESTMENT, LLC, ET AL., PETITIONERS 18–1475 v. COMMONWEALTH OF PUERTO RICO, ET AL. OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF ALL TITLE III DEBTORS OTHER THAN COFINA, PETITIONER 18–1496 v. AURELIUS INVESTMENT, LLC, ET AL. UNITED STATES, PETITIONER 18–1514 v. AURELIUS INVESTMENT, LLC, ET AL. UNIÓN DE TRABAJADORES DE LA INDUSTRIA ELÉCTRICA Y RIEGO, INC., PETITIONER 18–1521 v. FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT [June 1, 2020] JUSTICE THOMAS, concurring in the judgment.

The Constitution’s Appointments Clause says that the President “shall nominate, and by and with the Advice and Con- sent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States” Art. II, cl. 2 (emphasis added). In 2016, Congress enacted the Puerto Rico Oversight, Man- agement, and Economic Stability Act (PROMESA). 130 Stat. 549, 48 U.S. C. et seq. That Act created a Fi- nancial Oversight and Management Board, and it provided, as relevant here, that the President could appoint its seven members without “the advice and consent of the Senate,” i.e., without Senate confirmation. The question before us is whether this method of appoint- ment violates the Constitution’s Senate confirmation re- quirement. In our view, the Appointments Clause governs the appointments of all officers of the United States, includ- ing those located in Puerto Rico. Yet two provisions of the Constitution empower Congress to create local offices for the District of Columbia and for Puerto Rico and the Terri- tories. See Art. I, cl. 17; Art. IV, cl. 2. And the Clause’s term “Officers of the United States” has never been understood to cover those whose powers and duties are pri- marily local in nature and derive from these two constitu- tional provisions. The Board’s statutory responsibilities consist of primarily local duties, namely, representing Puerto Rico in bankruptcy proceedings and supervising as- pects of Puerto Rico’s fiscal and budgetary policies. We therefore find that the Board members are not “Officers of Cite as: 590 U. S. (2020) 3 Opinion of the Court the United States.” For that reason, the Appointments Clause does not dictate how the Board’s members must be selected. I A In 2006, tax advantages that had previously led major businesses to invest in Puerto Rico expired. See Small Business Job Protection Act of 1996, Many industries left the island. Emigration increased. And the public debt of Puerto Rico’s government and its instru- mentalities soared, rising from $39.2 billion in 2005 to $71 billion in 2016. See Dept. of Treasury, Puerto Rico’s Eco- nomic and Fiscal Crisis 1, 3, https://www.treasury.gov/ connect/blog/Documents/Puerto_Ricos_fiscal_challenges.pdf; GAO, U. S. Territories: Public Debt Outlook 12 (GAO–18– 160, 2017). Puerto Rico found that it could not service that debt. Yet Puerto Rico could not easily restructure it. The Federal Bankruptcy Code’s municipality-related Chapter 9 did not apply to Puerto Rico (or to the District of Columbia). See 11 U.S. C. 101(52). But at the same time, federal bankruptcy law invalidated Puerto Rico’s own local “debt- restructuring” statutes. Puerto Rico v. Franklin Cal. Tax- Free Trust, 579 U. S. (2016). In 2016, in response to Puerto Rico’s fiscal crisis, Congress enacted PROMESA. 48 U.S. C. et seq. PROMESA allows Puerto Rico and its entities to file for federal bankruptcy protection. See 302, 130 Stat. 577, 579; cf. 11 U.S. C. (related to bankruptcies of lo- cal governments). The filing and subsequent proceedings are to take place in the United States District Court for the District of Puerto Rico, before a federal judge selected by the Chief Justice of the United States. PROMESA 308, PROMESA also created the Financial Oversight and Management Board—with seven members 4 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court appointed by the President and with the Governor serving as an ex officio member. (e), 554–555. PROMESA gives the Board authority to file for bankruptcy on behalf of Puerto Rico or its instrumentalities. The Board can supervise and modify Puerto Rico’s laws (and budget) to “achieve fiscal responsibility and access to the capital markets.” ; see at 563–575. And it can gather evidence and conduct investigations in support of these efforts. –561. As we have just said, PROMESA gives the President of the United States the power to appoint the Board’s seven members without Senate confirmation, so long as he selects six from lists prepared by congressional leaders. at 554–555. B On August 31, 2016, President Obama selected the Board’s seven members in the manner just described. The Board established offices in Puerto Rico and New York, and soon filed bankruptcy petitions on behalf of the Common- wealth and (eventually) five Commonwealth entities. Title III Petition in No. 17–BK–3283 (PR); see Order Pursuant to PROMESA Section 304(g), No. 17–BK–3283 Doc. 8829 (consolidating petitions filed on behalf of the Commonwealth of Puerto Rico, the Puerto Rico Sales Tax Financing Corporation, the Puerto Rico Highways and Transportation Authority, the Employees Retirement Sys- tem of the Government of the Commonwealth of Puerto Rico, the Puerto Rico Electric Power Authority, and the Puerto Rico Public Buildings Authority). And the Chief Justice then selected a federal judge to serve as bankruptcy judge for Puerto Rico. Designation of Presiding District Judge, No. 17–BK–3283 (PR, May 5, 2017), Doc. 4. After both court and Board had decided a number of mat- ters, several creditors moved to dismiss all proceedings on Cite as: 590 U. S. (2020) 5 Opinion of the Court the ground that the Board members’ selection violated the Appointments The court denied the motions. See In re Financial Oversight and Management Bd. of Puerto Rico, The credi- tors appealed to the United States Court of Appeals for the First Circuit. That court reversed. It held that the selec- tion of the Board’s members violated the Appointments But it concluded that those Board actions taken prior to its decision remained valid under the “de facto officer” doctrine. at 862–863; see, e.g., (1895) (judicial decisions could not later be attacked on ground that an unlawfully sitting judge presided); Ball v. United States, The Board, the United States, and various creditors then filed petitions for certiorari in this Court, some arguing that the appointments were constitutionally valid, others that the de facto officer doctrine did not apply. Compare Pets. for Cert. in Nos. 18–1334, 18–96, 18–15 with Pets. for Cert. in Nos. 18–75, 18–1521. In light of the importance of the questions, we granted certiorari in all the petitions and consolidated them for argument. 588 U. S. II Congress created the Board pursuant to its power under Article IV of the Constitution to “make all needful Rules and Regulations respecting the Territory belonging to the United States.” cl. 2; see PROMESA 130 Stat. 553. Some have argued in these cases that the Ap- pointments Clause simply does not apply in the context of Puerto Rico. But, like the Court of Appeals, we believe the Appointments Clause restricts the appointment of all offic- ers of the United States, including those who carry out their powers and duties in or in relation to Puerto Rico. The Constitution’s structure provides strong reason to be- lieve that is so. The Constitution separates the three basic 6 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court powers of Government—legislative, executive, and judi- cial—with each branch serving different functions. But the Constitution requires cooperation among the three branches in specified areas. Thus, to become law, proposed legislation requires the agreement of both Congress and the President (or, a supermajority in Congress). See INS v. Chadha, (noting that the Consti- tution prescribes only four specific actions that Congress can take without bicameralism and presentment). At the same time, legislation must be consistent with constitu- tional constraints, and we usually look to the Judiciary as the ultimate interpreter of those constraints. The Appointments Clause reflects a similar allocation of responsibility, between President and Senate, in cases in- volving appointment to high federal office. That Clause re- flects the Founders’ reaction to “one of [their] generation’s greatest grievances against [pre-Revolutionary] executive power,” the manipulation of appointments. ; see also The Federalist No. 76, p. 455 (C. Rossiter ed. 1961) (A. Hamilton) (the Ap- pointments Clause helps to preserve democratic accounta- bility). The Founders addressed their concerns with the ap- pointment power by both concentrating it and distributing it. On the one hand, they ensured that primary responsi- bility for nominations would fall on the President, whom they deemed “less vulnerable to interest-group pressure and personal favoritism” than a collective body. v. United States, See also The Fed- eralist No. 76, at 455 (“The sole and undivided responsibil- ity of one man will naturally beget a livelier sense of duty and a more exact regard to reputation”). On the other hand, they ensured that the Senate’s advice and consent power would provide “an excellent check upon a spirit of favorit- ism in the President and a guard against the appointment of unfit characters.” NLRB v. SW General, Inc., 580 U. S. (2017) (slip op., at 2) (internal quotation marks Cite as: 590 U. S. (2020) 7 Opinion of the Court omitted). By “limiting the appointment power” in this fash- ion, the Clause helps to “ensure that those who wielded [the appointments power] were accountable to political force and the will of the people.” ; see also 520 U.S., at “The blame of a bad nomination would fall upon the president singly and absolutely,” while “[t]he censure of rejecting a good one would lie entirely at the door of the senate.” (internal quotation marks omitted). These other structural constraints, designed in part to ensure political accountability, apply to all exercises of fed- eral power, including those related to Article IV entities. Cf., e.g., Metropolitan Washington Airports 270–271 (MWAA) (separation-of-powers principles apply when Congress acts under its Article IV power to leg- islate “respecting other Property”). See also, e.g., Act of Aug. 7, 1789, ch. 8, (the First Congress using bi- cameralism and presentment to make rules and regulations for the Northwest Territory). The objectives advanced by the Appointments Clause counsel strongly in favor of that Clause applying to the appointment of all “Officers of the United States.” Why should it be different when such an officer’s duties relate to Puerto Rico or other Article IV en- tities? Indeed, the Appointments Clause has no Article IV ex- ception. The Clause says in part that the President “shall nominate, and by and with the Advice and Con- sent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments shall be established by Law” Art. II, cl. 2. That text firmly indicates that it applies to the appointment of all “Officers of the United States.” And history confirms 8 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court this reading. Before the writing of the Constitution, Con- gress had enacted an ordinance that allowed Congress to appoint officers to govern the Northwest Territory. As soon as the Constitution became law, the First Congress “adapt[ed]” that ordinance “to the present Constitution of the United States,” Act of Aug. 7, 1789, in large part by providing for an appointment process consistent with the constraints of the Appointments In par- ticular, it provided for a Presidential-appointment, Senate- confirmation process for high-level territorial appointees who assumed federal, as well as local, duties. See n. (a); (appointment by President, and confir- mation by Senate, of Governor, secretary, and members of the upper house); Act of Sept. 11, 1789, ch. 13, 1 Stat. 68 (Governor “discharg[ed]” the federal “duties of superin- tendent of Indian affairs”). Later Congresses took a similar approach to later territorial Governors with federal duties. See Act of June 6, 1900, (appointment of Governor of Territory of Alaska by President with confir- mation by Senate); (federal duties of Alaska territorial Governor include entering into contracts in name of the United States and granting reprieves for federal of- fenses); Act of Mar. 2, 1819, § 10, 495 (similar for Governor of Arkansas). We do not mean to suggest that every time Congress chooses to require advice and consent procedures it does so because they are constitutionally re- quired. At times, Congress may wish to require Senate con- firmation for policy reasons. Even so, Congress’ practice of requiring advice and consent for these Governors with im- portant federal duties supports the inference that Congress expected the Appointments Clause to apply to at least some officials with supervisory authority over the Territories. Given the Constitution’s structure, this history, roughly analogous case law, and the absence of any conflicting au- thority, we conclude that the Appointments Clause con- strains the appointments power as to all “Officers of the Cite as: 590 U. S. (2020) 9 Opinion of the Court United States,” even when those officers exercise power in or related to Puerto Rico. III A The more difficult question before us is whether the Board members are officers of the United States such that the Appointments Clause requires Senate confirmation. If they are not officers of the United States, but instead are some other type of officer, the Appointments Clause says nothing about them. (No one suggests that they are “Am- bassadors,” “other public Ministers and Consuls,” or “Judges of the supreme Court.”) And as we shall see, the answer to this question turns on whether the Board mem- bers have primarily local powers and duties. The language at issue does not offer us much guidance for understanding the key term “of the United States.” The text suggests a distinction between federal officers—offic- ers exercising power of the National Government—and nonfederal officers—officers exercising power of some other government. The Constitution envisions a federalist struc- ture, with the National Government exercising limited fed- eral power and other, local governments—usually state governments—exercising more expansive power. But the Constitution recognizes that for certain localities, there will be no state government capable of exercising local power. Thus, two provisions of the Constitution, Article I, cl. 17, and Article IV, cl. 2, give Congress the power to legislate for those localities in ways “that would exceed its powers, or at least would be very unusual” in other contexts. Pal- Using these powers, Congress has long legislated for entities that are not States—the District of Columbia and the Territo- ries. See District of And, in doing so, Congress has both made local law directly and also created structures 10 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court of local government, staffed by local officials, who them- selves have made and enforced local law. Compare, e.g., Act of Mar. 2, 1962, (changing D. C. liquor tax from $1.25 per gallon to $1.50 per gallon), with District of Columbia Self-Government and Governmental Reorganiza- tion Act, (giving local D. C. government pri- mary legislative control over local matters). This structure suggests that when Congress creates local offices using these two unique powers, the officers exercise power of the local government, not the Federal Government. Cf. Ameri- can Ins. (Marshall, C. J.) (territorial courts may exercise the judicial power of the Territories without the life tenure and salary protections mandated by Article III for federal judges); Cin- cinnati Soap (territorial legislators may exercise the legislative power of the Territories without violating the nondelegation doc- trine). History confirms what the Constitution’s text and struc- ture suggest. See 524 (20) (relying on history and structure in interpreting the Recess Appointments Clause). See also McCulloch v. Maryland, (emphasizing the util- ity of historical practice in interpreting constitutional pro- visions). Longstanding practice indicates that a federal law’s creation of an office in this context does not automat- ically make its holder an “Officer of the United States.” Ra- ther, Congress has often used these two provisions to create local offices filled in ways other than those specified in the Appointments When the First Congress legislated for the Northwest Territories, for example, it created a House of Representatives for the Territory with members selected by election. It also created an upper house of the territorial legislature, whose members were appointed by the President (without Senate confirmation) from lists pro- Cite as: 590 U. S. (2020) 11 Opinion of the Court vided by the elected, lower house. And it created magis- trates appointed by the Governor. See Act of Aug. 7, 1789, n. (a). The practice of creating by federal law local offices for the Territories and District of Columbia that are filled through election or local executive appointment has continued una- bated for more than two centuries. See, e.g., (North- west Territories local offices filled by election); Act of Apr. 7, 1798, ; Act of May 7, 1800, ; Act of May 15, 1820, ; Act of Apr. 30, 1900, ; Act of Aug. 24, 1912, ; Act of Aug. 23, 1968, 82 Stat. 837 (Virgin Islands, same); Act of Sept. 11, 1968, Pub. L. 90–497, ; Act of May 4, 1812, ; Act of June 4, 1812, ; Act of Mar. 2, 1819, ; Act of June 6, 1900, ; Act of Sept. 11, 1968, Like JUSTICE THOMAS, post, at 6 (opinion concurring in judg- ment), we think the practice of the First Congress is strong evidence of the original meaning of the Constitution. We find this subsequent history similarly illuminates the text’s meaning. Puerto Rico’s history is no different. It reveals a longstanding practice of selecting public officials with im- portant local responsibilities in ways that the Appoint- ments Clause does not describe. In 1898, at the end of the Spanish-American War, the United States took responsibil- ity for determining the civil rights of Puerto Ricans as well as Puerto Rico’s political status. Treaty of Paris, Art. 9, Dec. 10, 1898, In 1900, the Foraker Act pro- vided for Presidential appointment (with Senate confirma- tion) of Puerto Rico’s Governor, the heads of six depart- ments, the legislature’s upper house, and the justices of its 12 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court high court. Organic Act of 1900, 17, 18, 33, 84. But it also provided for the selection, through popular election, of a lower legislative house with the power (subject to upper house concurrence) to “alter, amend, modify, and repeal any and all laws of every character.” 27, 32, There is no indication that anyone thought members of the lower house, wielding important local re- sponsibilities, were “Officers of the United States.” Congress replaced the Foraker Act with the Jones Act in 1917. Organic Act of Puerto Rico, ch. 5, Un- der the Jones Act the Puerto Rican Senate was elected and consequently no longer satisfied the Appointments Clause criteria. See Similarly, the Governor of Puerto Rico nominated four cabinet members, confirmed by the Senate of Puerto Rico. at –956. The elected legislature retained “all local legislative powers,” including the power to appropriate funds. 25, 34, 37, 962, 964. Congress amended the Jones Act in 1947 to provide for an elected Governor of Puerto Rico, and granted that Gov- ernor the power to appoint all cabinet officials. See Act of Aug. 5, 1947, ch. 490, 1, 3, 771. The Presi- dent retained the power to appoint (with Federal Senate confirmation) judges, an auditor, and the new office of Co- ordinator of Federal Agencies, who was to supervise federal functions in Puerto Rico and recommend to higher federal officials ways to improve the quality of federal services. In 1950, Congress enacted Public Law 600, “in the nature of a compact” with Puerto Rico and subject to approval by the voters of Puerto Rico. Act of July 3, 1950, ch. 446, § 2, The Act adopted the Jones Act, as amended, as the Puerto Rican Federal Relations Act, and provided for the Jones Act’s substantial (but not complete) repeal upon the effective adoption of a contemplated Puerto Rican con- stitution. § 5, at 319–320. Among the provisions of Cite as: 590 U. S. (2020) 13 Opinion of the Court the Jones Act that Public Law 600 retained were several related to Puerto Rico’s public debt. Congress retained, for example, the triple-tax-exempt nature of Puerto Rican bonds. Jones Act, It also retained a (later repealed) cap on the amount of public debt Puerto Rico or its subdivisions could accumulate. In a public refer- endum, the citizens of Puerto Rico approved Public Law 600—including the limits on debt in of the Federal Rela- tions Act—and then began the constitution-making pro- cess. Pub. L. 600, § 3, ; see Act of July 3, 1, ; A. Fernós-Isern, Original Intent in the Constitution of Puerto Rico 13 (2d ed. 2002). Puerto Rico’s popularly ratified Constitution, which Con- gress accepted with a few fairly minor changes, does not in- volve the President or the Senate in the appointment pro- cess for local officials. That Constitution provides for the election of Puerto Rico’s Governor and legislators. Art. III, Art. IV, And it provides for gubernatorial appoint- ment (and Puerto Rican Senate confirmation) of cabinet of- ficers. Art. IV, The upshot is that Puerto Rico’s history reflects long- standing use of various methods for selecting officials with primarily local responsibilities. This history is consistent with the history of other entities that fall within the scope of Article IV and with the history of the District of Colum- bia. See at 10–11. And it comports with our prece- dents, which have long acknowledged that Congress may structure local governments under Article IV and Article I in ways that do not precisely mirror the constitutional blue- print for the National Government. See, e.g., Cf. Glidden Co. v. Zdanok, 370 U.S. 530, (1962) (plurality opinion) (recognizing that local governments created by Congress could, like govern- ments of the States, “dispense with protections deemed in- herent in a separation of governmental powers”). Some- times Congress has specified the use of methods that would FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court satisfy the Appointments Clause, other times it has speci- fied methods that would not satisfy the Appointments Clause, including elections and appointment by local offi- cials. Officials with primarily local duties have often fallen into the latter categories. We know of no case endorsing an Appointments Clause based challenge to such selection methods. Indeed, to read Appointments Clause constraints as binding Puerto Rican officials with primarily local duties would work havoc with Puerto Rico’s (federally ratified) democratic methods for selecting many of its officials. We thus conclude that while the Appointments Clause does restrict the appointment of “Officers of the United States” with duties in or related to the District of Columbia or an Article IV entity, it does not restrict the appointment of local officers that Congress vests with primarily local du- ties under Article IV, or Article I, cl. 17. B The question remains whether the Board members have primarily local powers and duties. We note that the Clause qualifies the phrase “Officers of the United States” with the words “whose Appointments shall be established by Law.” And we also note that PROMESA says that the Board is “an entity within the territorial government” and “shall not be considered a department, agency, establish- ment, or instrumentality of the Federal Government.” But the most these words show is that Congress did not intend to make the Board members “Officers of the United States.” It does not prove that, inso- far as the Constitution is concerned, they succeeded. But we think they have. Congress did not simply state that the Board is part of the local Puerto Rican government. Rather, Congress also gave the Board a structure, a set of duties, and related powers all of which are consistent with this statement. Cite as: 590 U. S. (2020) 15 Opinion of the Court The government of Puerto Rico pays the Board’s ex- penses, including the salaries of its employees (the mem- bers serve without pay). ; see at 556. The Board possesses investigatory powers. It can hold hearings. It can issue subpoenas, subject to Puerto Rico’s limits on personal jurisdiction and enforceable under Puerto Rico’s laws. ), And it can enforce those subpoenas in (and only in) Puerto Rico’s courts. 104(f )(2), 106(a), 562. From its own offices in or outside of Puerto Rico, the Board works with the elected government of Puerto Rico to develop a fiscal plan that provides “a method to achieve fis- cal responsibility and access to the capital markets.” If it finds it necessary, the Board can develop its own budget for Puerto Rico which is “deemed approved” and becomes the operative budget. It can ensure compliance with the plan and budget by reviewing the Puerto Rico government’s laws and spending and by “direct[ing]” corrections or taking “such [other] actions as it considers necessary,” including pre- venting a law from taking effect. 203(d), 204(a), at 569, 571. The Board controls the issuance of new debt for Puerto Rico. The Board also may initiate bankruptcy proceedings for Puerto Rico or its instrumentalities. It may take any related “action necessary on behalf of,” and it serves as “the representative of,” Puerto Rico or its instru- mentalities. 15, These proceedings take place in the U. S. District Court for Puerto Rico. 07, To repeat: The Board has broad investigatory powers: It can administer oaths, issue subpoenas, take evidence and demand data from governments and creditors alike. But these powers are backed by Puerto Rican, not federal, law: Subpoenas are governed by Puerto Rico’s personal jurisdic- tion statute; false testimony is punishable under the law of 16 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court Puerto Rico; the Board must seek enforcement of its sub- poenas by filing in the courts of Puerto Rico. See –561. These powers are primarily local in nature. The Board also oversees the development of Puerto Rico’s fiscal and budgetary plans. It receives and evaluates pro- posals from the elected Governor and legislature. It can create a budget “deemed” to be that of Puerto Rico. It can intervene when budgetary constraints are violated. And it has authority over the issuance of new debt. at 563–575. These powers, too, are quintessentially lo- cal. Each concerns the finances of the Commonwealth, not of the United States. The Board members in this respect discharge duties ordinarily held by local officials. Last, the Board has the power to initiate bankruptcy pro- ceedings. But in doing so, it acts not on behalf of the United States, but on behalf of, and in the interests of, Puerto Rico. The proceedings take place in federal court; but the same is true of all persons or entities who seek bankruptcy protec- tion. The Board here acts as a local government that might take precisely the same actions. See, e.g., 11 U.S. C. 921 (related to bankruptcies of local govern- ments). Some Board actions, of course, may have nationwide con- sequences. But the same can be said of many actions taken by many Governors or other local officials. Taking actions with nationwide consequences does not automatically transform a local official into an “Officer of the United States.” The challengers rely most heavily on the nation- wide effects of the bankruptcy proceedings. E.g., Brief for Aurelius et al. 31; Brief for Petitioner Unión de Trabaja- dores de la Industria Eléctrica y Riego, Inc. (UTIER) 49. But the same might be said of any major municipal, or even corporate, bankruptcy. E.g., In re Detroit, (Bkrtcy. Ct. ED Mich. 2013) (restructuring $18 billion in municipal debt). Cite as: 590 U. S. (2020) 17 Opinion of the Court In short, the Board possesses considerable power—in- cluding the authority to substitute its own judgment for the considered judgment of the Governor and other elected offi- cials. But this power primarily concerns local matters. Congress’ law thus substitutes a different process for deter- mining certain local policies (related to local fiscal respon- sibility) in respect to local matters. And that is the critical point for current purposes. The local nature of the legisla- tion’s expressed purposes, the representation of local inter- ests in bankruptcy proceedings, the focus of the Board’s powers upon local expenditures, the local logistical support, the reliance on local laws in aid of the Board’s procedural powers—all these features when taken together and judged in the light of Puerto Rico’s history (and that of the Territo- ries and the District of Columbia)—make clear that the Board’s members have primarily local duties, such that their selection is not subject to the constraints of the Ap- pointments IV The Court of Appeals, pointing to three of this Court’s cases, reached the opposite conclusion. See Buckley v. Valeo, v. Commis- sioner, and Lucia v. SEC, 585 U. S. It pointed out that the Court, in those cases, dis- cussed the term “Officer of the United States,” and it con- cluded that, for Appointments Clause purposes, an appoin- tee is such an “officer” if “(1) the appointee occupies a ‘continuing’ position established by federal law; (2) the ap- pointee ‘exercis[es] significant authority’; and (3) the signif- icant authority is exercised ‘pursuant to the laws of the United States.’ ” The Court of Appeals concluded that the Board members satisfied this test. See at 856–857. We do not believe these three cases set forth the critical legal test relevant here, however, and we do not apply any 18 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court test they might enunciate. Each of the cases considered an Appointments Clause problem concerning the importance or significance of duties that were indisputably federal or national in nature. In Buckley, the question was whether members of the Federal Election Commission—appointees carrying out federal-election related duties—were “officers” for Appointments Clause purposes. In the Court asked the same question about special federal trial judges serving on federal tax courts. And in Lucia the Court asked the same question about federal administrative law judges carrying out Securities and Exchange Commission duties. Here, PROMESA, a federal law, creates the Board and its duties, and no one doubts their significance. But we cannot stop there. To do so would ignore the history we have dis- cussed—history stretching back to the founding. See at 10–13. And failing to take account of the nature of an appointee’s federally created duties, i.e., whether they are primarily local versus primarily federal, would threaten in- terference with democratic (or local appointment) selection methods in numerous Article IV Territories and perhaps the District of Columbia as well. See, e.g., 48 U.S. C. (providing for an elected Governor of Guam); (same for Virgin Islands); District of Columbia Self-Government Act, ; 87 Stat. 790 (describing D. C. Mayor’s appointment powers); 48 U.S. C. c (same for Guam’s Governor); (same for Virgin Islands). There is no reason to understand the Appointments Clause—which, at least in part, seeks to advance democratic accountability and broaden appoint- ments-related responsibility, see at 6–7—as making it significantly more difficult for local residents of such ar- eas to share responsibility for the implementation of (stat- utorily created) primarily local duties. Neither the text nor the history of the Clause commands such a result. Neither do or MWAA, help Cite as: 590 U. S. (2020) 19 Opinion of the Court those challenging the Board’s constitutional legitimacy. Lebron considered whether, for First Amendment purposes, Amtrak was a governmental or a private entity. 513 U.S., at 379. All here agree that the Board is a Government en- tity, but that fact does not answer the “primarily local ver- sus primarily federal” question. In MWAA, the Court held that separation-of-powers principles forbid Members of Congress to become members of a board that controls fed- erally owned –276 and INS v. Chadha, ). The Court expressly declined to answer any question related to the Appoint- ments n. 23. While we have found no case from this Court directly on point, we believe that the Court’s analysis in O’Donoghue v. United States, and especially v. United States, provides a rough analogy. In O’Donoghue, the Court considered whether Article III’s tenure and salary protections applied to judges of the courts in the District of Columbia. The Court held that they did. Those courts, it believed, were “ ‘courts of the United States’ ” and “recipients of the judicial power of the United States.” 289 U.S., at 548. The judges’ salaries conse- quently could not be reduced. In however, the Court reached what might seem the precisely opposite conclusion. A criminal defendant, in- voking O’Donoghue, argued that the D. C. Superior Court Judge could not constitutionally preside over the case be- cause the judge lacked Article III’s tenure protection, namely, life tenure. But the Court rejected the defendant’s argument. Why? How did it ex- plain O’Donoghue? The difference, said the Court, lies in the fact that, in the meantime, Congress had changed the nature of the District of Columbia court. at 406–407; see District of Columbia Court Reform and Criminal Procedure Act of 20 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court 1970, Congress changed what had been a uni- fied court system where judges adjudicated both local and federal issues into separate court systems, in one of which judges adjudicated primarily local issues. Courts in that category had criminal jurisdiction over only those cases brought “ ‘under any law applicable exclusively to the District of Columbia.’ ” Its judges served for 15-year terms. This Court, in considered a local judge presiding over a local court. Congress had created that court in the exercise of its Article I power to “exercise exclusive Legisla- tion in all Cases whatsoever” over the District of Columbia. See Art I, cl. 17. The “focus” of these courts was “pri- marily upon matters of strictly local concern.” 411 U.S., at 407. Hence, the nature of those courts was a “far cry” from that of the courts at issue in O’Donoghue. The Court added that Congress had created non-Article III courts under its Article IV powers. It wrote that Con- gress could also create non-Article III courts under its Arti- cle I powers. And it held that judges serv- ing on those non-Article III courts lacked Article III protections. concerned Article I of the Constitution, not Arti- cle IV. And it concerned “the judicial Power of the United States,” not “Officers of the United States.” But it provides a rough analogy. It holds that Article III protections do not apply to an Article I court “focus[ed],” unlike the courts at issue in O’Donoghue, primarily on local matters. Here, Congress expressly invoked a constitutional provision al- lowing it to make local debt-related law (Article IV); it ex- pressly located the Board within the local government of Puerto Rico; it clearly indicated that it intended the Board’s members to be local officials; and it gave them primarily local powers, duties, and responsibilities. In his concurring opinion, JUSTICE THOMAS criticizes the Cite as: 590 U. S. (2020) 21 Opinion of the Court inquiry we set out—whether an officer’s duties are primar- ily local or primarily federal—as too “amorphous,” post, at 10. But we think this is the test established by the Consti- tution’s text, as illuminated by historical practice. And we cannot see how Congress could avoid the strictures of the Appointments Clause by adding to a federal officer’s other obligations a large number of local duties. Indeed, we think that our test, tied as it is to both the text and the history of the Appointments Clause, is more rigorous than the bare inquiry into the “nature” of the officer’s authority that JUSTICE THOMAS proposes, and we believe it is more faith- ful to the Clause’s original meaning. V We conclude, for the reasons stated, that the Constitu- tion’s Appointments Clause applies to the appointment of officers of the United States with powers and duties in and in relation to Puerto Rico, but that the congressionally man- dated process for selecting members of the Financial Over- sight and Management Board for Puerto Rico does not vio- late that Given this conclusion, we need not consider the request by some of the parties that we overrule the much-criticized “Insular Cases” and their progeny. See, e.g., (opinion of Brown, J.); (1922); (plurality opin- ion) (indicating that the Insular Cases should not be further extended); see also Brief for Official Committee of Unse- cured Creditors of All Title III Debtors (Other than COFINA) 20–25 (arguing that the Insular Cases support reversal on the Appointments Clause issue); Brief for UTIER 64–66 (encouraging us to overrule the Insular Cases); Brief for Virgin Islands Bar Association as Amicus Curiae 13–18 ; Cabranes, Citizenship and the Amer- ican Empire, 436–442 (1978) (criti- cizing the Insular Cases); Littlefield, The Insular Cases, 15 22 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court Harv. L. Rev. 169 Those cases did not reach this issue, and whatever their continued validity we will not extend them in these cases. See at Neither, since we hold the appointment method valid, need we consider the application of the de facto officer doc- trine. See (dis- cussing the doctrine); see also, e.g., Brief for Aurelius et al. 48–69 (arguing the doctrine does not apply in this context); Brief for UTIER 69–85 ; Reply Brief for United States 26–47 (insisting to the contrary); Brief for Cross-Re- spondent COFINA Senior Bondholders’ Coalition –46 Finally, as JUSTICE SOTOMAYOR recognizes, post, at 8 (opinion concurring in judgment), we need not, and there- fore do not, decide questions concerning the application of the Federal Relations Act and Public Law 600. No party has argued that those Acts bear any significant relation to the answer to the Appointments Clause question now be- fore us. For these reasons, we reverse the judgment of the Court of Appeals and remand the cases for further proceedings consistent with this opinion. It is so ordered. Cite as: 590 U. S. (2020) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES Nos. 18–1334, 18–75, 18–96, 18–15 and 18–1521 FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, PETITIONER 18–1334 v. AURELIUS INVESTMENT, LLC, ET AL. AURELIUS INVESTMENT, LLC, ET AL., PETITIONERS 18–75 v. COMMONWEALTH OF PUERTO RICO, ET AL. OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF ALL TITLE III DEBTORS OTHER THAN COFINA, PETITIONER 18–96 v. AURELIUS INVESTMENT, LLC, ET AL. UNITED STATES, PETITIONER 18–15 v. AURELIUS INVESTMENT, LLC, ET AL. UNIÓN DE TRABAJADORES DE LA INDUSTRIA ELÉCTRICA Y RIEGO, INC., PETITIONER 18–1521 v. FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT [June 1, 2020] JUSTICE THOMAS, concurring in the judgment.

Justice Brennan

concurring

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY

https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/

https://www.courtlistener.com/api/rest/v3/clusters/110312/

1979-127

One of the major difficulties in this case is the proper characterization of the Commission's Policy Statement. I find it impossible to determine on the present record whether the Commission's ban on all "promotional" advertising, in contrast to "institutional and informational" advertising, see ante, at 559, is intended to encompass more than "commercial speech." I am inclined to think that MR. JUSTICE STEVENS is correct that the Commission's order prohibits more than mere proposals to engage in certain kinds of commercial transactions, and therefore I agree with his conclusion that the ban surely violates the First and Fourteenth Amendments. But even on the assumption that the Court is correct that the Commission's order reaches only commercial speech, I agree with MR. JUSTICE BLACKMUN that "[n]o differences between commercial speech and other protected speech justify suppression of commercial speech in order to influence public conduct through manipulation of the availability of information." Post, at 578. Accordingly, with the qualifications implicit in the preceding *573 paragraph, I join the opinions of MR. JUSTICE BLACKMUN and MR. JUSTICE STEVENS concurring in the judgment. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN joins, concurring in the judgment. I agree with the Court that the Public Service Commission's ban on promotional advertising of electricity by public utilities is inconsistent with the First and Fourteenth Amendments. I concur only in the Court's judgment, however, because I believe the test now evolved and applied by the Court is not consistent with our prior cases and does not provide adequate protection for truthful, nonmisleading, noncoercive commercial speech. The Court asserts, ante, at 566, that "a four-part analysis has developed" from our decisions concerning commercial speech. Under this four-part test a restraint on commercial "communication [that] is neither misleading nor related to unlawful activity" is subject to an intermediate level of scrutiny, and suppression is permitted whenever it "directly advances" a "substantial" governmental interest and is "not more extensive than is necessary to serve that interest." Ante, at 564 and 566. I agree with the Court that this level of intermediate scrutiny is appropriate for a restraint on commercial speech designed to protect consumers from misleading or coercive speech, or a regulation related to the time, place, or manner of commercial speech. I do not agree, however, that the Court's four-part test is the proper one to be applied when a State seeks to suppress information about a product in order to manipulate a private economic decision that the State cannot or has not regulated or outlawed directly. Since the Court, without citing empirical data or other authority, finds a "direct link" between advertising and energy consumption, it leaves open the possibility that the State may suppress advertising of electricity in order to lessen demand for electricity. I, of course, agree with the Court that, *574 in today's world, energy conservation is a goal of paramount national and local importance. I disagree with the Court, however, when it says that suppression of speech may be a permissible means to achieve that goal. MR. JUSTICE STEVENS appropriately notes: "The justification for the regulation is nothing more than the expressed fear that the audience may find the utility's message persuasive. Without the aid of any coercion, deception, or misinformation, truthful communication may persuade some citizens to consume more electricity than they otherwise would." Post, at 581. The Court recognizes that we have never held that commercial speech may be suppressed in order to further the State's interest in discouraging purchases of the underlying product that is advertised. Ante, at 566, n. 9. Permissible restraints on commercial speech have been limited to measures designed to protect consumers from fraudulent, misleading, or coercive sales techniques.[1] Those designed to deprive consumers of information about products or services that are legally offered for sale consistently have been invalidated.[2] I seriously doubt whether suppression of information concerning the availability and price of a legally offered product is ever a permissible way for the State to "dampen" demand for or use of the product. Even though "commercial" speech is involved, such a regulatory measure strikes at the heart of the First Amendment. This is because it is a covert attempt *575 by the State to manipulate the choices of its citizens, not by persuasion or direct regulation, but by depriving the public of the information needed to make a free choice. As the Court recognizes, the State's policy choices are insulated from the visibility and scrutiny that direct regulation would entail and the conduct of citizens is molded by the information that government chooses to give them. Ante, at 566, n. 9 ("We review with special care regulations that entirely suppress commercial speech in order to pursue a nonspeech-related policy. In those circumstances, a ban on speech could screen from public view the underlying governmental policy"). See Rotunda, The Commercial Speech Doctrine in the Supreme Court, 1976 U. Ill. Law Forum 1080, 1080-1083. If the First Amendment guarantee means anything, it means that, absent clear and present danger, government has no power to restrict expression because of the effect its message is likely to have on the public. See generally Comment, First Amendment Protection for Commercial Advertising: The New Constitutional Doctrine, 44 U. Chi. L. Rev. 205, 243-251 (1976). Our cases indicate that this guarantee applies even to commercial speech. In Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976), we held that Virginia could not pursue its goal of encouraging the public to patronize the "professional pharmacist" (one who provided individual attention and a stable pharmacist-customer relationship) by "keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering." Id., at 770. We noted that our decision left the State free to pursue its goal of maintaining high standards among its pharmacists by "requir[ing] whatever professional standards it wishes of its pharmacists." Ibid. We went on in Virginia Pharmacy Board to discuss the types of regulation of commercial speech that, due to the "commonsense differences" between this form of speech and other forms, are or may be constitutionally permissible. We indicated that government may impose reasonable "time, *576 place, and manner" restrictions, and that it can deal with false, deceptive, and misleading commercial speech. We noted that the question of advertising of illegal transactions and the special problems of the electronic broadcast media were not presented. Concluding with a restatement of the type of restraint that is not permitted, we said: "What is at issue is whether a State may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients. . . . [W]e conclude that the answer to this [question] is in the negative." Id., at 773. Virginia Pharmacy Board did not analyze the State's interests to determine, whether they were "substantial." Obviously, preventing professional dereliction and low quality health care are "substantial," legitimate, and important state goals. Nor did the opinion analyze the ban on speech to determine whether it "directly advance[d]," ante, at 566, 569, these goals. We also did not inquire whether a "more limited regulation of . . . commercial expression," ante, at 570, would adequately serve the State's interests. Rather, we held that the State "may not [pursue its goals] by keeping the public in ignorance." 425 U.S., at 770. (Emphasis supplied.) Until today, this principle has governed. In Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977), we considered whether a town could ban "For Sale" signs on residential property to further its goal of promoting stable, racially integrated housing. We did note that the record did not establish that the ordinance was necessary to enable the State to achieve its goal. The holding of Linmark, however, was much broader.[3] We stated: "The constitutional defect in this ordinance, however, *577 is far more basic. The Township Council here, like the Virginia Assembly in Virginia Pharmacy Bd., acted to prevent its residents from obtaining certain information . . . which pertains to sales activity in Willingboro. . . . The Council has sought to restrict the free flow of these data because it fears that otherwise homeowners will make decisions inimical to what the Council views as the homeowners' self-interest and the corporate interest of the township: they will choose to leave town. The Council's concern, then, was not with any commercial aspect of "For Sale" signs—with offerors communicating offers to offerees—but with the substance of the information communicated to Willingboro citizens." Id., at 96. The Court in Linmark resolved beyond all doubt that a strict standard of review applies to suppression of commercial information, where the purpose of the restaint is to influence behavior by depriving citizens of information. The Court followed the strong statement above with an explicit adoption of the standard advocated by Mr. Justice Brandeis in his concurring opinion in Whitney v. California, 274 U.S. 357, 377 (1927): "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression." 431 U.S., at 97. Carey v. Population Services International, 431 U.S. 678, 700-702 (1977), also applied to content-based restraints on commercial speech the same standard of review we have applied to other varieties of speech. There the Court held that a ban on advertising of contraceptives could not be justified *578 by the State's interest in avoiding "`legitimation' of illicit sexual behavior" because the advertisements could not be characterized as "`directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action,'" id., at 701, quoting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Our prior references to the "`commonsense differences'" between commercial speech and other speech "`suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired.'" Linmark Associates, 431 U. S., at 98, quoting Virginia Pharmacy Board, 425 U. S., at 771-772, n. 24. We have not suggested that the "commonsense differences" between commercial speech and other speech justify relaxed scrutiny of restraints that suppress truthful, nondeceptive, noncoercive commercial speech. The differences articulated by the Court, See ante, at 564, n. 6, justify a more permissive approach to regulation of the manner of commercial speech for the purpose of protecting consumers from deception or coercion, and these differences explain why doctrines designed to prevent "chilling" of protected speech are inapplicable to commercial speech. No differences between commercial speech and other protected speech justify suppression of commercial speech in order to influence public conduct through manipulation of the availability of information. The Court stated in Carey v. Population Services International: "Appellants suggest no distinction between commercial and noncommercial speech that would render these discredited arguments meritorious when offered to justify prohibitions on commercial speech. On the contrary, such arguments are clearly directed not at any commercial aspect of the prohibited advertising but at the ideas conveyed and form of expression—the core of First Amendment values." 431 U. S., at 701, n. 28 (emphasis added). *579 It appears that the Court would permit the State to ban all direct advertising of air conditioning, assuming that a more limited restriction on such advertising would not effectively deter the public from cooling its homes. In my view, our cases do not support this type of suppression. If a governmental unit believes that use or overuse of air conditioning is a serious problem, it must attack that problem directly, by prohibiting air conditioning or regulating thermostat levels. Just as the Commonwealth of Virginia may promote professionalism of pharmacists directly, so too New York may not promote energy conservation "by keeping the public in ignorance." Virginia Pharmacy Board, 425 U. S., at 770. MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN joins, concurring in the judgment. Because "commercial speech" is afforded less constitutional protection than other forms of speech,[1] it is important that the commercial speech concept not be defined too broadly lest speech deserving of greater constitutional protection be inadvertently suppressed. The issue in this case is whether New York's prohibition on the promotion of the use of electricity through advertising is a ban on nothing but commercial speech. In my judgment one of the two definitions the Court uses in addressing that issue is too broad and the other may be somewhat too narrow. The Court first describes commercial speech as "expression related solely to the economic interests of the speaker and its audience." Ante, at 561. Although it is not entirely clear whether this definition uses the subject matter of the speech or the motivation of the speaker as the limiting factor, it seems clear to me that it encompasses speech that is entitled to the maximum protection afforded by the First Amendment. Neither a labor leader's exhortation to *580 strike, nor an economist's dissertation on the money supply, should receive any lesser protection because the subject matter concerns only the economic interests of the audience. Nor should the economic motivation of a speaker qualify his constitutional protection; even Shakespeare may have been motivated by the prospect of pecuniary reward. Thus, the Court's first definition of commercial speech is unquestionably too broad.[2] The Court's second definition refers to "`speech proposing a commercial transaction.'" Ante, at 562. A saleman's solicitation, a broker's offer, and a manufacturer's publication of a price list or the terms of his standard warranty would unquestionably fit within this concept.[3] Presumably, the definition is intended to encompass advertising that advises possible buyers of the availability of specific products at specific prices and describes the advantages of purchasing such items. Perhaps it also extends to other communications that do little more than make the name of a product or a service more familiar to the general public. Whatever the precise contours of the concept, and perhaps it is too early to enunciate an exact formulation, I am persuaded that it should not include the entire range of communication that is embraced within the term "promotional advertising." This case involves a governmental regulation that completely bans promotional advertising by an electric utility. This ban encompasses a great deal more than mere proposals to engage in certain kinds of commercial transactions. It prohibits all advocacy of the immediate or future use of electricity. *581 It curtails expression by an informed and interested group of persons of their point of view on questions relating to the production and consumption of electrical energy—questions frequently discussed and debated by our political leaders. For example, an electric company's advocacy of the use of electric heat for environmental reasons, as opposed to wood-burning stoves, would seem to fall squarely within New York's promotional advertising ban and also within the bounds of maximum First Amendment protection. The breadth of the ban thus exceeds the boundaries of the commercial speech concept, however that concept may be defined.[4] The justification for the regulation is nothing more than the expressed fear that the audience may find the utility's message persuasive. Without the aid of any coercion, deception, or misinformation, truthful communication may persuade some citizens to consume more electricity than they otherwise would. I assume that such a consequence would be undesirable and that government may therefore prohibit and punish the unnecessary or excessive use of electricity. But if the perceived harm associated with greater electrical usage is not sufficiently serious to justify direct regulation, surely it does not constitute the kind of clear and present danger that can justify the suppression of speech. *582 Although they were written in a different context, the words used by Mr. Justice Brandeis in his concurring opinion in Whitney v. California, 274 U.S. 357, 376-377, explain my reaction to the prohibition against advocacy involved in this case: "But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated. "Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution." (Footnote omitted.)[5] *583 In sum, I concur in the result because I do not consider this to be a "commercial speech" case. Accordingly, I see no need to decide whether the Court's four-part analysis, ante, at 566, adequately protects commercial speech—as properly defined— in the face of a blanket ban of the sort involved in this case. MR.

One of the major difficulties in this case is the proper characterization of the Commission's Policy Statement. I find it impossible to determine on the present record whether the Commission's ban on all "promotional" advertising, in contrast to "institutional and informational" advertising, see ante, at 559, is intended to encompass more than "commercial speech." I am inclined to think that MR. JUSTICE STEVENS is correct that the Commission's order prohibits more than mere proposals to engage in certain kinds of commercial transactions, and therefore I agree with his conclusion that the ban surely violates the First and Fourteenth Amendments. But even on the assumption that the Court is correct that the Commission's order reaches only commercial speech, I agree with MR. JUSTICE BLACKMUN that "[n]o differences between commercial speech and other protected speech justify suppression of commercial speech in order to influence public conduct through manipulation of the availability of information." Post, at 578. Accordingly, with the qualifications implicit in the preceding *573 paragraph, I join the opinions of MR. JUSTICE BLACKMUN and MR. JUSTICE STEVENS concurring in the judgment. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN joins, concurring in the judgment. I agree with the Court that the Public Service Commission's ban on promotional advertising of electricity by public utilities is inconsistent with the First and Fourteenth Amendments. I concur only in the Court's judgment, however, because I believe the test now evolved and applied by the Court is not consistent with our prior cases and does not provide adequate protection for truthful, nonmisleading, noncoercive commercial speech. The Court asserts, ante, at 566, that "a four-part analysis has developed" from our decisions concerning commercial speech. Under this four-part test a restraint on commercial "communication [that] is neither misleading nor related to unlawful activity" is subject to an intermediate level of scrutiny, and suppression is permitted whenever it "directly advances" a "substantial" governmental interest and is "not more extensive than is necessary to serve that interest." Ante, at 564 and 566. I agree with the Court that this level of intermediate scrutiny is appropriate for a restraint on commercial speech designed to protect consumers from misleading or coercive speech, or a regulation related to the time, place, or manner of commercial speech. I do not agree, however, that the Court's four-part test is the proper one to be applied when a State seeks to suppress information about a product in order to manipulate a private economic decision that the State cannot or has not regulated or outlawed directly. Since the Court, without citing empirical data or other authority, finds a "direct link" between advertising and energy consumption, it leaves open the possibility that the State may suppress advertising of electricity in order to lessen demand for electricity. I, of course, agree with the Court that, *574 in today's world, energy conservation is a goal of paramount national and local importance. I disagree with the Court, however, when it says that suppression of speech may be a permissible means to achieve that goal. MR. JUSTICE STEVENS appropriately notes: "The justification for the regulation is nothing more than the expressed fear that the audience may find the utility's message persuasive. Without the aid of any coercion, deception, or misinformation, truthful communication may persuade some citizens to consume more electricity than they otherwise would." Post, at 581. The Court recognizes that we have never held that commercial speech may be suppressed in order to further the State's interest in discouraging purchases of the underlying product that is advertised. Ante, at 566, n. 9. Permissible restraints on commercial speech have been limited to measures designed to protect consumers from fraudulent, misleading, or coercive sales techniques.[1] Those designed to deprive consumers of information about products or services that are legally offered for sale consistently have been invalidated.[2] I seriously doubt whether suppression of information concerning the availability and price of a legally offered product is ever a permissible way for the State to "dampen" demand for or use of the product. Even though "commercial" speech is involved, such a regulatory measure strikes at the heart of the First Amendment. This is because it is a covert attempt *575 by the State to manipulate the choices of its citizens, not by persuasion or direct regulation, but by depriving the public of the information needed to make a free choice. As the Court recognizes, the State's policy choices are insulated from the visibility and scrutiny that direct regulation would entail and the conduct of citizens is molded by the information that government chooses to give them. Ante, at 566, n. 9 ("We review with special care regulations that entirely suppress commercial speech in order to pursue a nonspeech-related policy. In those circumstances, a ban on speech could screen from public view the underlying governmental policy"). See Rotunda, The Commercial Speech Doctrine in the Supreme Court, 1976 U. Ill. Law Forum 1080, 1080-1083. If the First Amendment guarantee means anything, it means that, absent clear and present danger, government has no power to restrict expression because of the effect its message is likely to have on the public. See generally Comment, First Amendment Protection for Commercial Advertising: The New Constitutional Doctrine, Our cases indicate that this guarantee applies even to commercial speech. In Virginia Pharmacy we held that Virginia could not pursue its goal of encouraging the public to patronize the "professional pharmacist" (one who provided individual attention and a stable pharmacist-customer relationship) by "keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering." We noted that our decision left the State free to pursue its goal of maintaining high standards among its pharmacists by "requir[ing] whatever professional standards it wishes of its pharmacists." We went on in Virginia Pharmacy to discuss the types of regulation of commercial speech that, due to the "commonsense differences" between this form of speech and other forms, are or may be constitutionally permissible. We indicated that government may impose reasonable "time, *576 place, and manner" restrictions, and that it can deal with false, deceptive, and misleading commercial speech. We noted that the question of advertising of illegal transactions and the special problems of the electronic broadcast media were not presented. Concluding with a restatement of the type of restraint that is not permitted, we said: "What is at issue is whether a State may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients. [W]e conclude that the answer to this [question] is in the negative." Virginia Pharmacy did not analyze the State's interests to determine, whether they were "substantial." Obviously, preventing professional dereliction and low quality health care are "substantial," legitimate, and important state goals. Nor did the opinion analyze the ban on speech to determine whether it "directly advance[d]," ante, at 566, 569, these goals. We also did not inquire whether a "more limited regulation of commercial expression," ante, at 570, would adequately serve the State's interests. Rather, we held that the State "may not [pursue its goals] by keeping the public in ignorance." 425 U.S., (Emphasis supplied.) Until today, this principle has governed. In Linmark we considered whether a town could ban "For Sale" signs on residential property to further its goal of promoting stable, racially integrated housing. We did note that the record did not establish that the ordinance was necessary to enable the State to achieve its goal. The holding of Linmark, however, was much broader.[3] We stated: "The constitutional defect in this ordinance, however, *577 is far more basic. The Township Council here, like the Virginia Assembly in Virginia Pharmacy Bd., acted to prevent its residents from obtaining certain information which pertains to sales activity in Willingboro. The Council has sought to restrict the free flow of these data because it fears that otherwise homeowners will make decisions inimical to what the Council views as the homeowners' self-interest and the corporate interest of the township: they will choose to leave town. The Council's concern, then, was not with any commercial aspect of "For Sale" signs—with offerors communicating offers to offerees—but with the substance of the information communicated to Willingboro citizens." The Court in Linmark resolved beyond all doubt that a strict standard of review applies to suppression of commercial information, where the purpose of the restaint is to influence behavior by depriving citizens of information. The Court followed the strong statement above with an explicit adoption of the standard advocated by Mr. Justice Brandeis in his concurring opinion in : "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression." also applied to content-based restraints on commercial speech the same standard of review we have applied to other varieties of speech. There the Court held that a ban on advertising of contraceptives could not be justified *578 by the State's interest in avoiding "`legitimation' of illicit sexual behavior" because the advertisements could not be characterized as "`directed to inciting or producing imminent lawless action and likely to incite or produce such action,'" quoting Our prior references to the "`commonsense differences'" between commercial speech and other speech "`suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired.'" Linmark quoting Virginia Pharmacy -772, n. 24. We have not suggested that the "commonsense differences" between commercial speech and other speech justify relaxed scrutiny of restraints that suppress truthful, nondeceptive, noncoercive commercial speech. The differences articulated by the Court, See ante, at 564, n. 6, justify a more permissive approach to regulation of the manner of commercial speech for the purpose of protecting consumers from deception or coercion, and these differences explain why doctrines designed to prevent "chilling" of protected speech are inapplicable to commercial speech. No differences between commercial speech and other protected speech justify suppression of commercial speech in order to influence public conduct through manipulation of the availability of information. The Court stated in : "Appellants suggest no distinction between commercial and noncommercial speech that would render these discredited arguments meritorious when offered to justify prohibitions on commercial speech. On the contrary, such arguments are clearly directed not at any commercial aspect of the prohibited advertising but at the ideas conveyed and form of expression—the core of First Amendment values." 431 U. S., n. 28 *579 It appears that the Court would permit the State to ban all direct advertising of air conditioning, assuming that a more limited restriction on such advertising would not effectively deter the public from cooling its homes. In my view, our cases do not support this type of suppression. If a governmental unit believes that use or overuse of air conditioning is a serious problem, it must attack that problem directly, by prohibiting air conditioning or regulating thermostat levels. Just as the Commonwealth of Virginia may promote professionalism of pharmacists directly, so too New York may not promote energy conservation "by keeping the public in ignorance." Virginia Pharmacy 425 U. S., MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN joins, concurring in the judgment. Because "commercial speech" is afforded less constitutional protection than other forms of speech,[1] it is important that the commercial speech concept not be defined too broadly lest speech deserving of greater constitutional protection be inadvertently suppressed. The issue in this case is whether New York's prohibition on the promotion of the use of electricity through advertising is a ban on nothing but commercial speech. In my judgment one of the two definitions the Court uses in addressing that issue is too broad and the other may be somewhat too narrow. The Court first describes commercial speech as "expression related solely to the economic interests of the speaker and its audience." Ante, at 561. Although it is not entirely clear whether this definition uses the subject matter of the speech or the motivation of the speaker as the limiting factor, it seems clear to me that it encompasses speech that is entitled to the maximum protection afforded by the First Amendment. Neither a labor leader's exhortation to *580 strike, nor an economist's dissertation on the money supply, should receive any lesser protection because the subject matter concerns only the economic interests of the audience. Nor should the economic motivation of a speaker qualify his constitutional protection; even Shakespeare may have been motivated by the prospect of pecuniary reward. Thus, the Court's first definition of commercial speech is unquestionably too broad.[2] The Court's second definition refers to "`speech proposing a commercial transaction.'" Ante, at 562. A saleman's solicitation, a broker's offer, and a manufacturer's publication of a price list or the terms of his standard warranty would unquestionably fit within this concept.[3] Presumably, the definition is intended to encompass advertising that advises possible buyers of the availability of specific products at specific prices and describes the advantages of purchasing such items. Perhaps it also extends to other communications that do little more than make the name of a product or a service more familiar to the general public. Whatever the precise contours of the concept, and perhaps it is too early to enunciate an exact formulation, I am persuaded that it should not include the entire range of communication that is embraced within the term "promotional advertising." This case involves a governmental regulation that completely bans promotional advertising by an electric utility. This ban encompasses a great deal more than mere proposals to engage in certain kinds of commercial transactions. It prohibits all advocacy of the immediate or future use of electricity. *581 It curtails expression by an informed and interested group of persons of their point of view on questions relating to the production and consumption of electrical energy—questions frequently discussed and debated by our political leaders. For example, an electric company's advocacy of the use of electric heat for environmental reasons, as opposed to wood-burning stoves, would seem to fall squarely within New York's promotional advertising ban and also within the bounds of maximum First Amendment protection. The breadth of the ban thus exceeds the boundaries of the commercial speech concept, however that concept may be defined.[4] The justification for the regulation is nothing more than the expressed fear that the audience may find the utility's message persuasive. Without the aid of any coercion, deception, or misinformation, truthful communication may persuade some citizens to consume more electricity than they otherwise would. I assume that such a consequence would be undesirable and that government may therefore prohibit and punish the unnecessary or excessive use of electricity. But if the perceived harm associated with greater electrical usage is not sufficiently serious to justify direct regulation, surely it does not constitute the kind of clear and present danger that can justify the suppression of speech. *582 Although they were written in a different context, the words used by Mr. Justice Brandeis in his concurring opinion in 376-, explain my reaction to the prohibition against advocacy involved in this case: "But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated. "Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution." (Footnote omitted.)[5] *583 In sum, I concur in the result because I do not consider this to be a "commercial speech" case. Accordingly, I see no need to decide whether the Court's four-part analysis, ante, at 566, adequately protects commercial speech—as properly defined— in the face of a blanket ban of the sort involved in this case. MR.

Justice Scalia

majority

Bennett v. Spear

https://www.courtlistener.com/opinion/118096/bennett-v-spear/

https://www.courtlistener.com/api/rest/v3/clusters/118096/

1996-038

This is a challenge to a biological opinion issued by the Fish and Wildlife Service in accordance with the Endangered Species Act of 1973 (ESA), 87 Stat. 884, as amended, 16 U.S. C. § 1531 et seq., concerning the operation of the Klamath Irrigation Project by the Bureau of Reclamation, and the project's impact on two varieties of endangered fish. The question for decision is whether the petitioners, who have competing economic and other interests in Klamath Project water, have standing to seek judicial review of the biological opinion under the citizen-suit provision of the ESA, § 1540(g)(1), and the Administrative Procedure Act (APA), 80 Stat. 392, as amended, 5 U.S. C. § 701 et seq. I The ESA requires the Secretary of the Interior to promulgate regulations listing those species of animals that are "threatened" or "endangered" under specified criteria, and *158 to designate their "critical habitat." 16 U.S. C. § 1533. The ESA further requires each federal agency to "insure that any action authorized, funded, or carried out by such agency. . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary. . . to be critical." § 1536(a)(2). If an agency determines that action it proposes to take may adversely affect a listed species, it must engage in formal consultation with the Fish and Wildlife Service, as delegate of the Secretary, ibid.; 50 CFR § 402.14 (1995), after which the Service must provide the agency with a written statement (the Biological Opinion) explaining how the proposed action will affect the species or its habitat, 16 U.S. C. § 1536(b)(3)(A). If the Service concludes that the proposed action will "jeopardize the continued existence of any [listed] species or threatened species or result in the destruction or adverse modification of [critical habitat]," § 1536(a)(2), the Biological Opinion must outline any "reasonable and prudent alternatives" that the Service believes will avoid that consequence, § 1536(b)(3)(A). Additionally, if the Biological Opinion concludes that the agency action will not result in jeopardy or adverse habitat modification, or if it offers reasonable and prudent alternatives to avoid that consequence, the Service must provide the agency with a written statement (known as the Incidental Take Statement) specifying the "impact of such incidental taking on the species," any "reasonable and prudent measures that the [Service] considers necessary or appropriate to minimize such impact," and setting forth "the terms and conditions. . . that must be complied with by the Federal agency. . . to implement [those measures]." § 1536(b)(4). The Klamath Project, one of the oldest federal reclamation schemes, is a series of lakes, rivers, dams, and irrigation canals in northern California and southern Oregon. The project was undertaken by the Secretary of the Interior *159 pursuant to the Reclamation Act of 1902, 32 Stat. 388, as amended, 43 U.S. C. § 371 et seq., and the Act of Feb. 9, 1905, 33 Stat. 714, and is administered by the Bureau of Reclamation, which is under the Secretary's jurisdiction. In 1992, the Bureau notified the Service that operation of the project might affect the Lost River Sucker (Deltistes luxatus) and Shortnose Sucker (Chasmistes brevirostris), species of fish that were listed as endangered in 1988, see 53 Fed. Reg. 27130-27133 (1988). After formal consultation with the Bureau in accordance with 50 CFR § 402.14 (1995), the Service issued a Biological Opinion which concluded that the "`longterm operation of the Klamath Project was likely to jeopardize the continued existence of the Lost River and shortnose suckers.' " App. to Pet. for Cert. 3. The Biological Opinion identified "reasonable and prudent alternatives" the Service believed would avoid jeopardy, which included the maintenance of minimum water levels on Clear Lake and Gerber reservoirs. The Bureau later notified the Service that it intended to operate the project in compliance with the Biological Opinion. Petitioners, two Oregon irrigation districts that receive Klamath Project water and the operators of two ranches within those districts, filed the present action against the director and regional director of the Service and the Secretary of the Interior. Neither the Bureau nor any of its officials is named as defendant. The complaint asserts that the Bureau "has been following essentially the same procedures for storing and releasing water from Clear Lake and Gerber reservoirs throughout the twentieth century," id., at 36; that "[t]here is no scientifically or commercially available evidence indicating that the populations of endangered suckers in Clear Lake and Gerber reservoirs have declined, are declining, or will decline as a result" of the Bureau's operation of the Klamath Project, id., at 37; that "[t]here is no commercially or scientifically available evidence indicating that the restrictions on lake levels imposed in the Biological Opinion *160 will have any beneficial effect on the. . . populations of suckers in Clear Lake and Gerber reservoirs," id., at 39; and that the Bureau nonetheless "will abide by the restrictions imposed by the Biological Opinion," id., at 32. Petitioners' complaint included three claims for relief that are relevant here. The first and second claims allege that the Service's jeopardy determination with respect to Clear Lake and Gerber reservoirs, and the ensuing imposition of minimum water levels, violated § 7 of the ESA, 16 U.S. C. § 1536. The third claim is that the imposition of minimum water elevations constituted an implicit determination of critical habitat for the suckers, which violated § 4 of the ESA, 16 U.S. C. § 1533(b)(2), because it failed to take into consideration the designation's economic impact.[1] Each of the claims also states that the relevant action violated the APA's prohibition of agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S. C. § 706(2)(A). The complaint asserts that petitioners' use of the reservoirs and related waterways for "recreational, aesthetic and commercial purposes, as well as for their primary sources of irrigation water," will be "irreparably damaged" by the actions complained of, App. to Pet. for Cert. 34, and that the restrictions on water delivery "recommended" by the Biological Opinion "adversely affect plaintiffs by substantially reducing the quantity of available irrigation water," id., at 40. In essence, petitioners claim a competing interest in the water the Biological Opinion declares necessary for the preservation of the suckers. The District Court dismissed the complaint for lack of jurisdiction. It concluded that petitioners did not have *161 standing because their "recreational, aesthetic, and commercial interests. . . do not fall within the zone of interests sought to be protected by ESA." Id., at 28. The Court of Appeals for the Ninth Circuit affirmed. Bennett v. Plenert, 63 F.3d 915 (1995). It held that the "zone of interests" test limits the class of persons who may obtain judicial review not only under the APA, but also under the citizen-suit provision of the ESA, 16 U.S. C. § 1540(g), and that "only plaintiffs who allege an interest in the preservation of endangered species fall within the zone of interests protected by the ESA," 63 F.3d, at 919 (emphasis in original). We granted certiorari. 517 U.S. 1102 (1996). In this Court, petitioners raise two questions: first, whether the prudential standing rule known as the "zone of interests" test applies to claims brought under the citizensuit provision of the ESA; and second, if so, whether petitioners have standing under that test notwithstanding that the interests they seek to vindicate are economic rather than environmental. In this Court, the Government has made no effort to defend the reasoning of the Court of Appeals. Instead, it advances three alternative grounds for affirmance: (1) that petitioners fail to meet the standing requirements imposed by Article III of the Constitution; (2) that the ESA's citizen-suit provision does not authorize judicial review of the types of claims advanced by petitioners; and (3) that judicial review is unavailable under the APA because the Biological Opinion does not constitute final agency action. II We first turn to the question the Court of Appeals found dispositive: whether petitioners lack standing by virtue of the zone-of-interests test. Although petitioners contend that their claims lie both under the ESA and the APA, we look first at the ESA because it may permit petitioners to recover their litigation costs, see 16 U.S. C. § 1540(g)(4), and because the APA by its terms independently authorizes review *162 only when "there is no other adequate remedy in a court," 5 U.S. C. § 704. The question of standing "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498 (1975) (citing Barrows v. Jackson, 346 U.S. 249 (1953)). To satisfy the "case" or "controversy" requirement of Article III, which is the "irreducible constitutional minimum" of standing, a plaintiff must, generally speaking, demonstrate that he has suffered "injury in fact," that the injury is "fairly traceable" to the actions of the defendant, and that the injury will likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471-472 (1982). In addition to the immutable requirements of Article III, "the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing." Id., at 474-475. Like their constitutional counterparts, these "judicially self-imposed limits on the exercise of federal jurisdiction," Allen v. Wright, 468 U.S. 737, 751 (1984), are "founded in concern about the proper—and properly limited—role of the courts in a democratic society," Warth, supra, at 498; but unlike their constitutional counterparts, they can be modified or abrogated by Congress, see 422 U.S., at 501. Numbered among these prudential requirements is the doctrine of particular concern in this case: that a plaintiff's grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit. See Allen, supra, at 751; Valley Forge, supra, at 474-475. The "zone of interests" formulation was first employed in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970). There, certain data processors sought to invalidate a ruling by the Comptroller of the Currency authorizing national banks to sell data processing *163 services on the ground that it violated, inter alia, § 4 of the Bank Service Corporation Act of 1962, 76 Stat. 1132, which prohibited bank service corporations from engaging in "any activity other than the performance of bank services for banks." The Court of Appeals had held that the banks' data-processing competitors were without standing to challenge the alleged violation of § 4. In reversing, we stated the applicable prudential standing requirement to be "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Data Processing, supra, at 153. Data Processing, and its companion case, Barlow v. Collins, 397 U.S. 159 (1970), applied the zone-of-interests test to suits under the APA, but later cases have applied it also in suits not involving review of federal administrative action, see Dennis v. Higgins, 498 U.S. 439, 449 (1991); Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 320-321, n. 3 (1977); see also Note, A Defense of the "Zone of Interests" Standing Test, 1983 Duke L. J. 447, 455-456, and nn. 40-49 (1983) (cataloging lower court decisions), and have specifically listed it among other prudential standing requirements of general application, see, e. g., Allen, supra, at 751; Valley Forge, supra, at 474-475. We have made clear, however, that the breadth of the zone of interests varies according to the provisions of law at issue, so that what comes within the zone of interests of a statute for purposes of obtaining judicial review of administrative action under the "`generous review provisions' " of the APA may not do so for other purposes, Clarke v. Securities Industry Assn., 479 U.S. 388, 400, n. 16 (1987) (quoting Data Processing, supra, at 156). Congress legislates against the background of our prudential standing doctrine, which applies unless it is expressly negated. See Block v. Community Nutrition Institute, 467 U.S. 340, 345-348 (1984). Cf. Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 532-533, and n. 28 *164 (1983). The first question in the present case is whether the ESA's citizen-suit provision, set forth in pertinent part in the margin,[2] negates the zone-of-interests test (or, perhaps more accurately, expands the zone of interests). We think it does. The first operative portion of the provision says that "any person may commence a civil suit"—an authorization of remarkable breadth when compared with the language Congress *165 ordinarily uses. Even in some other environmental statutes, Congress has used more restrictive formulations, such as "[any person] having an interest which is or may be adversely affected," 33 U.S. C. § 1365(g) (Clean Water Act); see also 30 U.S. C. § 1270(a) (Surface Mining Control and Reclamation Act) (same); "[a]ny person suffering legal wrong," 15 U.S. C. § 797(b)(5) (Energy Supply and Environmental Coordination Act); or "any person having a valid legal interest which is or may be adversely affected. . . whenever such action constitutes a case or controversy," 42 U.S. C. § 9124(a) (Ocean Thermal Energy Conversion Act). And in contexts other than the environment, Congress has often been even more restrictive. In statutes concerning unfair trade practices and other commercial matters, for example, it has authorized suit only by "[a]ny person injured in his business or property," 7 U.S. C. § 2305(c); see also 15 U.S. C. § 72 (same), or only by "competitors, customers, or subsequent purchasers," § 298(b). Our readiness to take the term "any person" at face value is greatly augmented by two interrelated considerations: that the overall subject matter of this legislation is the environment (a matter in which it is common to think all persons have an interest) and that the obvious purpose of the particular provision in question is to encourage enforcement by so-called "private attorneys general"—evidenced by its elimination of the usual amount-in-controversy and diversity-ofcitizenship requirements, its provision for recovery of the costs of litigation (including even expert witness fees), and its reservation to the Government of a right of first refusal to pursue the action initially and a right to intervene later. Given these factors, we think the conclusion of expanded standing follows a fortiori from our decision in Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972), which held that standing was expanded to the full extent permitted under Article III by § 810(a) of the Civil Rights Act of 1968, 82 Stat. 85, 42 U.S. C. § 3610(a) (1986 ed.), that authorized *166 "[a]ny person who claims to have been injured by a discriminatory housing practice" to sue for violations of the Act. There also we relied on textual evidence of a statutory scheme to rely on private litigation to ensure compliance with the Act. See 409 U.S., at 210-211. The statutory language here is even clearer, and the subject of the legislation makes the intent to permit enforcement by everyman even more plausible. It is true that the plaintiffs here are seeking to prevent application of environmental restrictions rather than to implement them. But the "any person" formulation applies to all the causes of action authorized by § 1540(g)—not only to actions against private violators of environmental restrictions, and not only to actions against the Secretary asserting underenforcment under § 1533, but also to actions against the Secretary asserting over enforcement under § 1533. As we shall discuss below, the citizen-suit provision does favor environmentalists in that it covers all private violations of the ESA but not all failures of the Secretary to meet his administrative responsibilities; but there is no textual basis for saying that its expansion of standing requirements applies to environmentalists alone. The Court of Appeals therefore erred in concluding that petitioners lacked standing under the zone-of-interests test to bring their claims under the ESA's citizen-suit provision. III The Government advances several alternative grounds upon which it contends we may affirm the dismissal of petitioners' suit. Because the District Court and the Court of Appeals found the zone-of-interests ground to be dispositive, these alternative grounds were not reached below. A respondent is entitled, however, to defend the judgment on any ground supported by the record, see Ponte v. Real, 471 U.S. 491, 500 (1985); Matsushita Elec. Industrial Co. v. Epstein, 516 U.S. 367, 379, n. 5 (1996). The asserted grounds were *167 raised below, and have been fully briefed and argued here; we deem it an appropriate exercise of our discretion to consider them now rather than leave them for disposition on remand. A The Government's first contention is that petitioners' complaint fails to satisfy the standing requirements imposed by the "case" or "controversy" provision of Article III. This "irreducible constitutional minimum" of standing requires: (1) that the plaintiff have suffered an "injury in fact"—an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of—the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Defenders of Wildlife, 504 U. S., at 560-561. Petitioners allege, among other things, that they currently receive irrigation water from Clear Lake, that the Bureau "will abide by the restrictions imposed by the Biological Opinion," App. to Pet. for Cert. 32, and that "[t]he restrictions on lake levels imposed in the Biological Opinion adversely affect [petitioners] by substantially reducing the quantity of available irrigation water," id., at 40. The Government contends, first, that these allegations fail to satisfy the "injury in fact" element of Article III standing because they demonstrate only a diminution in the aggregate amount of available water, and do not necessarily establish (absent information concerning the Bureau's water allocation practices) that petitioners will receive less water. This contention overlooks, however, the proposition that each element of Article III standing "must be supported in the same way as any other matter on which the plaintiff bears the burden *168 of proof, i. e., with the manner and degree of evidence required at the successive stages of the litigation." Defenders of Wildlife, supra, at 561. Thus, while a plaintiff must "set forth" by affidavit or other evidence "specific facts" to survive a motion for summary judgment, Fed. Rule Civ. Proc. 56(e), and must ultimately support any contested facts with evidence adduced at trial, "[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we `presum[e] that general allegations embrace those specific facts that are necessary to support the claim.' " Defenders of Wildlife, supra, at 561 (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)). Given petitioners' allegation that the amount of available water will be reduced and that they will be adversely affected thereby, it is easy to presume specific facts under which petitioners will be injured—for example, the Bureau's distribution of the reduction pro rata among its customers. The complaint alleges the requisite injury in fact. The Government also contests compliance with the second and third Article III standing requirements, contending that any injury suffered by petitioners is neither "fairly traceable" to the Service's Biological Opinion, nor "redressable" by a favorable judicial ruling, because the "action agency" (the Bureau) retains ultimate responsibility for determining whether and how a proposed action shall go forward. See 50 CFR § 402.15(a) (1995) ("Following the issuance of a biological opinion, the Federal agency shall determine whether and in what manner to proceed with the action in light of its section 7 obligations and the Service's biological opinion"). "If petitioners have suffered injury," the Government contends, "the proximate cause of their harm is an (as yet unidentified) decision by the Bureau regarding the volume of water allocated to petitioners, not the biological opinion itself." Brief for Respondents 22. This wrongly equates injury "fairly traceable" to the defendant with injury as to *169 which the defendant's actions are the very last step in the chain of causation. While, as we have said, it does not suffice if the injury complained of is "`th[e] result [of] the independent action of some third party not before the court,' " Defenders of Wildlife, supra, at 560-561 (emphasis added) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976)), that does not exclude injury produced by determinative or coercive effect upon the action of someone else. By the Government's own account, while the Service's Biological Opinion theoretically serves an "advisory function," 51 Fed. Reg. 19928 (1986), in reality it has a powerful coercive effect on the action agency: "The statutory scheme. . . presupposes that the biological opinion will play a central role in the action agency's decision making process, and that it will typically be based on an administrative record that is fully adequate for the action agency's decision insofar as ESA issues are concerned. . . . [A] federal agency that chooses to deviate from the recommendations contained in a biological opinion bears the burden of `articulat[ing] in its administrative record its reasons for disagreeing with the conclusions of a biological opinion.' 51 Fed. Reg. 19,956 (1986). In the government's experience, action agencies very rarely choose to engage in conduct that the Service has concluded is likely to jeopardize the continued existence of a listed species." Brief for Respondents 20-21. What this concession omits to say, moreover, is that the action agency must not only articulate its reasons for disagreement (which ordinarily requires species and habitat investigations that are not within the action agency's expertise), but that it runs a substantial risk if its (inexpert) reasons turn out to be wrong. A Biological Opinion of the sort rendered here alters the legal regime to which the action agency is subject. When it "offers reasonable and prudent alternatives" *170 to the proposed action, a Biological Opinion must include a so-called "Incidental Take Statement"—a written statement specifying, among other things, those "measures that the [Service] considers necessary or appropriate to minimize [the action's impact on the affected species]" and the "terms and conditions. . . that must be complied with by the Federal agency. . . to implement [such] measures." 16 U.S. C. § 1536(b)(4). Any taking that is in compliance with these terms and conditions "shall not be considered to be a prohibited taking of the species concerned." § 1536(o )(2). Thus, the Biological Opinion's Incidental Take Statement constitutes a permit authorizing the action agency to "take" the endangered or threatened species so long as it respects the Service's "terms and conditions." The action agency is technically free to disregard the Biological Opinion and proceed with its proposed action, but it does so at its own peril (and that of its employees), for "any person" who knowingly "takes" an endangered or threatened species is subject to substantial civil and criminal penalties, including imprisonment. See §§ 1540(a) and (b) (authorizing civil fines of up to $25,000 per violation and criminal penalties of up to $50,000 and imprisonment for one year); see also Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 708 (1995) (upholding interpretation of the term "take" to include significant habitat degradation). The Service itself is, to put it mildly, keenly aware of the virtually determinative effect of its biological opinions. The Incidental Take Statement at issue in the present case begins by instructing the reader that any taking of a listed species is prohibited unless "such taking is in compliance with this incidental take statement," and warning that "[t]he measures described below are non discretionary, and must be taken by [the Bureau]." App. 92-93. Given all of this, and given petitioners' allegation that the Bureau had, until issuance of the Biological Opinion, operated the Klamath Project in the same manner throughout the 20th century, it is not *171 difficult to conclude that petitioners have met their burden— which is relatively modest at this stage of the litigation—of alleging that their injury is "fairly traceable" to the Service's Biological Opinion and that it will "likely" be redressed— i. e., the Bureau will not impose such water level restrictions—if the Biological Opinion is set aside. B Next, the Government contends that the ESA's citizen-suit provision does not authorize judicial review of petitioners' claims. The relevant portions of that provision provide that "any person may commence a civil suit on his own behalf— "(A) to enjoin any person, including the United States and any other governmental instrumentality or agency. . . who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or . . . . . "(C) against the Secretary [of Commerce or the Interior] where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary." 16 U.S. C. § 1540(g)(1). The Government argues that judicial review is not available under subsection (A) because the Secretary is not "in violation" of the ESA, and under subsection (C) because the Secretary has not failed to perform any nondiscretionary duty under § 1533. 1 Turning first to subsection (C): that it covers only violations of § 1533 is clear and unambiguous. Petitioners' first and second claims, which assert that the Secretary has violated § 1536, are obviously not reviewable under this provision. However, as described above, the third claim alleges *172 that the Biological Opinion implicitly determines critical habitat without complying with the mandate of § 1533(b)(2) that the Secretary "tak[e] into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." This claim does come within subsection (C). The Government seeks to avoid this result by appealing to the limitation in subsection (C) that the duty sought to be enforced not be "discretionary with the Secretary." But the terms of § 1533(b)(2) are plainly those of obligation rather than discretion: "The Secretary shall designate critical habitat, and make revisions thereto, . . . on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." (Emphasis added.) It is true that this is followed by the statement that, except where extinction of the species is at issue, "[t]he Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat." Ibid. (emphasis added). However, the fact that the Secretary's ultimate decision is reviewable only for abuse of discretion does not alter the categorical requirement that, in arriving at his decision, he "tak[e] into consideration the economic impact, and any other relevant impact," and use "the best scientific data available." Ibid. It is rudimentary administrative law that discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decision making. See SEC v. Chenery Corp., 318 U.S. 80, 94-95 (1943). Since it is the omission of these required procedures that petitioners complain of, their § 1533 claim is reviewable under § 1540(g)(1)(C). 2 Having concluded that petitioners' § 1536 claims are not reviewable under subsection (C), we are left with the question *173 whether they are reviewable under subsection (A), which authorizes injunctive actions against any person "who is alleged to be in violation" of the ESA or its implementing regulations. The Government contends that the Secretary's conduct in implementing or enforcing the ESA is not a "violation" of the ESA within the meaning of this provision. In its view, § 1540(g)(1)(A) is a means by which private parties may enforce the substantive provisions of the ESA against regulated parties—both private entities and Government agencies—but is not an alternative avenue for judicial review of the Secretary's implementation of the statute. We agree. The opposite contention is simply incompatible with the existence of § 1540(g)(1)(C), which expressly authorizes suit against the Secretary, but only to compel him to perform a nondiscretionary duty under § 1533. That provision would be superfluous—and, worse still, its careful limitation to § 1533 would be nullified—if § 1540(g)(1)(A) permitted suit against the Secretary for any "violation" of the ESA. It is the "`cardinal principle of statutory construction' . . . [that] [i]t is our duty `to give effect, if possible, to every clause and word of a statute' . . . rather than to emasculate an entire section." United States v. Menasche, 348 U.S. 528, 538 (1955) (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937), and Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)). Application of that principle here clearly requires us to conclude that the term "violation" does not include the Secretary's failure to perform his duties as administrator of the ESA. Moreover, the ESA uses the term "violation" elsewhere in contexts in which it is most unlikely to refer to failure by the Secretary or other federal officers and employees to perform their duties in administering the ESA. Section 1540(a), for example, authorizes the Secretary to impose substantial civil penalties on "[a]ny person who knowingly violates. . . any provision of [the ESA]," and entrusts the Secretary with the power to "remi[t] or mitigat[e]" any such penalty. We know *174 of no precedent for applying such a provision against those who administer (as opposed to those who are regulated by) a substantive law. Nor do we think it likely that the statute meant to subject the Secretary and his officers and employees to criminal liability under § 1540(b), which makes it a crime for "[a]ny person [to] knowingly violat[e] any provision of [the ESA]," or that § 1540(e)(3), which authorizes law enforcement personnel to "make arrests without a warrant for any violation of [the ESA]," was intended to authorize warrantless arrest of the Secretary or his delegates for "knowingly" failing to use the best scientific data available. Finally, interpreting the term "violation" to include any errors on the part of the Secretary in administering the ESA would effect a wholesale abrogation of the APA's "final agency action" requirement. Any procedural default, even one that had not yet resulted in a final disposition of the matter at issue, would form the basis for a lawsuit. We are loathe to produce such an extraordinary regime without the clearest of statutory direction, which is hardly present here. Viewed in the context of the entire statute, § 1540(g) (1)(A)'s reference to any "violation" of the ESA cannot be interpreted to include the Secretary's maladministration of the ESA. Petitioners' claims are not subject to judicial review under § 1540(g)(1)(A). IV The foregoing analysis establishes that the principal statute invoked by petitioners, the ESA, does authorize review of their § 1533 claim, but does not support their claims based upon the Secretary's alleged failure to comply with § 1536. To complete our task, we must therefore inquire whether these § 1536 claims may nonetheless be brought under the Administrative Procedure Act, which authorizes a court to "set aside agency action, findings, and conclusions found to be. . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S. C. § 706. *175 A No one contends (and it would not be maintainable) that the causes of action against the Secretary set forth in the ESA's citizen-suit provision are exclusive, supplanting those provided by the APA. The APA, by its terms, provides a right to judicial review of all "final agency action for which there is no other adequate remedy in a court," § 704, and applies universally "except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law," § 701(a). Nothing in the ESA's citizen-suit provision expressly precludes review under the APA, nor do we detect anything in the statutory scheme suggesting a purpose to do so. And any contention that the relevant provision of 16 U.S. C. § 1536(a)(2) is discretionary would fly in the face of its text, which uses the imperative "shall." In determining whether the petitioners have standing under the zone-of-interests test to bring their APA claims, we look not to the terms of the ESA's citizen-suit provision, but to the substantive provisions of the ESA, the alleged violations of which serve as the gravamen of the complaint. See National Wildlife Federation, 497 U. S., at 886. The classic formulation of the zone-of-interests test is set forth in Data Processing, 397 U. S., at 153: "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." The Court of Appeals concluded that this test was not met here, since petitioners are neither directly regulated by the ESA nor seek to vindicate its overarching purpose of species preservation. That conclusion was error. Whether a plaintiff's interest is "arguably. . . protected. . . by the statute" within the meaning of the zone-ofinterests test is to be determined not by reference to the overall purpose of the Act in question (here, species preservation), but by reference to the particular provision of law *176 upon which the plaintiff relies. It is difficult to understand how the Ninth Circuit could have failed to see this from our cases. In Data Processing itself, for example, we did not require that the plaintiffs' suit vindicate the overall purpose of the Bank Service Corporation Act of 1962, but found it sufficient that their commercial interest was sought to be protected by the anti competition limitation contained in § 4 of the Act—the specific provision which they alleged had been violated. See Data Processing, supra, at 155-156. As we said with the utmost clarity in National Wildlife Federation, "the plaintiff must establish that the injury he complains of. . . falls within the `zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. " 497 U.S., at 883 (emphasis added). See also Air Courier Conference v. Postal Workers, 498 U.S. 517, 523-524 (1991) (same). In the claims that we have found not to be covered by the ESA's citizen-suit provision, petitioners allege a violation of § 7 of the ESA, 16 U.S. C. § 1536, which requires, inter alia, that each agency "use the best scientific and commercial data available," § 1536(a)(2). Petitioners contend that the available scientific and commercial data show that the continued operation of the Klamath Project will not have a detrimental impact on the endangered suckers, that the imposition of minimum lake levels is not necessary to protect the fish, and that by issuing a Biological Opinion which makes unsubstantiated findings to the contrary the defendants have acted arbitrarily and in violation of § 1536(a)(2). The obvious purpose of the requirement that each agency "use the best scientific and commercial data available" is to ensure that the ESA not be implemented haphazardly, on the basis of speculation or surmise. While this no doubt serves to advance the ESA's overall goal of species preservation, we think it readily apparent that another objective (if not indeed the primary one) is to avoid needless economic dislocation *177 produced by agency officials zealously but unintelligently pursuing their environmental objectives. That economic consequences are an explicit concern of the ESA is evidenced by § 1536(h), which provides exemption from § 1536(a)(2)'s no-jeopardy mandate where there are no reasonable and prudent alternatives to the agency action and the benefits of the agency action clearly outweigh the benefits of any alternatives. We believe the "best scientific and commercial data" provision is similarly intended, at least in part, to prevent uneconomic (because erroneous) jeopardy determinations. Petitioners' claim that they are victims of such a mistake is plainly within the zone of interests that the provision protects. B The Government contends that petitioners may not obtain judicial review under the APA on the theory that the Biological Opinion does not constitute "final agency action," 5 U.S. C. § 704, because it does not conclusively determine the manner in which Klamath Project water will be allocated: "Whatever the practical likelihood that the [Bureau] would adopt the reasonable and prudent alternatives (including the higher lake levels) identified by the Service, the Bureau was not legally obligated to do so. Even if the Bureau decided to adopt the higher lake levels, moreover, nothing in the biological opinion would constrain the [Bureau's] discretion as to how the available water should be allocated among potential users." Brief for Respondents 33. This confuses the question whether the Secretary's action is final with the separate question whether petitioners' harm is "fairly traceable" to the Secretary's action (a question we have already resolved against the Government, see Part III—A, supra ). As a general matter, two conditions must be satisfied for agency action to be "final": First, the action must *178 mark the "consummation" of the agency's decision making process, Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103, 113 (1948)—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which "rights or obligations have been determined," or from which "legal consequences will flow," Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970). It is uncontested that the first requirement is met here; and the second is met because, as we have discussed above, the Biological Opinion and accompanying Incidental Take Statement alter the legal regime to which the action agency is subject, authorizing it to take the endangered species if (but only if) it complies with the prescribed conditions. In this crucial respect the present case is different from the cases upon which the Government relies, Franklin v. Massachusetts, 505 U.S. 788 (1992), and Dalton v. Specter, 511 U.S. 462 (1994). In the former case, the agency action in question was the Secretary of Commerce's presentation to the President of a report tabulating the results of the decennial census; our holding that this did not constitute "final agency action" was premised on the observation that the report carried "no direct consequences" and served "more like a tentative recommendation than a final and binding determination." 505 U.S., at 798. And in the latter case, the agency action in question was submission to the President of base closure recommendations by the Secretary of Defense and the Defense Base Closure and Realignment Commission; our holding that this was not "final agency action" followed from the fact that the recommendations were in no way binding on the President, who had absolute discretion to accept or reject them. 511 U.S., at 469-471. Unlike the reports in Franklin and Dalton, which were purely advisory and in no way affected the legal rights of the relevant actors, the Biological Opinion at issue here has direct and appreciable legal consequences. * * * *179 The Court of Appeals erred in affirming the District Court's dismissal of petitioners' claims for lack of jurisdiction. Petitioners' complaint alleges facts sufficient to meet the requirements of Article III standing, and none of their ESA claims is precluded by the zone-of-interests test. Petitioners' § 1533 claim is reviewable under the ESA's citizensuit provision, and petitioners' remaining claims are reviewable under the APA. 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 is a challenge to a biological opinion issued by the Fish and Service in accordance with the Endangered Species ct of 1973 (ES), as amended, 16 U.S. C. 1531 et seq., concerning the operation of the Klamath Irrigation Project by the Bureau of Reclamation, and the project's impact on two varieties of endangered fish. The question for decision is whether the petitioners, who have competing economic and other interests in Klamath Project water, have standing to seek judicial review of the biological opinion under the citizen-suit provision of the ES, 1540(g)(1), and the dministrative Procedure ct (P), as amended, 5 U.S. C. 701 et seq. I The ES requires the Secretary of the Interior to promulgate regulations listing those species of animals that are "threatened" or "endangered" under specified criteria, and *158 to designate their "critical habitat." 16 U.S. C. 1533. The ES further requires each federal agency to "insure that any action authorized, funded, or carried out by such agency. is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary. to be critical." 1536(a)(2). If an agency determines that action it proposes to take may adversely affect a listed species, it must engage in formal consultation with the Fish and Service, as delegate of the Secretary, ibid.; 50 CFR 402.14 after which the Service must provide the agency with a written statement (the Biological Opinion) explaining how the proposed action will affect the species or its habitat, 16 U.S. C. 1536(b)(3)(). If the Service concludes that the proposed action will "jeopardize the continued existence of any [listed] species or threatened species or result in the destruction or adverse modification of [critical habitat]," 1536(a)(2), the Biological Opinion must outline any "reasonable and prudent alternatives" that the Service believes will avoid that consequence, 1536(b)(3)(). dditionally, if the Biological Opinion concludes that the agency action will not result in jeopardy or adverse habitat modification, or if it offers reasonable and prudent alternatives to avoid that consequence, the Service must provide the agency with a written statement (known as the Incidental Take Statement) specifying the "impact of such incidental taking on the species," any "reasonable and prudent measures that the [Service] considers necessary or appropriate to minimize such impact," and setting forth "the terms and conditions. that must be complied with by the Federal agency. to implement [those measures]." 1536(b)(4). The Klamath Project, one of the oldest federal reclamation schemes, is a series of lakes, rivers, dams, and irrigation canals in northern California and southern Oregon. The project was undertaken by the Secretary of the Interior *159 pursuant to the Reclamation ct of 1902, as amended, 43 U.S. C. 3 et seq., and the ct of Feb. 9, 1905, and is administered by the Bureau of Reclamation, which is under the Secretary's jurisdiction. In 1992, the Bureau notified the Service that operation of the project might affect the Lost River Sucker (Deltistes luxatus) and Shortnose Sucker (Chasmistes brevirostris), species of fish that were listed as endangered in 1988, see -233 (1988). fter formal consultation with the Bureau in accordance with 50 CFR 402.14 the Service issued a Biological Opinion which concluded that the "`longterm operation of the Klamath Project was likely to jeopardize the continued existence of the Lost River and shortnose suckers.' " pp. to Pet. for Cert. 3. The Biological Opinion identified "reasonable and prudent alternatives" the Service believed would avoid jeopardy, which included the maintenance of minimum water levels on Clear Lake and Gerber reservoirs. The Bureau later notified the Service that it intended to operate the project in compliance with the Biological Opinion. Petitioners, two Oregon irrigation districts that receive Klamath Project water and the operators of two ranches within those districts, filed the present action against the director and regional director of the Service and the Secretary of the Interior. Neither the Bureau nor any of its officials is named as defendant. The complaint asserts that the Bureau "has been following essentially the same procedures for storing and releasing water from Clear Lake and Gerber reservoirs throughout the twentieth century," ; that "[t]here is no scientifically or commercially available evidence indicating that the populations of endangered suckers in Clear Lake and Gerber reservoirs have declined, are declining, or will decline as a result" of the Bureau's operation of the Klamath Project, ; that "[t]here is no commercially or scientifically available evidence indicating that the restrictions on lake levels imposed in the Biological Opinion *160 will have any beneficial effect on the. populations of suckers in Clear Lake and Gerber reservoirs," ; and that the Bureau nonetheless "will abide by the restrictions imposed by the Biological Opinion," Petitioners' complaint included three claims for relief that are relevant here. The first and second claims allege that the Service's jeopardy determination with respect to Clear Lake and Gerber reservoirs, and the ensuing imposition of minimum water levels, violated 7 of the ES, 16 U.S. C. 1536. The third claim is that the imposition of minimum water elevations constituted an implicit determination of critical habitat for the suckers, which violated 4 of the ES, 16 U.S. C. 1533(b)(2), because it failed to take into consideration the designation's economic impact.[1] Each of the claims also states that the relevant action violated the P's prohibition of agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S. C. 706(2)(). The complaint asserts that petitioners' use of the reservoirs and related waterways for "recreational, aesthetic and commercial purposes, as well as for their primary sources of irrigation water," will be "irreparably damaged" by the actions complained of, pp. to Pet. for Cert. 34, and that the restrictions on water delivery "recommended" by the Biological Opinion "adversely affect plaintiffs by substantially reducing the quantity of available irrigation water," In essence, petitioners claim a competing interest in the water the Biological Opinion declares necessary for the preservation of the suckers. The District Court dismissed the complaint for lack of jurisdiction. It concluded that petitioners did not have *161 standing because their "recreational, aesthetic, and commercial interests. do not fall within the zone of interests sought to be protected by ES." The Court of ppeals for the Ninth Circuit affirmed. It held that the "zone of interests" test limits the class of persons who may obtain judicial review not only under the P, but also under the citizen-suit provision of the ES, 16 U.S. C. 1540(g), and that "only plaintiffs who allege an interest in the preservation of endangered species fall within the zone of interests protected by the ES," We granted certiorari. In this Court, petitioners raise two questions: first, whether the prudential standing rule known as the "zone of interests" test applies to claims brought under the citizensuit provision of the ES; and second, if so, whether petitioners have standing under that test notwithstanding that the interests they seek to vindicate are economic rather than environmental. In this Court, the Government has made no effort to defend the reasoning of the Court of ppeals. Instead, it advances three alternative grounds for affirmance: (1) that petitioners fail to meet the standing requirements imposed by rticle III of the Constitution; (2) that the ES's citizen-suit provision does not authorize judicial review of the types of claims advanced by petitioners; and (3) that judicial review is unavailable under the P because the Biological Opinion does not constitute final agency action. II We first turn to the question the Court of ppeals found dispositive: whether petitioners lack standing by virtue of the zone-of-interests test. lthough petitioners contend that their claims lie both under the ES and the P, we look first at the ES because it may permit petitioners to recover their litigation costs, see 16 U.S. C. 1540(g)(4), and because the P by its terms independently authorizes review *162 only when "there is no other adequate remedy in a court," 5 U.S. C. 704. The question of standing "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." To satisfy the "case" or "controversy" requirement of rticle III, which is the "irreducible constitutional minimum" of standing, a plaintiff must, generally speaking, demonstrate that he has suffered "injury in fact," that the injury is "fairly traceable" to the actions of the defendant, and that the injury will likely be redressed by a favorable decision. ; Valley Christian In addition to the immutable requirements of rticle III, "the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing." Like their constitutional counterparts, these "judicially self-imposed limits on the exercise of federal jurisdiction," are "founded in concern about the proper—and properly limited—role of the courts in a democratic society," at ; but unlike their constitutional counterparts, they can be modified or abrogated by Congress, see Numbered among these prudential requirements is the doctrine of particular concern in this case: that a plaintiff's grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit. See at ; Valley The "zone of interests" formulation was first employed in ssociation of Data Service Organizations, There, certain data processors sought to invalidate a ruling by the Comptroller of the Currency authorizing national banks to sell data processing *163 services on the ground that it violated, inter alia, 4 of the Bank Service Corporation ct of 1962, which prohibited bank service corporations from engaging in "any activity other than the performance of bank services for banks." The Court of ppeals had held that the banks' data-processing competitors were without standing to challenge the alleged violation of 4. In reversing, we stated the applicable prudential standing requirement to be "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Data Data and its companion case, applied the zone-of-interests test to suits under the P, but later cases have applied it also in suits not involving review of federal administrative action, see U.S. 439, ; Boston Stock ; see also Note, Defense of the "Zone of Interests" Standing Test, 1983 Duke L. J. 447, 455-456, and nn. 40-49 (cataloging lower court decisions), and have specifically listed it among other prudential standing requirements of general application, see, e. g., at ; Valley We have made clear, however, that the breadth of the zone of interests varies according to the provisions of law at issue, so that what comes within the zone of interests of a statute for purposes of obtaining judicial review of administrative action under the "`generous review provisions' " of the P may not do so for other purposes, (quoting Data ). Congress legislates against the background of our prudential standing doctrine, which applies unless it is expressly negated. See Cf. ssociated Gen. Contractors of Cal., The first question in the present case is whether the ES's citizen-suit provision, set forth in pertinent part in the margin,[2] negates the zone-of-interests test (or, perhaps more accurately, expands the zone of interests). We think it does. The first operative portion of the provision says that "any person may commence a civil suit"—an authorization of remarkable breadth when compared with the language Congress *165 ordinarily uses. Even in some other environmental statutes, Congress has used more restrictive formulations, such as "[any person] having an interest which is or may be adversely affected," 33 U.S. C. 1365(g) (Clean Water ct); see also U.S. C. 1270(a) (Surface Mining Control and Reclamation ct) ; "[a]ny person suffering legal wrong," 15 U.S. C. 797(b)(5) (Energy Supply and Environmental Coordination ct); or "any person having a valid legal interest which is or may be adversely affected. whenever such action constitutes a case or controversy," 42 U.S. C. 9124(a) (Ocean Thermal Energy Conversion ct). nd in contexts other than the environment, Congress has often been even more restrictive. In statutes concerning unfair trade practices and other commercial matters, for example, it has authorized suit only by "[a]ny person injured in his business or property," 7 U.S. C. 25(c); see also 15 U.S. C. 72 or only by "competitors, customers, or subsequent purchasers," 298(b). Our readiness to take the term "any person" at face value is greatly augmented by two interrelated considerations: that the overall subject matter of this legislation is the environment (a matter in which it is common to think all persons have an interest) and that the obvious purpose of the particular provision in question is to encourage enforcement by so-called "private attorneys general"—evidenced by its elimination of the usual amount-in-controversy and diversity-ofcitizenship requirements, its provision for recovery of the costs of litigation (including even expert witness fees), and its reservation to the Government of a right of first refusal to pursue the action initially and a right to intervene later. Given these factors, we think the conclusion of expanded standing follows a fortiori from our decision in which held that standing was expanded to the full extent permitted under rticle III by 810(a) of the Civil Rights ct of 1968, 42 U.S. C. 3610(a) (1986 ed.), that authorized *166 "[a]ny person who claims to have been injured by a discriminatory housing practice" to sue for violations of the ct. There also we relied on textual evidence of a statutory scheme to rely on private litigation to ensure compliance with the ct. See -211. The statutory language here is even clearer, and the subject of the legislation makes the intent to permit enforcement by everyman even more plausible. It is true that the plaintiffs here are seeking to prevent application of environmental restrictions rather than to implement them. But the "any person" formulation applies to all the causes of action authorized by 1540(g)—not only to actions against private violators of environmental restrictions, and not only to actions against the Secretary asserting underenforcment under 1533, but also to actions against the Secretary asserting over enforcement under 1533. s we shall discuss below, the citizen-suit provision does favor environmentalists in that it covers all private violations of the ES but not all failures of the Secretary to meet his administrative responsibilities; but there is no textual basis for saying that its expansion of standing requirements applies to environmentalists alone. The Court of ppeals therefore erred in concluding that petitioners lacked standing under the zone-of-interests test to bring their claims under the ES's citizen-suit provision. III The Government advances several alternative grounds upon which it contends we may affirm the dismissal of petitioners' suit. Because the District Court and the Court of ppeals found the zone-of-interests ground to be dispositive, these alternative grounds were not reached below. respondent is entitled, however, to defend the judgment on any ground supported by the record, see ; Matsushita Elec. Industrial The asserted grounds were *167 raised below, and have been fully briefed and argued here; we deem it an appropriate exercise of our discretion to consider them now rather than leave them for disposition on remand. The Government's first contention is that petitioners' complaint fails to satisfy the standing requirements imposed by the "case" or "controversy" provision of rticle III. This "irreducible constitutional minimum" of standing requires: (1) that the plaintiff have suffered an "injury in fact"—an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of—the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Defenders of 504 U. S., at Petitioners allege, among other things, that they currently receive irrigation water from Clear Lake, that the Bureau "will abide by the restrictions imposed by the Biological Opinion," pp. to Pet. for Cert. 32, and that "[t]he restrictions on lake levels imposed in the Biological Opinion adversely affect [petitioners] by substantially reducing the quantity of available irrigation water," The Government contends, first, that these allegations fail to satisfy the "injury in fact" element of rticle III standing because they demonstrate only a diminution in the aggregate amount of available water, and do not necessarily establish (absent information concerning the Bureau's water allocation practices) that petitioners will receive less water. This contention overlooks, however, the proposition that each element of rticle III standing "must be supported in the same way as any other matter on which the plaintiff bears the burden *168 of proof, i. e., with the manner and degree of evidence required at the successive stages of the litigation." Defenders of Thus, while a plaintiff must "set forth" by affidavit or other evidence "specific facts" to survive a motion for summary judgment, Fed. Rule Civ. Proc. 56(e), and must ultimately support any contested facts with evidence adduced at trial, "[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we `presum[e] that general allegations embrace those specific facts that are necessary to support the claim.' " Defenders of ). Given petitioners' allegation that the amount of available water will be reduced and that they will be adversely affected thereby, it is easy to presume specific facts under which petitioners will be injured—for example, the Bureau's distribution of the reduction pro rata among its customers. The complaint alleges the requisite injury in fact. The Government also contests compliance with the second and third rticle III standing requirements, contending that any injury suffered by petitioners is neither "fairly traceable" to the Service's Biological Opinion, nor "redressable" by a favorable judicial ruling, because the "action agency" (the Bureau) retains ultimate responsibility for determining whether and how a proposed action shall go forward. See 50 CFR 402.15(a) "If petitioners have suffered injury," the Government contends, "the proximate cause of their harm is an (as yet unidentified) decision by the Bureau regarding the volume of water allocated to petitioners, not the biological opinion itself." Brief for Respondents 22. This wrongly equates injury "fairly traceable" to the defendant with injury as to *169 which the defendant's actions are the very last step in the chain of causation. While, as we have said, it does not suffice if the injury complained of is "`th[e] result [of] the independent action of some third party not before the court,' " Defenders of at ), that does not exclude injury produced by determinative or coercive effect upon the action of someone else. By the Government's own account, while the Service's Biological Opinion theoretically serves an "advisory function," (1986), in reality it has a powerful coercive effect on the action agency: "The statutory scheme. presupposes that the biological opinion will play a central role in the action agency's decision making process, and that it will typically be based on an administrative record that is fully adequate for the action agency's decision insofar as ES issues are concerned. [] federal agency that chooses to deviate from the recommendations contained in a biological opinion bears the burden of `articulat[ing] in its administrative record its reasons for disagreeing with the conclusions of a biological opinion.' (1986). In the government's experience, action agencies very rarely choose to engage in conduct that the Service has concluded is likely to jeopardize the continued existence of a listed species." Brief for Respondents 20-21. What this concession omits to say, moreover, is that the action agency must not only articulate its reasons for disagreement (which ordinarily requires species and habitat investigations that are not within the action agency's expertise), but that it runs a substantial risk if its (inexpert) reasons turn out to be wrong. Biological Opinion of the sort rendered here alters the legal regime to which the action agency is subject. When it "offers reasonable and prudent alternatives" *170 to the proposed action, a Biological Opinion must include a so-called "Incidental Take Statement"—a written statement specifying, among other things, those "measures that the [Service] considers necessary or appropriate to minimize [the action's impact on the affected species]" and the "terms and conditions. that must be complied with by the Federal agency. to implement [such] measures." 16 U.S. C. 1536(b)(4). ny taking that is in compliance with these terms and conditions "shall not be considered to be a prohibited taking of the species concerned." 1536(o )(2). Thus, the Biological Opinion's Incidental Take Statement constitutes a permit authorizing the action agency to "take" the endangered or threatened species so long as it respects the Service's "terms and conditions." The action agency is technically free to disregard the Biological Opinion and proceed with its proposed action, but it does so at its own peril (and that of its employees), for "any person" who knowingly "takes" an endangered or threatened species is subject to substantial civil and criminal penalties, including imprisonment. See 1540(a) and (b) (authorizing civil fines of up to $25,000 per violation and criminal penalties of up to $50,000 and imprisonment for one year); see also The Service itself is, to put it mildly, keenly aware of the virtually determinative effect of its biological opinions. The Incidental Take Statement at issue in the present case begins by instructing the reader that any taking of a listed species is prohibited unless "such taking is in compliance with this incidental take statement," and warning that "[t]he measures described below are non discretionary, and must be taken by [the Bureau]." pp. 92-93. Given all of this, and given petitioners' allegation that the Bureau had, until issuance of the Biological Opinion, operated the Klamath Project in the same manner throughout the 20th century, it is not *1 difficult to conclude that petitioners have met their burden— which is relatively modest at this stage of the litigation—of alleging that their injury is "fairly traceable" to the Service's Biological Opinion and that it will "likely" be redressed— i. e., the Bureau will not impose such water level restrictions—if the Biological Opinion is set aside. B Next, the Government contends that the ES's citizen-suit provision does not authorize judicial review of petitioners' claims. The relevant portions of that provision provide that "any person may commence a civil suit on his own behalf— "() to enjoin any person, including the United States and any other governmental instrumentality or agency. who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or "(C) against the Secretary [of Commerce or the Interior] where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary." 16 U.S. C. 1540(g)(1). The Government argues that judicial review is not available under subsection () because the Secretary is not "in violation" of the ES, and under subsection (C) because the Secretary has not failed to perform any nondiscretionary duty under 1533. 1 Turning first to subsection (C): that it covers only violations of 1533 is clear and unambiguous. Petitioners' first and second claims, which assert that the Secretary has violated 1536, are obviously not reviewable under this provision. However, as described above, the third claim alleges *172 that the Biological Opinion implicitly determines critical habitat without complying with the mandate of 1533(b)(2) that the Secretary "tak[e] into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." This claim does come within subsection (C). The Government seeks to avoid this result by appealing to the limitation in subsection (C) that the duty sought to be enforced not be "discretionary with the Secretary." But the terms of 1533(b)(2) are plainly those of obligation rather than discretion: "The Secretary shall designate critical habitat, and make revisions thereto, on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." (Emphasis added.) It is true that this is followed by the statement that, except where extinction of the species is at issue, "[t]he Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat." However, the fact that the Secretary's ultimate decision is reviewable only for abuse of discretion does not alter the categorical requirement that, in arriving at his decision, he "tak[e] into consideration the economic impact, and any other relevant impact," and use "the best scientific data available." It is rudimentary administrative law that discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decision making. See Since it is the omission of these required procedures that petitioners complain of, their 1533 claim is reviewable under 1540(g)(1)(C). 2 Having concluded that petitioners' 1536 claims are not reviewable under subsection (C), we are left with the question *173 whether they are reviewable under subsection (), which authorizes injunctive actions against any person "who is alleged to be in violation" of the ES or its implementing regulations. The Government contends that the Secretary's conduct in implementing or enforcing the ES is not a "violation" of the ES within the meaning of this provision. In its view, 1540(g)(1)() is a means by which private parties may enforce the substantive provisions of the ES against regulated parties—both private entities and Government agencies—but is not an alternative avenue for judicial review of the Secretary's implementation of the statute. We agree. The opposite contention is simply incompatible with the existence of 1540(g)(1)(C), which expressly authorizes suit against the Secretary, but only to compel him to perform a nondiscretionary duty under 1533. That provision would be superfluous—and, worse still, its careful limitation to 1533 would be nullified—if 1540(g)(1)() permitted suit against the Secretary for any "violation" of the ES. It is the "`cardinal principle of statutory construction' [that] [i]t is our duty `to give effect, if possible, to every clause and word of a statute' rather than to emasculate an entire section." United pplication of that principle here clearly requires us to conclude that the term "violation" does not include the Secretary's failure to perform his duties as administrator of the ES. Moreover, the ES uses the term "violation" elsewhere in contexts in which it is most unlikely to refer to failure by the Secretary or other federal officers and employees to perform their duties in administering the ES. Section 1540(a), for example, authorizes the Secretary to impose substantial civil penalties on "[a]ny person who knowingly violates. any provision of [the ES]," and entrusts the Secretary with the power to "remi[t] or mitigat[e]" any such penalty. We know *174 of no precedent for applying such a provision against those who administer (as opposed to those who are regulated by) a substantive law. Nor do we think it likely that the statute meant to subject the Secretary and his officers and employees to criminal liability under 1540(b), which makes it a crime for "[a]ny person [to] knowingly violat[e] any provision of [the ES]," or that 1540(e)(3), which authorizes law enforcement personnel to "make arrests without a warrant for any violation of [the ES]," was intended to authorize warrantless arrest of the Secretary or his delegates for "knowingly" failing to use the best scientific data available. Finally, interpreting the term "violation" to include any errors on the part of the Secretary in administering the ES would effect a wholesale abrogation of the P's "final agency action" requirement. ny procedural default, even one that had not yet resulted in a final disposition of the matter at issue, would form the basis for a lawsuit. We are loathe to produce such an extraordinary regime without the clearest of statutory direction, which is hardly present here. Viewed in the context of the entire statute, 1540(g) (1)()'s reference to any "violation" of the ES cannot be interpreted to include the Secretary's maladministration of the ES. Petitioners' claims are not subject to judicial review under 1540(g)(1)(). IV The foregoing analysis establishes that the principal statute invoked by petitioners, the ES, does authorize review of their 1533 claim, but does not support their claims based upon the Secretary's alleged failure to comply with 1536. To complete our task, we must therefore inquire whether these 1536 claims may nonetheless be brought under the dministrative Procedure ct, which authorizes a court to "set aside agency action, findings, and conclusions found to be. arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S. C. 706. *175 No one contends (and it would not be maintainable) that the causes of action against the Secretary set forth in the ES's citizen-suit provision are exclusive, supplanting those provided by the P. The P, by its terms, provides a right to judicial review of all "final agency action for which there is no other adequate remedy in a court," 704, and applies universally "except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law," 701(a). Nothing in the ES's citizen-suit provision expressly precludes review under the P, nor do we detect anything in the statutory scheme suggesting a purpose to do so. nd any contention that the relevant provision of 16 U.S. C. 1536(a)(2) is discretionary would fly in the face of its text, which uses the imperative "shall." In determining whether the petitioners have standing under the zone-of-interests test to bring their P claims, we look not to the terms of the ES's citizen-suit provision, but to the substantive provisions of the ES, the alleged violations of which serve as the gravamen of the complaint. See National The classic formulation of the zone-of-interests test is set forth in Data 397 U. S., : "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." The Court of ppeals concluded that this test was not met here, since petitioners are neither directly regulated by the ES nor seek to vindicate its overarching purpose of species preservation. That conclusion was error. Whether a plaintiff's interest is "arguably. protected. by the statute" within the meaning of the zone-ofinterests test is to be determined not by reference to the overall purpose of the ct in question (here, species preservation), but by reference to the particular provision of law *176 upon which the plaintiff relies. It is difficult to understand how the Ninth Circuit could have failed to see this from our cases. In Data itself, for example, we did not require that the plaintiffs' suit vindicate the overall purpose of the Bank Service Corporation ct of 1962, but found it sufficient that their commercial interest was sought to be protected by the anti competition limitation contained in 4 of the ct—the specific provision which they alleged had been violated. See Data s we said with the utmost clarity in National "the plaintiff must establish that the injury he complains of. falls within the `zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. " See also ir Courier U.S. 517, In the claims that we have found not to be covered by the ES's citizen-suit provision, petitioners allege a violation of 7 of the ES, 16 U.S. C. 1536, which requires, inter alia, that each agency "use the best scientific and commercial data available," 1536(a)(2). Petitioners contend that the available scientific and commercial data show that the continued operation of the Klamath Project will not have a detrimental impact on the endangered suckers, that the imposition of minimum lake levels is not necessary to protect the fish, and that by issuing a Biological Opinion which makes unsubstantiated findings to the contrary the defendants have acted arbitrarily and in violation of 1536(a)(2). The obvious purpose of the requirement that each agency "use the best scientific and commercial data available" is to ensure that the ES not be implemented haphazardly, on the basis of speculation or surmise. While this no doubt serves to advance the ES's overall goal of species preservation, we think it readily apparent that another objective (if not indeed the primary one) is to avoid needless economic dislocation *177 produced by agency officials zealously but unintelligently pursuing their environmental objectives. That economic consequences are an explicit concern of the ES is evidenced by 1536(h), which provides exemption from 1536(a)(2)'s no-jeopardy mandate where there are no reasonable and prudent alternatives to the agency action and the benefits of the agency action clearly outweigh the benefits of any alternatives. We believe the "best scientific and commercial data" provision is similarly intended, at least in part, to prevent uneconomic (because erroneous) jeopardy determinations. Petitioners' claim that they are victims of such a mistake is plainly within the zone of interests that the provision protects. B The Government contends that petitioners may not obtain judicial review under the P on the theory that the Biological Opinion does not constitute "final agency action," 5 U.S. C. 704, because it does not conclusively determine the manner in which Klamath Project water will be allocated: "Whatever the practical likelihood that the [Bureau] would adopt the reasonable and prudent alternatives (including the higher lake levels) identified by the Service, the Bureau was not legally obligated to do so. Even if the Bureau decided to adopt the higher lake levels, moreover, nothing in the biological opinion would constrain the [Bureau's] discretion as to how the available water should be allocated among potential users." Brief for Respondents 33. This confuses the question whether the Secretary's action is final with the separate question whether petitioners' harm is "fairly traceable" to the Secretary's action (a question we have already resolved against the Government, see Part III—, ). s a general matter, two conditions must be satisfied for agency action to be "final": First, the action must *178 mark the "consummation" of the agency's decision making process, Chicago & Southern ir Lines, —it must not be of a merely tentative or interlocutory nature. nd second, the action must be one by which "rights or obligations have been determined," or from which "legal consequences will flow," Port of Boston Marine Terminal ssn. v. Rederiaktiebolaget Transatlantic, It is uncontested that the first requirement is met here; and the second is met because, as we have discussed above, the Biological Opinion and accompanying Incidental Take Statement alter the legal regime to which the action agency is subject, authorizing it to take the endangered species if (but only if) it complies with the prescribed conditions. In this crucial respect the present case is different from the cases upon which the Government relies, and In the former case, the agency action in question was the Secretary of Commerce's presentation to the President of a report tabulating the results of the decennial census; our holding that this did not constitute "final agency action" was premised on the observation that the report carried "no direct consequences" and served "more like a tentative recommendation than a final and binding determination." nd in the latter case, the agency action in question was submission to the President of base closure recommendations by the Secretary of Defense and the Defense Base Closure and Realignment Commission; our holding that this was not "final agency action" followed from the fact that the recommendations were in no way binding on the President, who had absolute discretion to accept or reject them. -4. Unlike the reports in Franklin and Dalton, which were purely advisory and in no way affected the legal rights of the relevant actors, the Biological Opinion at issue here has direct and appreciable legal consequences. * * * *179 The Court of ppeals erred in affirming the District Court's dismissal of petitioners' claims for lack of jurisdiction. Petitioners' complaint alleges facts sufficient to meet the requirements of rticle III standing, and none of their ES claims is precluded by the zone-of-interests test. Petitioners' 1533 claim is reviewable under the ES's citizensuit provision, and petitioners' remaining claims are reviewable under the P. The judgment of the Court of ppeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice O'Connor

majority

Minnesota State Bd. for Community Colleges v. Knight

https://www.courtlistener.com/opinion/111100/minnesota-state-bd-for-community-colleges-v-knight/

https://www.courtlistener.com/api/rest/v3/clusters/111100/

1983-035

The State of Minnesota authorizes its public employees to bargain collectively over terms and conditions of employment. It also requires public employers to engage in official exchanges of views with their professional employees on policy questions relating to employment but outside the scope of mandatory bargaining. If professional employees forming an appropriate bargaining unit have selected an exclusive representative for mandatory bargaining, their employer may exchange views on nonmandatory subjects only with the exclusive representative. The question presented in these cases is whether this restriction on participation in the nonmandatory-subject exchange process violates the constitutional rights of professional employees within the bargaining unit who are not members of the exclusive representative and who may disagree with its views. We hold that it does not. I A In 1971, the Minnesota Legislature adopted the Public Employment Labor Relations Act (PELRA), Minn. Stat. § 179.61 et seq. (1982), to establish "orderly and constructive relationships between all public employers and their employees. . . ." § 179.61. The public employers covered by the law are, broadly speaking, the State and its political subdivisions, agencies, and instrumentalities. § 179.63. In its amended form, as in its original form, PELRA provides for *274 the division of public employees into appropriate bargaining units and establishes a procedure, based on majority support within a unit, for the designation of an exclusive bargaining agent for that unit. §§ 179.67, 179.71, 179.741. The statute requires public employers to "meet and negotiate" with exclusive representatives concerning the "terms and conditions of employment," which the statute defines to mean "the hours of employment, the compensation therefor . . . , and the employer's personnel policies affecting the working conditions of the employees." §§ 179.63, 179.67, 179.71. The employer's and employees' representatives must seek an agreement in good faith. § 179.63, subd. 16. PELRA also grants professional employees, such as college faculty, the right to "meet and confer" with their employers on matters related to employment that are outside the scope of mandatory negotiations. §§ 179.63, 179.65. This provision rests on the recognition that "professional employees possess knowledge, expertise, and dedication which is helpful and necessary to the operation and quality of public services and which may assist public employers in developing their policies." § 179.73. The statute declares it to be the State's policy to "encourage close cooperation between public employers and professional employees" by providing for "meet and confer" sessions on all employment-related questions not subject to mandatory bargaining. Ibid. There is no statutory provision concerning the "meet and confer" process, however, that requires good-faith efforts to reach agreement. See Minneapolis Federation of Teachers Local 59 v. Minneapolis Special School Dist. No. 1, 258 N.W.2d 802, 804, n. 2 (Minn. 1977). PELRA requires professional employees to select a representative to "meet and confer" with their public employer. Minn. Stat. § 179.73 (1982). If professional employees in an appropriate bargaining unit have an exclusive representative to "meet and negotiate" with their employer, that representative serves as the "meet and confer" representative as well. *275 Indeed, the employer may neither "meet and negotiate" nor "meet and confer" with any members of that bargaining unit except through their exclusive representative. § 179.66, subd. 7. This restriction, however, does not prevent professional employees from submitting advice or recommendations to their employer as part of their work assignment. Ibid. Moreover, nothing in PELRA restricts the right of any public employee to speak on any "matter related to the conditions or compensation of public employment or their betterment" as long as doing so "is not designed to and does not interfere with the full faithful and proper performance of the duties of employment or circumvent the rights of the exclusive representative if there be one." § 179.65, subd. 1. B Appellant Minnesota State Board for Community Colleges (State Board) operates the Minnesota community college system. At the time of trial, the system comprised 18 institutions located throughout the State. Each community college is administered by a president, who reports, through the chancellor of the system, to the State Board. Prior to 1971, Minnesota's community colleges were governed in a variety of ways. On some campuses, faculty had a strong voice in administrative policymaking, expressed through organizations such as faculty senates. On other campuses, the administration consulted very little with the faculty. Irrespective of the level of faculty involvement in governance, however, the administrations of the colleges retained final authority to make policy. Following enactment of PELRA, appellant Minnesota Community College Faculty Association (MCCFA)[1] was designated the exclusive representative of the faculty of the *276 State's community colleges, which had been deemed a single bargaining unit.[2] MCCFA has "met and negotiated" and "met and conferred" with the State Board since 1971. The result has been the negotiation of successive collective-bargaining agreements in the intervening years and, in order to implement the "meet and confer" provision, a restructuring of governance practices in the community college system. On the state level, MCCFA and the Board established "meet and confer" committees to discuss questions of policy applicable to the entire system. On the campus level, the MCCFA chapters and the college administrations created local "meet and confer" committees — also referred to as "exchange of views" committees — to discuss questions of policy applicable only to the campus. The committees on both levels have discussed such topics as the selection and evaluation of administrators, academic accreditation, student affairs, curriculum, and fiscal planning — all policy matters within the control of the college administrations and the State Board. App. to Juris. Statement A-49. The State Board considers the views expressed by the statewide faculty "meet and confer" committees to be the faculty's official collective position. It recognizes, however, that not every instructor agrees with the official faculty view on every policy question. Not every instructor in the bargaining unit is a member of MCCFA, and MCCFA has selected only its own members to represent it on "meet and confer" committees. Accordingly, all faculty have been free to communicate to the State Board and to local administrations their views on questions within the coverage of the statutory "meet and confer" provision. Id., at A-50, A-52. They have frequently done so.[3] With the possible exception *277 of a brief period of adjustment to the new governance structure, during which some administrators were reluctant to communicate informally with faculty, individual faculty members have not been impeded by either MCCFA or college administrators in the communication of their views on policy questions. Id., at A-50. Nor has PELRA ever been construed to impede such communication.[4] *278 C Appellees are 20 Minnesota community college faculty instructors who are not members of MCCFA. In December 1974, they filed suit in the United States District Court for the District of Minnesota, challenging the constitutionality of MCCFA's exclusive representation of community college faculty in both the "meet and negotiate" and "meet and confer" processes. A three-judge District Court was convened to hear the case. A Special Master appointed by the court conducted the trial in 1980 and submitted recommended findings of fact in early 1981. Id., at A-54 to A-81. The three-judge District Court issued its findings of fact in late 1981, id., at A-32 to A-54, and its decision on the legal claims in early 1982, 571 F. Supp. 1. The court rejected appellees' attack on the constitutionality of exclusive representation in bargaining over terms and conditions of employment, relying chiefly on Abood v. Detroit Board of Education, 431 U.S. 209 (1977). The court agreed with appellees, however, that PELRA, as applied in the community college system, infringes First and Fourteenth Amendment speech and associational rights of faculty who *279 do not wish to join MCCFA. By granting MCCFA the right to select the faculty representatives for the "meet and confer" committees and by permitting MCCFA to select only its own members, the court held, PELRA unconstitutionally deprives non-MCCFA instructors of "a fair opportunity to participate in the selection of governance representatives." 571 F. Supp., at 10. The court granted declaratory relief in accordance with its holdings and enjoined MCCFA from selecting "meet and confer" representatives without providing all faculty the fair opportunity that its selection practice had unconstitutionally denied. Appellees, the State Board, and MCCFA all filed appeals with this Court, invoking jurisdiction under 28 U.S. C. § 1253. The Court summarily affirmed the judgment insofar as the District Court held the "meet and negotiate" provisions of PELRA to be valid. Knight v. Minnesota Community College Faculty Assn., 460 U.S. 1048 (1983). The Court thus rejected appellees' argument, based on A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), and on Carter v. Carter Coal Co., 298 U.S. 238 (1936), that PELRA unconstitutionally delegated legislative authority to private parties. The Court's summary affirmance also rejected the constitutional attack on PELRA's restriction to the exclusive representative of participation in the "meet and negotiate" process. On March 28, 1983, the Court noted probable jurisdiction in the appeals by the Board and MCCFA. 460 U.S. 1050. Several weeks later, following an election held pursuant to a newly established scheme for selecting "meet and confer" representatives, the three-judge District Court modified its injunction to require a specific voting system for the selection of faculty "meet and confer" representatives.[5] This Court *280 permitted appellants to add to their appeal a challenge to this new relief. 462 U.S. 1104 (1983). We now reverse the District Court's holding that the "meet and confer" provisions of PELRA deprive appellees of their constitutional rights. II A Appellees do not and could not claim that they have been unconstitutionally denied access to a public forum. A "meet and confer" session is obviously not a public forum. It is a fundamental principle of First Amendment doctrine, articulated most recently in Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45-46 (1983), that for government property to be a public forum, it must by long tradition or by government designation be open to the public at large for assembly and speech. Minnesota college administration meetings convened to obtain faculty advice on policy questions have neither by long tradition nor by government designation been open for general public participation. The District Court did not so find, 571 F. Supp., at 9, and appellees do not contend otherwise. *281 The rights at issue in these cases are accordingly wholly unlike those at stake in Madison Joint School District No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167 (1976). The Court in that case upheld a claim of access to a public forum, applying standard public-forum First Amendment analysis. See Perry Education Assn. v. Perry Local Educators' Assn., supra, at 45 (citing Madison Joint School District as an example of a case involving a "forum generally open to the public" for expressive activity). The school board meetings at issue there were "opened [as] a forum for direct citizen involvement," 429 U.S., at 175, and "public participation [was] permitted," id., at 169. The First Amendment was violated when the meetings were suddenly closed to one segment of the public even though they otherwise remained open for participation by the public at large.[6] These cases, by contrast, involve no selective closure of a generally open forum, and hence any reliance on the Madison case would be misplaced. Indeed, the claim in these cases is not even a claim of access to a nonpublic forum, such as the school mail system at issue in Perry Education Assn. A private organization *282 there claimed a right of access to government property for use in speaking to potentially willing listeners among a group of private individuals and public officials not acting in an official capacity. The organization claimed no right to have anyone, public or private, attend to its message. See also United States Postal Service v. Greenburgh Civic Assns., 453 U.S. 114 (1981) (postal letterbox); Greer v. Spock, 424 U.S. 828 (1976) (military base); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (advertising space on municipal bus); Adderley v. Florida, 385 U.S. 39 (1966) (county jail). Appellees here make a claim quite different from those made in the nonpublic-forum cases. They do not contend that certain government property has been closed to them for use in communicating with private individuals or public officials not acting as such who might be willing to listen to them. Rather, they claim an entitlement to a government audience for their views. "Meet and confer" sessions are occasions for public employers, acting solely as instrumentalities of the State, to receive policy advice from their professional employees. Minnesota has simply restricted the class of persons to whom it will listen in its making of policy. Thus, appellees' principal claim is that they have a right to force officers of the State acting in an official policymaking capacity to listen to them in a particular formal setting.[7] The nonpublic-forum cases concern government's authority to provide assistance to certain persons in communicating with other persons who would not, as listeners, be acting for the government. As the discussion below makes clear, the claim that government is constitutionally obliged to listen to appellees involves entirely different considerations from those on which resolution of nonpublic-forum cases turn. Hence, the nonpublic-forum cases are *283 largely irrelevant to assessing appellees' novel constitutional claim.[8] The District Court agreed with appellees' claim to the extent that it was limited to faculty participation in governance of institutions of higher education. The court reasoned that "issues in higher education have a special character." 571 F. Supp., at 8. Tradition and public policy support the right of faculty to participate in policymaking in higher education, the court stated, and the "right of expression by faculty members also holds a special place under our Constitution." Id., at 8-9. Because of the "vital concern for academic freedom," the District Court concluded, "when the state compels creation of a representative governance system in higher education and utilizes that forum for ongoing debate and resolution of virtually all issues outside the scope of collective bargaining, it must afford every faculty member a fair opportunity to participate in the selection of governance representatives." Id., at 9-10. This conclusion is erroneous. Appellees have no constitutional right to force the government to listen to their views. They have no such right as members of the public, as government employees, or as instructors in an institution of higher education. I The Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy. In Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915), this Court rejected a claim to such a right founded on the Due Process *284 Clause of the Fourteenth Amendment. Speaking for the Court, Justice Holmes explained: "Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule." Id., at 445. In Madison Joint School District No. 8 v. Wisconsin Employment Relations Comm'n, which sustained a First Amendment challenge to a restriction on access to a public forum, the Court recognized the soundness of Justice Holmes' reasoning outside the due process context. The Court stated: "Plainly, public bodies may confine their meetings to specified subject matter and may hold nonpublic sessions to transact business." 429 U.S., at 175, n. 8. Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted. Legislatures throughout the Nation, including Congress, frequently enact bills on which no hearings have been held or on which testimony has been received from only a select group. Executive agencies likewise make policy decisions of widespread application without permitting unrestricted public testimony. Public officials at all levels of government daily make policy decisions based only on the advice they decide they need and choose to hear. To recognize a constitutional right to participate directly in government policymaking would work a revolution in existing government practices. *285 Not least among the reasons for refusing to recognize such a right is the impossibility of its judicial definition and enforcement. Both federalism and separation-of-powers concerns would be implicated in the massive intrusion into state and federal policymaking that recognition of the claimed right would entail. Moreover, the pragmatic considerations identified by Justice Holmes in Bi-Metallic Investment Co. v. State Board of Equalization, supra, are as weighty today as they were in 1915. Government makes so many policy decisions affecting so many people that it would likely grind to a halt were policymaking constrained by constitutional requirements on whose voices must be heard. "There must be a limit to individual argument in such matters if government is to go on." Id., at 445. Absent statutory restrictions, the State must be free to consult or not to consult whomever it pleases. However wise or practicable various levels of public participation in various kinds of policy decisions may be, this Court has never held, and nothing in the Constitution suggests it should hold, that government must provide for such participation. In Bi-Metallic the Court rejected due process as a source of an obligation to listen. Nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues. Indeed, in Smith v. Arkansas State Highway Employees, 441 U.S. 463, 464-466 (1979), the Court rejected the suggestion. No other constitutional provision has been advanced as a source of such a requirement. Nor, finally, can the structure of government established and approved by the Constitution provide the source. It is inherent in a republican form of government that direct public participation in government policymaking is limited. See The Federalist No. 10 (J. Madison). Disagreement with public policy and disapproval of officials' responsiveness, as Justice Holmes suggested in Bi-Metallic, supra, is to be registered principally at the polls. *286 2 Appellees thus have no constitutional right as members of the public to a government audience for their policy views. As public employees, of course, they have a special interest in public policies relating to their employment. Minnesota's statutory scheme for public-employment labor relations recognizes as much. Appellees' status as public employees, however, gives them no special constitutional right to a voice in the making of policy by their government employer. In Smith v. Arkansas State Highway Employees, supra, a public employees' union argued that its First Amendment rights were abridged because the public employer required employees' grievances to be filed directly with the employer and refused to recognize the union's communications concerning its members' grievances. The Court rejected the argument. "The public employee surely can associate, and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. See Pickering v. Board of Education, 391 U.S. 563, 574-575 (1968); Shelton v. Tucker, 364 U.S. 479 (1960). But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it." Id., at 465 (footnote omitted). The Court acknowledged that "[t]he First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances." Id., at 464. The government had not infringed any of those rights, the Court concluded. "[A]ll that the [government] has done in its challenged conduct is simply to ignore the union. That it is free to do." Id., at 466. The conduct challenged here is the converse of that challenged in Smith. There the government listened only to *287 individual employees and not to the union. Here the government "meets and confers" with the union and not with individual employees. The applicable constitutional principles are identical to those that controlled in Smith.[9] When government makes general policy, it is under no greater constitutional obligation to listen to any specially affected class than it is to listen to the public at large. 3 The academic setting of the policymaking at issue in these cases does not alter this conclusion. To be sure, there is a strong, if not universal or uniform, tradition of faculty participation in school governance, and there are numerous policy arguments to support such participation. See American Association for Higher Education — National Education Association, Faculty Participation in Academic Governance (1967); Brief for American Association of University Professors as Amicus Curiae 3-10. But this Court has never recognized a constitutional right of faculty to participate in policymaking in academic institutions. In several cases the Court has recognized that infringement of the rights of speech and association guaranteed by the First and Fourteenth Amendments " `in the case of teachers brings the safeguards of those amendments vividly into operation.' " Shelton v. Tucker, 364 U.S. 479, 487 (1960) (quoting Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (Frankfurter, J., concurring)). Those cases, however, involved individuals' rights to express their views and to associate with others for communicative purposes. See, e. g., Keyishian v. Board of Regents of University of New York, 385 U.S. 589 (1967); Shelton v. Tucker, supra; Sweezy v. New Hampshire, 354 U.S. 234 (1957). These rights do not entail any government obligation to listen. Smith v. Arkansas *288 State Highway Employees, 441 U.S. 463 (1979). Even assuming that speech rights guaranteed by the First Amendment take on a special meaning in an academic setting, they do not require government to allow teachers employed by it to participate in institutional policymaking. Faculty involvement in academic governance has much to recommend it as a matter of academic policy, but it finds no basis in the Constitution. B Although there is no constitutional right to participate in academic governance, the First Amendment guarantees the right both to speak and to associate. Appellees' speech and associational rights, however, have not been infringed by Minnesota's restriction of participation in "meet and confer" sessions to the faculty's exclusive representative. The State has in no way restrained appellees' freedom to speak on any education-related issue or their freedom to associate or not to associate with whom they please, including the exclusive representative. Nor has the State attempted to suppress any ideas. It is doubtless true that the unique status of the exclusive representative in the "meet and confer" process amplifies its voice in the policymaking process. But that amplification no more impairs individual instructors' constitutional freedom to speak than the amplification of individual voice impaired the union's freedom to speak in Smith v. Arkansas State Highway Employees, supra. Moreover, the exclusive representative's unique role in "meet and negotiate" sessions amplifies its voice as much as its unique role in "meet and confer" sessions, yet the Court summarily affirmed the District Court's approval of that role in these cases. Amplification of the sort claimed is inherent in government's freedom to choose its advisers. A person's right to speak is not infringed when government simply ignores that person while listening to others.[10] *289 Nor is appellees' right to speak infringed by the ability of MCCFA to "retaliate" for protected speech, as the District Court put it, by refusing to appoint them to the "meet and confer" committees. The State of Minnesota seeks to obtain MCCFA's views on policy questions, and MCCFA has simply chosen representatives who share its views on the issues to be discussed with the State. MCCFA's ability to "retaliate" by not selecting those who dissent from its views no more unconstitutionally inhibits appellees' speech than voters' power to reject a candidate for office inhibits the candidate's speech. See Branti v. Finkel, 445 U.S. 507, 533 (1980) (POWELL, J., dissenting). Similarly, appellees' associational freedom has not been impaired. Appellees are free to form whatever advocacy groups they like. They are not required to become members of MCCFA, and they do not challenge the monetary contribution they are required to make to support MCCFA's representation activities.[11] Appellees may well feel some pressure *290 to join the exclusive representative in order to give them the opportunity to serve on the "meet and confer" committees or to give them a voice in the representative's adoption of positions on particular issues. That pressure, however, is no different from the pressure they may feel to join MCCFA because of its unique status in the "meet and negotiate" process, a status the Court has summarily approved. Moreover, the pressure is no different from the pressure to join a majority party that persons in the minority always feel. Such pressure is inherent in our system of government; it does not create an unconstitutional inhibition on associational freedom.[12] *291 C Unable to demonstrate an infringement of any First Amendment right, appellees contend that their exclusion from "meet and confer" sessions denies them equal protection of the laws in violation of the Fourteenth Amendment. This final argument is meritless. The interest of appellees that is affected — the interest in a government audience for their policy views — finds no special protection in the Constitution. There being no other reason to invoke heightened scrutiny, the challenged state action "need only rationally further a legitimate state purpose" to be valid under the Equal Protection Clause. Perry Education Assn. v. Perry Local Educators' Assn., 460 U. S., at 54. PELRA certainly meets that standard. The State has a legitimate interest in ensuring that its public employers hear one, and only one, voice presenting the majority view of its professional employees on employment-related policy questions, whatever other advice they may receive on those questions. Permitting selection of the "meet and confer" representatives to be made by the exclusive representative, which has its unique status by virtue of majority support within the bargaining unit, is a rational means of serving that interest. If it is rational for the State to give the exclusive representative a unique role in the "meet and negotiate" process, as the summary affirmance in appellees' appeal in this litigation presupposes, it is rational for the State to do the same in the "meet and confer" process. The goal of reaching agreement makes it imperative for an employer to have before it only one collective view of its employees when "negotiating." See Abood v. Detroit Board of Education, 431 U. S., at 224.[13]*292A Similarly, the goal of basing policy decisions on consideration of the majority view of its employees makes it reasonable for an employer to give only the exclusive representative a particular formal setting in which to offer advice on policy. Appellees' equal protection challenge accordingly fails. III The District Court erred in holding that appellees had been unconstitutionally denied an opportunity to participate in their public employer's making of policy. Whatever the wisdom of Minnesota's statutory scheme for professional employee consultation on employment-related policy, in academic or other settings, the scheme violates no provision of the Constitution. The judgment of the District Court is therefore Reversed. *292B JUSTICE MARSHALL, concurring in the judgment.

The State of Minnesota authorizes its public employees to bargain collectively over terms and conditions of employment. It also requires public employers to engage in official exchanges of views with their professional employees on policy questions relating to employment but outside the scope of mandatory bargaining. If professional employees forming an appropriate bargaining unit have selected an exclusive representative for mandatory bargaining, their employer may exchange views on nonmandatory subjects only with the exclusive representative. The question presented in these cases is whether this restriction on participation in the nonmandatory-subject exchange process violates the constitutional rights of professional employees within the bargaining unit who are not members of the exclusive representative and who may disagree with its views. We hold that it does not. I A In 1971, the Minnesota Legislature adopted the Public Employment Labor Relations Act (PELRA), et seq. (1982), to establish "orderly and constructive relationships between all public employers and their employees." 179.61. The public employers covered by the law are, broadly speaking, the State and its political subdivisions, agencies, and instrumentalities. 179.63. In its amended form, as in its original form, PELRA provides for *274 the division of public employees into appropriate bargaining units and establishes a procedure, based on majority support within a unit, for the designation of an exclusive bargaining agent for that unit. 179.67, 179.71, 179.741. The statute requires public employers to "meet and negotiate" with exclusive representatives concerning the "terms and conditions of employment," which the statute defines to mean "the hours of employment, the compensation therefor and the employer's personnel policies affecting the working conditions of the employees." 179.63, 179.67, 179.71. The employer's and employees' representatives must seek an agreement in good faith. 179.63, subd. 16. PELRA also grants professional employees, such as college faculty, the right to "meet and confer" with their employers on matters related to employment that are outside the scope of mandatory negotiations. 179.63, 179.65. This provision rests on the recognition that "professional employees possess knowledge, expertise, and dedication which is helpful and necessary to the operation and quality of public services and which may assist public employers in developing their policies." 179.73. The statute declares it to be the State's policy to "encourage close cooperation between public employers and professional employees" by providing for "meet and confer" sessions on all employment-related questions not subject to mandatory bargaining. There is no statutory provision concerning the "meet and confer" process, however, that requires good-faith efforts to reach agreement. See Minneapolis Federation of Teachers Local PELRA requires professional employees to select a representative to "meet and confer" with their public employer. Minn. Stat. 179.73 (1982). If professional employees in an appropriate bargaining unit have an exclusive representative to "meet and negotiate" with their employer, that representative serves as the "meet and confer" representative as well. *275 Indeed, the employer may neither "meet and negotiate" nor "meet and confer" with any members of that bargaining unit except through their exclusive representative. 179.66, subd. 7. This restriction, however, does not prevent professional employees from submitting advice or recommendations to their employer as part of their work assignment. Moreover, nothing in PELRA restricts the right of any public employee to speak on any "matter related to the conditions or compensation of public employment or their betterment" as long as doing so "is not designed to and does not interfere with the full faithful and proper performance of the duties of employment or circumvent the rights of the exclusive representative if there be one." 179.65, subd. 1. B Appellant Minnesota State Board for Community Colleges (State Board) operates the Minnesota community college system. At the time of trial, the system comprised 18 institutions located throughout the State. Each community college is administered by a president, who reports, through the chancellor of the system, to the State Board. Prior to 1971, Minnesota's community colleges were governed in a variety of ways. On some campuses, faculty had a strong voice in administrative policymaking, expressed through organizations such as faculty senates. On other campuses, the administration consulted very little with the faculty. Irrespective of the level of faculty involvement in governance, however, the administrations of the colleges retained final authority to make policy. Following enactment of PELRA, appellant Minnesota Community College Faculty Association (MCCFA)[1] was designated the exclusive representative of the faculty of the *276 State's community colleges, which had been deemed a single bargaining unit.[2] MCCFA has "met and negotiated" and "met and conferred" with the State Board since 1971. The result has been the negotiation of successive collective-bargaining agreements in the intervening years and, in order to implement the "meet and confer" provision, a restructuring of governance practices in the community college system. On the state level, MCCFA and the Board established "meet and confer" committees to discuss questions of policy applicable to the entire system. On the campus level, the MCCFA chapters and the college administrations created local "meet and confer" committees — also referred to as "exchange of views" committees — to discuss questions of policy applicable only to the campus. The committees on both levels have discussed such topics as the selection and evaluation of administrators, academic accreditation, student affairs, curriculum, and fiscal planning — all policy matters within the control of the college administrations and the State Board. App. to Juris. Statement A-49. The State Board considers the views expressed by the statewide faculty "meet and confer" committees to be the faculty's official collective position. It recognizes, however, that not every instructor agrees with the official faculty view on every policy question. Not every instructor in the bargaining unit is a member of MCCFA, and MCCFA has selected only its own members to represent it on "meet and confer" committees. Accordingly, all faculty have been free to communicate to the State Board and to local administrations their views on questions within the coverage of the statutory "meet and confer" provision. at A-50, A-52. They have frequently done so.[3] With the possible exception *277 of a brief period of adjustment to the new governance structure, during which some administrators were reluctant to communicate informally with faculty, individual faculty members have not been impeded by either MCCFA or college administrators in the communication of their views on policy questions. at A-50. Nor has PELRA ever been construed to impede such communication.[4] *278 C Appellees are 20 Minnesota community college faculty instructors who are not members of MCCFA. In December 1974, they filed suit in the United States District Court for the District of Minnesota, challenging the constitutionality of MCCFA's exclusive representation of community college faculty in both the "meet and negotiate" and "meet and confer" processes. A three-judge District Court was convened to hear the case. A Special Master appointed by the court conducted the trial in 1980 and submitted recommended findings of fact in early 1981. at A-54 to A-81. The three-judge District Court issued its findings of fact in late 1981, at A-32 to A-54, and its decision on the legal claims in early 1982, The court rejected appellees' attack on the constitutionality of exclusive representation in bargaining over terms and conditions of employment, relying chiefly on The court agreed with appellees, however, that PELRA, as applied in the community college system, infringes First and Fourteenth Amendment speech and associational rights of faculty who *279 do not wish to join MCCFA. By granting MCCFA the right to select the faculty representatives for the "meet and confer" committees and by permitting MCCFA to select only its own members, the court held, PELRA unconstitutionally deprives non-MCCFA instructors of "a fair opportunity to participate in the selection of governance representatives." The court granted declaratory relief in accordance with its holdings and enjoined MCCFA from selecting "meet and confer" representatives without providing all faculty the fair opportunity that its selection practice had unconstitutionally denied. Appellees, the State Board, and MCCFA all filed appeals with this Court, invoking jurisdiction under 28 U.S. C. 1253. The Court summarily affirmed the judgment insofar as the District Court held the "meet and negotiate" provisions of PELRA to be valid. The Court thus rejected appellees' argument, based on A. L. A. Schechter Poultry and on that PELRA unconstitutionally delegated legislative authority to private parties. The Court's summary affirmance also rejected the constitutional attack on PELRA's restriction to the exclusive representative of participation in the "meet and negotiate" process. On March 28, 1983, the Court noted probable jurisdiction in the appeals by the Board and MCCFA. Several weeks later, following an election held pursuant to a newly established scheme for selecting "meet and confer" representatives, the three-judge District Court modified its injunction to require a specific voting system for the selection of faculty "meet and confer" representatives.[5] This Court *280 permitted appellants to add to their appeal a challenge to this new relief. We now reverse the District Court's holding that the "meet and confer" provisions of PELRA deprive appellees of their constitutional rights. II A Appellees do not and could not claim that they have been unconstitutionally denied access to a public forum. A "meet and confer" session is obviously not a public forum. It is a fundamental principle of First Amendment doctrine, articulated most recently in Perry that for government property to be a public forum, it must by long tradition or by government designation be open to the public at large for assembly and speech. Minnesota college administration meetings convened to obtain faculty advice on policy questions have neither by long tradition nor by government designation been open for general public participation. The District Court did not so find, and appellees do not contend otherwise. *281 The rights at issue in these cases are accordingly wholly unlike those at stake in Madison Joint School District No. The Court in that case upheld a claim of access to a public forum, applying standard public-forum First Amendment analysis. See Perry at 45 (citing Madison Joint School District as an example of a case involving a "forum generally open to the public" for expressive activity). The school board meetings at issue there were "opened [as] a forum for direct citizen involvement," and "public participation [was] permitted," The First Amendment was violated when the meetings were suddenly closed to one segment of the public even though they otherwise remained open for participation by the public at large.[6] These cases, by contrast, involve no selective closure of a generally open forum, and hence any reliance on the Madison case would be misplaced. Indeed, the claim in these cases is not even a claim of access to a nonpublic forum, such as the school mail system at issue in Perry A private organization *282 there claimed a right of access to government property for use in speaking to potentially willing listeners among a group of private individuals and public officials not acting in an official capacity. The organization claimed no right to have anyone, public or private, attend to its message. See also United States Postal ; ; ; Appellees here make a claim quite different from those made in the nonpublic-forum cases. They do not contend that certain government property has been closed to them for use in communicating with private individuals or public officials not acting as such who might be willing to listen to them. Rather, they claim an entitlement to a government audience for their views. "Meet and confer" sessions are occasions for public employers, acting solely as instrumentalities of the State, to receive policy advice from their professional employees. Minnesota has simply restricted the class of persons to whom it will listen in its making of policy. Thus, appellees' principal claim is that they have a right to force officers of the State acting in an official policymaking capacity to listen to them in a particular formal setting.[7] The nonpublic-forum cases concern government's authority to provide assistance to certain persons in communicating with other persons who would not, as listeners, be acting for the government. As the discussion below makes clear, the claim that government is constitutionally obliged to listen to appellees involves entirely different considerations from those on which resolution of nonpublic-forum cases turn. Hence, the nonpublic-forum cases are *283 largely irrelevant to assessing appellees' novel constitutional claim.[8] The District Court agreed with appellees' claim to the extent that it was limited to faculty participation in governance of institutions of higher education. The court reasoned that "issues in higher education have a special character." Tradition and public policy support the right of faculty to participate in policymaking in higher education, the court stated, and the "right of expression by faculty members also holds a special place under our Constitution." Because of the "vital concern for academic freedom," the District Court concluded, "when the state compels creation of a representative governance system in higher education and utilizes that forum for ongoing debate and resolution of virtually all issues outside the scope of collective bargaining, it must afford every faculty member a fair opportunity to participate in the selection of governance representatives." This conclusion is erroneous. Appellees have no constitutional right to force the government to listen to their views. They have no such right as members of the public, as government employees, or as instructors in an institution of higher education. I The Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy. In Investment this Court rejected a claim to such a right founded on the Due Process *284 Clause of the Fourteenth Amendment. Speaking for the Court, Justice Holmes explained: "Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule." In Madison Joint School District No. which sustained a First Amendment challenge to a restriction on access to a public forum, the Court recognized the soundness of Justice Holmes' reasoning outside the due process context. The Court stated: "Plainly, public bodies may confine their meetings to specified subject matter and may hold nonpublic sessions to transact business." n. 8. Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted. Legislatures throughout the Nation, including Congress, frequently enact bills on which no hearings have been held or on which testimony has been received from only a select group. Executive agencies likewise make policy decisions of widespread application without permitting unrestricted public testimony. Public officials at all levels of government daily make policy decisions based only on the advice they decide they need and choose to hear. To recognize a constitutional right to participate directly in government policymaking would work a revolution in existing government practices. *285 Not least among the reasons for refusing to recognize such a right is the impossibility of its judicial definition and enforcement. Both federalism and separation-of-powers concerns would be implicated in the massive intrusion into state and federal policymaking that recognition of the claimed right would entail. Moreover, the pragmatic considerations identified by Justice Holmes in Investment are as weighty today as they were in 1915. Government makes so many policy decisions affecting so many people that it would likely grind to a halt were policymaking constrained by constitutional requirements on whose voices must be heard. "There must be a limit to individual argument in such matters if government is to go on." Absent statutory restrictions, the State must be free to consult or not to consult whomever it pleases. However wise or practicable various levels of public participation in various kinds of policy decisions may be, this Court has never held, and nothing in the Constitution suggests it should hold, that government must provide for such participation. In the Court rejected due process as a source of an obligation to listen. Nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues. Indeed, in the Court rejected the suggestion. No other constitutional provision has been advanced as a source of such a requirement. Nor, finally, can the structure of government established and approved by the Constitution provide the source. It is inherent in a republican form of government that direct public participation in government policymaking is limited. See The Federalist No. 10 (J. Madison). Disagreement with public policy and disapproval of officials' responsiveness, as Justice Holmes suggested in is to be registered principally at the polls. *286 2 Appellees thus have no constitutional right as members of the public to a government audience for their policy views. As public employees, of course, they have a special interest in public policies relating to their employment. Minnesota's statutory scheme for public-employment labor relations recognizes as much. Appellees' status as public employees, however, gives them no special constitutional right to a voice in the making of policy by their government employer. In a public employees' union argued that its First Amendment rights were abridged because the public employer required employees' grievances to be filed directly with the employer and refused to recognize the union's communications concerning its members' grievances. The Court rejected the argument. "The public employee surely can associate, and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. See ; But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it." The Court acknowledged that "[t]he First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances." The government had not infringed any of those rights, the Court concluded. "[A]ll that the [government] has done in its challenged conduct is simply to ignore the union. That it is free to do." The conduct challenged here is the converse of that challenged in Smith. There the government listened only to *287 individual employees and not to the union. Here the government "meets and confers" with the union and not with individual employees. The applicable constitutional principles are identical to those that controlled in Smith.[9] When government makes general policy, it is under no greater constitutional obligation to listen to any specially affected class than it is to listen to the public at large. 3 The academic setting of the policymaking at issue in these cases does not alter this conclusion. To be sure, there is a strong, if not universal or uniform, tradition of faculty participation in school governance, and there are numerous policy arguments to support such participation. See American Association for Higher — National Association, Faculty Participation in Academic Governance ; Brief for American Association of University Professors as Amicus Curiae 3-10. But this Court has never recognized a constitutional right of faculty to participate in policymaking in academic institutions. In several cases the Court has recognized that infringement of the rights of speech and association guaranteed by the First and Fourteenth Amendments " `in the case of teachers brings the safeguards of those amendments vividly into operation.' " Those cases, however, involved individuals' rights to express their views and to associate with others for communicative purposes. See, e. g., ; (7). These rights do not entail any government obligation to listen. Smith v. Arkansas *288 State Highway Even assuming that speech rights guaranteed by the First Amendment take on a special meaning in an academic setting, they do not require government to allow teachers employed by it to participate in institutional policymaking. Faculty involvement in academic governance has much to recommend it as a matter of academic policy, but it finds no basis in the Constitution. B Although there is no constitutional right to participate in academic governance, the First Amendment guarantees the right both to speak and to associate. Appellees' speech and associational rights, however, have not been infringed by Minnesota's restriction of participation in "meet and confer" sessions to the faculty's exclusive representative. The State has in no way restrained appellees' freedom to speak on any education-related issue or their freedom to associate or not to associate with whom they please, including the exclusive representative. Nor has the State attempted to suppress any ideas. It is doubtless true that the unique status of the exclusive representative in the "meet and confer" process amplifies its voice in the policymaking process. But that amplification no more impairs individual instructors' constitutional freedom to speak than the amplification of individual voice impaired the union's freedom to speak in Moreover, the exclusive representative's unique role in "meet and negotiate" sessions amplifies its voice as much as its unique role in "meet and confer" sessions, yet the Court summarily affirmed the District Court's approval of that role in these cases. Amplification of the sort claimed is inherent in government's freedom to choose its advisers. A person's right to speak is not infringed when government simply ignores that person while listening to others.[10] *289 Nor is appellees' right to speak infringed by the ability of MCCFA to "retaliate" for protected speech, as the District Court put it, by refusing to appoint them to the "meet and confer" committees. The State of Minnesota seeks to obtain MCCFA's views on policy questions, and MCCFA has simply chosen representatives who share its views on the issues to be discussed with the State. MCCFA's ability to "retaliate" by not selecting those who dissent from its views no more unconstitutionally inhibits appellees' speech than voters' power to reject a candidate for office inhibits the candidate's speech. See Similarly, appellees' associational freedom has not been impaired. Appellees are free to form whatever advocacy groups they like. They are not required to become members of MCCFA, and they do not challenge the monetary contribution they are required to make to support MCCFA's representation activities.[11] Appellees may well feel some pressure *290 to join the exclusive representative in order to give them the opportunity to serve on the "meet and confer" committees or to give them a voice in the representative's adoption of positions on particular issues. That pressure, however, is no different from the pressure they may feel to join MCCFA because of its unique status in the "meet and negotiate" process, a status the Court has summarily approved. Moreover, the pressure is no different from the pressure to join a majority party that persons in the minority always feel. Such pressure is inherent in our system of government; it does not create an unconstitutional inhibition on associational freedom.[12] *291 C Unable to demonstrate an infringement of any First Amendment right, appellees contend that their exclusion from "meet and confer" sessions denies them equal protection of the laws in violation of the Fourteenth Amendment. This final argument is meritless. The interest of appellees that is affected — the interest in a government audience for their policy views — finds no special protection in the Constitution. There being no other reason to invoke heightened scrutiny, the challenged state action "need only rationally further a legitimate state purpose" to be valid under the Equal Protection Clause. Perry PELRA certainly meets that standard. The State has a legitimate interest in ensuring that its public employers hear one, and only one, voice presenting the majority view of its professional employees on employment-related policy questions, whatever other advice they may receive on those questions. Permitting selection of the "meet and confer" representatives to be made by the exclusive representative, which has its unique status by virtue of majority support within the bargaining unit, is a rational means of serving that interest. If it is rational for the State to give the exclusive representative a unique role in the "meet and negotiate" process, as the summary affirmance in appellees' appeal in this litigation presupposes, it is rational for the State to do the same in the "meet and confer" process. The goal of reaching agreement makes it imperative for an employer to have before it only one collective view of its employees when "negotiating." See[13]*292A Similarly, the goal of basing policy decisions on consideration of the majority view of its employees makes it reasonable for an employer to give only the exclusive representative a particular formal setting in which to offer advice on policy. Appellees' equal protection challenge accordingly fails. III The District Court erred in holding that appellees had been unconstitutionally denied an opportunity to participate in their public employer's making of policy. Whatever the wisdom of Minnesota's statutory scheme for professional employee consultation on employment-related policy, in academic or other settings, the scheme violates no provision of the Constitution. The judgment of the District Court is therefore Reversed. *292B JUSTICE MARSHALL, concurring in the judgment.

Justice Scalia

majority

Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp.

https://www.courtlistener.com/opinion/112039/puerto-rico-dept-of-consumer-affairs-v-isla-petroleum-corp/

https://www.courtlistener.com/api/rest/v3/clusters/112039/

1987-063

In this case we must determine whether federal legislation providing for controls over the allocation and pricing of petroleum products, passed in response to the oil crisis of the early 1970's, or the legislation subsequently eliminating those controls, pre-empts gasoline price regulation by the Commonwealth of Puerto Rico. I In 1973, Congress passed the Emergency Petroleum Allocation Act (EPAA), Pub. L. 93-159, 87 Stat. 627, 15 U.S. C. § 751 et seq., in reaction to severe market disruptions caused by an embargo on oil exports to the United States. The central provision of the legislation, upon which all the rest depended, was § 4, 15 U.S. C. § 753, which required the President to promulgate regulations governing allocation and pricing of petroleum products. The Act also contained an express pre-emption provision, § 6(b), 15 U.S. C. § 755(b), precluding state and local regulation of allocation and pricing in conflict with a regulation or order under § 4.[*] As originally *498 enacted, the EPAA provided for termination of the President's regulatory authority early in 1975, but during that year Congress provided for temporary extensions, and then enacted the Energy Policy and Conservation Act (EPCA), Pub. L. 94-163, 89 Stat. 871 (codified in scattered Titles and sections of United States Code), which amended the EPAA to provide for gradual decontrol. The EPCA extended the President's EPAA regulatory obligations for 40 months, and thereafter granted him discretionary regulatory authority until September 30, 1981; on that date, the statute prescribed that "[t]he authority to promulgate and amend any regulation or to issue any order under [the EPAA] shall expire." § 461, 89 Stat. 955, 15 U.S. C. § 760g. Before enactment of the EPAA, Puerto Rico had regulated the prices of gasoline and other petroleum products sold in the Commonwealth. The Puerto Rico Department of Consumer Affairs (referred to in this litigation as DACO, apparently the acronym of its Spanish title, Departamento de Asuntos del Consumidor) was charged with regulating these and other commodities, but suspended its regulation of petroleum products when the EPAA was passed in 1973. In 1975, anticipating the expiration of the EPAA, DACO issued a regulation to restore its regulatory authority, but after the EPCA was passed it modified this regulation to make it effective only after federal price controls were lifted. Then in the spring of 1986 (4 1/2 years after the President's regulatory authority was terminated), the Legislature of Puerto Rico imposed an excise tax on oil refiners, and DACO issued the regulations that are the subject of the challenge here. DACO Orders of March 26, April 23, and May 20, 1986 (App. to Pet. for Cert. 42a-45a, App. 7-12, 21-29). Among other requirements, these regulations prescribed that the Secretary of DACO be given 15 days' notice of price increases, prohibited *499 wholesalers from passing on the cost of the excise tax to retailers, and imposed maximum profit margins on sales by wholesalers to retailers. Respondents, several oil companies, brought actions that were consolidated in the United States District Court for the District of Puerto Rico alleging, inter alia, that DACO's orders were unconstitutional on pre-emption grounds, and requesting declaratory and injunctive relief. The District Court enjoined DACO from enforcing its regulations, in part on the grounds that DACO's authority was pre-empted by Congress' decision to decontrol petroleum prices, and petitioners appealed this determination to the Temporary Emergency Court of Appeals (TECA). (Petitioners also challenged certain other aspects of the District Court's decision in an appeal to the United States Court of Appeals for the First Circuit, which has stayed its proceedings.) A divided panel of the TECA affirmed. 811 F.2d 1511 (1986). Because of the importance of the issue presented, we granted the petition for certiorari. 484 U.S. 814 (1987). II Although Puerto Rico has a unique status in our federal system, see, e. g., Examining Board v. Flores de Otero, 426 U.S. 572, 596 (1976), the parties have assumed, and we agree, that the test for federal pre-emption of the law of Puerto Rico at issue here is the same as the test under the Supremacy Clause, U. S. Const., Art. VI, cl. 2, for pre-emption of the law of a State. See 48 U.S. C. § 734 (statutory laws of the United States generally "have the same force and effect in Puerto Rico as in the United States"); Helfeld, How Much of the United States Constitution and Statutes Are Applicable to the Commonwealth of Puerto Rico?, 110 F. R. D. 452, 469 (1985) (Supremacy Clause applies to Puerto Rico). Cf. Examining Board, supra, at 597; Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 675 (1974). Our Supremacy Clause cases typically involve analysis of the *500 scope of pre-emptive intent underlying statutory provisions that impose federal regulation. See, e. g., Louisiana Public Service Comm'n v. FCC, 476 U.S. 355, 368-370 (1986); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95-96 (1983); Hines v. Davidowitz, 312 U.S. 52, 67, 69-70 (1941). While the EPAA was operative, that typical question posed relatively little difficulty, since § 6(b) explicitly pre-empted state regulation "in conflict" with an EPAA regulation or order. Here, however, we are presented with the decidedly untypical claim that federal pre-emption exists despite, not only the absence of a statutory provision specifically announcing it, but the absence of any extant federal regulatory program with which the state regulation might conflict and which might therefore be thought to imply pre-emption. Respondents' contention, in a nutshell, is that the EPAA evinced a federal intent to enter the field of petroleum allocation and price regulation, and that the EPCA never countermanded that intent, but merely changed the nature of the federally imposed regime from one of federal hands-on regulation to one of federally mandated free-market control. We have suggested elsewhere that the Constitution permits congressional creation of such a regime. See, e. g., Arkansas Electric Cooperative Corp. v. Arkansas Public Service Comm'n, 461 U.S. 375, 384 (1983). But to say that it can be created is not to say it can be created subtly. As we have repeatedly stated, " ` "we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." ' " Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 715 (1985), quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977), in turn quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). We do not find that clarity and manifestness in the statutory scheme respondents rely upon here, which consists of no more than (1) provisions for detailed Presidential regulation, which remain in the current *501 version of the United States Code, but whose effect has, by subsequent statute, specifically been decreed to expire, and (2) a provision pre-empting state laws that conflict with any Presidential regulation or order under this expired authority. In the last analysis, what respondents rely upon consists of nothing more than excerpts from the legislative history of the EPCA which in their view (though not in the view of petitioners) evidence a congressional intent that there be a free market in petroleum products. While we have frequently said that pre-emption analysis requires ascertaining congressional intent, see, e. g., Louisiana Public Service Comm'n, supra, at 369, we have never meant that to signify congressional intent in a vacuum, unrelated to the giving of meaning to an enacted statutory text. There is no text here — neither § 6(b), which only pre-empts conflicts with actual federal regulation, nor any extant federal regulation that might plausibly be thought to imply exclusivity — to which expressions of pre-emptive intent in legislative history might attach. Respondents have brought to our attention statements that may reflect general congressional approval of a free market in petroleum products, or general congressional belief that such a market would result from enactment of the EPCA, or even general congressional desire that it result. But unenacted approvals, beliefs, and desires are not laws. Without a text that can, in light of those statements, plausibly be interpreted as prescribing federal pre-emption it is impossible to find that a free market was mandated by federal law. Today's conclusion that the DACO regulations are not pre-empted was plainly foreshadowed by our decision in Tully v. Mobil Oil Corp., 455 U.S. 245 (1982) (per curiam). In that case, the TECA had held that the EPAA pre-empted a state provision barring oil companies from passing on to subsequent purchasers the cost of the State's gross-receipts tax. Since, by the time we decided that appeal, the EPCA-imposed expiration date for Presidential authority under the EPAA had already passed, we vacated the judgment, agreeing *502 with the TECA's own determination that expiration of the EPAA " `will signal the end of federal concern in this area.' " Id., at 246, quoting 653 F.2d 497, 502 (1981). Our action was based on the theory that the pre-empting legislation was no more. 455 U.S., at 247, and n. 2. Instead of following our decision in Tully, the TECA relied on language in our subsequent decision in Transcontinental Pipe Line Corp. v. State Oil and Gas Bd. of Miss., 474 U.S. 409 (1986), apparently finding there a modification of our pre-emption doctrine. In Transcontinental, we returned to an issue we had previously considered in Northern Natural Gas Co. v. State Corporation Comm'n of Kansas, 372 U.S. 84 (1963): whether a state regulation requiring a pipeline company to purchase gas ratably from owners with common interests in a gas source was pre-empted by federal legislation. The affirmative answer in Northern Natural had been based on the Court's construction of the Natural Gas Act (NGA), 15 U.S. C. § 717 et seq. In Transcontinental, the question presented was whether the Natural Gas Policy Act of 1978 (NGPA), 15 U.S. C. § 3301 et seq., "altered those characteristics of the federal regulatory scheme which provided the basis in Northern Natural for a finding of pre-emption." 474 U.S., at 417. The strongest evidence of such alteration was the NGPA's withdrawal of the type of gas purchases at issue in Transcontinental from the jurisdiction of the Federal Energy Regulatory Commission (FERC). We concluded, however, that the pre-emptive force of the NGA recognized in Northern Natural was equalled by the pre-emptive force of the NGPA, because the NGPA did not alter the comprehensive nature of the scheme, id., at 420-421, and did not eliminate the federal interest in consumer protection, id., at 423-424. At one point in our Transcontinental opinion, we phrased the question as "whether Congress, in revising a comprehensive federal regulatory scheme to give market forces a more significant role in determining the supply, the demand, and *503 the price of natural gas, intended to give the States the power it had denied FERC." Id., at 422. In the decision below, the TECA apparently interpreted this as the enunciation of a new pre-emption test, and proceeded to search the legislative history of the EPCA for evidence of an affirmative intention that the States assume the price-regulating role that the Federal Government was abandoning. Finding none, and further finding the expression of congressional sentiments favoring the free market, it concluded that the States were pre-empted. This mistook our intent. Transcontinental was not meant to announce a new rule of burden-shifting whenever the Federal Government terminates or reduces its regulation of a field of commerce, replacing the normal need for finding a federal intent to pre-empt with a need to find a federal intent to retransfer authority to the States. To the contrary, a "clear and manifest purpose" of pre-emption is always required. We demanded an affirmative intent to retransfer authority in Transcontinental because only that could have refuted the pre-emptive intent already manifest in the revised, but nonetheless "comprehensive," federal regulatory scheme. Respondents would draw exaggerated inferences from another statement in Transcontinental, to the effect that " `[a] federal decision to forgo regulation in a given area may imply an authoritative federal determination that the area is best left unregulated, and in that event would have as much pre-emptive force as a decision to regulate.' " Ibid., quoting Arkansas Electric Cooperative Corp., 461 U. S., at 384. That was obviously not meant in an unqualified sense; otherwise, deliberate federal inaction could always imply pre-emption, which cannot be. There is no federal pre-emption in vacuo, without a constitutional text or a federal statute to assert it. Where a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the pre-emptive inference can be drawn — not from federal inaction alone, but from inaction joined with action. *504 That is not what we have here. Congress has withdrawn from all substantial involvement in petroleum allocation and price regulation. There being no extant action that can create an inference of pre-emption in an unregulated segment of an otherwise regulated field, pre-emption, if it is intended, must be explicitly stated. To adopt the imaginative analogy set forth in the Solicitor General's amicus brief, repeal of EPAA regulation did not leave behind a pre-emptive grin without a statutory cat. For the reasons stated, the judgment of the TECA is Reversed. JUSTICE O'CONNOR took no part in the consideration or decision of this case.

I this case we must determie whether federal legislatio providig for cotrols over the allocatio ad pricig of petroleum products, passed i respose to the oil crisis of the early 1970's, or the legislatio subsequetly elimiatig those cotrols, pre-empts gasolie price regulatio by the Commowealth of Puerto Rico. I I 1973, Cogress passed the Emergecy Petroleum Allocatio Act (EPAA), Stat. 627, 15 U.S. C. 751 et seq., i reactio to severe market disruptios caused by a embargo o oil exports to the Uited States. The cetral provisio of the legislatio, upo which all the rest depeded, was 4, 15 U.S. C. 753, which required the Presidet to promulgate regulatios goverig allocatio ad pricig of petroleum products. The Act also cotaied a express pre-emptio provisio, 6(b), 15 U.S. C. 755(b), precludig state ad local regulatio of allocatio ad pricig i coflict with a regulatio or order uder 4.[*] As origially *498 eacted, the EPAA provided for termiatio of the Presidet's regulatory authority early i 1975, but durig that year Cogress provided for temporary extesios, ad the eacted the Eergy Policy ad Coservatio Act (EPCA), Stat. 871 (codified i scattered Titles ad sectios of Uited States Code), which ameded the EPAA to provide for gradual decotrol. The EPCA exteded the Presidet's EPAA regulatory obligatios for 40 moths, ad thereafter grated him discretioary regulatory authority util September 30, ; o that date, the statute prescribed that "[t]he authority to promulgate ad amed ay regulatio or to issue ay order uder [the EPAA] shall expire." 461, 15 U.S. C. 760g. Before eactmet of the EPAA, Puerto Rico had regulated the prices of gasolie ad other petroleum products sold i the Commowealth. The Puerto Rico Departmet of Cosumer Affairs (referred to i this litigatio as DACO, apparetly the acroym of its Spaish title, Departameto de Asutos del Cosumidor) was charged with regulatig these ad other commodities, but suspeded its regulatio of petroleum products whe the EPAA was passed i 1973. I 1975, aticipatig the expiratio of the EPAA, DACO issued a regulatio to restore its regulatory authority, but after the EPCA was passed it modified this regulatio to make it effective oly after federal price cotrols were lifted. The i the sprig of (4 1/2 years after the Presidet's regulatory authority was termiated), the Legislature of Puerto Rico imposed a excise tax o oil refiers, ad DACO issued the regulatios that are the subject of the challege here. DACO Orders of March 26, April 23, ad May 20, (App. to Pet. for Cert. 42a-45a, App. 7-12, 21-29). Amog other requiremets, these regulatios prescribed that the Secretary of DACO be give 15 days' otice of price icreases, prohibited *499 wholesalers from passig o the cost of the excise tax to retailers, ad imposed maximum profit margis o sales by wholesalers to retailers. Respodets, several oil compaies, brought actios that were cosolidated i the Uited States District Court for the District of Puerto Rico allegig, iter alia, that DACO's orders were ucostitutioal o pre-emptio grouds, ad requestig declaratory ad ijuctive relief. The District Court ejoied DACO from eforcig its regulatios, i part o the grouds that DACO's authority was pre-empted by Cogress' decisio to decotrol petroleum prices, ad petitioers appealed this determiatio to the Temporary Emergecy Court of Appeals (TECA). (Petitioers also challeged certai other aspects of the District Court's decisio i a appeal to the Uited States Court of Appeals for the First Circuit, which has stayed its proceedigs.) A divided pael of the TECA affirmed. Because of the importace of the issue preseted, we grated the petitio for certiorari. II Although Puerto Rico has a uique status i our federal system, see, e. g., Examiig the parties have assumed, ad we agree, that the test for federal pre-emptio of the law of Puerto Rico at issue here is the same as the test uder the Supremacy Clause, U. S. Cost., Art. VI, cl. 2, for pre-emptio of the law of a State. See 48 U.S. C. 734 (statutory laws of the Uited States geerally "have the same force ad effect i Puerto Rico as i the Uited States"); Helfeld, How Much of the Uited States Costitutio ad Statutes Are Applicable to the Commowealth of Puerto Rico?, 110 F. R. D. 452, 469 (Supremacy Clause applies to Puerto Rico). Cf. Examiig Board, ; Our Supremacy Clause cases typically ivolve aalysis of the *500 scope of pre-emptive itet uderlyig statutory provisios that impose federal regulatio. See, e. g., Louisiaa Public Service ; ; While the EPAA was operative, that typical questio posed relatively little difficulty, sice 6(b) explicitly pre-empted state regulatio "i coflict" with a EPAA regulatio or order. Here, however, we are preseted with the decidedly utypical claim that federal pre-emptio exists despite, ot oly the absece of a statutory provisio specifically aoucig it, but the absece of ay extat federal regulatory program with which the state regulatio might coflict ad which might therefore be thought to imply pre-emptio. Respodets' cotetio, i a utshell, is that the EPAA eviced a federal itet to eter the field of petroleum allocatio ad price regulatio, ad that the EPCA ever coutermaded that itet, but merely chaged the ature of the federally imposed regime from oe of federal hads-o regulatio to oe of federally madated free-market cotrol. We have suggested elsewhere that the Costitutio permits cogressioal creatio of such a regime. See, e. g., Arkasas Electric Cooperative But to say that it ca be created is ot to say it ca be created subtly. As we have repeatedly stated, " ` "we start with the assumptio that the historic police powers of the States were ot to be superseded by the Federal Act uless that was the clear ad maifest purpose of Cogress." ' " Hillsborough quotig i tur quotig We do ot fid that clarity ad maifestess i the statutory scheme respodets rely upo here, which cosists of o more tha (1) provisios for detailed Presidetial regulatio, which remai i the curret *501 versio of the Uited States Code, but whose effect has, by subsequet statute, specifically bee decreed to expire, ad (2) a provisio pre-emptig state laws that coflict with ay Presidetial regulatio or order uder this expired authority. I the last aalysis, what respodets rely upo cosists of othig more tha excerpts from the legislative history of the EPCA which i their view (though ot i the view of petitioers) evidece a cogressioal itet that there be a free market i petroleum products. While we have frequetly said that pre-emptio aalysis requires ascertaiig cogressioal itet, see, e. g., Louisiaa Public Service Comm', we have ever meat that to sigify cogressioal itet i a vacuum, urelated to the givig of meaig to a eacted statutory text. There is o text here — either 6(b), which oly pre-empts coflicts with actual federal regulatio, or ay extat federal regulatio that might plausibly be thought to imply exclusivity — to which expressios of pre-emptive itet i legislative history might attach. Respodets have brought to our attetio statemets that may reflect geeral cogressioal approval of a free market i petroleum products, or geeral cogressioal belief that such a market would result from eactmet of the EPCA, or eve geeral cogressioal desire that it result. But ueacted approvals, beliefs, ad desires are ot laws. Without a text that ca, i light of those statemets, plausibly be iterpreted as prescribig federal pre-emptio it is impossible to fid that a free market was madated by federal law. Today's coclusio that the DACO regulatios are ot pre-empted was plaily foreshadowed by our decisio i I that case, the TECA had held that the EPAA pre-empted a state provisio barrig oil compaies from passig o to subsequet purchasers the cost of the State's gross-receipts tax. Sice, by the time we decided that appeal, the EPCA-imposed expiratio date for Presidetial authority uder the EPAA had already passed, we vacated the judgmet, agreeig * with the TECA's ow determiatio that expiratio of the EPAA " `will sigal the ed of federal cocer i this area.' " quotig Our actio was based o the theory that the pre-emptig legislatio was o ad 2. Istead of followig our decisio i Tully, the TECA relied o laguage i our subsequet decisio i Trascotietal Pipe Lie Corp. v. State Oil ad Gas Bd. of Miss., apparetly fidig there a modificatio of our pre-emptio doctrie. I Trascotietal, we retured to a issue we had previously cosidered i Norther Natural Gas Co. v. State Corporatio Comm' of Kasas, : whether a state regulatio requirig a pipelie compay to purchase gas ratably from owers with commo iterests i a gas source was pre-empted by federal legislatio. The affirmative aswer i Norther Natural had bee based o the Court's costructio of the Natural Gas Act (NGA), 15 U.S. C. 717 et seq. I Trascotietal, the questio preseted was whether the Natural Gas Policy Act of 1978 (NGPA), 15 U.S. C. 3301 et seq., "altered those characteristics of the federal regulatory scheme which provided the basis i Norther Natural for a fidig of pre-emptio." The strogest evidece of such alteratio was the NGPA's withdrawal of the type of gas purchases at issue i Trascotietal from the jurisdictio of the Federal Eergy Regulatory Commissio (FERC). We cocluded, however, that the pre-emptive force of the NGA recogized i Norther Natural was equalled by the pre-emptive force of the NGPA, because the NGPA did ot alter the comprehesive ature of the scheme, ad did ot elimiate the federal iterest i cosumer protectio, At oe poit i our Trascotietal opiio, we phrased the questio as "whether Cogress, i revisig a comprehesive federal regulatory scheme to give market forces a more sigificat role i determiig the supply, the demad, ad *503 the price of atural gas, iteded to give the States the power it had deied FERC." I the decisio below, the TECA apparetly iterpreted this as the euciatio of a ew pre-emptio test, ad proceeded to search the legislative history of the EPCA for evidece of a affirmative itetio that the States assume the price-regulatig role that the Federal Govermet was abadoig. Fidig oe, ad further fidig the expressio of cogressioal setimets favorig the free market, it cocluded that the States were pre-empted. This mistook our itet. Trascotietal was ot meat to aouce a ew rule of burde-shiftig wheever the Federal Govermet termiates or reduces its regulatio of a field of commerce, replacig the ormal eed for fidig a federal itet to pre-empt with a eed to fid a federal itet to retrasfer authority to the States. To the cotrary, a "clear ad maifest purpose" of pre-emptio is always required. We demaded a affirmative itet to retrasfer authority i Trascotietal because oly that could have refuted the pre-emptive itet already maifest i the revised, but oetheless "comprehesive," federal regulatory scheme. Respodets would draw exaggerated ifereces from aother statemet i Trascotietal, to the effect that " `[a] federal decisio to forgo regulatio i a give area may imply a authoritative federal determiatio that the area is best left uregulated, ad i that evet would have as much pre-emptive force as a decisio to regulate.' " Ib quotig Arkasas Electric Cooperative Corp., 461 U. S., at That was obviously ot meat i a uqualified sese; otherwise, deliberate federal iactio could always imply pre-emptio, which caot be. There is o federal pre-emptio i vacuo, without a costitutioal text or a federal statute to assert it. Where a comprehesive federal scheme itetioally leaves a portio of the regulated field without cotrols, the the pre-emptive iferece ca be draw — ot from federal iactio aloe, but from iactio joied with actio. *504 That is ot what we have here. Cogress has withdraw from all substatial ivolvemet i petroleum allocatio ad price regulatio. There beig o extat actio that ca create a iferece of pre-emptio i a uregulated segmet of a otherwise regulated field, pre-emptio, if it is iteded, must be explicitly stated. To adopt the imagiative aalogy set forth i the Solicitor Geeral's amicus brief, repeal of EPAA regulatio did ot leave behid a pre-emptive gri without a statutory cat. For the reasos stated, the judgmet of the TECA is Reversed. JUSTICE O'CONNOR took o part i the cosideratio or decisio of this case.

Justice Rehnquist

second_dissenting

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

This Court decided at an early date, with neither argument nor discussion, that a business corporation is a "person" entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394, 396 (1886). Likewise, it soon became accepted that the property of a corporation was protected under the Due Process Clause of that same Amendment. See, e. g., Smyth v. Ames, 169 U.S. 466, 522 (1898). Nevertheless, we concluded soon thereafter that the liberty protected by that Amendment "is the liberty of natural, not artificial persons." Northwestern Nat. Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906). Before today, our only considered and explicit departures from that holding have been that a corporation engaged in the business of publishing or broadcasting enjoys the same liberty of the press as is enjoyed by natural persons, Grosjean v. American Press Co., 297 U.S. 233, 244 (1936), and that a nonprofit membership corporation organized for the purpose of "achieving . . . equality of treatment by all government, federal, state and local, for the members of the Negro community" enjoys certain liberties of political expression. NAACP v. Button, 371 U.S. 415, 429 (1963). The question presented today, whether business corporations have a constitutionally protected liberty to engage in political activities, has never been squarely addressed by any previous decision of this Court.[1] However, the General Court *823 of the Commonwealth of Massachusetts, the Congress of the United States, and the legislatures of 30 other States of this Republic have considered the matter, and have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible. The judgment of such a broad consensus of governmental bodies expressed over a period of many decades is entitled to considerable deference from this Court. I think it quite probable that their judgment may properly be reconciled with our controlling precedents, but I am certain that under my views of the limited application of the First Amendment to the States, which I share with the two immediately preceding occupants of my seat on the Court, but not with my present colleagues, the judgment of the Supreme Judicial Court of Massachusetts should be affirmed. Early in our history, Mr. Chief Justice Marshall described the status of a corporation in the eyes of federal law: "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created." Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). The appellants herein either were created by the Commonwealth or were admitted into the Commonwealth only for the limited purposes described in their charters and regulated by *824 state law.[2] Since it cannot be disputed that the mere creation of a corporation does not invest it with all the liberties enjoyed by natural persons, United States v. White, 322 U.S. 694, 698-701 (1944) (corporations do not enjoy the privilege against self-incrimination), our inquiry must seek to determine which constitutional protections are "incidental to its very existence." Dartmouth College, supra, at 636. There can be little doubt that when a State creates a corporation with the power to acquire and utilize property, it necessarily and implicitly guarantees that the corporation will not be deprived of that property absent due process of law. Likewise, when a State charters a corporation for the purpose of publishing a newspaper, it necessarily assumes that the corporation is entitled to the liberty of the press essential to the conduct of its business.[3]Grosjean so held, and our subsequent cases have so assumed. E. g., Time, Inc. v. Firestone, 424 U.S. 448 (1976); New York Times Co. v. Sullivan, 376 *825 U. S. 254 (1964).[4] Until recently, it was not thought that any persons, natural or artificial, had any protected right to engage in commercial speech. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 761-770 (1976). Although the Court has never explicitly recognized a corporation's right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation. It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes.[5] A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as *826 an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist. So long as the Judicial Branches of the State and Federal Governments remain open to protect the corporation's interest in its property, it has no need, though it may have the desire, to petition the political branches for similar protection. Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed.[6] I would think that any particular form of organization *827 upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation. One need not adopt such a restrictive view of the political liberties of business corporations to affirm the judgment of the Supreme Judicial Court in this case. That court reasoned that this Court's decisions entitling the property of a corporation to constitutional protection should be construed as recognizing the liberty of a corporation to express itself on political matters concerning that property. Thus, the Court construed the statute in question not to forbid political expression *828 by a corporation "when a general political issue materially affects a corporation's business, property or assets." 371 Mass. 773, 785, 359 N.E.2d 1262, 1270 (1977). I can see no basis for concluding that the liberty of a corporation to engage in political activity with regard to matters having no material effect on its business is necessarily incidental to the purposes for which the Commonwealth permitted these corporations to be organized or admitted within its boundaries. Nor can I disagree with the Supreme Judicial Court's factual finding that no such effect has been shown by these appellants. Because the statute as construed provides at least as much protection as the Fourteenth Amendment requires, I believe it is constitutionally valid. It is true, as the Court points out, ante, at 781-783, that recent decisions of this Court have emphasized the interest of the public in receiving the information offered by the speaker seeking protection. The free flow of information is in no way diminished by the Commonwealth's decision to permit the operation of business corporations with limited rights of political expression. All natural persons, who owe their existence to a higher sovereign than the Commonwealth, remain as free as before to engage in political activity. Cf. Maher v. Roe, 432 U.S. 464, 474 (1977). I would affirm the judgment of the Supreme Judicial Court.

This Court decided at an early date, with neither argument nor discussion, that a business corporation is a "person" entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment. Santa Clara Likewise, it soon became accepted that the property of a corporation was protected under the Due Process Clause of that same Amendment. See, e. g., Nevertheless, we concluded soon thereafter that the liberty protected by that Amendment "is the liberty of natural, not artificial persons." Northwestern Nat. Life Ins. Before today, our only considered and explicit departures from that holding have been that a corporation engaged in the business of publishing or broadcasting enjoys the same liberty of the press as is enjoyed by natural persons, and that a nonprofit membership corporation organized for the purpose of "achieving equality of treatment by all government, federal, state and local, for the members of the Negro community" enjoys certain liberties of political expression. The question presented today, whether business corporations have a constitutionally protected liberty to engage in political activities, has never been squarely addressed by any previous decision of this Court.[1] However, the General Court *823 of the Commonwealth of Massachusetts, the Congress of the United States, and the legislatures of 30 other States of this Republic have considered the matter, and have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible. The judgment of such a broad consensus of governmental bodies expressed over a period of many decades is entitled to considerable deference from this Court. I think it quite probable that their judgment may properly be reconciled with our controlling precedents, but I am certain that under my views of the limited application of the First Amendment to the States, which I share with the two immediately preceding occupants of my seat on the Court, but not with my present colleagues, the judgment of the Supreme Judicial Court of Massachusetts should be affirmed. Early in our history, Mr. Chief Justice Marshall described the status of a corporation in the eyes of federal law: "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created." Dartmouth The appellants herein either were created by the Commonwealth or were admitted into the Commonwealth only for the limited purposes described in their charters and regulated by *824 state law.[2] Since it cannot be disputed that the mere creation of a corporation does not invest it with all the liberties enjoyed by natural persons, United our inquiry must seek to determine which constitutional protections are "incidental to its very existence." Dartmouth at There can be little doubt that when a State creates a corporation with the power to acquire and utilize property, it necessarily and implicitly guarantees that the corporation will not be deprived of that property absent due process of law. Likewise, when a State charters a corporation for the purpose of publishing a newspaper, it necessarily assumes that the corporation is entitled to the liberty of the press essential to the conduct of its business.[3]Grosjean so held, and our subsequent cases have so assumed. E. g., Time, ; New York Times[4] Until recently, it was not thought that any persons, natural or artificial, had any protected right to engage in commercial speech. See Virginia State Board of Although the Court has never explicitly recognized a corporation's right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation. It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes.[5] A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as *826 an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist. So long as the Judicial Branches of the State and Federal Governments remain open to protect the corporation's interest in its property, it has no need, though it may have the desire, to petition the political branches for similar protection. Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed.[6] I would think that any particular form of organization *827 upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation. One need not adopt such a restrictive view of the political liberties of business corporations to affirm the judgment of the Supreme Judicial Court in this case. That court reasoned that this Court's decisions entitling the property of a corporation to constitutional protection should be construed as recognizing the liberty of a corporation to express itself on political matters concerning that property. Thus, the Court construed the statute in question not to forbid political expression *828 by a corporation "when a general political issue materially affects a corporation's business, property or assets." I can see no basis for concluding that the liberty of a corporation to engage in political activity with regard to matters having no material effect on its business is necessarily incidental to the purposes for which the Commonwealth permitted these corporations to be organized or admitted within its boundaries. Nor can I disagree with the Supreme Judicial Court's factual finding that no such effect has been shown by these appellants. Because the statute as construed provides at least as much protection as the Fourteenth Amendment requires, I believe it is constitutionally valid. It is true, as the Court points out, ante, at 781-783, that recent decisions of this Court have emphasized the interest of the public in receiving the information offered by the speaker seeking protection. The free flow of information is in no way diminished by the Commonwealth's decision to permit the operation of business corporations with limited rights of political expression. All natural persons, who owe their existence to a higher sovereign than the Commonwealth, remain as free as before to engage in political activity. Cf. I would affirm the judgment of the Supreme Judicial Court.

Justice Ginsburg

dissenting

Schwab v. Reilly

https://www.courtlistener.com/opinion/148796/schwab-v-reilly/

https://www.courtlistener.com/api/rest/v3/clusters/148796/

2009-075

In Chapter 7 bankruptcies, debtors must surrender to the trustee-in-bankruptcy all their assets, 11 U.S. C. §541, but may reclaim for themselves exempt property, §522. Within 30 days after the meeting of creditors, the trustee or a creditor may file an objection to the debtor’s designation of property as exempt. Fed. Rule Bkrtcy. Proc. 4003(b). Absent timely objection, “property claimed [by the debtor] as exempt . . . is exempt.” §522(l). The trustee in this case, petitioner William G. Schwab, maintains that the obligation promptly to object to exemp­ tion claims extends only to the qualification of an asset as exemptible, not to the debtor’s valuation of the asset. Respondent Nadejda Reilly, the debtor-in-bankruptcy, urges that the timely objection requirement applies not only to the debtor’s designation of an asset as exempt; the requirement applies as well, she asserts, to her estimate of the asset’s market value. That is so, she reasons, because the asset’s current dollar value is critical to the determi­ nation whether she may keep the property intact and outside bankruptcy, or whether the trustee, at any time during the course of the proceedings, may sell it. The Court holds that challenges to the debtor’s valua­ tion of exemptible assets need not be made within the 30­ 2 SCHWAB v. REILLY GINSBURG, J., dissenting day period allowed for “objection[s] to the list of property claimed as exempt.” Rule 4003(b). Instead, according to the Court, no time limit constrains the trustee’s (or a creditor’s) prerogative to place at issue the debtor’s evaluation of the property as fully exempt. The Court’s decision drastically reduces Rule 4003’s governance, for challenges to valuation have been, until today, the most common type of objection leveled against exemption claims. See 9 Collier on Bankruptcy ¶4003.04, p. 4003–15 (rev. 15th ed. 2009) (hereinafter Collier) (“Nor­ mally, objections to exemptions will focus primarily on issues of valuation.”). In addition to departing from the prevailing understanding and practice, the Court’s deci­ sion exposes debtors to protracted uncertainty concerning their right to retain exempt property, thereby impeding the “fresh start” exemptions are designed to foster. In accord with the courts below, I would hold that a debtor’s valuation of exempt property counts and becomes conclu­ sive absent a timely objection. I Nadejda Reilly is a cook who operated a one-person catering business. Unable to cover her debts, she filed a Chapter 7 bankruptcy petition appending all required schedules and statements. Relevant here, her filings included a form captioned “Schedule B - Personal Prop­ erty,” which called for enumeration of “all personal prop­ erty of the debtor of whatever kind.” App. 40a. On that all-encompassing schedule, Reilly listed “business equip­ ment,” i.e., her kitchen equipment, with a current market value of $10,718. Id., at 49a. Reilly also filed the more particular form captioned “Schedule C - Property Claimed as Exempt.” Id., at 56a. Schedule C contained four columns, the first headed “De­ scription of Property”; the second, “Specify Law Providing Each Exemption”; the third, “Value of Claimed Exemp­ Cite as: 560 U. S. ____ (2010) 3 GINSBURG, J., dissenting tion”; and the fourth, “Current Market Value of Property Without Deducting Exemptions.” Id., at 57a. In the first column of Schedule C, Reilly wrote, as she did in Schedule B’s description-of-property column: “See attached list of business equipment.” Id., at 58a. On the list appended to Schedules B and C, Reilly set out by hand a 31-item inven­ tory of her restaurant-plus-catering-venture equipment. Next to each item, e.g., “Dough Mixer,” “Gas stove,” “Hood,” she specified, first, the purchase price and, next, “Today’s Market Value,” which added up to $10,718 for the entire inventory. Id., at 51a–55a.1 As the laws securing exemption of her kitchen equip­ ment, Reilly specified in the second Schedule C column, §552(d)(6), the exemption covering trade tools, and §552(d)(5), the “wildcard” exemption. Id., at 58a.2 In the value-of-claimed-exemption column, she listed $1,850, then the maximum trade-tools exemption, and $8,868, drawn from her wildcard exemption, amounts adding up to $10,718. Ibid. And in the fourth, current-market­ value, column, she recorded $10,718, corresponding to the total market value she had set out in her inventory and reported in Schedule B. Ibid. Before the 30-day clock on filing objections had begun to run, an appraiser told Schwab that Reilly’s equipment was worth at least $17,000. Brief for Petitioner 15; App. 164a. Nevertheless, Schwab did not object to the $10,718 market value Reilly attributed to her business equipment in —————— 1 Reilly’s Schedules B and C, and the inventory she attached to the forms, are reproduced in an Appendix to this opinion. 2 Unlike exemptions that describe the specific property debtors may preserve, e.g., 11 U.S. C. §522(d)(6) (debtor may exempt her “aggregate interest, not to exceed [$1,850] in value, in any implements, profes­ sional books, or tool[s] of [her] trade”), the “wildcard” exemption per­ mits a debtor to shield her “aggregate interest in any property” she chooses, up to a stated dollar limit, §522(d)(5); In re Smith, 640 F.2d 888, 891 (CA7 1981). 4 SCHWAB v. REILLY GINSBURG, J., dissenting Schedule C and the attached inventory. Instead, he al­ lowed the limitations period to lapse and then moved, unsuccessfully, for permission to sell the equipment at auction. Id., at 141a–143a.3 From Reilly’s filings, the Bankruptcy Judge found it evident that Reilly had claimed the property itself, not its dollar value, as exempt. Id., at 168a–169a (“I know there’s an argument . . . that . . . the property identified as exempt is really the [valuation] column, [i.e., $10,718,] but that’s not what the forms say. The forms say property declared as exempt and to see attached list. So, they’re exempting all the property. . . . If the Trustee believes that . . . all the property cannot be exempt, [he] should object to it.”). The District Court and Court of Appeals similarly con­ cluded that, by listing the identical amount, $10,718, as the property’s market value and the value of the claimed exemptions, Reilly had signaled her intention to safeguard all of her kitchen equipment from inclusion in the bank­ ruptcy estate. In re Reilly, 403 B.R. 336, 338–339 (MD Pa. 2006); In re Reilly, 534 F.3d 173, 178 (CA3 2008). Both courts looked to §522(l) and Federal Rule of Bank­ ruptcy Procedure 4003(b), which state, respectively: “The debtor shall file a list of property that the debtor claims as exempt . . . . Unless a party in inter­ est objects, the property claimed as exempt on such list is exempt.” §522(l). —————— 3 Schwab informed Reilly at the meeting of creditors that he planned to sell all of her business equipment. App. 137a. She promptly moved to dismiss her bankruptcy petition, stating that her “business equip­ ment . . . is necessary to her livelihood and art, and was a gift to her from her parents.” Id., at 138a. She “d[id] not desire to continue with the bankruptcy,” she added, because “she wishe[d] to continue in restaurant and catering as her occupation.” Ibid. The Bankruptcy Court denied Reilly’s dismissal motion simultaneously with Schwab’s motion to sell Reilly’s equipment. Id., at 149a–170a. Cite as: 560 U. S. ____ (2010) 5 GINSBURG, J., dissenting “A party in interest may file an objection to the list of property claimed as exempt only within 30 days after the meeting of creditors held under §341(a) is con­ cluded . . . . The court may, for cause, extend the time for filing objections if, before the time to object ex­ pires, a party in interest files a request for an exten­ sion.” Rule 4003(b).4 Schwab having filed no objection within the allowable 30 days, each of the tribunals below ruled that the entire inventory of Reilly’s business equipment qualified as exempt in full. App. 168a; 403 B.R., at 339; 534 F. 3d, at 178. The leading treatise on bankruptcy, the Court of Appeals noted, id., at 180, n. 4, is in accord: “Normally, if the debtor lists property as exempt, that listing is interpreted as a claim for exemption of the debtor’s entire interest in the property, and the debtor’s valuation of that interest is treated as the amount of the exemption claimed. Were it other­ wise—that is, if the listing were construed to claim as exempt only that portion of the property having the value stated—the provisions finalizing exemptions if no objections are filed would be rendered meaningless. The trustee or creditors could [anytime] claim that the debtor’s interest in the property was greater than the value claimed as exempt and [then] object to the debtor exempting his or her entire interest in the property after the deadline for objections had passed.” 9 Collier ¶4003.02[1], pp. 4003–4 to 4003–5. Agreeing with the courts below, I would hold that Reilly, by her precise identification of the exempt property, and her specification of $10,718 as both the current market value of her kitchen equipment and the value of the —————— 4 In 2008, this prescription was recodified without material change and designated Rule 4003(b)(1). 6 SCHWAB v. REILLY GINSBURG, J., dissenting claimed exemptions, had made her position plain: She claimed as exempt the listed property itself—not the dollar amount, up to $10,718, that sale of the property by Schwab might yield. Because neither Schwab nor any creditor lodged a timely objection, the listed property became exempt, reclaimed as property of the debtor, and therefore outside the bankruptcy estate the trustee is charged to administer. II A Pursuant to §522(l), Reilly filed a list of property she claimed as exempt from the estate-in-bankruptcy. Her filing left no doubt that her exemption claim encompassed her entire inventory of kitchen equipment. Schwab, in fact, was fully aware of the nature of the claim Reilly asserted. At the meeting of creditors, Reilly reiterated that she sought to keep the equipment in her possession; she would rather discontinue the bankruptcy proceeding, she made plain, than lose her equipment. See supra, at 4, n. 3. Bankruptcy Rule 4003(b) requires the trustee, if he contests the debtor’s exemption claim in whole or part, to file an objection within 30 days after the meeting of credi­ tors. Absent a timely objection, “the property claimed as exempt . . . is exempt.” §522(l); Rule 4003. That prescrip­ tion should be dispositive of this case. The Court holds, however, that Schwab was not obliged to file a timely objection to the exemption Reilly claimed, and indeed could auction off her cooking equipment any­ time prior to her discharge. In so holding, the Court de­ crees that no objection need be made to a debtor’s valua­ tion of her property. To support the conclusion that Rule 4003’s timely objec­ tion requirement does not encompass the debtor’s estima­ tion of her property’s market value, the Court homes in on the language of exemption prescriptions that are subject to Cite as: 560 U. S. ____ (2010) 7 GINSBURG, J., dissenting a monetary cap.5 Those prescriptions, the Court points out, “define the ‘property’ a debtor may ‘clai[m] as exempt’ as the debtor’s ‘interest’—up to a specified dollar amount—in the assets described in the category, not as the assets themselves.” Ante, at 10. So long as a debtor values her claimed exemption at a dollar amount below the statutory cap, the Court reasons, the claim is on-its­ face permissible no matter the market value she ascribes to the asset. To evaluate the propriety of Reilly’s declared “interest” in her kitchen equipment, the Court concludes, Schwab was obliged promptly to inspect “three, and only three, entries on Reilly’s Schedule C: the description of the business equipment . . . ; the Code provisions governing the claimed exemptions; and the amounts Reilly listed in the column titled ‘value of claimed exemption.’ ” Ante, at 12–13.6 —————— 5 Section 522(d) catalogs exemptions of two types. Most exemptions— and all of those Reilly invoked—place a monetary limit on the value of the property the debtor may reclaim. See, e.g., §522(d)(2) (“motor vehicle”); §522(d)(3) (“household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments”); §522(d)(4) (“jewelry”). For certain exemptions not at issue here, the Bankruptcy Code authorizes reclamation of the property in full without any cap on value. See, e.g., §522(d)(7) (“unmatured life insurance contract”); §522(d)(9) (“[p]rofessionally prescribed health aids”); §522(d)(11)(A) (“award under a crime victim’s reparation law”). 6 In support of its view that market value is not relevant to determin­ ing the “property claimed as exempt” for purposes of Rule 4003(b)’s timely objection mandate, the Court observes that Schedule C did not require the debtor to list this information until 1991. Ante, at 14–15. Prior to 1991, however, debtors recorded market value on a different schedule. See Interim Fed. Rule Bkrtcy. Proc. Official Form 6, Sched­ ule B–2 (1979) (requiring debtor to list the “[m]arket value of [her] interest [in personal property] without deduction for . . . exemptions claimed”). Trustees assessing the “property claimed as exempt,” therefore, have always been able, from the face of the debtor’s filings, to compare the value of the claimed exemption to the property’s declared market value. See Brief for National Association of Consumer Bank­ ruptcy Attorneys et al. as Amici Curiae 34. 8 SCHWAB v. REILLY GINSBURG, J., dissenting B The Court’s account, however, shuts from sight the vital part played by the fourth entry on Schedule C—current market value—when a capped exemption is claimed. A debtor who estimates a market value below the cap, and lists an identical amount as the value of her claimed ex­ emption, thereby signals that her aim is to keep the listed property in her possession, outside the estate-in­ bankruptcy. In contrast, a debtor who estimates a market value above the cap, and above the value of her claimed exemption, thereby recognizes that she cannot shelter the property itself and that the trustee may seek to sell it for whatever it is worth.7 Schedule C’s final column, in other words, alerts the trustee whether the debtor is claiming a right to retain the listed property itself as her own, a right secured to her if the trustee files no timely objection.8 Because an asset’s market value is key to determining —————— 7 By authorizing exemption of assets that a debtor would want to keep in kind, such as her jewelry and car, but limiting the exemptible value of this property, Congress struck a balance between debtors’ and creditors’ interests: Debtors can reclaim items helpful to their fresh start after bankruptcy, but only if those items are of modest value. Assets of larger worth, however, are subject to liquidation so that creditors may obtain a portion of the item’s value. Cf. In re Price, 370 F.3d 362, 378 (CA3 2004) (“[B]ankruptcy law is bilateral, replete with protections and policy considerations favoring both debtors and creditors.”). 8 The significance of market value is what differentiates capped ex­ emptions from uncapped ones that permit debtors to exempt certain property in kind regardless of its worth. See supra, at 7, n. 5. For uncapped exemptions, the nature of the property the debtor has re­ claimed is clear: If the exemption is valid, the debtor gets the asset in full every time. For capped exemptions, however, market value is a crucial component in determining whether the debtor gets the item itself or a sum of money representing a share of the item’s liquidation value. Reading Bankruptcy Rule 4003(b) to require objections to valuation thus does not, as the Court contends, “elid[e] the distinction” between capped and uncapped exemptions, ante, at 12 (emphasis added), but instead accounts for that distinction. Cite as: 560 U. S. ____ (2010) 9 GINSBURG, J., dissenting the character of the interest the debtor is asserting in that asset, Rule 4003(b) is properly read to require objections to valuation within 30 days, just as the Rule requires timely objections to the debtor’s description of the property, the asserted legal basis for the exemption, and the claimed value of the exemption. See 4 Collier ¶522.05[1], p. 522– 28 (rev. 15th ed. 2005) (“[T]o evaluate the propriety of the debtor’s claim of exemption,” trustees need the informa­ tion in all four columns of Schedule C; “[market] value” is “essential” to judging whether the claim is proper because “[e]xemption provisions often are limited according to . . . [the property’s] value.”). 9 C Requiring objections to market valuation notably facili­ tates the debtor’s fresh start, and thus best fulfills the prime purpose of the exemption prescriptions. See, e.g., Burlingham v. Crouse, 228 U.S. 459, 473 (1913) (Bank­ ruptcy provisions “must be construed” in light of policy “to give the bankrupt a fresh start.”). See also Rousey v. —————— 9 Suggesting that this interpretation of Rule 4003(b) “lacks statutory support,” ante, at 13, n. 11, the Court repeatedly emphasizes that the Bankruptcy Code defines the “property claimed as exempt,” to which a trustee must object, as “the debtor’s ‘interest’—up to a specified dollar amount—in the assets described in [capped exemption] categor[ies],” ante, at 10; see, e.g., ante, at 11; ibid., n. 9; ante, at 21, n. 19. But the commonly understood definition of a property “interest” is “[a] legal share in something; all or part of a legal or equitable claim to or right in property. . . . Collectively, the word includes any aggregation of [such] rights.” Black’s Law Dictionary 828 (8th ed. 2004). Schwab, therefore, could not comprehend whether Reilly claimed a monetary or an in-kind “interest” in her kitchen equipment without comparing her market valuation of the equipment to the value of her claimed exemp­ tion. See supra, at 8–9. In line with the statutory text, a debtor’s market valuation is an essential factor in determining the nature of the “interest” a debtor lists as exempt. Bankruptcy “forms, rules, treatise excerpts, and policy considerations,” ante, at 7, n. 5, corroborate, rather than conflict with, this reading of the Code. 10 SCHWAB v. REILLY GINSBURG, J., dissenting Jacoway, 544 U.S. 320, 325 (2005); United States v. Secu rity Industrial Bank, 459 U.S. 70, 72, n. 1 (1982); ante, at 19. The 30-day deadline for objections, this Court has recognized, “prompt[s] parties to act and . . . produce[s] finality.” Taylor v. Freeland & Kronz, 503 U.S. 638, 644 (1992). As “there can be no possibility of further objection to the exemptions” after this period elapses, the principal bankruptcy treatise observes, “if the debtor is not yet in possession of the property claimed as exempt, it should be turned over to [her] at this time to effectuate fully the fresh start purpose of the exemptions.” 9 Collier ¶4003.03[3], p. 4003–13. With the benefit of closure, and the certainty it brings, the debtor may, at the end of the 30 days, plan for her future secure in the knowledge that the possessions she has exempted in their entirety are hers to keep. See 534 F.3d, at 180. If she has reclaimed her car from the estate, for example, she may accept a job not within walking distance. See Brief for National Association of Consumer Bankruptcy Attorneys et al. as Amici Curiae 2–3 (herein­ after NACBA Brief). Or if she has exempted her kitchen equipment, she may launch a new catering venture. See App. 138a (Reilly “wishe[d] to continue in restaurant and catering as her occupation” postbankruptcy.). By permitting trustees to challenge a debtor’s valuation of exempted property anytime before discharge, the Court casts a cloud of uncertainty over the debtor’s use of assets reclaimed in full. If the trustee gains a different opinion of an item’s value months, even years, after the debtor has filed her bankruptcy petition,10 he may seek to repossess the asset, auction it off, and hand the debtor a check for —————— 10 Schwab states that “[c]ases in which there are assets to administer . . . can take ‘one to four years’ to complete.” Brief for Petitioner 32 (quoting Dept. of Justice, U. S. Trustee Program, Preliminary Report on Chapter 7 Asset Cases 1994 to 2000, p. 7 (June 2001)). Cite as: 560 U. S. ____ (2010) 11 GINSBURG, J., dissenting the dollar amount of her claimed exemption.11 With this threat looming until discharge, “[h]ow can debtors rea­ sonably be expected to restructure their affairs”? NACBA Brief 25. See In re Polis, 217 F.3d 899, 903 (CA7 2000) (Posner, J.) (“If the assets sought to be exempted by the debtor were not valued at a date early in the bankruptcy proceeding, neither the debtor nor the creditors would know who had the right to them.”). III The Court and Schwab raise three concerns about read­ ing Rule 4003 to require timely objection to the debtor’s estimate of an exempt asset’s market value: Would trus­ tees face an untoward administrative burden? Would trustees lack fair notice of the need to object? And would debtors be tempted to undervalue their property in an effort to avoid the monetary cap on exemptions? In my judgment, all three questions should be answered no. A The Court suggests that requiring timely objections to a debtor’s valuation of exempt property would saddle trus­ tees with an unmanageable load. See ante, at 18 (declin­ ing to “expand . . . the universe of information an inter­ ested party must consider in evaluating the validity of a claimed exemption”). See also Brief for Petitioner 32–33; Brief for United States as Amicus Curiae 24.12 But trus­ —————— 11 Money generated by liquidation of an asset will often be of less utility to a debtor, who will have to pay more to replace the item. See H. R. Rep. No. 95–595, p. 127 (1977) (noting that “household goods have little resale value” but “replacement costs of the goods are generally high”). 12 This concern is questionable in light of the prevailing practice, for, as earlier noted, valuation objections are the most common Rule 4003(b) challenge. See supra, at 2. By lopping off valuation disagree­ ments from the timely objection requirement, see, e.g., ante, at 10–11, n. 8, the Court so severely shrinks the Rule’s realm that this question 12 SCHWAB v. REILLY GINSBURG, J., dissenting tees, sooner or later, must attempt to ascertain the market value of exempted assets. They must do so to determine whether sale of the items would likely produce surplus proceeds for the estate above the value of the claimed exemption, see §704(a)(1); the only question, then, is when this market valuation must occur—(1) within 30 days or (2) at any time before discharge? Removing valuation from Rule 4003’s governance thus does little to reduce the labors trustees must undertake. The 30-day objection period, I note, does not impose on trustees any additional duty, but rather guides the exer­ cise of existing responsibilities; under Rule 4003(b), a trustee must rank evaluation of the debtor’s exemptions as a priority item in his superintendence of the estate.13 And if the trustee entertains any doubt about the accuracy of a debtor’s estimation of market value, the procedure for interposing objections is hardly arduous. The trustee need only file with the court a simple declaration stating that an item’s value exceeds the amount listed by the debtor.14 —————— arises: Why are trustees granted a full 30 days to lodge objections? Under the Court’s reading of the Rule, trustees need only compare a debtor’s Schedule C to the text of the exemption prescriptions to assess an exemption claim’s facial validity, with no further investigation necessary. That comparison should take no more than minutes, surely not a month. 13 Trustees, it bears noting, historically had valuation duties far more onerous than they have today. Rule 4003’s predecessor required trustees in the first instance, rather than debtors, to estimate the market value of property claimed as exempt. See Rule 403(b) (1975). Trustees had to provide this valuation to the court within 15 days of their appointment. See ibid. 14 The leading bankruptcy treatise supplies an illustrative valuation objection: “[Name of Trustee], the duly qualified and acting trustee of the estate of the debtor, would show the court the following: “1. The debtor is not entitled under [the automobile exemption] to an interest of more than $3,225 in an automobile. The automobile claimed by debtor as exempt . . . has a value substantially greater than $3,225. Cite as: 560 U. S. ____ (2010) 13 GINSBURG, J., dissenting If the trustee needs more than 30 days to assess market value, moreover, the time period is eminently extendable. Rule 4003(b) prescribes that a trustee may, for cause, ask the court for an extension of the objection period. Alterna­ tively, the trustee can postpone the conclusion of the meeting of creditors, from which the 30-day clock runs, simply by adjourning the meeting to a future date. Rule 2003(e). A trustee also may examine the debtor under oath at the creditors’ meeting, Rule 2003(b)(1); if he gath­ ers information impugning her exemption claims, he may ask the bankruptcy court to hold a hearing to determine valuation issues, Rule 4003(c). See Taylor, 503 U.S., at 644 (“If [the trustee] did not know the value of [a claimed exemption], he could have sought a hearing on the issue . . . or . . . asked the Bankruptcy Court for an extension of time to object.”). See also NACBA Brief 19, 21–23 (listing ways trustees may enlarge the limitations period for objections). Trustees, in sum, have ample mechanisms at their disposal to gain the time and information they need to lodge objections to valuation. B On affording trustees fair notice of the need to object, the Court emphasizes that a debtor must list her claimed exemptions “in a manner that makes the scope of the exemption clear.” Ante, at 20. If a debtor wishes to ex­ empt property in its entirety, for example, the Court coun­ sels her to write “full fair market value (FMV)” or “100% of FMV” in Schedule C’s value-of-claimed-exemption column. —————— . . . . . “WHEREFORE Trustee prays that the court determine that debtor is not entitled to . . . the exemptio[n] claimed by him, that the [property claimed as exempt] which [is] disallowed be turned over to the trustee herein as property of the estate, and that he have such other and further relief as is just.” 13A Collier §CS17.14, p. CS 17–22 (rev. 15th ed. 2009). See also Rules 9013–9014. 14 SCHWAB v. REILLY GINSBURG, J., dissenting Ante, at 20–21 (internal quotation marks omitted). See also Tr. of Oral Arg. 6–7, 26–29; In re Hyman, 967 F.2d 1316, 1319–1320, n. 6 (CA9 1992) (Trustees must be able to assess the validity of an exemption from the face of a debtor’s schedules.). Our decision in Taylor v. Freeland & Kronz, the Court notes, is instructive. In Taylor, the debtor recorded the term “$ unknown” as the value of a claimed exemption, which, the Court observes, raised a “warning fla[g]” because the value “was not plainly within the limits the Code allows.” Ante, at 17. True, a debtor’s schedules must give notice sufficient to cue the trustee that an objection may be in order. But a “warning flag” is in the eye of the beholder: If a debtor lists identical amounts as the market value of exempted property and the value of her claimed exemption, she has, on the face of her schedules, reclaimed the entire asset just as surely as if she had recorded “100% of FMV” in Sched­ ule C’s value-of-claimed-exemption column. See Brief for Respondent 36. See also 9 Collier ¶4003.03[3], p. 4003–14 (“Only when a debtor’s schedules specifically value the debtor’s interest in the property at an amount higher than the amount claimed as exempt can it be argued that a part of the debtor’s interest in property has not been ex­ empted.” (emphasis added)). In this case, by specifying $10,718 as both the current market value of her kitchen equipment and the value of her claimed exemptions, Reilly gave notice that she had reclaimed the listed property in full. See supra, at 2–6. To borrow the Court’s terminology, Reilly waved a “warn­ ing flag” that should have prompted Schwab to object if he believed the equipment could not be reclaimed in its en­ tirety because its value exceeded the statutory cap. 534 F.3d, at 179. See 4 Collier ¶522.05[2][b], p. 522–33 (“Nor­ mally, if a debtor lists an asset as having a particular value in the schedules and then exempts that value, the schedules should be read as a claim of exemption for the Cite as: 560 U. S. ____ (2010) 15 GINSBURG, J., dissenting entire asset, to which the trustee should object if the trustee believes the asset has been undervalued.”). Training its attention on trustees’ needs, moreover, the Court overlooks the debtor’s plight. As just noted, the Court counsels debtors wishing to exempt an asset in full to write “100% of FMV” or “full FMV” in the value-of­ claimed-exemption column. But a debtor following the instructions that accompany Schedule C would consider such a response nonsensical, for those instructions direct her to “state the dollar value of the claimed exemption in the space provided.” Fed. Rule Bkrtcy. Proc. Official Form 6, Schedule C, Instruction 5 (1991) (emphasis added). Chapter 7 debtors are often unrepresented. How are they to know they must ignore Schedule C’s instructions and employ the “warning flag” described today by the Court, if they wish to trigger the trustee’s obligation to object to their market valuation in a timely fashion? See In re Anderson, 377 B.R. 865, 875 (Bkrtcy. App. Panel CA6 2007).15 C Schwab finally urges that requiring timely objections to a debtor’s market-value estimations “would give debtors a perverse incentive to game the system by undervaluing their assets.” Brief for Petitioner 35; see Brief for United States as Amicus Curiae 27. The Court rejected an argu­ ment along these lines in Taylor, and should follow suit here. Multiple measures, Taylor explained, discourage undervaluation of property claimed as exempt. 503 U. S., —————— 15 Trustees, in contrast, are repeat players in bankruptcy court; if this Court required timely objections to market valuation, trustees would, no doubt, modify their practices in response. See 1 Collier ¶8.06[1][c][ii], p. 8–75 (rev. 15th ed. 2009) (“Since Taylor [v. Freeland & Kronz, 503 U.S. 638 (1992)], trustees rarely fail to closely scrutinize vague exemption claims.”). Moreover, because valuation objections are already the norm, see supra, at 2, and 11, n. 12, few trustees would have to adjust their behavior. 16 SCHWAB v. REILLY GINSBURG, J., dissenting at 644. Among those measures: The debtor files her exemption claim under penalty of perjury. See Rule 1008. She risks judicial sanction for signing documents not well grounded in fact. Rule 9011. And proof of fraud subjects her to criminal prosecution, 18 U.S. C. §152; extends the limitations period for filing objections to Schedule C, Rule 4003(b); and authorizes denial of dis­ charge, 11 U.S. C. §727(a)(4)(B). See also NACBA Brief 29–33 (detailing additional checks against inadequate or inaccurate filings). Furthermore, the objection procedure is itself a safe­ guard against debtor undervaluation. If a trustee sus­ pects that the market value of property claimed as exempt may exceed a debtor’s estimate, he should do just what Rule 4003(b) prescribes: “[F]ile an objection . . . within 30 days after the meeting of creditors.” * * * For the reasons stated, I would affirm the Third Cir­ cuit’s judgment. Cite as: 560 U. S. ____ (2010) 17 Appendix to opiniondissenting , J. GINSBURG, J., of GINSBURG APPENDIX 18 SCHWAB v. REILLY Appendix to opiniondissenting , J. GINSBURG, J., of GINSBURG Cite as: 560 U. S. ____ (2010) 19 Appendix to opiniondissenting , J. GINSBURG, J., of GINSBURG 20 SCHWAB v. REILLY Appendix to opiniondissenting , J. GINSBURG, J., of GINSBURG Cite as: 560 U. S. ____ (2010) 21 Appendix to opiniondissenting , J. GINSBURG, J., of GINSBURG 22 SCHWAB v. REILLY Appendix to opiniondissenting , J. GINSBURG, J., of GINSBUR

In Chapter 7 bankruptcies, debtors must surrender to the trustee-in-bankruptcy all their assets, 11 U.S. C. but may reclaim for themselves exempt property, Within 30 days after the meeting of creditors, the trustee or a creditor may file an objection to the debtor’s designation of property as exempt. Fed. Rule Bkrtcy. Proc. 4003(b). Absent timely objection, “property claimed [by the debtor] as exempt is exempt.” The trustee in this case, petitioner William G. Schwab, maintains that the obligation promptly to object to exemp­ tion claims extends only to the qualification of an asset as exemptible, not to the debtor’s valuation of the asset. Respondent Nadejda Reilly, the debtor-in-bankruptcy, urges that the timely objection requirement applies not only to the debtor’s designation of an asset as exempt; the requirement applies as well, she asserts, to her estimate of the asset’s market value. That is so, she reasons, because the asset’s current dollar value is critical to the determi­ nation whether she may keep the property intact and outside bankruptcy, or whether the trustee, at any time during the course of the proceedings, may sell it. The Court holds that challenges to the debtor’s valua­ tion of exemptible assets need not be made within the 30­ 2 SCHWAB v. REILLY GINSBURG, J., dissenting day period allowed for “objection[s] to the list of property claimed as exempt.” Rule 4003(b). Instead, according to the Court, no time limit constrains the trustee’s (or a creditor’s) prerogative to place at issue the debtor’s evaluation of the property as fully exempt. The Court’s decision drastically reduces Rule 4003’s governance, for challenges to valuation have been, until today, the most common type of objection leveled against exemption claims. See 9 Collier on Bankruptcy ¶4003.04, p. 4003–15 (rev. 15th ed. 2009) (hereinafter Collier) (“Nor­ mally, objections to exemptions will focus primarily on issues of valuation.”). In addition to departing from the prevailing understanding and practice, the Court’s deci­ sion exposes debtors to protracted uncertainty concerning their right to retain exempt property, thereby impeding the “fresh start” exemptions are designed to foster. In accord with the courts below, I would hold that a debtor’s valuation of exempt property counts and becomes conclu­ sive absent a timely objection. I Nadejda Reilly is a cook who operated a one-person catering business. Unable to cover her debts, she filed a Chapter 7 bankruptcy petition appending all required schedules and statements. Relevant here, her filings included a form captioned “Schedule B - Personal Prop­ erty,” which called for enumeration of “all personal prop­ erty of the debtor of whatever kind.” App. 40a. On that all-encompassing schedule, Reilly listed “business equip­ ment,” i.e., her kitchen equipment, with a current market value of $10,718. 9a. Reilly also filed the more particular form captioned “Schedule C - Property Claimed as Exempt.” at 56a. Schedule C contained four columns, the first headed “De­ scription of Property”; the second, “Specify Law Providing Each Exemption”; the third, “Value of Claimed Exemp­ Cite as: 560 U. S. (2010) 3 GINSBURG, J., dissenting tion”; and the fourth, “Current Market Value of Property Without Deducting Exemptions.” at 57a. In the first column of Schedule C, Reilly wrote, as she did in Schedule B’s description-of-property column: “See attached list of business equipment.” at 58a. On the list appended to Schedules B and C, Reilly set out by hand a 31-item inven­ tory of her restaurant-plus-catering-venture equipment. Next to each item, e.g., “Dough Mixer,” “Gas stove,” “Hood,” she specified, first, the purchase price and, next, “Today’s Market Value,” which added up to $10,718 for the entire inventory. at 51a–55a.1 As the laws securing exemption of her kitchen equip­ ment, Reilly specified in the second Schedule C column, the exemption covering trade tools, and the “wildcard” exemption. at 58a.2 In the value-of-claimed-exemption column, she listed $1,850, then the maximum trade-tools exemption, and $8,868, drawn from her wildcard exemption, amounts adding up to $10,718. And in the fourth, current-market­ value, column, she recorded $10,718, corresponding to the total market value she had set out in her inventory and reported in Schedule B. Before the 30-day clock on filing objections had begun to run, an appraiser told Schwab that Reilly’s equipment was worth at least $17,000. Brief for Petitioner 15; App. 164a. Nevertheless, Schwab did not object to the $10,718 market value Reilly attributed to her business equipment in —————— 1 Reilly’s Schedules B and C, and the inventory she attached to the forms, are reproduced in an Appendix to this opinion. 2 Unlike exemptions that describe the specific property debtors may preserve, e.g., 11 U.S. C. (debtor may exempt her “aggregate interest, not to exceed [$1,850] in value, in any implements, profes­ sional books, or tool[s] of [her] trade”), the “wildcard” exemption per­ mits a debtor to shield her “aggregate interest in any property” she chooses, up to a stated dollar limit, In re Smith, 640 F.2d 888, 891 (CA7 1981). 4 SCHWAB v. REILLY GINSBURG, J., dissenting Schedule C and the attached inventory. Instead, he al­ lowed the limitations period to lapse and then moved, unsuccessfully, for permission to sell the equipment at auction. at 141a–143a.3 From Reilly’s filings, the Bankruptcy Judge found it evident that Reilly had claimed the property itself, not its dollar value, as exempt. at 168a–169a (“I know there’s an argument that the property identified as exempt is really the [valuation] column, [i.e., $10,718,] but that’s not what the forms say. The forms say property declared as exempt and to see attached list. So, they’re exempting all the property. If the Trustee believes that all the property cannot be exempt, [he] should object to it.”). The District Court and Court of Appeals similarly con­ cluded that, by listing the identical amount, $10,718, as the property’s market value and the value of the claimed exemptions, Reilly had signaled her intention to safeguard all of her kitchen equipment from inclusion in the bank­ ruptcy estate. In re Reilly, 338–339 (MD Pa. 2006); In re Reilly, Both courts looked to and Federal Rule of Bank­ ruptcy Procedure 4003(b), which state, respectively: “The debtor shall file a list of property that the debtor claims as exempt Unless a party in inter­ est objects, the property claimed as exempt on such list is exempt.” —————— 3 Schwab informed Reilly at the meeting of creditors that he planned to sell all of her business equipment. App. 137a. She promptly moved to dismiss her bankruptcy petition, stating that her “business equip­ ment is necessary to her livelihood and art, and was a gift to her from her parents.” at 138a. She “d[id] not desire to continue with the bankruptcy,” she added, because “she wishe[d] to continue in restaurant and catering as her occupation.” The Bankruptcy Court denied Reilly’s dismissal motion simultaneously with Schwab’s motion to sell Reilly’s equipment. at 149a–170a. Cite as: 560 U. S. (2010) 5 GINSBURG, J., dissenting “A party in interest may file an objection to the list of property claimed as exempt only within 30 days after the meeting of creditors held under is con­ cluded The court may, for cause, extend the time for filing objections if, before the time to object ex­ pires, a party in interest files a request for an exten­ sion.” Rule 4003(b).4 Schwab having filed no objection within the allowable 30 days, each of the tribunals below ruled that the entire inventory of Reilly’s business equipment qualified as exempt in full. App. 168a; ; 534 F. 3d, at The leading treatise on bankruptcy, the Court of Appeals noted, is in accord: “Normally, if the debtor lists property as exempt, that listing is interpreted as a claim for exemption of the debtor’s entire interest in the property, and the debtor’s valuation of that interest is treated as the amount of the exemption claimed. Were it other­ wise—that is, if the listing were construed to claim as exempt only that portion of the property having the value stated—the provisions finalizing exemptions if no objections are filed would be rendered meaningless. The trustee or creditors could [anytime] claim that the debtor’s interest in the property was greater than the value claimed as exempt and [then] object to the debtor exempting his or her entire interest in the property after the deadline for objections had passed.” 9 Collier ¶4003.02[1], pp. 4003–4 to 4003–5. Agreeing with the courts below, I would hold that Reilly, by her precise identification of the exempt property, and her specification of $10,718 as both the current market value of her kitchen equipment and the value of the —————— 4 In this prescription was recodified without material change and designated Rule 4003(b)(1). 6 SCHWAB v. REILLY GINSBURG, J., dissenting claimed exemptions, had made her position plain: She claimed as exempt the listed property itself—not the dollar amount, up to $10,718, that sale of the property by Schwab might yield. Because neither Schwab nor any creditor lodged a timely objection, the listed property became exempt, reclaimed as property of the debtor, and therefore outside the bankruptcy estate the trustee is charged to administer. II A Pursuant to Reilly filed a list of property she claimed as exempt from the estate-in-bankruptcy. Her filing left no doubt that her exemption claim encompassed her entire inventory of kitchen equipment. Schwab, in fact, was fully aware of the nature of the claim Reilly asserted. At the meeting of creditors, Reilly reiterated that she sought to keep the equipment in her possession; she would rather discontinue the bankruptcy proceeding, she made plain, than lose her equipment. See n. 3. Bankruptcy Rule 4003(b) requires the trustee, if he contests the debtor’s exemption claim in whole or part, to file an objection within 30 days after the meeting of credi­ tors. Absent a timely objection, “the property claimed as exempt is exempt.” ; Rule 4003. That prescrip­ tion should be dispositive of this case. The Court holds, however, that Schwab was not obliged to file a timely objection to the exemption Reilly claimed, and indeed could auction off her cooking equipment any­ time prior to her discharge. In so holding, the Court de­ crees that no objection need be made to a debtor’s valua­ tion of her property. To support the conclusion that Rule 4003’s timely objec­ tion requirement does not encompass the debtor’s estima­ tion of her property’s market value, the Court homes in on the language of exemption prescriptions that are subject to Cite as: 560 U. S. (2010) 7 GINSBURG, J., dissenting a monetary cap.5 Those prescriptions, the Court points out, “define the ‘property’ a debtor may ‘clai[m] as exempt’ as the debtor’s ‘interest’—up to a specified dollar amount—in the assets described in the category, not as the assets themselves.” Ante, at 10. So long as a debtor values her claimed exemption at a dollar amount below the statutory cap, the Court reasons, the claim is on-its­ face permissible no matter the market value she ascribes to the asset. To evaluate the propriety of Reilly’s declared “interest” in her kitchen equipment, the Court concludes, Schwab was obliged promptly to inspect “three, and only three, entries on Reilly’s Schedule C: the description of the business equipment ; the Code provisions governing the claimed exemptions; and the amounts Reilly listed in the column titled ‘value of claimed exemption.’ ” Ante, at 12–13.6 —————— 5 Section 522(d) catalogs exemptions of two types. Most exemptions— and all of those Reilly invoked—place a monetary limit on the value of the property the debtor may reclaim. See, e.g., (“motor vehicle”); (“household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments”); (“jewelry”). For certain exemptions not at issue here, the Bankruptcy Code authorizes reclamation of the property in full without any cap on value. See, e.g., (“unmatured life insurance contract”); (“[p]rofessionally prescribed health aids”); (“award under a crime victim’s reparation law”). 6 In support of its view that market value is not relevant to determin­ ing the “property claimed as exempt” for purposes of Rule 4003(b)’s timely objection mandate, the Court observes that Schedule C did not require the debtor to list this information until 1991. Ante, at 14–15. Prior to 1991, however, debtors recorded market value on a different schedule. See Interim Fed. Rule Bkrtcy. Proc. Official Form 6, Sched­ ule B–2 (1979) (requiring debtor to list the “[m]arket value of [her] interest [in personal property] without deduction for exemptions claimed”). Trustees assessing the “property claimed as exempt,” therefore, have always been able, from the face of the debtor’s filings, to compare the value of the claimed exemption to the property’s declared market value. See Brief for National Association of Consumer Bank­ ruptcy Attorneys et al. as Amici Curiae 34. 8 SCHWAB v. REILLY GINSBURG, J., dissenting B The Court’s account, however, shuts from sight the vital part played by the fourth entry on Schedule C—current market value—when a capped exemption is claimed. A debtor who estimates a market value below the cap, and lists an identical amount as the value of her claimed ex­ emption, thereby signals that her aim is to keep the listed property in her possession, outside the estate-in­ bankruptcy. In contrast, a debtor who estimates a market value above the cap, and above the value of her claimed exemption, thereby recognizes that she cannot shelter the property itself and that the trustee may seek to sell it for whatever it is worth.7 Schedule C’s final column, in other words, alerts the trustee whether the debtor is claiming a right to retain the listed property itself as her own, a right secured to her if the trustee files no timely objection.8 Because an asset’s market value is key to determining —————— 7 By authorizing exemption of assets that a debtor would want to keep in kind, such as her jewelry and car, but limiting the exemptible value of this property, Congress struck a balance between debtors’ and creditors’ interests: Debtors can reclaim items helpful to their fresh start after bankruptcy, but only if those items are of modest value. Assets of larger worth, however, are subject to liquidation so that creditors may obtain a portion of the item’s value. Cf. In re Price, (“[B]ankruptcy law is bilateral, replete with protections and policy considerations favoring both debtors and creditors.”). 8 The significance of market value is what differentiates capped ex­ emptions from uncapped ones that permit debtors to exempt certain property in kind regardless of its worth. See For uncapped exemptions, the nature of the property the debtor has re­ claimed is clear: If the exemption is valid, the debtor gets the asset in full every time. For capped exemptions, however, market value is a crucial component in determining whether the debtor gets the item itself or a sum of money representing a share of the item’s liquidation value. Reading Bankruptcy Rule 4003(b) to require objections to valuation thus does not, as the Court contends, “elid[e] the distinction” between capped and uncapped exemptions, ante, at 12 (emphasis added), but instead accounts for that distinction. Cite as: 560 U. S. (2010) 9 GINSBURG, J., dissenting the character of the interest the debtor is asserting in that asset, Rule 4003(b) is properly read to require objections to valuation within 30 days, just as the Rule requires timely objections to the debtor’s description of the property, the asserted legal basis for the exemption, and the claimed value of the exemption. See 4 Collier ¶522.05[1], p. 522– 28 (“[T]o evaluate the propriety of the debtor’s claim of exemption,” trustees need the informa­ tion in all four columns of Schedule C; “[market] value” is “essential” to judging whether the claim is proper because “[e]xemption provisions often are limited according to [the property’s] value.”). 9 C Requiring objections to market valuation notably facili­ tates the debtor’s fresh start, and thus best fulfills the prime purpose of the exemption prescriptions. See, e.g., (Bank­ ruptcy provisions “must be construed” in light of policy “to give the bankrupt a fresh start.”). See also Rousey v. —————— 9 Suggesting that this interpretation of Rule 4003(b) “lacks statutory support,” ante, at 13, n. 11, the Court repeatedly emphasizes that the Bankruptcy Code defines the “property claimed as exempt,” to which a trustee must object, as “the debtor’s ‘interest’—up to a specified dollar amount—in the assets described in [capped exemption] categor[ies],” ante, at 10; see, e.g., ante, at 11; ib n. 9; ante, 1, n. 19. But the commonly understood definition of a property “interest” is “[a] legal share in something; all or part of a legal or equitable claim to or right in property. Collectively, the word includes any aggregation of [such] rights.” Black’s Law Dictionary 828 Schwab, therefore, could not comprehend whether Reilly claimed a monetary or an in-kind “interest” in her kitchen equipment without comparing her market valuation of the equipment to the value of her claimed exemp­ tion. See at 8–9. In line with the statutory text, a debtor’s market valuation is an essential factor in determining the nature of the “interest” a debtor lists as exempt. Bankruptcy “forms, rules, treatise excerpts, and policy considerations,” ante, corroborate, rather than conflict with, this reading of the Code. 10 ; United ; ante, at 19. The 30-day deadline for objections, this Court has recognized, “prompt[s] parties to act and produce[s] finality.” As “there can be no possibility of further objection to the exemptions” after this period elapses, the principal bankruptcy treatise observes, “if the debtor is not yet in possession of the property claimed as exempt, it should be turned over to [her] at this time to effectuate fully the fresh start purpose of the exemptions.” 9 Collier ¶4003.03[3], p. 4003–13. With the benefit of closure, and the certainty it brings, the debtor may, at the end of the 30 days, plan for her future secure in the knowledge that the possessions she has exempted in their entirety are hers to keep. See 534 F.3d, at 180. If she has reclaimed her car from the estate, for example, she may accept a job not within walking distance. See Brief for National Association of Consumer Bankruptcy Attorneys et al. as Amici Curiae 2–3 (herein­ after NACBA Brief). Or if she has exempted her kitchen equipment, she may launch a new catering venture. See App. 138a (Reilly “wishe[d] to continue in restaurant and catering as her occupation” postbankruptcy.). By permitting trustees to challenge a debtor’s valuation of exempted property anytime before discharge, the Court casts a cloud of uncertainty over the debtor’s use of assets reclaimed in full. If the trustee gains a different opinion of an item’s value months, even years, after the debtor has filed her bankruptcy petition,10 he may seek to repossess the asset, auction it off, and hand the debtor a check for —————— 10 Schwab states that “[c]ases in which there are assets to administer can take ‘one to four years’ to complete.” Brief for Petitioner 32 (quoting Dept. of Justice, U. S. Trustee Program, Preliminary Report on Chapter 7 Asset Cases 1994 to p. 7 (June 2001)). Cite as: 560 U. S. (2010) 11 GINSBURG, J., dissenting the dollar amount of her claimed exemption.11 With this threat looming until discharge, “[h]ow can debtors rea­ sonably be expected to restructure their affairs”? NACBA Brief 25. See In re Polis, (Posner, J.) (“If the assets sought to be exempted by the debtor were not valued at a date early in the bankruptcy proceeding, neither the debtor nor the creditors would know who had the right to them.”). III The Court and Schwab raise three concerns about read­ ing Rule 4003 to require timely objection to the debtor’s estimate of an exempt asset’s market value: Would trus­ tees face an untoward administrative burden? Would trustees lack fair notice of the need to object? And would debtors be tempted to undervalue their property in an effort to avoid the monetary cap on exemptions? In my judgment, all three questions should be answered no. A The Court suggests that requiring timely objections to a debtor’s valuation of exempt property would saddle trus­ tees with an unmanageable load. See ante, at 18 (declin­ ing to “expand the universe of information an inter­ ested party must consider in evaluating the validity of a claimed exemption”). See also Brief for Petitioner 32–33; Brief for United States as Amicus Curiae 24.12 But trus­ —————— 11 Money generated by liquidation of an asset will often be of less utility to a debtor, who will have to pay more to replace the item. See H. R. Rep. No. 95–595, p. 127 (1977) (noting that “household goods have little resale value” but “replacement costs of the goods are generally high”). 12 This concern is questionable in light of the prevailing practice, for, as earlier noted, valuation objections are the most common Rule 4003(b) challenge. See By lopping off valuation disagree­ ments from the timely objection requirement, see, e.g., ante, at 10–11, n. 8, the Court so severely shrinks the Rule’s realm that this question 12 SCHWAB v. REILLY GINSBURG, J., dissenting tees, sooner or later, must attempt to ascertain the market value of exempted assets. They must do so to determine whether sale of the items would likely produce surplus proceeds for the estate above the value of the claimed exemption, see the only question, then, is when this market valuation must occur—(1) within 30 days or (2) at any time before discharge? Removing valuation from Rule 4003’s governance thus does little to reduce the labors trustees must undertake. The 30-day objection period, I note, does not impose on trustees any additional duty, but rather guides the exer­ cise of existing responsibilities; under Rule 4003(b), a trustee must rank evaluation of the debtor’s exemptions as a priority item in his superintendence of the estate.13 And if the trustee entertains any doubt about the accuracy of a debtor’s estimation of market value, the procedure for interposing objections is hardly arduous. The trustee need only file with the court a simple declaration stating that an item’s value exceeds the amount listed by the debtor.14 —————— arises: Why are trustees granted a full 30 days to lodge objections? Under the Court’s reading of the Rule, trustees need only compare a debtor’s Schedule C to the text of the exemption prescriptions to assess an exemption claim’s facial validity, with no further investigation necessary. That comparison should take no more than minutes, surely not a month. 13 Trustees, it bears noting, historically had valuation duties far more onerous than they have today. Rule 4003’s predecessor required trustees in the first instance, rather than debtors, to estimate the market value of property claimed as exempt. See Rule 403(b) (1975). Trustees had to provide this valuation to the court within 15 days of their appointment. See 14 The leading bankruptcy treatise supplies an illustrative valuation objection: “[Name of Trustee], the duly qualified and acting trustee of the estate of the debtor, would show the court the following: “1. The debtor is not entitled under [the automobile exemption] to an interest of more than $3,225 in an automobile. The automobile claimed by debtor as exempt has a value substantially greater than $3,225. Cite as: 560 U. S. (2010) 13 GINSBURG, J., dissenting If the trustee needs more than 30 days to assess market value, moreover, the time period is eminently extendable. Rule 4003(b) prescribes that a trustee may, for cause, ask the court for an extension of the objection period. Alterna­ tively, the trustee can postpone the conclusion of the meeting of creditors, from which the 30-day clock runs, simply by adjourning the meeting to a future date. Rule 2003(e). A trustee also may examine the debtor under oath at the creditors’ meeting, Rule 2003(b)(1); if he gath­ ers information impugning her exemption claims, he may ask the bankruptcy court to hold a hearing to determine valuation issues, Rule 4003(c). See Taylor, 503 U.S., at (“If [the trustee] did not know the value of [a claimed exemption], he could have sought a hearing on the issue or asked the Bankruptcy Court for an extension of time to object.”). See also NACBA Brief 19, 21–23 (listing ways trustees may enlarge the limitations period for objections). Trustees, in sum, have ample mechanisms at their disposal to gain the time and information they need to lodge objections to valuation. B On affording trustees fair notice of the need to object, the Court emphasizes that a debtor must list her claimed exemptions “in a manner that makes the scope of the exemption clear.” Ante, 0. If a debtor wishes to ex­ empt property in its entirety, for example, the Court coun­ sels her to write “full fair market value (FMV)” or “100% of FMV” in Schedule C’s value-of-claimed-exemption column. —————— “WHEREFORE Trustee prays that the court determine that debtor is not entitled to the exemptio[n] claimed by him, that the [property claimed as exempt] which [is] disallowed be turned over to the trustee herein as property of the estate, and that he have such other and further relief as is just.” 13A Collier p. CS 17–22 (rev. 15th ed. 2009). See also Rules 9013–9014. 14 SCHWAB v. REILLY GINSBURG, J., dissenting Ante, 0–21 (internal quotation marks omitted). See also Tr. of Oral Arg. 6–7, 26–29; In re Hyman, 967 F.2d 1316, 1319–1320, n. 6 (Trustees must be able to assess the validity of an exemption from the face of a debtor’s schedules.). Our decision in the Court notes, is instructive. In Taylor, the debtor recorded the term “$ unknown” as the value of a claimed exemption, which, the Court observes, raised a “warning fla[g]” because the value “was not plainly within the limits the Code allows.” Ante, at 17. True, a debtor’s schedules must give notice sufficient to cue the trustee that an objection may be in order. But a “warning flag” is in the eye of the beholder: If a debtor lists identical amounts as the market value of exempted property and the value of her claimed exemption, she has, on the face of her schedules, reclaimed the entire asset just as surely as if she had recorded “100% of FMV” in Sched­ ule C’s value-of-claimed-exemption column. See Brief for Respondent 36. See also 9 Collier ¶4003.03[3], p. 4003–14 (“Only when a debtor’s schedules specifically value the debtor’s interest in the property at an amount higher than the amount claimed as exempt can it be argued that a part of the debtor’s interest in property has not been ex­ empted.” (emphasis added)). In this case, by specifying $10,718 as both the current market value of her kitchen equipment and the value of her claimed exemptions, Reilly gave notice that she had reclaimed the listed property in full. See –6. To borrow the Court’s terminology, Reilly waved a “warn­ ing flag” that should have prompted Schwab to object if he believed the equipment could not be reclaimed in its en­ tirety because its value exceeded the statutory cap. 534 F.3d, at 179. See 4 Collier ¶522.05[2][b], p. 522–33 (“Nor­ mally, if a debtor lists an asset as having a particular value in the schedules and then exempts that value, the schedules should be read as a claim of exemption for the Cite as: 560 U. S. (2010) 15 GINSBURG, J., dissenting entire asset, to which the trustee should object if the trustee believes the asset has been undervalued.”). Training its attention on trustees’ needs, moreover, the Court overlooks the debtor’s plight. As just noted, the Court counsels debtors wishing to exempt an asset in full to write “100% of FMV” or “full FMV” in the value-of­ claimed-exemption column. But a debtor following the instructions that accompany Schedule C would consider such a response nonsensical, for those instructions direct her to “state the dollar value of the claimed exemption in the space provided.” Fed. Rule Bkrtcy. Proc. Official Form 6, Schedule C, Instruction 5 (1991) (emphasis added). Chapter 7 debtors are often unrepresented. How are they to know they must ignore Schedule C’s instructions and employ the “warning flag” described today by the Court, if they wish to trigger the trustee’s obligation to object to their market valuation in a timely fashion? See In re Anderson, (Bkrtcy. App. Panel CA6 2007).15 C Schwab finally urges that requiring timely objections to a debtor’s market-value estimations “would give debtors a perverse incentive to game the system by undervaluing their assets.” Brief for Petitioner 35; see Brief for United States as Amicus Curiae 27. The Court rejected an argu­ ment along these lines in Taylor, and should follow suit here. Multiple measures, Taylor explained, discourage undervaluation of property claimed as exempt. 503 U. S., —————— 15 Trustees, in contrast, are repeat players in bankruptcy court; if this Court required timely objections to market valuation, trustees would, no doubt, modify their practices in response. See 1 Collier ¶8.06[1][c][ii], p. 8–75 (rev. 15th ed. 2009) ], trustees rarely fail to closely scrutinize vague exemption claims.”). Moreover, because valuation objections are already the norm, see and 11, n. 12, few trustees would have to adjust their behavior. 16 SCHWAB v. REILLY GINSBURG, J., dissenting at Among those measures: The debtor files her exemption claim under penalty of perjury. See Rule 1008. She risks judicial sanction for signing documents not well grounded in fact. Rule 9011. And proof of fraud subjects her to criminal prosecution, 18 U.S. C. extends the limitations period for filing objections to Schedule C, Rule 4003(b); and authorizes denial of dis­ charge, 11 U.S. C. See also NACBA Brief 29–33 (detailing additional checks against inadequate or inaccurate filings). Furthermore, the objection procedure is itself a safe­ guard against debtor undervaluation. If a trustee sus­ pects that the market value of property claimed as exempt may exceed a debtor’s estimate, he should do just what Rule 4003(b) prescribes: “[F]ile an objection within 30 days after the meeting of creditors.” * * * For the reasons stated, I would affirm the Third Cir­ cuit’s judgment. Cite as: 560 U. S. (2010) 17 Appendix to opiniondissenting J. GINSBURG, J., of GINSBURG APPENDIX 18 SCHWAB v. REILLY Appendix to opiniondissenting J. GINSBURG, J., of GINSBURG Cite as: 560 U. S. (2010) 19 Appendix to opiniondissenting J. GINSBURG, J., of GINSBURG 20 SCHWAB v. REILLY Appendix to opiniondissenting J. GINSBURG, J., of GINSBURG Cite as: 560 U. S. (2010) 21 Appendix to opiniondissenting J. GINSBURG, J., of GINSBURG 22 SCHWAB v. REILLY Appendix to opiniondissenting J. GINSBURG, J., of GINSBUR

per_curiam

per_curiam

Brosseau v. Haugen

https://www.courtlistener.com/opinion/137736/brosseau-v-haugen/

https://www.courtlistener.com/api/rest/v3/clusters/137736/

2004-012

Officer Rochelle Brosseau, a member of the Puyallup, Washington, Police Department, shot Kenneth Haugen in the back as he attempted to flee from law enforcement authorities in his vehicle. Haugen subsequently filed this action in the United States District Court for the Western District of *195 Washington pursuant to Rev. Stat. § 1979, 42 U.S. C. § 1983. He alleged that the shot fired by Brosseau constituted excessive force and violated his federal constitutional rights.[1] The District Court granted summary judgment to Brosseau after finding she was entitled to qualified immunity. The Court of Appeals for the Ninth Circuit reversed. 339 F.3d 857 (2003). Following the two-step process set out in Saucier v. Katz, 533 U.S. 194 (2001), the Court of Appeals found, first, that Brosseau had violated Haugen's Fourth Amendment right to be free from excessive force and, second, that the right violated was clearly established and thus Brosseau was not entitled to qualified immunity. Brosseau then petitioned for writ of certiorari, requesting that we review both of the Court of Appeals' determinations. We grant the petition on the second, qualified immunity question and reverse. The material facts, construed in a light most favorable to Haugen, are as follows.[2] On the day before the fracas, Glen Tamburello went to the police station and reported to Brosseau that Haugen, a former crime partner of his, had stolen tools from his shop. Brosseau later learned that there was a felony no-bail warrant out for Haugen's arrest on drug and other offenses. The next morning, Haugen was spray painting his Jeep Cherokee in his mother's driveway. Tamburello learned of Haugen's whereabouts, and he and cohort Matt Atwood drove a pickup truck to Haugen's mother's house to pay Haugen a visit. A fight ensued, which was witnessed by a neighbor who called 911. Brosseau heard a report that the men were fighting in Haugen's mother's yard and responded. When she arrived, Tamburello and Atwood were attempting to get Haugen into *196 Tamburello's pickup. Brosseau's arrival created a distraction, which provided Haugen the opportunity to get away. Haugen ran through his mother's yard and hid in the neighborhood. Brosseau requested assistance, and, shortly thereafter, two officers arrived with a K-9 to help track Haugen down. During the search, which lasted about 30 to 45 minutes, officers instructed Tamburello and Atwood to remain in Tamburello's pickup. They instructed Deanna Nocera, Haugen's girlfriend who was also present with her 3-year-old daughter, to remain in her small car with her daughter. Tamburello's pickup was parked in the street in front of the driveway; Nocera's small car was parked in the driveway in front of and facing the Jeep; and the Jeep was in the driveway facing Nocera's car and angled somewhat to the left. The Jeep was parked about 4 feet away from Nocera's car and 20 to 30 feet away from Tamburello's pickup. An officer radioed from down the street that a neighbor had seen a man in her backyard. Brosseau ran in that direction, and Haugen appeared. He ran past the front of his mother's house and then turned and ran into the driveway. With Brosseau still in pursuit, he jumped into the driver's side of the Jeep and closed and locked the door. Brosseau believed that he was running to the Jeep to retrieve a weapon. Brosseau arrived at the Jeep, pointed her gun at Haugen, and ordered him to get out of the vehicle. Haugen ignored her command and continued to look for the keys so he could get the Jeep started. Brosseau repeated her commands and hit the driver's side window several times with her handgun, which failed to deter Haugen. On the third or fourth try, the window shattered. Brosseau unsuccessfully attempted to grab the keys and struck Haugen on the head with the barrel and butt of her gun. Haugen, still undeterred, succeeded in starting the Jeep. As the Jeep started or shortly after it began to move, Brosseau jumped back and to the left. She fired one shot through the rear driver's side window *197 at a forward angle, hitting Haugen in the back. She later explained that she shot Haugen because she was "`fearful for the other officers on foot who [she] believed were in the immediate area, [and] for the occupied vehicles in [Haugen's] path and for any other citizens who might be in the area.'" 339 F.3d, at 865. Despite being hit, Haugen, in his words, "`st[ood] on the gas'"; navigated the "`small, tight space'" to avoid the other vehicles; swerved across the neighbor's lawn; and continued down the street. Id., at 882. After about a half block, Haugen realized that he had been shot and brought the Jeep to a halt. He suffered a collapsed lung and was airlifted to a hospital. He survived the shooting and subsequently pleaded guilty to the felony of "eluding." Wash. Rev. Code § 46.61.024 (1994). By so pleading, he admitted that he drove his Jeep in a manner indicating "a wanton or wilful disregard for the lives . . . of others." Ibid. He subsequently brought this § 1983 action against Brosseau. * * * When confronted with a claim of qualified immunity, a court must ask first the following question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U. S., at 201. As the Court of Appeals recognized, the constitutional question in this case is governed by the principles enunciated in Tennessee v. Garner, 471 U.S. 1 (1985), and Graham v. Connor, 490 U.S. 386 (1989). These cases establish that claims of excessive force are to be judged under the Fourth Amendment's "`objective reasonableness'" standard. Id., at 388. Specifically with regard to deadly force, we explained in Garner that it is unreasonable for an officer to "seize an unarmed, nondangerous suspect by shooting him dead." 471 U.S., at 11. But "[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical *198 harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force." Ibid. We express no view as to the correctness of the Court of Appeals' decision on the constitutional question itself. We believe that, however that question is decided, the Court of Appeals was wrong on the issue of qualified immunity.[3] Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Saucier v. Katz, 533 U.S., at 206 (qualified immunity operates "to protect officers from the sometimes `hazy border between excessive and acceptable force'"). Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation. It is important to emphasize that this inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Id., at 201. As we previously said in this very context: "[T]here is no doubt that Graham v. Connor, supra, clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, we emphasized in Anderson [v. Creighton] `that the right the official is alleged to have violated must have been "clearly established" in *199 a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.' 483 U.S. [635,] 640 [(1987)]. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id., at 201-202. The Court of Appeals acknowledged this statement of law, but then proceeded to find fair warning in the general tests set out in Graham and Garner. 339 F.3d, at 873-874. In so doing, it was mistaken. Graham and Garner, following the lead of the Fourth Amendment's text, are cast at a high level of generality. See Graham v. Connor, supra, at 396 ("`[T]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application'"). Of course, in an obvious case, these standards can "clearly establish" the answer, even without a body of relevant case law. See Hope v. Pelzer, 536 U.S. 730, 738 (2002) (noting in a case where the Eighth Amendment violation was "obvious" that there need not be a materially similar case for the right to be clearly established). See also Pace v. Capobianco, 283 F.3d 1275, 1283 (CA11 2002) (explaining in a Fourth Amendment case involving an officer shooting a fleeing suspect in a vehicle that, "when we look at decisions such as Garner and Graham, we see some tests to guide us in determining the law in many different kinds of circumstances; but we do not see the kind of clear law (clear answers) that would apply" to the situation at hand). The present case is far from the obvious one where Graham and Garner alone offer a basis for decision. We therefore turn to ask whether, at the time of Brosseau's actions, it was "`"clearly established"'" in this more "`particularized'" sense that she was violating Haugen's Fourth Amendment right. Saucier v. Katz, 533 U.S., at *200 202. The parties point us to only a handful of cases relevant to the "situation [Brosseau] confronted": whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.[4]Ibid. Specifically, Brosseau points us to Cole v. Bone, 993 F.2d 1328 (CA8 1993), and Smith v. Freland, 954 F.2d 343 (CA6 1992). In these cases, the courts found no Fourth Amendment violation when an officer shot a fleeing suspect who presented a risk to others. Cole v. Bone, supra, at 1333 (holding the officer "had probable cause to believe that the truck posed an imminent threat of serious physical harm to innocent motorists as well as to the officers themselves"); Smith v. Freland, 954 F. 2d, at 347 (noting "a car can be a deadly weapon" and holding the officer's decision to stop the car from possibly injuring others was reasonable). Smith is closer to this case. There, the officer and suspect engaged in a car chase, which appeared to be at an end when the officer cornered the suspect at the back of a dead-end residential street. The suspect, however, freed his car and began speeding down the street. At this point, the officer fired a shot, which killed the suspect. The court held the officer's decision was reasonable and thus did not violate the Fourth Amendment. It noted that the suspect, like Haugen here, "had proven he would do almost anything to avoid capture" and that he posed a major threat to, among others, the officers at the end of the street. Ibid. *201 Haugen points us to Estate of Starks v. Enyart, 5 F.3d 230 (CA7 1993), where the court found summary judgment inappropriate on a Fourth Amendment claim involving a fleeing suspect. There, the court concluded that the threat created by the fleeing suspect's failure to brake when an officer suddenly stepped in front of his just-started car was not a sufficiently grave threat to justify the use of deadly force. Id., at 234. These three cases taken together undoubtedly show that this area is one in which the result depends very much on the facts of each case. None of them squarely governs the case here; they do suggest that Brosseau's actions fell in the "`hazy border between excessive and acceptable force.'" Saucier v. Katz, supra, at 206. The cases by no means "clearly establish" that Brosseau's conduct violated the Fourth Amendment. The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Officer Rochelle Brosseau, a member of the Puyallup, Washington, Police Department, shot Kenneth Haugen in the back as he attempted to flee from law enforcement authorities in his vehicle. Haugen subsequently filed this action in the United States District Court for the Western District of *195 Washington pursuant to Rev. Stat. 1979, 42 U.S. C. 1983. He alleged that the shot fired by Brosseau constituted excessive force and violated his federal constitutional rights.[1] The District Court granted summary judgment to Brosseau after finding she was entitled to qualified immunity. The Court of Appeals for the Ninth Circuit reversed. Following the two-step process set out in the Court of Appeals found, first, that Brosseau had violated Haugen's Fourth Amendment right to be free from excessive force and, second, that the right violated was clearly established and thus Brosseau was not entitled to qualified immunity. Brosseau then petitioned for writ of certiorari, requesting that we review both of the Court of Appeals' determinations. We grant the petition on the second, qualified immunity question and reverse. The material facts, construed in a light most favorable to Haugen, are as follows.[2] On the day before the fracas, Glen Tamburello went to the police station and reported to Brosseau that Haugen, a former crime partner of his, had stolen tools from his shop. Brosseau later learned that there was a felony no-bail warrant out for Haugen's arrest on drug and other offenses. The next morning, Haugen was spray painting his Jeep Cherokee in his mother's driveway. Tamburello learned of Haugen's whereabouts, and he and cohort Matt Atwood drove a pickup truck to Haugen's mother's house to pay Haugen a visit. A fight ensued, which was witnessed by a neighbor who called 911. Brosseau heard a report that the men were fighting in Haugen's mother's yard and responded. When she arrived, Tamburello and Atwood were attempting to get Haugen into *196 Tamburello's pickup. Brosseau's arrival created a distraction, which provided Haugen the opportunity to get away. Haugen ran through his mother's yard and hid in the neighborhood. Brosseau requested assistance, and, shortly thereafter, two officers arrived with a K-9 to help track Haugen down. During the search, which lasted about 30 to 45 minutes, officers instructed Tamburello and Atwood to remain in Tamburello's pickup. They instructed Deanna Nocera, Haugen's girlfriend who was also present with her 3-year-old daughter, to remain in her small car with her daughter. Tamburello's pickup was parked in the street in front of the driveway; Nocera's small car was parked in the driveway in front of and facing the Jeep; and the Jeep was in the driveway facing Nocera's car and angled somewhat to the left. The Jeep was parked about 4 feet away from Nocera's car and 20 to 30 feet away from Tamburello's pickup. An officer radioed from down the street that a neighbor had seen a man in her backyard. Brosseau ran in that direction, and Haugen appeared. He ran past the front of his mother's house and then turned and ran into the driveway. With Brosseau still in pursuit, he jumped into the driver's side of the Jeep and closed and locked the door. Brosseau believed that he was running to the Jeep to retrieve a weapon. Brosseau arrived at the Jeep, pointed her gun at Haugen, and ordered him to get out of the vehicle. Haugen ignored her command and continued to look for the keys so he could get the Jeep started. Brosseau repeated her commands and hit the driver's side window several times with her handgun, which failed to deter Haugen. On the third or fourth try, the window shattered. Brosseau unsuccessfully attempted to grab the keys and struck Haugen on the head with the barrel and butt of her gun. Haugen, still undeterred, succeeded in starting the Jeep. As the Jeep started or shortly after it began to move, Brosseau jumped back and to the left. She fired one shot through the rear driver's side window *197 at a forward angle, hitting Haugen in the back. She later explained that she shot Haugen because she was "`fearful for the other officers on foot who [she] believed were in the immediate area, [and] for the occupied vehicles in [Haugen's] path and for any other citizens who might be in the area.'" Despite being hit, Haugen, in his words, "`st[ood] on the gas'"; navigated the "`small, tight space'" to avoid the other vehicles; swerved across the neighbor's lawn; and continued down the street. After about a half block, Haugen realized that he had been shot and brought the Jeep to a halt. He suffered a collapsed lung and was airlifted to a hospital. He survived the shooting and subsequently pleaded guilty to the felony of "eluding." Wash. Rev. Code 46.61.024 (1994). By so pleading, he admitted that he drove his Jeep in a manner indicating "a wanton or wilful disregard for the lives of others." He subsequently brought this 1983 action against Brosseau. * * * When confronted with a claim of qualified immunity, a court must ask first the following question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" As the Court of Appeals recognized, the constitutional question in this case is governed by the principles enunciated in and These cases establish that claims of excessive force are to be judged under the Fourth Amendment's "`objective reasonableness'" standard. Specifically with regard to deadly force, we explained in Garner that it is unreasonable for an officer to "seize an unarmed, nondangerous suspect by shooting him dead." But "[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical *198 harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force." We express no view as to the correctness of the Court of Appeals' decision on the constitutional question itself. We believe that, however that question is decided, the Court of Appeals was wrong on the issue of qualified immunity.[3] Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation. It is important to emphasize that this inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." As we previously said in this very context: "[T]here is no doubt that clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, we emphasized in Anderson [v. Creighton] `that the right the official is alleged to have violated must have been "clearly established" in *199 a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.' 483 U.S. [635,] 640 [(1987)]. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." -202. The Court of Appeals acknowledged this statement of law, but then proceeded to find fair warning in the general tests set out in Graham and -874. In so doing, it was mistaken. Graham and Garner, following the lead of the Fourth Amendment's text, are cast at a high level of generality. See Of course, in an obvious case, these standards can "clearly establish" the answer, even without a body of relevant case law. See See also (explaining in a Fourth Amendment case involving an officer shooting a fleeing suspect in a vehicle that, "when we look at decisions such as Garner and Graham, we see some tests to guide us in determining the law in many different kinds of circumstances; but we do not see the kind of clear law (clear answers) that would apply" to the situation at hand). The present case is far from the obvious one where Graham and Garner alone offer a basis for decision. We therefore turn to ask whether, at the time of Brosseau's actions, it was "`"clearly established"'" in this more "`particularized'" sense that she was violating Haugen's Fourth Amendment right. 533 U.S., at *200 202. The parties point us to only a handful of cases relevant to the "situation [Brosseau] confronted": whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.[4] Specifically, Brosseau points us to and In these cases, the courts found no Fourth Amendment violation when an officer shot a fleeing suspect who presented a risk to others. ; 954 F. 2d, at 347 (noting "a car can be a deadly weapon" and holding the officer's decision to stop the car from possibly injuring others was reasonable). Smith is closer to this case. There, the officer and suspect engaged in a car chase, which appeared to be at an end when the officer cornered the suspect at the back of a dead-end residential street. The suspect, however, freed his car and began speeding down the street. At this point, the officer fired a shot, which killed the suspect. The court held the officer's decision was reasonable and thus did not violate the Fourth Amendment. It noted that the suspect, like Haugen here, "had proven he would do almost anything to avoid capture" and that he posed a major threat to, among others, the officers at the end of the street. *201 Haugen points us to Estate of where the court found summary judgment inappropriate on a Fourth Amendment claim involving a fleeing suspect. There, the court concluded that the threat created by the fleeing suspect's failure to brake when an officer suddenly stepped in front of his just-started car was not a sufficiently grave threat to justify the use of deadly force. These three cases taken together undoubtedly show that this area is one in which the result depends very much on the facts of each case. None of them squarely governs the case here; they do suggest that Brosseau's actions fell in the "`hazy border between excessive and acceptable force.'" The cases by no means "clearly establish" that Brosseau's conduct violated the Fourth Amendment. The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice White

majority

United States v. Havens

https://www.courtlistener.com/opinion/110267/united-states-v-havens/

https://www.courtlistener.com/api/rest/v3/clusters/110267/

1979-094

The petition for certiorari filed by the United States in this criminal case presented a single question: whether evidence suppressed as the fruit of an unlawful search and seizure may nevertheless be used to impeach a defendant's false trial testimony, given in response to proper cross-examination, where the evidence does not squarely contradict the defendant's testimony on direct examination. We issued the writ, 444 U.S. 962 (1979). I Respondent was convicted of importing, conspiring to import, and intentionally possessing a controlled substance, cocaine. According to the evidence at his trial, Havens and John McLeroth, both attorneys from Ft. Wayne, Ind., boarded a flight from Lima, Peru, to Miami, Fla. In Miami, a customs officer searched McLeroth and found cocaine sewed into makeshift pockets in a T-shirt he was wearing under his outer *622 clothing. McLeroth implicated respondent, who had previously cleared customs and who was then arrested. His luggage was seized and searched without a warrant. The officers found no drugs but seized a T-shirt from which pieces had been cut that matched the pieces that had been sewn to McLeroth's T-shirt. The T-shirt and other evidence seized in the course of the search were suppressed on motion prior to trial. Both men were charged in a three-count indictment, but McLeroth pleaded guilty to one count and testified against Havens. Among other things, he asserted that Havens had supplied him with the altered T-shirt and had sewed the makeshift pockets shut. Havens took the stand in his own defense and denied involvement in smuggling cocaine. His direct testimony included the following: "Q. And you heard Mr. McLeroth testify earlier as to something to the effect that this material was taped or draped around his body and so on, you heard that testimony? "A. Yes, I did. "Q. Did you ever engage in that kind of activity with Mr. McLeroth and Augusto or Mr. McLeroth and anyone else on that fourth visit to Lima, Peru? "A. I did not." App. 34. On cross-examination, Havens testified as follows: "Q. Now, on direct examination, sir, you testified that on the fourth trip you had absolutely nothing to do with the wrapping of any bandages or tee shirts or anything involving Mr. McLeroth; is that correct? "A. I don't—I said I had nothing to do with any wrapping or bandages or anything, yes. I had nothing to do with anything with McLeroth in connection with this cocaine matter. ..... "Q. And your testimony is that you had nothing to *623 do with the sewing of the cotton swatches to make pockets on that tee shirt? "A. Absolutely not. "Q. Sir, when you came through Customs, the Miami International Airport, on October 2, 1977, did you have in your suitcase Size 38-40 medium tee shirts?" Id., at 35. An objection to the latter question was overruled and questioning continued: "Q. On that day, sir, did you have in your luggage a Size 38-40 medium man's tee shirt with swatches of clothing missing from the tail of that tee shirt? "A. Not to my knowledge. ..... "Q. Mr. Havens, I'm going to hand you what is Government's Exhibit 9 for identification and ask you if this tee shirt was in your luggage on October 2nd, 1975 [sic]? "A. Not to my knowledge. No." Id., at 46. Respondent Havens also denied having told a Government agent that the T-shirts found in his luggage belonged to McLeroth. On rebuttal, a Government agent testified that Exhibit 9 had been found in respondent's suitcase and that Havens claimed the T-shirts found in his bag, including Exhibit 9, belonged to McLeroth. Over objection, the T-shirt was then admitted into evidence, the jury being instructed that the rebuttal evidence should be considered only for impeaching Havens' credibility. The Court of Appeals reversed, relying on Agnello v. United States, 269 U.S. 20 (1925), and Walder v. United States, 347 U.S. 62 (1954). The court held that illegally seized evidence may be used for impeachment only if the evidence contradicts a particular statement made by a defendant in the course of his direct examination. 592 F.2d 848 (CA5 1979). We reverse. *624 II In Agnello v. United States, supra, a defendant charged with conspiracy to sell a package of cocaine testified on direct examination that he had possessed the packages involved but did not know what was in them. On cross-examination, he denied ever having seen narcotics and ever having seen a can of cocaine which was exhibited to him and which had been illegally seized from his apartment. The can of cocaine was permitted into evidence on rebuttal. Agnello was convicted and his conviction was affirmed by the Court of Appeals. This Court reversed, holding that the Fourth Amendment required exclusion of the evidence. The Court pointed out that "[i]n his direct examination, Agnello was not asked and did not testify concerning the can of cocaine" and "did nothing to waive his constitutional protection or to justify cross-examination in respect of the evidence claimed to have been obtained by the search." 269 U.S., at 35. The Court also said, quoting from Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920), that the exclusionary rule not only commands that illegally seized evidence "shall not be used before the Court but that it shall not be used at all." 269 U.S., at 35. The latter statement has been rejected in our later cases, however, and Agnello otherwise limited. In Walder v. United States, supra, the use of evidence obtained in an illegal search and inadmissible in the Government's case in chief was admitted to impeach the direct testimony of the defendant. This Court approved, saying that it would pervert the rule of Weeks v. United States, 232 U.S. 383 (1914), to hold otherwise. Similarly, in Harris v. New York, 401 U.S. 222 (1971), and Oregon v. Hass, 420 U.S. 714 (1975), statements taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and unusable by the prosecution as part of its own case, were held admissible to impeach statements made by the defendant in the course of his direct testimony. Harris *625 also made clear that the permitted impeachment by otherwise inadmissible evidence is not limited to collateral matters. 401 U.S., at 225. These cases were understood by the Court of Appeals to hold that tainted evidence, inadmissible when offered as part of the Government's main case, may not be used as rebuttal evidence to impeach a defendant's credibility unless the evidence is offered to contradict a particular statement made by a defendant during his direct examination; a statement made for the first time on cross-examination may not be so impeached. This approach required the exclusion of the T-shirt taken from Havens' luggage because, as the Court of Appeals read the record, Havens was asked nothing on his direct testimony about the incriminating T-shirt or about the contents of his luggage; the testimony about the T-shirt, which the Government desired to impeach first appeared on cross-examination, not on direct. It is true that Agnello involved the impeachment of testimony first brought out on cross-examination and that in Walder, Harris, and Hass, the testimony impeached was given by the defendant while testifying on direct examination. In our view, however, a flat rule permitting only statements on direct examination to be impeached misapprehends the underlying rationale of Walder, Harris, and Hass. These cases repudiated the statement in Agnello that no use at all may be made of illegally obtained evidence. Furthermore, in Walder, the Court said that in Agnello, the Government had "smuggled in" the impeaching opportunity in the course of cross-examination. The Court also relied on the statement in Agnello, supra, at 35, that Agnello had done nothing "to justify cross-examination in respect of the evidence claimed to have been obtained by the search." The implication of Walder is that Agnello was a case of cross-examination having too tenuous a connection with any subject opened upon direct examination to permit impeachment by tainted evidence. *626 In reversing the District Court in the case before us, the Court of Appeals did not stop to consider how closely the cross-examination about the T-shirt and the luggage was connected with matters gone into in direct examination. If these questions would have been suggested to a reasonably competent cross-examiner by Havens' direct testimony, they were not "smuggled in"; and forbidding the Government to impeach the answers to these questions by using contrary and reliable evidence in its possession fails to take account of our cases, particularly Harris and Hass. In both cases, the Court stressed the importance of arriving at the truth in criminal trials, as well as the defendant's obligation to speak the truth in response to proper questions. We rejected the notion that the defendant's constitutional shield against having illegally seized evidence used against him could be "perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." 401 U.S., at 226. See also Oregon v. Hass, supra, at 722, 723. Both cases also held that the deterrent function of the rules excluding unconstitutionally obtained evidence is sufficiently served by denying its use to the government on its direct case. It was only a "speculative possibility" that also making it unavailable to the government for otherwise proper impeachment would contribute substantially in this respect. Harris v. New York, supra, at 225. Oregon v. Hass, supra, at 723. Neither Harris nor Hass involved the impeachment of assertedly false testimony first given on cross-examination, but the reasoning of those cases controls this one. There is no gainsaying that arriving at the truth is a fundamental goal of our legal system. Oregon v. Hass, supra, at 722. We have repeatedly insisted that when defendants testify, they must testify truthfully or suffer the consequences. This is true even though a defendant is compelled to testify against his will. Bryson v. United States, 396 U.S. 64, 72 (1969); United States v. Knox, 396 U.S. 77 (1969). It is essential, *627 therefore, to the proper functioning of the adversary system that when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth. The defendant's obligation to testify truthfully is fully binding on him when he is cross-examined. His privilege against self-incrimination does not shield him from proper questioning. Brown v. United States, 356 U.S. 148, 154-155 (1958). He would unquestionably be subject to a perjury prosecution if he knowingly lies on cross-examination. Cf. United States v. Apfelbaum, 445 U.S. 115 (1980); Bryson v. United States, supra; United States v. Knox, supra; United States v. Wong, 431 U.S. 174 (1977). In terms of impeaching a defendant's seemingly false statements with his prior inconsistent utterances or with other reliable evidence available to the government, we see no difference of constitutional magnitude between the defendant's statements on direct examination and his answers to questions put to him on cross-examination that are plainly within the scope of the defendant's direct examination. Without this opportunity, the normal function of cross-examination would be severely impeded. We also think that the policies of the exclusionary rule no more bar impeachment here than they did in Walder, Harris, and Hass. In those cases, the ends of the exclusionary rules were thought adequately implemented by denying the government the use of the challenged evidence to make out its case in chief. The incremental furthering of those ends by forbidding impeachment of the defendant who testifies was deemed insufficient to permit or require that false testimony go unchallenged, with the resulting impairment of the integrity of the factfinding goals of the criminal trial. We reaffirm this assessment of the competing interests, and hold that a defendant's statements made in response to proper cross-examination reasonably suggested by the defendant's direct examination are subject to otherwise proper impeachment *628 by the government, albeit by evidence that has been illegally obtained and that is inadmissible on the government's direct case, or otherwise, as substantive evidence of guilt. In arriving at its judgment, the Court of Appeals noted that in response to defense counsel's objection to the impeaching evidence on the ground that the matter had not been "covered on direct," the trial court had remarked that "[i]t does not have to be covered on direct." The Court of Appeals thought this was error since in its view illegally seized evidence could be used only to impeach a statement made on direct examination. As we have indicated, we hold a contrary view; and we do not understand the District Court to have indicated that the Government's question, the answer to which is sought to be impeached, need not be proper cross-examination in the first instance. The Court of Appeals did not suggest that either the cross-examination or the impeachment of Havens would have been improper absent the use of illegally seized evidence, and we cannot accept respondent's suggestions that because of the illegal search and seizure, the Government's questions about the T-shirt were improper cross-examination. McLeroth testified that Havens had assisted him in preparing the T-shirt for smuggling. Havens, in his direct testimony, acknowledged McLeroth's prior testimony that the cocaine "was taped or draped around his body and so on" but denied that he had "ever engage[d] in that kind of activity with Mr. McLeroth . . . ." This testimony could easily be understood as a denial of any connection with McLeroth's T-shirt and as a contradiction of McLeroth's testimony. Quite reasonably, it seems to us, the Government on cross-examination called attention to his answers on direct and then asked whether he had anything to do with sewing the cotton swatches on McLeroth's T-shirt. This was cross-examination growing out of Havens' direct testimony; and, as we hold above, the ensuing impeachment did not violate Havens' constitutional rights. *629 We reverse the judgment of the Court of Appeals and remand the case to that court for further proceedings consistent with this opinion. So ordered. MR. JUSTICE BRENNAN, joined by MR. JUSTICE MARSHALL and joined in Part I by MR. JUSTICE STEWART and MR.

The petition for certiorari filed by the United in this criminal case presented a single question: whether evidence suppressed as the fruit of an unlawful search and seizure may nevertheless be used to impeach a defendant's false trial testimony, given in response to proper cross-examination, where the evidence does not squarely contradict the defendant's testimony on direct examination. We issued the writ, I Respondent was convicted of importing, conspiring to import, and intentionally possessing a controlled substance, cocaine. According to the evidence at his trial, Havens and John McLeroth, both attorneys from Ft. Wayne, Ind., boarded a flight from Lima, Peru, to Miami, Fla. In Miami, a customs officer searched McLeroth and found cocaine sewed into makeshift pockets in a T-shirt he was wearing under his outer *622 clothing. McLeroth implicated respondent, who had previously cleared customs and who was then arrested. His luggage was seized and searched without a warrant. The officers found no drugs but seized a T-shirt from which pieces had been cut that matched the pieces that had been sewn to McLeroth's T-shirt. The T-shirt and other evidence seized in the course of the search were suppressed on motion prior to trial. Both men were charged in a three-count indictment, but McLeroth pleaded guilty to one count and testified against Havens. Among other things, he asserted that Havens had supplied him with the altered T-shirt and had sewed the makeshift pockets shut. Havens took the stand in his own defense and denied involvement in smuggling cocaine. His direct testimony included the following: "Q. And you heard Mr. McLeroth testify earlier as to something to the effect that this material was taped or draped around his body and so on, you heard that testimony? "A. Yes, I did. "Q. Did you ever engage in that kind of activity with Mr. McLeroth and Augusto or Mr. McLeroth and anyone else on that fourth visit to Lima, Peru? "A. I did not." App. 34. On cross-examination, Havens testified as follows: "Q. Now, on direct examination, sir, you testified that on the fourth trip you had absolutely nothing to do with the wrapping of any bandages or tee shirts or anything involving Mr. McLeroth; is that correct? "A. I don't—I said I had nothing to do with any wrapping or bandages or anything, yes. I had nothing to do with anything with McLeroth in connection with this cocaine matter. "Q. And your testimony is that you had nothing to *623 do with the sewing of the cotton swatches to make pockets on that tee shirt? "A. Absolutely not. "Q. Sir, when you came through Customs, the Miami International Airport, on October 2, 1977, did you have in your suitcase Size 38-40 medium tee shirts?" An objection to the latter question was overruled and questioning continued: "Q. On that day, sir, did you have in your luggage a Size 38-40 medium man's tee shirt with swatches of clothing missing from the tail of that tee shirt? "A. Not to my knowledge. "Q. Mr. Havens, I'm going to hand you what is Government's Exhibit 9 for identification and ask you if this tee shirt was in your luggage on October 2nd, 1975 [sic]? "A. Not to my knowledge. No." Respondent Havens also denied having told a Government agent that the T-shirts found in his luggage belonged to McLeroth. On rebuttal, a Government agent testified that Exhibit 9 had been found in respondent's suitcase and that Havens claimed the T-shirts found in his bag, including Exhibit 9, belonged to McLeroth. Over objection, the T-shirt was then admitted into evidence, the jury being instructed that the rebuttal evidence should be considered only for impeaching Havens' credibility. The Court of Appeals reversed, relying on and The court held that illegally seized evidence may be used for impeachment only if the evidence contradicts a particular statement made by a defendant in the course of his direct examination. We reverse. *624 II In a defendant charged with conspiracy to sell a package of cocaine testified on direct examination that he had possessed the packages involved but did not know what was in them. On cross-examination, he denied ever having seen narcotics and ever having seen a can of cocaine which was exhibited to him and which had been illegally seized from his apartment. The can of cocaine was permitted into evidence on rebuttal. Agnello was convicted and his conviction was affirmed by the Court of Appeals. This Court reversed, holding that the Fourth Amendment required exclusion of the evidence. The Court pointed out that "[i]n his direct examination, Agnello was not asked and did not testify concerning the can of cocaine" and "did nothing to waive his constitutional protection or to justify cross-examination in respect of the evidence claimed to have been obtained by the search." 269 U.S., The Court also said, quoting from Silverthorne Lumber Co. v. United that the exclusionary rule not only commands that illegally seized evidence "shall not be used before the Court but that it shall not be used at all." 269 U.S., The latter statement has been rejected in our later cases, however, and Agnello otherwise limited. In the use of evidence obtained in an illegal search and inadmissible in the Government's case in chief was admitted to impeach the direct testimony of the defendant. This Court approved, saying that it would pervert the rule of Weeks v. United to hold otherwise. Similarly, in and statements taken in violation of and unusable by the prosecution as part of its own case, were held admissible to impeach statements made by the defendant in the course of his direct testimony. Harris *625 also made clear that the permitted impeachment by otherwise inadmissible evidence is not limited to collateral matters. These cases were understood by the Court of Appeals to hold that tainted evidence, inadmissible when offered as part of the Government's main case, may not be used as rebuttal evidence to impeach a defendant's credibility unless the evidence is offered to contradict a particular statement made by a defendant during his direct examination; a statement made for the first time on cross-examination may not be so impeached. This approach required the exclusion of the T-shirt taken from Havens' luggage because, as the Court of Appeals read the record, Havens was asked nothing on his direct testimony about the incriminating T-shirt or about the contents of his luggage; the testimony about the T-shirt, which the Government desired to impeach first appeared on cross-examination, not on direct. It is true that Agnello involved the impeachment of testimony first brought out on cross-examination and that in Walder, Harris, and the testimony impeached was given by the defendant while testifying on direct examination. In our view, however, a flat rule permitting only statements on direct examination to be impeached misapprehends the underlying rationale of Walder, Harris, and These cases repudiated the statement in Agnello that no use at all may be made of illegally obtained evidence. Furthermore, in Walder, the Court said that in Agnello, the Government had "smuggled in" the impeaching opportunity in the course of cross-examination. The Court also relied on the statement in Agnello, that Agnello had done nothing "to justify cross-examination in respect of the evidence claimed to have been obtained by the search." The implication of Walder is that Agnello was a case of cross-examination having too tenuous a connection with any subject opened upon direct examination to permit impeachment by tainted evidence. *626 In reversing the District Court in the case before us, the Court of Appeals did not stop to consider how closely the cross-examination about the T-shirt and the luggage was connected with matters gone into in direct examination. If these questions would have been suggested to a reasonably competent cross-examiner by Havens' direct testimony, they were not "smuggled in"; and forbidding the Government to impeach the answers to these questions by using contrary and reliable evidence in its possession fails to take account of our cases, particularly Harris and In both cases, the Court stressed the importance of arriving at the truth in criminal trials, as well as the defendant's obligation to speak the truth in response to proper questions. We rejected the notion that the defendant's constitutional shield against having illegally seized evidence used against him could be "perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." See also Both cases also held that the deterrent function of the rules excluding unconstitutionally obtained evidence is sufficiently served by denying its use to the government on its direct case. It was only a "speculative possibility" that also making it unavailable to the government for otherwise proper impeachment would contribute substantially in this respect. Neither Harris nor involved the impeachment of assertedly false testimony first given on cross-examination, but the reasoning of those cases controls this one. There is no gainsaying that arriving at the truth is a fundamental goal of our legal system. We have repeatedly insisted that when defendants testify, they must testify truthfully or suffer the consequences. This is true even though a defendant is compelled to testify against his will. Bryson v. United ; United v. It is essential, *627 therefore, to the proper functioning of the adversary system that when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth. The defendant's obligation to testify truthfully is fully binding on him when he is cross-examined. His privilege against self-incrimination does not shield him from proper questioning. Brown v. United He would unquestionably be subject to a perjury prosecution if he knowingly lies on cross-examination. Cf. United v. Apfelbaum, ; Bryson v. United United v. United v. Wong, In terms of impeaching a defendant's seemingly false statements with his prior inconsistent utterances or with other reliable evidence available to the government, we see no difference of constitutional magnitude between the defendant's statements on direct examination and his answers to questions put to him on cross-examination that are plainly within the scope of the defendant's direct examination. Without this opportunity, the normal function of cross-examination would be severely impeded. We also think that the policies of the exclusionary rule no more bar impeachment here than they did in Walder, Harris, and In those cases, the ends of the exclusionary rules were thought adequately implemented by denying the government the use of the challenged evidence to make out its case in chief. The incremental furthering of those ends by forbidding impeachment of the defendant who testifies was deemed insufficient to permit or require that false testimony go unchallenged, with the resulting impairment of the integrity of the factfinding goals of the criminal trial. We reaffirm this assessment of the competing interests, and hold that a defendant's statements made in response to proper cross-examination reasonably suggested by the defendant's direct examination are subject to otherwise proper impeachment *628 by the government, albeit by evidence that has been illegally obtained and that is inadmissible on the government's direct case, or otherwise, as substantive evidence of guilt. In arriving at its judgment, the Court of Appeals noted that in response to defense counsel's objection to the impeaching evidence on the ground that the matter had not been "covered on direct," the trial court had remarked that "[i]t does not have to be covered on direct." The Court of Appeals thought this was error since in its view illegally seized evidence could be used only to impeach a statement made on direct examination. As we have indicated, we hold a contrary view; and we do not understand the District Court to have indicated that the Government's question, the answer to which is sought to be impeached, need not be proper cross-examination in the first instance. The Court of Appeals did not suggest that either the cross-examination or the impeachment of Havens would have been improper absent the use of illegally seized evidence, and we cannot accept respondent's suggestions that because of the illegal search and seizure, the Government's questions about the T-shirt were improper cross-examination. McLeroth testified that Havens had assisted him in preparing the T-shirt for smuggling. Havens, in his direct testimony, acknowledged McLeroth's prior testimony that the cocaine "was taped or draped around his body and so on" but denied that he had "ever engage[d] in that kind of activity with Mr. McLeroth" This testimony could easily be understood as a denial of any connection with McLeroth's T-shirt and as a contradiction of McLeroth's testimony. Quite reasonably, it seems to us, the Government on cross-examination called attention to his answers on direct and then asked whether he had anything to do with sewing the cotton swatches on McLeroth's T-shirt. This was cross-examination growing out of Havens' direct testimony; and, as we hold above, the ensuing impeachment did not violate Havens' constitutional rights. *629 We reverse the judgment of the Court of Appeals and remand the case to that court for further proceedings consistent with this opinion. So ordered. MR. JUSTICE BRENNAN, joined by MR. JUSTICE MARSHALL and joined in Part I by MR. JUSTICE STEWART and MR.

Justice Stevens

concurring

Metro Broadcasting, Inc. v. FCC

https://www.courtlistener.com/opinion/112484/metro-broadcasting-inc-v-fcc/

https://www.courtlistener.com/api/rest/v3/clusters/112484/

1989-136

Today the Court squarely rejects the proposition that a governmental decision that rests on a racial classification is never permissible except as a remedy for a past wrong. Ante, at 564-565. I endorse this focus on the future benefit, rather than the remedial justification, of such decisions.[1] I remain convinced, of course, that racial or ethnic characteristics provide a relevant basis for disparate treatment only in extremely rare situations and that it is therefore "especially important that the reasons for any such classification be clearly identified and unquestionably legitimate." Fullilove v. Klutznick, 448 U.S. 448, 534-535 (1980) (dissenting opinion). The Court's opinion explains how both elements of that standard are satisfied. Specifically, the reason for the classification — the recognized interest in broadcast diversity — is clearly identified and does not imply any judgment concerning the abilities of owners of different races or the merits of different kinds of programming. Neither the favored nor the disfavored class is stigmatized in any way.[2] In addition, the Court demonstrates that these cases fall within the extremely narrow category of governmental decisions for which racial or ethnic heritage may provide a rational basis for differential treatment.[3] The public interest in broadcast diversity *602 — like the interest in an integrated police force,[4] diversity in the composition of a public school faculty[5] or diversity in the student body of a professional school[6] — is in my view unquestionably legitimate. Therefore, I join both the opinion and the judgment of the Court.

Today the Court squarely rejects the proposition that a governmental decision that rests on a racial classification is never permissible except as a remedy for a past wrong. Ante, at 564-565. I endorse this focus on the future benefit, rather than the remedial justification, of such decisions.[1] I remain convinced, of course, that racial or ethnic characteristics provide a relevant basis for disparate treatment only in extremely rare situations and that it is therefore "especially important that the reasons for any such classification be clearly identified and unquestionably legitimate." The Court's opinion explains how both elements of that standard are satisfied. Specifically, the reason for the classification — the recognized interest in broadcast diversity — is clearly identified and does not imply any judgment concerning the abilities of owners of different races or the merits of different kinds of programming. Neither the favored nor the disfavored class is stigmatized in any way.[2] In addition, the Court demonstrates that these cases fall within the extremely narrow category of governmental decisions for which racial or ethnic heritage may provide a rational basis for differential treatment.[3] The public interest in broadcast diversity *602 — like the interest in an integrated police force,[4] diversity in the composition of a public school faculty[5] or diversity in the student body of a professional school[6] — is in my view unquestionably legitimate. Therefore, I join both the opinion and the judgment of the Court.

Justice Blackmun

majority

Mississippi v. Arkansas

https://www.courtlistener.com/opinion/108972/mississippi-v-arkansas/

https://www.courtlistener.com/api/rest/v3/clusters/108972/

1973-060

Mississippi, prompted by the pendency of private title litigation in the Arkansas courts,[1] instituted this original *290 action against Arkansas in November 1970. The bill of complaint, which accompanied the motion for leave to file, prayed that the boundary line between the two States, in the old bed of the Mississippi River from the upstream end to the downstream end of Tarpley Cut-off, that is, the Spanish Moss Bend-Luna Bar-Carter Point area where Arkansas' Chicot County and Mississippi's Washington County adjoin, be fixed and determined. The river was originally established as the boundary between the States by their respective Acts of Admission. Mississippi's Act, 3 Stat. 348 (1817), described the line as "up" the river.[2] Arkansas' Act, 5 Stat. 50 (1836), described the line as "up the middle of the main channel of the said river." See, also, Arkansas' Constitution, Art. 1 (1874). Over 50 years ago the question whether there was any difference in the meaning of these two descriptions was resolved and the boundary was determined to be "the middle of the main navigable channel, and not along the line equidistant between the banks." Arkansas v. Mississippi, 250 U.S. 39, 43 (1919). That decision was in conformity with the rule of the thalweg enunciated in Iowa v. Illinois, 147 U.S. 1, 7-8, 13 (1893), and followed, in the absence of special circumstances, in many subsequent cases. See, for example, Minnesota v. Wisconsin, 252 U.S. 273, 281-282 (1920); New Jersey v. Delaware, 291 U.S. 361, 379-380 (1934); Arkansas v. Tennessee, 310 U.S. 563, 571 (1940). Arkansas responded to Mississippi's motion and moved that leave to file be denied and that the complaint be dismissed. The motion for leave to file, however, was granted. 400 U.S. 1019 (1971). Thereafter, the Honorable *291 Clifford O'Sullivan was appointed Special Master. 402 U.S. 926 (1971). The Master's report eventually issued and was ordered filed. 411 U.S. 913 (1973).[3] Arkansas' exceptions to the report and Mississippi's response to those exceptions were forthcoming in due course and the case has been argued to this Court. Prior to 1935 Spanish Moss Bend was on the thalweg, or primary channel, of the Mississippi River. It has not been the thalweg, however, since the Tarpley Cut-off was established about five miles to the east in 1935 by the United States Army Corps of Engineers. The present controversy focuses on what is known as Luna Bar on the eastern bank of the old river at Spanish Moss Bend. The issue simply is whether Luna Bar came into being by gradual migration of the river westward, or, instead, by some avulsive process, also to the westward. Depending on the resolution of this factual issue, legal consequences ensue in line with established principles conceded by the two States to be the law relating to riparian accretion and avulsion. Nebraska v. Iowa, 143 U.S. 359 (1892); Missouri v. Nebraska, 196 U.S. 23 (1904); Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 325-327 (1973). These principles need no reiteration here. It suffices to say that if Luna Bar was formed by accretion, this litigation is to be resolved in favor of Mississippi, and, contrarily, if Luna Bar resulted from an avulsion, the suit is to be resolved in favor of Arkansas. Upon our independent review of the record, we find ourselves in complete agreement and accord with the findings of fact made by the Special Master.[4] Report *292 34. We therefore affirm those findings, overrule Arkansas' exceptions to the Master's report, confirm that report, and in general accept the Master's recommendations for a decree. We deem it unnecessary to outline at length the evidence adduced, or to reproduce here the detailed analysis of that evidence made by the Special Master. We note only that the dissent would regard the case as close because of three factors: (1) certain testimony as to ancient trees on Luna Bar indicated by the presence of three stumps that could not have lived and died there in the last 100 years, (2) some testimony as to soil on the bar "not compatible with the soil that would result from accretion," post, at 298, and (3) the bar's "hard core . . . elevation," post, at 299-300, that coincides with the elevation "on the adjacent Arkansas bank." These factors, in our view, would be pertinent except that they reflect only the approach and testimony of Arkansas' witnesses and overlook pertinent and persuasive testimony to the opposite effect from expert witnesses for Mississippi. The latter are the witnesses that the Special Master credited, as do we, in the evaluation of the conflicting testimony. Arkansas conceded that Mississippi made out a prima facie case of accretion. Tr. of Oral Arg. 19. In addition, the Master was impressed with the total absence of *293 any known historical reference to an avulsion in this area that changed the course of the river by the necessary half mile. And the dissent acknowledges, post, at 295, as to how "Mississippi made its case," and concedes that the testimony "gives force to the argument that accretion formed Luna Bar," that there was testimony that in the Mississippi River "avulsion would shorten the course of the river, while here the course was lengthened," and that Mississippi's experts knew of no instance "where avulsion had worked the way Arkansas claims." So far as the ancient tree stumps are concerned, Mississippi presented evidence from forestry experts that the forest on Luna Bar was one predominantly of pioneer species with the expected small accompanying, scattered areas of secondary and climax trees, and with no tree more than 37 years old. This is consistent with the first appearance of growth upon Luna Bar depicted in early Mississippi River Commission charts showing the bar to be barren and without vegetation. Report 10. Mississippi's position as to the three particular stumps was that they had been washed in by floodwaters in preceding years; that one had moss on its roots, a condition incompatible with growth in place; and that, at the point where another allegedly was found in 1972, the elevation of the bar was at least 10 feet above what it had been 90 years earlier. Thus the stump necessarily should have been deep in the undersoil of the bar and not on its surface at the time of its removal. Report 11. The soil composition is purely a matter of conflicting testimony and we are persuaded by Mississippi's evidence. Deep borings, of course, would be below the riverbed, and would be expected to be consistent throughout the area on both sides of the river. And, as noted above, charts of 1882 and 1894, admitted into *294 evidence, show Luna Bar as a dry sandbar with no vegetation. The claim of similar elevations, too, encounters strong and convincing opposing authority. Dr. Charles R. Kolb, a highly qualified expert for Mississippi, testified that his study disclosed that the Arkansas bank, from the first comparative recordings until fairly recent times, was about 12 feet higher than Luna Bar. Report 15, 19. R. 354-357. And there is an absence of levee formations on Luna Bar, as contrasted with the presence of pre-1860 levees on the Arkansas bank. We agree with the Special Master's evaluation of the evidence and conclude, as he did, that Arkansas did not sustain its burden of rebutting Mississippi's conceded prima facie case, a burden the Arkansas court has described as "considerable." Pannell v. Earls, 252 Ark. 385, 388, 483 S.W.2d 440, 442 (1972). Upon our own consideration and our independent review of the entire record, of the report filed by the Special Master, of the exceptions filed thereto, and of the argument thereon, a decree is accordingly entered. It is so ordered. [For decree adopted and entered by the Court, see post, p. 302.] MR.

Mississippi, prompted by the pendency of private title litigation in the Arkansas courts,[1] instituted this original *290 action against Arkansas in November 1970. The bill of complaint, which accompanied the motion for leave to file, prayed that the boundary line between the two States, in the old bed of the Mississippi River from the upstream end to the downstream end of Tarpley Cut-off, that is, the Spanish Moss Bend-Luna Bar-Carter Point area where Arkansas' Chicot County and Mississippi's Washington County adjoin, be fixed and determined. The river was originally established as the boundary between the States by their respective Acts of Admission. Mississippi's Act, (1817), described the line as "up" the river.[2] Arkansas' Act, (1836), described the line as "up the middle of the main channel of the said river." See, also, Arkansas' Constitution, Art. 1 (1874). Over 50 years ago the question whether there was any difference in the meaning of these two descriptions was resolved and the boundary was determined to be "the middle of the main navigable channel, and not along the line equidistant between the banks." That decision was in conformity with the rule of the thalweg enunciated in and followed, in the absence of special circumstances, in many subsequent cases. See, for example, ; New ; Arkansas responded to Mississippi's motion and moved that leave to file be denied and that the complaint be dismissed. The motion for leave to file, however, was granted. Thereafter, the Honorable *291 Clifford O'Sullivan was appointed Special Master. The Master's report eventually issued and was ordered filed.[3] Arkansas' exceptions to the report and Mississippi's response to those exceptions were forthcoming in due course and the case has been argued to this Court. Prior to 1935 Spanish Moss Bend was on the thalweg, or primary channel, of the Mississippi River. It has not been the thalweg, however, since the Tarpley Cut-off was established about five miles to the east in 1935 by the United States Army Corps of Engineers. The present controversy focuses on what is known as Luna Bar on the eastern bank of the old river at Spanish Moss Bend. The issue simply is whether Luna Bar came into being by gradual migration of the river westward, or, instead, by some avulsive process, also to the westward. Depending on the resolution of this factual issue, legal consequences ensue in line with established principles conceded by the two States to be the law relating to riparian accretion and avulsion. 1 U.S. 359 ; ; Bonelli Cattle These principles need no reiteration here. It suffices to say that if Luna Bar was formed by accretion, this litigation is to be resolved in favor of Mississippi, and, contrarily, if Luna Bar resulted from an avulsion, the suit is to be resolved in favor of Arkansas. Upon our independent review of the record, we find ourselves in complete agreement and accord with the findings of fact made by the Special Master.[4] Report *292 34. We therefore affirm those findings, overrule Arkansas' exceptions to the Master's report, confirm that report, and in general accept the Master's recommendations for a decree. We deem it unnecessary to outline at length the evidence adduced, or to reproduce here the detailed analysis of that evidence made by the Special Master. We note only that the dissent would regard the case as close because of three factors: (1) certain testimony as to ancient trees on Luna Bar indicated by the presence of three stumps that could not have lived and died there in the last 100 years, (2) some testimony as to soil on the bar "not compatible with the soil that would result from accretion," post, at 298, and (3) the bar's "hard core elevation," post, at 299-300, that coincides with the elevation "on the adjacent Arkansas bank." These factors, in our view, would be pertinent except that they reflect only the approach and testimony of Arkansas' witnesses and overlook pertinent and persuasive testimony to the opposite effect from expert witnesses for Mississippi. The latter are the witnesses that the Special Master credited, as do we, in the evaluation of the conflicting testimony. Arkansas conceded that Mississippi made out a prima facie case of accretion. Tr. of Oral Arg. 19. In addition, the Master was impressed with the total absence of *293 any known historical reference to an avulsion in this area that changed the course of the river by the necessary half mile. And the dissent acknowledges, post, at 295, as to how "Mississippi made its case," and concedes that the testimony "gives force to the argument that accretion formed Luna Bar," that there was testimony that in the Mississippi River "avulsion would shorten the course of the river, while here the course was lengthened," and that Mississippi's experts knew of no instance "where avulsion had worked the way Arkansas claims." So far as the ancient tree stumps are concerned, Mississippi presented evidence from forestry experts that the forest on Luna Bar was one predominantly of pioneer species with the expected small accompanying, scattered areas of secondary and climax trees, and with no tree more than 37 years old. This is consistent with the first appearance of growth upon Luna Bar depicted in early Mississippi River Commission charts showing the bar to be barren and without vegetation. Report 10. Mississippi's position as to the three particular stumps was that they had been washed in by floodwaters in preceding years; that one had moss on its roots, a condition incompatible with growth in place; and that, at the point where another allegedly was found in the elevation of the bar was at least 10 feet above what it had been 90 years earlier. Thus the stump necessarily should have been deep in the undersoil of the bar and not on its surface at the time of its removal. Report 11. The soil composition is purely a matter of conflicting testimony and we are persuaded by Mississippi's evidence. Deep borings, of course, would be below the riverbed, and would be expected to be consistent throughout the area on both sides of the river. And, as noted above, charts of 1882 and 1894, admitted into *294 evidence, show Luna Bar as a dry sandbar with no vegetation. The claim of similar elevations, too, encounters strong and convincing opposing authority. Dr. Charles R. Kolb, a highly qualified expert for Mississippi, testified that his study disclosed that the Arkansas bank, from the first comparative recordings until fairly recent times, was about 12 feet higher than Luna Bar. Report 15, 19. R. 354-357. And there is an absence of levee formations on Luna Bar, as contrasted with the presence of pre-1860 levees on the Arkansas bank. We agree with the Special Master's evaluation of the evidence and conclude, as he did, that Arkansas did not sustain its burden of rebutting Mississippi's conceded prima facie case, a burden the Arkansas court has described as "considerable." Upon our own consideration and our independent review of the entire record, of the report filed by the Special Master, of the exceptions filed thereto, and of the argument thereon, a decree is accordingly entered. It is so ordered. [For decree adopted and entered by the Court, see post, p. 302.] MR.

Justice Blackmun

majority

Basic Inc. v. Levinson

https://www.courtlistener.com/opinion/112022/basic-inc-v-levinson/

https://www.courtlistener.com/api/rest/v3/clusters/112022/

1987-046

This case requires us to apply the materiality requirement of § 10(b) of the Securities Exchange Act of 1934 (1934 Act), 48 Stat. 881, as amended, 15 U.S. C. § 78a et seq., and the Securities and Exchange Commission's Rule 10b-5, 17 CFR § 240.10b-5 (1987), promulgated thereunder, in the context of preliminary corporate merger discussions. We must also determine whether a person who traded a corporation's shares on a securities exchange after the issuance of a materially misleading statement by the corporation may invoke a rebuttable presumption that, in trading, he relied on the integrity of the price set by the market. I Prior to December 20, 1978, Basic Incorporated was a publicly traded company primarily engaged in the business of manufacturing chemical refractories for the steel industry. As early as 1965 or 1966, Combustion Engineering, Inc., a company producing mostly alumina-based refractories, expressed some interest in acquiring Basic, but was deterred from pursuing this inclination seriously because of antitrust concerns it then entertained. See App. 81-83. In 1976, however, regulatory action opened the way to a renewal of *227 Combustion's interest.[1] The "Strategic Plan," dated October 25, 1976, for Combustion's Industrial Products Group included the objective: "Acquire Basic Inc. $30 million." App. 337. Beginning in September 1976, Combustion representatives had meetings and telephone conversations with Basic officers and directors, including petitioners here,[2] concerning the possibility of a merger.[3] During 1977 and 1978, Basic made three public statements denying that it was engaged in merger negotiations.[4] On December 18, 1978, Basic asked *228 the New York Stock Exchange to suspend trading in its shares and issued a release stating that it had been "approached" by another company concerning a merger. Id., at 413. On December 19, Basic's board endorsed Combustion's offer of $46 per share for its common stock, id., at 335, 414-416, and on the following day publicly announced its approval of Combustion's tender offer for all outstanding shares. Respondents are former Basic shareholders who sold their stock after Basic's first public statement of October 21, 1977, and before the suspension of trading in December 1978. Respondents brought a class action against Basic and its directors, asserting that the defendants issued three false or misleading public statements and thereby were in violation of § 10(b) of the 1934 Act and of Rule 10b-5. Respondents alleged that they were injured by selling Basic shares at artificially depressed prices in a market affected by petitioners' misleading statements and in reliance thereon. The District Court adopted a presumption of reliance by members of the plaintiff class upon petitioners' public statements that enabled the court to conclude that common questions of fact or law predominated over particular questions pertaining to individual plaintiffs. See Fed. Rule Civ. Proc. 23(b)(3). The District Court therefore certified respondents' class.[5] On the merits, however, the District Court granted *229 summary judgment for the defendants. It held that, as a matter of law, any misstatements were immaterial: there were no negotiations ongoing at the time of the first statement, and although negotiations were taking place when the second and third statements were issued, those negotiations were not "destined, with reasonable certainty, to become a merger agreement in principle." App. to Pet. for Cert. 103a. The United States Court of Appeals for the Sixth Circuit affirmed the class certification, but reversed the District Court's summary judgment, and remanded the case. 786 F.2d 741 (1986). The court reasoned that while petitioners were under no general duty to disclose their discussions with Combustion, any statement the company voluntarily released could not be " `so incomplete as to mislead.' " Id., at 746, quoting SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 862 (CA2 1968) (en banc), cert. denied sub nom. Coates v. SEC, 394 U.S. 976 (1969). In the Court of Appeals' view, Basic's statements that no negotiations were taking place, and that it knew of no corporate developments to account for the heavy trading activity, were misleading. With respect to materiality, the court rejected the argument that preliminary merger discussions are immaterial as a matter of law, and held that "once a statement is made denying the existence of any discussions, even discussions that might not have been material in absence of the denial are material because they make the statement made untrue." 786 F.2d, at 749. The Court of Appeals joined a number of other Circuits in accepting the "fraud-on-the-market theory" to create a rebuttable presumption that respondents relied on petitioners' material *230 misrepresentations, noting that without the presumption it would be impractical to certify a class under Federal Rule of Civil Procedure 23(b)(3). See 786 F.2d, at 750-751. We granted certiorari, 479 U.S. 1083 (1987), to resolve the split, see Part III, infra, among the Courts of Appeals as to the standard of materiality applicable to preliminary merger discussions, and to determine whether the courts below properly applied a presumption of reliance in certifying the class, rather than requiring each class member to show direct reliance on Basic's statements. II The 1934 Act was designed to protect investors against manipulation of stock prices. See S. Rep. No. 792, 73d Cong., 2d Sess., 1-5 (1934). Underlying the adoption of extensive disclosure requirements was a legislative philosophy: "There cannot be honest markets without honest publicity. Manipulation and dishonest practices of the market place thrive upon mystery and secrecy." H. R. Rep. No. 1383, 73d Cong., 2d Sess., 11 (1934). This Court "repeatedly has described the `fundamental purpose' of the Act as implementing a `philosophy of full disclosure.' " Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 477-478 (1977), quoting SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 186 (1963). Pursuant to its authority under § 10(b) of the 1934 Act, 15 U.S. C. § 78j, the Securities and Exchange Commission promulgated Rule 10b-5.[6] Judicial interpretation and application, *231 legislative acquiescence, and the passage of time have removed any doubt that a private cause of action exists for a violation of § 10(b) and Rule 10b-5, and constitutes an essential tool for enforcement of the 1934 Act's requirements. See, e. g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 196 (1976); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730 (1975). The Court previously has addressed various positive and common-law requirements for a violation of § 10(b) or of Rule 10b-5. See, e. g., Santa Fe Industries, Inc. v. Green, supra ("manipulative or deceptive" requirement of the statute); Blue Chip Stamps v. Manor Drug Stores, supra ("in connection with the purchase or sale" requirement of the Rule); Dirks v. SEC, 463 U.S. 646 (1983) (duty to disclose); Chiarella v. United States, 445 U.S. 222 (1980) (same); Ernst & Ernst v. Hochfelder, supra (scienter). See also Carpenter v. United States, 484 U.S. 19 (1987) (confidentiality). The Court also explicitly has defined a standard of materiality under the securities laws, see TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438 (1976), concluding in the proxy-solicitation context that "[a]n omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote." Id., at 449.[7] Acknowledging that certain information concerning corporate developments could well be of "dubious significance," id., at 448, the Court was careful not to set too low a standard of materiality; it was concerned that a minimal standard might bring an overabundance of information within its reach, and lead management "simply to bury the shareholders in an avalanche of trivial information — a result that is hardly conducive to informed decisionmaking." Id., at 448-449. It further explained that to fulfill the materiality requirement "there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the *232 reasonable investor as having significantly altered the `total mix' of information made available." Id., at 449. We now expressly adopt the TSC Industries standard of materiality for the § 10(b) and Rule 10b-5 context.[8] III The application of this materiality standard to preliminary merger discussions is not self-evident. Where the impact of the corporate development on the target's fortune is certain and clear, the TSC Industries materiality definition admits straightforward application. Where, on the other hand, the event is contingent or speculative in nature, it is difficult to ascertain whether the "reasonable investor" would have considered the omitted information significant at the time. Merger negotiations, because of the ever-present possibility that the contemplated transaction will not be effectuated, fall into the latter category.[9] A Petitioners urge upon us a Third Circuit test for resolving this difficulty.[10] See Brief for Petitioners 20-22. Under this *233 approach, preliminary merger discussions do not become material until "agreement-in-principle" as to the price and structure of the transaction has been reached between the would-be merger partners. See Greenfield v. Heublein, Inc., 742 F.2d 751, 757 (CA3 1984), cert. denied, 469 U.S. 1215 (1985). By definition, then, information concerning any negotiations not yet at the agreement-in-principle stage could be withheld or even misrepresented without a violation of Rule 10b-5. Three rationales have been offered in support of the "agreement-in-principle" test. The first derives from the concern expressed in TSC Industries that an investor not be overwhelmed by excessively detailed and trivial information, and focuses on the substantial risk that preliminary merger discussions may collapse: because such discussions are inherently tentative, disclosure of their existence itself could mislead investors and foster false optimism. See Greenfield v. Heublein, Inc., 742 F. 2d, at 756; Reiss v. Pan American World Airways, Inc., 711 F.2d 11, 14 (CA2 1983). The other two justifications for the agreement-in-principle standard are based on management concerns: because the requirement of "agreement-in-principle" limits the scope of disclosure obligations, it helps preserve the confidentiality of merger discussions where earlier disclosure might prejudice the negotiations; and the test also provides a usable, bright-line rule for determining when disclosure must be made. See Greenfield v. Heublein, Inc., 742 F. 2d, at 757; Flamm *234 v. Eberstadt, 814 F.2d 1169, 1176-1178 (CA7), cert. denied, 484 U.S. 853 (1987). None of these policy-based rationales, however, purports to explain why drawing the line at agreement-in-principle reflects the significance of the information upon the investor's decision. The first rationale, and the only one connected to the concerns expressed in TSC Industries, stands soundly rejected, even by a Court of Appeals that otherwise has accepted the wisdom of the agreement-in-principle test. "It assumes that investors are nitwits, unable to appreciate — even when told — that mergers are risky propositions up until the closing." Flamm v. Eberstadt, 814 F. 2d, at 1175. Disclosure, and not paternalistic withholding of accurate information, is the policy chosen and expressed by Congress. We have recognized time and again, a "fundamental purpose" of the various Securities Acts, "was to substitute a philosophy of full disclosure for the philosophy of caveat emptor and thus to achieve a high standard of business ethics in the securities industry." SEC v. Capital Gains Research Bureau, Inc., 375 U. S., at 186. Accord, Affiliated Ute Citizens v. United States, 406 U.S. 128, 151 (1972); Santa Fe Industries, Inc. v. Green, 430 U. S., at 477. The role of the materiality requirement is not to "attribute to investors a child-like simplicity, and inability to grasp the probabilistic significance of negotiations," Flamm v. Eberstadt, 814 F. 2d, at 1175, but to filter out essentially useless information that a reasonable investor would not consider significant, even as part of a larger "mix" of factors to consider in making his investment decision. TSC Industries, Inc. v. Northway, Inc., 426 U. S., at 448-449. The second rationale, the importance of secrecy during the early stages of merger discussions, also seems irrelevant to an assessment whether their existence is significant to the trading decision of a reasonable investor. To avoid a "bidding war" over its target, an acquiring firm often will insist that negotiations remain confidential, see, e. g., In re Carnation *235 Co., Exchange Act Release No. 22214, 33 S.E. C. Docket 1025 (1985), and at least one Court of Appeals has stated that "silence pending settlement of the price and structure of a deal is beneficial to most investors, most of the time." Flamm v. Eberstadt, 814 F. 2d, at 1177.[11] We need not ascertain, however, whether secrecy necessarily maximizes shareholder wealth — although we note that the proposition is at least disputed as a matter of theory and empirical research[12] — for this case does not concern the timing of a disclosure; it concerns only its accuracy and completeness.[13] We face here the narrow question whether information concerning the existence and status of preliminary merger discussions is significant to the reasonable investor's trading decision. Arguments based on the premise that some disclosure would be "premature" in a sense are more properly considered under the rubric of an issuer's duty to disclose. The "secrecy" rationale is simply inapposite to the definition of materiality. *236 The final justification offered in support of the agreement-in-principle test seems to be directed solely at the comfort of corporate managers. A bright-line rule indeed is easier to follow than a standard that requires the exercise of judgment in the light of all the circumstances. But ease of application alone is not an excuse for ignoring the purposes of the Securities Acts and Congress' policy decisions. Any approach that designates a single fact or occurrence as always determinative of an inherently fact-specific finding such as materiality, must necessarily be overinclusive or underinclusive. In TSC Industries this Court explained: "The determination [of materiality] requires delicate assessments of the inferences a `reasonable shareholder' would draw from a given set of facts and the significance of those inferences to him . . . ." 426 U.S., at 450. After much study, the Advisory Committee on Corporate Disclosure cautioned the SEC against administratively confining materiality to a rigid formula.[14] Courts also would do well to heed this advice. We therefore find no valid justification for artificially excluding from the definition of materiality information concerning merger discussions, which would otherwise be considered significant to the trading decision of a reasonable investor, merely because agreement-in-principle as to price and structure has not yet been reached by the parties or their representatives. *237 B The Sixth Circuit explicitly rejected the agreement-in-principle test, as we do today, but in its place adopted a rule that, if taken literally, would be equally insensitive, in our view, to the distinction between materiality and the other elements of an action under Rule 10b-5: "When a company whose stock is publicly traded makes a statement, as Basic did, that `no negotiations' are underway, and that the corporation knows of `no reason for the stock's activity,' and that `management is unaware of any present or pending corporate development that would result in the abnormally heavy trading activity,' information concerning ongoing acquisition discussions becomes material by virtue of the statement denying their existence. . . . ..... ". . . In analyzing whether information regarding merger discussions is material such that it must be affirmatively disclosed to avoid a violation of Rule 10b-5, the discussions and their progress are the primary considerations. However, once a statement is made denying the existence of any discussions, even discussions that might not have been material in absence of the denial are material because they make the statement made untrue." 786 F.2d, at 748-749 (emphasis in original).[15] *238 This approach, however, fails to recognize that, in order to prevail on a Rule 10b-5 claim, a plaintiff must show that the statements were misleading as to a material fact. It is not enough that a statement is false or incomplete, if the misrepresented fact is otherwise insignificant. C Even before this Court's decision in TSC Industries, the Second Circuit had explained the role of the materiality requirement of Rule 10b-5, with respect to contingent or speculative information or events, in a manner that gave that term meaning that is independent of the other provisions of the Rule. Under such circumstances, materiality "will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity." SEC v. Texas Gulf Sulphur Co., 401 F. 2d, at 849. Interestingly, neither the Third Circuit decision adopting the agreement-in-principle test nor petitioners here take issue with this general standard. Rather, they suggest that with respect to preliminary merger discussions, there are good reasons to draw a line at agreement on price and structure. In a subsequent decision, the late Judge Friendly, writing for a Second Circuit panel, applied the Texas Gulf Sulphur probability/magnitude approach in the specific context of preliminary merger negotiations. After acknowledging that materiality is something to be determined on the basis of the particular facts of each case, he stated: "Since a merger in which it is bought out is the most important event that can occur in a small corporation's life, to wit, its death, we think that inside information, as regards a merger of this sort, can become material at an earlier stage than would be the case as regards lesser transactions — and this even though the mortality rate of mergers in such formative stages is doubtless high." SEC v. Geon Industries, Inc., 531 F.2d 39, 47-48 (1976). *239 We agree with that analysis.[16] Whether merger discussions in any particular case are material therefore depends on the facts. Generally, in order to assess the probability that the event will occur, a factfinder will need to look to indicia of interest in the transaction at the highest corporate levels. Without attempting to catalog all such possible factors, we note by way of example that board resolutions, instructions to investment bankers, and actual negotiations between principals or their intermediaries may serve as indicia of interest. To assess the magnitude of the transaction to the issuer of the securities allegedly manipulated, a factfinder will need to consider such facts as the size of the two corporate entities and of the potential premiums over market value. No particular event or factor short of closing the transaction need be either necessary or sufficient by itself to render merger discussions material.[17] *240 As we clarify today, materiality depends on the significance the reasonable investor would place on the withheld or misrepresented information.[18] The fact-specific inquiry we endorse here is consistent with the approach a number of courts have taken in assessing the materiality of merger negotiations.[19] Because the standard of materiality we have *241 adopted differs from that used by both courts below, we remand the case for reconsideration of the question whether a grant of summary judgment is appropriate on this record.[20] IV A We turn to the question of reliance and the fraud-on-the-market theory. Succinctly put: "The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company's stock is determined by the available material information regarding the company and its business. . . . Misleading statements will therefore *242 defraud purchasers of stock even if the purchasers do not directly rely on the misstatements. . . . The causal connection between the defendants' fraud and the plaintiffs' purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations." Peil v. Speiser, 806 F.2d 1154, 1160-1161 (CA3 1986). Our task, of course, is not to assess the general validity of the theory, but to consider whether it was proper for the courts below to apply a rebuttable presumption of reliance, supported in part by the fraud-on-the-market theory. Cf. the comments of the dissent, post, at 252-255. This case required resolution of several common questions of law and fact concerning the falsity or misleading nature of the three public statements made by Basic, the presence or absence of scienter, and the materiality of the misrepresentations, if any. In their amended complaint, the named plaintiffs alleged that in reliance on Basic's statements they sold their shares of Basic stock in the depressed market created by petitioners. See Amended Complaint in No. C79-1220 (ND Ohio), ¶¶ 27, 29, 35, 40; see also id., ¶ 33 (alleging effect on market price of Basic's statements). Requiring proof of individualized reliance from each member of the proposed plaintiff class effectively would have prevented respondents from proceeding with a class action, since individual issues then would have overwhelmed the common ones. The District Court found that the presumption of reliance created by the fraud-on-the-market theory provided "a practical resolution to the problem of balancing the substantive requirement of proof of reliance in securities cases against the procedural requisites of [Federal Rule of Civil Procedure] 23." The District Court thus concluded that with reference to each public statement and its impact upon the open market for Basic shares, common questions predominated over individual questions, as required by Federal Rules of Civil Procedure 23(a)(2) and (b)(3). *243 Petitioners and their amici complain that the fraud-on-the-market theory effectively eliminates the requirement that a plaintiff asserting a claim under Rule 10b-5 prove reliance. They note that reliance is and long has been an element of common-law fraud, see, e. g., Restatement (Second) of Torts § 525 (1977); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 108 (5th ed. 1984), and argue that because the analogous express right of action includes a reliance requirement, see, e. g., § 18(a) of the 1934 Act, as amended, 15 U.S. C. § 78r(a), so too must an action implied under § 10(b). We agree that reliance is an element of a Rule 10b-5 cause of action. See Ernst & Ernst v. Hochfelder, 425 U. S., at 206 (quoting Senate Report). Reliance provides the requisite causal connection between a defendant's misrepresentation and a plaintiff's injury. See, e. g., Wilson v. Comtech Telecommunications Corp., 648 F.2d 88, 92 (CA2 1981); List v. Fashion Park, Inc., 340 F.2d 457, 462 (CA2), cert. denied sub nom. List v. Lerner, 382 U.S. 811 (1965). There is, however, more than one way to demonstrate the causal connection. Indeed, we previously have dispensed with a requirement of positive proof of reliance, where a duty to disclose material information had been breached, concluding that the necessary nexus between the plaintiffs' injury and the defendant's wrongful conduct had been established. See Affiliated Ute Citizens v. United States, 406 U. S., at 153-154. Similarly, we did not require proof that material omissions or misstatements in a proxy statement decisively affected voting, because the proxy solicitation itself, rather than the defect in the solicitation materials, served as an essential link in the transaction. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 384-385 (1970). The modern securities markets, literally involving millions of shares changing hands daily, differ from the face-to-face *244 transactions contemplated by early fraud cases,[21] and our understanding of Rule 10b-5's reliance requirement must encompass these differences.[22] "In face-to-face transactions, the inquiry into an investor's reliance upon information is into the subjective pricing of that information by that investor. With the presence of a market, the market is interposed between seller and buyer and, ideally, transmits information to the investor in the processed form of a market price. Thus the market is performing a substantial part of the valuation process performed by the investor in a face-to-face transaction. The market is acting as the unpaid agent of the investor, informing him that given all the information available to it, the value of the stock is worth the market price." In re LTV Securities Litigation, 88 F. R. D. 134, 143 (ND Tex. 1980). Accord, e. g., Peil v. Speiser, 806 F. 2d, at 1161 ("In an open and developed market, the dissemination of material misrepresentations or withholding of material information typically affects the price of the stock, and purchasers generally rely on the price of the stock as a reflection of its value"); Blackie *245 v. Barrack, 524 F.2d 891, 908 (CA9 1975) ("[T]he same causal nexus can be adequately established indirectly, by proof of materiality coupled with the common sense that a stock purchaser does not ordinarily seek to purchase a loss in the form of artificially inflated stock"), cert. denied, 429 U.S. 816 (1976). B Presumptions typically serve to assist courts in managing circumstances in which direct proof, for one reason or another, is rendered difficult. See, e. g., 1 D. Louisell & C. Mueller, Federal Evidence 541-542 (1977). The courts below accepted a presumption, created by the fraud-on-the-market theory and subject to rebuttal by petitioners, that persons who had traded Basic shares had done so in reliance on the integrity of the price set by the market, but because of petitioners' material misrepresentations that price had been fraudulently depressed. Requiring a plaintiff to show a speculative state of facts, i. e., how he would have acted if omitted material information had been disclosed, see Affiliated Ute Citizens v. United States, 406 U. S., at 153-154, or if the misrepresentation had not been made, see Sharp v. Coopers & Lybrand, 649 F.2d 175, 188 (CA3 1981), cert. denied, 455 U.S. 938 (1982), would place an unnecessarily unrealistic evidentiary burden on the Rule 10b-5 plaintiff who has traded on an impersonal market. Cf. Mills v. Electric Auto-Lite Co., 396 U. S., at 385. Arising out of considerations of fairness, public policy, and probability, as well as judicial economy, presumptions are also useful devices for allocating the burdens of proof between parties. See E. Cleary, McCormick on Evidence 968-969 (3d ed. 1984); see also Fed. Rule Evid. 301 and Advisory Committee Notes, 28 U.S. C. App., p. 685. The presumption of reliance employed in this case is consistent with, and, by facilitating Rule 10b-5 litigation, supports, the congressional policy embodied in the 1934 Act. In drafting that Act, *246 Congress expressly relied on the premise that securities markets are affected by information, and enacted legislation to facilitate an investor's reliance on the integrity of those markets: "No investor, no speculator, can safely buy and sell securities upon the exchanges without having an intelligent basis for forming his judgment as to the value of the securities he buys or sells. The idea of a free and open public market is built upon the theory that competing judgments of buyers and sellers as to the fair price of a security brings [sic] about a situation where the market price reflects as nearly as possible a just price. Just as artificial manipulation tends to upset the true function of an open market, so the hiding and secreting of important information obstructs the operation of the markets as indices of real value." H. R. Rep. No. 1383, at 11. See Lipton v. Documation, Inc., 734 F.2d 740, 748 (CA11 1984), cert. denied, 469 U.S. 1132 (1985).[23] The presumption is also supported by common sense and probability. Recent empirical studies have tended to confirm Congress' premise that the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations.[24] It has been noted that "it is hard to imagine that *247 there ever is a buyer or seller who does not rely on market integrity. Who would knowingly roll the dice in a crooked crap game?" Schlanger v. Four-Phase Systems Inc., 555 F. Supp. 535, 538 (SDNY 1982). Indeed, nearly every court that has considered the proposition has concluded that where materially misleading statements have been disseminated into an impersonal, well-developed market for securities, the reliance of individual plaintiffs on the integrity of the market price may be presumed.[25] Commentators generally have applauded the adoption of one variation or another of the fraud-on-the-market theory.[26] An investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price. Because most publicly available information is reflected in market price, an investor's reliance on any public material misrepresentations, therefore, may be presumed for purposes of a Rule 10b-5 action. *248 C The Court of Appeals found that petitioners "made public, material misrepresentations and [respondents] sold Basic stock in an impersonal, efficient market. Thus the class, as defined by the district court, has established the threshold facts for proving their loss." 786 F.2d, at 751.[27] The court acknowledged that petitioners may rebut proof of the elements giving rise to the presumption, or show that the misrepresentation in fact did not lead to a distortion of price or that an individual plaintiff traded or would have traded despite his knowing the statement was false. Id., at 750, n. 6. Any showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption of reliance. For example, if petitioners could show that the "market makers" were privy to the truth about the merger discussions here with Combustion, and thus that the market price would not have been affected by their misrepresentation, the causal connection could be broken: the basis for finding that the fraud had been transmitted through market price would be gone.[28] Similarly, if, despite petitioners' allegedly fraudulent attempt *249 to manipulate market price, news of the merger discussions credibly entered the market and dissipated the effects of the misstatements, those who traded Basic shares after the corrective statements would have no direct or indirect connection with the fraud.[29] Petitioners also could rebut the presumption of reliance as to plaintiffs who would have divested themselves of their Basic shares without relying on the integrity of the market. For example, a plaintiff who believed that Basic's statements were false and that Basic was indeed engaged in merger discussions, and who consequently believed that Basic stock was artificially underpriced, but sold his shares nevertheless because of other unrelated concerns, e. g., potential antitrust problems, or political pressures to divest from shares of certain businesses, could not be said to have relied on the integrity of a price he knew had been manipulated. V In summary: 1. We specifically adopt, for the § 10(b) and Rule 10b-5 context, the standard of materiality set forth in TSC Industries, Inc. v. Northway, Inc., 426 U. S., at 449. 2. We reject "agreement-in-principle as to price and structure" as the bright-line rule for materiality. 3. We also reject the proposition that "information becomes material by virtue of a public statement denying it." *250 4. Materiality in the merger context depends on the probability that the transaction will be consummated, and its significance to the issuer of the securities. Materiality depends on the facts and thus is to be determined on a case-by-case basis. 5. It is not inappropriate to apply a presumption of reliance supported by the fraud-on-the-market theory. 6. That presumption, however, is rebuttable. 7. The District Court's certification of the class here was appropriate when made but is subject on remand to such adjustment, if any, as developing circumstances demand. The judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY took no part in the consideration or decision of this case. JUSTICE WHITE, with whom JUSTICE O'CONNOR joins, concurring in part and dissenting in part. I join Parts I-III of the Court's opinion, as I agree that the standard of materiality we set forth in TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976), should be applied to actions under § 10(b) and Rule 10b-5. But I dissent from the remainder of the Court's holding because I do not agree that the "fraud-on-the-market" theory should be applied in this case. I Even when compared to the relatively youthful private cause-of-action under § 10(b), see Kardon v. National Gypsum Co., 69 F. Supp. 512 (ED Pa. 1946), the fraud-on-the-market theory is a mere babe.[1] Yet today, the Court embraces *251 this theory with the sweeping confidence usually reserved for more mature legal doctrines. In so doing, I fear that the Court's decision may have many adverse, unintended effects as it is applied and interpreted in the years to come. A At the outset, I note that there are portions of the Court's fraud-on-the-market holding with which I am in agreement. Most importantly, the Court rejects the version of that theory, heretofore adopted by some courts,[2] which equates "causation" with "reliance," and permits recovery by a plaintiff who claims merely to have been harmed by a material misrepresentation which altered a market price, notwithstanding proof that the plaintiff did not in any way rely on that price. Ante, at 248. I agree with the Court that if Rule 10b-5's reliance requirement is to be left with any content at all, the fraud-on-the-market presumption must be capable of being rebutted by a showing that a plaintiff did not "rely" on the market price. For example, a plaintiff who decides, months in advance of an alleged misrepresentation, to purchase a stock; one who buys or sells a stock for reasons unrelated to its price; one who actually sells a stock "short" days before the misrepresentation is made — surely none of these people can state a valid claim under Rule 10b-5. Yet, some federal courts have allowed such claims to stand under one variety or another of the fraud-on-the-market theory.[3] *252 Happily, the majority puts to rest the prospect of recovery under such circumstances. A nonrebuttable presumption of reliance — or even worse, allowing recovery in the face of "affirmative evidence of nonreliance," Zweig v. Hearst Corp., 594 F.2d 1261, 1272 (CA9 1979) (Ely, J., dissenting) — would effectively convert Rule 10b-5 into "a scheme of investor's insurance." Shores v. Sklar, 647 F.2d 462, 469, n. 5 (CA5 1981) (en banc), cert. denied, 459 U.S. 1102 (1983). There is no support in the Securities Exchange Act, the Rule, or our cases for such a result. B But even as the Court attempts to limit the fraud-on-the-market theory it endorses today, the pitfalls in its approach are revealed by previous uses by the lower courts of the broader versions of the theory. Confusion and contradiction in court rulings are inevitable when traditional legal analysis is replaced with economic theorization by the federal courts. *253 In general, the case law developed in this Court with respect to § 10(b) and Rule 10b-5 has been based on doctrines with which we, as judges, are familiar: common-law doctrines of fraud and deceit. See, e. g., Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 471-477 (1977). Even when we have extended civil liability under Rule 10b-5 to a broader reach than the common law had previously permitted, see ante, at 244, n. 22, we have retained familiar legal principles as our guideposts. See, e. g., Herman & MacLean v. Huddleston, 459 U.S. 375, 389-390 (1983). The federal courts have proved adept at developing an evolving jurisprudence of Rule 10b-5 in such a manner. But with no staff economists, no experts schooled in the "efficient-capital-market hypothesis," no ability to test the validity of empirical market studies, we are not well equipped to embrace novel constructions of a statute based on contemporary microeconomic theory.[4] The "wrong turns" in those Court of Appeals and District Court fraud-on-the-market decisions which the Court implicitly rejects as going too far should be ample illustration of the dangers when economic theories replace legal rules as the basis for recovery. Yet the Court today ventures into this area beyond its expertise, beyond — by its own admission — the confines of our previous fraud cases. See ante, at 243-244. Even if I agreed with the Court that "modern securities *254 markets . . . involving millions of shares changing hands daily" require that the "understanding of Rule 10b-5's reliance requirement" be changed, ibid., I prefer that such changes come from Congress in amending § 10(b). The Congress, with its superior resources and expertise, is far better equipped than the federal courts for the task of determining how modern economic theory and global financial markets require that established legal notions of fraud be modified. In choosing to make these decisions itself, the Court, I fear, embarks on a course that it does not genuinely understand, giving rise to consequences it cannot foresee.[5] For while the economists' theories which underpin the fraud-on-the-market presumption may have the appeal of mathematical exactitude and scientific certainty, they are — in the end — nothing more than theories which may or may not prove accurate upon further consideration. Even the most earnest advocates of economic analysis of the law recognize this. See, e. g., Easterbrook, Afterword: Knowledge and Answers, 85 Colum. L. Rev. 1117, 1118 (1985). Thus, while the majority states that, for purposes of reaching its result it need only make modest assumptions about the way in which "market professionals generally" do their jobs, and how the conduct of market professionals affects stock prices, ante, at 246, n. 23, I doubt that we are in much of a position *255 to assess which theories aptly describe the functioning of the securities industry. Consequently, I cannot join the Court in its effort to reconfigure the securities laws, based on recent economic theories, to better fit what it perceives to be the new realities of financial markets. I would leave this task to others more equipped for the job than we. C At the bottom of the Court's conclusion that the fraud-on-the-market theory sustains a presumption of reliance is the assumption that individuals rely "on the integrity of the market price" when buying or selling stock in "impersonal, well-developed market[s] for securities." Ante, at 247. Even if I was prepared to accept (as a matter of common sense or general understanding) the assumption that most persons buying or selling stock do so in response to the market price, the fraud-on-the-market theory goes further. For in adopting a "presumption of reliance," the Court also assumes that buyers and sellers rely — not just on the market price — but on the "integrity" of that price. It is this aspect of the fraud-on-the-market hypothesis which most mystifies me. To define the term "integrity of the market price," the majority quotes approvingly from cases which suggest that investors are entitled to " `rely on the price of a stock as a reflection of its value.' " Ante, at 244 (quoting Peil v. Speiser, 806 F.2d 1154, 1161 (CA3 1986)). But the meaning of this phrase eludes me, for it implicitly suggests that stocks have some "true value" that is measurable by a standard other than their market price. While the scholastics of medieval times professed a means to make such a valuation of a commodity's "worth,"[6] I doubt that the federal courts of our day are similarly equipped. *256 Even if securities had some "value" — knowable and distinct from the market price of a stock — investors do not always share the Court's presumption that a stock's price is a "reflection of [this] value." Indeed, "many investors purchase or sell stock because they believe the price inaccurately reflects the corporation's worth." See Black, Fraud on the Market: A Criticism of Dispensing with Reliance Requirements in Certain Open Market Transactions, 62 N. C. L. Rev. 435, 455 (1984) (emphasis added). If investors really believed that stock prices reflected a stock's "value," many sellers would never sell, and many buyers never buy (given the time and cost associated with executing a stock transaction). As we recognized just a few years ago: "[I]nvestors act on inevitably incomplete or inaccurate information, [consequently] there are always winners and losers; but those who have `lost' have not necessarily been defrauded." Dirks v. SEC, 463 U.S. 646, 667, n. 27 (1983). Yet today, the Court allows investors to recover who can show little more than that they sold stock at a lower price than what might have been.[7] I do not propose that the law retreat from the many protections that § 10(b) and Rule 10b-5, as interpreted in our prior cases, provide to investors. But any extension of these laws, to approach something closer to an investor insurance *257 scheme, should come from Congress, and not from the courts. II Congress has not passed on the fraud-on-the-market theory the Court embraces today. That is reason enough for us to abstain from doing so. But it is even more troubling that, to the extent that any view of Congress on this question can be inferred indirectly, it is contrary to the result the majority reaches. A In the past, the scant legislative history of § 10(b) has led us to look at Congress' intent in adopting other portions of the Securities Exchange Act when we endeavor to discern the limits of private causes of action under Rule 10b-5. See, e. g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 204-206 (1976). A similar undertaking here reveals that Congress flatly rejected a proposition analogous to the fraud-on-the-market theory in adopting a civil liability provision of the 1934 Act. Section 18 of the Act expressly provides for civil liability for certain misleading statements concerning securities. See 15 U.S. C. § 78r(a). When the predecessor of this section was first being considered by Congress, the initial draft of the provision allowed recovery by any plaintiff "who shall have purchased or sold a security the price of which may have been affected by such [misleading] statement." See S. 2693, 73d Cong., 2d Sess., § 17(a) (1934). Thus, as initially drafted, the precursor to the express civil liability provision of the 1934 Act would have permitted suits by plaintiffs based solely on the fact that the price of the securities they bought or sold was affected by a misrepresentation: a theory closely akin to the Court's holding today. Yet this provision was roundly criticized in congressional hearings on the proposed Securities Exchange Act, because it failed to include a more substantial "reliance" requirement.[8]*258 Subsequent drafts modified the original proposal, and included an express reliance requirement in the final version of the Act. In congressional debates over the redrafted version of this bill, the then-Chairman of the House Committee, Representative Sam Rayburn, explained that the "bill as originally written was very much challenged on the ground that reliance should be required. This objection has been met." 78 Cong. Rec. 7701 (1934). Moreover, in a previous case concerning the scope of § 10(b) and Rule 10b-5, we quoted approvingly from the legislative history of this revised provision, which emphasized the presence of a strict reliance requirement as a prerequisite for recovery. See Ernst & Ernst v. Hochfelder, supra, at 206 (citing S. Rep. No. 792, 73d Cong., 2d Sess., 12-13 (1934)). Congress thus anticipated meaningful proof of "reliance" before civil recovery can be had under the Securities Exchange Act. The majority's adoption of the fraud-on-the-market theory effectively eviscerates the reliance rule in actions brought under Rule 10b-5, and negates congressional intent to the contrary expressed during adoption of the 1934 Act. B A second congressional policy that the majority's opinion ignores is the strong preference the securities laws display for widespread public disclosure and distribution to investors of material information concerning securities. This congressionally adopted policy is expressed in the numerous and varied disclosure requirements found in the federal securities *259 law scheme. See, e. g., 15 U.S. C. §§ 78m, 78o(d) (1982 ed. and Supp. IV). Yet observers in this field have acknowledged that the fraud-on-the-market theory is at odds with the federal policy favoring disclosure. See, e. g., Black, 62 N. C. L. Rev., at 457-459. The conflict between Congress' preference for disclosure and the fraud-on-the-market theory was well expressed by a jurist who rejected the latter in order to give force to the former: "[D]isclosure . . . is crucial to the way in which the federal securities laws function. . . . [T]he federal securities laws are intended to put investors into a position from which they can help themselves by relying upon disclosures that others are obligated to make. This system is not furthered by allowing monetary recovery to those who refuse to look out for themselves. If we say that a plaintiff may recover in some circumstances even though he did not read and rely on the defendants' public disclosures, then no one need pay attention to those disclosures and the method employed by Congress to achieve the objective of the 1934 Act is defeated." Shores v. Sklar, 647 F. 2d, at 483 (Randall, J., dissenting). It is no surprise, then, that some of the same voices calling for acceptance of the fraud-on-the-market theory also favor dismantling the federal scheme which mandates disclosure. But to the extent that the federal courts must make a choice between preserving effective disclosure and trumpeting the new fraud-on-the-market hypothesis, I think Congress has spoken clearly — favoring the current prodisclosure policy. We should limit our role in interpreting § 10(b) and Rule 10b-5 to one of giving effect to such policy decisions by Congress. III Finally, the particular facts of this case make it an exceedingly poor candidate for the Court's fraud-on-the-market theory, *260 and illustrate the illogic achieved by that theory's application in many cases. Respondents here are a class of sellers who sold Basic stock between October 1977 and December 1978, a 14-month period. At the time the class period began, Basic's stock was trading at $20 a share (at the time, an all-time high); the last members of the class to sell their Basic stock got a price of just over $30 a share. App. 363, 423. It is indisputable that virtually every member of the class made money from his or her sale of Basic stock. The oddities of applying the fraud-on-the-market theory in this case are manifest. First, there are the facts that the plaintiffs are sellers and the class period is so lengthy — both are virtually without precedent in prior fraud-on-the-market cases.[9] For reasons I discuss in the margin, I think these two facts render this case less apt to application of the fraud-on-the-market hypothesis. Second, there is the fact that in this case, there is no evidence that petitioner Basic's officials made the troublesome misstatements for the purpose of manipulating stock prices, or with any intent to engage in underhanded trading of Basic stock. Indeed, during the class period, petitioners do not *261 appear to have purchased or sold any Basic stock whatsoever. App. to Pet. for Cert. 27a. I agree with amicus who argues that "[i]mposition of damages liability under Rule 10b-5 makes little sense . . . where a defendant is neither a purchaser nor a seller of securities." See Brief for American Corporate Counsel Association as Amicus Curiae 13. In fact, in previous cases, we had recognized that Rule 10b-5 is concerned primarily with cases where the fraud is committed by one trading the security at issue. See, e. g., Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 736, n. 8 (1975). And it is difficult to square liability in this case with § 10(b)'s express provision that it prohibits fraud "in connection with the purchase or sale of any security." See 15 U.S. C. § 78j(b) (emphasis added). Third, there are the peculiarities of what kinds of investors will be able to recover in this case. As I read the District Court's class certification order, App. to Pet. for Cert. 123a-126a; ante, at 228-229, n. 5, there are potentially many persons who did not purchase Basic stock until after the first false statement (October 1977), but who nonetheless will be able to recover under the Court's fraud-on-the-market theory. Thus, it is possible that a person who heard the first corporate misstatement and disbelieved it — i. e., someone who purchased Basic stock thinking that petitioners' statement was false — may still be included in the plaintiff-class on remand. How a person who undertook such a speculative stock-investing strategy — and made $10 a share doing so (if he bought on October 22, 1977, and sold on December 15, 1978) — can say that he was "defrauded" by virtue of his reliance on the "integrity" of the market price is beyond me.[10]*262 And such speculators may not be uncommon, at least in this case. See App. to Pet. for Cert. 125a. Indeed, the facts of this case lead a casual observer to the almost inescapable conclusion that many of those who bought or sold Basic stock during the period in question flatly disbelieved the statements which are alleged to have been "materially misleading." Despite three statements denying that merger negotiations were underway, Basic stock hit record-high after record-high during the 14-month class period. It seems quite possible that, like Casca's knowing disbelief of Caesar's "thrice refusal" of the Crown,[11] clever investors were skeptical of petitioners' three denials that merger talks were going on. Yet such investors, the saviest of the savvy, will be able to recover under the Court's opinion, as long as they now claim that they believed in the "integrity of the market price" when they sold their stock (between September and December 1978).[12] Thus, persons who bought after hearing and relying on the falsity of petitioners' statements may be able to prevail and recover money damages on remand. And who will pay the judgments won in such actions? I suspect that all too often the majority's rule will "lead to large judgments, payable in the last analysis by innocent investors, for the benefit of speculators and their lawyers." Cf. SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 867 (CA2 1968) (en banc) (Friendly, J., concurring), cert. denied, 394 U.S. 976 (1969). This Court and others have previously recognized that "inexorably broadening . . . the class of plaintiff[s] who may sue in this area of the law will ultimately result in more harm than good." Blue Chip Stamps v. Manor Drug Stores, supra, at 747-748. See also Ernst & Ernst v. Hochfelder, 425 U. S., at 214; Ultramares Corp. v. Touche, *263 255 N.Y. 170, 179-180, 174 N.E. 441, 444-445 (1931) (Cardozo, C. J.). Yet such a bitter harvest is likely to be the reaped from the seeds sewn by the Court's decision today. IV In sum, I think the Court's embracement of the fraud-on-the-market theory represents a departure in securities law that we are ill suited to commence — and even less equipped to control as it proceeds. As a result, I must respectfully dissent.

This case requires us to apply the materiality requirement of 10(b) of the Securities Exchange Act of 1934 (1934 Act), as amended, 15 U.S. C. 78a et seq., and the Securities and Exchange Commission's Rule 10b-5, 17 CFR 240.10b-5 promulgated thereunder, in the context of preliminary corporate merger discussions. We must also determine whether a person who traded a corporation's shares on a securities exchange after the issuance of a materially misleading statement by the corporation may invoke a rebuttable presumption that, in trading, he relied on the integrity of the price set by the market. I Prior to December 20, 1978, Basic Incorporated was a publicly traded company primarily engaged in the business of manufacturing chemical refractories for the steel industry. As early as 5 or 6, Combustion Engineering, a company producing mostly alumina-based refractories, expressed some interest in acquiring Basic, but was deterred from pursuing this inclination seriously because of antitrust concerns it then entertained. See App. 81-83. In however, regulatory action opened the way to a renewal of *227 Combustion's interest.[1] The "Strategic Plan," dated October 25, for Combustion's Industrial Products Group included the objective: "Acquire Basic $30 million." App. 337. Beginning in September Combustion representatives had meetings and telephone conversations with Basic officers and directors, including petitioners here,[2] concerning the possibility of a merger.[3] During 1977 and 1978, Basic made three public statements denying that it was engaged in merger negotiations.[4] On December 18, 1978, Basic asked *228 the New York Stock Exchange to suspend trading in its shares and issued a release stating that it had been "approached" by another company concerning a merger. On December 19, Basic's board endorsed Combustion's offer of $46 per share for its common stock, and on the following day publicly announced its approval of Combustion's tender offer for all outstanding shares. Respondents are former Basic shareholders who sold their stock after Basic's first public statement of October 21, 1977, and before the suspension of trading in December 1978. Respondents brought a class action against Basic and its directors, asserting that the defendants issued three false or misleading public statements and thereby were in violation of 10(b) of the 1934 Act and of Rule 10b-5. Respondents alleged that they were injured by selling Basic shares at artificially depressed prices in a market affected by petitioners' misleading statements and in reliance thereon. The District Court adopted a presumption of reliance by members of the plaintiff class upon petitioners' public statements that enabled the court to conclude that common questions of fact or law predominated over particular questions pertaining to individual plaintiffs. See Fed. Rule Civ. Proc. 23(b)(3). The District Court therefore certified respondents' class.[5] On the merits, however, the District Court granted *229 summary judgment for the defendants. It held that, as a matter of law, any misstatements were immaterial: there were no negotiations ongoing at the time of the first statement, and although negotiations were taking place when the second and third statements were issued, those negotiations were not "destined, with reasonable certainty, to become a merger agreement in principle." App. to Pet. for Cert. 103a. The United Court of Appeals for the Sixth Circuit affirmed the class certification, but reversed the District Court's summary judgment, and remanded the case. The court reasoned that while petitioners were under no general duty to disclose their discussions with Combustion, any statement the company voluntarily released could not be " `so incomplete as to mislead.' " quoting cert. denied sub nom. In the Court of Appeals' view, Basic's statements that no negotiations were taking place, and that it knew of no corporate developments to account for the heavy trading activity, were misleading. With respect to materiality, the court rejected the argument that preliminary merger discussions are immaterial as a matter of law, and held that "once a statement is made denying the existence of any discussions, even discussions that might not have been material in absence of the denial are material because they make the statement made untrue." The Court of Appeals joined a number of other Circuits in accepting the "fraud-on-the-market theory" to create a rebuttable presumption that respondents relied on petitioners' material *230 misrepresentations, noting that without the presumption it would be impractical to certify a class under Federal Rule of Civil Procedure 23(b)(3). See -751. We granted certiorari, to resolve the split, see Part III, infra, among the Courts of Appeals as to the standard of materiality applicable to preliminary merger discussions, and to determine whether the courts below properly applied a presumption of reliance in certifying the class, rather than requiring each class member to show direct reliance on Basic's statements. II The 1934 Act was designed to protect investors against manipulation of stock prices. See S. Rep. No. 7, 73d Cong., 2d Sess., 1-5 (1934). Underlying the adoption of extensive disclosure requirements was a legislative philosophy: "There cannot be honest markets without honest publicity. Manipulation and dishonest practices of the market place thrive upon mystery and secrecy." H. R. Rep. No. 1383, 73d Cong., 2d Sess., 11 (1934). This Court "repeatedly has described the `fundamental purpose' of the Act as implementing a `philosophy of full disclosure.' " Santa Fe Industries, quoting Pursuant to its authority under 10(b) of the 1934 Act, 15 U.S. C. 78j, the Securities and Exchange Commission promulgated Rule 10b-5.[6] Judicial interpretation and application, *231 legislative acquiescence, and the passage of time have removed any doubt that a private cause of action exists for a violation of 10(b) and Rule 10b-5, and constitutes an essential tool for enforcement of the 1934 Act's requirements. See, e. g., Ernst & ; Blue Chip The Court previously has addressed various positive and common-law requirements for a violation of 10(b) or of Rule 10b-5. See, e. g., Santa Fe Industries, ; Blue Chip ; ; ; Ernst & See also The Court also explicitly has defined a standard of materiality under the securities laws, see TSC Industries, concluding in the proxy-solicitation context that "[a]n omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote."[7] Acknowledging that certain information concerning corporate developments could well be of "dubious significance," the Court was careful not to set too low a standard of materiality; it was concerned that a minimal standard might bring an overabundance of information within its reach, and lead management "simply to bury the shareholders in an avalanche of trivial information — a result that is hardly conducive to informed decisionmaking." -. It further explained that to fulfill the materiality requirement "there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the *232 reasonable investor as having significantly altered the `total mix' of information made available." We now expressly adopt the TSC Industries standard of materiality for the 10(b) and Rule 10b-5 context.[8] III The application of this materiality standard to preliminary merger discussions is not self-evident. Where the impact of the corporate development on the target's fortune is certain and clear, the TSC Industries materiality definition admits straightforward application. Where, on the other hand, the event is contingent or speculative in nature, it is difficult to ascertain whether the "reasonable investor" would have considered the omitted information significant at the time. Merger negotiations, because of the ever-present possibility that the contemplated transaction will not be effectuated, fall into the latter category.[9] A Petitioners urge upon us a Third Circuit test for resolving this difficulty.[10] See Brief for Petitioners 20-22. Under this *233 approach, preliminary merger discussions do not become material until "agreement-in-principle" as to the price and structure of the transaction has been reached between the would-be merger partners. See field v. Heublein, cert. denied, By definition, then, information concerning any negotiations not yet at the agreement-in-principle stage could be withheld or even misrepresented without a violation of Rule 10b-5. Three rationales have been offered in support of the "agreement-in-principle" test. The first derives from the concern expressed in TSC Industries that an investor not be overwhelmed by excessively detailed and trivial information, and focuses on the substantial risk that preliminary merger discussions may collapse: because such discussions are inherently tentative, disclosure of their existence itself could mislead investors and foster false optimism. See field v. Heublein, 742 F. 2d, at 756; The other two justifications for the agreement-in-principle standard are based on management concerns: because the requirement of "agreement-in-principle" limits the scope of disclosure obligations, it helps preserve the confidentiality of merger discussions where earlier disclosure might prejudice the negotiations; and the test also provides a usable, bright-line rule for determining when disclosure must be made. See field v. Heublein, 742 F. 2d, at ; Flamm 8 F.2d 1169, (CA7), cert. denied, None of these policy-based rationales, however, purports to explain why drawing the line at agreement-in-principle reflects the significance of the information upon the investor's decision. The first rationale, and the only one connected to the concerns expressed in TSC Industries, stands soundly rejected, even by a Court of Appeals that otherwise has accepted the wisdom of the agreement-in-principle test. "It assumes that investors are nitwits, unable to appreciate — even when told — that mergers are risky propositions up until the closing." Flamm v. Eberstadt, 8 F. 2d, at 1175. Disclosure, and not paternalistic withholding of accurate information, is the policy chosen and expressed by Congress. We have recognized time and again, a "fundamental purpose" of the various Securities Acts, "was to substitute a philosophy of full disclosure for the philosophy of caveat emptor and thus to achieve a high standard of business ethics in the securities industry." 375 U. S., at Accord, Affiliated Ute ; Santa Fe Industries, The role of the materiality requirement is not to "attribute to investors a child-like simplicity, and inability to grasp the probabilistic significance of negotiations," Flamm v. Eberstadt, 8 F. 2d, at 1175, but to filter out essentially useless information that a reasonable investor would not consider significant, even as part of a larger "mix" of factors to consider in making his investment decision. TSC Industries, 426 U. S., -. The second rationale, the importance of secrecy during the early stages of merger discussions, also seems irrelevant to an assessment whether their existence is significant to the trading decision of a reasonable investor. To avoid a "bidding war" over its target, an acquiring firm often will insist that negotiations remain confidential, see, e. g., In re Carnation *235 Exchange Act Release No. 222, 33 S.E. C. Docket 1025 and at least one Court of Appeals has stated that "silence pending settlement of the price and structure of a deal is beneficial to most investors, most of the time." Flamm v. Eberstadt, 8 F. 2d, at 1177.[11] We need not ascertain, however, whether secrecy necessarily maximizes shareholder wealth — although we note that the proposition is at least disputed as a matter of theory and empirical research[12] — for this case does not concern the timing of a disclosure; it concerns only its accuracy and completeness.[13] We face here the narrow question whether information concerning the existence and status of preliminary merger discussions is significant to the reasonable investor's trading decision. Arguments based on the premise that some disclosure would be "premature" in a sense are more properly considered under the rubric of an issuer's duty to disclose. The "secrecy" rationale is simply inapposite to the definition of materiality. *236 The final justification offered in support of the agreement-in-principle test seems to be directed solely at the comfort of corporate managers. A bright-line rule indeed is easier to follow than a standard that requires the exercise of judgment in the light of all the circumstances. But ease of application alone is not an excuse for ignoring the purposes of the Securities Acts and Congress' policy decisions. Any approach that designates a single fact or occurrence as always determinative of an inherently fact-specific finding such as materiality, must necessarily be overinclusive or underinclusive. In TSC Industries this Court explained: "The determination [of materiality] requires delicate assessments of the inferences a `reasonable shareholder' would draw from a given set of facts and the significance of those inferences to him" After much study, the Advisory Committee on Corporate Disclosure cautioned the SEC against administratively confining materiality to a rigid formula.[] Courts also would do well to heed this advice. We therefore find no valid justification for artificially excluding from the definition of materiality information concerning merger discussions, which would otherwise be considered significant to the trading decision of a reasonable investor, merely because agreement-in-principle as to price and structure has not yet been reached by the parties or their representatives. *237 B The Sixth Circuit explicitly rejected the agreement-in-principle test, as we do today, but in its place adopted a rule that, if taken literally, would be equally insensitive, in our view, to the distinction between materiality and the other elements of an action under Rule 10b-5: "When a company whose stock is publicly traded makes a statement, as Basic did, that `no negotiations' are underway, and that the corporation knows of `no reason for the stock's activity,' and that `management is unaware of any present or pending corporate development that would result in the abnormally heavy trading activity,' information concerning ongoing acquisition discussions becomes material by virtue of the statement denying their existence. ". In analyzing whether information regarding merger discussions is material such that it must be affirmatively disclosed to avoid a violation of Rule 10b-5, the discussions and their progress are the primary considerations. However, once a statement is made denying the existence of any discussions, even discussions that might not have been material in absence of the denial are material because they make the statement made untrue." -749[15] *238 This approach, however, fails to recognize that, in order to prevail on a Rule 10b-5 claim, a plaintiff must show that the statements were misleading as to a material fact. It is not enough that a statement is false or incomplete, if the misrepresented fact is otherwise insignificant. C Even before this Court's decision in TSC Industries, the Second Circuit had explained the role of the materiality requirement of Rule 10b-5, with respect to contingent or speculative information or events, in a manner that gave that term meaning that is independent of the other provisions of the Rule. Under such circumstances, materiality "will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity." 401 F. 2d, at 849. Interestingly, neither the Third Circuit decision adopting the agreement-in-principle test nor petitioners here take issue with this general standard. Rather, they suggest that with respect to preliminary merger discussions, there are good reasons to draw a line at agreement on price and structure. In a subsequent decision, the late Judge Friendly, writing for a Second Circuit panel, applied the Texas Gulf Sulphur probability/magnitude approach in the specific context of preliminary merger negotiations. After acknowledging that materiality is something to be determined on the basis of the particular facts of each case, he stated: "Since a merger in which it is bought out is the most important event that can occur in a small corporation's life, to wit, its death, we think that inside information, as regards a merger of this sort, can become material at an earlier stage than would be the case as regards lesser transactions — and this even though the mortality rate of mergers in such formative stages is doubtless high." SEC v. Geon Industries, *239 We agree with that analysis.[16] Whether merger discussions in any particular case are material therefore depends on the facts. Generally, in order to assess the probability that the event will occur, a factfinder will need to look to indicia of interest in the transaction at the highest corporate levels. Without attempting to catalog all such possible factors, we note by way of example that board resolutions, instructions to investment bankers, and actual negotiations between principals or their intermediaries may serve as indicia of interest. To assess the magnitude of the transaction to the issuer of the securities allegedly manipulated, a factfinder will need to consider such facts as the size of the two corporate entities and of the potential premiums over market value. No particular event or factor short of closing the transaction need be either necessary or sufficient by itself to render merger discussions material.[17] *240 As we clarify today, materiality depends on the significance the reasonable investor would place on the withheld or misrepresented information.[18] The fact-specific inquiry we endorse here is consistent with the approach a number of courts have taken in assessing the materiality of merger negotiations.[19] Because the standard of materiality we have *241 adopted differs from that used by both courts below, we remand the case for reconsideration of the question whether a grant of summary judgment is appropriate on this record.[20] IV A We turn to the question of reliance and the fraud-on-the-market theory. Succinctly put: "The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company's stock is determined by the available material information regarding the company and its business. Misleading statements will therefore *242 defraud purchasers of stock even if the purchasers do not directly rely on the misstatements. The causal connection between the defendants' fraud and the plaintiffs' purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations." Our task, of course, is not to assess the general validity of the theory, but to consider whether it was proper for the courts below to apply a rebuttable presumption of reliance, supported in part by the fraud-on-the-market theory. Cf. the comments of the dissent, post, at 252-255. This case required resolution of several common questions of law and fact concerning the falsity or misleading nature of the three public statements made by Basic, the presence or absence of scienter, and the materiality of the misrepresentations, if any. In their amended complaint, the named plaintiffs alleged that in reliance on Basic's statements they sold their shares of Basic stock in the depressed market created by petitioners. See Amended Complaint in No. C79-1220 (ND Ohio), ¶¶ 27, 29, 35, 40; see also Requiring proof of individualized reliance from each member of the proposed plaintiff class effectively would have prevented respondents from proceeding with a class action, since individual issues then would have overwhelmed the common ones. The District Court found that the presumption of reliance created by the fraud-on-the-market theory provided "a practical resolution to the problem of balancing the substantive requirement of proof of reliance in securities cases against the procedural requisites of [Federal Rule of Civil Procedure] 23." The District Court thus concluded that with reference to each public statement and its impact upon the open market for Basic shares, common questions predominated over individual questions, as required by Federal Rules of Civil Procedure 23(a)(2) and (b)(3). *243 Petitioners and their amici complain that the fraud-on-the-market theory effectively eliminates the requirement that a plaintiff asserting a claim under Rule 10b-5 prove reliance. They note that reliance is and long has been an element of common-law fraud, see, e. g., Restatement (Second) of Torts 525 ; W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 108 and argue that because the analogous express right of action includes a reliance requirement, see, e. g., 18(a) of the 1934 Act, as amended, 15 U.S. C. 78r(a), so too must an action implied under 10(b). We agree that reliance is an element of a Rule 10b-5 cause of action. See Ernst & Reliance provides the requisite causal connection between a defendant's misrepresentation and a plaintiff's injury. See, e. g., ; List v. Fashion Park, (CA2), cert. denied sub nom. (5). There is, however, more than one way to demonstrate the causal connection. Indeed, we previously have dispensed with a requirement of positive proof of reliance, where a duty to disclose material information had been breached, concluding that the necessary nexus between the plaintiffs' injury and the defendant's wrongful conduct had been established. See Affiliated Ute -154. Similarly, we did not require proof that material omissions or misstatements in a proxy statement decisively affected voting, because the proxy solicitation itself, rather than the defect in the solicitation materials, served as an essential link in the transaction. See The modern securities markets, literally involving millions of shares changing hands daily, differ from the face-to-face *244 transactions contemplated by early fraud cases,[21] and our understanding of Rule 10b-5's reliance requirement must encompass these differences.[22] "In face-to-face transactions, the inquiry into an investor's reliance upon information is into the subjective pricing of that information by that investor. With the presence of a market, the market is interposed between seller and buyer and, ideally, transmits information to the investor in the processed form of a market price. Thus the market is performing a substantial part of the valuation process performed by the investor in a face-to-face transaction. The market is acting as the unpaid agent of the investor, informing him that given all the information available to it, the value of the stock is worth the market price." In re LTV Securities Litigation, 88 F. R. D. 134, 3 Accord, e. g., 806 F. 2d, at ("In an open and developed market, the dissemination of material misrepresentations or withholding of material information typically affects the price of the stock, and purchasers generally rely on the price of the stock as a reflection of its value"); Blackie cert. denied, B Presumptions typically serve to assist courts in managing circumstances in which direct proof, for one reason or another, is rendered difficult. See, e. g., 1 D. Louisell & C. Mueller, Federal Evidence 541-542 The courts below accepted a presumption, created by the fraud-on-the-market theory and subject to rebuttal by petitioners, that persons who had traded Basic shares had done so in reliance on the integrity of the price set by the market, but because of petitioners' material misrepresentations that price had been fraudulently depressed. Requiring a plaintiff to show a speculative state of facts, i. e., how he would have acted if omitted material information had been disclosed, see Affiliated Ute -154, or if the misrepresentation had not been made, see cert. denied, would place an unnecessarily unrealistic evidentiary burden on the Rule 10b-5 plaintiff who has traded on an impersonal market. Cf. Arising out of considerations of fairness, public policy, and probability, as well as judicial economy, presumptions are also useful devices for allocating the burdens of proof between parties. See E. Cleary, McCormick on Evidence 968-969 ; see also Fed. Rule Evid. 301 and Advisory Committee Notes, 28 U.S. C. App., p. 685. The presumption of reliance employed in this case is consistent with, and, by facilitating Rule 10b-5 litigation, supports, the congressional policy embodied in the 1934 Act. In drafting that Act, *246 Congress expressly relied on the premise that securities markets are affected by information, and enacted legislation to facilitate an investor's reliance on the integrity of those markets: "No investor, no speculator, can safely buy and sell securities upon the exchanges without having an intelligent basis for forming his judgment as to the value of the securities he buys or sells. The idea of a free and open public market is built upon the theory that competing judgments of buyers and sellers as to the fair price of a security brings [sic] about a situation where the market price reflects as nearly as possible a just price. Just as artificial manipulation tends to upset the true function of an open market, so the hiding and secreting of important information obstructs the operation of the markets as indices of real value." H. R. Rep. No. 1383, at 11. See Lipton v. Documation, cert. denied,[23] The presumption is also supported by common sense and probability. Recent empirical studies have tended to confirm Congress' premise that the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations.[24] It has been noted that "it is hard to imagine that *247 there ever is a buyer or seller who does not rely on market integrity. Who would knowingly roll the dice in a crooked crap game?" Schlanger v. Four-Phase Systems Indeed, nearly every court that has considered the proposition has concluded that where materially misleading statements have been disseminated into an impersonal, well-developed market for securities, the reliance of individual plaintiffs on the integrity of the market price may be presumed.[25] Commentators generally have applauded the adoption of one variation or another of the fraud-on-the-market theory.[26] An investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price. Because most publicly available information is reflected in market price, an investor's reliance on any public material misrepresentations, therefore, may be presumed for purposes of a Rule 10b-5 action. *248 C The Court of Appeals found that petitioners "made public, material misrepresentations and [respondents] sold Basic stock in an impersonal, efficient market. Thus the class, as defined by the district court, has established the threshold facts for proving their loss."[27] The court acknowledged that petitioners may rebut proof of the elements giving rise to the presumption, or show that the misrepresentation in fact did not lead to a distortion of price or that an individual plaintiff traded or would have traded despite his knowing the statement was false. Any showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption of reliance. For example, if petitioners could show that the "market makers" were privy to the truth about the merger discussions here with Combustion, and thus that the market price would not have been affected by their misrepresentation, the causal connection could be broken: the basis for finding that the fraud had been transmitted through market price would be gone.[28] Similarly, if, despite petitioners' allegedly fraudulent attempt *249 to manipulate market price, news of the merger discussions credibly entered the market and dissipated the effects of the misstatements, those who traded Basic shares after the corrective statements would have no direct or indirect connection with the fraud.[29] Petitioners also could rebut the presumption of reliance as to plaintiffs who would have divested themselves of their Basic shares without relying on the integrity of the market. For example, a plaintiff who believed that Basic's statements were false and that Basic was indeed engaged in merger discussions, and who consequently believed that Basic stock was artificially underpriced, but sold his shares nevertheless because of other unrelated concerns, e. g., potential antitrust problems, or political pressures to divest from shares of certain businesses, could not be said to have relied on the integrity of a price he knew had been manipulated. V In summary: 1. We specifically adopt, for the 10(b) and Rule 10b-5 context, the standard of materiality set forth in TSC Industries, 426 U. S., 2. We reject "agreement-in-principle as to price and structure" as the bright-line rule for materiality. 3. We also reject the proposition that "information becomes material by virtue of a public statement denying it." *250 4. Materiality in the merger context depends on the probability that the transaction will be consummated, and its significance to the issuer of the securities. Materiality depends on the facts and thus is to be determined on a case-by-case basis. 5. It is not inappropriate to apply a presumption of reliance supported by the fraud-on-the-market theory. 6. That presumption, however, is rebuttable. 7. The District Court's certification of the class here was appropriate when made but is subject on remand to such adjustment, if any, as developing circumstances demand. The judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY took no part in the consideration or decision of this case. JUSTICE WHITE, with whom JUSTICE O'CONNOR joins, concurring in part and dissenting in part. I join Parts I-III of the Court's opinion, as I agree that the standard of materiality we set forth in TSC Industries, should be applied to actions under 10(b) and Rule 10b-5. But I dissent from the remainder of the Court's holding because I do not agree that the "fraud-on-the-market" theory should be applied in this case. I Even when compared to the relatively youthful private cause-of-action under 10(b), see Kardon v. National Gypsum the fraud-on-the-market theory is a mere babe.[1] Yet today, the Court embraces *251 this theory with the sweeping confidence usually reserved for more mature legal doctrines. In so doing, I fear that the Court's decision may have many adverse, unintended effects as it is applied and interpreted in the years to come. A At the outset, I note that there are portions of the Court's fraud-on-the-market holding with which I am in agreement. Most importantly, the Court rejects the version of that theory, heretofore adopted by some courts,[2] which equates "causation" with "reliance," and permits recovery by a plaintiff who claims merely to have been harmed by a material misrepresentation which altered a market price, notwithstanding proof that the plaintiff did not in any way rely on that price. Ante, at 248. I agree with the Court that if Rule 10b-5's reliance requirement is to be left with any content at all, the fraud-on-the-market presumption must be capable of being rebutted by a showing that a plaintiff did not "rely" on the market price. For example, a plaintiff who decides, months in advance of an alleged misrepresentation, to purchase a stock; one who buys or sells a stock for reasons unrelated to its price; one who actually sells a stock "short" days before the misrepresentation is made — surely none of these people can state a valid claim under Rule 10b-5. Yet, some federal courts have allowed such claims to stand under one variety or another of the fraud-on-the-market theory.[3] *252 Happily, the majority puts to rest the prospect of recovery under such circumstances. A nonrebuttable presumption of reliance — or even worse, allowing recovery in the face of "affirmative evidence of nonreliance," — would effectively convert Rule 10b-5 into "a scheme of investor's insurance." 647 F.2d cert. denied, There is no support in the Securities Exchange Act, the Rule, or our cases for such a result. B But even as the Court attempts to limit the fraud-on-the-market theory it endorses today, the pitfalls in its approach are revealed by previous uses by the lower courts of the broader versions of the theory. Confusion and contradiction in court rulings are inevitable when traditional legal analysis is replaced with economic theorization by the federal courts. *253 In general, the case law developed in this Court with respect to 10(b) and Rule 10b-5 has been based on doctrines with which we, as judges, are familiar: common-law doctrines of fraud and deceit. See, e. g., Santa Fe Industries, Even when we have extended civil liability under Rule 10b-5 to a broader reach than the common law had previously permitted, see ante, at 244, n. 22, we have retained familiar legal principles as our guideposts. See, e. g., Herman & The federal courts have proved adept at developing an evolving jurisprudence of Rule 10b-5 in such a manner. But with no staff economists, no experts schooled in the "efficient-capital-market hypothesis," no ability to test the validity of empirical market studies, we are not well equipped to embrace novel constructions of a statute based on contemporary microeconomic theory.[4] The "wrong turns" in those Court of Appeals and District Court fraud-on-the-market decisions which the Court implicitly rejects as going too far should be ample illustration of the dangers when economic theories replace legal rules as the basis for recovery. Yet the Court today ventures into this area beyond its expertise, beyond — by its own admission — the confines of our previous fraud cases. See ante, at 243-244. Even if I agreed with the Court that "modern securities *254 markets involving millions of shares changing hands daily" require that the "understanding of Rule 10b-5's reliance requirement" be changed, ib I prefer that such changes come from Congress in amending 10(b). The Congress, with its superior resources and expertise, is far better equipped than the federal courts for the task of determining how modern economic theory and global financial markets require that established legal notions of fraud be modified. In choosing to make these decisions itself, the Court, I fear, embarks on a course that it does not genuinely understand, giving rise to consequences it cannot foresee.[5] For while the economists' theories which underpin the fraud-on-the-market presumption may have the appeal of mathematical exactitude and scientific certainty, they are — in the end — nothing more than theories which may or may not prove accurate upon further consideration. Even the most earnest advocates of economic analysis of the law recognize this. See, e. g., Easterbrook, Afterword: Knowledge and Answers, Thus, while the majority states that, for purposes of reaching its result it need only make modest assumptions about the way in which "market professionals generally" do their jobs, and how the conduct of market professionals affects stock prices, ante, at 246, n. 23, I doubt that we are in much of a position *255 to assess which theories aptly describe the functioning of the securities industry. Consequently, I cannot join the Court in its effort to reconfigure the securities laws, based on recent economic theories, to better fit what it perceives to be the new realities of financial markets. I would leave this task to others more equipped for the job than we. C At the bottom of the Court's conclusion that the fraud-on-the-market theory sustains a presumption of reliance is the assumption that individuals rely "on the integrity of the market price" when buying or selling stock in "impersonal, well-developed market[s] for securities." Ante, at 247. Even if I was prepared to accept (as a matter of common sense or general understanding) the assumption that most persons buying or selling stock do so in response to the market price, the fraud-on-the-market theory goes further. For in adopting a "presumption of reliance," the Court also assumes that buyers and sellers rely — not just on the market price — but on the "integrity" of that price. It is this aspect of the fraud-on-the-market hypothesis which most mystifies me. To define the term "integrity of the market price," the majority quotes approvingly from cases which suggest that investors are entitled to " `rely on the price of a stock as a reflection of its value.' " Ante, at 244 ). But the meaning of this phrase eludes me, for it implicitly suggests that stocks have some "true value" that is measurable by a standard other than their market price. While the scholastics of medieval times professed a means to make such a valuation of a commodity's "worth,"[6] I doubt that the federal courts of our day are similarly equipped. *256 Even if securities had some "value" — knowable and distinct from the market price of a stock — investors do not always share the Court's presumption that a stock's price is a "reflection of [this] value." Indeed, "many investors purchase or sell stock because they believe the price inaccurately reflects the corporation's worth." See Black, Fraud on the Market: A Criticism of Dispensing with Reliance Requirements in Certain Open Market Transactions, 62 N. C. L. Rev. 435, 455 (emphasis added). If investors really believed that stock prices reflected a stock's "value," many sellers would never sell, and many buyers never buy (given the time and cost associated with executing a stock transaction). As we recognized just a few years ago: "[I]nvestors act on inevitably incomplete or inaccurate information, [consequently] there are always winners and losers; but those who have `lost' have not necessarily been defrauded." Yet today, the Court allows investors to recover who can show little more than that they sold stock at a lower price than what might have been.[7] I do not propose that the law retreat from the many protections that 10(b) and Rule 10b-5, as interpreted in our prior cases, provide to investors. But any extension of these laws, to approach something closer to an investor insurance *257 scheme, should come from Congress, and not from the courts. II Congress has not passed on the fraud-on-the-market theory the Court embraces today. That is reason enough for us to abstain from doing so. But it is even more troubling that, to the extent that any view of Congress on this question can be inferred indirectly, it is contrary to the result the majority reaches. A In the past, the scant legislative history of 10(b) has led us to look at Congress' intent in adopting other portions of the Securities Exchange Act when we endeavor to discern the limits of private causes of action under Rule 10b-5. See, e. g., Ernst & A similar undertaking here reveals that Congress flatly rejected a proposition analogous to the fraud-on-the-market theory in adopting a civil liability provision of the 1934 Act. Section 18 of the Act expressly provides for civil liability for certain misleading statements concerning securities. See 15 U.S. C. 78r(a). When the predecessor of this section was first being considered by Congress, the initial draft of the provision allowed recovery by any plaintiff "who shall have purchased or sold a security the price of which may have been affected by such [misleading] statement." See S. 2693, 73d Cong., 2d Sess., 17(a) (1934). Thus, as initially drafted, the precursor to the express civil liability provision of the 1934 Act would have permitted suits by plaintiffs based solely on the fact that the price of the securities they bought or sold was affected by a misrepresentation: a theory closely akin to the Court's holding today. Yet this provision was roundly criticized in congressional hearings on the proposed Securities Exchange Act, because it failed to include a more substantial "reliance" requirement.[8]*258 Subsequent drafts modified the original proposal, and included an express reliance requirement in the final version of the Act. In congressional debates over the redrafted version of this bill, the then-Chairman of the House Committee, Representative Sam Rayburn, explained that the "bill as originally written was very much challenged on the ground that reliance should be required. This objection has been met." 78 Cong. Rec. 7701 (1934). Moreover, in a previous case concerning the scope of 10(b) and Rule 10b-5, we quoted approvingly from the legislative history of this revised provision, which emphasized the presence of a strict reliance requirement as a prerequisite for recovery. See Ernst & at 206 (citing S. Rep. No. 7, 73d Cong., 2d Sess., 12-13 (1934)). Congress thus anticipated meaningful proof of "reliance" before civil recovery can be had under the Securities Exchange Act. The majority's adoption of the fraud-on-the-market theory effectively eviscerates the reliance rule in actions brought under Rule 10b-5, and negates congressional intent to the contrary expressed during adoption of the 1934 Act. B A second congressional policy that the majority's opinion ignores is the strong preference the securities laws display for widespread public disclosure and distribution to investors of material information concerning securities. This congressionally adopted policy is expressed in the numerous and varied disclosure requirements found in the federal securities *259 law scheme. See, e. g., 15 U.S. C. 78m, 78o(d) ( ed. and Supp. IV). Yet observers in this field have acknowledged that the fraud-on-the-market theory is at odds with the federal policy favoring disclosure. See, e. g., Black, 62 N. C. L. Rev., at 457-459. The conflict between Congress' preference for disclosure and the fraud-on-the-market theory was well expressed by a jurist who rejected the latter in order to give force to the former: "[D]isclosure is crucial to the way in which the federal securities laws function. [T]he federal securities laws are intended to put investors into a position from which they can help themselves by relying upon disclosures that others are obligated to make. This system is not furthered by allowing monetary recovery to those who refuse to look out for themselves. If we say that a plaintiff may recover in some circumstances even though he did not read and rely on the defendants' public disclosures, then no one need pay attention to those disclosures and the method employed by Congress to achieve the objective of the 1934 Act is defeated." 647 F. 2d, at 483 (Randall, J., dissenting). It is no surprise, then, that some of the same voices calling for acceptance of the fraud-on-the-market theory also favor dismantling the federal scheme which mandates disclosure. But to the extent that the federal courts must make a choice between preserving effective disclosure and trumpeting the new fraud-on-the-market hypothesis, I think Congress has spoken clearly — favoring the current prodisclosure policy. We should limit our role in interpreting 10(b) and Rule 10b-5 to one of giving effect to such policy decisions by Congress. III Finally, the particular facts of this case make it an exceedingly poor candidate for the Court's fraud-on-the-market theory, *260 and illustrate the illogic achieved by that theory's application in many cases. Respondents here are a class of sellers who sold Basic stock between October 1977 and December 1978, a -month period. At the time the class period began, Basic's stock was trading at $20 a share (at the time, an all-time high); the last members of the class to sell their Basic stock got a price of just over $30 a share. App. 363, 423. It is indisputable that virtually every member of the class made money from his or her sale of Basic stock. The oddities of applying the fraud-on-the-market theory in this case are manifest. First, there are the facts that the plaintiffs are sellers and the class period is so lengthy — both are virtually without precedent in prior fraud-on-the-market cases.[9] For reasons I discuss in the margin, I think these two facts render this case less apt to application of the fraud-on-the-market hypothesis. Second, there is the fact that in this case, there is no evidence that petitioner Basic's officials made the troublesome misstatements for the purpose of manipulating stock prices, or with any intent to engage in underhanded trading of Basic stock. Indeed, during the class period, petitioners do not *261 appear to have purchased or sold any Basic stock whatsoever. App. to Pet. for Cert. 27a. I agree with amicus who argues that "[i]mposition of damages liability under Rule 10b-5 makes little sense where a defendant is neither a purchaser nor a seller of securities." See Brief for American Corporate Counsel Association as Amicus Curiae 13. In fact, in previous cases, we had recognized that Rule 10b-5 is concerned primarily with cases where the fraud is committed by one trading the security at issue. See, e. g., Blue Chip And it is difficult to square liability in this case with 10(b)'s express provision that it prohibits fraud "in connection with the purchase or sale of any security." See 15 U.S. C. 78j(b) (emphasis added). Third, there are the peculiarities of what kinds of investors will be able to recover in this case. As I read the District Court's class certification order, App. to Pet. for Cert. 123a-126a; ante, at 228-229, n. 5, there are potentially many persons who did not purchase Basic stock until after the first false statement but who nonetheless will be able to recover under the Court's fraud-on-the-market theory. Thus, it is possible that a person who heard the first corporate misstatement and disbelieved it — i. e., someone who purchased Basic stock thinking that petitioners' statement was false — may still be included in the plaintiff-class on remand. How a person who undertook such a speculative stock-investing strategy — and made $10 a share doing so (if he bought on October 22, 1977, and sold on December 15, 1978) — can say that he was "defrauded" by virtue of his reliance on the "integrity" of the market price is beyond me.[10]*262 And such speculators may not be uncommon, at least in this case. See App. to Pet. for Cert. 125a. Indeed, the facts of this case lead a casual observer to the almost inescapable conclusion that many of those who bought or sold Basic stock during the period in question flatly disbelieved the statements which are alleged to have been "materially misleading." Despite three statements denying that merger negotiations were underway, Basic stock hit record-high after record-high during the -month class period. It seems quite possible that, like Casca's knowing disbelief of Caesar's "thrice refusal" of the Crown,[11] clever investors were skeptical of petitioners' three denials that merger talks were going on. Yet such investors, the saviest of the savvy, will be able to recover under the Court's opinion, as long as they now claim that they believed in the "integrity of the market price" when they sold their stock (between September and December 1978).[12] Thus, persons who bought after hearing and relying on the falsity of petitioners' statements may be able to prevail and recover money damages on remand. And who will pay the judgments won in such actions? I suspect that all too often the majority's rule will "lead to large judgments, payable in the last analysis by innocent investors, for the benefit of speculators and their lawyers." Cf. (Friendly, J., concurring), cert. denied, This Court and others have previously recognized that "inexorably broadening the class of plaintiff[s] who may sue in this area of the law will ultimately result in more harm than good." Blue Chip at 747-. See also Ernst & 425 U. S., at 2; Ultramares Yet such a bitter harvest is likely to be the reaped from the seeds sewn by the Court's decision today. IV In sum, I think the Court's embracement of the fraud-on-the-market theory represents a departure in securities law that we are ill suited to commence — and even less equipped to control as it proceeds. As a result, I must respectfully dissent.

Justice Brennan

majority

Slodov v. United States

https://www.courtlistener.com/opinion/109863/slodov-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/109863/

1977-085

Petitioner, an orthodontist by profession, on January 31, 1969, purchased the stock and assumed the management of three corporations engaged in the food vending business. The corporations were indebted at the time of the purchase for approximately $250,000 of taxes, including federal wage and Federal Insurance Contribution Act (FICA) taxes withheld from employees' wages prior to January 31. The sums withheld had not been paid over when due, however, but had been dissipated by the previous management before petitioner acquired the businesses. After petitioner assumed control, the corporations acquired funds sufficient to pay the taxes, but petitioner used the funds to pay employees' wages, rent, suppliers, and other creditors, and to meet other day-to-day expenses incurred in operating the businesses. The question to be decided is whether, in these circumstances, petitioner is personally liable under § 6672 of the Internal Revenue Code of 1954, 26 U.S. C. § 6672—which imposes personal liability for taxes on "[a] ny person required to collect, truthfully account *241 for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof . . ."—for the corporations' unpaid taxes withheld from wages prior to his assumption of control. The Court of Appeals for the Sixth Circuit held that petitioner was personally liable under § 6672 for the unpaid taxes. 552 F.2d 159 (1977). We granted certiorari.[1] 434 U.S. 817 (1977). We reverse. I The case arose from the filing by the Internal Revenue Service (IRS) of a claim for the taxes in a proceeding instituted by petitioner in July 1969 for a real property arrangement under Chapter XII of the Bankruptcy Act. The facts determined after hearing by the bankruptcy judge, 74-2 USTC ¶ 9719 (ND Ohio 1974), are not challenged. Petitioner purchased and assumed managerial control of the Tas-Tee Catering, Tas-Tee Vending, and Charles Corporations on January 31, 1969. When he bought the stock, petitioner understood, and the purchase agreement reflected, that the corporations had an outstanding obligation for taxes in the amount of $250,000 due for payment on January 31, including withheld employee wage and FICA taxes (hereinafter trust-fund taxes). During the purchase negotiations, the sellers represented to petitioner that balances in the various corporate checking accounts were sufficient to pay these taxes as well as bills due other creditors. Relying on the representation, petitioner, on Saturday, February 1, sent four checks to the IRS in payment of the taxes. *242 On Monday, February 3, petitioner discovered that the accounts were overdrawn and stopped payment on the checks. Thus, at the time that petitioner assumed control, the corporations had no liquid assets, and whatever trust-fund taxes had been collected prior to petitioner's assumption of control had been dissipated. Petitioner immediately advised the IRS that the corporations had no funds with which to pay the taxes, and solicited guidance concerning how the corporations should proceed. App. 36. There was evidence that IRS officials advised petitioner that they had no objection to his continuing operations so long as current tax obligations were met, and that petitioner agreed to do so and to endeavor to pay the arrearages as soon as possible. Tr. 37-38. The IRS never represented that it would hold petitioner harmless under § 6672 for the back taxes, however. To continue operations, petitioner deposited personal funds in the corporate acount, and, to obtain inventory, agreed with certain suppliers to pay cash upon delivery. During petitioner's tenure, from January 31 to July 15, 1969, the corporations' gross receipts approximated $130,000 per week for the first few months but declined thereafter. The corporations "established a system of segregating funds for payment of withheld taxes and did, in fact, pay withheld taxes during the period February 1, 1969, to July 15, 1969." App. 30. The bankruptcy judge found, and the IRS concedes, that the $249,212 in taxes paid during this period was approximately sufficient to defray current tax obligations. No taxes owing for periods prior to February 1, were paid, however, and in July 1969 the corporations terminated operations and filed for bankruptcy. II Several provisions of the Internal Revenue Code require third persons to collect taxes from the taxpayer. Among the more important are 26 U.S. C. §§ 3102 (a) and 3402 (a) (1970 *243 ed. and Supp. V) which respectively require deduction from wages paid to employees of the employees' share of FICA taxes, and the withholding tax on wages applicable to individual income taxes. The withheld sums are commonly referred to as "trust fund taxes," reflecting the Code's provision that such withholdings or collections are deemed to be a "special fund in trust for the United States." 26 U.S. C. § 7501 (a). There is no general requirement that the withheld sums be segregated from the employer's general funds, however, or that they be deposited in a separate bank account until required to be paid to the Treasury. Because the Code requires the employer to collect taxes as wages are paid, § 3102 (a), while requiring payment of such taxes only quarterly,[2] the funds accumulated during the quarter can be a tempting source of ready cash to a failing corporation beleaguered by creditors.[3] Once net wages are paid to the employee, the taxes withheld are credited to the employee regardless of whether they are paid by the employer, so that the IRS has recourse only against the employer for their payment.[4] An employer who fails to pay taxes withheld from its employees' wages is, of course, liable for the taxes which should have been paid, §§ 3102 (b) and 3403. The IRS has several means at its disposal to effect payment of the taxes so withheld. *244 First, once it has been determined that an employer has been inexcusably delinquent, the IRS, upon giving hand-delivered notice, may require the employer, thereafter, and until further notice, to deposit withheld taxes in a special bank trust account within two banking days after collection, to be retained there until required to be paid to the Treasury at the quarter's end. § 7512. Second, with respect to trust funds past due prior to any such notification, the amount collected or withheld "shall be held to be a special fund in trust for the United States [and] [t]he amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose." 26 U.S. C. § 7501. Thus there is made applicable to employment taxes withheld but not paid the full range of collection methods available for the collection of taxes generally. After assessment, notice, and demand,[5] the IRS may, therefore, create a lien upon the property of the employer, § 6321, and levy, distrain, and sell the employer's property in satisfaction. §§ 6331 to 6344 (1970 ed. and Supp. V). Third, penalties may be assessed against the delinquent employer. Section 6656 of the Code imposes a penalty of 5% of the underpayment of any tax required to be deposited, and 26 U.S. C. §§ 7202 and 7215 provide criminal penalties respectively for willful failure to "collect or truthfully account for and pay over" trust-fund taxes, and for failure to comply with the requirements of § 7512, discussed supra, regarding special accounting requirements upon notice by the Secretary. Finally, as in this case, the officers or employees of the employer responsible for effectuating the collection and payment *245 of trust-fund taxes who willfully fail to do so are made personally liable to a "penalty" equal to the amount of the delinquent taxes. Section 6672 provides, inter alia: "Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. . . ." Section 6671 (b) defines "person," for purposes of § 6672, as including "an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs." Also, § 7202 of the Code,[6] which tracks the wording of § 6672, makes a violation punishable as a felony subject to a fine of $10,000, and imprisonment for 5 years. Thus, an employer-official or other employee responsible for collecting and paying taxes who willfully fails to do so is subject to both a civil penalty equivalent to 100% of the taxes not collected or paid, and to a felony conviction. Only the application to petitioner of the civil penalty provision, § 6672, is at issue in this case. III When the same individual or individuals who caused the delinquency in any tax quarter are also the "responsible persons"[7]*246 at the time the Government's efforts to collect from the employer have failed, and it seeks recourse against the "responsible employees," see IRS Policy Statement P-5-60, IRS Manual, MT 1218-56 (Feb. 25, 1976), there is no question that § 6672 is applicable to them. It is the situation that arises when there has been a change of control of the employer enterprise, here corporations, prior to the expiration of a tax quarter, or at a time when a tax delinquency for past quarters already exists that creates the question for our decision. In this case, petitioner assumed control at a time when a delinquency existed for unpaid trust-fund taxes, while the specific funds withheld but not paid had been dissipated by predecessor officers and when the corporations had no liquid assets with which to pay the overdue taxes. A Petitioner concedes that he was subject to personal liability under § 6672 as a person responsible for the collection, accounting, and payment of employment taxes required to be withheld between January 31, 1969, when he assumed control of the corporations, and July 15, 1969, when he resigned. Tr. of Oral Arg. 8. His contention is that he was not, however, a responsible person within § 6672 with respect to taxes withheld prior to his assumption of control and that § 6672 consequently imposed no duty upon him to pay the taxes collected by his predecessors. Petitioner argues that this construction of § 6672 follows necessarily from the statute's limitation of personal liability to "[a]ny person required to collect, truthfully account for and pay over any tax imposed by this title," who willfully fails to discharge those responsibilities (emphasis added). He argues that since the obligations are phrased in *247 the conjunctive, a person can be subject to the section only if all three duties—(1) to collect, (2) truthfully account for, and (3) pay over—were applicable to him with respect to the tax dollars in question. See McCullough v. United States, 462 F.2d 588 (CA5 1972). On the other hand, as the Government argues, the language could be construed as describing, in terms of their general responsibilities, the persons potentially liable under the statute, without regard to whether those persons were in a position to perform all of the duties with respect to the specific tax dollars in question. Although neither construction is inconsistent with the language of the statute, we reject petitioner's as inconsistent with its purpose. Sections 6672 and 7202 were designed to assure compliance by the employer with its obligation to withhold and pay the sums withheld, by subjecting the employer's officials responsible for the employer's decisions regarding withholding and payment to civil and criminal penalties for the employer's delinquency. If § 6672 were given petitioner's construction, the penalties easily could be evaded by changes in officials' responsibilities prior to the expiration of any quarter. Because the duty to pay over the tax arises only at the quarter's end, a "responsible person" who willfully failed to collect taxes would escape personal liability for that failure simply by resigning his position, and transferring to another the decisionmaking responsibility prior to the quarter's end.[8] Obversely, *248 a "responsible person" assuming control prior to the quarter's end could, without incurring personal liability under § 6672, willfully dissipate the trust funds collected and segregated by his predecessor.[9] That this result, obviously at odds with the statute's purpose to assure payment of withheld taxes, was not intended is buttressed by the history of the provision. The predecessor of § 6672, § 1308 (c), Revenue Act of 1918, 40 Stat. 1143, provided, inter alia: "Any person who willfully refuses to pay, collect, or truly account for and pay over [taxes enumerated in § 1308 (a)] shall ... be liable to a penalty of the amount of the tax evaded or not paid, collected, or accounted for and paid over ...."[10] The statute remained unchanged in this respect until 1954 when the successor section to § 1308 (c)[11]*249 was revised to its present form. Both before and after the 1954 revision the "person" potentially liable under the statute was defined in a separate provision, § 1308 (d), succeeded by present § 6671 (b), as, including "an officer or employee of a corporation or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs." When, in 1954, Congress added the phrase modifying "person"— "Any person required to collect, truthfully account for, and pay over any tax imposed by this title"—it was not seeking further to describe the class of persons defined in § 6671 (b) upon whom fell the responsibility for collecting taxes, but was attempting to clarify the type of tax to which the penalty section was applicable. Since under the 1954 amendment the penalty would otherwise be applicable to "any tax imposed by this title," the phrase modifying "person" was necessary to insure that the penalty provided by that section would be read as applicable only to failure to pay taxes which require collection, that is, third-party taxes, and not failure to pay "any tax imposed by this title," which, of course, would include direct taxes such as employer FICA and income taxes. As both the House and Senate Committees expressed it, "the application of this penalty is limited only to the collected or withheld taxes which are imposed on some person other than the person who is required to collect, account for and pay over, the tax."[12] Thus, by adding the *250 phrase modifying "person," Congress was attempting to clarify the type of tax to which the penalty section was applicable, perhaps inartfully, by reference to the duty of the person required to collect them. This view is supported by the fact that the Commissioner of Internal Revenue issued a regulation shortly after the amendment, limiting the application of the § 6672 penalty to third-party taxes. 22 Fed. Reg. 9148 (1957), now codified as Treas. Reg. § 301.6672-1, 26 CFR § 301.6672-1 (1977). We conclude therefore that the phrase "[a]ny person required to collect, truthfully account for, and pay over any tax imposed by this title" was meant to limit § 6672 to persons responsible for collection of third-party taxes and not to limit it to those persons in a position to perform all three of the enumerated duties with respect to the tax dollars in question.[13] We turn then to the Government's contention that petitioner was subject to personal liability under § 6672 when during the period in which he was a responsible person, the corporations generated gross receipts sufficient to pay the back taxes, but used the funds for other purposes. *251 B Although at the time petitioner became a responsible person the trust-fund taxes had been dissipated and the corporations had no liquid assets, the Government contends that § 6672 imposed civil liability upon petitioner because sums received from sales in carrying on the businesses after January 31, 1969, were impressed with a trust in favor of the United States for the satisfaction of overdue employment taxes, and petitioner's willful use of those funds to pay creditors other than the United States, violated the obligation to "pay over" imposed by § 6672. The Government does not argue that the statute requires a "responsible person" to liquidate corporate assets to pay the back taxes upon assuming control, however; it argues only that a trust was impressed on all cash received by the corporations. Tr. of Oral Arg. 26, 28-29, 30-31, 32. We think that that construction of § 6672 would not advance the statute's purpose and, moreover, is inconsistent with the context and legislative history of the provision and its relation to the Code's priority rule applicable to collection of back taxes. (1) The Government argues that its construction of the statute is necessary to effectuate the congressional purpose to assure collection and payment of taxes. Although that construction might in this case garner tax dollars otherwise uncollectible, its long-term effect arguably would more likely frustrate than aid the IRS's collection efforts. At the time petitioner assumed control, the corporations owed back taxes, were overdue on their supplier accounts, and had no cash. To the extent that the corporations had assets unencumbered by liens superior to a tax lien, the IRS could satisfy its claim by levy and sale. But as will often be the case, the corporations here apparently did not have such assets. The *252 Government admits that in such circumstances, the IRS's practice is to be "flexible," Tr. of Oral Arg. 27, 28, 32, 48, and does not insist that the corporation discontinue operations, thereby substituting for certain loss at least the potential of recovering back taxes if the corporation makes a financial recovery. It argues nevertheless that the "responsible person" renders himself personally liable to the § 6672 penalty by using gross receipts to purchase inventory or pay wages, or even by using personal funds for those purposes,[14] so long as any third-party employment tax bill remains unpaid.[15] Thus, although it is in the IRS's interest to encourage the responsible person to continue operation with the hope of receiving payment of the back taxes, if the attempt fails and the taxes remain unpaid, the IRS insists that the § 6672 personal-liability penalty attached upon payment of the first dollar to a supplier. The practical effect of that construction of the statute would be that a well-counseled person contemplating *253 assuming control of a financially beleaguered corporation owing back employment taxes would recognize that he could do so without incurring personal civil and criminal penalties only if there were available sufficient borrowed or personal funds fully to pay all back employment taxes before doing any business. If that course is unattractive or unavailable to the corporation, the Government will be remitted to its claim in bankruptcy. When an immediate filing for bankruptcy means a total loss, the Government understandably, as it did here, does not discourage the corporation from continuing to operate so long as current taxes are paid. As soon as the corporation embarks upon that course, however, the "responsible person" is potentially liable to heavy civil and criminal penalties not for doing anything which compromised the Government's collection efforts, but for doing what the Government regards as maximizing its chances for recovery. As construed by the Government, § 6672 would merely discourage changes of ownership and management of financially troubled corporations and the infusion of equity or debt funding which might accompany it without encouraging employer compliance with tax obligations or facilitating collection of back taxes. Thus, recovery of employer taxes would likely be limited to the situation in which the prospective purchaser or management official is ignorant of § 6672.[16] (2) As noted in the previous section, § 6672 as construed by the Government would, in effect, make the responsible person *254 assuming control of a business a guarantor for payment of the delinquent taxes simply by undertaking to continue operation of the business. That construction is precluded by the history and context of § 6672 and cognate provisions of the Code. Section 6672 cannot be read as imposing upon the responsible person an absolute duty to "pay over" amounts which should have been collected and withheld. The fact that the provision imposes a "penalty" and is violated only by a "willful failure" is itself strong evidence that it was not intended to impose liability without personal fault. Congress, moreover, has not made corporate officers personally liable for the corporation's tax obligations generally, and § 6672 therefore should be construed in a way which respects that policy choice. The Government's concession—that § 6672 does not impose a duty on the responsible officer to use personal funds or even to liquidate corporate assets to satisfy the tax obligations— recognizes that the "pay over" requirement does not impose an absolute duty on the responsible person to pay back taxes. Recognizing that the statute cannot be construed to impose liability without fault, the Government characterizes petitioner's use of gross receipts for payment of operating expenses as a breach of trust, arguing that a trust was impressed on all after-acquired cash. Nothing whatever in § 6672 or its legislative history suggests that the effect of the requirement to "pay over" was to impress a trust on the corporation's after-acquired cash, however. Moreover, the history of a related section, 26 U.S. C. § 7501,[17] makes clear that it was not. *255 Section 7501 of the Code provides, inter alia, that the "amount of tax . . . collected or withheld shall be held to be a special fund in trust for the United States [which] shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose." This section was enacted in 1934. Act of May 10, 1934, ch. 277, § 607, 48 Stat. 768, 26 U.S. C. § 3661 (1952 ed.). The provision was added to H. R. 7835, 73d Cong., 2d Sess., by the Senate Finance Committee, which explained: "Under existing law the liability of the person collecting and withholding the taxes to pay over the amount is merely a debt, and he cannot be treated as a trustee or proceeded against by distraint. Section [607] of the bill as reported impresses the amount of taxes withheld or collected with a trust and makes applicable for the enforcement of the Government's claim the administrative provisions for assessment and collection of taxes." S. Rep. No. 558, 73d Cong., 2d Sess., 53 (1934). Since the very reason for adding § 7501 was, as the Senate Report states, that "the liability of the person collecting and withholding the taxes . . . is merely a debt" (emphasis added), § 6672, whose predecessor section was enacted in 1919 while the debt concept prevailed, hardly could have been intended to impose a trust on after-acquired cash. We further reject the argument that § 7501, whose trust concept may be viewed as having modified the duty imposed under § 6672,[18] can be construed as establishing a fiduciary *256 obligation to pay over after-acquired cash unrelated to the withholding taxes. The language of § 7501 limits the trust to "the amount of the taxes withheld or collected." (Emphasis added.) Comparing that language with § 6672, which imposes liability for a willful failure to collect as well as failure to pay over, makes clear that under § 7501 there must be a nexus between the funds collected and the trust created. That construction is consistent with the accepted principle of trust law requiring tracing of misappropriated trust funds into the trustee's estate in order for an impressed trust to arise. See D. Dobbs, Handbook on the Law of Remedies 424-425 (1973). Finally, for the reasons discussed in the next section, a construction of § 7501 or § 6672 as imposing a trust on all after-acquired corporate funds without regard to the interests of others in those funds would conflict with the priority rules applicable to the collection of back taxes. (3) We developed in Part II, supra, that the Code affords the IRS several means to collect back taxes, including levy, distraint, and sale. But the IRS is not given the power to levy on property in the hands of the taxpayer beyond the extent of the taxpayer's interest in the property,[19] and the Code *257 specifically subordinates tax liens to the interests of certain others in the property, generally including those with a perfected security interest in the property.[20] For example, the Code and established decisional principles subordinate the tax lien to perfected security interests arising before the filing of the tax lien,[21] to certain perfected security interests in certain collateral, including inventory, arising after the tax lien filing when pursuant to a security agreement entered into before the filing,[22] and to collateral which is the subject of a purchase-money *258 mortgage regardless of whether the agreement was entered into before or after filing of the tax lien.[23] As a consequence, secured parties often will have interests in certain proceeds superior to the tax lien, and it is unlikely, moreover, that corporations in the position of those involved here could continue in operation without making some payments to secured *259 creditors under the terms of security agreements. Those payments may well take the form of cash or accounts receivable, which like other property may be subject to a security interest, when, for example, the security agreement covers the proceeds of inventory the purchase of which is financed by the secured party, or the security agreement requires the debtor to make payments under a purchase-money mortgage by assigning accounts receivable which are the proceeds of inventory financed by the mortgage.[24] Thus, although the IRS is powerless to attach assets in which a secured party has a superior interest, it would impose a penalty under § 6672 if the responsible person fails to divert the secured party's proceeds to the Treasury without regard to whether the secured party's interests are superior to those of the Government. Surely Congress did not intend § 6672 to hammer the responsible person with the threat of heavy civil and criminal penalties to pay over proceeds in which the Code does not assert a priority interest. IV We hold that a "responsible person" under § 6672 may violate the "pay over" requirement of that statute by willfully failing to pay over trust funds collected prior to his accession to control when at the time he assumed control the corporation has funds impressed with a trust under § 7501, but that § 7501 does not impress a trust on after-acquired funds, and that the responsible person consequently does not violate § 6672 by willfully using employer funds for purposes other than satisfaction of the trust-fund tax claims of the United States when at the time he assumed control there were no *260 funds with which to satisfy the tax obligation and the funds thereafter generated are not directly traceable to collected taxes referred to by that statute.[25] That portion of the judgment of the Court of Appeals on the Government's cross-appeal holding petitioner liable under § 6672 for wage withholding and FICA taxes required to be collected from employees' wages prior to January 31, 1969, is Reversed. MR.

Petitioner, an orthodontist by profession, on January 31, 1969, purchased the stock and assumed the management of three corporations engaged in the food vending business. The corporations were indebted at the time of the purchase for approximately $250,000 of taxes, including federal wage and Federal Insurance Contribution Act (FICA) taxes withheld from employees' wages prior to January 31. The sums withheld had not been paid over when due, however, but had been dissipated by the previous management before petitioner acquired the businesses. After petitioner assumed control, the corporations acquired funds sufficient to pay the taxes, but petitioner used the funds to pay employees' wages, rent, suppliers, and other creditors, and to meet other day-to-day expenses incurred in operating the businesses. The question to be decided is whether, in these circumstances, petitioner is personally liable under 6672 of the Internal Revenue Code of 1954, 26 U.S. C. 6672—which imposes personal liability for taxes on "[a] ny person required to collect, truthfully account *241 for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof"—for the corporations' unpaid taxes withheld from wages prior to his assumption of control. The Court of Appeals for the Sixth Circuit held that petitioner was personally liable under 6672 for the unpaid taxes. We granted certiorari.[1] We reverse. I The case arose from the filing by the Internal Revenue Service (IRS) of a claim for the taxes in a proceeding instituted by petitioner in July 1969 for a real property arrangement under Chapter X of the Bankruptcy Act. The facts determined after hearing by the bankruptcy judge, 74-2 USTC ¶ 9719 (ND Ohio 1974), are not challenged. Petitioner purchased and assumed managerial control of the Tas-Tee Catering, Tas-Tee Vending, and Charles Corporations on January 31, 1969. When he bought the stock, petitioner understood, and the purchase agreement reflected, that the corporations had an outstanding obligation for taxes in the amount of $250,000 due for payment on January 31, including withheld employee wage and FICA taxes (hereinafter trust-fund taxes). During the purchase negotiations, the sellers represented to petitioner that balances in the various corporate checking accounts were sufficient to pay these taxes as well as bills due other creditors. Relying on the representation, petitioner, on Saturday, February 1, sent four checks to the IRS in payment of the taxes. *242 On Monday, February 3, petitioner discovered that the accounts were overdrawn and stopped payment on the checks. Thus, at the time that petitioner assumed control, the corporations had no liquid assets, and whatever trust-fund taxes had been collected prior to petitioner's assumption of control had been dissipated. Petitioner immediately advised the IRS that the corporations had no funds with which to pay the taxes, and solicited guidance concerning how the corporations should proceed. App. 36. There was evidence that IRS officials advised petitioner that they had no objection to his continuing operations so long as current tax obligations were met, and that petitioner agreed to do so and to endeavor to pay the arrearages as soon as possible. Tr. 37-38. The IRS never represented that it would hold petitioner harmless under 6672 for the back taxes, however. To continue operations, petitioner deposited personal funds in the corporate acount, and, to obtain inventory, agreed with certain suppliers to pay cash upon delivery. During petitioner's tenure, from January 31 to July 15, 1969, the corporations' gross receipts approximated $130,000 per week for the first few months but declined thereafter. The corporations "established a system of segregating funds for payment of withheld taxes and did, in fact, pay withheld taxes during the period February 1, 1969, to July 15, 1969." App. 30. The bankruptcy judge found, and the IRS concedes, that the $249,212 in taxes paid during this period was approximately sufficient to defray current tax obligations. No taxes owing for periods prior to February 1, were paid, however, and in July 1969 the corporations terminated operations and filed for bankruptcy. Several provisions of the Internal Revenue Code require third persons to collect taxes from the taxpayer. Among the more important are 26 U.S. C. 3102 (a) and 3402 (a) (1970 *243 ed. and Supp. V) which respectively require deduction from wages paid to employees of the employees' share of FICA taxes, and the withholding tax on wages applicable to individual income taxes. The withheld sums are commonly referred to as "trust fund taxes," reflecting the Code's provision that such withholdings or collections are deemed to be a "special fund in trust for the United States." 26 U.S. C. 7501 (a). There is no general requirement that the withheld sums be segregated from the employer's general funds, however, or that they be deposited in a separate bank account until required to be paid to the Treasury. Because the Code requires the employer to collect taxes as wages are paid, 3102 (a), while requiring payment of such taxes only quarterly,[2] the funds accumulated during the quarter can be a tempting source of ready cash to a failing corporation beleaguered by creditors.[3] Once net wages are paid to the employee, the taxes withheld are credited to the employee regardless of whether they are paid by the employer, so that the IRS has recourse only against the employer for their payment.[4] An employer who fails to pay taxes withheld from its employees' wages is, of course, liable for the taxes which should have been paid, 3102 (b) and 3403. The IRS has several means at its disposal to effect payment of the taxes so withheld. *244 First, once it has been determined that an employer has been inexcusably delinquent, the IRS, upon giving hand-delivered notice, may require the employer, thereafter, and until further notice, to deposit withheld taxes in a special bank trust account within two banking days after collection, to be retained there until required to be paid to the Treasury at the quarter's end. 7512. Second, with respect to trust funds past due prior to any such notification, the amount collected or withheld "shall be held to be a special fund in trust for the United States [and] [t]he amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose." 26 U.S. C. 7501. Thus there is made applicable to employment taxes withheld but not paid the full range of collection methods available for the collection of taxes generally. After assessment, notice, and demand,[5] the IRS may, therefore, create a lien upon the property of the employer, 6321, and levy, distrain, and sell the employer's property in satisfaction. 6331 to 6344 (1970 ed. and Supp. V). Third, penalties may be assessed against the delinquent employer. Section 6656 of the Code imposes a penalty of 5% of the underpayment of any tax required to be deposited, and 26 U.S. C. 7202 and 7215 provide criminal penalties respectively for willful failure to "collect or truthfully account for and pay over" trust-fund taxes, and for failure to comply with the requirements of 7512, regarding special accounting requirements upon notice by the Secretary. Finally, as in this case, the officers or employees of the employer responsible for effectuating the collection and payment *245 of trust-fund taxes who willfully fail to do so are made personally liable to a "penalty" equal to the amount of the delinquent taxes. Section 6672 provides, inter alia: "Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over." Section 6671 (b) defines "person," for purposes of 6672, as including "an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs." Also, 7202 of the Code,[6] which tracks the wording of 6672, makes a violation punishable as a felony subject to a fine of $10,000, and imprisonment for 5 years. Thus, an employer-official or other employee responsible for collecting and paying taxes who willfully fails to do so is subject to both a civil penalty equivalent to 100% of the taxes not collected or paid, and to a felony conviction. Only the application to petitioner of the civil penalty provision, 6672, is at issue in this case. I When the same individual or individuals who caused the delinquency in any tax quarter are also the "responsible persons"[7]*246 at the time the Government's efforts to collect from the employer have failed, and it seeks recourse against the "responsible employees," see IRS Policy Statement P-5-60, IRS Manual, MT 1218-56 (Feb. 25, 1976), there is no question that 6672 is applicable to them. It is the situation that arises when there has been a change of control of the employer enterprise, here corporations, prior to the expiration of a tax quarter, or at a time when a tax delinquency for past quarters already exists that creates the question for our decision. In this case, petitioner assumed control at a time when a delinquency existed for unpaid trust-fund taxes, while the specific funds withheld but not paid had been dissipated by predecessor officers and when the corporations had no liquid assets with which to pay the overdue taxes. A Petitioner concedes that he was subject to personal liability under 6672 as a person responsible for the collection, accounting, and payment of employment taxes required to be withheld between January 31, 1969, when he assumed control of the corporations, and July 15, 1969, when he resigned. Tr. of Oral Arg. 8. His contention is that he was not, however, a responsible person within 6672 with respect to taxes withheld prior to his assumption of control and that 6672 consequently imposed no duty upon him to pay the taxes collected by his predecessors. Petitioner argues that this construction of 6672 follows necessarily from the statute's limitation of personal liability to "[a]ny person required to collect, truthfully account for and pay over any tax imposed by this title," who willfully fails to discharge those responsibilities (emphasis added). He argues that since the obligations are phrased in *247 the conjunctive, a person can be subject to the section only if all three duties—(1) to collect, (2) truthfully account for, and (3) pay over—were applicable to him with respect to the tax dollars in question. See On the other hand, as the Government argues, the language could be construed as describing, in terms of their general responsibilities, the persons potentially liable under the statute, without regard to whether those persons were in a position to perform all of the duties with respect to the specific tax dollars in question. Although neither construction is inconsistent with the language of the statute, we reject petitioner's as inconsistent with its purpose. Sections 6672 and 7202 were designed to assure compliance by the employer with its obligation to withhold and pay the sums withheld, by subjecting the employer's officials responsible for the employer's decisions regarding withholding and payment to civil and criminal penalties for the employer's delinquency. If 6672 were given petitioner's construction, the penalties easily could be evaded by changes in officials' responsibilities prior to the expiration of any quarter. Because the duty to pay over the tax arises only at the quarter's end, a "responsible person" who willfully failed to collect taxes would escape personal liability for that failure simply by resigning his position, and transferring to another the decisionmaking responsibility prior to the quarter's end.[8] Obversely, *248 a "responsible person" assuming control prior to the quarter's end could, without incurring personal liability under 6672, willfully dissipate the trust funds collected and segregated by his predecessor.[9] That this result, obviously at odds with the statute's purpose to assure payment of withheld taxes, was not intended is buttressed by the history of the provision. The predecessor of 6672, 1308 (c), Revenue Act of 1918, provided, inter alia: "Any person who willfully refuses to pay, collect, or truly account for and pay over [taxes enumerated in 1308 (a)] shall be liable to a penalty of the amount of the tax evaded or not paid, collected, or accounted for and paid over"[10] The statute remained unchanged in this respect until 1954 when the successor section to 1308 (c)[11]*249 was revised to its present form. Both before and after the 1954 revision the "person" potentially liable under the statute was defined in a separate provision, 1308 (d), succeeded by present 6671 (b), as, including "an officer or employee of a corporation or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs." When, in 1954, Congress added the phrase modifying "person"— "Any person required to collect, truthfully account for, and pay over any tax imposed by this title"—it was not seeking further to describe the class of persons defined in 6671 (b) upon whom fell the responsibility for collecting taxes, but was attempting to clarify the type of tax to which the penalty section was applicable. Since under the 1954 amendment the penalty would otherwise be applicable to "any tax imposed by this title," the phrase modifying "person" was necessary to insure that the penalty provided by that section would be read as applicable only to failure to pay taxes which require collection, that is, third-party taxes, and not failure to pay "any tax imposed by this title," which, of course, would include direct taxes such as employer FICA and income taxes. As both the House and Senate Committees expressed it, "the application of this penalty is limited only to the collected or withheld taxes which are imposed on some person other than the person who is required to collect, account for and pay over, the tax."[12] Thus, by adding the *250 phrase modifying "person," Congress was attempting to clarify the type of tax to which the penalty section was applicable, perhaps inartfully, by reference to the duty of the person required to collect them. This view is supported by the fact that the Commissioner of Internal Revenue issued a regulation shortly after the amendment, limiting the application of the 6672 penalty to third-party taxes. (1957), now codified as Treas. Reg. 301.6672-1, 26 CFR 301.6672-1 We conclude therefore that the phrase "[a]ny person required to collect, truthfully account for, and pay over any tax imposed by this title" was meant to limit 6672 to persons responsible for collection of third-party taxes and not to limit it to those persons in a position to perform all three of the enumerated duties with respect to the tax dollars in question.[13] We turn then to the Government's contention that petitioner was subject to personal liability under 6672 when during the period in which he was a responsible person, the corporations generated gross receipts sufficient to pay the back taxes, but used the funds for other purposes. *251 B Although at the time petitioner became a responsible person the trust-fund taxes had been dissipated and the corporations had no liquid assets, the Government contends that 6672 imposed civil liability upon petitioner because sums received from sales in carrying on the businesses after January 31, 1969, were impressed with a trust in favor of the United States for the satisfaction of overdue employment taxes, and petitioner's willful use of those funds to pay creditors other than the United States, violated the obligation to "pay over" imposed by 6672. The Government does not argue that the statute requires a "responsible person" to liquidate corporate assets to pay the back taxes upon assuming control, however; it argues only that a trust was impressed on all cash received by the corporations. Tr. of Oral Arg. 26, 28-29, 30-31, 32. We think that that construction of 6672 would not advance the statute's purpose and, moreover, is inconsistent with the context and legislative history of the provision and its relation to the Code's priority rule applicable to collection of back taxes. (1) The Government argues that its construction of the statute is necessary to effectuate the congressional purpose to assure collection and payment of taxes. Although that construction might in this case garner tax dollars otherwise uncollectible, its long-term effect arguably would more likely frustrate than aid the IRS's collection efforts. At the time petitioner assumed control, the corporations owed back taxes, were overdue on their supplier accounts, and had no cash. To the extent that the corporations had assets unencumbered by liens superior to a tax lien, the IRS could satisfy its claim by levy and sale. But as will often be the case, the corporations here apparently did not have such assets. The *252 Government admits that in such circumstances, the IRS's practice is to be "flexible," Tr. of Oral Arg. 27, 28, 32, 48, and does not insist that the corporation discontinue operations, thereby substituting for certain loss at least the potential of recovering back taxes if the corporation makes a financial recovery. It argues nevertheless that the "responsible person" renders himself personally liable to the 6672 penalty by using gross receipts to purchase inventory or pay wages, or even by using personal funds for those purposes,[14] so long as any third-party employment tax bill remains unpaid.[15] Thus, although it is in the IRS's interest to encourage the responsible person to continue operation with the hope of receiving payment of the back taxes, if the attempt fails and the taxes remain unpaid, the IRS insists that the 6672 personal-liability penalty attached upon payment of the first dollar to a supplier. The practical effect of that construction of the statute would be that a well-counseled person contemplating *253 assuming control of a financially beleaguered corporation owing back employment taxes would recognize that he could do so without incurring personal civil and criminal penalties only if there were available sufficient borrowed or personal funds fully to pay all back employment taxes before doing any business. If that course is unattractive or unavailable to the corporation, the Government will be remitted to its claim in bankruptcy. When an immediate filing for bankruptcy means a total loss, the Government understandably, as it did here, does not discourage the corporation from continuing to operate so long as current taxes are paid. As soon as the corporation embarks upon that course, however, the "responsible person" is potentially liable to heavy civil and criminal penalties not for doing anything which compromised the Government's collection efforts, but for doing what the Government regards as maximizing its chances for recovery. As construed by the Government, 6672 would merely discourage changes of ownership and management of financially troubled corporations and the infusion of equity or debt funding which might accompany it without encouraging employer compliance with tax obligations or facilitating collection of back taxes. Thus, recovery of employer taxes would likely be limited to the situation in which the prospective purchaser or management official is ignorant of 6672.[16] (2) As noted in the previous section, 6672 as construed by the Government would, in effect, make the responsible person *254 assuming control of a business a guarantor for payment of the delinquent taxes simply by undertaking to continue operation of the business. That construction is precluded by the history and context of 6672 and cognate provisions of the Code. Section 6672 cannot be read as imposing upon the responsible person an absolute duty to "pay over" amounts which should have been collected and withheld. The fact that the provision imposes a "penalty" and is violated only by a "willful failure" is itself strong evidence that it was not intended to impose liability without personal fault. Congress, moreover, has not made corporate officers personally liable for the corporation's tax obligations generally, and 6672 therefore should be construed in a way which respects that policy choice. The Government's concession—that 6672 does not impose a duty on the responsible officer to use personal funds or even to liquidate corporate assets to satisfy the tax obligations— recognizes that the "pay over" requirement does not impose an absolute duty on the responsible person to pay back taxes. Recognizing that the statute cannot be construed to impose liability without fault, the Government characterizes petitioner's use of gross receipts for payment of operating expenses as a breach of trust, arguing that a trust was impressed on all after-acquired cash. Nothing whatever in 6672 or its legislative history suggests that the effect of the requirement to "pay over" was to impress a trust on the corporation's after-acquired cash, however. Moreover, the history of a related section, 26 U.S. C. 7501,[17] makes clear that it was not. *255 Section 7501 of the Code provides, inter alia, that the "amount of tax collected or withheld shall be held to be a special fund in trust for the United States [which] shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose." This section was enacted in 1934. Act of May 10, 1934, ch. 277, 607, 26 U.S. C. 3661 (1952 ed.). The provision was added to H. R. 7835, 73d Cong., 2d Sess., by the Senate Finance Committee, which explained: "Under existing law the liability of the person collecting and withholding the taxes to pay over the amount is merely a debt, and he cannot be treated as a trustee or proceeded against by distraint. Section [607] of the bill as reported impresses the amount of taxes withheld or collected with a trust and makes applicable for the enforcement of the Government's claim the administrative provisions for assessment and collection of taxes." S. Rep. No. 558, 73d Cong., 2d Sess., 53 (1934). Since the very reason for adding 7501 was, as the Senate Report states, that "the liability of the person collecting and withholding the taxes is merely a debt" (emphasis added), 6672, whose predecessor section was enacted in 1919 while the debt concept prevailed, hardly could have been intended to impose a trust on after-acquired cash. We further reject the argument that 7501, whose trust concept may be viewed as having modified the duty imposed under 6672,[18] can be construed as establishing a fiduciary *256 obligation to pay over after-acquired cash unrelated to the withholding taxes. The language of 7501 limits the trust to "the amount of the taxes withheld or collected." (Emphasis added.) Comparing that language with 6672, which imposes liability for a willful failure to collect as well as failure to pay over, makes clear that under 7501 there must be a nexus between the funds collected and the trust created. That construction is consistent with the accepted principle of trust law requiring tracing of misappropriated trust funds into the trustee's estate in order for an impressed trust to arise. See D. Dobbs, Handbook on the Law of Remedies 424-425 (1973). Finally, for the reasons in the next section, a construction of 7501 or 6672 as imposing a trust on all after-acquired corporate funds without regard to the interests of others in those funds would conflict with the priority rules applicable to the collection of back taxes. (3) We developed in Part that the Code affords the IRS several means to collect back taxes, including levy, distraint, and sale. But the IRS is not given the power to levy on property in the hands of the taxpayer beyond the extent of the taxpayer's interest in the property,[19] and the Code *257 specifically subordinates tax liens to the interests of certain others in the property, generally including those with a perfected security interest in the property.[20] For example, the Code and established decisional principles subordinate the tax lien to perfected security interests arising before the filing of the tax lien,[21] to certain perfected security interests in certain collateral, including inventory, arising after the tax lien filing when pursuant to a security agreement entered into before the filing,[22] and to collateral which is the subject of a purchase-money *258 mortgage regardless of whether the agreement was entered into before or after filing of the tax lien.[23] As a consequence, secured parties often will have interests in certain proceeds superior to the tax lien, and it is unlikely, moreover, that corporations in the position of those involved here could continue in operation without making some payments to secured *259 creditors under the terms of security agreements. Those payments may well take the form of cash or accounts receivable, which like other property may be subject to a security interest, when, for example, the security agreement covers the proceeds of inventory the purchase of which is financed by the secured party, or the security agreement requires the debtor to make payments under a purchase-money mortgage by assigning accounts receivable which are the proceeds of inventory financed by the mortgage.[24] Thus, although the IRS is powerless to attach assets in which a secured party has a superior interest, it would impose a penalty under 6672 if the responsible person fails to divert the secured party's proceeds to the Treasury without regard to whether the secured party's interests are superior to those of the Government. Surely Congress did not intend 6672 to hammer the responsible person with the threat of heavy civil and criminal penalties to pay over proceeds in which the Code does not assert a priority interest. IV We hold that a "responsible person" under 6672 may violate the "pay over" requirement of that statute by willfully failing to pay over trust funds collected prior to his accession to control when at the time he assumed control the corporation has funds impressed with a trust under 7501, but that 7501 does not impress a trust on after-acquired funds, and that the responsible person consequently does not violate 6672 by willfully using employer funds for purposes other than satisfaction of the trust-fund tax claims of the United States when at the time he assumed control there were no *260 funds with which to satisfy the tax obligation and the funds thereafter generated are not directly traceable to collected taxes referred to by that statute.[25] That portion of the judgment of the Court of Appeals on the Government's cross-appeal holding petitioner liable under 6672 for wage withholding and FICA taxes required to be collected from employees' wages prior to January 31, 1969, is Reversed. MR.

Justice Stevens

majority

Saenz v. Roe

https://www.courtlistener.com/opinion/118286/saenz-v-roe/

https://www.courtlistener.com/api/rest/v3/clusters/118286/

1998-052

In 1992, California enacted a statute limiting the maximum welfare benefits available to newly arrived residents. The scheme limits the amount payable to a family that has resided in the State for less than 12 months to the amount payable by the State of the family's prior residence. The questions presented by this case are whether the 1992 statute was constitutional when it was enacted and, if not, whether an amendment to the Social Security Act enacted by Congress in 1996 affects that determination. I California is not only one of the largest, most populated, and most beautiful States in the Nation; it is also one of the most generous. Like all other States, California has participated in several welfare programs authorized by the Social Security Act and partially funded by the Federal Government. Its programs, however, provide a higher level of benefits and serve more needy citizens than those of most other States. In one year the most expensive of those programs, Aid to Families with Dependent Children (AFDC), which was replaced in 1996 with Temporary Assistance to *493 Needy Families (TANF), provided benefits for an average of 2,645,814 persons per month at an annual cost to the State of $2.9 billion. In California the cash benefit for a family of two—a mother and one child—is $456 a month, but in the neighboring State of Arizona, for example, it is only $275. In 1992, in order to make a relatively modest reduction in its vast welfare budget, the California Legislature enacted § 11450.03 of the state Welfare and Institutions Code. That section sought to change the California AFDC program by limiting new residents, for the first year they live in California, to the benefits they would have received in the State of their prior residence.[1] Because in 1992 a state program either had to conform to federal specifications or receive a waiver from the Secretary of Health and Human Services in order to qualify for federal reimbursement, § 11450.03 required approval by the Secretary to take effect. In October 1992, the Secretary issued a waiver purporting to grant such approval. On December 21, 1992, three California residents who were eligible for AFDC benefits filed an action in the Eastern District of California challenging the constitutionality *494 of the durational residency requirement in § 11450.03. Each plaintiff alleged that she had recently moved to California to live with relatives in order to escape abusive family circumstances. One returned to California after living in Louisiana for seven years, the second had been living in Oklahoma for six weeks and the third came from Colorado. Each alleged that her monthly AFDC grant for the ensuing 12 months would be substantially lower under § 11450.03 than if the statute were not in effect. Thus, the former residents of Louisiana and Oklahoma would receive $190 and $341 respectively for a family of three even though the full California grant was $641; the former resident of Colorado, who had just one child, was limited to $280 a month as opposed to the full California grant of $504 for a family of two. The District Court issued a temporary restraining order and, after a hearing, preliminarily enjoined implementation of the statute. District Judge Levi found that the statute "produces substantial disparities in benefit levels and makes no accommodation for the different costs of living that exist in different states."[2] Relying primarily on our decisions in Shapiro v. Thompson, 394 U.S. 618 (1969), and Zobel v. Williams, 457 U.S. 55 (1982), he concluded that the statute placed "a penalty on the decision of new residents to migrate to the State and be treated on an equal basis with existing residents." Green v. Anderson, 811 F. Supp. 516, 521 (ED Cal. 1993). In his view, if the purpose of the measure was to deter migration by poor people into the State, it would be unconstitutional for that reason. And even if the purpose was only to conserve limited funds, the State had failed to explain why the entire burden of the saving should be imposed on new residents. The Court of Appeals summarily *495 affirmed for the reasons stated by the District Judge. Green v. Anderson, 26 F.3d 95 (CA9 1994). We granted the State's petition for certiorari. 513 U.S. 922 (1994). We were, however, unable to reach the merits because the Secretary's approval of § 11450.03 had been invalidated in a separate proceeding,[3] and the State had acknowledged that the Act would not be implemented without further action by the Secretary. We vacated the judgment and directed that the case be dismissed. Anderson v. Green, 513 U.S. 557 (1995) (per curiam).[4] Accordingly, § 11450.03 remained inoperative until after Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), 110 Stat. 2105. PRWORA replaced the AFDC program with TANF. The new statute expressly authorizes any State that receives a block grant under TANF to "apply to a family the rules (including benefit amounts) of the [TANF] program . . . of another State if the family has moved to the State from the other State and has resided in the State for less than 12 months." 110 Stat. 2124, 42 U.S. C. § 604(c) (1994 ed., Supp. II). With this federal statutory provision in effect, California no longer needed specific approval from the Secretary to implement § 11450.03. The California Department of Social Services therefore issued an "All County Letter" announcing that the enforcement of § 11450.03 would commence on April 1, 1997. The All County Letter clarifies certain aspects of the statute. Even if members of an eligible family had lived in California all of their lives, but left the State "on January 29th, intending to reside in another state, and returned on April 15th," their benefits are determined by the law of their State of residence from January 29 to April 15, assuming *496 that that level was lower than California's.[5] Moreover, the lower level of benefits applies regardless of whether the family was on welfare in the State of prior residence and regardless of the family's motive for moving to California. The instructions also explain that the residency requirement is inapplicable to families that recently arrived from another country. II On April 1, 1997, the two respondents filed this action in the Eastern District of California making essentially the same claims asserted by the plaintiffs in Anderson v. Green,[6] but also challenging the constitutionality of PRWORA's approval of the durational residency requirement. As in Green, the District Court issued a temporary restraining order and certified the case as a class action.[7] The court also advised the Attorney General of the United States that the constitutionality of a federal statute had been drawn into question, but she did not seek to intervene or to file an amicus brief. Reasoning that PRWORA permitted, but did not require, States to impose durational residency requirements, Judge Levi concluded that the existence of the federal statute did not affect the legal analysis in his prior opinion in Green. He did, however, make certain additional comments on the parties' factual contentions. He noted that the State did not challenge plaintiffs' evidence indicating that, although *497 California benefit levels were the sixth highest in the Nation in absolute terms,[8] when housing costs are factored in, they rank 18th; that new residents coming from 43 States would face higher costs of living in California; and that welfare benefit levels actually have little, if any, impact on the residential choices made by poor people. On the other hand, he noted that the availability of other programs such as homeless assistance and an additional food stamp allowance of $1 in stamps for every $3 in reduced welfare benefits partially offset the disparity between the benefits for new and old residents. Notwithstanding those ameliorating facts, the State did not disagree with plaintiffs' contention that § 11450.03 would create significant disparities between newcomers and welfare recipients who have resided in the State for over one year. The State relied squarely on the undisputed fact that the statute would save some $10.9 million in annual welfare costs—an amount that is surely significant even though only a relatively small part of its annual expenditures of approximately $2.9 billion for the entire program. It contended that this cost saving was an appropriate exercise of budgetary authority as long as the residency requirement did not penalize the right to travel. The State reasoned that the payment of the same benefits that would have been received in the State of prior residency eliminated any potentially punitive aspects of the measure. Judge Levi concluded, however, that the relevant comparison was not between new residents of California and the residents of their former States, but rather between the new residents and longer term residents of California. He therefore again enjoined the implementation of the statute. Without finally deciding the merits, the Court of Appeals affirmed his issuance of a preliminary injunction. Roe v. Anderson, 134 F.3d 1400 (CA9 1998). It agreed with the *498 District Court's view that the passage of PRWORA did not affect the constitutional analysis, that respondents had established a probability of success on the merits, and that class members might suffer irreparable harm if§ 11450.03 became operative. Although the decision of the Court of Appeals is consistent with the views of other federal courts that have addressed the issue,[9] we granted certiorari because of the importance of the case. Anderson v. Roe, 524 U.S. 982 (1998).[10] We now affirm. III The word "travel" is not found in the text of the Constitution. Yet the "constitutional right to travel from one State to another" is firmly embedded in our jurisprudence. United States v. Guest, 383 U.S. 745, 757 (1966). Indeed, as Justice Stewart reminded us in Shapiro v. Thompson, 394 U.S. 618 (1969), the right is so important that it is "assertable against private interference as well as governmental action . . . a virtually unconditional personal right, guaranteed by the Constitution to us all." Id., at 643 (concurring opinion). *499 In Shapiro, we reviewed the constitutionality of three statutory provisions that denied welfare assistance to residents of Connecticut, the District of Columbia, and Pennsylvania, who had resided within those respective jurisdictions less than one year immediately preceding their applications for assistance. Without pausing to identify the specific source of the right, we began by noting that the Court had long "recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." Id., at 629. We squarely held that it was "constitutionally impermissible" for a State to enact durational residency requirements for the purpose of inhibiting the migration by needy persons into the State.[11] We further held that a classification that had the effect of imposing a penalty on the exercise of the right to travel violated the Equal Protection Clause "unless shown to be necessary to promote a compelling governmental interest," id., at 634, and that no such showing had been made. In this case California argues that § 11450.03 was not enacted for the impermissible purpose of inhibiting migration by needy persons and that, unlike the legislation reviewed in Shapiro, it does not penalize the right to travel because new arrivals are not ineligible for benefits during their first year of residence. California submits that, instead *500 of being subjected to the strictest scrutiny, the statute should be upheld if it is supported by a rational basis and that the State's legitimate interest in saving over $10 million a year satisfies that test. Although the United States did not elect to participate in the proceedings in the District Court or the Court of Appeals, it has participated as amicus curiae in this Court. It has advanced the novel argument that the enactment of PRWORA allows the States to adopt a "specialized choice-of-law-type provision" that "should be subject to an intermediate level of constitutional review," merely requiring that durational residency requirements be "substantially related to an important governmental objective."[12] The debate about the appropriate standard of review, together with the potential relevance of the federal statute, persuades us that it will be useful to focus on the source of the constitutional right on which respondents rely. IV The "right to travel" discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State. It was the right to go from one place to another, including the right to cross state borders while en route, that was vindicated in Edwards v. California, 314 U.S. 160 (1941), which invalidated a state law that impeded the free interstate passage of the indigent. We reaffirmed that right in United States v. Guest, 383 U.S. 745 (1966), which afforded protection to the "`right to travel freely to and from the State of Georgia and to use highway facilities and other *501 instrumentalities of interstate commerce within the State of Georgia.' " Id., at 757. Given that § 11450.03 imposed no obstacle to respondents' entry into California, we think the State is correct when it argues that the statute does not directly impair the exercise of the right to free interstate movement. For the purposes of this case, therefore, we need not identify the source of that particular right in the text of the Constitution. The right of "free ingress and regress to and from" neighboring States, which was expressly mentioned in the text of the Articles of Confederation,[13] may simply have been "conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created." Id., at 758. The second component of the right to travel is, however, expressly protected by the text of the Constitution. The first sentence of Article IV, § 2, provides: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Thus, by virtue of a person's state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the "Privileges and Immunities of Citizens in the several States" that he visits.[14] This provision removes "from the citizens of each State the disabilities of alien age in the other States." Paul v. Virginia, 8 Wall. 168, 180 (1869) ("[W]ithout some *502 provision . . . removing from the citizens of each State the disabilities of alienage in the other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists"). It provides important protections for nonresidents who enter a State whether to obtain employment, Hicklin v. Orbeck, 437 U.S. 518 (1978), to procure medical services, Doe v. Bolton, 410 U.S. 179, 200 (1973), or even to engage in commercial shrimp fishing, Toomer v. Witsell, 334 U.S. 385 (1948). Those protections are not "absolute," but the Clause "does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States." Id., at 396. There may be a substantial reason for requiring the nonresident to pay more than the resident for a hunting license, see Baldwin v. Fish and Game Comm'n of Mont., 436 U.S. 371, 390-391 (1978), or to enroll in the state university, see Vlandis v. Kline, 412 U.S. 441, 445 (1973), but our cases have not identified any acceptable reason for qualifying the protection afforded by the Clause for "the `citizen of State A who ventures into State B' to settle there and establish a home." Zobel, 457 U. S., at 74 (O'Connor, J., concurring in judgment). Permissible justifications for discrimination between residents and nonresidents are simply inapplicable to a nonresident's exercise of the right to move into another State and become a resident of that State. What is at issue in this case, then, is this third aspect of the right to travel—the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State. That right is protected not only by the new arrival's status as a state citizen, but also by her status as a citizen of the United States.[15] That additional source *503 of protection is plainly identified in the opening words of the Fourteenth Amendment: "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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . . ."[16] Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases, 16 Wall. 36 (1873), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause "is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bonâ fide residence therein, with the same rights as other citizens of that State." Id., at 80. Justice Bradley, in dissent, used even stronger language to make the same point: "The states have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional *504 right to go to and reside in any State he chooses, and to claim citizenship therein, and an equality of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens." Id., at 112-113. That newly arrived citizens "have two political capacities, one state and one federal," adds special force to their claim that they have the same rights as others who share their citizenship.[17] Neither mere rationality nor some intermediate standard of review should be used to judge the constitutionality of a state rule that discriminates against some of its citizens because they have been domiciled in the State for less than a year. The appropriate standard may be more categorical than that articulated in Shapiro, see supra, at 499, but it is surely no less strict. V Because this case involves discrimination against citizens who have completed their interstate travel, the State's argument that its welfare scheme affects the right to travel only "incidentally" is beside the point. Were we concerned solely with actual deterrence to migration, we might be persuaded that a partial withholding of benefits constitutes a lesser incursion on the right to travel than an outright denial of all benefits. See Dunn v. Blumstein, 405 U.S. 330, 339 (1972). *505 But since the right to travel embraces the citizen's right to be treated equally in her new State of residence, the discriminatory classification is itself a penalty. It is undisputed that respondents and the members of the class that they represent are citizens of California and that their need for welfare benefits is unrelated to the length of time that they have resided in California. We thus have no occasion to consider what weight might be given to a citizen's length of residence if the bona fides of her claim to state citizenship were questioned. Moreover, because whatever benefits they receive will be consumed while they remain in California, there is no danger that recognition of their claim will encourage citizens of other States to establish residency for just long enough to acquire some readily portable benefit, such as a divorce or a college education, that will be enjoyed after they return to their original domicile. See, e. g., Sosna v. Iowa, 419 U.S. 393 (1975); Vlandis v. Kline, 412 U.S. 441 (1973). The classifications challenged in this case—and there are many—are defined entirely by (a) the period of residency in California and (b) the location of the prior residences of the disfavored class members. The favored class of beneficiaries includes all eligible California citizens who have resided there for at least one year, plus those new arrivals who last resided in another country or in a State that provides benefits at least as generous as California's. Thus, within the broad category of citizens who resided in California for less than a year, there are many who are treated like lifetime residents. And within the broad subcategory of new arrivals who are treated less favorably, there are many smaller classes whose benefit levels are determined by the law of the States from whence they came. To justify § 11450.03, California must therefore explain not only why it is sound fiscal policy to discriminate against those who have been citizens for less than a year, but also why it is permissible to apply such a variety of rules within that class. *506 These classifications may not be justified by a purpose to deter welfare applicants from migrating to California for three reasons. First, although it is reasonable to assume that some persons may be motivated to move for the purpose of obtaining higher benefits, the empirical evidence reviewed by the District Judge, which takes into account the high cost of living in California, indicates that the number of such persons is quite small—surely not large enough to justify a burden on those who had no such motive.[18] Second, California has represented to the Court that the legislation was not enacted for any such reason.[19] Third, even if it were, as we squarely held in Shapiro v. Thompson, 394 U.S. 618 (1969), such a purpose would be unequivocally impermissible. Disavowing any desire to fence out the indigent, California has instead advanced an entirely fiscal justification for its multitiered scheme. The enforcement of § 11450.03 will save the State approximately $10.9 million a year. The question is not whether such saving is a legitimate purpose but whether the State may accomplish that end by the discriminatory means it has chosen. An evenhanded, acrossthe-board reduction of about 72 cents per month for every beneficiary would produce the same result. But our negative answer to the question does not rest on the weakness of the State's purported fiscal justification. It rests on the fact that the Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence: "That Clause does not provide for, and does not allow for, degrees of citizenship based on length of residence." Zobel, 457 U. S., at 69. It is equally clear that the Clause does not tolerate a hierarchy of 45 subclasses of similarly situated *507 citizens based on the location of their prior residence.[20] Thus § 11450.03 is doubly vulnerable: Neither the duration of respondents' California residence, nor the identity of their prior States of residence, has any relevance to their need for benefits. Nor do those factors bear any relationship to the State's interest in making an equitable allocation of the funds to be distributed among its needy citizens. As in Shapiro, we reject any contributory rationale for the denial of benefits to new residents: "But we need not rest on the particular facts of these cases. Appellants' reasoning would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens." 394 U.S., at 632-633. See also Zobel, 457 U. S., at 64. In short, the State's legitimate interest in saving money provides no justification for its decision to discriminate among equally eligible citizens. VI The question that remains is whether congressional approval of durational residency requirements in the 1996 amendment to the Social Security Act somehow resuscitates the constitutionality of § 11450.03. That question is readily answered, for we have consistently held that Congress may not authorize the States to violate the Fourteenth Amendment.[21] Moreover, the protection afforded to the citizen by *508 the Citizenship Clause of that Amendment is a limitation on the powers of the National Government as well as the States. Article I of the Constitution grants Congress broad power to legislate in certain areas. Those legislative powers are, however, limited not only by the scope of the Framers' affirmative delegation, but also by the principle "that they may not be exercised in a way that violates other specific provisions of the Constitution. For example, Congress is granted broad power to `lay and collect Taxes,' but the taxing power, broad as it is, may not be invoked in such a way as to violate the privilege against self-incrimination." Williams v. Rhodes, 393 U.S. 23, 29 (1968) (footnote omitted). Congress has no affirmative power to authorize the States to violate the Fourteenth Amendment and is implicitly prohibited from passing legislation that purports to validate any such violation. "Section 5 of the Fourteenth Amendment gives Congress broad power indeed to enforce the command of the amendment and `to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion. . . .' Ex parte Virginia, 100 U.S. 339, 346 (1880). Congress' power under § 5, however, `is limited to adopting measures to enforce the guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these guarantees.' Katzenbach v. Morgan, 384 U.S. 641, 651, n. 10 (1966). Although we give deference to congressional decisions and classifications, neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment. See, e. g., Califano v. Goldfarb, 430 U.S. 199, 210 (1977); Williams v. Rhodes, 393 U.S. 23, 29 (1968)." Missis- sippi Univ. for Women v. Hogan, 458 U.S. 718, 732-733 (1982). *509 The Solicitor General does not unequivocally defend the constitutionality of § 11450.03. But he has argued that two features of PRWORA may provide a sufficient justification for state durational requirements to warrant further inquiry before finally passing on the section's validity, or perhaps that it is only invalid insofar as it applies to new arrivals who were not on welfare before they arrived in California.[22] He first points out that because the TANF program gives the States broader discretion than did AFDC, there will be significant differences among the States which may provide new incentives for welfare recipients to change their residences. He does not, however, persuade us that the disparities under the new program will necessarily be any greater than the differences under AFDC, which included such examples as the disparity between California's monthly benefit of $673 for a family of four with Mississippi's benefit of $144 for a comparable family. Moreover, we are not convinced that a policy of eliminating incentives to move to California provides a more permissible justification for classifying California citizens than a policy of imposing special burdens on new arrivals to deter them from moving into the State. Nor is the discriminatory impact of § 11450.03 abated by repeatedly characterizing it as "a sort of specialized choice-of-law rule."[23] California law alone discriminates among its own citizens on the basis of their prior residence. The Solicitor General also suggests that we should recognize the congressional concern addressed in the legislative history of PRWORA that the "States might engage in a `race to the bottom' in setting the benefit levels in their TANF *510 programs."[24] Again, it is difficult to see why that concern should be any greater under TANF than under AFDC. The evidence reviewed by the District Court indicates that the savings resulting from the discriminatory policy, if spread equitably throughout the entire program, would have only a miniscule impact on benefit levels. Indeed, as one of the legislators apparently interpreted this concern, it would logically prompt the States to reduce benefit levels sufficiently "to encourage emigration of benefit recipients."[25] But speculation about such an unlikely eventuality provides no basis for upholding § 11450.03. Finally, the Solicitor General suggests that the State's discrimination might be acceptable if California had limited the disfavored subcategories of new citizens to those who had received aid in their prior State of residence at any time within the year before their arrival in California. The suggestion is ironic for at least three reasons: It would impose the most severe burdens on the neediest members of the disfavored classes; it would significantly reduce the savings that the State would obtain, thus making the State's claimed justification even less tenable; and, it would confine the effect of the statute to what the Solicitor General correctly characterizes as "the invidious purpose of discouraging poor people generally from settling in the State."[26] * * * Citizens of the United States, whether rich or poor, have the right to choose to be citizens "of the State wherein they *511 reside." U. S. Const., Amdt. 14, § 1. The States, however, do not have any right to select their citizens.[27] The Fourteenth Amendment, like the Constitution itself, was, as Justice Cardozo put it, "framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division." Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 523 (1935). The judgment of the Court of Appeals is affirmed. It is so ordered.

In 1992, California enacted a statute limiting the maximum welfare benefits available to newly arrived residents. The scheme limits the amount payable to a family that has resided in the State for less than 12 months to the amount payable by the State of the family's prior residence. The questions presented by this case are whether the 1992 statute was constitutional when it was enacted and, if not, whether an amendment to the Social Security Act enacted by Congress in 1996 affects that determination. I California is not only one of the largest, most populated, and most beautiful States in the Nation; it is also one of the most generous. Like all other States, California has participated in several welfare programs authorized by the Social Security Act and partially funded by the Federal Government. Its programs, however, provide a higher level of benefits and serve more needy citizens than those of most other States. In one year the most expensive of those programs, Aid to Families with Dependent Children (AFDC), which was replaced in 1996 with Temporary Assistance to *493 Needy Families (TANF), provided benefits for an average of 2,645,814 persons per month at an annual cost to the State of $2.9 billion. In California the cash benefit for a family of two—a mother and one child—is $456 a month, but in the neighboring State of Arizona, for example, it is only $275. In 1992, in order to make a relatively modest reduction in its vast welfare budget, the California Legislature enacted 11450.03 of the state Welfare and Institutions Code. That section sought to change the California AFDC program by limiting new residents, for the first year they live in California, to the benefits they would have received in the State of their prior residence.[1] Because in 1992 a state program either had to conform to federal specifications or receive a waiver from the Secretary of Health and Human Services in order to qualify for federal reimbursement, 11450.03 required approval by the Secretary to take effect. In October 1992, the Secretary issued a waiver purporting to grant such approval. On December 21, 1992, three California residents who were eligible for AFDC benefits filed an action in the Eastern District of California challenging the constitutionality *494 of the durational residency requirement in 11450.03. Each plaintiff alleged that she had recently moved to California to live with relatives in order to escape abusive family circumstances. One returned to California after living in Louisiana for seven years, the second had been living in Oklahoma for six weeks and the third came from Colorado. Each alleged that her monthly AFDC grant for the ensuing 12 months would be substantially lower under 11450.03 than if the statute were not in effect. Thus, the former residents of Louisiana and Oklahoma would receive $190 and $341 respectively for a family of three even though the full California grant was $641; the former resident of Colorado, who had just one child, was limited to $280 a month as opposed to the full California grant of $504 for a family of two. The District Court issued a temporary restraining order and, after a hearing, preliminarily enjoined implementation of the statute. District Judge Levi found that the statute "produces substantial disparities in benefit levels and makes no accommodation for the different costs of living that exist in different states."[2] Relying primarily on our decisions in and he concluded that the statute placed "a penalty on the decision of new residents to migrate to the State and be treated on an equal basis with existing residents." In his view, if the purpose of the measure was to deter migration by poor people into the State, it would be unconstitutional for that reason. And even if the purpose was only to conserve limited funds, the State had failed to explain why the entire burden of the saving should be imposed on new residents. The Court of Appeals summarily *495 affirmed for the reasons stated by the District Judge. We granted the State's petition for certiorari. We were, however, unable to reach the merits because the Secretary's approval of 11450.03 had been invalidated in a separate proceeding,[3] and the State had acknowledged that the Act would not be implemented without further action by the Secretary. We vacated the judgment and directed that the case be dismissed.[4] Accordingly, 11450.03 remained inoperative until after Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), PRWORA replaced the AFDC program with TANF. The new statute expressly authorizes any State that receives a block grant under TANF to "apply to a family the rules (including benefit amounts) of the [TANF] program of another State if the family has moved to the State from the other State and has resided in the State for less than 12 months." 42 U.S. C. 604(c) ( ed., Supp. II). With this federal statutory provision in effect, California no longer needed specific approval from the Secretary to implement 11450.03. The California Department of Social Services therefore issued an "All County Letter" announcing that the enforcement of 11450.03 would commence on April 1, 1997. The All County Letter clarifies certain aspects of the statute. Even if members of an eligible family had lived in California all of their lives, but left the State "on January th, intending to reside in another state, and returned on April 15th," their benefits are determined by the law of their State of residence from January to April 15, assuming *496 that that level was lower than California's.[5] Moreover, the lower level of benefits applies regardless of whether the family was on welfare in the State of prior residence and regardless of the family's motive for moving to California. The instructions also explain that the residency requirement is inapplicable to families that recently arrived from another country. II On April 1, 1997, the two respondents filed this action in the Eastern District of California making essentially the same claims asserted by the plaintiffs in[6] but also challenging the constitutionality of PRWORA's approval of the durational residency requirement. As in Green, the District Court issued a temporary restraining order and certified the case as a class action.[7] The court also advised the Attorney General of the United States that the constitutionality of a federal statute had been drawn into question, but she did not seek to intervene or to file an amicus brief. Reasoning that PRWORA permitted, but did not require, States to impose durational residency requirements, Judge Levi concluded that the existence of the federal statute did not affect the legal analysis in his prior opinion in Green. He did, however, make certain additional comments on the parties' factual contentions. He noted that the State did not challenge plaintiffs' evidence indicating that, although *497 California benefit levels were the sixth highest in the Nation in absolute terms,[8] when housing costs are factored in, they rank 18th; that new residents coming from 43 States would face higher costs of living in California; and that welfare benefit levels actually have little, if any, impact on the residential choices made by poor people. On the other hand, he noted that the availability of other programs such as homeless assistance and an additional food stamp allowance of $1 in stamps for every $3 in reduced welfare benefits partially offset the disparity between the benefits for new and old residents. Notwithstanding those ameliorating facts, the State did not disagree with plaintiffs' contention that 11450.03 would create significant disparities between newcomers and welfare recipients who have resided in the State for over one year. The State relied squarely on the undisputed fact that the statute would save some $10.9 million in annual welfare costs—an amount that is surely significant even though only a relatively small part of its annual expenditures of approximately $2.9 billion for the entire program. It contended that this cost saving was an appropriate exercise of budgetary authority as long as the residency requirement did not penalize the right to travel. The State reasoned that the payment of the same benefits that would have been received in the State of prior residency eliminated any potentially punitive aspects of the measure. Judge Levi concluded, however, that the relevant comparison was not between new residents of California and the residents of their former States, but rather between the new residents and longer term residents of California. He therefore again enjoined the implementation of the statute. Without finally deciding the merits, the Court of Appeals affirmed his issuance of a preliminary injunction. It agreed with the *498 District Court's view that the passage of PRWORA did not affect the constitutional analysis, that respondents had established a probability of success on the merits, and that class members might suffer irreparable harm if 11450.03 became operative. Although the decision of the Court of Appeals is consistent with the views of other federal courts that have addressed the issue,[9] we granted certiorari because of the importance of the case.[10] We now affirm. III The word "travel" is not found in the text of the Constitution. Yet the "constitutional right to travel from one State to another" is firmly embedded in our jurisprudence. United Indeed, as Justice Stewart reminded us in the right is so important that it is "assertable against private interference as well as governmental action a virtually unconditional personal right, guaranteed by the Constitution to us all." *499 In Shapiro, we reviewed the constitutionality of three statutory provisions that denied welfare assistance to residents of Connecticut, the District of Columbia, and Pennsylvania, who had resided within those respective jurisdictions less than one year immediately preceding their applications for assistance. Without pausing to identify the specific source of the right, we began by noting that the Court had long "recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." We squarely held that it was "constitutionally impermissible" for a State to enact durational residency requirements for the purpose of inhibiting the migration by needy persons into the State.[11] We further held that a classification that had the effect of imposing a penalty on the exercise of the right to travel violated the Equal Protection Clause "unless shown to be necessary to promote a compelling governmental interest," and that no such showing had been made. In this case California argues that 11450.03 was not enacted for the impermissible purpose of inhibiting migration by needy persons and that, unlike the legislation reviewed in Shapiro, it does not penalize the right to travel because new arrivals are not ineligible for benefits during their first year of residence. California submits that, instead *500 of being subjected to the strictest scrutiny, the statute should be upheld if it is supported by a rational basis and that the State's legitimate interest in saving over $10 million a year satisfies that test. Although the United States did not elect to participate in the proceedings in the District Court or the Court of Appeals, it has participated as amicus curiae in this Court. It has advanced the novel argument that the enactment of PRWORA allows the States to adopt a "specialized choice-of-law-type provision" that "should be subject to an intermediate level of constitutional review," merely requiring that durational residency requirements be "substantially related to an important governmental objective."[12] The debate about the appropriate standard of review, together with the potential relevance of the federal statute, persuades us that it will be useful to focus on the source of the constitutional right on which respondents rely. IV The "right to travel" discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State. It was the right to go from one place to another, including the right to cross state borders while en route, that was vindicated in which invalidated a state law that impeded the free interstate passage of the indigent. We reaffirmed that right in United which afforded protection to the "`right to travel freely to and from the State of Georgia and to use highway facilities and other *501 instrumentalities of interstate commerce within the State of Georgia.' " at Given that 11450.03 imposed no obstacle to respondents' entry into California, we think the State is correct when it argues that the statute does not directly impair the exercise of the right to free interstate movement. For the purposes of this case, therefore, we need not identify the source of that particular right in the text of the Constitution. The right of "free ingress and regress to and from" neighboring States, which was expressly mentioned in the text of the Articles of Confederation,[13] may simply have been "conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created." The second component of the right to travel is, however, expressly protected by the text of the Constitution. The first sentence of Article IV, 2, provides: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Thus, by virtue of a person's state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the "Privileges and Immunities of Citizens in the several States" that he visits.[14] This provision removes "from the citizens of each State the disabilities of alien age in the other States." ("[W]ithout some *502 provision removing from the citizens of each State the disabilities of alienage in the other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists"). It provides important protections for nonresidents who enter a State whether to obtain employment, to procure medical services, or even to engage in commercial shrimp fishing, Those protections are not "absolute," but the Clause "does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States." There may be a substantial reason for requiring the nonresident to pay more than the resident for a hunting license, see or to enroll in the state university, see but our cases have not identified any acceptable reason for qualifying the protection afforded by the Clause for "the `citizen of State A who ventures into State B' to settle there and establish a home." Permissible justifications for discrimination between residents and nonresidents are simply inapplicable to a nonresident's exercise of the right to move into another State and become a resident of that State. What is at issue in this case, then, is this third aspect of the right to travel—the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State. That right is protected not only by the new arrival's status as a state citizen, but also by her status as a citizen of the United States.[15] That additional source *503 of protection is plainly identified in the opening words of the Fourteenth Amendment: "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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"[16] Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases, it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause "is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bonâ fide residence therein, with the same rights as other citizens of that State." Justice Bradley, in dissent, used even stronger language to make the same point: "The states have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional *504 right to go to and reside in any State he chooses, and to claim citizenship therein, and an equality of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens." That newly arrived citizens "have two political capacities, one state and one federal," adds special force to their claim that they have the same rights as others who share their citizenship.[17] Neither mere rationality nor some intermediate standard of review should be used to judge the constitutionality of a state rule that discriminates against some of its citizens because they have been domiciled in the State for less than a year. The appropriate standard may be more categorical than that articulated in Shapiro, see but it is surely no less strict. V Because this case involves discrimination against citizens who have completed their interstate travel, the State's argument that its welfare scheme affects the right to travel only "incidentally" is beside the point. Were we concerned solely with actual deterrence to migration, we might be persuaded that a partial withholding of benefits constitutes a lesser incursion on the right to travel than an outright denial of all benefits. See *505 But since the right to travel embraces the citizen's right to be treated equally in her new State of residence, the discriminatory classification is itself a penalty. It is undisputed that respondents and the members of the class that they represent are citizens of California and that their need for welfare benefits is unrelated to the length of time that they have resided in California. We thus have no occasion to consider what weight might be given to a citizen's length of residence if the bona fides of her claim to state citizenship were questioned. Moreover, because whatever benefits they receive will be consumed while they remain in California, there is no danger that recognition of their claim will encourage citizens of other States to establish residency for just long enough to acquire some readily portable benefit, such as a divorce or a college education, that will be enjoyed after they return to their original domicile. See, e. g., ; The classifications challenged in this case—and there are many—are defined entirely by (a) the period of residency in California and (b) the location of the prior residences of the disfavored class members. The favored class of beneficiaries includes all eligible California citizens who have resided there for at least one year, plus those new arrivals who last resided in another country or in a State that provides benefits at least as generous as California's. Thus, within the broad category of citizens who resided in California for less than a year, there are many who are treated like lifetime residents. And within the broad subcategory of new arrivals who are treated less favorably, there are many smaller classes whose benefit levels are determined by the law of the States from whence they came. To justify 11450.03, California must therefore explain not only why it is sound fiscal policy to discriminate against those who have been citizens for less than a year, but also why it is permissible to apply such a variety of rules within that class. *506 These classifications may not be justified by a purpose to deter welfare applicants from migrating to California for three reasons. First, although it is reasonable to assume that some persons may be motivated to move for the purpose of obtaining higher benefits, the empirical evidence reviewed by the District Judge, which takes into account the high cost of living in California, indicates that the number of such persons is quite small—surely not large enough to justify a burden on those who had no such motive.[18] Second, California has represented to the Court that the legislation was not enacted for any such reason.[19] Third, even if it were, as we squarely held in such a purpose would be unequivocally impermissible. Disavowing any desire to fence out the indigent, California has instead advanced an entirely fiscal justification for its multitiered scheme. The enforcement of 11450.03 will save the State approximately $10.9 million a year. The question is not whether such saving is a legitimate purpose but whether the State may accomplish that end by the discriminatory means it has chosen. An evenhanded, acrossthe-board reduction of about 72 cents per month for every beneficiary would produce the same result. But our negative answer to the question does not rest on the weakness of the State's purported fiscal justification. It rests on the fact that the Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence: "That Clause does not provide for, and does not allow for, degrees of citizenship based on length of residence." It is equally clear that the Clause does not tolerate a hierarchy of 45 subclasses of similarly situated *507 citizens based on the location of their prior residence.[20] Thus 11450.03 is doubly vulnerable: Neither the duration of respondents' California residence, nor the identity of their prior States of residence, has any relevance to their need for benefits. Nor do those factors bear any relationship to the State's interest in making an equitable allocation of the funds to be distributed among its needy citizens. As in Shapiro, we reject any contributory rationale for the denial of benefits to new residents: "But we need not rest on the particular facts of these cases. Appellants' reasoning would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens." -633. See also In short, the State's legitimate interest in saving money provides no justification for its decision to discriminate among equally eligible citizens. VI The question that remains is whether congressional approval of durational residency requirements in the 1996 amendment to the Social Security Act somehow resuscitates the constitutionality of 11450.03. That question is readily answered, for we have consistently held that Congress may not authorize the States to violate the Fourteenth Amendment.[21] Moreover, the protection afforded to the citizen by *508 the Citizenship Clause of that Amendment is a limitation on the powers of the National Government as well as the States. Article I of the Constitution grants Congress broad power to legislate in certain areas. Those legislative powers are, however, limited not only by the scope of the Framers' affirmative delegation, but also by the principle "that they may not be exercised in a way that violates other specific provisions of the Constitution. For example, Congress is granted broad power to `lay and collect Taxes,' but the taxing power, broad as it is, may not be invoked in such a way as to violate the privilege against self-incrimination." Congress has no affirmative power to authorize the States to violate the Fourteenth Amendment and is implicitly prohibited from passing legislation that purports to validate any such violation. "Section 5 of the Fourteenth Amendment gives Congress broad power indeed to enforce the command of the amendment and `to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion.' Ex parte Virginia, 100 U.S. Congress' power under 5, however, `is limited to adopting measures to enforce the guarantees of the Amendment; 5 grants Congress no power to restrict, abrogate, or dilute these guarantees.' Although we give deference to congressional decisions and classifications, neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment. See, e. g., ;" Missis- sippi Univ. for *509 The Solicitor General does not unequivocally defend the constitutionality of 11450.03. But he has argued that two features of PRWORA may provide a sufficient justification for state durational requirements to warrant further inquiry before finally passing on the section's validity, or perhaps that it is only invalid insofar as it applies to new arrivals who were not on welfare before they arrived in California.[22] He first points out that because the TANF program gives the States broader discretion than did AFDC, there will be significant differences among the States which may provide new incentives for welfare recipients to change their residences. He does not, however, persuade us that the disparities under the new program will necessarily be any greater than the differences under AFDC, which included such examples as the disparity between California's monthly benefit of $673 for a family of four with Mississippi's benefit of $144 for a comparable family. Moreover, we are not convinced that a policy of eliminating incentives to move to California provides a more permissible justification for classifying California citizens than a policy of imposing special burdens on new arrivals to deter them from moving into the State. Nor is the discriminatory impact of 11450.03 abated by repeatedly characterizing it as "a sort of specialized choice-of-law rule."[23] California law alone discriminates among its own citizens on the basis of their prior residence. The Solicitor General also suggests that we should recognize the congressional concern addressed in the legislative history of PRWORA that the "States might engage in a `race to the bottom' in setting the benefit levels in their TANF *510 programs."[24] Again, it is difficult to see why that concern should be any greater under TANF than under AFDC. The evidence reviewed by the District Court indicates that the savings resulting from the discriminatory policy, if spread equitably throughout the entire program, would have only a miniscule impact on benefit levels. Indeed, as one of the legislators apparently interpreted this concern, it would logically prompt the States to reduce benefit levels sufficiently "to encourage emigration of benefit recipients."[25] But speculation about such an unlikely eventuality provides no basis for upholding 11450.03. Finally, the Solicitor General suggests that the State's discrimination might be acceptable if California had limited the disfavored subcategories of new citizens to those who had received aid in their prior State of residence at any time within the year before their arrival in California. The suggestion is ironic for at least three reasons: It would impose the most severe burdens on the neediest members of the disfavored classes; it would significantly reduce the savings that the State would obtain, thus making the State's claimed justification even less tenable; and, it would confine the effect of the statute to what the Solicitor General correctly characterizes as "the invidious purpose of discouraging poor people generally from settling in the State."[26] * * * Citizens of the United States, whether rich or poor, have the right to choose to be citizens "of the State wherein they *511 reside." U. S. Const., Amdt. 14, 1. The States, however, do not have any right to select their citizens.[27] The Fourteenth Amendment, like the Constitution itself, was, as Justice Cardozo put it, "framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division." 4 U.S. 511, The judgment of the Court of Appeals is affirmed. It is so ordered.

Justice O'Connor

majority

Karcher v. May

https://www.courtlistener.com/opinion/111967/karcher-v-may/

https://www.courtlistener.com/api/rest/v3/clusters/111967/

1987-007

Alan J. Karcher and Carmen A. Orechio, the former presiding officers of the New Jersey Legislature, seek to appeal a judgment declaring a New Jersey statute unconstitutional. Their appeal presents the question whether public officials who have participated in a lawsuit solely in their official capacities may appeal an adverse judgment after they have left office. We hold that they may not. I In December 1982 the New Jersey Legislature enacted, over the Governor's veto, a statute requiring the State's primary and secondary public school educators to permit their students to observe a minute of silence before the start of each schoolday. The statute reads as follows: "Principals and teachers in each public elementary and secondary school of each school district in this State shall permit students to observe a 1 minute period of silence to be used solely at the discretion of the individual student, *75 before the opening exercises of each school day for quiet and private contemplation or introspection." N. J. Stat. Ann. § 18A:36-4 (West Supp. 1987). The New Jersey Attorney General immediately announced that he would not defend the statute if it were challenged. The statute became effective December 17, 1982, and within a month appellees — a New Jersey public school teacher, several public school students, and parents of public school students — challenged its constitutionality in federal court. Appellees sued under 42 U.S. C. § 1983, alleging that the statute violated the Establishment Clause of the First Amendment and seeking both declaratory and injunctive relief. They named as defendants the New Jersey Department of Education, its Commissioner, and two township boards of education. When it became apparent that neither the Attorney General nor the named defendants would defend the statute, Karcher and Orechio, as Speaker of the New Jersey General Assembly and President of the New Jersey Senate, respectively, sought and obtained permission to intervene as defendants on behalf of the legislature. Appellees entered into a stipulation dismissing the suit against the named defendants, but the District Court refused to accept the stipulation out of concern for the effect it might have on the jurisdictional posture of the case. The legislature, through its presiding officers, carried the entire burden of defending the statute. After a 5-day trial, the District Court declared the New Jersey statute unconstitutional. Applying the test set out in Lemon v. Kurtzman, 403 U.S. 602 (1971), the court held that the statute violated the Establishment Clause of the First Amendment because its purpose was religious rather than secular, because it both advanced and inhibited religion, and because it fostered excessive government entanglement with religion. May v. Cooperman, 572 F. Supp. 1561 (NJ 1983). *76 Karcher and Orechio appealed from the District Court's judgment in their official capacities as Speaker of the New Jersey General Assembly and President of the New Jersey Senate. The named defendants filed letters with the Court of Appeals stating that they would not participate in the appeal, except to the extent necessary to protect themselves from having to pay attorney's fees. The Court of Appeals affirmed the District Court's declaratory judgment by a divided vote. The majority held that the statute did not promote or inhibit religion and would not foster excessive entanglement between government and religion, but affirmed the District Court's conclusion that the statute violated the Establishment Clause for lack of a valid secular purpose. The dissent concluded that the evidence was not sufficient to prove the absence of a secular legislative purpose. The Court of Appeals entered its judgment of affirmance on December 24, 1985. May v. Cooperman, 780 F.2d 240 (CA3 1985). On January 14, 1986, Karcher and Orechio lost their posts as presiding legislative officers. Charles Hardwick replaced Karcher as Speaker of the New Jersey General Assembly. John Russo succeeded Orechio as President of the New Jersey Senate. A March 19, 1986, notice appealing the judgment of the Court of Appeals to this Court was filed on behalf of "Alan J. Karcher, as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio, as President of the New Jersey Senate and the New Jersey Senate." App. to Juris. Statement 106a-107a. By letter dated May 6, 1986, appellants' counsel informed us that Senate President Russo and General Assembly Speaker Hardwick were withdrawing the legislature's appeal, but that Karcher desired to continue the appeal. App. to Motion to Dismiss or Affirm 1a-3a. Appellees moved to dismiss the appeal on the ground that the legislature's withdrawal left the Court without a case or controversy. We postponed consideration of *77 the jurisdictional question to the hearing of the case on the merits. 479 U.S. 1062 (1987). We now dismiss the appeal for want of jurisdiction. II The power of federal courts to hear and decide cases is defined by Article III of the Constitution and by the federal statutes enacted thereunder. Karcher and Orechio seek to invoke this Court's jurisdiction under 28 U.S. C. § 1254(2). That statute empowers us to review cases upon "appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States." One who is not an original party to a lawsuit may of course become a party by intervention, substitution, or third-party practice. 9 J. Moore, B. Ward, & J. Lucas, Moore's Federal Practice ¶ 203.06 pp. 3-20 (1987). But we have consistently applied the general rule that one who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom. United States ex rel. Louisiana v. Jack, 244 U.S. 397, 402 (1917); Ex parte Leaf Tobacco Board of Trade, 222 U.S. 578, 581 (1911); Ex parte Cockcroft, 104 U.S. 578, 579 (1882); Ex parte Cutting, 94 U.S. 14, 20-21 (1877). Karcher and Orechio intervened in this lawsuit in their official capacities as presiding officers on behalf of the New Jersey Legislature. They do not appeal the judgment in those capacities. Indeed, they could not, for they no longer hold those offices. The authority to pursue the lawsuit on behalf of the legislature belongs to those who succeeded Karcher and Orechio in office. Davis v. Preston, 280 U.S. 406, 407 (1930). Federal Rule of Appellate Procedure 43(c)(1) provides that "[w]hen a public officer is a party to an appeal or other proceeding in the court of appeals in an official capacity and during its pendency . . . ceases to hold office, the action does not abate and the public officer's successor is automatically substituted as a party." The current presiding officers *78 have informed us that the New Jersey Legislature is not an appellant in this case. Having lost their official status as presiding legislative officers, Karcher and Orechio now seek to appeal in their capacities as individual legislators and as representatives of the majority of the 200th New Jersey Legislature, the now-expired legislative body that enacted the minute of silence statute. They do not seek leave to intervene in those capacities. Rather, they assert, for the first time in their briefs to this Court, that they originally intervened and litigated the lawsuit in those roles. The fact that Karcher and Orechio participated in this litigation in their official capacities as presiding officers on behalf of the legislature does not mean that they became parties in all of their personal and professional capacities. In Bender v. Williamsport Area School District, 475 U.S. 534 (1986), we observed that "[a]cts performed by the same person in two different capacities `are generally treated as the transactions of two different legal personages.' " Id., at 543, n. 6, quoting F. James & G. Hazard, Civil Procedure § 11.6, p. 594 (3d ed. 1985). The concept of "legal personage" is a practical means of identifying the real interests at stake in a lawsuit. We have repeatedly recognized that the real party in interest in an official-capacity suit is the entity represented and not the individual officeholder. See Bender, supra, at 543-544; Kentucky v. Graham, 473 U.S. 159, 166 (1985); Brandon v. Holt, 469 U.S. 464, 471 (1985). We therefore agree with the Solicitor General's view that Karcher and Orechio's intervention as presiding legislative officers does not entitle them to appeal in their other individual and professional capacities. Brief for United States as Amicus Curiae 10-11. Karcher and Orechio may not appeal the Court of Appeals' judgment as individual legislators or as representatives of the 200th Legislature unless the record shows that they participated in those capacities below. *79 The course of proceedings in this case from the District Court to this Court make it clear that the only party-intervenor in this case was the incumbent New Jersey Legislature. At the District Court hearing on their oral motion to intervene, Karcher and Orechio represented to both the court and their opponents that they were intervening on behalf of the legislature and not as individual legislators.[1] The District Court permitted Karcher and Orechio to intervene as party-defendants *80 only in their representative capacities as presiding legislative officers. The intervention order provided: "Alan J. Karcher in his representative capacity as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio in his representative capacity as President of the New Jersey Senate; and the New Jersey Senate; be permitted to intervene as direct party defendants." App. 53-54. The District Court's opinion on the merits identifies the defendant-intervenors as "the New Jersey Assembly and New Jersey Senate." May v. Cooperman, 572 F. Supp., at 1563. In its separate opinion on attorney's fees, the District Court emphasizes that it gave the legislature leave to intervene to represent the interests of the State: "The Legislature itself, through the Speaker of the General Assembly and the President of the Senate, moved to intervene in the case. The Legislature was permitted to intervene because it was responsible for enacting the statute and because no other party defendant was willing to defend the statute. The Legislature sought to perform a task which normally falls to the executive branch, but which, in this case, the executive branch refused to perform." Record, Doc. No. 60, p. 20. The record in the Court of Appeals similarly identifies the appellant-intervenor as the New Jersey Legislature. The notice of appeal was filed by "Alan J. Karcher, as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio as President of the New Jersey Senate and the New Jersey Senate, Defendants-Intervenors." Record, Doc. No. 64. The Court of Appeals' opinion identifies the appellants as "the New Jersey Senate and Assembly." 780 F.2d, at 241. The notice of appeal to this Court identifies the appellants as "Alan J. Karcher, as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. *81 Orechio, as President of the New Jersey Senate and the New Jersey Senate." App. to Juris. Statement 106a-107a. Even the jurisdictional statement refers to the appellants as "the Legislature." Juris. Statement 5-6. Though appellants assert in their brief that Karcher and Orechio as individual legislators were proper parties in the District Court and the Court of Appeals, our review of the record satisfies us that Karcher and Orechio have neither formally sought, nor in any sense been granted, permission to participate in this lawsuit as individual legislators. We think it is also clear from the record that the party-intervenor at each point in the proceedings below was the incumbent legislature, on behalf of the State, and not the particular legislative body that enacted the minute of silence law. Nowhere in the record did Karcher and Orechio assert that they represented the 200th Legislature and no other. In sum, Karcher and Orechio participated in this lawsuit in their official capacities as presiding officers of the New Jersey Legislature, but since they no longer hold those offices, they lack authority to pursue this appeal on behalf of the legislature. Karcher and Orechio as individual legislators and as representatives of the 200th New Jersey Legislature are not "parties" entitled to appeal the Court of Appeals' judgment under 28 U.S. C. § 1254(2). Accordingly, we must dismiss their appeal for want of jurisdiction. III Karcher and Orechio argue that if we dismiss their appeal we must vacate the judgments below. They advance two theories in support of this result. First they contend that the judgments below must be vacated because no proper party-defendant ever intervened in the case. This is so, they say, because New Jersey law does not authorize the presiding legislative officers to represent the New Jersey Legislature in litigation. Not only is this claim directly contrary to appellants' explicit representations *82 to the District Court,[2] it appears to be wrong as a matter of New Jersey law. The New Jersey Supreme Court has granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as parties-respondent on behalf of the legislature in defense of a legislative enactment. In re Forsythe, 91 N. J. 141, 144, 450 A.2d 499, 500 (1982). Since the New Jersey Legislature had authority under state law to represent the State's interests in both the District Court and the Court of Appeals, we need not vacate the judgments below for lack of a proper defendant-appellant. Appellants' second theory for vacating the judgments below is based upon our practice of vacating lower court judgments when a case becomes moot on appeal. See Burke v. Barnes, 479 U.S. 361, 365 (1987); United States Department of Treasury v. Galioto, 477 U.S. 556, 560 (1986); United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). In United States v. Munsingwear, we explained that when a case becomes moot in its journey through the federal courts we will reverse or vacate the "unreviewable" judgment below and remand with directions to dismiss. We reasoned that this procedure "clears the path for future retaliation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance." Id., at 40. Karcher and Orechio contend that the rationale underlying the Munsingwear procedure applies to this case, for it is the happenstance of their loss of official status that renders the judgment unreviewable. *83 We reject this argument because its underlying premise is wrong. This case did not become unreviewable when Karcher and Orechio left office. Rather, under Federal Rule of Appellate Procedure 43(c)(1), the authority of Karcher and Orechio to pursue the appeal on behalf of the legislature passed to their successors in office. The rules effectuating automatic substitution of public officers were specifically designed to prevent suits involving public officers from becoming moot due to personnel changes. See Advisory Committee Notes on 1961 Amdt. to Fed. Rule Civ. Proc. 25(d)(1), 28 U.S. C., pp. 568-569. This controversy did not become moot due to circumstances unattributable to any of the parties. The controversy ended when the losing party — the New Jersey Legislature — declined to pursue its appeal. Accordingly, the Munsingwear procedure is inapplicable to this case. Because Karcher and Orechio are not parties to this case in the capacities under which they seek to appeal, their appeal must be dismissed for want of jurisdiction. It is so ordered. JUSTICE WHITE, concurring in the judgment.

Alan J. Karcher and Carmen A. Orechio, the former presiding officers of the New Jersey Legislature, seek to appeal a judgment declaring a New Jersey statute unconstitutional. Their appeal presents the question whether public officials who have participated in a lawsuit solely in their official capacities may appeal an adverse judgment after they have left office. We hold that they may not. I In December the New Jersey Legislature enacted, over the Governor's veto, a statute requiring the State's primary and secondary public school educators to permit their students to observe a minute of silence before the start of each schoolday. The statute reads as follows: "Principals and teachers in each public elementary and secondary school of each school district in this State shall permit students to observe a 1 minute period of silence to be used solely at the discretion of the individual student, *75 before the opening exercises of each school day for quiet and private contemplation or introspection." N. J. Stat. Ann. 18A:36-4 The New Jersey Attorney General immediately announced that he would not defend the statute if it were challenged. The statute became effective December 17, and within a month appellees — a New Jersey public school teacher, several public school students, and parents of public school students — challenged its constitutionality in federal court. Appellees sued under 42 U.S. C. alleging that the statute violated the Establishment Clause of the First Amendment and seeking both declaratory and injunctive relief. They named as defendants the New Jersey Department of Education, its Commissioner, and two township boards of education. When it became apparent that neither the Attorney General nor the named defendants would defend the statute, Karcher and Orechio, as Speaker of the New Jersey General Assembly and President of the New Jersey Senate, respectively, sought and obtained permission to intervene as defendants on behalf of the legislature. Appellees entered into a stipulation dismissing the suit against the named defendants, but the District Court refused to accept the stipulation out of concern for the effect it might have on the jurisdictional posture of the case. The legislature, through its presiding officers, carried the entire burden of defending the statute. After a 5-day trial, the District Court declared the New Jersey statute unconstitutional. Applying the test set out in the court held that the statute violated the Establishment Clause of the First Amendment because its purpose was religious rather than secular, because it both advanced and inhibited religion, and because it fostered excessive government entanglement with religion. *76 Karcher and Orechio appealed from the District Court's judgment in their official capacities as Speaker of the New Jersey General Assembly and President of the New Jersey Senate. The named defendants filed letters with the Court of Appeals stating that they would not participate in the appeal, except to the extent necessary to protect themselves from having to pay attorney's fees. The Court of Appeals affirmed the District Court's declaratory judgment by a divided vote. The majority held that the statute did not promote or inhibit religion and would not foster excessive entanglement between government and religion, but affirmed the District Court's conclusion that the statute violated the Establishment Clause for lack of a valid secular purpose. The dissent concluded that the evidence was not sufficient to prove the absence of a secular legislative purpose. The Court of Appeals entered its judgment of affirmance on December 24, On January 14, 1986, Karcher and Orechio lost their posts as presiding legislative officers. Charles Hardwick replaced Karcher as Speaker of the New Jersey General Assembly. John Russo succeeded Orechio as President of the New Jersey Senate. A March 19, 1986, notice appealing the judgment of the Court of Appeals to this Court was filed on behalf of "Alan J. Karcher, as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio, as President of the New Jersey Senate and the New Jersey Senate." App. to Juris. Statement 106a-107a. By letter dated May 6, 1986, appellants' counsel informed us that Senate President Russo and General Assembly Speaker Hardwick were withdrawing the legislature's appeal, but that Karcher desired to continue the appeal. App. to Motion to Dismiss or Affirm 1a-3a. Appellees moved to dismiss the appeal on the ground that the legislature's withdrawal left the Court without a case or controversy. We postponed consideration of *77 the jurisdictional question to the hearing of the case on the merits. We now dismiss the appeal for want of jurisdiction. II The power of federal courts to hear and decide cases is defined by Article III of the Constitution and by the federal statutes enacted thereunder. Karcher and Orechio seek to invoke this Court's jurisdiction under 28 U.S. C. 1254(2). That statute empowers us to review cases upon "appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States." One who is not an original party to a lawsuit may of course become a party by intervention, substitution, or third-party practice. 9 J. Moore, B. Ward, & J. Lucas, Moore's Federal Practice ¶ 203.06 pp. 3-20 But we have consistently applied the general rule that one who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom. United States ex rel. ; Ex parte Leaf Tobacco Board of Trade, ; Ex parte Cockcroft, ; Ex parte Cutting, Karcher and Orechio intervened in this lawsuit in their official capacities as presiding officers on behalf of the New Jersey Legislature. They do not appeal the judgment in those capacities. Indeed, they could not, for they no longer hold those offices. The authority to pursue the lawsuit on behalf of the legislature belongs to those who succeeded Karcher and Orechio in office. Federal Rule of Appellate Procedure 43(c)(1) provides that "[w]hen a public officer is a party to an appeal or other proceeding in the court of appeals in an official capacity and during its pendency ceases to hold office, the action does not abate and the public officer's successor is automatically substituted as a party." The current presiding officers *78 have informed us that the New Jersey Legislature is not an appellant in this case. Having lost their official status as presiding legislative officers, Karcher and Orechio now seek to appeal in their capacities as individual legislators and as representatives of the majority of the 200th New Jersey Legislature, the now-expired legislative body that enacted the minute of silence statute. They do not seek leave to intervene in those capacities. Rather, they assert, for the first time in their briefs to this Court, that they originally intervened and litigated the lawsuit in those roles. The fact that Karcher and Orechio participated in this litigation in their official capacities as presiding officers on behalf of the legislature does not mean that they became parties in all of their personal and professional capacities. In we observed that "[a]cts performed by the same person in two different capacities `are generally treated as the transactions of two different legal personages.' " quoting F. James & G. Hazard, Civil Procedure 11.6, p. 594 The concept of "legal personage" is a practical means of identifying the real interests at stake in a lawsuit. We have repeatedly recognized that the real party in interest in an official-capacity suit is the entity represented and not the individual officeholder. See ; ; We therefore agree with the Solicitor General's view that Karcher and Orechio's intervention as presiding legislative officers does not entitle them to appeal in their other individual and professional capacities. Brief for United States as Amicus Curiae 10-11. Karcher and Orechio may not appeal the Court of Appeals' judgment as individual legislators or as representatives of the 200th Legislature unless the record shows that they participated in those capacities below. *79 The course of proceedings in this case from the District Court to this Court make it clear that the only party-intervenor in this case was the incumbent New Jersey Legislature. At the District Court hearing on their oral motion to intervene, Karcher and Orechio represented to both the court and their opponents that they were intervening on behalf of the legislature and not as individual legislators.[1] The District Court permitted Karcher and Orechio to intervene as party-defendants *80 only in their representative capacities as presiding legislative officers. The intervention order provided: "Alan J. Karcher in his representative capacity as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio in his representative capacity as President of the New Jersey Senate; and the New Jersey Senate; be permitted to intervene as direct party defendants." App. 53-54. The District Court's opinion on the merits identifies the defendant-intervenors as "the New Jersey Assembly and New Jersey Senate." In its separate opinion on attorney's fees, the District Court emphasizes that it gave the legislature leave to intervene to represent the interests of the State: "The Legislature itself, through the Speaker of the General Assembly and the President of the Senate, moved to intervene in the case. The Legislature was permitted to intervene because it was responsible for enacting the statute and because no other party defendant was willing to defend the statute. The Legislature sought to perform a task which normally falls to the executive branch, but which, in this case, the executive branch refused to perform." Record, Doc. No. 60, p. 20. The record in the Court of Appeals similarly identifies the appellant-intervenor as the New Jersey Legislature. The notice of appeal was filed by "Alan J. Karcher, as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio as President of the New Jersey Senate and the New Jersey Senate, Defendants-Intervenors." Record, Doc. No. 64. The Court of Appeals' opinion identifies the appellants as "the New Jersey Senate and Assembly." The notice of appeal to this Court identifies the appellants as "Alan J. Karcher, as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. *81 Orechio, as President of the New Jersey Senate and the New Jersey Senate." App. to Juris. Statement 106a-107a. Even the jurisdictional statement refers to the appellants as "the Legislature." Juris. Statement 5-6. Though appellants assert in their brief that Karcher and Orechio as individual legislators were proper parties in the District Court and the Court of Appeals, our review of the record satisfies us that Karcher and Orechio have neither formally sought, nor in any sense been granted, permission to participate in this lawsuit as individual legislators. We think it is also clear from the record that the party-intervenor at each point in the proceedings below was the incumbent legislature, on behalf of the State, and not the particular legislative body that enacted the minute of silence law. Nowhere in the record did Karcher and Orechio assert that they represented the 200th Legislature and no other. In sum, Karcher and Orechio participated in this lawsuit in their official capacities as presiding officers of the New Jersey Legislature, but since they no longer hold those offices, they lack authority to pursue this appeal on behalf of the legislature. Karcher and Orechio as individual legislators and as representatives of the 200th New Jersey Legislature are not "parties" entitled to appeal the Court of Appeals' judgment under 28 U.S. C. 1254(2). Accordingly, we must dismiss their appeal for want of jurisdiction. III Karcher and Orechio argue that if we dismiss their appeal we must vacate the judgments below. They advance two theories in support of this result. First they contend that the judgments below must be vacated because no proper party-defendant ever intervened in the case. This is so, they say, because New Jersey law does not authorize the presiding legislative officers to represent the New Jersey Legislature in litigation. Not only is this claim directly contrary to appellants' explicit representations *82 to the District Court,[2] it appears to be wrong as a matter of New Jersey law. The New Jersey Supreme Court has granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as parties-respondent on behalf of the legislature in defense of a legislative enactment. In re Forsythe, 91 N. J. 141, 144, Since the New Jersey Legislature had authority under state law to represent the State's interests in both the District Court and the Court of Appeals, we need not vacate the judgments below for lack of a proper defendant-appellant. Appellants' second theory for vacating the judgments below is based upon our practice of vacating lower court judgments when a case becomes moot on appeal. See ; United States Department of ; United In United States v. Munsingwear, we explained that when a case becomes moot in its journey through the federal courts we will reverse or vacate the "unreviewable" judgment below and remand with directions to dismiss. We reasoned that this procedure "clears the path for future retaliation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance." Karcher and Orechio contend that the rationale underlying the Munsingwear procedure applies to this case, for it is the happenstance of their loss of official status that renders the judgment unreviewable. *83 We reject this argument because its underlying premise is wrong. This case did not become unreviewable when Karcher and Orechio left office. Rather, under Federal Rule of Appellate Procedure 43(c)(1), the authority of Karcher and Orechio to pursue the appeal on behalf of the legislature passed to their successors in office. The rules effectuating automatic substitution of public officers were specifically designed to prevent suits involving public officers from becoming moot due to personnel changes. See Advisory Committee Notes on 1961 Amdt. to Fed. Rule Civ. Proc. 25(d)(1), 28 U.S. C., pp. 568-569. This controversy did not become moot due to circumstances unattributable to any of the parties. The controversy ended when the losing party — the New Jersey Legislature — declined to pursue its appeal. Accordingly, the Munsingwear procedure is inapplicable to this case. Because Karcher and Orechio are not parties to this case in the capacities under which they seek to appeal, their appeal must be dismissed for want of jurisdiction. It is so ordered. JUSTICE WHITE, concurring in the judgment.

Justice Powell

dissenting

Steadman v. SEC

https://www.courtlistener.com/opinion/110417/steadman-v-sec/

https://www.courtlistener.com/api/rest/v3/clusters/110417/

1980-042

The Securities and Exchange Commission (SEC), acting under the antifraud provisions of the Investment Company Act of 1940 and the Investment Advisers Act of 1940, has imposed severe sanctions on petitioner. He has been barred permanently from practicing his profession and also forced to divest himself of an investment at a substantial loss. In making its findings of fraud and imposing these penalties, the SEC applied the "preponderance of the evidence" standard of proof. The Court today sustains the action of the SEC, holding *105 that § 7 (c) of the Administrative Procedure Act (APA), 5 U.S. C. § 556 (d), commands the use of this standard in disciplinary proceedings brought under the securities laws. The Court recognizes, however, ante, at 95-96, that the general provisions of the APA are applicable only when Congress has not intended that a different standard be used in the administration of a specific statute. The critical inquiry thus is the identification of the standard of proof desired by Congress. The SEC acted in this case under § 9 (b) of the Investment Company Act of 1940, 15 U.S. C. § 80a-9 (b), and § 203 (f) of the Investment Advisers Act of 1940, 15 U.S. C. § 80b-3 (f). Sanctions imposed under these sections are the functional equivalent of penalties for fraud. At common law, it was plain that allegations of fraud had to be proved by clear and convincing evidence. E. g., Addington v. Texas, 441 U.S. 418, 424 (1979); Woodby v. INS, 385 U.S. 276, 285, n. 18 (1966); Weininger v. Metropolitan Fire Insurance Co., 359 Ill. 584, 598, 195 N.E. 420, 426 (1935); Bank of Pocahontas v. Ferimer, 161 Va. 37, 40-41, 170 S.E. 591, 592 (1933); Bowe v. Gage, 127 Wis. 245, 251, 106 N.W. 1074, 1076 (1906). Congress enacted the Investment Company and Investment Advisers Acts against this common-law background. There is no evidence that Congress, when it adopted these Acts, intended to authorize the SEC to abandon the then-applicable standard of proof in fraud adjudications. See Whitney v. SEC, 196 U. S. App. D. C. 12, 604 F.2d 676 (1979); Collins Securities Corp. v. SEC, 183 U. S. App. D. C. 301, 562 F.2d 820 (1977). The APA, upon which the Court relies, did not become law for some seven years after the enactment of the two statutes under which the SEC imposed these penalties. Again, the Court points to no specific evidence that Congress intended the APA to supplant the burden-of-proof rule generally applicable when the securities laws were enacted. Thus, the APA—the general statute applicable only where a specific *106 statute is not—should have no bearing on the proof burden in this case. I imply no opinion on the question whether the evidence supports the SEC's allegations against petitioner. It is clear, however, that the SEC's finding of fraud and its imposition of harsh penalties have resulted in serious stigma and deprivation. Cf. Addington v. Texas, supra.[*] In the absence of any specific demonstration of Congress' purpose, we should not assume that Congress intended the SEC to apply a lower standard of proof than the prevailing common-law standard for similar allegations. With all respect, it seems to me that the Court's decision today lacks the sensitivity that traditionally has marked our review of the Government's imposition upon citizens of severe penalties and permanent stigma.

The Securities and Exchange Commission (SEC), acting under the antifraud provisions of the Investment Company Act of 1940 and the Investment Advisers Act of 1940, has imposed severe sanctions on petitioner. He has been barred permanently from practicing his profession and also forced to divest himself of an investment at a substantial loss. In making its findings of fraud and imposing these penalties, the SEC applied the "preponderance of the evidence" standard of proof. The Court today sustains the action of the SEC, holding *105 that 7 (c) of the Administrative Procedure Act (APA), 5 U.S. C. 556 (d), commands the use of this standard in disciplinary proceedings brought under the securities laws. The Court recognizes, however, ante, at 95-96, that the general provisions of the APA are applicable only when Congress has not intended that a different standard be used in the administration of a specific statute. The critical inquiry thus is the identification of the standard of proof desired by Congress. The SEC acted in this case under 9 (b) of the Investment Company Act of 1940, 15 U.S. C. 80a-9 (b), and 203 (f) of the Investment Advisers Act of 1940, 15 U.S. C. 80b-3 (f). Sanctions imposed under these sections are the functional equivalent of penalties for fraud. At common law, it was plain that allegations of fraud had to be proved by clear and convincing evidence. E. g., ; ; ; Bank of ; Congress enacted the Investment Company and Investment Advisers Acts against this common-law background. There is no evidence that Congress, when it adopted these Acts, intended to authorize the SEC to abandon the then-applicable standard of proof in fraud adjudications. See ; Collins Securities The APA, upon which the Court relies, did not become law for some seven years after the enactment of the two statutes under which the SEC imposed these penalties. Again, the Court points to no specific evidence that Congress intended the APA to supplant the burden-of-proof rule generally applicable when the securities laws were enacted. Thus, the APA—the general statute applicable only where a specific *106 statute is not—should have no bearing on the proof burden in this case. I imply no opinion on the question whether the evidence supports the SEC's allegations against petitioner. It is clear, however, that the SEC's finding of fraud and its imposition of harsh penalties have resulted in serious stigma and deprivation. Cf. In the absence of any specific demonstration of Congress' purpose, we should not assume that Congress intended the SEC to apply a lower standard of proof than the prevailing common-law standard for similar allegations. With all respect, it seems to me that the Court's decision today lacks the sensitivity that traditionally has marked our review of the Government's imposition upon citizens of severe penalties and permanent stigma.

Justice Thomas

majority

Pollard v. EI Du Pont De Nemours & Co.

https://www.courtlistener.com/opinion/118441/pollard-v-ei-du-pont-de-nemours-co/

https://www.courtlistener.com/api/rest/v3/clusters/118441/

2000-067

This case presents the question whether a front pay award is an element of compensatory damages under the Civil Rights Act of 1991. We conclude that it is not. I Petitioner Sharon Pollard sued her former employer, E. I. du Pont de Nemours and Company (DuPont), alleging that she had been subjected to a hostile work environment based on her sex, in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S. C. § 2000e et seq. After a trial, the District Court found that Pollard was subjected to coworker sexual harassment of which her supervisors were aware. The District Court further found that the harassment resulted in a medical leave of absence from her job for psychological assistance and her eventual dismissal for refusing to return to the same hostile work environment. The court awarded Pollard $107,364 in backpay and benefits, $252,997 in attorney's fees, and, as relevant here, $300,000 in compensatory damages—the maximum permitted under the statutory cap for such damages in 42 U.S. C. § 1981a(b)(3). *846 The Court of Appeals affirmed, concluding that the record demonstrated that DuPont employees engaged in flagrant discrimination based on sex and that DuPont managers and supervisors did not take adequate steps to stop it. 213 F.3d 933 (CA6 2000). The issue presented for review here is whether front pay constitutes an element of "compensatory damages" under 42 U.S. C. § 1981a and thus is subject to the statutory damages cap imposed by that section. Although courts have defined "front pay" in numerous ways, front pay issimply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement. For instance, when an appropriate position for the plaintiff is not immediately available without displacing an incumbent employee, courts have ordered reinstatement upon the opening of such a position and have ordered front pay to be paid until reinstatement occurs. See, e. g., Walsdorf v. Board of Comm'rs, 857 F.2d 1047, 1053-1054 (CA5 1988); King v. Staley, 849 F.2d 1143, 1145 (CA8 1988). In cases in which reinstatement is not viable because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result of the discrimination, courts have ordered front pay as a substitute for reinstatement. See, e. g., Gotthardt v. National R. R. Passenger Corp., 191 F.3d 1148, 1156 (CA9 1999); Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 945, 957 (CA10 1980). For the purposes of this opinion, it is not necessary for us to explain when front pay is an appropriate remedy. The question before us is only whether front pay, if found to be appropriate, is an element of compensatory damages under the Civil Rights Act of 1991 and thus subject to the Act's statutory cap on such damages. Here, the District Court observed that "the $300,000.00 award is, in fact, insufficient to compensate plaintiff," 16 F. Supp. 2d 913, 924, n. 19 (WD Tenn. 1998), but it stated that *847 it was bound by the Sixth Circuit's decision in Hudson v. Reno, 130 F.3d 1193 (1997), which held that front pay was subject to the cap. On appeal, Pollard argued that Hudson was wrongly decided because front pay is not an element of compensatory damages, but rather a replacement for the remedy of reinstatement in situations in which reinstatement would be inappropriate. She also argued that § 1981a, by its very terms, explicitly excludes from the statutory cap remedies that traditionally were available under Title VII, which she argued included front pay. The Court of Appeals agreed with Pollard's arguments but considered itself bound by Hudson. The Sixth Circuit declined to rehear the case en banc. The Sixth Circuit's decision in Hudson was one of the first appellate opinions to decide whether front pay is an element of compensatory damages subject to the statutory cap set forth in § 1981a(b)(3). Contrary to the Sixth Circuit's resolution of this question, the other Courts of Appeals to address it have concluded that front pay is a remedy that is not subject to the limitations of § 1981a(b)(3). See, e. g., Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 499-500 (CA7 2000); Kramer v. Logan County School Dist. No. R-1, 157 F.3d 620, 625-626 (CA8 1998); Gotthardt, supra, at 1153— 1154; Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 556 (CA10 1999); EEOC v. W&O, Inc., 213 F.3d 600, 619, n. 10 (CA11 2000); Martini v. Federal Nat. Mortgage Assn., 178 F.3d 1336, 1348-1349 (CADC 1999). We granted certiorari to resolve this conflict. 531 U.S. 1069 (2001). II Plaintiffs who allege employment discrimination on the basis of sex traditionally have been entitled to such remedies as injunctions, reinstatement, backpay, lost benefits, and attorney's fees under § 706(g) of the Civil Rights Act *848 of 1964. 42 U.S. C. § 2000e—5(g)(1). In the Civil Rights Act of 1991, Congress expanded the remedies available to these plaintiffs by permitting, for the first time, the recovery of compensatory and punitive damages. 42 U.S. C. § 1981a(a)(1) ("[T]he complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964"). The amount of compensatory damages awarded under § 1981a for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses," and the amount of punitive damages awarded under § 1981a, however, may not exceed the statutory cap set forth in § 1981a(b)(3). The statutory cap is based on the number of people employed by the respondent. In this case, the cap is $300,000 because DuPont has more than 500 employees. The Sixth Circuit has concluded that front pay constitutes compensatory damages awarded for future pecuniary losses and thus is subject to the statutory cap of § 1981a(b)(3). 213 F.3d, at 945; Hudson, supra, at 1203. For the reasons discussed below, we conclude that front pay is not an element of compensatory damages within the meaning of § 1981a, and, therefore, we hold that the statutory cap of § 1981a(b)(3) is inapplicable to front pay. A Under § 706(g) of the Civil Rights Act of 1964 as originally enacted, when a court found that an employer had intentionally engaged in an unlawful employment practice, the court was authorized to "enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay." 42 U.S. C. § 2000e— 5(g)(1). This provision closely tracked the language of *849 § 10(c) of the National Labor Relations Act (NLRA), 49 Stat. 454, 29 U.S. C. § 160(c), which similarly authorized orders requiring employers to take appropriate, remedial "affirmative action." § 160(c) (authorizing the National Labor Relations Board to issue an order "requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter"). See also Albemarle Paper Co. v. Moody, 422 U.S. 405, 419, n. 11 (1975). The meaning of this provision of the NLRA prior to enactment of the Civil Rights Act of 1964, therefore, gives us guidance as to the proper meaning of the same language in § 706(g) of Title VII. In applying § 10(c) of the NLRA, the Board consistently had made awards of what it called "backpay" up to the date the employee was reinstated or returned to the position he should have been in had the violation of the NLRA not occurred, even if such event occurred after judgment. See, e. g., Nathanson v. NLRB, 344 U.S. 25, 29-30 (1952); NLRB v. Reeves Broadcasting & Development Corp., 336 F.2d 590, 593-594 (CA4 1964); NLRB v. Hill & Hill Truck Line, Inc., 266 F.2d 883, 887 (CA5 1959); Berger Polishing, Inc., 147 N. L. R. B. 21, 40 (1964); Lock Joint Pipe Co., 141 N. L. R. B. 943, 948 (1963). Consistent with the Board's interpretation of this provision of the NLRA, courts finding unlawful intentional discrimination in Title VII actions awarded this same type of backpay under § 706(g). See, e. g., Culpepper v. Reynolds Metals Co., 442 F.2d 1078, 1080 (CA5 1971); United States v. Georgia Power Co., 3 FEP Cases 767, 790 (ND Ga. 1971). In the Title VII context, this form of "backpay" occurring after the date of judgment is known today as "front pay." In 1972, Congress expanded § 706(g) to specify that a court could, in addition to awarding those remedies previously listed in the provision, award "any other equitable relief *850 as the court deems appropriate." After this amendment to § 706(g), courts endorsed a broad view of front pay. See, e. g., Patterson v. American Tobacco Co., 535 F.2d 257, 269 (CA4 1976) (stating that where reinstatement is not immediately feasible, backpay "should be supplemented by an award equal to the estimated present value of lost earnings that are reasonably likely to occur between the date of judgment and the time when the employee can assume his new position"); EEOC v. Enterprise Assn. Steamfitters, 542 F.2d 579, 590 (CA2 1976) (stating that backpay award would terminate on the date of actual remedying of discrimination); Bush v. Lone Star Steel Co., 373 F. Supp. 526, 538 (ED Tex. 1974) (ordering backpay from the date the employee would have been entitled to fill a vacancy but for racial discrimination to the date the employee would in all reasonable probability reach his rightful place). Courts recognized that reinstatement was not always a viable option, and that an award of front pay as a substitute for reinstatement in such cases was a necessary part of the "make whole" relief mandated by Congress and by this Court in Albemarle. See, e. g., Shore v. Federal Express Corp., 777 F.2d 1155, 1158— 1159 (CA6 1985) ("Front pay is . . . simply compensation for the post-judgment effects of past discrimination." It is awarded "to effectuate fully the `make whole' purposes of Title VII"); Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1066 (CA8 1988) (stating that front pay was appropriate given substantial animosity between parties where "the parties' relationship was not likely to improve, and the nature of the business required a high degree of mutual trust and confidence"); Fitzgerald v. Sirloin Stockade, Inc., 624 F. 2d, at 957 (upholding award of front pay where continuing hostility existed between the parties); Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1347 (CA9 1987) (same). By 1991, virtually all of the courts of appeals had recognized that "front pay" was a remedy authorized *851 under § 706(g).[1] In fact, no court of appeals appears to have ever held to the contrary.[2] In 1991, without amending § 706(g), Congress further expanded the remedies available in cases of intentional employment discrimination to include compensatory and punitive damages. See 42 U.S. C. § 1981a(a)(1). At that time, Rev. Stat. § 1977, 42 U.S. C. § 1981, permitted the recovery of unlimited compensatory and punitive damages in cases of intentional race and ethnic discrimination, but no similar remedy existed in cases of intentional sex, religious, or disability discrimination. Thus, § 1981a brought all forms of intentional employment discrimination into alignment, at least with respect to the forms of relief available to successful plaintiffs. However, compensatory and punitive damages awarded under § 1981a may not exceed the statutory limitations set forth in § 1981a(b)(3), while such damages awarded under § 1981 are not limited by statute. *852 B In the abstract, front pay could be considered compensation for "future pecuniary losses," in which case it would be subject to the statutory cap. § 1981a(b)(3). The term "compensatory damages . . . for future pecuniary losses" is not defined in the statute, and, out of context, its ordinary meaning could include all payments for monetary losses after the date of judgment. However, we must not analyze one term of § 1981a in isolation. See Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 99 (1992) ("`[W]e must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law' "). When § 1981a is read as a whole, the better interpretation is that front pay is not within the meaning of compensatory damages in § 1981a(b)(3), and thus front pay is excluded from the statutory cap. In the Civil Rights Act of 1991, Congress determined that victims of employment discrimination were entitled to additional remedies. Congress expressly found that "additional remedies under Federal law are needed to deter unlawful harassment and intentional discrimination in the workplace," without giving any indication that it wished to curtail previously available remedies. See Civil Rights Act of 1991, 105 Stat. 1071, § 2. Congress therefore made clear through the plain language of the statute that the remedies newly authorized under § 1981a were in addition to the relief authorized by § 706(g). Section 1981a(a)(1) provides that, in intentional discrimination cases brought under Title VII, "the complaining party may recover compensatory and punitive damages as allowed in subjection (b) of [§ 1981a], in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent." (Emphasis added.) And § 1981a(b)(2) states that "[c]ompensatory damages awarded under [§ 1981a] shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964. " *853 (Emphasis added.) According to these statutory provisions, if front pay was a type of relief authorized under § 706(g), it is excluded from the meaning of compensatory damages under § 1981a. As discussed above, the original language of § 706(g) authorizing backpay awards was modeled after the same language in the NLRA. This provision in the NLRA had been construed to allow awards of backpay up to the date of reinstatement, even if reinstatement occurred after judgment. Accordingly, backpay awards made for the period between the date of judgment and the date of reinstatement, which today are called front pay awards under Title VII, were authorized under § 706(g). As to front pay awards that are made in lieu of reinstatement, we construe § 706(g) as authorizing these awards as well. We see no logical difference between front pay awards made when there eventually is reinstatement and those made when there is not.[3] Moreover, to distinguish between the two cases would lead to the strange result that employees could receive front pay when reinstatement eventually is available but not when reinstatement is not an option—whether because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries that the discrimination has caused the plaintiff. Thus, the most egregious offenders could be subject to the least sanctions. Had Congress drawn such a line in the statute and foreclosed front pay awards in lieu of reinstatement, we certainly would honor that line. But, as written, the text of the statute does not lend itself to such a distinction, and we will not create one. The statute *854 authorizes courts to "order such affirmative action as may be appropriate." 42 U.S. C. § 2000e—5(g)(1). We conclude that front pay awards in lieu of reinstatement fit within this statutory term. Because front pay is a remedy authorized under § 706(g), Congress did not limit the availability of such awards in § 1981a. Instead, Congress sought to expand the available remedies by permitting the recovery of compensatory and punitive damages in addition to previously available remedies, such as front pay. * * * The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice O'Connor took no part in the consideration or decision of this case.

This case presents the question whether a front pay award is an element of compensatory damages under the Civil Rights Act of 11 We conclude that it is not I Petitioner Sharon Pollard sued her former employer, E I du Pont de Nemours and Company (DuPont), alleging that she had been subjected to a hostile work environment based on her sex, in violation of Title VII of the Civil Rights Act of 42 US C e et seq After a trial, the District Court found that Pollard was subjected to coworker sexual harassment of which her supervisors were aware The District Court further found that the harassment resulted in a medical leave of absence from her job for psychological assistance and her eventual dismissal for refusing to return to the same hostile work environment The court awarded Pollard $107,364 in backpay and benefits, $252,7 in attorney's fees, and, as relevant here, $300,000 in compensatory damages—the maximum permitted under the statutory cap for such damages in 42 US C 1981a(b)(3) *846 The Court of Appeals affirmed, concluding that the record demonstrated that DuPont employees engaged in flagrant discrimination based on sex and that DuPont managers and supervisors did not take adequate steps to stop it The issue presented for review here is whether front pay constitutes an element of "compensatory damages" under 42 US C 1981a and thus is subject to the statutory damages cap imposed by that section Although courts have defined "front pay" in numerous ways, front pay issimply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement For instance, when an appropriate position for the plaintiff is not immediately available without displacing an incumbent employee, courts have ordered reinstatement upon the opening of such a position and have ordered front pay to be paid until reinstatement occurs See, e g, ; In cases in which reinstatement is not viable because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result of the discrimination, courts have ordered front pay as a substitute for reinstatement See, e g, ; For the purposes of this opinion, it is not necessary for us to explain when front pay is an appropriate remedy The question before us is only whether front pay, if found to be appropriate, is an element of compensatory damages under the Civil Rights Act of 11 and thus subject to the Act's statutory cap on such damages Here, the District Court observed that "the $300,00000 award is, in fact, insufficient to compensate plaintiff," but it stated that *847 it was bound by the Sixth Circuit's decision in which held that front pay was subject to the cap On appeal, Pollard argued that was wrongly decided because front pay is not an element of compensatory damages, but rather a replacement for the remedy of reinstatement in situations in which reinstatement would be inappropriate She also argued that 1981a, by its very terms, explicitly excludes from the statutory cap remedies that traditionally were available under Title VII, which she argued included front pay The Court of Appeals agreed with Pollard's arguments but considered itself bound by The Sixth Circuit declined to rehear the case en banc The Sixth Circuit's decision in was one of the first appellate opinions to decide whether front pay is an element of compensatory damages subject to the statutory cap set forth in 1981a(b)(3) Contrary to the Sixth Circuit's resolution of this question, the other Courts of Appeals to address it have concluded that front pay is a remedy that is not subject to the limitations of 1981a(b)(3) See, e g, ; ; at 1153— 1154; ; ; We granted certiorari to resolve this conflict II Plaintiffs who allege employment discrimination on the basis of sex traditionally have been entitled to such remedies as injunctions, reinstatement, backpay, lost benefits, and attorney's fees under 706(g) of the Civil Rights Act *848 of 42 US C e—5(g)(1) In the Civil Rights Act of 11, Congress expanded the remedies available to these plaintiffs by permitting, for the first time, the recovery of compensatory and punitive damages 42 US C 1981a(a)(1) ("[T]he complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of ") The amount of compensatory damages awarded under 1981a for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses," and the amount of punitive damages awarded under 1981a, however, may not exceed the statutory cap set forth in 1981a(b)(3) The statutory cap is based on the number of people employed by the respondent In this case, the cap is $300,000 because DuPont has more than 500 employees The Sixth Circuit has concluded that front pay constitutes compensatory damages awarded for future pecuniary losses and thus is subject to the statutory cap of 1981a(b)(3) ; For the reasons discussed below, we conclude that front pay is not an element of compensatory damages within the meaning of 1981a, and, therefore, we hold that the statutory cap of 1981a(b)(3) is inapplicable to front pay A Under 706(g) of the Civil Rights Act of as originally enacted, when a court found that an employer had intentionally engaged in an unlawful employment practice, the court was authorized to "enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay" 42 US C e— 5(g)(1) This provision closely tracked the language of *849 10(c) of the National Labor Relations Act (NLRA), 49 Stat 454, 29 US C 160(c), which similarly authorized orders requiring employers to take appropriate, remedial "affirmative action" 160(c) (authorizing the National Labor Relations Board to issue an order "requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter") See also Albemarle Paper Co v Moody, 422 US 405, 419, n 11 The meaning of this provision of the NLRA prior to enactment of the Civil Rights Act of therefore, gives us guidance as to the proper meaning of the same language in 706(g) of Title VII In applying 10(c) of the NLRA, the Board consistently had made awards of what it called "backpay" up to the date the employee was reinstated or returned to the position he should have been in had the violation of the NLRA not occurred, even if such event occurred after judgment See, e g, Nathanson v NLRB, 344 US 25, ; NLRB v Reeves Broadcasting & Development Corp, 336 F2d ; NLRB v Hill & Hill Truck Line, Inc, 266 F2d 883, ; Berger Polishing, Inc, 147 N L R B 21, 40 ; Lock Joint Pipe Co, 141 N L R B 943, 948 (1963) Consistent with the Board's interpretation of this provision of the NLRA, courts finding unlawful intentional discrimination in Title VII actions awarded this same type of backpay under 706(g) See, e g, Culpepper v Reynolds Metals Co, 442 F2d 1078, ; United States v Georgia Power Co, 3 FEP Cases 767, 790 In the Title VII context, this form of "backpay" occurring after the date of judgment is known today as "front pay" In 1972, Congress expanded 706(g) to specify that a court could, in addition to awarding those remedies previously listed in the provision, award "any other equitable relief *850 as the court deems appropriate" After this amendment to 706(g), courts endorsed a broad view of front pay See, e g, Patterson v American Tobacco Co, 535 F2d 257, (stating that where reinstatement is not immediately feasible, backpay "should be supplemented by an award equal to the estimated present value of lost earnings that are reasonably likely to occur between the date of judgment and the time when the employee can assume his new position"); EEOC v Enterprise Assn Steamfitters, 542 F2d 579, ; Bush v Lone Star Steel Co, 373 F Supp 526, Courts recognized that reinstatement was not always a viable option, and that an award of front pay as a substitute for reinstatement in such cases was a necessary part of the "make whole" relief mandated by Congress and by this Court in Albemarle See, e g, Shore v Federal Express Corp, 777 F2d 1155, ("Front pay is simply compensation for the post-judgment effects of past discrimination" It is awarded "to effectuate fully the `make whole' purposes of Title VII"); Brooks v Woodline Motor Freight, Inc, 852 F2d 1061, ; 624 F 2d, at (upholding award of front pay where continuing hostility existed between the parties); Cassino v Reichhold Chems, Inc, 817 F2d 1338, By 11, virtually all of the courts of appeals had recognized that "front pay" was a remedy authorized *851 under 706(g)[1] In fact, no court of appeals appears to have ever held to the contrary[2] In 11, without amending 706(g), Congress further expanded the remedies available in cases of intentional employment discrimination to include compensatory and punitive damages See 42 US C 1981a(a)(1) At that time, Rev Stat 1977, 42 US C 1981, permitted the recovery of unlimited compensatory and punitive damages in cases of intentional race and ethnic discrimination, but no similar remedy existed in cases of intentional sex, religious, or disability discrimination Thus, 1981a brought all forms of intentional employment discrimination into alignment, at least with respect to the forms of relief available to successful plaintiffs However, compensatory and punitive damages awarded under 1981a may not exceed the statutory limitations set forth in 1981a(b)(3), while such damages awarded under 1981 are not limited by statute *852 B In the abstract, front pay could be considered compensation for "future pecuniary losses," in which case it would be subject to the statutory cap 1981a(b)(3) The term "compensatory damages for future pecuniary losses" is not defined in the statute, and, out of context, its ordinary meaning could include all payments for monetary losses after the date of judgment However, we must not analyze one term of 1981a in isolation See Gade v National Solid Wastes Management Assn, 505 US 88, When 1981a is read as a whole, the better interpretation is that front pay is not within the meaning of compensatory damages in 1981a(b)(3), and thus front pay is excluded from the statutory cap In the Civil Rights Act of 11, Congress determined that victims of employment discrimination were entitled to additional remedies Congress expressly found that "additional remedies under Federal law are needed to deter unlawful harassment and intentional discrimination in the workplace," without giving any indication that it wished to curtail previously available remedies See Civil Rights Act of 11, 105 Stat 1071, 2 Congress therefore made clear through the plain language of the statute that the remedies newly authorized under 1981a were in addition to the relief authorized by 706(g) Section 1981a(a)(1) provides that, in intentional discrimination cases brought under Title VII, "the complaining party may recover compensatory and punitive damages as allowed in subjection (b) of [ 1981a], in addition to any relief authorized by section 706(g) of the Civil Rights Act of from the respondent" (Emphasis added) And 1981a(b)(2) states that "[c]ompensatory damages awarded under [ 1981a] shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of " *853 (Emphasis added) According to these statutory provisions, if front pay was a type of relief authorized under 706(g), it is excluded from the meaning of compensatory damages under 1981a As discussed above, the original language of 706(g) authorizing backpay awards was modeled after the same language in the NLRA This provision in the NLRA had been construed to allow awards of backpay up to the date of reinstatement, even if reinstatement occurred after judgment Accordingly, backpay awards made for the period between the date of judgment and the date of reinstatement, which today are called front pay awards under Title VII, were authorized under 706(g) As to front pay awards that are made in lieu of reinstatement, we construe 706(g) as authorizing these awards as well We see no logical difference between front pay awards made when there eventually is reinstatement and those made when there is not[3] Moreover, to distinguish between the two cases would lead to the strange result that employees could receive front pay when reinstatement eventually is available but not when reinstatement is not an option—whether because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries that the discrimination has caused the plaintiff Thus, the most egregious offenders could be subject to the least sanctions Had Congress drawn such a line in the statute and foreclosed front pay awards in lieu of reinstatement, we certainly would honor that line But, as written, the text of the statute does not lend itself to such a distinction, and we will not create one The statute *854 authorizes courts to "order such affirmative action as may be appropriate" 42 US C e—5(g)(1) We conclude that front pay awards in lieu of reinstatement fit within this statutory term Because front pay is a remedy authorized under 706(g), Congress did not limit the availability of such awards in 1981a Instead, Congress sought to expand the available remedies by permitting the recovery of compensatory and punitive damages in addition to previously available remedies, such as front pay * * * The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion It is so ordered Justice O'Connor took no part in the consideration or decision of this case

Justice Rehnquist

dissenting

Vachon v. New Hampshire

https://www.courtlistener.com/opinion/108905/vachon-v-new-hampshire/

https://www.courtlistener.com/api/rest/v3/clusters/108905/

1973-036

Appellant Denis M. Vachon operates the Head Shop in Manchester, New Hampshire, where he sells various beads, dresses, posters, and the like. In July 1969, a 14-year-old girl, accompanied by her girl friend, went to the shop seeking to purchase a button or pin like the *481 one purchased by her friend the previous week. She found the button, inscribed "Copulation Not Masturbation," and purchased it from a salesperson in the store. It was conceded in the New Hampshire courts that appellant was in control of the premises where the sale was made. At a jury-waived trial, appellant was convicted of contributing to the delinquency of a minor, a statutory offense proscribed in these words: "[A]nyone . . . who shall knowingly or wilfully encourage, aid, cause, or abet, or connive at, or has knowingly or wilfully done any act to produce, promote, or contribute to the delinquency of [a] child, may be punished . . . ." N. H. Rev. Stat. Ann. § 169:32 (Supp. 1972). The Supreme Court of New Hampshire affirmed appellant's conviction. 113 N. H. 239, 306 A.2d 781 (1973). The Court decides that appellant's conviction under this statute violates rights secured to him by the Due Process Clause of the Fourteenth Amendment, concluding on the basis of its "independent examination of the trial record" that "evidence is completely lacking that appellant personally sold the girl the button or even that he was aware of the sale or present in the store at the time." I In one sense there can be no doubt that the Court's conclusion is based upon an "independent examination of the trial record," since the claim sustained here was neither made in constitutional form to the Supreme Court of New Hampshire, nor even presented by appellant in his jurisdictional statement in this Court.[*] *482 A litigant seeking to preserve a constitutional claim for review in this Court must not only make clear to the lower courts the nature of his claim, but he must also make it clear that the claim is constitutionally grounded. Bailey v. Anderson, 326 U.S. 203 (1945). The closest that appellant came in his brief on appeal to the Supreme Court of New Hampshire to discussing the issue on which this Court's opinion turns is in the sixth section (at 17-18), which is headed: "The State's failure to introduce any evidence of scienter should have resulted in dismissal of the charge following the presentation of the State's case." Appellant in that section makes the customary appellate arguments of insufficiency of the evidence and does not so much as mention either the United States Constitution or a single case decided by this Court. The Supreme Court of New Hampshire treated these arguments as raising a classic state law claim of insufficient evidence of scienter; nothing in that court's opinion remotely suggests that it was treating the claim as having a basis other than in state law. The Court purports to decide the scienter question on the basis of Rule 40 (1) (d) (2) of the Rules of this Court, which provides: "1. Briefs of an appellant or petitioner on the merits shall be printed as prescribed in Rule 39, and shall contain in the order here indicated— ..... "(d) (2) The phrasing of the questions presented need not be identical with that set forth in the jurisdictional statement or the petition for certiorari, *483 but the brief may not raise additional questions or change the substance of the questions already presented in those documents. Questions not presented according to this paragraph will be disregarded, save as the court, at its option, may notice a plain error not presented." The very language of this rule makes it clear that it applies to this Court's review of cases in which it has previously either noted probable jurisdiction or granted certiorari. The cases cited by the Court in support of what it does here are therefore necessarily cases in which review had been granted and which had been orally argued; in addition, each of those cases arose in the federal courts. See Columbia Heights Realty Co. v. Rudolph, 217 U.S. 547 (1910); Sibbach v. Wilson & Co., 312 U.S. 1 (1941); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971). Whatever the import of Rule 40 (1) (d) (2) in cases arising in the federal courts, it surely does not give this Court the power to simply ignore the limitations placed by 28 U.S. C. § 1257 on our jurisdiction to review final judgments of the highest court of a State. That jurisdiction permits review in this Court by appeal where a state statute has been upheld against a federal constitutional challenge, or by writ of certiorari where a federal constitutional challenge is "specifically set up or claimed" in state court. Our prior cases establish that we will "not decide federal constitutional issues raised here for the first time on review of state court decisions." Cardinale v. Louisiana, 394 U.S. 437, 438 (1969). See Crowell v. Randell, 10 Pet. 368 (1836). Since the Supreme Court of New Hampshire was not presented with a federal constitutional challenge to the sufficiency of the evidence, resolution of this question by the Court is inconsistent with the congressional limitation on our *484 jurisdiction to review the final judgment of the highest court of a State. II Even if appellant's sufficiency-of-the-evidence contention in the Supreme Court of New Hampshire could be said to have been presented as a federal constitutional claim based on Thompson v. Louisville, 362 U.S. 199 (1960), I would nonetheless be unable to join in the Court's disposition of it. In Thompson, the only state court proceedings reaching the merits of the case were in the Louisville Police Court from which there was no right of appeal to any higher state court, and there was therefore no state court opinion written which construed the statute under which Thompson was convicted. This Court therefore had no choice but to engage in its own construction of the statute and upon doing so it concluded that the record was "entirely lacking in evidence to support any of the charges." Id., at 204. Thompson was obviously an extraordinary case, and up until now has been saved for extraordinary situations; it has not heretofore been broadened so as to make lack of evidentiary support for only one of several elements of an offense a constitutional infirmity in a state conviction. Here, however, the Supreme Court of New Hampshire construed the state statute defining contributing to the delinquency of a minor, and held that the evidence adduced at the trial was sufficient to support a finding on each element of that offense. While the Supreme Court of New Hampshire did say, as the Court indicates, that the State was required to prove that the accused acted " `voluntarily and intentionally and not because of mistake or accident or other innocent reason,' " 113 N. H., at 242, 306 A.2d, at 784, it said this in a context of several paragraphs of treatment of the elements of the offense. Just as those reading and relying upon our opinions would *485 be ill-advised to seize one phrase out of context, I think we are ill-advised to so treat the opinion of the Supreme Court of New Hampshire. That court had several observations to make about the statutory offense which bear on the issue of "wilfulness" upon which this Court focuses: "It is uncontested that the defendant was in control of the premises where the sale was made. There was evidence that a girl friend of this minor had previously purchased there a pin `like that.' These pins were displayed on a card on a counter. The trial court saw the minor and had an opportunity to conclude whether her minority should have been apparent to whoever sold the pin. The court could find that the defendant was aware of the character of the pins which were being offered for sale and sold in his establishment. "Defendant is charged with wilfully contributing to the delinquency of a minor by selling or causing to be sold to her the button in question. To act wilfully is `to act voluntarily and intentionally and not because of mistake or accident or other innocent reason.' [Citations omitted.] The trial court could properly find and rule that the sale of this button to the minor was intentional. The trial court could further conclude that the seller of this type of button should have realized that it would tend to be harmful to the morals of the purchaser or others. R. S. A. 169:32 (Supp. 1972). This would warrant a finding and ruling that the defendant wilfully contributed to the delinquency of this minor as charged in the complaint. [Citations omitted.]" Id., at 242, 306 A.2d, at 784. The Court simply casts aside this authoritative construction of New Hampshire law, seizes one phrase out *486 of context, and concludes that there was no evidence to establish that the appellant "[knew] the girl to be a minor, personally sold her the button, or personally caused another to sell it to her." The word "personally" is the contribution of this Court to the New Hampshire statute; it is not contained in the statute, and is not once used by the Supreme Court of New Hampshire in its opinion dealing with the facts of this very case. Indeed, the entire thrust of the opinion of the Supreme Court of New Hampshire is that appellant need not personally have sold the button to the minor nor personally have authorized its sale to a minor in order to be guilty of the statutory offense. The only fair reading of the above-quoted language from the Supreme Court of New Hampshire is that the word "wilfully" in the statute does not mean "personally," and the facts that the appellant controlled and operated the shop, that the same type of pin had been previously purchased at the shop, and that the pins were prominently offered for sale were sufficient evidence on the issue of willfulness. This may seem to us a somewhat broad construction of the language "wilfully" or "knowingly," though our own cases make it clear that we are dealing with words which may be given a variety of meanings by their context: "The difference between willful failure to pay a tax when due, which is made a misdemeanor, and willful attempt to defeat and evade one, which is made a felony, is not easy to detect or define. Both must be willful, and willful, as we have said, is a word of many meanings, its construction often being influenced by its context. United States v. Murdock, 290 U.S. 389. It may well mean something more as applied to nonpayment of a tax than when applied to failure to make a return. Mere voluntary and *487 purposeful, as distinguished from accidental, omission to make a timely return might meet the test of willfulness." Spies v. United States, 317 U.S. 492, 497-498 (1943). But since our authority to review state court convictions is limited to the vindication of claims of federal rights, we must take the meaning of the statute, and of the words "wilfully" and "knowingly" which it uses, as given to us by the Supreme Court of New Hampshire. I would have thought such a proposition well settled by our prior decisions: "We of course are bound by a State's interpretation of its own statute and will not substitute our judgment for that of the State's when it becomes necessary to analyze the evidence for the purpose of determining whether that evidence supports the findings of a state court." Garner v. Louisiana, 368 U.S. 157, 166 (1961). We do have constitutional authority in appropriate cases to hold that the State's construction of its statute is such that the statutory language did not give a criminal defendant fair warning of the conduct which is construed to be embraced within it. Cole v. Arkansas, 333 U.S. 196 (1948); Bouie v. City of Columbia, 378 U.S. 347 (1964). But this is a far cry from our own rewriting of a state statute in order to make it require a highly specific intent, and then turning around and saying that there was no evidence before the state courts to prove the kind of intent which we have said the statute requires. I would at least note probable jurisdiction over the appeal and set the case for oral argument. Since the Court instead chooses, without ever having heard argument, to rewrite the New Hampshire statute and substitute its interpretation for that of the Supreme Court of New Hampshire. I dissent.

Appellant Denis M. Vachon operes the Head Shop in Manchester, New Hampshire, where he sells various beads, dresses, posters, and the like. In July 1969, a 14-year-old girl, accompanied by her girl friend, went to the shop seeking to purchase a button or pin like the *481 one purchased by her friend the previous week. She found the button, inscribed "Copulion Not Masturbion," and purchased it from a salesperson in the store. It was conceded in the New Hampshire courts th appellant was in control of the premises where the sale was made. At a jury-waived trial, appellant was convicted of contributing to the delinquency of a minor, a stutory offense proscribed in these words: "[A]nyone who shall knowingly or wilfully encourage, aid, cause, or abet, or connive or has knowingly or wilfully done any act to produce, promote, or contribute to the delinquency of [a] child, may be punished" N. H. Rev. St. Ann. 169:32 (Supp. 1972). The Supreme Court of New Hampshire affirmed appellant's conviction. 113 N. H. 239, The Court decides th appellant's conviction under this stute violes rights secured to him by the Due Process Clause of the Fourteenth Amendment, concluding on the basis of its "independent examinion of the trial record" th "evidence is completely lacking th appellant personally sold the girl the button or even th he was aware of the sale or present in the store the time." I In one sense there can be no doubt th the Court's conclusion is based upon an "independent examinion of the trial record," since the claim sustained here was neither made in constitutional form to the Supreme Court of New Hampshire, nor even presented by appellant in his jurisdictional stement in this Court.[*] *482 A litigant seeking to preserve a constitutional claim for review in this Court must not only make clear to the lower courts the nure of his claim, but he must also make it clear th the claim is constitutionally grounded. The closest th appellant came in his brief on appeal to the Supreme Court of New Hampshire to discussing the issue on which this Court's opinion turns is in the sixth section ( 17-18), which is headed: "The Ste's failure to introduce any evidence of scienter should have resulted in dismissal of the charge following the presention of the Ste's case." Appellant in th section makes the customary appelle arguments of insufficiency of the evidence and does not so much as mention either the United Stes Constitution or a single case decided by this Court. The Supreme Court of New Hampshire treed these arguments as raising a classic ste law claim of insufficient evidence of scienter; nothing in th court's opinion remotely suggests th it was treing the claim as having a basis other than in ste law. The Court purports to decide the scienter question on the basis of Rule 40 (1) (d) (2) of the Rules of this Court, which provides: "1. Briefs of an appellant or petitioner on the merits shall be printed as prescribed in Rule 39, and shall contain in the order here indiced— "(d) (2) The phrasing of the questions presented need not be identical with th set forth in the jurisdictional stement or the petition for certiorari, *483 but the brief may not raise additional questions or change the substance of the questions already presented in those documents. Questions not presented according to this paragraph will be disregarded, save as the court, its option, may notice a plain error not presented." The very language of this rule makes it clear th it applies to this Court's review of cases in which it has previously either noted probable jurisdiction or granted certiorari. The cases cited by the Court in support of wh it does here are therefore necessarily cases in which review had been granted and which had been orally argued; in addition, each of those cases arose in the federal courts. See Columbia Heights Realty ; ; Blonder-Tongue Laborories, Whever the import of Rule 40 (1) (d) (2) in cases arising in the federal courts, it surely does not give this Court the power to simply ignore the limitions placed by 28 U.S. C. 1257 on our jurisdiction to review final judgments of the highest court of a Ste. Th jurisdiction permits review in this Court by appeal where a ste stute has been upheld against a federal constitutional challenge, or by writ of certiorari where a federal constitutional challenge is "specifically set up or claimed" in ste court. Our prior cases establish th we will "not decide federal constitutional issues raised here for the first time on review of ste court decisions." See Since the Supreme Court of New Hampshire was not presented with a federal constitutional challenge to the sufficiency of the evidence, resolution of this question by the Court is inconsistent with the congressional limition on our *484 jurisdiction to review the final judgment of the highest court of a Ste. II Even if appellant's sufficiency-of-the-evidence contention in the Supreme Court of New Hampshire could be said to have been presented as a federal constitutional claim based on I would nonetheless be unable to join in the Court's disposition of it. In Thompson, the only ste court proceedings reaching the merits of the case were in the Louisville Police Court from which there was no right of appeal to any higher ste court, and there was therefore no ste court opinion written which construed the stute under which Thompson was convicted. This Court therefore had no choice but to engage in its own construction of the stute and upon doing so it concluded th the record was "entirely lacking in evidence to support any of the charges." Thompson was obviously an extraordinary case, and up until now has been saved for extraordinary situions; it has not heretofore been broadened so as to make lack of evidentiary support for only one of several elements of an offense a constitutional infirmity in a ste conviction. Here, however, the Supreme Court of New Hampshire construed the ste stute defining contributing to the delinquency of a minor, and held th the evidence adduced the trial was sufficient to support a finding on each element of th offense. While the Supreme Court of New Hampshire did say, as the Court indices, th the Ste was required to prove th the accused acted " `voluntarily and intentionally and not because of mistake or accident or other innocent reason,' " 113 N. H., it said this in a context of several paragraphs of trement of the elements of the offense. Just as those reading and relying upon our opinions would *485 be ill-advised to seize one phrase out of context, I think we are ill-advised to so tre the opinion of the Supreme Court of New Hampshire. Th court had several observions to make about the stutory offense which bear on the issue of "wilfulness" upon which this Court focuses: "It is uncontested th the defendant was in control of the premises where the sale was made. There was evidence th a girl friend of this minor had previously purchased there a pin `like th.' These pins were displayed on a card on a counter. The trial court saw the minor and had an opportunity to conclude whether her minority should have been apparent to whoever sold the pin. The court could find th the defendant was aware of the character of the pins which were being offered for sale and sold in his establishment. "Defendant is charged with wilfully contributing to the delinquency of a minor by selling or causing to be sold to her the button in question. To act wilfully is `to act voluntarily and intentionally and not because of mistake or accident or other innocent reason.' [Citions omitted.] The trial court could properly find and rule th the sale of this button to the minor was intentional. The trial court could further conclude th the seller of this type of button should have realized th it would tend to be harmful to the morals of the purchaser or others. R. S. A. 169:32 (Supp. 1972). This would warrant a finding and ruling th the defendant wilfully contributed to the delinquency of this minor as charged in the complaint. [Citions omitted.]" The Court simply casts aside this authoritive construction of New Hampshire law, seizes one phrase out *486 of context, and concludes th there was no evidence to establish th the appellant "[knew] the girl to be a minor, personally sold her the button, or personally caused another to sell it to her." The word "personally" is the contribution of this Court to the New Hampshire stute; it is not contained in the stute, and is not once used by the Supreme Court of New Hampshire in its opinion dealing with the facts of this very case. Indeed, the entire thrust of the opinion of the Supreme Court of New Hampshire is th appellant need not personally have sold the button to the minor nor personally have authorized its sale to a minor in order to be guilty of the stutory offense. The only fair reading of the above-quoted language from the Supreme Court of New Hampshire is th the word "wilfully" in the stute does not mean "personally," and the facts th the appellant controlled and opered the shop, th the same type of pin had been previously purchased the shop, and th the pins were prominently offered for sale were sufficient evidence on the issue of willfulness. This may seem to us a somewh broad construction of the language "wilfully" or "knowingly," though our own cases make it clear th we are dealing with words which may be given a variety of meanings by their context: "The difference between willful failure to pay a tax when due, which is made a misdemeanor, and willful tempt to defe and evade one, which is made a felony, is not easy to detect or define. Both must be willful, and willful, as we have said, is a word of many meanings, its construction often being influenced by its context. United Stes v. Murdock, It may well mean something more as applied to nonpayment of a tax than when applied to failure to make a return. Mere voluntary and *487 purposeful, as distinguished from accidental, omission to make a timely return might meet the test of willfulness." Spies v. United Stes, But since our authority to review ste court convictions is limited to the vindicion of claims of federal rights, we must take the meaning of the stute, and of the words "wilfully" and "knowingly" which it uses, as given to us by the Supreme Court of New Hampshire. I would have thought such a proposition well settled by our prior decisions: "We of course are bound by a Ste's interpretion of its own stute and will not substitute our judgment for th of the Ste's when it becomes necessary to analyze the evidence for the purpose of determining whether th evidence supports the findings of a ste court." We do have constitutional authority in approprie cases to hold th the Ste's construction of its stute is such th the stutory language did not give a criminal defendant fair warning of the conduct which is construed to be embraced within it. ; But this is a far cry from our own rewriting of a ste stute in order to make it require a highly specific intent, and then turning around and saying th there was no evidence before the ste courts to prove the kind of intent which we have said the stute requires. I would least note probable jurisdiction over the appeal and set the case for oral argument. Since the Court instead chooses, without ever having heard argument, to rewrite the New Hampshire stute and substitute its interpretion for th of the Supreme Court of New Hampshire. I dissent.

Justice Scalia

majority

Jinks v. Richland County

https://www.courtlistener.com/opinion/127912/jinks-v-richland-county/

https://www.courtlistener.com/api/rest/v3/clusters/127912/

2002-043

The Supreme Court of South Carolina dismissed petitioner's lawsuit against Richland County (hereinafter respondent) as time barred. In doing so it held that 28 U.S. C. § 1367(d), which required the state statute of limitations to be tolled for the period during which petitioner's cause of action had previously been pending in federal court, is unconstitutional as applied to lawsuits brought against a State's political subdivisions. The issue before us is the validity of that constitutional determination. I A When a federal district court has original jurisdiction over a civil cause of action, § 1367 determines whether it may exercise supplemental jurisdiction over other claims that do not independently come within its jurisdiction, but that form part of the same Article III "case or controversy." Section 1367(a) provides: "Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such *459 supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties." As the introductory clause suggests, not every claim within the same "case or controversy" as the claim within the federal courts' original jurisdiction will be decided by the federal court; §§ 1367(b) and (c) describe situations in which a federal court may or must decline to exercise supplemental jurisdiction. Section 1367(c), for example, states: "The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if — "(1) the claim raises a novel or complex issue of State law, "(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, "(3) the district court has dismissed all claims over which it has original jurisdiction, or "(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." Thus, some claims asserted under § 1367(a) will be dismissed because the district court declines to exercise jurisdiction over them and, if they are to be pursued, must be refiled in state court. To prevent the limitations period on such supplemental claims from expiring while the plaintiff was fruitlessly pursuing them in federal court, § 1367(d) provides a tolling rule that must be applied by state courts: "The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." *460 B On October 14, 1994, Carl H. Jinks was arrested and jailed for failure to pay child support. Four days later, while confined at respondent's detention center, he died of complications associated with alcohol withdrawal. In 1996, within the applicable statute of limitations, petitioner Susan Jinks, Carl Jinks's widow, brought an action in the United States District Court for the District of South Carolina against respondent, its detention center director, and its detention center physician. She asserted a cause of action under Rev. Stat. § 1979, 42 U.S. C. § 1983, and also supplemental claims for wrongful death and survival under the South Carolina Tort Claims Act. See S. C. Code Ann. § 15-78-10 et seq. (West Supp. 2002). On November 20, 1997, the District Court granted the defendants' motion for summary judgment on the § 1983 claim, and two weeks later issued an order declining to exercise jurisdiction over the remaining state-law claims, dismissing them without prejudice pursuant to 28 U.S. C. § 1367(c)(3). On December 18, 1997, petitioner filed her wrongful-death and survival claims in state court. After the jury returned a verdict of $80,000 against respondent on the wrongful-death claim, respondent appealed to the South Carolina Supreme Court, which reversed on the ground that petitioner's state-law claims were time barred. Although they would not have been time barred under § 1367(d)'s tolling rule, the State Supreme Court held that § 1367(d) was unconstitutional as applied to claims brought in state court against a State's political subdivisions, because it "interferes with the State's sovereign authority to establish the extent to which its political subdivisions are subject to suit." 349 S. C. 298, 304, 563 S.E.2d 104, 107 (2002). We granted certiorari, 537 U.S. 972 (2002). *461 II A Respondent and its amici first contend that § 1367(d) is facially invalid because it exceeds the enumerated powers of Congress. We disagree. Although the Constitution does not expressly empower Congress to toll limitations periods for state-law claims brought in state court, it does give Congress the authority "[t]o make all Laws which shall be necessary and proper for carrying into Execution [Congress's Article I, § 8,] Powers and all other Powers vested by this Constitution in the Government of the United States ...." Art. I, § 8, cl. 18. The enactment of § 1367(d) was not the first time Congress prescribed the alteration of a state-law limitations period;[1] nor is this the first case in which we have ruled on its authority to do so. In Stewart v. Kahn, 11 Wall. *462 493 (1871), we upheld as constitutional a federal statute that tolled limitations periods for state-law civil and criminal cases for the time during which actions could not be prosecuted because of the Civil War. We reasoned that this law was both necessary and proper to carrying into effect the Federal Government's war powers, because it "remed[ied] the evils" that had arisen from the war. "It would be a strange result if those in rebellion, by protracting the conflict, could thus rid themselves of their debts, and Congress, which had the power to wage war and suppress the insurrection, had no power to remedy such an evil, which is one of its consequences." Id., at 507. Of course § 1367(d) has nothing to do with the war power. We agree with petitioner and intervenor United States, however, that § 1367(d) is necessary and proper for carrying into execution Congress's power "[t]o constitute Tribunals inferior to the supreme Court," U.S. Const., Art. I, § 8, cl. 9, and to assure that those tribunals may fairly and efficiently exercise "[t]he judicial Power of the United States," Art. III, § 1. As to "necessity": The federal courts can assuredly exist and function in the absence of § 1367(d), but we long ago rejected the view that the Necessary and Proper Clause demands that an Act of Congress be "`absolutely necessary'" to the exercise of an enumerated power. See McCulloch v. Maryland, 4 Wheat. 316, 414-415 (1819). Rather, it suffices that § 1367(d) is "conducive to the due administration of justice" in federal court,[2] and is "plainly adapted" to that end, id., at 417, 421. Section 1367(d) is conducive to the administration of justice because it provides an alternative to the unsatisfactory options that federal judges faced when they decided whether to retain jurisdiction over supplemental state-law claims that might be time barred in state court. In the pre-§ 1367(d) world, they had three basic choices: *463 First, they could condition dismissal of the state-law claim on the defendant's waiver of any statute-of-limitations defense in state court. See, e. g., Duckworth v. Franzen, 780 F.2d 645, 657 (CA7 1985); Financial General Bankshares, Inc. v. Metzger, 680 F.2d 768, 778 (CADC 1982). That waiver could be refused, however, in which case one of the remaining two choices would have to be pursued. Second, they could retain jurisdiction over the state-law claim even though it would more appropriately be heard in state court. See Newman v. Burgin, 930 F.2d 955, 963-964 (CA1 1991) (collecting cases). That would produce an obvious frustration of statutory policy. And third, they could dismiss the state-law claim but allow the plaintiff to reopen the federal case if the state court later held the claim to be time barred. See, e. g., Rheaume v. Texas Dept. of Public Safety, 666 F.2d 925, 932 (CA5 1982). That was obviously inefficient. By providing a straightforward tolling rule in place of this regime, § 1367(d) unquestionably promotes fair and efficient operation of the federal courts and is therefore conducive to the administration of justice. And it is conducive to the administration of justice for another reason: It eliminates a serious impediment to access to the federal courts on the part of plaintiffs pursuing federal-and state-law claims that "derive from a common nucleus of operative fact," Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). Prior to enactment of § 1367(d), they had the following unattractive options: (1) They could file a single federal-court action, which would run the risk that the federal court would dismiss the state-law claims after the limitations period had expired; (2) they could file a single state-law action, which would abandon their right to a federal forum; (3) they could file separate, timely actions in federal and state court and ask that the state-court litigation be stayed pending resolution of the federal case, which would increase litigation costs with no guarantee that the state court would oblige. Section 1367(d) replaces this selection of inadequate choices *464 with the assurance that state-law claims asserted under § 1367(a) will not become time barred while pending in federal court. We are also persuaded, and respondent does not deny, that § 1367(d) is "plainly adapted" to the power of Congress to establish the lower federal courts and provide for the fair and efficient exercise of their Article III powers. There is no suggestion by either of the parties that Congress enacted § 1367(d) as a "pretext" for "the accomplishment of objects not entrusted to the [federal] government," McCulloch, supra, at 423, nor is the connection between § 1367(d) and Congress's authority over the federal courts so attenuated as to undermine the enumeration of powers set forth in Article I, § 8, cf. United States v. Lopez, 514 U.S. 549, 567-568 (1995); United States v. Morrison, 529 U.S. 598, 615 (2000). Respondent and its amici further contend, however, that § 1367(d) is not a "proper" exercise of Congress's Article I powers because it violates principles of state sovereignty. See Printz v. United States, 521 U.S. 898, 923-924 (1997). Respondent views § 1367(d)'s tolling rule as a regulation of state-court "procedure," and contends that Congress may not, consistent with the Constitution, prescribe procedural rules for state courts' adjudication of purely state-law claims. See, e. g., Bellia, Federal Regulation of State Court Procedures, 110 Yale L. J. 947 (2001); Congressional Authority to Require State Courts to Use Certain Procedures in Products Liability Cases, 13 Op. Off. Legal Counsel 372, 373-374 (1989) (stating that "potential constitutional questions" arise when Congress "attempts to prescribe directly the state court procedures to be followed in products liability cases"). Assuming for the sake of argument that a principled dichotomy can be drawn, for purposes of determining whether an Act of Congress is "proper," between federal laws that regulate state-court "procedure" and laws that change the "substance" of state-law rights of action, we do not think that *465 state-law limitations periods fall into the category of "procedure" immune from congressional regulation. Respondent's reliance on Sun Oil Co. v. Wortman, 486 U.S. 717 (1988), which held a state statute of limitations to be "procedural" for purposes of the Full Faith and Credit Clause, is misplaced. As we noted in that very case, the meaning of "`substance'" and "`procedure'" in a particular context is "largely determined by the purposes for which the dichotomy is drawn." Id., at 726. For purposes of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), for example, statutes of limitations are treated as substantive. Guaranty Trust Co. v. York, 326 U.S. 99 (1945). Stewart v. Kahn, 11 Wall., at 506-507, provides ample support for the proposition that — if the substance-procedure dichotomy posited by respondent is valid — the tolling of limitations periods falls on the "substantive" side of the line. To sustain § 1367(d) in this case, we need not (and do not) hold that Congress has unlimited power to regulate practice and procedure in state courts. We therefore reject respondent's contention that § 1367(d) is facially unconstitutional. B Respondent next maintains that § 1367(d) should not be interpreted to apply to claims brought against a State's political subdivisions. We find this contention also to be without merit. The South Carolina Tort Claims Act, S. C. Code Ann. § 15-78-10 et seq. (West Supp. 2002), confers upon respondent an immunity from tort liability for any claim brought more than two years after the injury was or should have been discovered. In respondent's view, § 1367(d)'s extension of the time period in which a State's political subdivisions may be sued constitutes an impermissible abrogation of "sovereign immunity." That is not so. Although we have held that Congress lacks authority under Article I to override a State's immunity from suit in its own courts, see Alden v. Maine, *466 527 U.S. 706 (1999), it may subject a municipality to suit in state court if that is done pursuant to a valid exercise of its enumerated powers, see id., at 756. Section 1367(d) tolls the limitations period with respect to state-law causes of action brought against municipalities, but we see no reason why that represents a greater intrusion on "state sovereignty" than the undisputed power of Congress to override state-law immunity when subjecting a municipality to suit under a federal cause of action. In either case, a State's authority to set the conditions upon which its political subdivisions are subject to suit in its own courts must yield to the enactments of Congress. This is not an encroachment on "state sovereignty," but merely the consequence of those cases (which respondent does not ask us to overrule) which hold that municipalities, unlike States, do not enjoy a constitutionally protected immunity from suit. Nor do we see any reason to construe § 1367(d) not to apply to claims brought against a State's political subdivisions absent an "unmistakably clear" statement of the statute's applicability to such claims. Although we held in Raygor v. Regents of Univ. of Minn., 534 U.S. 533 (2002), that § 1367(d) does not apply to claims filed in federal court against States but subsequently dismissed on sovereign immunity grounds, we did so to avoid interpreting the statute in a manner that would raise "serious constitutional doubt" in light of our decisions protecting a State's sovereign immunity from congressional abrogation, id., at 543. As we have just explained, however, no such constitutional doubt arises from holding that petitioner's claim against respondent — which is not a State, but a political subdivision of a State — falls under the definition of "any claim asserted under subsection (a)." § 1367(d) (emphasis added). In any event, the idea that an "unmistakably clear" statement is required before an Act of Congress may expose a local government to liability cannot possibly be reconciled with our holding in Monell v. New *467 York City Dept. of Social Servs., 436 U.S. 658 (1978), that municipalities are subject to suit as "persons" under § 1983. * * * The judgment of the Supreme Court of South Carolina is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

The Supreme Court of South Carolina dismissed petitioner's lawsuit against Richland County (hereinafter respondent) as time barred. In doing so it held that 28 U.S. C. 1367(d), which required the state statute of limitations to be tolled for the period during which petitioner's cause of action had previously been pending in federal court, is unconstitutional as applied to lawsuits brought against a State's political subdivisions. The issue before us is the validity of that constitutional determination. I A When a federal district court has original jurisdiction over a civil cause of action, 1367 determines whether it may exercise supplemental jurisdiction over other claims that do not independently come within its jurisdiction, but that form part of the same Article III "case or controversy." Section 1367(a) provides: "Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such *459 supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties." As the introductory clause suggests, not every claim within the same "case or controversy" as the claim within the federal courts' original jurisdiction will be decided by the federal court; 1367(b) and (c) describe situations in which a federal court may or must decline to exercise supplemental jurisdiction. Section 1367(c), for example, states: "The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if — "(1) the claim raises a novel or complex issue of State law, "(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, "(3) the district court has dismissed all claims over which it has original jurisdiction, or "(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." Thus, some claims asserted under 1367(a) will be dismissed because the district court declines to exercise jurisdiction over them and, if they are to be pursued, must be refiled in state court. To prevent the limitations period on such supplemental claims from expiring while the plaintiff was fruitlessly pursuing them in federal court, 1367(d) provides a tolling rule that must be applied by state courts: "The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." *460 B On October 14, 1994, Carl H. Jinks was arrested and jailed for failure to pay child support. Four days later, while confined at respondent's detention center, he died of complications associated with alcohol withdrawal. In 1996, within the applicable statute of limitations, petitioner Susan Jinks, Carl Jinks's widow, brought an action in the United States District Court for the District of South Carolina against respondent, its detention center director, and its detention center physician. She asserted a cause of action under Rev. Stat. 1979, 42 U.S. C. 1983, and also supplemental claims for wrongful death and survival under the South Carolina Tort Claims Act. See S. C. Code Ann. 15-78-10 et seq. On November 20, 1997, the District Court granted the defendants' motion for summary judgment on the 1983 claim, and two weeks later issued an order declining to exercise jurisdiction over the remaining state-law claims, dismissing them without prejudice pursuant to 28 U.S. C. 1367(c)(3). On December 18, 1997, petitioner filed her wrongful-death and survival claims in state court. After the jury returned a verdict of $80,000 against respondent on the wrongful-death claim, respondent appealed to the South Carolina Supreme Court, which reversed on the ground that petitioner's state-law claims were time barred. Although they would not have been time barred under 1367(d)'s tolling rule, the State Supreme Court held that 1367(d) was unconstitutional as applied to claims brought in state court against a State's political subdivisions, because it "interferes with the State's sovereign authority to establish the extent to which its political subdivisions are subject to suit." 349 S. C. 298, 304, We granted certiorari, *461 II A Respondent and its amici first contend that 1367(d) is facially invalid because it exceeds the enumerated powers of Congress. We disagree. Although the Constitution does not expressly empower Congress to toll limitations periods for state-law claims brought in state court, it does give Congress the authority "[t]o make all Laws which shall be necessary and proper for carrying into Execution [Congress's Article I, 8,] Powers and all other Powers vested by this Constitution in the Government of the United States" Art. I, 8, cl. 18. The enactment of 1367(d) was not the first time Congress prescribed the alteration of a state-law limitations period;[1] nor is this the first case in which we have ruled on its authority to do so. In Stewart v. 11 Wall. *462 493 (1871), we upheld as constitutional a federal statute that tolled limitations periods for state-law civil and criminal cases for the time during which actions could not be prosecuted because of the Civil War. We reasoned that this law was both necessary and proper to carrying into effect the Federal Government's war powers, because it "remed[ied] the evils" that had arisen from the war. "It would be a strange result if those in rebellion, by protracting the conflict, could thus rid themselves of their debts, and Congress, which had the power to wage war and suppress the insurrection, had no power to remedy such an evil, which is one of its consequences." Of course 1367(d) has nothing to do with the war power. We agree with petitioner and intervenor United States, however, that 1367(d) is necessary and proper for carrying into execution Congress's power "[t]o constitute Tribunals inferior to the supreme Court," U.S. Const., Art. I, 8, cl. 9, and to assure that those tribunals may fairly and efficiently exercise "[t]he judicial Power of the United States," Art. III, 1. As to "necessity": The federal courts can assuredly exist and function in the absence of 1367(d), but we long ago rejected the view that the Necessary and Proper Clause demands that an Act of Congress be "`absolutely necessary'" to the exercise of an enumerated power. See Rather, it suffices that 1367(d) is "conducive to the due administration of justice" in federal court,[2] and is "plainly adapted" to that end, Section 1367(d) is conducive to the administration of justice because it provides an alternative to the unsatisfactory options that federal judges faced when they decided whether to retain jurisdiction over supplemental state-law claims that might be time barred in state court. In the pre- 1367(d) world, they had three basic choices: *463 First, they could condition dismissal of the state-law claim on the defendant's waiver of any statute-of-limitations defense in state court. See, e. g., ; Financial General Bankshares, That waiver could be refused, however, in which case one of the remaining two choices would have to be pursued. Second, they could retain jurisdiction over the state-law claim even though it would more appropriately be heard in state court. See That would produce an obvious frustration of statutory policy. And third, they could dismiss the state-law claim but allow the plaintiff to reopen the federal case if the state court later held the claim to be time barred. See, e. g., That was obviously inefficient. By providing a straightforward tolling rule in place of this regime, 1367(d) unquestionably promotes fair and efficient operation of the federal courts and is therefore conducive to the administration of justice. And it is conducive to the administration of justice for another reason: It eliminates a serious impediment to access to the federal courts on the part of plaintiffs pursuing federal-and state-law claims that "derive from a common nucleus of operative fact," Mine Prior to enactment of 1367(d), they had the following unattractive options: (1) They could file a single federal-court action, which would run the risk that the federal court would dismiss the state-law claims after the limitations period had expired; (2) they could file a single state-law action, which would abandon their right to a federal forum; (3) they could file separate, timely actions in federal and state court and ask that the state-court litigation be stayed pending resolution of the federal case, which would increase litigation costs with no guarantee that the state court would oblige. Section 1367(d) replaces this selection of inadequate choices *464 with the assurance that state-law claims asserted under 1367(a) will not become time barred while pending in federal court. We are also persuaded, and respondent does not deny, that 1367(d) is "plainly adapted" to the power of Congress to establish the lower federal courts and provide for the fair and efficient exercise of their Article III powers. There is no suggestion by either of the parties that Congress enacted 1367(d) as a "pretext" for "the accomplishment of objects not entrusted to the [federal] government," nor is the connection between 1367(d) and Congress's authority over the federal courts so attenuated as to undermine the enumeration of powers set forth in Article I, 8, cf. United ; United Respondent and its amici further contend, however, that 1367(d) is not a "proper" exercise of Congress's Article I powers because it violates principles of state sovereignty. See Respondent views 1367(d)'s tolling rule as a regulation of state-court "procedure," and contends that Congress may not, consistent with the Constitution, prescribe procedural rules for state courts' adjudication of purely state-law claims. See, e. g., Bellia, Federal Regulation of State Court Procedures, 110 Yale L. J. 947 (2001); Congressional Authority to Require State Courts to Use Certain Procedures in Products Liability Cases, 13 Op. Off. Legal Counsel 372, 373-374 (1989) (stating that "potential constitutional questions" arise when Congress "attempts to prescribe directly the state court procedures to be followed in products liability cases"). Assuming for the sake of argument that a principled dichotomy can be drawn, for purposes of determining whether an Act of Congress is "proper," between federal laws that regulate state-court "procedure" and laws that change the "substance" of state-law rights of action, we do not think that *465 state-law limitations periods fall into the category of "procedure" immune from congressional regulation. Respondent's reliance on Sun Oil which held a state statute of limitations to be "procedural" for purposes of the Full Faith and Credit Clause, is misplaced. As we noted in that very case, the meaning of "`substance'" and "`procedure'" in a particular context is "largely determined by the purposes for which the dichotomy is drawn." For purposes of Erie R. for example, statutes of limitations are treated as substantive. Guaranty Trust Stewart v. -507, provides ample support for the proposition that — if the substance-procedure dichotomy posited by respondent is valid — the tolling of limitations periods falls on the "substantive" side of the line. To sustain 1367(d) in this case, we need not (and do not) hold that Congress has unlimited power to regulate practice and procedure in state courts. We therefore reject respondent's contention that 1367(d) is facially unconstitutional. B Respondent next maintains that 1367(d) should not be interpreted to apply to claims brought against a State's political subdivisions. We find this contention also to be without merit. The South Carolina Tort Claims Act, S. C. Code Ann. 15-78-10 et seq. confers upon respondent an immunity from tort liability for any claim brought more than two years after the injury was or should have been discovered. In respondent's view, 1367(d)'s extension of the time period in which a State's political subdivisions may be sued constitutes an impermissible abrogation of "sovereign immunity." That is not so. Although we have held that Congress lacks authority under Article I to override a State's immunity from suit in its own courts, see it may subject a municipality to suit in state court if that is done pursuant to a valid exercise of its enumerated powers, see Section 1367(d) tolls the limitations period with respect to state-law causes of action brought against municipalities, but we see no reason why that represents a greater intrusion on "state sovereignty" than the undisputed power of Congress to override state-law immunity when subjecting a municipality to suit under a federal cause of action. In either case, a State's authority to set the conditions upon which its political subdivisions are subject to suit in its own courts must yield to the enactments of Congress. This is not an encroachment on "state sovereignty," but merely the consequence of those cases (which respondent does not ask us to overrule) which hold that municipalities, unlike States, do not enjoy a constitutionally protected immunity from suit. Nor do we see any reason to construe 1367(d) not to apply to claims brought against a State's political subdivisions absent an "unmistakably clear" statement of the statute's applicability to such claims. Although we held in that 1367(d) does not apply to claims filed in federal court against States but subsequently dismissed on sovereign immunity grounds, we did so to avoid interpreting the statute in a manner that would raise "serious constitutional doubt" in light of our decisions protecting a State's sovereign immunity from congressional abrogation, As we have just explained, however, no such constitutional doubt arises from holding that petitioner's claim against respondent — which is not a State, but a political subdivision of a State — falls under the definition of "any claim asserted under subsection (a)." 1367(d) (emphasis added). In any event, the idea that an "unmistakably clear" statement is required before an Act of Congress may expose a local government to liability cannot possibly be reconciled with our holding in that municipalities are subject to suit as "persons" under 1983. * * * The judgment of the Supreme Court of South Carolina is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

per_curiam

per_curiam

United States v. Pomponio

https://www.courtlistener.com/opinion/109549/united-states-v-pomponio/

https://www.courtlistener.com/api/rest/v3/clusters/109549/

1976-004

After a jury trial, respondents were convicted of willfully filing false income tax returns in violation of 26 U.S. C. § 7206 (1).[1] Based on its reading of United States v. Bishop, 412 U.S. 346 (1973), the Court of Appeals held that the jury was incorrectly instructed concerning willfulness, and remanded for a new trial. 528 F.2d 247 (1975). The United States petitioned for certiorari. We reverse. The respondents were charged with falsifying tax returns in two principal ways: (1) they allegedly caused corporations they controlled to report payments to them as loans, when they knew the payments were really taxable dividends; and (2) they allegedly claimed partnership losses as deductions knowing that the losses were properly attributable to *11 a corporation. Their defense was that these transactions were correctly reported, or at least that they thought so at the time. The jury was instructed that respondents were not guilty of violating § 7206 (1) unless they had signed the tax returns knowing them to be false,[2] and had done so willfully. A willful act was defined in the instructions as one done "voluntarily and intentionally and with the specific intent to do something which the law forbids, that is to say with [the] bad purpose either to disobey or to disregard the law." Finally, the jury was instructed that "[g]ood motive alone is never a defense where the act done or omitted is a crime," and that consequently motive was irrelevant except as it bore on intent. The Court of Appeals held this final instruction improper because "the statute at hand requires a finding of a bad purpose or evil motive." 528 F.2d, at 249. In so holding, the Court of Appeals incorrectly assumed that the reference to an "evil motive" in United States v. Bishop, supra, and prior cases meant something more than the specific intent to violate the law described in the trial judge's instruction. *12 In Bishop we held that the term "willfully" has the same meaning in the misdemeanor and felony sections of the Revenue Code, and that it requires more than a showing of careless disregard for the truth.[3] We did not, however, hold that the term requires proof of any motive other than an intentional violation of a known legal duty. We explained the meaning of willfulness in § 7206 and related statutes: "The Court, in fact, has recognized that the word `willfully' in these statutes generally connotes a voluntary, intentional violation of a known legal duty. It has formulated the requirement of willfulness as `bad faith or evil intent,' [United States v.] Murdock, 290 U. S. [389,] 398, or `evil motive and want of justification in view of all the financial circumstances of the tax-payer,' Spies [v. United States], 317 U. S. [492,] 498, or knowledge that the taxpayer `should have reported more income than he did.' Sansone [v. United States], 380 U. S. [343,] 353. See James v. United States, 366 U.S. 213, 221 (1961); McCarthy v. United States, 394 U.S. 459, 471 (1969)." 412 U.S., at 360. Our references to other formulations of the standard did not modify the standard set forth in the first sentence of the quoted paragraph. On the contrary, as the other Courts of Appeals that have considered the question have recognized, willfulness in this context simply means a voluntary, intentional violation of a known legal duty. United States v. Pohlman, *13 522 F.2d 974, 977 (CA8 1975) (en banc), cert. denied, 423 U.S. 1049 (1976); United States v. McCorkle, 511 F.2d 482, 484-485 (CA7) (en banc), cert. denied, 423 U.S. 826 (1975); United States v. Greenlee, 517 F.2d 899, 904 (CA3), cert. denied, 423 U.S. 985 (1975); United States v. Hawk, 497 F.2d 365, 366-369 (CA9), cert. denied, 419 U.S. 838 (1974). The trial judge in the instant case adequately instructed the jury on willfulness. An additional instruction on good faith was unnecessary. As an alternative ground for ordering a new trial, the Court of Appeals held that respondents were entitled to instructions exonerating them if they believed that the payments to them were loans and that the losses belonged to the partnership, 528 F.2d, at 250. Our inspection of the record indicates that such instructions were given and that they were adequate.[4] The respondents' other allegations of error which the Court of Appeals found it unnecessary to reach should be considered by that court in the first instance. The petition for certiorari is granted, 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.

After a jury trial, respondents were convicted of willfully filing false income tax returns in violation of 26 U.S. C. 7206 (1).[1] Based on its reading of United the Court of Appeals held that the jury was incorrectly instructed concerning willfulness, and remanded for a new trial. The United States petitioned for certiorari. We reverse. The respondents were charged with falsifying tax returns in two principal ways: (1) they allegedly caused corporations they controlled to report payments to them as loans, when they knew the payments were really taxable dividends; and (2) they allegedly claimed losses as deductions knowing that the losses were properly attributable to *11 a corporation. Their defense was that these transactions were correctly reported, or at least that they thought so at the time. The jury was instructed that respondents were not guilty of violating 7206 (1) unless they had signed the tax returns knowing them to be false,[2] and had done so willfully. A willful act was defined in the instructions as one done "voluntarily and intentionally and with the specific intent to do something which the law forbids, that is to say with [the] bad purpose either to disobey or to disregard the law." Finally, the jury was instructed that "[g]ood motive alone is never a defense where the act done or omitted is a crime," and that consequently motive was irrelevant except as it bore on intent. The Court of Appeals held this final instruction improper because "the statute at hand requires a finding of a bad purpose or evil motive." In so holding, the Court of Appeals incorrectly assumed that the reference to an "evil motive" in United and prior cases meant something more than the specific intent to violate the law described in the trial judge's instruction. *12 In we held that the term "willfully" has the same meaning in the misdemeanor and felony sections of the Revenue Code, and that it requires more than a showing of careless disregard for the truth.[3] We did not, however, hold that the term requires proof of any motive other than an intentional violation of a known legal duty. We explained the meaning of willfulness in 7206 and related statutes: "The Court, in fact, has recognized that the word `willfully' in these statutes generally connotes a voluntary, intentional violation of a known legal duty. It has formulated the requirement of willfulness as `bad faith or evil intent,' [United States v.] Murdock, 290 U. S. [389,] 398, or `evil motive and want of justification in view of all the financial circumstances of the tax-payer,' Spies [v. United States], 317 U. S. [492,] 498, or knowledge that the taxpayer `should have reported more income than he did.' Sansone [v. United States], 380 U. S. [343,] 353. See ;" Our references to other formulations of the standard did not modify the standard set forth in the first sentence of the quoted paragraph. On the contrary, as the other Courts of Appeals that have considered the question have recognized, willfulness in this context simply means a voluntary, intentional violation of a known legal duty. United cert. denied, ; United (CA7) cert. denied, ; United (CA3), cert. denied, ; United (CA9), cert. denied, The trial judge in the instant case adequately instructed the jury on willfulness. An additional instruction on good faith was unnecessary. As an alternative ground for ordering a new trial, the Court of Appeals held that respondents were entitled to instructions exonerating them if they believed that the payments to them were loans and that the losses belonged to the Our inspection of the record indicates that such instructions were given and that they were adequate.[4] The respondents' other allegations of error which the Court of Appeals found it unnecessary to reach should be considered by that court in the first instance. The petition for certiorari is granted, 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 Powell

majority

Armco Inc. v. Hardesty

https://www.courtlistener.com/opinion/111213/armco-inc-v-hardesty/

https://www.courtlistener.com/api/rest/v3/clusters/111213/

1983-126

In this appeal an Ohio corporation claims that West Virginia's wholesale gross receipts tax, from which local manufacturers are exempt, unconstitutionally discriminates against interstate commerce. We agree and reverse the state court's judgment upholding the tax. I Appellant Armco Inc. is an Ohio corporation qualified to do business in West Virginia. Its primary business is manufacturing and selling steel products. From 1970 through 1975, the time at issue here, Armco conducted business in West Virginia through five divisions or subdivisions. Two of these had facilities and employees in the State, while the other *640 three sold various products to customers in the State only through franchisees or nonresident traveling salesmen.[1] West Virginia imposes a gross receipts tax on persons engaged in the business of selling tangible property at wholesale. W. Va. Code § 11-13-2c (1983).[2] For the years 1970 through 1975 Armco took the position that the gross receipts tax could not be imposed on the sales it made through franchisees and nonresident salesmen. In addition, because local manufactures were exempt from the tax, see § 11-13-2,[3] Armco argued that the tax discriminated against interstate *641 commerce. After a hearing, the State Tax Commissioner, who is appellee here, determined that the tax was properly assessed on the sales at issue, and that Armco had not shown the tax was discriminatory.[4] The Circuit Court of Kanawha County reversed, holding that the nexus between the sales and the State was insufficient to support imposition of the tax. The West Virginia Supreme Court of Appeals reversed the Circuit Court and upheld the tax. ___ W. Va. ___, 303 S.E.2d 706 (1983). Viewing all of Armco's activities in the State as a "unitary business," the court held that the taxpayer had a substantial nexus with the State and that the taxpayer's total tax was fairly related to the services and benefits provided to Armco by the State. Id., at ___, ___, 303 S. E. 2d, at 714, 716. It also held that the tax did not discriminate against interstate commerce; while local manufacturers making sales in the State were exempt from the gross receipts tax, they paid a much higher manufacturing tax.[5]Id., at ___, ___, 303 S. E. 2d, at 716-717. We noted probable jurisdiction, 464 U.S. 1016 (1983), and now reverse. Since we hold that West Virginia's tax does discriminate unconstitutionally against interstate commerce, we do not reach Armco's argument that there was not a sufficient nexus between the State and the sales at issue here to permit taxation of them. *642 II It long has been established that the Commerce Clause of its own force protects free trade among the States. Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 328 (1977); Freeman v. Hewit, 329 U.S. 249, 252 (1946). One aspect of this protection is that a State "may not discriminate between transactions on the basis of some interstate element." Boston Stock Exchange, supra, at 332, n. 12. That is, a State may not tax a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State. On its face, the gross receipts tax at issue here appears to have just this effect. The tax provides that two companies selling tangible property at wholesale in West Virginia will be treated differently depending on whether the taxpayer conducts manufacturing in the State or out of it. Thus, if the property was manufactured in the State, no tax on the sale is imposed. If the property was manufactured out of the State and imported for sale, a tax of 0.27% is imposed on the sale price. See General Motors Corp. v. Washington, 377 U.S. 436, 459 (1964) (Goldberg, J., dissenting) (similar provision in Washington, "on its face, discriminated against interstate wholesale sales to Washington purchasers for it exempted the intrastate sales of locally made products while taxing the competing sales of interstate sellers"); Columbia Steel Co. v. State, 30 Wash. 2d 658, 664, 192 P.2d 976, 979 (1948) (invalidating Washington tax). The court below was of the view that no such discrimination in favor of local, intrastate commerce occurred because taxpayers manufacturing in the State were subject to a far higher tax of 0.88% of the sale price. This view is mistaken. The gross sales tax imposed on Armco cannot be deemed a "compensating tax" for the manufacturing tax imposed on its West Virginia competitors. In Maryland v. Louisiana, 451 U.S. 725, 758-759 (1981), the Court refused to consider a tax on the first use in Louisiana of gas brought in from out of *643 State to be a complement of a severance tax in the same amount imposed on gas produced in the State. Severance and first use or processing were not "substantially equivalent event[s]" on which compensating taxes might be imposed. Id., at 759. Here, too, manufacturing and wholesaling are not "substantially equivalent events" such that the heavy tax on in-state manufacturers can be said to compensate for the admittedly lighter burden placed on wholesalers from out of State. Manufacturing frequently entails selling in the State, but we cannot say which portion of the manufacturing tax is attributable to manufacturing, and which portion to sales.[6] The fact that the manufacturing tax is not reduced when a West Virginia manufacturer sells its goods out of State, and that it is reduced when part of the manufacturing takes place out of State, makes clear that the manufacturing tax is just that, and not in part a proxy for the gross receipts tax imposed on Armco and other sellers from other States.[7] *644 Moreover, when the two taxes are considered together, discrimination against interstate commerce persists. If Ohio or any of the other 48 States imposes a like tax on its manufacturers — which they have every right to do — then Armco and others from out of State will pay both a manufacturing tax and a wholesale tax while sellers resident in West Virginia will pay only the manufacturing tax. For example, if Ohio were to adopt the precise scheme here, then an interstate seller would pay the manufacturing tax of 0.88% and the gross receipts tax of 0.27%; a purely intrastate seller would pay only the manufacturing tax of 0.88% and would be exempt from the gross receipts tax. Appellee suggests that we should require Armco to prove actual discriminatory impact on it by pointing to a State that imposes a manufacturing tax that results in a total burden higher than that imposed on Armco's competitors in West Virginia. This is not the test. In Container Corp. of America v. Franchise Tax Board, 463 U.S. 159, 169 (1983), the Court noted that a tax must have "what might be called internal consistency — that is the [tax] must be such that, if applied by every jurisdiction," there would be no impermissible interference with free trade. In that case, the Court was discussing the requirement that a tax be fairly apportioned to reflect the business conducted in the State. A similar rule applies where the allegation is that a tax on its face discriminates against interstate commerce. A tax that unfairly apportions income from other States is a form of discrimination against interstate commerce. See also id., at 170-171. Any other rule would mean that the constitutionality of West Virginia's *645 tax laws would depend on the shifting complexities of the tax codes of 49 other States, and that the validity of the taxes imposed on each taxpayer would depend on the particular other States in which it operated.[8] It is true, as the State of Washington appearing as amicus curiae points out, that Armco would be faced with the same situation that it complains of here if Ohio (or some other State) imposed a tax only upon manufacturing, while West Virginia imposed a tax only upon wholesaling. In that situation, Armco would bear two taxes, while West Virginia sellers would bear only one. But such a result would not arise from impermissible discrimination against interstate commerce but from fair encouragement of in-state business. What we said in Boston Stock Exchange, 429 U. S., at 336-337, is relevant here as well: "Our decision today does not prevent the States from structuring their tax systems to encourage the growth *646 and development of intrastate commerce and industry. Nor do we hold that a State may not compete with other States for a share of interstate commerce; such competition lies at the heart of a free trade policy. We hold only that in the process of competition no State may discriminatorily tax the products manufactured or the business operations performed in any other State." The judgment below is reversed. It is so ordered.

In this appeal an Ohio corporation claims that West Virginia's wholesale gross receipts tax, from which local manufacturers are exempt, unconstitutionally discriminates against interstate commerce. We agree and reverse the state court's judgment upholding the tax. I Appellant Armco Inc. is an Ohio corporation qualified to do business in West Virginia. Its primary business is manufacturing and selling steel products. From 1970 through 1975, the time at issue here, Armco conducted business in West Virginia through five divisions or subdivisions. Two of these had facilities and employees in the State, while the other *640 three sold various products to customers in the State only through franchisees or nonresident traveling salesmen.[1] West Virginia imposes a gross receipts tax on persons engaged in the business of selling tangible property at wholesale. -2c[2] For the years 1970 through 1975 Armco took the position that the gross receipts tax could not be imposed on the sales it made through franchisees and nonresident salesmen. In addition, because local manufactures were exempt from the tax, see 11-13-2,[3] Armco argued that the tax discriminated against interstate *641 commerce. After a hearing, the State Tax Commissioner, who is appellee here, determined that the tax was properly assessed on the sales at issue, and that Armco had not shown the tax was discriminatory.[4] The Circuit Court of Kanawha County reversed, holding that the nexus between the sales and the State was insufficient to support imposition of the tax. The West Virginia Supreme Court of Appeals reversed the Circuit Court and upheld the tax. W. Va. Viewing all of Armco's activities in the State as a "unitary business," the court held that the taxpayer had a substantial nexus with the State and that the taxpayer's total tax was fairly related to the services and benefits provided to Armco by the State. at 303 S. E. 2d, at 714, 716. It also held that the tax did not discriminate against interstate commerce; while local manufacturers making sales in the State were exempt from the gross receipts tax, they paid a much higher manufacturing tax.[5] at 303 S. E. 2d, at 716-717. We noted probable jurisdiction, and now reverse. Since we hold that West Virginia's tax does discriminate unconstitutionally against interstate commerce, we do not reach Armco's argument that there was not a sufficient nexus between the State and the sales at issue here to permit taxation of them. *642 II It long has been established that the Commerce Clause of its own force protects free trade among the States. Boston Stock ; One aspect of this protection is that a State "may not discriminate between transactions on the basis of some interstate element." Boston Stock That is, a State may not tax a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State. On its face, the gross receipts tax at issue here appears to have just this effect. The tax provides that two companies selling tangible property at wholesale in West Virginia will be treated differently depending on whether the taxpayer conducts manufacturing in the State or out of it. Thus, if the property was manufactured in the State, no tax on the sale is imposed. If the property was manufactured out of the State and imported for sale, a tax of 0.27% is imposed on the sale price. See General Motors (similar provision in Washington, "on its face, discriminated against interstate wholesale sales to Washington purchasers for it exempted the intrastate sales of locally made products while taxing the competing sales of interstate sellers"); Columbia Steel The court below was of the view that no such discrimination in favor of local, intrastate commerce occurred because taxpayers manufacturing in the State were subject to a far higher tax of 0.88% of the sale price. This view is mistaken. The gross sales tax imposed on Armco cannot be deemed a "compensating tax" for the manufacturing tax imposed on its West Virginia competitors. In the Court refused to consider a tax on the first use in Louisiana of gas brought in from out of *643 State to be a complement of a severance tax in the same amount imposed on gas produced in the State. Severance and first use or processing were not "substantially equivalent event[s]" on which compensating taxes might be imposed. Here, too, manufacturing and wholesaling are not "substantially equivalent events" such that the heavy tax on in-state manufacturers can be said to compensate for the admittedly lighter burden placed on wholesalers from out of State. Manufacturing frequently entails selling in the State, but we cannot say which portion of the manufacturing tax is attributable to manufacturing, and which portion to sales.[6] The fact that the manufacturing tax is not reduced when a West Virginia manufacturer sells its goods out of State, and that it is reduced when part of the manufacturing takes place out of State, makes clear that the manufacturing tax is just that, and not in part a proxy for the gross receipts tax imposed on Armco and other sellers from other States.[7] *644 Moreover, when the two taxes are considered together, discrimination against interstate commerce persists. If Ohio or any of the other 48 States imposes a like tax on its manufacturers — which they have every right to do — then Armco and others from out of State will pay both a manufacturing tax and a wholesale tax while sellers resident in West Virginia will pay only the manufacturing tax. For example, if Ohio were to adopt the precise scheme here, then an interstate seller would pay the manufacturing tax of 0.88% and the gross receipts tax of 0.27%; a purely intrastate seller would pay only the manufacturing tax of 0.88% and would be exempt from the gross receipts tax. Appellee suggests that we should require Armco to prove actual discriminatory impact on it by pointing to a State that imposes a manufacturing tax that results in a total burden higher than that imposed on Armco's competitors in West Virginia. This is not the test. In Container Corp. of the Court noted that a tax must have "what might be called internal consistency — that is the [tax] must be such that, if applied by every jurisdiction," there would be no impermissible interference with free trade. In that case, the Court was discussing the requirement that a tax be fairly apportioned to reflect the business conducted in the State. A similar rule applies where the allegation is that a tax on its face discriminates against interstate commerce. A tax that unfairly apportions income from other States is a form of discrimination against interstate commerce. See also Any other rule would mean that the constitutionality of West Virginia's *645 tax laws would depend on the shifting complexities of the tax codes of 49 other States, and that the validity of the taxes imposed on each taxpayer would depend on the particular other States in which it operated.[8] It is true, as the State of Washington appearing as amicus curiae points out, that Armco would be faced with the same situation that it complains of here if Ohio (or some other State) imposed a tax only upon manufacturing, while West Virginia imposed a tax only upon wholesaling. In that situation, Armco would bear two taxes, while West Virginia sellers would bear only one. But such a result would not arise from impermissible discrimination against interstate commerce but from fair encouragement of in-state business. What we said in Boston Stock -337, is relevant here as well: "Our decision today does not prevent the States from structuring their tax systems to encourage the growth *646 and development of intrastate commerce and industry. Nor do we hold that a State may not compete with other States for a share of interstate commerce; such competition lies at the heart of a free trade policy. We hold only that in the process of competition no State may discriminatorily tax the products manufactured or the business operations performed in any other State." The judgment below is reversed. It is so ordered.

Justice Rehnquist

majority

United States v. Hyde

https://www.courtlistener.com/opinion/118114/united-states-v-hyde/

https://www.courtlistener.com/api/rest/v3/clusters/118114/

1996-058

Rule 32(e) of the Federal Rules of Criminal Procedure states that a district court may allow a defendant to withdraw his guilty plea before he is sentenced "if the defendant shows any fair and just reason." After the defendant in this case pleaded guilty, pursuant to a plea agreement, the District Court accepted his plea but deferred decision on whether to accept the plea agreement. The defendant then sought to withdraw his plea. We hold that in such circumstances a defendant may not withdraw his plea unless he shows a "fair and just reason" under Rule 32(e). A federal grand jury indicted respondent Robert Hyde on eight counts of mail fraud, wire fraud, and other fraudrelated crimes. On the morning of his trial, respondent indicated his desire to enter plea negotiations with the Government. Those negotiations produced a plea agreement *672 in which respondent agreed to plead guilty to four of the counts. In exchange, the Government agreed to move to dismiss the remaining four counts and not to bring further charges against respondent for other allegedly fraudulent conduct. That afternoon, the parties appeared again before the District Court and submitted the plea agreement to the court, along with respondent's "application for permission to enter [a] plea of guilty." After placing respondent under oath, the court questioned him extensively to ensure that his plea was knowing and voluntary, and that he understood the consequences of pleading guilty, including the possibility of a maximum sentence of 30 years. The court asked respondent what he had done, and respondent admitted committing the crimes set out in the four counts. The court then asked the Government to set out what it was prepared to prove, and the Government did so. The court asked respondent whether he was pleading guilty because he was in fact guilty of the crimes set out in the four counts. Respondent said that he was. Finally, the court asked respondent how he pleaded to each count, and respondent stated "guilty." The District Court concluded that respondent was pleading guilty knowingly, voluntarily, and intelligently, and that there was a factual basis for the plea. The court therefore stated that it was accepting respondent's guilty plea. It also stated that it was deferring decision on whether to accept the plea agreement, pending completion of the presentence report. One month later, before sentencing and the District Court's decision about whether to accept the plea agreement, respondent filed a motion to withdraw his guilty plea. His motion alleged that he had pleaded guilty under duress from the Government and that his admissions to the District Court had in fact been false. After holding an evidentiary hearing, the court concluded that there was no evidence to support respondent's claim of duress, and that respondent *673 had not provided a "fair and just reason" for withdrawing his guilty plea, as required by Rule 32(e). The court therefore refused to let respondent withdraw his guilty plea. The court then accepted the plea agreement, entered judgment against respondent on the first four counts, dismissed the indictment's remaining four counts on the Government's motion, and sentenced respondent to a prison term of 2[1]20442 years. The Court of Appeals for the Ninth Circuit reversed, holding that respondent had an absolute right to withdraw his guilty plea before the District Court accepted the plea agreement. 92 F.3d 779, 781 (1996). The court reasoned as follows: First, before a district court has accepted a defendant's guilty plea, the defendant has an absolute right to withdraw that plea. Id., at 780 (citing United States v. Washman, 66 F.3d 210, 212-213 (CA9 1995)). Second, the guilty plea and the plea agreement are "`inextricably bound up together,' " such that the court's deferral of the decision whether to accept the plea agreement also constitutes an automatic deferral of its decision whether to accept the guilty plea, even if the court explicitly states that it is accepting the guilty plea. 92 F.3d, at 780 (quoting United States v. Cordova-Perez, 65 F.3d 1552, 1556 (CA9 1995)). Combining these two propositions, the Court of Appeals held that "[i]f the court defers acceptance of the plea or of the plea agreement, the defendant may withdraw his plea for any reason or for no reason, until the time that the court does accept both the plea and the agreement." 92 F.3d, at 781. The Courts of Appeals for the Fourth and Seventh Circuits have reached the opposite conclusion on this issue. United States v. Ewing, 957 F.2d 115, 118-119 (CA4 1992); United States v. Ellison, 798 F.2d 1102, 1106 (CA7 1986). We granted certiorari to resolve the conflict, 519 U.S. 1086 (1997), and now reverse. To understand why we hold that Rule 32(e) governs here, we must go back to Rule 11, the principal provision in the Federal Rules of Criminal Procedure dealing with the subject *674 of guilty pleas and plea agreements. The Court of Appeals equated acceptance of the guilty plea with acceptance of the plea agreement, and deferral of the plea agreement with deferral of the guilty plea. Nothing in the text of Rule 11 supports these conclusions. In fact, the text shows that the opposite is true: Guilty pleas can be accepted while plea agreements are deferred, and the acceptance of the two can be separated in time. The prerequisites to accepting a guilty plea are set out in subdivisions (c) and (d) of Rule 11. Subdivision (c) says: "Before accepting a plea of guilty . . . , the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands," numerous consequences of pleading guilty. For example, the court must ensure the defendant understands the maximum possible penalty that he may face by pleading guilty, Rule 11(c)(1), and the important constitutional rights he is waiving, including the right to a trial, Rules 11(c)(3), (4). Subdivision (d) says: "The court shall not accept a plea of guilty . . . without first, by addressing the defendant personally in open court, determining that the plea is voluntary."[1] The opening words of these two subdivisions are important: Together, they speak of steps a district court must take "[b]efore accepting a plea of guilty," and without which it "shall not accept a plea of guilty." Based on this language, we conclude that once the court has taken these steps, it may, in its discretion, accept a defendant's guilty plea. The Court of Appeals would read an additional prerequisite into this list: A district court shall not accept a plea of guilty without first accepting the plea agreement. But that "prerequisite" is absent from the list set out in subdivisions (c) and (d), strongly suggesting that no such addition is warranted. *675 Subdivision (e), which covers plea agreements, also contradicts the Court of Appeals' holding. That subdivision divides plea agreements into three types, based on what the Government agrees to do: In type A agreements, the Government agrees to move for dismissal of other charges; in type B, it agrees to recommend (or not oppose the defendant's request for) a particular sentence; and in type C, it agrees that the defendant should receive a specific sentence. As to type A and type C agreements, the Rule states that "the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report."[2] Rule 11(e)(2). The plea agreement in this case is a type A agreement: The Government agreed to move to dismiss four counts, did not agree to recommend a particular sentence, and did not agree that a specific sentence was the appropriate disposition. The District Court deferred its decision about whether to accept or reject the agreement. If the court had decided to reject the plea agreement, it would have turned to subdivision (e)(4) of Rule 11. That subdivision, a critical one for our purposes, provides: "If the court rejects the plea agreement, the court shall. . . advise the defendant personally . . . that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea, and advise the defendant that if the defendant persists in a guilty plea . . . the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement." Rule 11(e)(4) (emphasis added). *676 Thus, if the court rejects the agreement, the defendant can "then" withdraw his plea for any reason and does not have to comply with Rule 32(e)'s "fair and just reason" requirement. This provision implements the commonsense notion that a defendant can no longer be bound by an agreement that the court has refused to sanction. Under the Court of Appeals' holding, however, the defendant can withdraw his plea "for any reason or for no reason" even if the district court does not reject the plea agreement, but merely defers decision on it. Thus, for the Court of Appeals, the rejection of the plea agreement has no significance: Before rejection, the defendant is free to withdraw his plea; after rejection, the same is true. But the text of Rule 11(e)(4) gives the rejection of the agreement a great deal of significance. Only "then" is the defendant granted "the opportunity" to withdraw his plea. The necessary implication of this provision is that if the court has neither rejected nor accepted the agreement, the defendant is not granted "the opportunity to then withdraw" his plea. The Court of Appeals' holding contradicts this implication, and thus strips subdivision (e)(4) of any meaning. Not only is the Court of Appeals' holding contradicted by the very language of the Rules, it also debases the judicial proceeding at which a defendant pleads and the court accepts his plea. After the defendant has sworn in open court that he actually committed the crimes, after he has stated that he is pleading guilty because he is guilty, after the court has found a factual basis for the plea, and after the court has explicitly announced that it accepts the plea, the Court of Appeals would allow the defendant to withdraw his guilty plea simply on a lark. The Advisory Committee, in adding the "fair and just reason" standard to Rule 32(e) in 1983, explained why this cannot be so: "Given the great care with which pleas are taken under [the] revised Rule 11, there is no reason to view pleas so taken as merely `tentative,' subject to withdrawal before *677 sentence whenever the government cannot establish prejudice. `Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant's whim. In fact, however, a guilty plea is no such trifle, but a "grave and solemn act," which is "accepted only with care and discernment."` " Advisory Committee's Notes on Fed. Rule Crim. Proc. 32, 18 U.S. C. App., p. 794 (quoting United States v. Barker, 514 F.2d 208, 221 (CADC 1975), in turn quoting Brady v. United States, 397 U.S. 742, 748 (1970)). We think the Court of Appeals' holding would degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess. The basis for the Court of Appeals' decision was its prior statement in Cordova-Perez that "[t]he plea agreement and the [guilty] plea are inextricably bound up together." 65 F.3d, at 1556 (internal quotation marks omitted). This statement, on its own, is not necessarily incorrect. The guilty plea and the plea agreement are "bound up together" in the sense that a rejection of the agreement simultaneously frees the defendant from his commitment to plead guilty. See Rule 11(e)(4). And since the guilty plea is but one side of the plea agreement, the plea is obviously not wholly independent of the agreement. But the Rules nowhere state that the guilty plea and the plea agreement must be treated identically. Instead, they explicitly envision a situation in which the defendant performs his side of the bargain (the guilty plea) before the Government is required to perform its side (here, the motion to dismiss four counts). If the court accepts the agreement and thus the Government's promised performance, then the contemplated agreement is complete and the defendant gets the benefit of his bargain. But if the court rejects the Government's *678 promised performance, then the agreement is terminated and the defendant has the right to back out of his promised performance (the guilty plea), just as a binding contractual duty may be extinguished by the nonoccurrence of a condition subsequent. See J. Calamari & J. Perillo, Law of Contracts § 11-7, p. 441 (3d ed. 1987); 3A A. Corbin, Corbin on Contracts § 628, p. 17 (1960).[3] If the Court of Appeals' holding were correct, it would also be difficult to see what purpose Rule 32(e) would serve. Since 1983, that Rule has provided: "If a motion to withdraw a plea of guilty . . . is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." Under the Court of Appeals' holding, the "fair and just reason" standard would only be applicable between the time that the plea agreement is accepted and the sentence is imposed. Since the decision whether to accept the plea agreement will often be deferred until the sentencing hearing, see Rule 11(e)(2); USSG § 6B1.1(c), at which time the presentence report will have been submitted to the parties, objected to, revised, and filed with the court, see Fed. Rule Crim. Proc. 32(b)(6), the decision whether to accept the plea agreement will often be made at the same time that the defendant is sentenced. This leaves little, if any, time in which the "fair and just *679 reason" standard would actually apply. We see no indication in the Rules to suggest that Rule 32(e) can be eviscerated in this manner, and the Court of Appeals did not point to one. Respondent defends this cramped understanding of Rule 32(e) by arguing that the "fair and just reason" standard was meant to apply only to "fully accepted" guilty pleas, as opposed to "conditionally accepted" pleas—i. e., pleas that are accepted but later withdrawn under Rule 11(e)(4) if the plea agreement is rejected. He points out that the "fair and just reason" standard was derived from dictum in our pre-Rules opinion in Kercheval v. United States, 274 U.S. 220, 224 (1927), see Advisory Committee's Notes on Rule 32, 18 U.S. C. App., p. 794, and that Kercheval spoke of a guilty plea as a final, not a conditional, act, see 274 U.S., at 223 ("A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence"). He then argues that since the Rule 32(e) standard was derived from Kercheval, the Rule must also have incorporated the Kercheval view that a guilty plea is a final, unconditional act. Thus, since his guilty plea was conditioned on the District Court accepting the plea agreement, the Rule simply does not apply. We reject this somewhat tortuous argument. When the "fair and just reason" standard was added in 1983, the Rules already provided that the district court could defer decision on whether to accept the plea agreement, that it could then reject the agreement, and that the defendant would then be able to withdraw his guilty plea. Guilty pleas made pursuant to plea agreements were thus already subject to this sort of condition subsequent. Yet neither the new Rule 32(e) nor the Advisory Committee's Notes accompanying it attempted to draw a distinction between "fully accepted" and "conditionally accepted" guilty pleas. Instead, the Rule simply *680 says that the standard applies to motions to withdraw a guilty plea "made before sentence is imposed." Respondent's speculation that the Advisory Committee, this Court, and Congress had the Kercheval view of a guilty plea in mind when Rule 32(e) was amended in 1983 is thus contradicted by the Rules themselves. Respondent's only other substantial argument in defense of the Court of Appeals' holding relies on an interpretation of the Advisory Committee's Notes to Rule 32(b)(3). That Rule, concerning presentence reports, provides: "The report must not be submitted to the court or its contents disclosed to anyone unless the defendant has consented in writing, has pleaded guilty or nolo contendere, or has been found guilty." This Rule obviously does not deal at all with motions to withdraw guilty pleas, and any comments in the Advisory Committee's Notes to this Rule dealing with plea withdrawal could not alter the meaning of Rules 11 and 32(e) as we have construed them. The judgment of the Court of Appeals is therefore Reversed.

Rule 32(e) of the Federal Rules of Criminal Procedure states that a district court may allow a defendant to withdraw his guilty plea before he is sentenced "if the defendant shows any fair and just reason." After the defendant in this case pleaded guilty, pursuant to a plea agreement, the District Court accepted his plea but deferred decision on whether to accept the plea agreement. The defendant then sought to withdraw his We hold that in such circumstances a defendant may not withdraw his plea unless he shows a "fair and just reason" under Rule 32(e). A federal grand jury indicted respondent Robert Hyde on eight counts of mail fraud, wire fraud, and other fraudrelated crimes. On the morning of his trial, respondent indicated his desire to enter plea negotiations with the Government. Those negotiations produced a plea agreement *672 in which respondent agreed to plead guilty to four of the counts. In exchange, the Government agreed to move to dismiss the remaining four counts and not to bring further charges against respondent for other allegedly fraudulent conduct. That afternoon, the parties appeared again before the District Court and submitted the plea agreement to the court, along with respondent's "application for permission to enter [a] plea of guilty." After placing respondent under oath, the court questioned him extensively to ensure that his plea was knowing and voluntary, and that he understood the consequences of pleading guilty, including the possibility of a maximum sentence of 30 years. The court asked respondent what he had done, and respondent admitted committing the crimes set out in the four counts. The court then asked the Government to set out what it was prepared to prove, and the Government did so. The court asked respondent whether he was pleading guilty because he was in fact guilty of the crimes set out in the four counts. Respondent said that he was. Finally, the court asked respondent how he pleaded to each count, and respondent stated "guilty." The District Court concluded that respondent was pleading guilty knowingly, voluntarily, and intelligently, and that there was a factual basis for the The court therefore stated that it was accepting respondent's guilty It also stated that it was deferring decision on whether to accept the plea agreement, pending completion of the presentence report. One month later, before sentencing and the District Court's decision about whether to accept the plea agreement, respondent filed a motion to withdraw his guilty His motion alleged that he had pleaded guilty under duress from the Government and that his admissions to the District Court had in fact been false. After holding an evidentiary hearing, the court concluded that there was no evidence to support respondent's claim of duress, and that respondent *673 had not provided a "fair and just reason" for withdrawing his guilty plea, as required by Rule 32(e). The court therefore refused to let respondent withdraw his guilty The court then accepted the plea agreement, entered judgment against respondent on the first four counts, dismissed the indictment's remaining four counts on the Government's motion, and sentenced respondent to a prison term of 2[1]20442 years. The Court of Appeals for the Ninth Circuit reversed, holding that respondent had an absolute right to withdraw his guilty plea before the District Court accepted the plea agreement. The court reasoned as follows: First, before a district court has accepted a defendant's guilty plea, the defendant has an absolute right to withdraw that at 780 ). Second, the guilty plea and the plea agreement are "`inextricably bound up together,' " such that the court's deferral of the decision whether to accept the plea agreement also constitutes an automatic deferral of its decision whether to accept the guilty plea, even if the court explicitly states that it is accepting the guilty ). Combining these two propositions, the Court of Appeals held that "[i]f the court defers acceptance of the plea or of the plea agreement, the defendant may withdraw his plea for any reason or for no reason, until the time that the court does accept both the plea and the agreement." 92 F.3d, at The Courts of Appeals for the Fourth and Seventh Circuits have reached the opposite conclusion on this issue. United ; United We granted certiorari to resolve the conflict, and now reverse. To understand why we hold that Rule 32(e) governs here, we must go back to Rule 11, the principal provision in the Federal Rules of Criminal Procedure dealing with the subject *674 of guilty pleas and plea agreements. The Court of Appeals equated acceptance of the guilty plea with acceptance of the plea agreement, and deferral of the plea agreement with deferral of the guilty Nothing in the text of Rule 11 supports these conclusions. In fact, the text shows that the opposite is true: Guilty pleas can be accepted while plea agreements are deferred, and the acceptance of the two can be separated in time. The prerequisites to accepting a guilty plea are set out in subdivisions (c) and (d) of Rule 11. Subdivision (c) says: "Before accepting a plea of guilty the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands," numerous consequences of pleading guilty. For example, the court must ensure the defendant understands the maximum possible penalty that he may face by pleading guilty, Rule 11(c)(1), and the important constitutional rights he is waiving, including the right to a trial, Rules 11(c)(3), (4). Subdivision (d) says: "The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, determining that the plea is voluntary."[1] The opening words of these two subdivisions are important: Together, they speak of steps a district court must take "[b]efore accepting a plea of guilty," and without which it "shall not accept a plea of guilty." Based on this language, we conclude that once the court has taken these steps, it may, in its discretion, accept a defendant's guilty The Court of Appeals would read an additional prerequisite into this list: A district court shall not accept a plea of guilty without first accepting the plea agreement. But that "prerequisite" is absent from the list set out in subdivisions (c) and (d), strongly suggesting that no such addition is warranted. *675 Subdivision (e), which covers plea agreements, also contradicts the Court of Appeals' holding. That subdivision divides plea agreements into three types, based on what the Government agrees to do: In type A agreements, the Government agrees to move for dismissal of other charges; in type B, it agrees to recommend (or not oppose the defendant's request for) a particular sentence; and in type C, it agrees that the defendant should receive a specific sentence. As to type A and type C agreements, the Rule states that "the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report."[2] Rule 11(e)(2). The plea agreement in this case is a type A agreement: The Government agreed to move to dismiss four counts, did not agree to recommend a particular sentence, and did not agree that a specific sentence was the appropriate disposition. The District Court deferred its decision about whether to accept or reject the agreement. If the court had decided to reject the plea agreement, it would have turned to subdivision (e)(4) of Rule 11. That subdivision, a critical one for our purposes, provides: "If the court rejects the plea agreement, the court shall. advise the defendant personally that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea, and advise the defendant that if the defendant persists in a guilty plea the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement." Rule 11(e)(4) (emphasis added). *676 Thus, if the court rejects the agreement, the defendant can "then" withdraw his plea for any reason and does not have to comply with Rule 32(e)'s "fair and just reason" requirement. This provision implements the commonsense notion that a defendant can no longer be bound by an agreement that the court has refused to sanction. Under the Court of Appeals' holding, however, the defendant can withdraw his plea "for any reason or for no reason" even if the district court does not reject the plea agreement, but merely defers decision on it. Thus, for the Court of Appeals, the rejection of the plea agreement has no significance: Before rejection, the defendant is free to withdraw his plea; after rejection, the same is true. But the text of Rule 11(e)(4) gives the rejection of the agreement a great deal of significance. Only "then" is the defendant granted "the opportunity" to withdraw his The necessary implication of this provision is that if the court has neither rejected nor accepted the agreement, the defendant is not granted "the opportunity to then withdraw" his The Court of Appeals' holding contradicts this implication, and thus strips subdivision (e)(4) of any meaning. Not only is the Court of Appeals' holding contradicted by the very language of the Rules, it also debases the judicial proceeding at which a defendant pleads and the court accepts his After the defendant has sworn in open court that he actually committed the crimes, after he has stated that he is pleading guilty because he is guilty, after the court has found a factual basis for the plea, and after the court has explicitly announced that it accepts the plea, the Court of Appeals would allow the defendant to withdraw his guilty plea simply on a lark. The Advisory Committee, in adding the "fair and just reason" standard to Rule 32(e) in 1983, explained why this cannot be so: "Given the great care with which pleas are taken under [the] revised Rule 11, there is no reason to view pleas so taken as merely `tentative,' subject to withdrawal before *677 sentence whenever the government cannot establish prejudice. `Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant's whim. In fact, however, a guilty plea is no such trifle, but a "grave and solemn act," which is "accepted only with care and discernment."` " Advisory Committee's Notes on Fed. Rule Crim. Proc. 32, 18 U.S. C. App., p. 794 in turn quoting ). We think the Court of Appeals' holding would degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess. The basis for the Court of Appeals' decision was its prior statement in Cordova-Perez that "[t]he plea agreement and the [guilty] plea are inextricably bound up together." 65 F.3d, at This statement, on its own, is not necessarily incorrect. The guilty plea and the plea agreement are "bound up together" in the sense that a rejection of the agreement simultaneously frees the defendant from his commitment to plead guilty. See Rule 11(e)(4). And since the guilty plea is but one side of the plea agreement, the plea is obviously not wholly independent of the agreement. But the Rules nowhere state that the guilty plea and the plea agreement must be treated identically. Instead, they explicitly envision a situation in which the defendant performs his side of the bargain (the guilty plea) before the Government is required to perform its side (here, the motion to dismiss four counts). If the court accepts the agreement and thus the Government's promised performance, then the contemplated agreement is complete and the defendant gets the benefit of his bargain. But if the court rejects the Government's *678 promised performance, then the agreement is terminated and the defendant has the right to back out of his promised performance (the guilty plea), just as a binding contractual duty may be extinguished by the nonoccurrence of a condition subsequent. See J. Calamari & J. Perillo, Law of Contracts 11-7, p. 441 (3d ed. 1987); 3A A. Corbin, Corbin on Contracts 628, p. 17 (1960).[3] If the Court of Appeals' holding were correct, it would also be difficult to see what purpose Rule 32(e) would serve. Since 1983, that Rule has provided: "If a motion to withdraw a plea of guilty is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." Under the Court of Appeals' holding, the "fair and just reason" standard would only be applicable between the time that the plea agreement is accepted and the sentence is imposed. Since the decision whether to accept the plea agreement will often be deferred until the sentencing hearing, see Rule 11(e)(2); USSG 6B1.1(c), at which time the presentence report will have been submitted to the parties, objected to, revised, and filed with the court, see Fed. Rule Crim. Proc. 32(b)(6), the decision whether to accept the plea agreement will often be made at the same time that the defendant is sentenced. This leaves little, if any, time in which the "fair and just *679 reason" standard would actually apply. We see no indication in the Rules to suggest that Rule 32(e) can be eviscerated in this manner, and the Court of Appeals did not point to one. Respondent defends this cramped understanding of Rule 32(e) by arguing that the "fair and just reason" standard was meant to apply only to "fully accepted" guilty pleas, as opposed to "conditionally accepted" pleas—i. e., pleas that are accepted but later withdrawn under Rule 11(e)(4) if the plea agreement is rejected. He points out that the "fair and just reason" standard was derived from dictum in our pre-Rules opinion in see Advisory Committee's Notes on Rule 32, 18 U.S. C. App., p. 794, and that Kercheval spoke of a guilty plea as a final, not a conditional, act, see He then argues that since the Rule 32(e) standard was derived from Kercheval, the Rule must also have incorporated the Kercheval view that a guilty plea is a final, unconditional act. Thus, since his guilty plea was conditioned on the District Court accepting the plea agreement, the Rule simply does not apply. We reject this somewhat tortuous argument. When the "fair and just reason" standard was added in 1983, the Rules already provided that the district court could defer decision on whether to accept the plea agreement, that it could then reject the agreement, and that the defendant would then be able to withdraw his guilty Guilty pleas made pursuant to plea agreements were thus already subject to this sort of condition subsequent. Yet neither the new Rule 32(e) nor the Advisory Committee's Notes accompanying it attempted to draw a distinction between "fully accepted" and "conditionally accepted" guilty pleas. Instead, the Rule simply *680 says that the standard applies to motions to withdraw a guilty plea "made before sentence is imposed." Respondent's speculation that the Advisory Committee, this Court, and Congress had the Kercheval view of a guilty plea in mind when Rule 32(e) was amended in 1983 is thus contradicted by the Rules themselves. Respondent's only other substantial argument in defense of the Court of Appeals' holding relies on an interpretation of the Advisory Committee's Notes to Rule 32(b)(3). That Rule, concerning presentence reports, provides: "The report must not be submitted to the court or its contents disclosed to anyone unless the defendant has consented in writing, has pleaded guilty or nolo contendere, or has been found guilty." This Rule obviously does not deal at all with motions to withdraw guilty pleas, and any comments in the Advisory Committee's Notes to this Rule dealing with plea withdrawal could not alter the meaning of Rules 11 and 32(e) as we have construed them. The judgment of the Court of Appeals is therefore Reversed.

Justice O'Connor

dissenting

Hernandez v. Commissioner

https://www.courtlistener.com/opinion/112271/hernandez-v-commissioner/

https://www.courtlistener.com/api/rest/v3/clusters/112271/

1988-098

The Court today acquiesces in the decision of the Internal Revenue Service (IRS) to manufacture a singular exception to its 70-year practice of allowing fixed payments indistinguishable from those made by petitioners to be deducted as charitable contributions. Because the IRS cannot constitutionally be allowed to select which religions will receive the benefit of its past rulings, I respectfully dissent. The cases before the Court have an air of artificiality about them that is due to the IRS' dual litigation strategy against the Church of Scientology (Church). As the Court notes, ante, at 686-687, n. 4, the IRS has successfully argued that the mother Church of Scientology was not a tax-exempt organization from 1970 to 1972 because it had diverted profits to the founder of Scientology and others, conspired to impede collection of its taxes, and conducted almost all of its activities for a commercial purpose. See Church of Scientology of California v. Commissioner, 83 T.C. 381 (1984), aff'd, 823 F.2d 1310 (CA9 1987), cert. denied, 486 U.S. 1015 (1988). In the cases before the Court today, however, the IRS decided to contest the payments made to Scientology under 26 U.S. C. § 170 rather than challenge the tax-exempt status of the various branches of the Church to which the payments were made. According to the Deputy Solicitor General, the IRS challenged the payments themselves in order to expedite matters. Tr. of Oral Arg. 26-29. See also Neher v. Commissioner, 852 F.2d 848, 850-851 (CA6 1988). As part of its litigation strategy in these cases, the IRS agreed to several stipulations which, in my view, necessarily determine the proper approach to the questions presented by petitioners. The stipulations, relegated to a single sentence by the Court, ante, at 686, established that Scientology was at all relevant times a religion; that each Scientology branch to which payments were made was at all relevant times a "church" within the meaning of § 170(b)(1)(A)(i); and that *705 Scientology was at all times a "corporation" within the meaning of § 170(c)(2) and exempt from general income taxation under 26 U.S. C. § 501(a). See App. 38, ¶¶ 52-53; 83 T.C. 575, 576 (1984), aff'd, 822 F.2d 844 (CA9 1987). As the Solicitor General recognizes, it follows from these stipulations that Scientology operates for " `charitable purposes' " and puts the "public interest above the private interest." Brief for Respondent 30. See also Neher, supra, at 855. Moreover, the stipulations establish that the payments made by petitioners are fixed donations made by individuals to a tax-exempt religious organization in order to participate in religious services, and are not based on "market prices set to reap the profits of a commercial moneymaking venture." Staples v. Commissioner, 821 F.2d 1324, 1328 (CA8 1987), cert. pending, No. 87-1382. The Tax Court, however, appears to have ignored the stipulations. It concluded, perhaps relying on its previous opinion in Church of Scientology, that "Scientology operates in a commercial manner in providing [auditing and training]. In fact, one of its articulated goals is to make money." 83 T.C., at 578. The Solicitor General has duplicated the error here, referring on numerous occasions to the commercial nature of Scientology in an attempt to negate the effect of the stipulations. See Brief for Respondent 13-14, 23, 25, 44. It must be emphasized that the IRS' position here is not based upon the contention that a portion of the knowledge received from auditing or training is of secular, commercial. nonreligious value. Thus, the denial of a deduction in these cases bears no resemblance to the denial of a deduction for religious-school tuition up to the market value of the secularly useful education received. See Oppewal v. Commissioner, 468 F.2d 1000 (CA1 1972); Winters v. Commissioner, 468 F.2d 778 (CA2 1972); DeJong v. Commissioner, 309 F.2d 373 (CA9 1962). Here the IRS denies deductibility solely on the basis that the exchange is a quid pro quo, even though the quid is exclusively of spiritual or religious worth. Respondent *706 cites no instances in which this has been done before, and there are good reasons why. When a taxpayer claims as a charitable deduction part of a fixed amount given to a charitable organization in exchange for benefits that have a commercial value, the allowable portion of that claim is computed by subtracting from the total amount paid the value of the physical benefit received. If at a charity sale one purchases for $1,000 a painting whose market value is demonstrably no more than $50, there has been a contribution of $950. The same would be true if one purchases a $1,000 seat at a charitable dinner where the food is worth $50. An identical calculation can be made where the quid received is not a painting or a meal, but an intangible such as entertainment, so long as that intangible has some market value established in a noncontributory context. Hence, one who purchases a ticket to a concert, at the going rate for concerts by the particular performers, makes a charitable contribution of zero even if it is announced in advance that all proceeds from the ticket sales will go to charity. The performers may have made a charitable contribution, but the audience has paid the going rate for a show. It becomes impossible, however, to compute the "contribution" portion of a payment to a charity where what is received in return is not merely an intangible, but an intangible (or, for that matter a tangible) that is not bought and sold except in donative contexts so that the only "market" price against which it can be evaluated is a market price that always includes donations. Suppose, for example, that the charitable organization that traditionally solicits donations on Veterans Day, in exchange for which it gives the donor an imitation poppy bearing its name, were to establish a flat rule that no one gets a poppy without a donation of at least $10. One would have to say that the "market" rate for such poppies was $10, but it would assuredly not be true that everyone who "bought" a poppy for $10 made no contribution. Similarly, if one buys a $100 seat at a prayer breakfast *707 — receiving as the quid pro quo food for both body and soul — it would make no sense to say that no charitable contribution whatever has occurred simply because the "going rate" for all prayer breakfasts (with equivalent bodily food) is $100. The latter may well be true, but that "going rate" includes a contribution. Confronted with this difficulty, and with the constitutional necessity of not making irrational distinctions among taxpayers, and with the even higher standard of equality of treatment among religions that the First Amendment imposes, the Government has only two practicable options with regard to distinctively religious quids pro quo: to disregard them all, or to tax them all. Over the years it has chosen the former course. Congress enacted the first charitable contribution exception to income taxation in 1917. War Revenue Act of 1917, ch. 63, § 1201(2), 40 Stat. 330. A mere two years later, in A.R.M. 2, 1 Cum. Bull. 150 (1919), the IRS gave its first blessing to the deductions of fixed payments to religious organizations as charitable contributions: "[T]he distinction of pew rents, assessments, church dues, and the like from basket collections is hardly warranted by the act. The act reads `contributions' and `gifts.' It is felt that all of these come within the two terms. "In substance it is believed that these are simply methods of contributing although in form they may vary. Is a basket collection given involuntarily to be distinguished from an envelope system, the latter being regarded as `dues'? From a technical angle, the pew rents may be differentiated, but in practice the so-called `personal accommodation' they may afford is conjectural. It is believed that the real intent is to contribute and not to hire a seat or pew for personal accommodation. In fact, basket contributors sometimes receive the same accommodation informally." *708 The IRS reaffirmed its position in 1970, ruling that "[p]ew rents, building fund assessments and periodic dues paid to a church . . . are all methods of making contributions to the church and such payments are deductible as charitable contributions." Rev. Rul. 70-47, 1970-1 Cum. Bull. 49. Similarly, notwithstanding the "form" of Mass stipends as fixed payments for specific religious services, see infra, at 709, the IRS has allowed charitable deductions of such payments. See Rev. Rul. 78-366, 1978-2 Cum. Bull. 241. These rulings, which are "official interpretation[s] of [the tax laws] by the [IRS]," Rev. Proc. 78-24, 1978-2 Cum. Bull. 503, 504, flatly contradict the Solicitor General's claim that there "is no administrative practice recognizing that payments made in exchange for religious benefits are tax deductible." Brief for Respondent 16. Indeed, an Assistant Commissioner of the IRS recently explained in a "question and answer guidance package" to tax-exempt organizations that "[i]n contrast to tuition payments, religious observances generally are not regarded as yielding private benefits to the donor, who is viewed as receiving only incidental benefits when attending the observances. The primary beneficiaries are viewed as being the general public and members of the faith. Thus, payments for saying masses, pew rents, tithes, and other payments involving fixed donations for similar religious services, are fully deductible contributions." IRS Official Explains New Examination-Education Program on Charitable Contributions to Tax-Exempt Organizations, BNA Daily Report for Executives, Special Report No. 186, J-1, J-3 (Sept. 26, 1988). Although this guidance package may not be as authoritative as IRS rulings, see ante, at 703, n. 13, in the absence of any contrary indications it does reflect the continuing adherence of the IRS to its practice of allowing deductions for fixed payments for religious services. There can be no doubt that at least some of the fixed payments which the IRS has treated as charitable deductions, or which the Court assumes the IRS would allow taxpayers to *709 deduct, ante, at 690-691, are as "inherently reciprocal," ante, at 692, as the payments for auditing at issue here. In exchange for their payment of pew rents, Christians receive particular seats during worship services. See Encyclopedic Dictionary of Religion 2760 (1979). Similarly, in some synagogues attendance at the worship services for Jewish High Holy Days is often predicated upon the purchase of a general admission ticket or a reserved seat ticket. See J. Feldman, H. Fruhauf, & M. Schoen, Temple Management Manual, ch. 4, p. 10 (1984). Religious honors such as publicly reading from Scripture are purchased or auctioned periodically in some synagogues of Jews from Morocco and Syria. See H. Dobrinsky, A Treasury of Sephardic Laws and Customs 164, 175-177 (1986). Mormons must tithe their income as a necessary but not sufficient condition to obtaining a "temple recommend," i. e., the right to be admitted into the temple. See The Book of Mormon, 3 Nephi 24:7-12 (1921); Reorganized Church of Jesus Christ of Latter-day Saints, Book of Doctrine and Covenants § 106:1b (1978); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 330, n. 4 (1987). A Mass stipend — a fixed payment given to a Catholic priest, in consideration of which he is obliged to apply the fruits of the Mass for the intention of the donor — has similar overtones of exchange. According to some Catholic theologians, the nature of the pact between a priest and a donor who pays a Mass stipend is "a bilateral contract known as do ut facias. One person agrees to give while the other party agrees to do something in return." 13 New Catholic Encyclopedia, Mass Stipend, p. 715 (1967). A finer example of a quid pro quo exchange would be hard to formulate. This is not a situation where the IRS has explicitly and affirmatively reevaluated its longstanding interpretation of § 170 and decided to analyze all fixed religious contributions under a quid pro quo standard. There is no indication whatever that the IRS has abandoned its 70-year practice with respect *710 to payments made by those other than Scientologists. In 1978, when it ruled that payments for auditing and training were not charitable contributions under § 170, the IRS did not cite — much less try to reconcile — its previous rulings concerning the deductibility of other forms of fixed payments for religious services or practices. See Rev. Rul. 78-189, 1978-1 Cum. Bull. 68 (equating payments for auditing with tuition paid to religious schools). Nevertheless, respondent now attempts to reconcile his previous rulings with his decision in these cases by relying on a distinction between direct and incidental benefits in exchange for payments made to a charitable organization. This distinction, adumbrated as early as the IRS' 1919 ruling, recognizes that even a deductible charitable contribution may generate certain benefits for the donor. As long as the benefits remain "incidental" and do not indicate that the payment was actually made for the "personal accommodation" of the donor, the payment will be deductible. It is respondent's view that the payments made by petitioners should not be deductible under § 170 because the "unusual facts in these cases. . . demonstrate that the payments were made primarily for `personal accommodation.' " Brief for Respondent 41. Specifically, the Solicitor General asserts that "the rigid connection between the provision of auditing and training services and payment of the fixed price" indicates a quid pro quo relationship and "reflect[s] the value that petitioners expected to receive for their money." Id., at 16. There is no discernible reason why there is a more rigid connection between payment and services in the religious practices of Scientology than in the religious practices of the faiths described above. Neither has respondent explained why the benefit received by a Christian who obtains the pew of his or her choice by paying a rental fee, a Jew who gains entrance to High Holy Day services by purchasing a ticket, a Mormon who makes the fixed payment necessary for a temple recommend, or a Catholic who pays a Mass stipend, *711 is incidental to the real benefit conferred on the "general public and members of the faith," BNA Daily Report, at J-3, while the benefit received by a Scientologist from auditing is a personal accommodation. If the perceived difference lies in the fact that Christians and Jews worship in congregations, whereas Scientologists, in a manner reminiscent of Eastern religions, see App. 78-83 (testimony of Dr. Thomas Love), gain awareness of the "immortal spiritual being" within them in one-to-one sessions with auditors, ante, at 684-685, such a distinction would raise serious Establishment Clause problems. See Wallace v. Jaffree, 472 U.S. 38, 69-70 (1985) (O'CONNOR, J., concurring in judgment); Lynch v. Donnelly, 465 U.S. 668, 687-689 (1984) (concurring opinion). The distinction is no more legitimate if it is based on the fact that congregational worship services "would be said anyway," Brief for Respondent 43, without the payment of a pew rental or stipend or tithe by a particular adherent. The relevant comparison between Scientology and other religions must be between the Scientologist undergoing auditing or training on one hand and the congregation on the other. For some religions the central importance of the congregation achieves legal dimensions. In Orthodox Judaism, for example, certain worship services cannot be performed and Scripture cannot be read publicly without the presence of at least 10 men. 12 Encyclopaedia Judaica, Minyan, p. 68 (1972). If payments for participation occurred in such a setting, would the benefit to the 10th man be only incidental while for the personal accommodation of the 11th? In the same vein, will the deductibility of a Mass stipend turn on whether there are other congregants to hear the Mass? And conversely, does the fact that the payment of a tithe by a Mormon is an absolute prerequisite to admission to the temple make that payment for admission a personal accommodation regardless of the size of the congregation? Given the IRS' stance in these cases, it is an understatement to say that with respect to fixed payments for religious *712 services "the line between the taxable and the immune has been drawn by an unsteady hand." United States v. Allegheny County, 322 U.S. 174, 176 (1944) (Jackson, J.). This is not a situation in which a governmental regulation "happens to coincide or harmonize with the tenets of some or all religions," McGowan v. Maryland, 366 U.S. 420, 442 (1961), but does not violate the Establishment Clause because it is founded on a neutral, secular basis. See Bob Jones University v. United States, 461 U.S. 574, 604, n. 30 (1983). Rather, it involves the differential application of a standard based on constitutionally impermissible differences drawn by the Government among religions. As such, it is best characterized as a case of the Government "put[ting] an imprimatur on [all but] one religion." Gillette v. United States, 401 U.S. 437, 450 (1971). That the Government may not do. The Court attempts to downplay the constitutional difficulty created by the IRS' different treatment of other fixed payments for religious services by accepting the Solicitor General's invitation to let the IRS make case-specific quid pro quo determinations. See ante, at 702 ("The IRS' application of the `contribution or gift' standard may be right or wrong with respect to these other faiths, or it may be right with respect to some religious practices and wrong with respect to others"). See also Brief for Respondent 41-42. As a practical matter, I do not think that this unprincipled approach will prove helpful. The Solicitor General was confident enough in his brief to argue that, "even without making a detailed factual inquiry," Mormon tithing does not involve a quid pro quo arrangement. Id., at 43-44. At oral argument, however, the Deputy Solicitor General conceded that if it was mandatory, tithing would be distinguishable from the "ordinary case of church dues." Tr. of Oral Arg. 36-37. If the approach suggested by the Solicitor General is so malleable and indefinite, it is not a panacea and cannot be trusted to secure First Amendment rights against arbitrary incursions by the Government. *713 On a more fundamental level, the Court cannot abjure its responsibility to address serious constitutional problems by converting a violation of the Establishment Clause into an "administrative consistency argument," ante, at 703, with an inadequate record. It has chosen to ignore both longstanding, clearly articulated IRS practice, and the failure of respondent to offer any cogent, neutral explanation for the IRS' refusal to apply this practice to the Church of Scientology. Instead, the Court has pretended that whatever errors in application the IRS has committed are hidden from its gaze and will, in any event, be rectified in due time. In my view, the IRS has misapplied its longstanding practice of allowing charitable contributions under § 170 in a way that violates the Establishment Clause. It has unconstitutionally refused to allow payments for the religious service of auditing to be deducted as charitable contributions in the same way it has allowed fixed payments to other religions to be deducted. Just as the Minnesota statute at issue in Larson v. Valente, 456 U.S. 228 (1982), discriminated against the Unification Church, the IRS' application of the quid pro quo standard here — and only here — discriminates against the Church of Scientology. I would reverse the decisions below.

The Court today acquiesces in the decision of the Internal Revenue Service (IRS) to manufacture a singular exception to its 70-year practice of allowing fixed payments indistinguishable from those made by petitioners to be deducted as charitable contributions. Because the IRS cannot constitutionally be allowed to select which religions will receive the benefit of its past rulings, I respectfully dissent. The cases before the Court have an air of artificiality about them that is due to the IRS' dual litigation strategy against the Church of Scientology (Church). As the Court notes, ante, at 686-687, n. 4, the IRS has successfully argued that the mother Church of Scientology was not a tax-exempt organization from 1970 to because it had diverted profits to the founder of Scientology and others, conspired to impede collection of its taxes, and conducted almost all of its activities for a commercial purpose. See Church of Scientology of aff'd, cert. denied, In the cases before the Court today, however, the IRS decided to contest the payments made to Scientology under 26 U.S. C. 170 rather than challenge the tax-exempt status of the various branches of the Church to which the payments were made. According to the Deputy Solicitor General, the IRS challenged the payments themselves in order to expedite matters. Tr. of Oral Arg. 26-29. See also As part of its litigation strategy in these cases, the IRS agreed to several stipulations which, in my view, necessarily determine the proper approach to the questions presented by petitioners. The stipulations, relegated to a single sentence by the Court, ante, at 686, established that Scientology was at all relevant times a religion; that each Scientology branch to which payments were made was at all relevant times a "church" within the meaning of 170(b)(1)(A)(i); and that *705 Scientology was at all times a "corporation" within the meaning of 170(c)(2) and exempt from general income taxation under 26 U.S. C. 501(a). See App. 38, ¶¶ 52-53; aff'd, As the Solicitor General recognizes, it follows from these stipulations that Scientology operates for " `charitable purposes' " and puts the "public interest above the private interest." Brief for Respondent 30. See also Moreover, the stipulations establish that the payments made by petitioners are fixed donations made by individuals to a tax-exempt religious organization in order to participate in religious services, and are not based on "market prices set to reap the profits of a commercial moneymaking venture." cert. pending, No. 87-1382. The Tax Court, however, appears to have ignored the stipulations. It concluded, perhaps relying on its previous opinion in Church of Scientology, that "Scientology operates in a commercial manner in providing [auditing and training]. In fact, one of its articulated goals is to make money." The Solicitor General has duplicated the error here, referring on numerous occasions to the commercial nature of Scientology in an attempt to negate the effect of the stipulations. See Brief for Respondent 13-14, 23, 25, 44. It must be emphasized that the IRS' position here is not based upon the contention that a portion of the knowledge received from auditing or training is of secular, commercial. nonreligious value. Thus, the denial of a deduction in these cases bears no resemblance to the denial of a deduction for religious-school tuition up to the market value of the secularly useful education received. See ; ; Here the IRS denies deductibility solely on the basis that the exchange is a quid pro quo, even though the quid is exclusively of spiritual or religious worth. Respondent *706 cites no instances in which this has been done before, and there are good reasons why. When a taxpayer claims as a charitable deduction part of a fixed amount given to a charitable organization in exchange for benefits that have a commercial value, the allowable portion of that claim is computed by subtracting from the total amount paid the value of the physical benefit received. If at a charity sale one purchases for $1,000 a painting whose market value is demonstrably no more than $50, there has been a contribution of $950. The same would be true if one purchases a $1,000 seat at a charitable dinner where the food is worth $50. An identical calculation can be made where the quid received is not a painting or a meal, but an intangible such as entertainment, so long as that intangible has some market value established in a noncontributory context. Hence, one who purchases a ticket to a concert, at the going rate for concerts by the particular performers, makes a charitable contribution of zero even if it is announced in advance that all proceeds from the ticket sales will go to charity. The performers may have made a charitable contribution, but the audience has paid the going rate for a show. It becomes impossible, however, to compute the "contribution" portion of a payment to a charity where what is received in return is not merely an intangible, but an intangible (or, for that matter a tangible) that is not bought and sold except in donative contexts so that the only "market" price against which it can be evaluated is a market price that always includes donations. Suppose, for example, that the charitable organization that traditionally solicits donations on Veterans Day, in exchange for which it gives the donor an imitation poppy bearing its name, were to establish a flat rule that no one gets a poppy without a donation of at least $10. One would have to say that the "market" rate for such poppies was $10, but it would assuredly not be true that everyone who "bought" a poppy for $10 made no contribution. Similarly, if one buys a $100 seat at a prayer breakfast *707 — receiving as the quid pro quo food for both body and soul — it would make no sense to say that no charitable contribution whatever has occurred simply because the "going rate" for all prayer breakfasts (with equivalent bodily food) is $100. The latter may well be true, but that "going rate" includes a contribution. Confronted with this difficulty, and with the constitutional necessity of not making irrational distinctions among taxpayers, and with the even higher standard of equality of treatment among religions that the First Amendment imposes, the Government has only two practicable options with regard to distinctively religious quids pro quo: to disregard them all, or to tax them all. Over the years it has chosen the former course. Congress enacted the first charitable contribution exception to income taxation in 1917. War Revenue Act of 1917, ch. 63, 1201(2), A mere two years later, in A.R.M. 2, 1 Cum. Bull. 150 (1919), the IRS gave its first blessing to the deductions of fixed payments to religious organizations as charitable contributions: "[T]he distinction of pew rents, assessments, church dues, and the like from basket collections is hardly warranted by the act. The act reads `contributions' and `gifts.' It is felt that all of these come within the two terms. "In substance it is believed that these are simply methods of contributing although in form they may vary. Is a basket collection given involuntarily to be distinguished from an envelope system, the latter being regarded as `dues'? From a technical angle, the pew rents may be differentiated, but in practice the so-called `personal accommodation' they may afford is conjectural. It is believed that the real intent is to contribute and not to hire a seat or pew for personal accommodation. In fact, basket contributors sometimes receive the same accommodation informally." *708 The IRS reaffirmed its position in 1970, ruling that "[p]ew rents, building fund assessments and periodic dues paid to a church are all methods of making contributions to the church and such payments are deductible as charitable contributions." Rev. Rul. 70-47, 1970-1 Cum. Bull. 49. Similarly, notwithstanding the "form" of Mass stipends as fixed payments for specific religious services, see infra, at 709, the IRS has allowed charitable deductions of such payments. See Rev. Rul. 78-366, 1978-2 Cum. Bull. 241. These rulings, which are "official interpretation[s] of [the tax laws] by the [IRS]," Rev. Proc. 78-24, 1978-2 Cum. Bull. 503, 504, flatly contradict the Solicitor General's claim that there "is no administrative practice recognizing that payments made in exchange for religious benefits are tax deductible." Brief for Respondent 16. Indeed, an Assistant Commissioner of the IRS recently explained in a "question and answer guidance package" to tax-exempt organizations that "[i]n contrast to tuition payments, religious observances generally are not regarded as yielding private benefits to the donor, who is viewed as receiving only incidental benefits when attending the observances. The primary beneficiaries are viewed as being the general public and members of the faith. Thus, payments for saying masses, pew rents, tithes, and other payments involving fixed donations for similar religious services, are fully deductible contributions." IRS Official Explains New Examination-Education Program on Charitable Contributions to Tax-Exempt Organizations, BNA Daily Report for Executives, Special Report No. 186, J-1, J-3 Although this guidance package may not be as authoritative as IRS rulings, see ante, at 703, n. 13, in the absence of any contrary indications it does reflect the continuing adherence of the IRS to its practice of allowing deductions for fixed payments for religious services. There can be no doubt that at least some of the fixed payments which the IRS has treated as charitable deductions, or which the Court assumes the IRS would allow taxpayers to *709 deduct, ante, at 690-691, are as "inherently reciprocal," ante, at 692, as the payments for auditing at issue here. In exchange for their payment of pew rents, Christians receive particular seats during worship services. See Encyclopedic Dictionary of Religion 2760 (1979). Similarly, in some synagogues attendance at the worship services for Jewish High Holy Days is often predicated upon the purchase of a general admission ticket or a reserved seat ticket. See J. Feldman, H. Fruhauf, & M. Schoen, Temple Management Manual, ch. 4, p. 10 Religious honors such as publicly reading from Scripture are purchased or auctioned periodically in some synagogues of Jews from Morocco and Syria. See H. Dobrinsky, A Treasury of Sephardic Laws and Customs 164, 175-177 (1986). Mormons must tithe their income as a necessary but not sufficient condition to obtaining a "temple recommend," i. e., the right to be admitted into the temple. See The Book of Mormon, 3 Nephi 24:7-12 (1921); Reorganized Church of Jesus Christ of Latter-day Saints, Book of Doctrine and Covenants 106:1b (1978); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day A Mass stipend — a fixed payment given to a Catholic priest, in consideration of which he is obliged to apply the fruits of the Mass for the intention of the donor — has similar overtones of exchange. According to some Catholic theologians, the nature of the pact between a priest and a donor who pays a Mass stipend is "a bilateral contract known as do ut facias. One person agrees to give while the other party agrees to do something in return." 13 New Catholic Encyclopedia, Mass Stipend, p. 715 (1967). A finer example of a quid pro quo exchange would be hard to formulate. This is not a situation where the IRS has explicitly and affirmatively reevaluated its longstanding interpretation of 170 and decided to analyze all fixed religious contributions under a quid pro quo standard. There is no indication whatever that the IRS has abandoned its 70-year practice with respect *710 to payments made by those other than Scientologists. In 1978, when it ruled that payments for auditing and training were not charitable contributions under 170, the IRS did not cite — much less try to reconcile — its previous rulings concerning the deductibility of other forms of fixed payments for religious services or practices. See Rev. Rul. 78-189, 1978-1 Cum. Bull. 68 (equating payments for auditing with tuition paid to religious schools). Nevertheless, respondent now attempts to reconcile his previous rulings with his decision in these cases by relying on a distinction between direct and incidental benefits in exchange for payments made to a charitable organization. This distinction, adumbrated as early as the IRS' 1919 ruling, recognizes that even a deductible charitable contribution may generate certain benefits for the donor. As long as the benefits remain "incidental" and do not indicate that the payment was actually made for the "personal accommodation" of the donor, the payment will be deductible. It is respondent's view that the payments made by petitioners should not be deductible under 170 because the "unusual facts in these cases. demonstrate that the payments were made primarily for `personal accommodation.' " Brief for Respondent 41. Specifically, the Solicitor General asserts that "the rigid connection between the provision of auditing and training services and payment of the fixed price" indicates a quid pro quo relationship and "reflect[s] the value that petitioners expected to receive for their money." There is no discernible reason why there is a more rigid connection between payment and services in the religious practices of Scientology than in the religious practices of the faiths described above. Neither has respondent explained why the benefit received by a Christian who obtains the pew of his or her choice by paying a rental fee, a Jew who gains entrance to High Holy Day services by purchasing a ticket, a Mormon who makes the fixed payment necessary for a temple recommend, or a Catholic who pays a Mass stipend, *711 is incidental to the real benefit conferred on the "general public and members of the faith," BNA Daily Report, at J-3, while the benefit received by a Scientologist from auditing is a personal accommodation. If the perceived difference lies in the fact that Christians and Jews worship in congregations, whereas Scientologists, in a manner reminiscent of Eastern religions, see App. 78-83 (testimony of Dr. Thomas Love), gain awareness of the "immortal spiritual being" within them in one-to-one sessions with auditors, ante, at 684-685, such a distinction would raise serious Establishment Clause problems. See ; The distinction is no more legitimate if it is based on the fact that congregational worship services "would be said anyway," Brief for Respondent 43, without the payment of a pew rental or stipend or tithe by a particular adherent. The relevant comparison between Scientology and other religions must be between the Scientologist undergoing auditing or training on one hand and the congregation on the other. For some religions the central importance of the congregation achieves legal dimensions. In Orthodox Judaism, for example, certain worship services cannot be performed and Scripture cannot be read publicly without the presence of at least 10 men. 12 Encyclopaedia Judaica, Minyan, p. 68 If payments for participation occurred in such a setting, would the benefit to the 10th man be only incidental while for the personal accommodation of the 11th? In the same vein, will the deductibility of a Mass stipend turn on whether there are other congregants to hear the Mass? And conversely, does the fact that the payment of a tithe by a Mormon is an absolute prerequisite to admission to the temple make that payment for admission a personal accommodation regardless of the size of the congregation? Given the IRS' stance in these cases, it is an understatement to say that with respect to fixed payments for religious *712 services "the line between the taxable and the immune has been drawn by an unsteady hand." United This is not a situation in which a governmental regulation "happens to coincide or harmonize with the tenets of some or all religions," but does not violate the Establishment Clause because it is founded on a neutral, secular basis. See Bob Jones Rather, it involves the differential application of a standard based on constitutionally impermissible differences drawn by the Government among religions. As such, it is best characterized as a case of the Government "put[ting] an imprimatur on [all but] one religion." That the Government may not do. The Court attempts to downplay the constitutional difficulty created by the IRS' different treatment of other fixed payments for religious services by accepting the Solicitor General's invitation to let the IRS make case-specific quid pro quo determinations. See ante, at 702 ("The IRS' application of the `contribution or gift' standard may be right or wrong with respect to these other faiths, or it may be right with respect to some religious practices and wrong with respect to others"). See also Brief for Respondent 41-42. As a practical matter, I do not think that this unprincipled approach will prove helpful. The Solicitor General was confident enough in his brief to argue that, "even without making a detailed factual inquiry," Mormon tithing does not involve a quid pro quo arrangement. At oral argument, however, the Deputy Solicitor General conceded that if it was mandatory, tithing would be distinguishable from the "ordinary case of church dues." Tr. of Oral Arg. 36-37. If the approach suggested by the Solicitor General is so malleable and indefinite, it is not a panacea and cannot be trusted to secure First Amendment rights against arbitrary incursions by the Government. *713 On a more fundamental level, the Court cannot abjure its responsibility to address serious constitutional problems by converting a violation of the Establishment Clause into an "administrative consistency argument," ante, at 703, with an inadequate record. It has chosen to ignore both longstanding, clearly articulated IRS practice, and the failure of respondent to offer any cogent, neutral explanation for the IRS' refusal to apply this practice to the Church of Scientology. Instead, the Court has pretended that whatever errors in application the IRS has committed are hidden from its gaze and will, in any event, be rectified in due time. In my view, the IRS has misapplied its longstanding practice of allowing charitable contributions under 170 in a way that violates the Establishment Clause. It has unconstitutionally refused to allow payments for the religious service of auditing to be deducted as charitable contributions in the same way it has allowed fixed payments to other religions to be deducted. Just as the Minnesota statute at issue in discriminated against the Unification Church, the IRS' application of the quid pro quo standard here — and only here — discriminates against the Church of Scientology. I would reverse the decisions below.

Justice White

concurring

Sheet Metal Workers v. Lynn

https://www.courtlistener.com/opinion/112172/sheet-metal-workers-v-lynn/

https://www.courtlistener.com/api/rest/v3/clusters/112172/

1988-022

Finnegan v. Leu, 456 U.S. 431, 436-437 (1982), observed that "[i]t is readily apparent, both from the language of these provisions and from the legislative history of Title I, that it was rank-and-file union members — not union officers or employees, as such — whom Congress sought to protect" (footnote omitted). If that is so and if a case involves speech in the capacity of an officer, it should make no difference that the officer is elected rather than appointed. But in Finnegan, it was asserted that the officer was removed because of his campaign activities, as a member, in a union election, which was speech protected by Title I. In response, the Court said that under the union constitution the newly elected president had power to appoint and remove officers and that he was entitled to start out with officers in whom he had confidence. This was sufficient to dispose of the officers' claim under Title I. In the case before us, the speech for which respondent was removed was also speech in the capacity of a member. The duties of a union business agent are defined in the union constitution. Those duties relate primarily to collective bargaining and administering the collective-bargaining contract. They do not seem to include supporting the union president's proposal to increase union dues; and if they did, I am not so *360 sure that respondent would have spoken out against the dues increase at all. In this case, unlike Finnegan, respondent was not discharged by an incoming elected president with power to appoint his own staff, but by a trustee whose power to dismiss and appoint officers, for all that is shown here, went no further than the Local's president to discharge for cause, i. e., for incompetence or other behavior disqualifying them for the tasks they were expected to perform as officers. Respondent's speech opposing the dues increase was the speech of a member about a matter the members were to resolve, and there is no countervailing interest rooted in union democracy that suffices to override that protection Thus, I doubt that resolution of cases like this turns on whether an officer is elected or appointed. Rather its inquiry is whether an officer speaks as a member or as an officer in discharge of his assigned duties. If the former, he is protected by Title I. If the latter, the issue becomes whether other considerations deprive the officer/member of the protections of that Title.

, observed that "[i]t is readily apparent, both from the language of these provisions and from the legislative history of Title I, that it was rank-and-file union members — not union officers or employees, as such — whom Congress sought to protect" (footnote omitted). If that is so and if a case involves speech in the capacity of an officer, it should make no difference that the officer is elected rather than appointed. But in Finnegan, it was asserted that the officer was removed because of his campaign activities, as a member, in a union election, which was speech protected by Title I. In response, the Court said that under the union constitution the newly elected president had power to appoint and remove officers and that he was entitled to start out with officers in whom he had confidence. This was sufficient to dispose of the officers' claim under Title I. In the case before us, the speech for which respondent was removed was also speech in the capacity of a member. The duties of a union business agent are defined in the union constitution. Those duties relate primarily to collective bargaining and administering the collective-bargaining contract. They do not seem to include supporting the union president's proposal to increase union dues; and if they did, I am not so *360 sure that respondent would have spoken out against the dues increase at all. In this case, unlike Finnegan, respondent was not discharged by an incoming elected president with power to appoint his own staff, but by a trustee whose power to dismiss and appoint officers, for all that is shown here, went no further than the Local's president to discharge for cause, i. e., for incompetence or other behavior disqualifying them for the tasks they were expected to perform as officers. Respondent's speech opposing the dues increase was the speech of a member about a matter the members were to resolve, and there is no countervailing interest rooted in union democracy that suffices to override that protection Thus, I doubt that resolution of cases like this turns on whether an officer is elected or appointed. Rather its inquiry is whether an officer speaks as a member or as an officer in discharge of his assigned duties. If the former, he is protected by Title I. If the latter, the issue becomes whether other considerations deprive the officer/member of the protections of that Title.

Justice White

second_dissenting

New York v. Belton

https://www.courtlistener.com/opinion/110559/new-york-v-belton/

https://www.courtlistener.com/api/rest/v3/clusters/110559/

1980-147

In Robbins v. California, ante, p. 420, it was held that a wrapped container in the trunk of a car could not be searched without a warrant even though the trunk itself could be searched without a warrant because there was probable cause to search the car and even though there was probable cause to search the container as well. This was because of the separate interest in privacy with respect to the container. The Court now holds that as incident to the arrest of the driver or any other person in an automobile, the interior of the car and any container found therein, whether locked or not, may be not only seized but also searched even absent probable cause to believe that contraband or evidence of crime will be found. As to luggage, briefcases, or other containers, this seems to me an extreme extension of Chimel and one to which I cannot subscribe. Even if the decision in Robbins had been otherwise and United States v. Chadwick, 433 U.S. 1 (1977), and Arkansas v. Sanders, 442 U.S. 753 (1979), had been overruled, luggage found in the trunk of a car could not be searched without probable cause to believe it contained contraband or evidence. Here, searches of luggage, briefcases, and other containers in the interior of an auto are authorized in the absence of any suspicion whatsoever that they contain anything in which the police have a legitimate interest. This calls for more caution than the Court today exhibits, and, with respect, I dissent.

In Robbins v. California, ante, p. 420, it was held that a wrapped container in the trunk of a car could not be searched without a warrant even though the trunk itself could be searched without a warrant because there was probable cause to search the car and even though there was probable cause to search the container as well. This was because of the separate interest in privacy with respect to the container. The Court now holds that as incident to the arrest of the driver or any other person in an automobile, the interior of the car and any container found therein, whether locked or not, may be not only seized but also searched even absent probable cause to believe that contraband or evidence of crime will be found. As to luggage, briefcases, or other containers, this seems to me an extreme extension of Chimel and one to which I cannot subscribe. Even if the decision in Robbins had been otherwise and United and had been overruled, luggage found in the trunk of a car could not be searched without probable cause to believe it contained contraband or evidence. Here, searches of luggage, briefcases, and other containers in the interior of an auto are authorized in the absence of any suspicion whatsoever that they contain anything in which the police have a legitimate interest. This calls for more caution than the Court today exhibits, and, with respect, I dissent.

Justice Kagan

majority

Ransom v. FIA Card Services, N. A.

https://www.courtlistener.com/opinion/182567/ransom-v-fia-card-services-n-a/

https://www.courtlistener.com/api/rest/v3/clusters/182567/

2010-007

Chapter 13 of the Bankruptcy Code enables an individ ual to obtain a discharge of his debts if he pays his credi tors a portion of his monthly income in accordance with a court-approved plan. 11 U.S. C. §1301 et seq. To deter mine how much income the debtor is capable of paying, Chapter 13 uses a statutory formula known as the “means test.” §§707(b)(2) (2006 ed. and Supp. III), 1325(b)(3)(A) (2006 ed.). The means test instructs a debtor to deduct specified expenses from his current monthly income. The result is his “disposable income”—the amount he has available to reimburse creditors. §1325(b)(2). This case concerns the specified expense for vehicle ownership costs. We must determine whether a debtor like petitioner Jason Ransom who owns his car outright, and so does not make loan or lease payments, may claim an allowance for car-ownership costs (thereby reducing the amount he will repay creditors). We hold that the text, context, and purpose of the statutory provision at issue preclude this result. A debtor who does not make loan or 2 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court lease payments may not take the car-ownership deduction. I A “Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA or Act) to correct perceived abuses of the bankruptcy system.” Mi lavetz, Gallop & Milavetz, P. A. v. United States, 559 U. S. ___, ___ (2010) (slip op., at 1). In particular, Congress adopted the means test—“[t]he heart of [BAPCPA’s] con sumer bankruptcy reforms,” H. R. Rep. No. 109–31, pt. 1, p. 2 (2005) (hereinafter H. R. Rep.), and the home of the statutory language at issue here—to help ensure that debtors who can pay creditors do pay them. See, e.g., ibid. (under BAPCPA, “debtors [will] repay creditors the maxi mum they can afford”). In Chapter 13 proceedings, the means test provides a formula to calculate a debtor’s disposable income, which the debtor must devote to reimbursing creditors under a court-approved plan generally lasting from three to five years. §§1325(b)(1)(B) and (b)(4).1 The statute defines “disposable income” as “current monthly income” less “amounts reasonably necessary to be expended” for “main tenance or support,” business expenditures, and certain charitable contributions. §§1325(b)(2)(A)(i) and (ii). For a debtor whose income is above the median for his State, the means test identifies which expenses qualify as “amounts —————— 1 Chapter 13 borrows the means test from Chapter 7, where it is used as a screening mechanism to determine whether a Chapter 7 proceed ing is appropriate. Individuals who file for bankruptcy relief under Chapter 7 liquidate their nonexempt assets, rather than dedicate their future income, to repay creditors. See 11 U.S. C. §§704(a)(1), 726. If the debtor’s Chapter 7 petition discloses that his disposable income as calculated by the means test exceeds a certain threshold, the petition is presumptively abusive. §707(b)(2)(A)(i). If the debtor cannot rebut the presumption, the court may dismiss the case or, with the debtor’s consent, convert it into a Chapter 13 proceeding. §707(b)(1). Cite as: 562 U. S. ____ (2011) 3 Opinion of the Court reasonably necessary to be expended.” The test supplants the pre-BAPCPA practice of calculating debtors’ reason able expenses on a case-by-case basis, which led to varying and often inconsistent determinations. See, e.g., In re Slusher, 359 B.R. 290, 294 (Bkrtcy. Ct. Nev. 2007). Under the means test, a debtor calculating his “rea sonably necessary” expenses is directed to claim allow ances for defined living expenses, as well as for secured and priority debt. §§707(b)(2)(A)(ii)–(iv). As relevant here, the statute provides: “The debtor’s monthly expenses shall be the debtor’s applicable monthly expense amounts specified under the National Standards and Local Standards, and the debtor’s actual monthly expenses for the categories specified as Other Necessary Expenses issued by the Internal Revenue Service [IRS] for the area in which the debtor resides.” §707(b)(2)(A)(ii)(I). These are the principal amounts that the debtor can claim as his reasonable living expenses and thereby shield from creditors. The National and Local Standards referenced in this provision are tables that the IRS prepares listing stan dardized expense amounts for basic necessities.2 The IRS uses the Standards to help calculate taxpayers’ ability to pay overdue taxes. See 26 U.S. C. §7122(d)(2). The IRS also prepares supplemental guidelines known as the Col lection Financial Standards, which describe how to use the —————— 2 The National Standards designate allowances for six categories of expenses: (1) food; (2) housekeeping supplies; (3) apparel and services; (4) personal care products and services; (5) out-of-pocket health care costs; and (6) miscellaneous expenses. Internal Revenue Manual §5.15.1.8 (Oct. 2, 2009), http://www.irs.gov/irm/part5/irm_05-015 001.html#d0e1012 (all Internet materials as visited Jan. 7, 2011, and available in Clerk of Court’s case file). The Local Standards authorize deductions for two kinds of expenses: (1) housing and utilities; and (2) transportation. Id., §5.15.1.9. 4 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court tables and what the amounts listed in them mean. The Local Standards include an allowance for transpor tation expenses, divided into vehicle “Ownership Costs” and vehicle “Operating Costs.”3 At the time Ransom filed for bankruptcy, the “Ownership Costs” table appeared as follows: Ownership Costs First Car Second Car National $471 $332 App. to Brief for Respondent 5a. The Collection Financial Standards explain that these ownership costs represent “nationwide figures for monthly loan or lease payments,” id., at 2a; the numerical amounts listed are “base[d] . . . on the five-year average of new and used car financing data compiled by the Federal Reserve Board,” id., at 3a. The Collection Financial Standards further instruct that, in the tax-collection context, “[i]f a taxpayer has no car pay ment, . . . only the operating costs portion of the transpor tation standard is used to come up with the allowable transportation expense.” Ibid. B Ransom filed for Chapter 13 bankruptcy relief in July 2006. App. 1, 54. Among his liabilities, Ransom itemized over $82,500 in unsecured debt, including a claim held by respondent FIA Card Services, N. A. (FIA). Id., at 41. Among his assets, Ransom listed a 2004 Toyota Camry, valued at $14,000, which he owns free of any debt. Id., at 38, 49, 52. For purposes of the means test, Ransom reported in —————— 3 Although both components of the transportation allowance are listed in the Local Standards, only the operating-cost expense amounts vary by geography; in contrast, the IRS provides a nationwide figure for ownership costs. Cite as: 562 U. S. ____ (2011) 5 Opinion of the Court come of $4,248.56 per month. Id., at 46. He also listed monthly expenses totaling $4,038.01. Id., at 53. In de termining those expenses, Ransom claimed a car ownership deduction of $471 for the Camry, the full amount specified in the IRS’s “Ownership Costs” table. Id., at 49. Ransom listed a separate deduction of $338 for car-operating costs. Ibid. Based on these figures, Ransom had disposable income of $210.55 per month. Id., at 53. Ransom proposed a 5-year plan that would result in repayment of approximately 25% of his unsecured debt. Id., at 55. FIA objected to confirmation of the plan on the ground that it did not direct all of Ransom’s disposable income to unsecured creditors. Id., at 64. In particular, FIA argued that Ransom should not have claimed the car ownership allowance because he does not make loan or lease payments on his car. Id., at 67. FIA noted that without this allowance, Ransom’s disposable income would be $681.55—the $210.55 he reported plus the $471 he deducted for vehicle ownership. Id., at 71. The difference over the 60 months of the plan amounts to about $28,000. C The Bankruptcy Court denied confirmation of Ransom’s plan. App. to Pet. for Cert. 48. The court held that Ran som could deduct a vehicle-ownership expense only “if he is currently making loan or lease payments on that vehi cle.” Id., at 41. Ransom appealed to the Ninth Circuit Bankruptcy Appellate Panel, which affirmed. In re Ransom, 380 B.R. 799, 808–809 (2007). The panel reasoned that an “expense [amount] becomes relevant to the debtor (i.e., appropriate or applicable to the debtor) when he or she in fact has such an expense.” Id., at 807. “[W]hat is important,” the panel noted, “is the payments that debtors actually make, not how many cars they own, because [those] payments . . . are what actually affect their ability to” reimburse unse 6 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court cured creditors. Ibid. The United States Court of Appeals for the Ninth Cir cuit affirmed. In re Ransom, 577 F.3d 1026, 1027 (2009). The plain language of the statute, the court held, “does not allow a debtor to deduct an ‘ownership cost’ . . . that the debtor does not have.” Id., at 1030. The court observed that “[a]n ‘ownership cost’ is not an ‘expense’—either actual or applicable—if it does not exist, period.” Ibid. We granted a writ of certiorari to resolve a split of au thority over whether a debtor who does not make loan or lease payments on his car may claim the deduction for vehicle-ownership costs. 559 U. S. ___ (2010).4 We now affirm the Ninth Circuit’s judgment. II Our interpretation of the Bankruptcy Code starts “where all such inquiries must begin: with the language of the statute itself.” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989). As noted, the provision of the Code central to the decision of this case states: “The debtor’s monthly expenses shall be the debtor’s applicable monthly expense amounts specified under the National Standards and Local Standards, and the debtor’s actual monthly expenses for the categories specified as Other Necessary Expenses issued by the [IRS] for the area in which the debtor resides.” §707(b)(2)(A)(ii)(I). The key word in this provision is “applicable”: A debtor may claim not all, but only “applicable” expense amounts —————— 4 Compare In re Ransom, 577 F.3d 1026, 1027 (CA9 2009) (case be low), with In re Washburn, 579 F.3d 934, 935 (CA8 2009) (permitting the allowance), In re Tate, 571 F.3d 423, 424 (CA5 2009) (same), and In re Ross-Tousey, 549 F.3d 1148, 1162 (CA7 2008) (same). The ques tion has also divided bankruptcy courts. See, e.g., In re Canales, 377 B.R. 658, 662 (Bkrtcy. Ct. CD Cal. 2007) (citing dozens of cases reach ing opposing results). Cite as: 562 U. S. ____ (2011) 7 Opinion of the Court listed in the Standards. Whether Ransom may claim the $471 car-ownership deduction accordingly turns on whether that expense amount is “applicable” to him. Because the Code does not define “applicable,” we look to the ordinary meaning of the term. See, e.g., Hamilton v. Lanning, 560 U. S. ___, ___ (2010) (slip op., at 6). “Ap plicable” means “capable of being applied: having rele vance” or “fit, suitable, or right to be applied: appropriate.” Webster’s Third New International Dictionary 105 (2002). See also New Oxford American Dictionary 74 (2d ed. 2005) (“relevant or appropriate”); 1 Oxford English Dictionary 575 (2d ed. 1989) (“[c]apable of being applied” or “[f]it or suitable for its purpose, appropriate”). So an expense amount is “applicable” within the plain meaning of the statute when it is appropriate, relevant, suitable, or fit. What makes an expense amount “applicable” in this sense (appropriate, relevant, suitable, or fit) is most natu rally understood to be its correspondence to an individual debtor’s financial circumstances. Rather than authorizing all debtors to take deductions in all listed categories, Congress established a filter: A debtor may claim a deduc tion from a National or Local Standard table (like “[Car] Ownership Costs”) if but only if that deduction is appro priate for him. And a deduction is so appropriate only if the debtor has costs corresponding to the category covered by the table—that is, only if the debtor will incur that kind of expense during the life of the plan. The statute under scores the necessity of making such an individualized determination by referring to “the debtor’s applicable monthly expense amounts,” §707(b)(2)(A)(ii)(I) (emphasis added)—in other words, the expense amounts applicable (appropriate, etc.) to each particular debtor. Identifying these amounts requires looking at the financial situation of the debtor and asking whether a National or Local Standard table is relevant to him. If Congress had not wanted to separate in this way 8 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court debtors who qualify for an allowance from those who do not, it could have omitted the term “applicable” altogether. Without that word, all debtors would be eligible to claim a deduction for each category listed in the Standards. Con gress presumably included “applicable” to achieve a differ ent result. See Leocal v. Ashcroft, 543 U.S. 1, 12 (2004) (“[W]e must give effect to every word of a statute wherever possible”). Interpreting the statute to require a threshold determination of eligibility ensures that the term “appli cable” carries meaning, as each word in a statute should. This reading of “applicable” also draws support from the statutory context. The Code initially defines a debtor’s disposable income as his “current monthly income . . . less amounts reasonably necessary to be expended.” §1325(b)(2) (emphasis added). The statute then instructs that “[a]mounts reasonably necessary to be expended . . . shall be determined in accordance with” the means test. §1325(b)(3). Because Congress intended the means test to approximate the debtor’s reasonable expenditures on essential items, a debtor should be required to qualify for a deduction by actually incurring an expense in the rele vant category. If a debtor will not have a particular kind of expense during his plan, an allowance to cover that cost is not “reasonably necessary” within the meaning of the statute.5 Finally, consideration of BAPCPA’s purpose strengthens our reading of the term “applicable.” Congress designed —————— 5 This interpretation also avoids the anomalous result of granting preferential treatment to individuals with above-median income. Because the means test does not apply to Chapter 13 debtors whose incomes are below the median, those debtors must prove on a case-by case basis that each claimed expense is reasonably necessary. See §§1325(b)(2) and (3). If a below-median-income debtor cannot take a deduction for a nonexistent expense, we doubt Congress meant to provide such an allowance to an above-median-income debtor—the very kind of debtor whose perceived abuse of the bankruptcy system in spired Congress to enact the means test. Cite as: 562 U. S. ____ (2011) 9 Opinion of the Court the means test to measure debtors’ disposable income and, in that way, “to ensure that [they] repay creditors the maximum they can afford.” H. R. Rep., at 2. This purpose is best achieved by interpreting the means test, consistent with the statutory text, to reflect a debtor’s ability to afford repayment. Cf. Hamilton, 560 U. S., at ___ (slip op., at 14) (rejecting an interpretation of the Bankruptcy Code that “would produce [the] senseless resul[t]” of “deny[ing] creditors payments that the debtor could easily make”). Requiring a debtor to incur the kind of expenses for which he claims a means-test deduction thus advances BAPCPA’s objectives. Because we conclude that a person cannot claim an allowance for vehicle-ownership costs unless he has some expense falling within that category, the question in this case becomes: What expenses does the vehicle-ownership category cover? If it covers loan and lease payments alone, Ransom does not qualify, because he has no such expense. Only if that category also covers other costs associ ated with having a car would Ransom be entitled to this deduction. The less inclusive understanding is the right one: The ownership category encompasses the costs of a car loan or lease and nothing more. As noted earlier, the numerical amounts listed in the “Ownership Costs” table are “base[d] . . . on the five-year average of new and used car financing data compiled by the Federal Reserve Board.” App. to Brief for Respondent 3a. In other words, the sum $471 is the average monthly payment for loans and leases na tionwide; it is not intended to estimate other conceivable expenses associated with maintaining a car. The Stan dards do account for those additional expenses, but in a different way: They are mainly the province of the sepa rate deduction for vehicle “Operating Costs,” which in clude payments for “[v]ehicle insurance, . . . maintenance, fuel, state and local registration, required inspection, 10 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court parking fees, tolls, [and] driver’s license.” Internal Rev- enue Manual §§5.15.1.7 and 5.15.1.8 (May 1, 2004), reprinted in App. to Brief for Respondent 16a, 20a; see also IRS, Collection Financial Standards (Feb. 19, 2010), http://www.irs.gov/individuals/article/0,,id=96543,00.html.6 A person who owns a car free and clear is entitled to claim the “Operating Costs” deduction for all these expenses of driving—and Ransom in fact did so, to the tune of $338. But such a person is not entitled to claim the “Ownership Costs” deduction, because that allowance is for the sepa rate costs of a car loan or lease. The Collection Financial Standards—the IRS’s explana tory guidelines to the National and Local Standards— explicitly recognize this distinction between ownership and operating costs, making clear that individuals who have a car but make no loan or lease payments may claim only the operating allowance. App. to Brief for Respon dent 3a; see supra, at 4. Although the statute does not incorporate the IRS’s guidelines, courts may consult this material in interpreting the National and Local Stan dards; after all, the IRS uses those tables for a similar purpose—to determine how much money a delinquent taxpayer can afford to pay the Government. The guide lines of course cannot control if they are at odds with the statutory language. But here, the Collection Financial Standards’ treatment of the car-ownership deduction reinforces our conclusion that, under the statute, a debtor seeking to claim this deduction must make some loan or lease payments.7 —————— 6 In addition, the IRS has categorized taxes, including those associ ated with car ownership, as an “Other Necessary Expens[e],” for which a debtor may take a deduction. See App. to Brief for Respondent 26a; Brief for United States as Amicus Curiae 16, n. 4. 7 Because the dissent appears to misunderstand our use of the Collec tion Financial Standards, and because it may be important for future cases to be clear on this point, we emphasize again that the statute Cite as: 562 U. S. ____ (2011) 11 Opinion of the Court Because Ransom owns his vehicle free and clear of any encumbrance, he incurs no expense in the “Ownership Costs” category of the Local Standards. Accordingly, the car-ownership expense amount is not “applicable” to him, and the Ninth Circuit correctly denied that deduction. III Ransom’s argument to the contrary relies on a different interpretation of the key word “applicable,” an objection to our view of the scope of the “Ownership Costs” category, and a criticism of the policy implications of our approach. We do not think these claims persuasive. A Ransom first offers another understanding of the term “applicable.” A debtor, he says, determines his “applica ble” deductions by locating the box in each National or Local Standard table that corresponds to his geographic location, income, family size, or number of cars. Under this approach, a debtor “consult[s] the table[s] alone” to determine his appropriate expense amounts. Reply Brief for Petitioner 16. Because he has one car, Ransom argues that his “applicable” allowance is the sum listed in the first column of the “Ownership Costs” table ($471); if he had a second vehicle, the amount in the second column ($332) would also be “applicable.” On this approach, the word “applicable” serves a function wholly internal to the tables; rather than filtering out debtors for whom a deduc tion is not at all suitable, the term merely directs each —————— does not “incorporat[e]” or otherwise “impor[t]” the IRS’s guidance. Post, at 1, 4 (opinion of SCALIA, J.). The dissent questions what possible basis except incorporation could justify our consulting the IRS’s view, post, at 4, n., but we think that basis obvious: The IRS creates the National and Local Standards referenced in the statute, revises them as it deems necessary, and uses them every day. The agency might, therefore, have something insightful and persuasive (albeit not control ling) to say about them. 12 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court debtor to the correct box (and associated dollar amount of deduction) within every table. This alternative reading of “applicable” fails to comport with the statute’s text, context, or purpose. As intimated earlier, supra, at 7–8, Ransom’s interpretation would render the term “applicable” superfluous. Assume Con gress had omitted that word and simply authorized a deduction of “the debtor’s monthly expense amounts” specified in the Standards. That language, most naturally read, would direct each debtor to locate the box in every table corresponding to his location, income, family size, or number of cars and to deduct the amount stated. In other words, the language would instruct the debtor to use the exact approach Ransom urges. The word “applicable” is not necessary to accomplish that result; it is necessary only for the different purpose of dividing debtors eligible to make use of the tables from those who are not. Further, Ransom’s reading of “applicable” would sever the connec tion between the means test and the statutory provision it is meant to implement—the authorization of an allowance for (but only for) “reasonably necessary” expenses. Ex penses that are wholly fictional are not easily thought of as reasonably necessary. And finally, Ransom’s interpre tation would run counter to the statute’s overall purpose of ensuring that debtors repay creditors to the extent they can—here, by shielding some $28,000 that he does not in fact need for loan or lease payments. As against all this, Ransom argues that his reading is necessary to account for the means test’s distinction between “applicable” and “actual” expenses—more fully stated, between the phrase “applicable monthly expense amounts” specified in the Standards and the phrase “ac tual monthly expenses for . . . Other Necessary Expenses.” §707(b)(2)(A)(ii)(I) (emphasis added). The latter phrase enables a debtor to deduct his actual expenses in particu lar categories that the IRS designates relating mainly to Cite as: 562 U. S. ____ (2011) 13 Opinion of the Court taxpayers’ health and welfare. Internal Revenue Manual §5.15.1.10(1), http://www.irs.gov/irm/part5/ irm_05-015 001.html#d0e1381. According to Ransom, “applicable” cannot mean the same thing as “actual.” Brief for Peti tioner 40. He thus concludes that “an ‘applicable’ expense can be claimed [under the means test] even if no ‘actual’ expense was incurred.” Ibid. Our interpretation of the statute, however, equally avoids conflating “applicable” with “actual” costs. Al though the expense amounts in the Standards apply only if the debtor incurs the relevant expense, the debtor’s out of-pocket cost may well not control the amount of the deduction. If a debtor’s actual expenses exceed the amounts listed in the tables, for example, the debtor may claim an allowance only for the specified sum, rather than for his real expenditures.8 For the Other Necessary Ex pense categories, by contrast, the debtor may deduct his actual expenses, no matter how high they are.9 Our read —————— 8 The parties and the Solicitor General as amicus curiae dispute the proper deduction for a debtor who has expenses that are lower than the amounts listed in the Local Standards. Ransom argues that a debtor may claim the specified expense amount in full regardless of his out-of pocket costs. Brief for Petitioner 24–27. The Government concurs with this view, provided (as we require) that a debtor has some expense relating to the deduction. See Brief for United States as Amicus Curiae 19–21. FIA, relying on the IRS’s practice, contends to the contrary that a debtor may claim only his actual expenditures in this circumstance. Brief for Respondent 12, 45–46 (arguing that the Local Standards function as caps). We decline to resolve this issue. Because Ransom incurs no ownership expense at all, the car-ownership allowance is not applicable to him in the first instance. Ransom is therefore not entitled to a deduction under either approach. 9 For the same reason, the allowance for “applicable monthly expense amounts” at issue here differs from the additional allowances that the dissent cites for the deduction of actual expenditures. See post, at 3–4 (noting allowances for “actual expenses” for care of an elderly or chroni cally ill household member, §707(b)(2)(A)(ii)(II), and for home energy costs, §707(b)(2)(A)(ii)(V)). 14 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court ing of the means test thus gives full effect to “the distinc tion between ‘applicable’ and ‘actual’ without taking a further step to conclude that ‘applicable’ means ‘nonexis tent.’ ” In re Ross-Tousey, 368 B.R. 762, 765 (Bkrtcy. Ct. ED Wis. 2007), rev’d, 549 F.3d 1148 (CA7 2008). Finally, Ransom’s reading of “applicable” may not even answer the essential question: whether a debtor may claim a deduction. “[C]onsult[ing] the table[s] alone” to determine a debtor’s deduction, as Ransom urges us to do, Reply Brief for Petitioner 16, often will not be sufficient because the tables are not self-defining. This case pro vides a prime example. The “Ownership Costs” table features two columns labeled “First Car” and “Second Car.” See supra, at 4. Standing alone, the table does not specify whether it refers to the first and second cars owned (as Ransom avers), or the first and second cars for which the debtor incurs ownership costs (as FIA maintains)—and so the table does not resolve the issue in dispute.10 See In re Kimbro, 389 B.R. 518, 533 (Bkrtcy. App. Panel CA6 2008) (Fulton, J., dissenting) (“[O]ne cannot really ‘just —————— 10 The interpretive problem is not, as the dissent suggests, “whether to claim a deduction for one car or for two,” post, at 3, but rather whether to claim a deduction for any car that is owned if the debtor has no ownership costs. Indeed, if we had to decide this question on the basis of the table alone, we might well decide that a debtor who does not make loan or lease payments cannot claim an allowance. The table, after all, is titled “Ownership Costs”—suggesting that it applies to those debtors who incur such costs. And as noted earlier, the dollar amounts in the table represent average automobile loan and lease payments nationwide (with all other car-related expenses approxi mated in the separate “Operating Costs” table). See supra, at 9–10. Ransom himself concedes that not every debtor falls within the terms of this table; he would exclude, and thus prohibit from taking a deduction, a person who does not own a car. Brief for Petitioner 33. In like manner, the four corners of the table appear to exclude an additional group—debtors like Ransom who own their cars free and clear and so do not make the loan or lease payments that constitute “Ownership Costs.” Cite as: 562 U. S. ____ (2011) 15 Opinion of the Court look up’ dollar amounts in the tables without either refer ring to IRS guidelines for using the tables or imposing pre existing assumptions about how [they] are to be navi gated” (footnote omitted)). Some amount of interpretation is necessary to decide what the deduction is for and whether it is applicable to Ransom; and so we are brought back full circle to our prior analysis. B Ransom next argues that viewing the car-ownership deduction as covering no more than loan and lease pay ments is inconsistent with a separate sentence of the means test that provides: “Notwithstanding any other provision of this clause, the monthly expenses of the debtor shall not include any payments for debts.” §707(b)(2)(A)(ii)(I). The car-ownership deduction cannot comprise only loan and lease payments, Ransom contends, because those payments are always debts. See Brief for Petitioner 28, 44–45. Ransom ignores that the “notwithstanding” sentence governs the full panoply of deductions under the National and Local Standards and the Other Necessary Expense categories. We hesitate to rely on that general provision to interpret the content of the car-ownership deduction because Congress did not draft the former with the latter specially in mind; any friction between the two likely reflects only a lack of attention to how an across-the-board exclusion of debt payments would correspond to a particu lar IRS allowance.11 Further, the “notwithstanding” sen tence by its terms functions only to exclude, and not to authorize, deductions. It cannot establish an allowance —————— 11 Because Ransom does not make payments on his car, we need not and do not resolve how the “notwithstanding” sentence affects the vehicle-ownership deduction when a debtor has a loan or lease expense. See Brief for United States as Amicus Curiae 23, n. 5 (offering alterna tive views on this question); Tr. of Oral Arg. 51–52. 16 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court for non-loan or -lease ownership costs that no National or Local Standard covers. Accordingly, the “notwithstand ing” sentence does nothing to alter our conclusion that the “Ownership Costs” table does not apply to a debtor whose car is not encumbered. C Ransom finally contends that his view of the means test is necessary to avoid senseless results not intended by Congress. At the outset, we note that the policy concerns Ransom emphasizes pale beside one his reading creates: His interpretation, as we have explained, would frustrate BAPCPA’s core purpose of ensuring that debtors devote their full disposable income to repaying creditors. See supra, at 8–9. We nonetheless address each of Ransom’s policy arguments in turn. Ransom first points out a troubling anomaly: Under our interpretation, “[d]ebtors can time their bankruptcy filing to take place while they still have a few car payments left, thus retaining an ownership deduction which they would lose if they filed just after making their last payment.” Brief for Petitioner 54. Indeed, a debtor with only a single car payment remaining, Ransom notes, is eligible to claim a monthly ownership deduction. Id., at 15, 52. But this kind of oddity is the inevitable result of a stan dardized formula like the means test, even more under Ransom’s reading than under ours. Such formulas are by their nature over- and under-inclusive. In eliminating the pre-BAPCPA case-by-case adjudication of above-median income debtors’ expenses, on the ground that it leant itself to abuse, Congress chose to tolerate the occasional peculi arity that a brighter-line test produces. And Ransom’s alternative reading of the statute would spawn its own anomalies—even placing to one side the fundamental strangeness of giving a debtor an allowance for loan or lease payments when he has not a penny of loan or lease Cite as: 562 U. S. ____ (2011) 17 Opinion of the Court costs. On Ransom’s view, for example, a debtor entering bankruptcy might purchase for a song a junkyard car—“an old, rusted pile of scrap metal [that would] si[t] on cinder blocks in his backyard,” In re Brown, 376 B.R. 601, 607 (Bkrtcy. Ct. SD Tex. 2007)—in order to deduct the $471 car-ownership expense and reduce his payment to credi tors by that amount. We do not see why Congress would have preferred that result to the one that worries Ransom. That is especially so because creditors may well be able to remedy Ransom’s “one payment left” problem. If car payments cease during the life of the plan, just as if other financial circumstances change, an unsecured creditor may move to modify the plan to increase the amount the debtor must repay. See 11 U.S. C. §1329(a)(1). Ransom next contends that denying the ownership allowance to debtors in his position “sends entirely the wrong message, namely, that it is advantageous to be deeply in debt on motor vehicle loans, rather than to pay them off.” Brief for Petitioner 55. But the choice here is not between thrifty savers and profligate borrowers, as Ransom would have it. Money is fungible: The $14,000 that Ransom spent to purchase his Camry outright was money he did not devote to paying down his credit card debt, and Congress did not express a preference for one use of these funds over the other. Further, Ransom’s argument mistakes what the deductions in the means test are meant to accomplish. Rather than effecting any broad federal policy as to saving or borrowing, the deductions serve merely to ensure that debtors in bankruptcy can afford essential items. The car-ownership allowance thus safeguards a debtor’s ability to retain a car throughout the plan period. If the debtor already owns a car outright, he has no need for this protection. Ransom finally argues that a debtor who owns his car free and clear may need to replace it during the life of the plan; “[g]ranting the ownership cost deduction to a vehicle 18 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court that is owned outright,” he states, “accords best with economic reality.” Id., at 52. In essence, Ransom seeks an emergency cushion for car owners. But nothing in the statute authorizes such a cushion, which all debtors pre sumably would like in the event some unexpected need arises. And a person who enters bankruptcy without any car at all may also have to buy one during the plan period; yet Ransom concedes that a person in this position cannot claim the ownership deduction. Tr. of Oral Arg. 20. The appropriate way to account for unanticipated expenses like a new vehicle purchase is not to distort the scope of a deduction, but to use the method that the Code provides for all Chapter 13 debtors (and their creditors): modifica tion of the plan in light of changed circumstances. See §1329(a)(1); see also supra, at 17. IV Based on BAPCPA’s text, context, and purpose, we hold that the Local Standard expense amount for transporta tion “Ownership Costs” is not “applicable” to a debtor who will not incur any such costs during his bankruptcy plan. Because the “Ownership Costs” category covers only loan and lease payments and because Ransom owns his car free from any debt or obligation, he may not claim the allow ance. In short, Ransom may not deduct loan or lease expenses when he does not have any. We therefore affirm the judgment of the Ninth Circuit. It is so ordered. Cite as: 562 U. S. ____ (2011) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 09–907 _________________ JASON M. RANSOM, PETITIONER v. FIA CARD SERVICES, N. A., FKA MBNA AMERICA BANK, N. A.

Chapter 13 of the Bankruptcy Code enables an individ ual to obtain a discharge of his debts if he pays his credi tors a portion of his monthly income in accordance with a court-approved plan. 11 U.S. C. et seq. To deter mine how much income the debtor is capable of paying, Chapter 13 uses a statutory formula known as the “means test.” (2006 ed. and Supp. III), 1325(b)(3)(A) (2006 ed.). The means test instructs a debtor to deduct specified expenses from his current monthly income. The result is his “disposable income”—the amount he has available to reimburse creditors. This case concerns the specified expense for vehicle ownership costs. We must determine whether a debtor like petitioner Jason Ransom who owns his car outright, and so does not make loan or lease payments, may claim an allowance for car-ownership costs (thereby reducing the amount he will repay creditors). We hold that the text, context, and purpose of the statutory provision at issue preclude this result. A debtor who does not make loan or 2 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court lease payments may not take the car-ownership deduction. I A “Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA or Act) to correct perceived abuses of the bankruptcy system.” Mi lavetz, Gallop & Milavetz, P. A. v. United States, 559 U. S. (2010) (slip op., at 1). In particular, Congress adopted the means test—“[t]he heart of [BAPCPA’s] con sumer bankruptcy reforms,” H. R. Rep. No. 109–31, pt. 1, p. 2 (2005) (hereinafter H. R. Rep.), and the home of the statutory language at issue here—to help ensure that debtors who can pay creditors do pay them. See, e.g., (under BAPCPA, “debtors [will] repay creditors the maxi mum they can afford”). In Chapter 13 proceedings, the means test provides a formula to calculate a debtor’s disposable income, which the debtor must devote to reimbursing creditors under a court-approved plan generally lasting from three to five years. and (b)(4).1 The statute defines “disposable income” as “current monthly income” less “amounts reasonably necessary to be expended” for “main tenance or support,” business expenditures, and certain charitable contributions. and (ii). For a debtor whose income is above the median for his State, the means test identifies which expenses qualify as “amounts —————— 1 Chapter 13 borrows the means test from Chapter 7, where it is used as a screening mechanism to determine whether a Chapter 7 proceed ing is appropriate. Individuals who file for bankruptcy relief under Chapter 7 liquidate their nonexempt assets, rather than dedicate their future income, to repay creditors. See 11 U.S. C. 726. If the debtor’s Chapter 7 petition discloses that his disposable income as calculated by the means test exceeds a certain threshold, the petition is presumptively abusive. If the debtor cannot rebut the presumption, the court may dismiss the case or, with the debtor’s consent, convert it into a Chapter 13 proceeding. Cite as: 562 U. S. (2011) 3 Opinion of the Court reasonably necessary to be expended.” The test supplants the pre-BAPCPA practice of calculating debtors’ reason able expenses on a case-by-case basis, which led to varying and often inconsistent determinations. See, e.g., In re Slusher, Under the means test, a debtor calculating his “rea sonably necessary” expenses is directed to claim allow ances for defined living expenses, as well as for secured and priority debt. (A)(ii)–(iv). As relevant here, the statute provides: “The debtor’s monthly expenses shall be the debtor’s applicable monthly expense amounts specified under the National Standards and Local Standards, and the debtor’s actual monthly expenses for the categories specified as Other Necessary Expenses issued by the Internal Revenue Service [IRS] for the area in which the debtor resides.” These are the principal amounts that the debtor can claim as his reasonable living expenses and thereby shield from creditors. The National and Local Standards referenced in this provision are tables that the IRS prepares listing stan dardized expense amounts for basic necessities.2 The IRS uses the Standards to help calculate taxpayers’ ability to pay overdue taxes. See 26 U.S. C. The IRS prepares supplemental guidelines known as the Col lection Financial Standards, which describe how to use the —————— 2 The National Standards designate allowances for six categories of expenses: (1) food; (2) housekeeping supplies; (3) apparel and services; (4) personal care products and services; (5) out-of-pocket health care costs; and (6) miscellaneous expenses. Internal Revenue Manual http://www.irs.gov/irm/part5/irm_05-015 001.html#d0e10 (all Internet materials as visited Jan. 7, 2011, and available in Clerk of Court’s case file). The Local Standards authorize deductions for two kinds of expenses: (1) housing and utilities; and (2) transportation. 4 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court tables and what the amounts listed in them mean. The Local Standards include an allowance for transpor tation expenses, divided into vehicle “Ownership Costs” and vehicle “Operating Costs.”3 At the time Ransom filed for bankruptcy, the “Ownership Costs” table appeared as follows: Ownership Costs First Car Second Car National $471 $332 App. to Brief for Respondent 5a. The Collection Financial Standards explain that these ownership costs represent “nationwide figures for monthly loan or lease payments,” at 2a; the numerical amounts listed are “base[d] on the five-year average of new and used car financing data compiled by the Federal Reserve Board,” at 3a. The Collection Financial Standards further instruct that, in the tax-collection context, “[i]f a taxpayer has no car pay ment, only the operating costs portion of the transpor tation standard is used to come up with the allowable transportation expense.” B Ransom filed for Chapter 13 bankruptcy relief in July 2006. App. 1, 54. Among his liabilities, Ransom itemized over $82,500 in unsecured debt, including a claim held by respondent FIA Card Services, N. A. (FIA). Among his assets, Ransom listed a 2004 Toyota Camry, valued at $14,000, which he owns free of any debt. at 38, 49, 52. For purposes of the means test, Ransom reported in —————— 3 Although both components of the transportation allowance are listed in the Local Standards, only the operating-cost expense amounts vary by geography; in contrast, the IRS provides a nationwide figure for ownership costs. Cite as: 562 U. S. (2011) 5 Opinion of the Court come of $4,248.56 per month. He listed monthly expenses totaling $4,038.01. In de termining those expenses, Ransom claimed a car ownership deduction of $471 for the Camry, the full amount specified in the IRS’s “Ownership Costs” table. Ransom listed a separate deduction of $338 for car-operating costs. Based on these figures, Ransom had disposable income of $210.55 per month. Ransom proposed a 5-year plan that would result in repayment of approximately 25% of his unsecured debt. FIA objected to confirmation of the plan on the ground that it did not direct all of Ransom’s disposable income to unsecured creditors. In particular, FIA argued that Ransom should not have claimed the car ownership allowance because he does not make loan or lease payments on his car. FIA noted that without this allowance, Ransom’s disposable income would be $681.55—the $210.55 he reported plus the $471 he deducted for vehicle ownership. The difference over the 60 months of the plan amounts to about $28,000. C The Bankruptcy Court denied confirmation of Ransom’s plan. App. to Pet. for Cert. 48. The court held that Ran som could deduct a vehicle-ownership expense only “if he is currently making loan or lease payments on that vehi cle.” Ransom appealed to the Ninth Circuit Bankruptcy Appellate Panel, which affirmed. In re Ransom, 380 B.R. 799, 808–809 The panel reasoned that an “expense [amount] becomes relevant to the debtor (i.e., appropriate or applicable to the debtor) when he or she in fact has such an expense.” “[W]hat is important,” the panel noted, “is the payments that debtors actually make, not how many cars they own, because [those] payments are what actually affect their ability to” reimburse unse 6 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court cured creditors. The United States Court of Appeals for the Ninth Cir cuit affirmed. In re Ransom, The plain language of the statute, the court held, “does not allow a debtor to deduct an ‘ownership cost’ that the debtor does not have.” The court observed that “[a]n ‘ownership cost’ is not an ‘expense’—either actual or applicable—if it does not exist, period.” We granted a writ of certiorari to resolve a split of au thority over whether a debtor who does not make loan or lease payments on his car may claim the deduction for vehicle-ownership costs. 559 U. S. (2010).4 We now affirm the Ninth Circuit’s judgment. II Our interpretation of the Bankruptcy Code starts “where all such inquiries must begin: with the language of the statute itself.” United As noted, the provision of the Code central to the decision of this case states: “The debtor’s monthly expenses shall be the debtor’s applicable monthly expense amounts specified under the National Standards and Local Standards, and the debtor’s actual monthly expenses for the categories specified as Other Necessary Expenses issued by the [IRS] for the area in which the debtor resides.” The key word in this provision is “applicable”: A debtor may claim not all, but only “applicable” expense amounts —————— 4 Compare In re Ransom, (case be low), with In re Washburn, (permitting the allowance), In re Tate, and In re Ross-Tousey, The ques tion has divided bankruptcy courts. See, e.g., In re Canales, 377 B.R. 658, 662 (citing dozens of cases reach ing opposing results). Cite as: 562 U. S. (2011) 7 Opinion of the Court listed in the Standards. Whether Ransom may claim the $471 car-ownership deduction accordingly turns on whether that expense amount is “applicable” to him. Because the Code does not define “applicable,” we look to the ordinary meaning of the term. See, e.g., Hamilton v. Lanning, 560 U. S. (2010) (slip op., at 6). “Ap plicable” means “capable of being applied: having rele vance” or “fit, suitable, or right to be applied: appropriate.” Webster’s Third New International Dictionary 105 (2002). See New Oxford American Dictionary 74 (2d ed. 2005) (“relevant or appropriate”); 1 Oxford English Dictionary 575 (“[c]apable of being applied” or “[f]it or suitable for its purpose, appropriate”). So an expense amount is “applicable” within the plain meaning of the statute when it is appropriate, relevant, suitable, or fit. What makes an expense amount “applicable” in this sense (appropriate, relevant, suitable, or fit) is most natu rally understood to be its correspondence to an individual debtor’s financial circumstances. Rather than authorizing all debtors to take deductions in all listed categories, Congress established a filter: A debtor may claim a deduc tion from a National or Local Standard table (like “[Car] Ownership Costs”) if but only if that deduction is appro priate for him. And a deduction is so appropriate only if the debtor has costs corresponding to the category covered by the table—that is, only if the debtor will incur that kind of expense during the life of the plan. The statute under scores the necessity of making such an individualized determination by referring to “the debtor’s applicable monthly expense amounts,” (emphasis added)—in other words, the expense amounts applicable (appropriate, etc.) to each particular debtor. Identifying these amounts requires looking at the financial situation of the debtor and asking whether a National or Local Standard table is relevant to him. If Congress had not wanted to separate in this way 8 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court debtors who qualify for an allowance from those who do not, it could have omitted the term “applicable” altogether. Without that word, all debtors would be eligible to claim a deduction for each category listed in the Standards. Con gress presumably included “applicable” to achieve a differ ent result. See (“[W]e must give effect to every word of a statute wherever possible”). Interpreting the statute to require a threshold determination of eligibility ensures that the term “appli cable” carries meaning, as each word in a statute should. This reading of “applicable” draws support from the statutory context. The Code initially defines a debtor’s disposable income as his “current monthly income less amounts reasonably necessary to be expended.” (emphasis added). The statute then instructs that “[a]mounts reasonably necessary to be expended shall be determined in accordance with” the means test. Because Congress intended the means test to approximate the debtor’s reasonable expenditures on essential items, a debtor should be required to qualify for a deduction by actually incurring an expense in the rele vant category. If a debtor will not have a particular kind of expense during his plan, an allowance to cover that cost is not “reasonably necessary” within the meaning of the statute.5 Finally, consideration of BAPCPA’s purpose strengthens our reading of the term “applicable.” Congress designed —————— 5 This interpretation avoids the anomalous result of granting preferential treatment to individuals with above-median income. Because the means test does not apply to Chapter 13 debtors whose incomes are below the median, those debtors must prove on a case-by case basis that each claimed expense is reasonably necessary. See § and (3). If a below-median-income debtor cannot take a deduction for a nonexistent expense, we doubt Congress meant to provide such an allowance to an above-median-income debtor—the very kind of debtor whose perceived abuse of the bankruptcy system in spired Congress to enact the means test. Cite as: 562 U. S. (2011) 9 Opinion of the Court the means test to measure debtors’ disposable income and, in that way, “to ensure that [they] repay creditors the maximum they can afford.” H. R. Rep., at 2. This purpose is best achieved by interpreting the means test, consistent with the statutory text, to reflect a debtor’s ability to afford repayment. Cf. Hamilton, 560 U. S., at (slip op., at 14) (rejecting an interpretation of the Bankruptcy Code that “would produce [the] senseless resul[t]” of “deny[ing] creditors payments that the debtor could easily make”). Requiring a debtor to incur the kind of expenses for which he claims a means-test deduction thus advances BAPCPA’s objectives. Because we conclude that a person cannot claim an allowance for vehicle-ownership costs unless he has some expense falling within that category, the question in this case becomes: What expenses does the vehicle-ownership category cover? If it covers loan and lease payments alone, Ransom does not qualify, because he has no such expense. Only if that category covers other costs associ ated with having a car would Ransom be entitled to this deduction. The less inclusive understanding is the right one: The ownership category encompasses the costs of a car loan or lease and nothing more. As noted the numerical amounts listed in the “Ownership Costs” table are “base[d] on the five-year average of new and used car financing data compiled by the Federal Reserve Board.” App. to Brief for Respondent 3a. In other words, the sum $471 is the average monthly payment for loans and leases na tionwide; it is not intended to estimate other conceivable expenses associated with maintaining a car. The Stan dards do account for those additional expenses, but in a different way: They are mainly the province of the sepa rate deduction for vehicle “Operating Costs,” which in clude payments for “[v]ehicle insurance, maintenance, fuel, state and local registration, required inspection, 10 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court parking fees, tolls, [and] driver’s license.” Internal Rev- enue Manual and 5.15.1.8 reprinted in App. to Brief for Respondent 16a, 20a; see IRS, Collection Financial Standards (Feb. 19, 2010), http://www.irs.gov/individuals/article/0,id=96543,00.html.6 A person who owns a car free and clear is entitled to claim the “Operating Costs” deduction for all these expenses of driving—and Ransom in fact did so, to the tune of $338. But such a person is not entitled to claim the “Ownership Costs” deduction, because that allowance is for the sepa rate costs of a car loan or lease. The Collection Financial Standards—the IRS’s explana tory guidelines to the National and Local Standards— explicitly recognize this distinction between ownership and operating costs, making clear that individuals who have a car but make no loan or lease payments may claim only the operating allowance. App. to Brief for Respon dent 3a; see Although the statute does not incorporate the IRS’s guidelines, courts may consult this material in interpreting the National and Local Stan dards; after all, the IRS uses those tables for a similar purpose—to determine how much money a delinquent taxpayer can afford to pay the Government. The guide lines of course cannot control if they are at odds with the statutory language. But here, the Collection Financial Standards’ treatment of the car-ownership deduction reinforces our conclusion that, under the statute, a debtor seeking to claim this deduction must make some loan or lease payments.7 —————— 6 In addition, the IRS has categorized taxes, including those associ ated with car ownership, as an “Other Necessary Expens[e],” for which a debtor may take a deduction. See App. to Brief for Respondent 26a; Brief for United States as Amicus Curiae 16, n. 4. 7 Because the dissent appears to misunderstand our use of the Collec tion Financial Standards, and because it may be important for future cases to be clear on this point, we emphasize again that the statute Cite as: 562 U. S. (2011) 11 Opinion of the Court Because Ransom owns his vehicle free and clear of any encumbrance, he incurs no expense in the “Ownership Costs” category of the Local Standards. Accordingly, the car-ownership expense amount is not “applicable” to him, and the Ninth Circuit correctly denied that deduction. III Ransom’s argument to the contrary relies on a different interpretation of the key word “applicable,” an objection to our view of the scope of the “Ownership Costs” category, and a criticism of the policy implications of our approach. We do not think these claims persuasive. A Ransom first offers another understanding of the term “applicable.” A debtor, he says, determines his “applica ble” deductions by locating the box in each National or Local Standard table that corresponds to his geographic location, income, family size, or number of cars. Under this approach, a debtor “consult[s] the table[s] alone” to determine his appropriate expense amounts. Reply Brief for Petitioner 16. Because he has one car, Ransom argues that his “applicable” allowance is the sum listed in the first column of the “Ownership Costs” table ($471); if he had a second vehicle, the amount in the second column ($332) would be “applicable.” On this approach, the word “applicable” serves a function wholly internal to the tables; rather than filtering out debtors for whom a deduc tion is not at all suitable, the term merely directs each —————— does not “incorporat[e]” or otherwise “impor[t]” the IRS’s guidance. Post, at 1, 4 (opinion of SCALIA, J.). The dissent questions what possible basis except incorporation could justify our consulting the IRS’s view, post, n., but we think that basis obvious: The IRS creates the National and Local Standards referenced in the statute, revises them as it deems necessary, and uses them every day. The agency might, therefore, have something insightful and persuasive (albeit not control ling) to say about them. RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court debtor to the correct box (and associated dollar amount of deduction) within every table. This alternative reading of “applicable” fails to comport with the statute’s text, context, or purpose. As intimated at 7–8, Ransom’s interpretation would render the term “applicable” superfluous. Assume Con gress had omitted that word and simply authorized a deduction of “the debtor’s monthly expense amounts” specified in the Standards. That language, most naturally read, would direct each debtor to locate the box in every table corresponding to his location, income, family size, or number of cars and to deduct the amount stated. In other words, the language would instruct the debtor to use the exact approach Ransom urges. The word “applicable” is not necessary to accomplish that result; it is necessary only for the different purpose of dividing debtors eligible to make use of the tables from those who are not. Further, Ransom’s reading of “applicable” would sever the connec tion between the means test and the statutory provision it is meant to implement—the authorization of an allowance for (but only for) “reasonably necessary” expenses. Ex penses that are wholly fictional are not easily thought of as reasonably necessary. And finally, Ransom’s interpre tation would run counter to the statute’s overall purpose of ensuring that debtors repay creditors to the extent they can—here, by shielding some $28,000 that he does not in fact need for loan or lease payments. As against all this, Ransom argues that his reading is necessary to account for the means test’s distinction between “applicable” and “actual” expenses—more fully stated, between the phrase “applicable monthly expense amounts” specified in the Standards and the phrase “ac tual monthly expenses for Other Necessary Expenses.” (emphasis added). The latter phrase enables a debtor to deduct his actual expenses in particu lar categories that the IRS designates relating mainly to Cite as: 562 U. S. (2011) 13 Opinion of the Court taxpayers’ health and welfare. Internal Revenue Manual http://www.irs.gov/irm/part5/ irm_05-015 001.html#d0e1381. According to Ransom, “applicable” cannot mean the same thing as “actual.” Brief for Peti tioner 40. He thus concludes that “an ‘applicable’ expense can be claimed [under the means test] even if no ‘actual’ expense was incurred.” Our interpretation of the statute, however, equally avoids conflating “applicable” with “actual” costs. Al though the expense amounts in the Standards apply only if the debtor incurs the relevant expense, the debtor’s out of-pocket cost may well not control the amount of the deduction. If a debtor’s actual expenses exceed the amounts listed in the tables, for example, the debtor may claim an allowance only for the specified sum, rather than for his real expenditures.8 For the Other Necessary Ex pense categories, by contrast, the debtor may deduct his actual expenses, no matter how high they are.9 Our read —————— 8 The parties and the Solicitor General as amicus curiae dispute the proper deduction for a debtor who has expenses that are lower than the amounts listed in the Local Standards. Ransom argues that a debtor may claim the specified expense amount in full regardless of his out-of pocket costs. Brief for Petitioner 24–27. The Government concurs with this view, provided (as we require) that a debtor has some expense relating to the deduction. See Brief for United States as Amicus Curiae 19–21. FIA, relying on the IRS’s practice, contends to the contrary that a debtor may claim only his actual expenditures in this circumstance. Brief for Respondent 45–46 (arguing that the Local Standards function as caps). We decline to resolve this issue. Because Ransom incurs no ownership expense at all, the car-ownership allowance is not applicable to him in the first instance. Ransom is therefore not entitled to a deduction under either approach. 9 For the same reason, the allowance for “applicable monthly expense amounts” at issue here differs from the additional allowances that the dissent cites for the deduction of actual expenditures. See post, at 3–4 (noting allowances for “actual expenses” for care of an elderly or chroni cally ill household member, and for home energy costs, 14 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court ing of the means test thus gives full effect to “the distinc tion between ‘applicable’ and ‘actual’ without taking a further step to conclude that ‘applicable’ means ‘nonexis tent.’ ” In re Ross-Tousey, rev’d, Finally, Ransom’s reading of “applicable” may not even answer the essential question: whether a debtor may claim a deduction. “[C]onsult[ing] the table[s] alone” to determine a debtor’s deduction, as Ransom urges us to do, Reply Brief for Petitioner 16, often will not be sufficient because the tables are not self-defining. This case pro vides a prime example. The “Ownership Costs” table features two columns labeled “First Car” and “Second Car.” See Standing alone, the table does not specify whether it refers to the first and second cars owned (as Ransom avers), or the first and second cars for which the debtor incurs ownership costs (as FIA maintains)—and so the table does not resolve the issue in dispute.10 See In re Kimbro, (Fulton, J., dissenting) (“[O]ne cannot really ‘just —————— 10 The interpretive problem is not, as the dissent suggests, “whether to claim a deduction for one car or for two,” post, at 3, but rather whether to claim a deduction for any car that is owned if the debtor has no ownership costs. Indeed, if we had to decide this question on the basis of the table alone, we might well decide that a debtor who does not make loan or lease payments cannot claim an allowance. The table, after all, is titled “Ownership Costs”—suggesting that it applies to those debtors who incur such costs. And as noted the dollar amounts in the table represent average automobile loan and lease payments nationwide (with all other car-related expenses approxi mated in the separate “Operating Costs” table). See at 9–10. Ransom himself concedes that not every debtor falls within the terms of this table; he would exclude, and thus prohibit from taking a deduction, a person who does not own a car. Brief for Petitioner 33. In like manner, the four corners of the table appear to exclude an additional group—debtors like Ransom who own their cars free and clear and so do not make the loan or lease payments that constitute “Ownership Costs.” Cite as: 562 U. S. (2011) 15 Opinion of the Court look up’ dollar amounts in the tables without either refer ring to IRS guidelines for using the tables or imposing pre existing assumptions about how [they] are to be navi gated” (footnote omitted)). Some amount of interpretation is necessary to decide what the deduction is for and whether it is applicable to Ransom; and so we are brought back full circle to our prior analysis. B Ransom next argues that viewing the car-ownership deduction as covering no more than loan and lease pay ments is inconsistent with a separate sentence of the means test that provides: “Notwithstanding any other provision of this clause, the monthly expenses of the debtor shall not include any payments for debts.” The car-ownership deduction cannot comprise only loan and lease payments, Ransom contends, because those payments are always debts. See Brief for Petitioner 28, 44–45. Ransom ignores that the “notwithstanding” sentence governs the full panoply of deductions under the National and Local Standards and the Other Necessary Expense categories. We hesitate to rely on that general provision to interpret the content of the car-ownership deduction because Congress did not draft the former with the latter specially in mind; any friction between the two likely reflects only a lack of attention to how an across-the-board exclusion of debt payments would correspond to a particu lar IRS allowance.11 Further, the “notwithstanding” sen tence by its terms functions only to exclude, and not to authorize, deductions. It cannot establish an allowance —————— 11 Because Ransom does not make payments on his car, we need not and do not resolve how the “notwithstanding” sentence affects the vehicle-ownership deduction when a debtor has a loan or lease expense. See Brief for United States as Amicus Curiae 23, n. 5 (offering alterna tive views on this question); Tr. of Oral Arg. 51–52. 16 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court for non-loan or -lease ownership costs that no National or Local Standard covers. Accordingly, the “notwithstand ing” sentence does nothing to alter our conclusion that the “Ownership Costs” table does not apply to a debtor whose car is not encumbered. C Ransom finally contends that his view of the means test is necessary to avoid senseless results not intended by Congress. At the outset, we note that the policy concerns Ransom emphasizes pale beside one his reading creates: His interpretation, as we have explained, would frustrate BAPCPA’s core purpose of ensuring that debtors devote their full disposable income to repaying creditors. See at 8–9. We nonetheless address each of Ransom’s policy arguments in turn. Ransom first points out a troubling anomaly: Under our interpretation, “[d]ebtors can time their bankruptcy filing to take place while they still have a few car payments left, thus retaining an ownership deduction which they would lose if they filed just after making their last payment.” Brief for Petitioner 54. Indeed, a debtor with only a single car payment remaining, Ransom notes, is eligible to claim a monthly ownership deduction. But this kind of oddity is the inevitable result of a stan dardized formula like the means test, even more under Ransom’s reading than under ours. Such formulas are by their nature over- and under-inclusive. In eliminating the pre-BAPCPA case-by-case adjudication of above-median income debtors’ expenses, on the ground that it leant itself to abuse, Congress chose to tolerate the occasional peculi arity that a brighter-line test produces. And Ransom’s alternative reading of the statute would spawn its own anomalies—even placing to one side the fundamental strangeness of giving a debtor an allowance for loan or lease payments when he has not a penny of loan or lease Cite as: 562 U. S. (2011) 17 Opinion of the Court costs. On Ransom’s view, for example, a debtor entering bankruptcy might purchase for a song a junkyard car—“an old, rusted pile of scrap metal [that would] si[t] on cinder blocks in his backyard,” In re Brown, —in order to deduct the $471 car-ownership expense and reduce his payment to credi tors by that amount. We do not see why Congress would have preferred that result to the one that worries Ransom. That is especially so because creditors may well be able to remedy Ransom’s “one payment left” problem. If car payments cease during the life of the plan, just as if other financial circumstances change, an unsecured creditor may move to modify the plan to increase the amount the debtor must repay. See 11 U.S. C. Ransom next contends that denying the ownership allowance to debtors in his position “sends entirely the wrong message, namely, that it is advantageous to be deeply in debt on motor vehicle loans, rather than to pay them off.” Brief for Petitioner 55. But the choice here is not between thrifty savers and profligate borrowers, as Ransom would have it. Money is fungible: The $14,000 that Ransom spent to purchase his Camry outright was money he did not devote to paying down his credit card debt, and Congress did not express a preference for one use of these funds over the other. Further, Ransom’s argument mistakes what the deductions in the means test are meant to accomplish. Rather than effecting any broad federal policy as to saving or borrowing, the deductions serve merely to ensure that debtors in bankruptcy can afford essential items. The car-ownership allowance thus safeguards a debtor’s ability to retain a car throughout the plan period. If the debtor already owns a car outright, he has no need for this protection. Ransom finally argues that a debtor who owns his car free and clear may need to replace it during the life of the plan; “[g]ranting the ownership cost deduction to a vehicle 18 RANSOM v. FIA CARD SERVICES, N. A. Opinion of the Court that is owned outright,” he states, “accords best with economic reality.” In essence, Ransom seeks an emergency cushion for car owners. But nothing in the statute authorizes such a cushion, which all debtors pre sumably would like in the event some unexpected need arises. And a person who enters bankruptcy without any car at all may have to buy one during the plan period; yet Ransom concedes that a person in this position cannot claim the ownership deduction. Tr. of Oral Arg. 20. The appropriate way to account for unanticipated expenses like a new vehicle purchase is not to distort the scope of a deduction, but to use the method that the Code provides for all Chapter 13 debtors (and their creditors): modifica tion of the plan in light of changed circumstances. See see IV Based on BAPCPA’s text, context, and purpose, we hold that the Local Standard expense amount for transporta tion “Ownership Costs” is not “applicable” to a debtor who will not incur any such costs during his bankruptcy plan. Because the “Ownership Costs” category covers only loan and lease payments and because Ransom owns his car free from any debt or obligation, he may not claim the allow ance. In short, Ransom may not deduct loan or lease expenses when he does not have any. We therefore affirm the judgment of the Ninth Circuit. It is so ordered. Cite as: 562 U. S. (2011) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES No. 09–907 JASON M. RANSOM, PETITIONER v. FIA CARD SERVICES, N. A., FKA MBNA AMERICA BANK, N. A.

per_curiam

per_curiam

Chicago Mercantile Exchange v. Deaktor

https://www.courtlistener.com/opinion/108886/chicago-mercantile-exchange-v-deaktor/

https://www.courtlistener.com/api/rest/v3/clusters/108886/

1973-017

The petitioner, Chicago Mercantile Exchange, was sued in two separate actions in the District Court. In one, the Phillips suit, it was alleged that the Exchange had forced sales of futures contracts in March 1970 fresh eggs at artificially depressed market prices and had thereby monopolized and restrained commerce in violation of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S. C. §§ 1, 2, and had violated § 9 (b) of the Commodity Exchange Act (CEA), as amended, 82 Stat. 33, 7 U.S. C. § 13 (b), by manipulating prices of a commodity for future delivery on a contract market. The Exchange was also accused of violating § 5a of the CEA, 7 U.S. C. § 7a (8), for failure to enforce one of its own rules. In the second suit, the Deaktor case, the Exchange was charged with violating the CEA and its own rules as a designated contract market because it had failed *114 to exercise due care to halt the manipulative conduct of certain of its members who allegedly had cornered the July 1970 market in frozen pork bellies futures contracts. The Exchange defended both actions on the ground that it was faithfully discharging its statutory duty of self-regulation. It asserted that its challenged acts in the Phillips case were measures taken to prevent speculation in futures contracts and as such were not in violation of the CEA. Rather, they were authorized and required by the statute and hence cannot be considered within the reach of the antitrust laws. Likewise, in the Deaktor suit, the Exchange claimed that it had taken all proper and reasonable steps to perform its statutory responsibility to prevent manipulation. The Exchange further urged that because the Commodity Exchange Commission had jurisdiction to determine whether the Exchange was violating the CEA or its own rules and to impose sanctions for any such offense, both suits should be stayed to permit the Commission to determine in the first instance whether or not the actions of the Exchange under scrutiny were in discharge of its proper duties under the CEA and its regulations. The District Court refused the stay, and the Court of Appeals affirmed. Deaktor v. L. D. Schreiber & Co., 479 F.2d 529 (CA7 1973). Both courts were in error. Ricci v. Chicago Mercantile Exchange, 409 U.S. 289 (1973), held that an antitrust action against the Exchange should have been stayed to afford the Commodity Exchange Commission an opportunity to determine if the challenged conduct of the Exchange was in compliance with the statute and with Exchange rules. Because administrative adjudication of alleged violations of the CEA and the rules lay at the heart of the task assigned the Commission by Congress, we recognized that *115 the court, although retaining final authority to interpret the CEA and its relationship to the antitrust laws, should avail itself of the abilities of the Commission to unravel the intricate and technical facts of the commodity industry and to arrive at some judgment as to whether the Exchange had conducted itself in compliance with the law. An adjudication by the Commission that the actions of the Exchange were authorized or required by the CEA would not necessarily dispose of the question of immunity from antitrust liability. We nevertheless thought the considered view of the Commission would be of sufficient aid to the court that the action should not go forward without making reasonable efforts to invoke the jurisdiction of the Commission. Id., at 305-306. As we did in Ricci, "we simply recognize that Congress has established a specialized agency that would determine either that a . . . rule of the Exchange has been violated or that it has been followed. Either judgment would require determination of facts and the interpretation and application of the Act and Exchange rules. And either determination will be of great help to the antitrust court in arriving at the essential accommodation between the antitrust and the regulatory regime . . . ." Id., at 307. In our judgment, the Court of Appeals, as in Ricci, should have requested the District Court to stay the proceedings in the Phillips case to afford an opportunity to invoke the jurisdiction of the Commission. For very similar reasons, the Deaktor plaintiffs, who also alleged violations of the CEA and the rules of the Exchange, should be routed in the first instance to the agency whose administrative functions appear to encompass adjudication of the kind of substantive claims made against the Exchange in this case. *116 The petition for writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with this opinion. So ordered. MR. JUSTICE STEWART dissents. He would affirm the judgment substantially upon the reasoning of Judge Castle's concurring opinion in the Court of Appeals. 479 F.2d 529, 535

The petitioner, Chicago Mercantile Exchange, was sued in two separate actions in the District Court. In one, the Phillips suit, it was alleged that the Exchange had forced sales of futures contracts in March 1970 fresh eggs at artificially depressed market prices and had thereby monopolized and restrained commerce in violation of 1 and 2 of the Sherman Act, as amended, 15 U.S. C. 1, 2, and had violated 9 (b) of the Commodity Exchange Act (CEA), as amended, 7 U.S. C. 13 (b), by manipulating prices of a commodity for future delivery on a contract market. The Exchange was also accused of violating 5a of the CEA, 7 U.S. C. 7a (8), for failure to enforce one of its own rules. In the second suit, the Deaktor case, the Exchange was charged with violating the CEA and its own rules as a designated contract market because it had failed *114 to exercise due care to halt the manipulative conduct of certain of its members who allegedly had cornered the July 1970 market in frozen pork bellies futures contracts. The Exchange defended both actions on the ground that it was faithfully discharging its statutory duty of self-regulation. It asserted that its challenged acts in the Phillips case were measures taken to prevent speculation in futures contracts and as such were not in violation of the CEA. Rather, they were authorized and required by the statute and hence cannot be considered within the reach of the antitrust laws. Likewise, in the Deaktor suit, the Exchange claimed that it had taken all proper and reasonable steps to perform its statutory responsibility to prevent manipulation. The Exchange further urged that because the Commodity Exchange Commission had jurisdiction to determine whether the Exchange was violating the CEA or its own rules and to impose sanctions for any such offense, both suits should be stayed to permit the Commission to determine in the first instance whether or not the actions of the Exchange under scrutiny were in discharge of its proper duties under the CEA and its regulations. The District Court refused the stay, and the Court of Appeals affirmed. Both courts were in error. held that an antitrust action against the Exchange should have been stayed to afford the Commodity Exchange Commission an opportunity to determine if the challenged conduct of the Exchange was in compliance with the statute and with Exchange rules. Because administrative adjudication of alleged violations of the CEA and the rules lay at the heart of the task assigned the Commission by Congress, we recognized that *115 the court, although retaining final authority to interpret the CEA and its relationship to the antitrust laws, should avail itself of the abilities of the Commission to unravel the intricate and technical facts of the commodity industry and to arrive at some judgment as to whether the Exchange had conducted itself in compliance with the law. An adjudication by the Commission that the actions of the Exchange were authorized or required by the CEA would not necessarily dispose of the question of immunity from antitrust liability. We nevertheless thought the considered view of the Commission would be of sufficient aid to the court that the action should not go forward without making reasonable efforts to invoke the jurisdiction of the Commission. As we did in Ricci, "we simply recognize that Congress has established a specialized agency that would determine either that a rule of the Exchange has been violated or that it has been followed. Either judgment would require determination of facts and the interpretation and application of the Act and Exchange rules. And either determination will be of great help to the antitrust court in arriving at the essential accommodation between the antitrust and the regulatory regime" In our judgment, the Court of Appeals, as in Ricci, should have requested the District Court to stay the proceedings in the Phillips case to afford an opportunity to invoke the jurisdiction of the Commission. For very similar reasons, the Deaktor plaintiffs, who also alleged violations of the CEA and the rules of the Exchange, should be routed in the first instance to the agency whose administrative functions appear to encompass adjudication of the kind of substantive claims made against the Exchange in this case. *116 The petition for writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with this opinion. So ordered. MR. JUSTICE STEWART dissents. He would affirm the judgment substantially upon the reasoning of Judge Castle's concurring opinion in the Court of Appeals.

Justice Brennan

dissenting

Engle v. Isaac

https://www.courtlistener.com/opinion/110692/engle-v-isaac/

https://www.courtlistener.com/api/rest/v3/clusters/110692/

1981-076

Today's decision is a conspicuous exercise in judicial activism — particularly so since it takes the form of disregard of precedent scarcely a month old. In its eagerness to expatiate upon the "significant costs" of the Great Writ, ante, at 126-128, and to apply "the principles articulated in Wainwright v. Sykes, [433 U.S. 72 (1977)]," ante, at 123, to the cases before us, the Court demonstrably misreads and reshapes the habeas claim of at least one of the state prisoners involved in this action. Respondent Isaac presented exactly one claim in his habeas petition. That claim did not even *138 exist until after Isaac was denied relief on his last direct appeal. As a result, Isaac could not have "preserved" his claim in the state courts: He simply committed no "procedural default," and the Court is thus clearly wrong to apply Sykes to his claim in order to relegate it to the dustbin. Moreover, the Court does so by ignoring the holding only last month in Rose v. Lundy, 455 U.S. 509 (1982): namely, that a habeas petition that contains any unexhausted claims must be dismissed by the habeas court. The Court then compounds its error when it attempts to articulate the "principles" of Sykes: In purporting to give content to the "cause" standard announced in that case, the Court defines "cause" in a way supported neither by Sykes nor by common sense. I dissent from both of these errors, which are discussed in turn below. I Respondent Isaac was indicted in May 1975; he was convicted after a jury trial and sentenced during the following September.[1] While his conviction was on appeal in the Ohio Court of Appeals, the Ohio Supreme Court decided State v. Robinson, 47 Ohio St. 2d 103, 351 N.E.2d 88 (July 1976), which construed Ohio Rev. Code Ann. § 2901.05(A) (effective Jan. 1, 1974) to require the prosecution to bear the burden of persuasion, beyond a reasonable doubt, with respect to an affirmative defense of self-defense raised by the defendant. The Ohio Court of Appeals affirmed Isaac's conviction in February 1977.[2] The Ohio Supreme Court dismissed Isaac's appeal in July 1977.[3] On the same day, the Ohio Supreme Court decided State v. Humphries, 51 Ohio St. 2d 95, 364 N.E.2d 1354. That case declared Robinson retroactive to the effective date of § 2901.05(A), but only partially: It held that in order to gain the retroactive benefits of the Robinson *139 decision, a defendant tried before a jury must have preserved his claim by objection at trial to the allocation of the affirmative-defense burden of proof, while a bench-trial defendant could have made the same objection as late as in the Court of Appeals, and the objection would still have been preserved. 51 Ohio St. 2d, at 102-103, 364 N.E.2d, at 1359. Isaac filed his habeas petition in the United States District Court for the Southern District of Ohio in March 1978.[4] The asserted ground for relief was "denial of due process of law," in that "[t]he trial court charged petitioner had the burden of proving self-defense. After conviction and during the first appeal the Ohio Supreme Court declared the instructions to be prejudicial error under Robinson. This case was immediately raised to the Appellate Court. They held any error was waived. The Ohio Supreme Court then held Robinson retroactive. Petitioner had raised retroactivity in its leave to appeal and was denied leave to appeal the same day Humphries was decided declaring retroactivity. The Ohio Supreme Court refuses to give relief despite its own pronouncement. The holding of the court is contrary to the Supreme Court of the United States in regard to proving self-defense."[5] Isaac's memorandum in support of his habeas petition made it plain that his claim was that Humphries' selective retroactive application of the Robinson rule denied him due process of law.[6] It is obvious, of course, that it was simply impossible *140 to make this claim before Humphries was decided, in July 1977, on the same day that Isaac's direct appeals in the state court system were finally rejected. Ohio Rev. Code Ann. § 2953.21(A) (1975) provides for postconviction relief under certain circumstances: "Any person convicted of a criminal offense . . . claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a verified petition at any time in the court which imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief." By applying the doctrine of res judicata to postconviction petitions, the Ohio Supreme Court has allowed relief under this procedure only under limited circumstances: Constitutional issues can be raised under § 2953.21(A) only when they could not have been raised at trial or on appeal. State v. Perry, 10 Ohio St. 2d 175, 180-181, 226 N.E.2d 104, 108 (1967); see Keener v. Ridenour, 594 F.2d 581, 589-591 (CA6 1979) (construing scope of Ohio postconviction remedy); Riley v. Havener, 391 F. Supp. 1177, 1179-1180 (ND Ohio 1974) (same). But Isaac's claim is manifestly of the sort that could not have been raised at trial or an appeal, for the claim only came into existence on the day that Isaac's last appeal was rejected. Consequently, state postconviction remedies are available to Isaac and have not been exhausted. I draw three conclusions from the foregoing account, all of which to my mind follow ineluctably from the undisputed facts of this case. First, Isaac's habeas petition should have been dismissed for his failure to exhaust available state remedies. See Picard v. Connor, 404 U.S. 270 (1971), where we emphasized that "the federal claim must be fairly presented to the state courts. . . . Only if the state courts have had the first *141 opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies." Id., at 275-276. In the present case, petitioner Engle responded to Isaac's petition by raising the issue of Isaac's failure to exhaust.[7] Therefore the Court of Appeals clearly erred, under Picard and our whole line of exhaustion precedents, in granting habeas relief to Isaac instead of requiring exhaustion. The proper disposition of Isaac's case is thus to reverse and remand with instructions to dismiss on exhaustion grounds. The Court's failure to order such a disposition is incomprehensible: Barely a month ago this Court emphatically reaffirmed the exhaustion doctrine, and indeed extended it, announcing a requirement of "total exhaustion" for habeas petitions. Rose v. Lundy, 455 U.S. 509 (March 3, 1982).[8] But today the Court finds the nostrum of "cause and prejudice" more attractive, and so Rose v. Lundy is not applied. Sic transit gloria Lundy! In scarcely a month, the bloom is off the Rose.[9] My second conclusion is that Isaac simply committed no "procedural default" in failing to raise at trial or on direct appeal the claim that appears in his habeas petition. That claim did not exist at any time during Isaac's trial or direct appeal. Thus the essential factual predicate for an application of Wainwright v. Sykes, 433 U.S. 72 (1977), is completely *142 absent in Isaac's case. Sykes involved a habeas petitioner who had failed to object in a timely manner to the admission of his confession at trial. Id., at 86-87. Given that factual predicate, Sykes addressed the question of whether federal habeas review should be barred absent a showing of "cause" for the procedural default of failing to object, and a further showing of "prejudice" resulting from the admission of the confession. Id., at 87, 90-91. But in the case before us, respondent Isaac could not have made any objection, timely or otherwise, at trial or on appeal. Thus the application of Sykes is completely and manifestly erroneous in this case.[10] My last conclusion is that the Court is so intent upon applying Sykes to Isaac's case that it plays Procrustes with his claim. In order to bring Isaac's claim within the ambit of Sykes, the Court first characterizes his petition as "complex," ante, at 117, and "confused," ante, at 124, n. 25.[11] Then, *143 without ever quoting the claim as it actually appeared in Isaac's petition, the Court delineates a "colorable constitutional claim" nowhere to be found in the petition. As the Court recasts it, Isaac's claim is as follows: "[T]he crim[e] charged against [Isaac] require[s] a showing of purposeful or knowing behavior. These terms, according to [Isaac], imply a degree of culpability that is absent when a person acts in self-defense. . . . Selfdefense, [Isaac] urge[s], negates [essential] elements of criminal behavior. Therefore, once the defendant raises the possibility of self-defense, [Isaac] contend[s] that the State must disprove that defense as part of its task of establishing guilty mens rea, voluntariness, and unlawfulness. The Due Process Clause, according to [Isaac's] interpretation of Winship, Mullaney, and Patterson, forbids the States to disavow any portion of this burden." Ante, at 121-122. This new-modeled claim bears no resemblance to the claim actually made by Isaac in his habeas petition. See supra, at 139.[12] But by virtue of this exercise in juristic revisionism, the Court puts itself in position to find that "Isaac's" claim was "forfeited before the state courts," ante, at 125 — no difficult task, since the claim is wholly imagined by the Court itself — thus enabling the Court to reach its clearly sought goal of deciding "whether the principles articulated in Wainwright v. Sykes, 433 U.S. 72 (1977), bar consideration of the claim in a federal habeas proceeding." Ante, at 123. Unsurprisingly, the Court's bottom line is that Isaac's fictive claim is indeed barred by Sykes. In short, the Court reshapes respondent Isaac's actual claim into a form that enables it to foreclose all federal review, when as plainly pleaded the claim was unexhausted, thus calling for the dismissal of Isaac's petition *144 for habeas relief. The Court's analysis is completely result-oriented, and represents a noteworthy exercise in the very judicial activism that the Court so deprecates in other contexts. II For the reasons stated above, I conclude that in its unseemly rush to reach the merits of Isaac's case, the Court has ignored settled law respecting the exhaustion of state remedies. But lest it be thought that my disagreement with today's decision is confined to that point alone, I turn to the Court's treatment of the merits of the cases before us. I continue to believe that the "deliberate bypass" standard announced in Fay v. Noia, 372 U.S. 391 (1963), is the only sensible rule to apply in habeas cases such as respondents'. I adhere to my dissent in Wainwright v. Sykes, supra, in which I termed the "cause-and-prejudice" standard adopted in that case "a mere house of cards whose foundation has escaped any systematic inspection." 433 U.S., at 99-100, n. 1. The Court has now began to furnish its house of cards — and the furniture is as jerry-built as the house itself. A Sykes did not give the terms "cause" and "prejudice" any "precise content," but promised that "later cases" would provide such content. Id., at 91. Today the nature of that content becomes distressingly apparent. The Court still refuses to say what "cause" is: And I predict that on the Court's present view it will prove easier for a camel to go through the eye of a needle than for a state prisoner to show "cause." But on the other hand, the Court is more than eager to say what "cause" is not: And in doing so, the Court is supported neither by common sense nor by the very reasons offered in Sykes for adoption of the "cause-and-prejudice" standard in the first place. According to the Court, "cause" is not demonstrated when the Court "cannot say that [habeas petitioners] lacked the *145 tools to construct their constitutional claim," ante, at 133, however primitive those tools were and thus however inchoate the claim was when petitioners were in the state courts. The Court concludes, after several pages of tortuous reasoning, ante, at 130-133, and nn. 36-42, that respondents in the present cases did indeed have "the tools" to make their constitutional claims. This conclusion is reached by the sheerest inference: It is based on citations to other cases in other jurisdictions, where other defendants raised other claims assertedly similar to those that respondents "could" have raised. Ante, at 131-133, and n. 40. To hold the present respondents to such a high standard of foresight is tantamount to a complete rejection of the notion that there is a point before which a claim is so inchoate that there is adequate "cause" for the failure to raise it. In thus rejecting inchoateness as "cause," the Court overlooks the fact that none of the rationales used in Sykes to justify adoption of the cause-and-prejudice standard can justify today's definition of "cause." Sykes adopted the cause-and-prejudice standard in order to accord "greater respect" to state contemporaneous-objection rules than was assertedly given by Fay v. Noia, supra. 433 U. S., at 88. The Court then offered a number of reasons why contemporaneous-objection rules should be given such greater respect: (1) "A contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding." Ibid. (2) A contemporaneous objection "enables the judge who observed the demeanor of those witnesses to make the factual determinations necessary for properly deciding the federal constitutional question." Ibid. (3) "A contemporaneous-objection rule may lead to the exclusion of evidence objected to, thereby making a major contribution to finality in criminal litigation." Ibid. *146 (4) The Fay v. Noia rule "may encourage `sandbagging' on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off." 433 U.S., at 89. (5) A contemporaneous-objection rule "encourages the result that [criminal trials] be as free of error as possible." Id., at 90. None of these rationales has any force in the present case. The first three reasons are valid, if at all, only in the particular context of objections to the admission of evidence, such as were at issue in Sykes. As for the "sandbagging" rationale, dutifully repeated by today's Court, ante, at 129, n. 34, that was fully answered in my Sykes dissent:[13] That argument still "offends common sense," and does not become less offensive by sententious repetition. And the final reason — relied on again today, ante, at 127 — is plainly irrelevant to a case involving inchoate constitutional claims. Such claims are exhypothesis so embryonic that only the extraordinarily foresighted criminal defendant will raise them. It is completely implausible to expect that the raising of such claims will predictably — or even occasionally — make trials more "free of error." B The Court justifies its result today with several additional reasons — or, rather, sentiments in reasons' clothing. We are told, ante, at 126-127, that "the Great Writ entails significant *147 costs. Collateral review of a conviction extends the ordeal of trial for both society and the accused." But we are not told why the accused would consider it an "ordeal" to go to federal court in order to attempt to vindicate his constitutional rights. Nor are we told why society should be eager to ensure the finality of a conviction arguably tainted by unreviewed constitutional error directly affecting the truthfinding function of the trial. I simply fail to understand how allowance of a habeas hearing "entails significant costs" to anyone under the circumstances of the cases before us. In a similar vein, we are told, ante, at 127, that "[w]e must also acknowledge that writs of habeas corpus frequently cost society the right to punish admitted offenders." I for one will acknowledge nothing of the sort. Respondents were all convicted after trials in which they allege that the burden of proof respecting their affirmative defenses was imposed upon them in an unconstitutional manner. Thus they are not "admitted" offenders at all: If they had been tried with the assertedly proper allocation of the burden of proof, then they might very well have been acquitted. Further, it is sheer demagoguery to blame the "offender" for the logistical and temporal difficulties arising from retrial: If the writ of habeas *148 corpus has been granted, then it is at least as reasonable to blame the State for having prosecuted the first trial "in violation of the Constitution or laws . . . of the United States," 28 U.S. C. § 2254(a). Finally, we are told that "the Great Writ imposes special costs on our federal system"; that "[f]ederal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights," ante, at 128; and that "[s]tate courts are understandably frustrated when they faithfully apply existing constitutional law only to have a federal court discover, during a § 2254 proceeding, new constitutional commands." Ante, at 128, n. 33. Once again, the Court drags a red herring across its path. I hope that the Court forgets only momentarily that "the States' sovereign power" is limited by the Constitution of the United States: that the "intrusion" complained of is that of the supreme law of the land. But it must be reason for deep concern when this Court forgets, as it certainly does today, that "it is a constitution we are expounding, . . . a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs."[14] It is inimical to the principle of federal constitutional supremacy to defer to state courts' "frustration" at the requirements of federal constitutional law as it is interpreted in an evolving society. Sykes promised that its cause-and-prejudice standard would "not prevent a federal habeas court from adjudicating for the first time the federal constitutional claim of a defendant who in the absence of such an adjudication will be the victim of a miscarriage of justice." 433 U.S., at 91. Today's decision, with its unvarnished hostility to the assertion of federal constitutional claims, starkly reveals the emptiness of that promise. *149 C Finally, there is the issue of the Court's extension of the Sykes standard "to cases in which the constitutional error. . . affect[s] the truthfinding function of the trial." Ante, at 129. The Court concedes, ibid., that Sykes itself involved the violation of the habeas petitioner's Miranda rights, and that although "this defect was serious, it did not affect the determination of guilt at trial." But despite the fact that the present cases admittedly do involve a defect affecting the determination of guilt, the Court refuses to limit Sykes and thus bars federal review: "We do not believe . . . that the principles of Sykes lend themselves to this limitation." Ante, at 129. In so holding, the Court ignores the manifest differences between claims that affect the truthfinding function of the trial and claims that do not. The Court proclaimed in Stone v. Powell, 428 U.S. 465, 490 (1976), that "the ultimate question of guilt or innocence. . . should be the central concern in a criminal proceeding." A defendant's Fourth Amendment rights, see Stone, or his Miranda rights, see Sykes, may arguably be characterized as "crucially different from many other constitutional rights," Kaufman v. United States, 394 U.S. 217, 237 (1969) (Black, J., dissenting), in that evidence procured in violation of those rights has not ordinarily been rendered untrustworthy by the means of its procurement. But a defendant's right to a trial at which the burden of proof has been constitutionally allocated can never be violated without rendering the entire trial result untrustworthy. "In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome," Speiser v. Randall, 357 U.S. 513, 525 (1958), and petitioners in the present cases concede as much, Brief for Petitioners 22. As Justice Harlan noted in In re Winship, 397 U.S. 358 (1970): "If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk *150 of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent." Id., at 371 (concurring opinion). Where, as here, the burden was placed on respondents, rather than on the prosecution, to prove their affirmative defenses by a preponderance of the evidence, the risk of convicting the innocent is even greater than in Justice Harlan's example. And if this allocation of the burden of proof was erroneous, then that error constitutes a denial of due process of intolerable proportions. We have recognized the truth of this proposition in numerous precedents. In Ivan V. v. City of New York, 407 U.S. 203 (1972), we held our earlier decision in Winship to be fully retroactive, stating: " `Where the major purpose of a new constitutional doctrine is to overcome an aspect of a criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.' Williams v. United States, 401 U.S. 646, 653 (1971). See Adams v. Illinois, 405 U.S. 278, 280 (1972); Roberts v. Russell, 392 U.S. 293, 295 (1968)." 407 U.S., at 204 (emphasis added).[15] In sum, this Court has heretofore adhered to the principle that "[i]n the administration of criminal justice, our society imposes almost the entire risk of error upon itself," because "the interests of the defendant are of such magnitude." Addington v. Texas, 441 U.S. 418, 423-424 (1979). In the *151 context of the cases before us today, this principle means that a habeas claim that a mistake was made in imposing that risk of error cannot be cavalierly dismissed as just another "type of claim raised by the prisoner," ante, at 129. In my view, the Sykes standard is misguided and insupportable in any context. But if it is to be suffered to exist at all, it should be limited to the arguable peripheries of the trial process: It should not be allowed to insulate from all judicial review all violations of the most fundamental rights of the accused. I dissent.

Today's decision is a conspicuous exercise in judicial activism — particularly so since it takes the form of disregard of precedent scarcely a month old. In its eagerness to expatiate upon the "significant costs" of the Great Writ, ante, at 126-128, and to apply "the principles articulated in ]," ante, at 123, to the cases before us, the Court demonstrably misreads and reshapes the habeas claim of at least one of the state prisoners involved in this action. Respondent Isaac presented exactly one claim in his habeas petition. That claim did not even *138 exist until after Isaac was denied relief on his last direct appeal. As a result, Isaac could not have "preserved" his claim in the state courts: He simply committed no "procedural default," and the Court is thus clearly wrong to apply to his claim in order to relegate it to the dustbin. Moreover, the Court does so by ignoring the holding only last month in : namely, that a habeas petition that contains any unexhausted claims must be dismissed by the habeas court. The Court then compounds its error when it attempts to articulate the "principles" of : In purporting to give content to the "cause" standard announced in that case, the Court defines "cause" in a way supported neither by nor by common sense. I dissent from both of these errors, which are discussed in turn below. I Respondent Isaac was indicted in May 1975; he was convicted after a jury trial and sentenced during the following September.[1] While his conviction was on appeal in the Ohio Court of Appeals, the Ohio Supreme Court decided which construed (A) to require the prosecution to bear the burden of persuasion, beyond a reasonable doubt, with respect to an affirmative defense of self-defense raised by the defendant. The Ohio Court of Appeals affirmed Isaac's conviction in February 1977.[2] The Ohio Supreme Court dismissed Isaac's appeal in July 1977.[3] On the same day, the Ohio Supreme Court decided That case declared Robinson retroactive to the effective date of 2901.05(A), but only partially: It held that in order to gain the retroactive benefits of the Robinson *139 decision, a defendant tried before a jury must have preserved his claim by objection at trial to the allocation of the affirmative-defense burden of proof, while a bench-trial defendant could have made the same objection as late as in the Court of Appeals, and the objection would still have been preserved. Isaac filed his habeas petition in the United States District Court for the Southern District of Ohio in March 1978.[4] The asserted ground for relief was "denial of due process of law," in that "[t]he trial court charged petitioner had the burden of proving self-defense. After conviction and during the first appeal the Ohio Supreme Court declared the instructions to be prejudicial error under Robinson. This case was immediately raised to the Appellate Court. They held any error was waived. The Ohio Supreme Court then held Robinson retroactive. Petitioner had raised retroactivity in its leave to appeal and was denied leave to appeal the same day Humphries was decided declaring retroactivity. The Ohio Supreme Court refuses to give relief despite its own pronouncement. The holding of the court is contrary to the Supreme Court of the United States in regard to proving self-defense."[5] Isaac's memorandum in support of his habeas petition made it plain that his claim was that Humphries' selective retroactive application of the Robinson rule denied him due process of law.[6] It is obvious, of course, that it was simply impossible *140 to make this claim before Humphries was decided, in July 1977, on the same day that Isaac's direct appeals in the state court system were finally rejected. Ohio Rev. Code Ann. 3.21(A) (1975) provides for postconviction relief under certain circumstances: "Any person convicted of a criminal offense claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a verified petition at any time in the court which imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief." By applying the doctrine of res judicata to postconviction petitions, the Ohio Supreme Court has allowed relief under this procedure only under limited circumstances: Constitutional issues can be raised under 3.21(A) only when they could not have been raised at trial or on appeal. ; see ; But Isaac's claim is manifestly of the sort that could not have been raised at trial or an appeal, for the claim only came into existence on the day that Isaac's last appeal was rejected. Consequently, state postconviction remedies are available to Isaac and have not been exhausted. I draw three conclusions from the foregoing account, all of which to my mind follow ineluctably from the undisputed facts of this case. First, Isaac's habeas petition should have been dismissed for his failure to exhaust available state remedies. See where we emphasized that "the federal claim must be fairly presented to the state courts. Only if the state courts have had the first *141 opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies." In the present case, petitioner Engle responded to Isaac's petition by raising the issue of Isaac's failure to exhaust.[7] Therefore the Court of Appeals clearly erred, under Picard and our whole line of exhaustion precedents, in granting habeas relief to Isaac instead of requiring exhaustion. The proper disposition of Isaac's case is thus to reverse and remand with instructions to dismiss on exhaustion grounds. The Court's failure to order such a disposition is incomprehensible: Barely a month ago this Court emphatically reaffirmed the exhaustion doctrine, and indeed extended it, announcing a requirement of "total exhaustion" for habeas petitions.[8] But today the Court finds the nostrum of "cause and prejudice" more attractive, and so is not applied. Sic transit gloria Lundy! In scarcely a month, the bloom is off the Rose.[9] My second conclusion is that Isaac simply committed no "procedural default" in failing to raise at trial or on direct appeal the claim that appears in his habeas petition. That claim did not exist at any time during Isaac's trial or direct appeal. Thus the essential factual predicate for an application of is completely *142 absent in Isaac's case. involved a habeas petitioner who had failed to object in a timely manner to the admission of his confession at trial. Given that factual predicate, addressed the question of whether federal habeas review should be barred absent a showing of "cause" for the procedural default of failing to object, and a further showing of "prejudice" resulting from the admission of the confession. But in the case before us, respondent Isaac could not have made any objection, timely or otherwise, at trial or on appeal. Thus the application of is completely and manifestly erroneous in this case.[10] My last conclusion is that the Court is so intent upon applying to Isaac's case that it plays Procrustes with his claim. In order to bring Isaac's claim within the ambit of the Court first characterizes his petition as "complex," ante, at 117, and "confused," ante, at 124, n. 25.[11] Then, *143 without ever quoting the claim as it actually appeared in Isaac's petition, the Court delineates a "colorable constitutional claim" nowhere to be found in the petition. As the Court recasts it, Isaac's claim is as follows: "[T]he crim[e] charged against [Isaac] require[s] a showing of purposeful or knowing behavior. These terms, according to [Isaac], imply a degree of culpability that is absent when a person acts in self-defense. Selfdefense, [Isaac] urge[s], negates [essential] elements of criminal behavior. Therefore, once the defendant raises the possibility of self-defense, [Isaac] contend[s] that the State must disprove that defense as part of its task of establishing guilty mens rea, voluntariness, and unlawfulness. The Due Process Clause, according to [Isaac's] interpretation of Winship, Mullaney, and Patterson, forbids the States to disavow any portion of this burden." Ante, at 121-122. This new-modeled claim bears no resemblance to the claim actually made by Isaac in his habeas petition. See[12] But by virtue of this exercise in juristic revisionism, the Court puts itself in position to find that "Isaac's" claim was "forfeited before the state courts," ante, at 125 — no difficult task, since the claim is wholly imagined by the Court itself — thus enabling the Court to reach its clearly sought goal of deciding "whether the principles articulated in bar consideration of the claim in a federal habeas proceeding." Ante, at 123. Unsurprisingly, the Court's bottom line is that Isaac's fictive claim is indeed barred by In short, the Court reshapes respondent Isaac's actual claim into a form that enables it to foreclose all federal review, when as plainly pleaded the claim was unexhausted, thus calling for the dismissal of Isaac's petition *144 for habeas relief. The Court's analysis is completely result-oriented, and represents a noteworthy exercise in the very judicial activism that the Court so deprecates in other contexts. II For the reasons stated above, I conclude that in its unseemly rush to reach the merits of Isaac's case, the Court has ignored settled law respecting the exhaustion of state remedies. But lest it be thought that my disagreement with today's decision is confined to that point alone, I turn to the Court's treatment of the merits of the cases before us. I continue to believe that the "deliberate bypass" standard announced in is the only sensible rule to apply in habeas cases such as respondents'. I adhere to my dissent in in which I termed the "cause-and-prejudice" standard adopted in that case "a mere house of cards whose foundation has escaped any systematic inspection." -100, n. 1. The Court has now began to furnish its house of cards — and the furniture is as jerry-built as the house itself. A did not give the terms "cause" and "prejudice" any "precise content," but promised that "later cases" would provide such content. Today the nature of that content becomes distressingly apparent. The Court still refuses to say what "cause" is: And I predict that on the Court's present view it will prove easier for a camel to go through the eye of a needle than for a state prisoner to show "cause." But on the other hand, the Court is more than eager to say what "cause" is not: And in doing so, the Court is supported neither by common sense nor by the very reasons offered in for adoption of the "cause-and-prejudice" standard in the first place. According to the Court, "cause" is not demonstrated when the Court "cannot say that [habeas petitioners] lacked the *145 tools to construct their constitutional claim," ante, at 133, however primitive those tools were and thus however inchoate the claim was when petitioners were in the state courts. The Court concludes, after several pages of tortuous reasoning, ante, at 130-133, and nn. 36-42, that respondents in the present cases did indeed have "the tools" to make their constitutional claims. This conclusion is reached by the sheerest inference: It is based on citations to other cases in other jurisdictions, where other defendants raised other claims assertedly similar to those that respondents "could" have raised. Ante, at 131-133, and n. 40. To hold the present respondents to such a high standard of foresight is tantamount to a complete rejection of the notion that there is a point before which a claim is so inchoate that there is adequate "cause" for the failure to raise it. In thus rejecting inchoateness as "cause," the Court overlooks the fact that none of the rationales used in to justify adoption of the cause-and-prejudice standard can justify today's definition of "cause." adopted the cause-and-prejudice standard in order to accord "greater respect" to state contemporaneous-objection rules than was assertedly given by The Court then offered a number of reasons why contemporaneous-objection rules should be given such greater respect: (1) "A contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding." (2) A contemporaneous objection "enables the judge who observed the demeanor of those witnesses to make the factual determinations necessary for properly deciding the federal constitutional question." (3) "A contemporaneous-objection rule may lead to the exclusion of evidence objected to, thereby making a major contribution to finality in criminal litigation." *146 (4) The rule "may encourage `sandbagging' on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off." (5) A contemporaneous-objection rule "encourages the result that [criminal trials] be as free of error as possible." None of these rationales has any force in the present case. The first three reasons are valid, if at all, only in the particular context of objections to the admission of evidence, such as were at issue in As for the "sandbagging" rationale, dutifully repeated by today's Court, ante, at 129, n. 34, that was fully answered in my dissent:[13] That argument still "offends common sense," and does not become less offensive by sententious repetition. And the final reason — relied on again today, ante, at 127 — is plainly irrelevant to a case involving inchoate constitutional claims. Such claims are exhypothesis so embryonic that only the extraordinarily foresighted criminal defendant will raise them. It is completely implausible to expect that the raising of such claims will predictably — or even occasionally — make trials more "free of error." B The Court justifies its result today with several additional reasons — or, rather, sentiments in reasons' clothing. We are told, ante, at 126-127, that "the Great Writ entails significant *147 costs. Collateral review of a conviction extends the ordeal of trial for both society and the accused." But we are not told why the accused would consider it an "ordeal" to go to federal court in order to attempt to vindicate his constitutional rights. Nor are we told why society should be eager to ensure the finality of a conviction arguably tainted by unreviewed constitutional error directly affecting the truthfinding function of the trial. I simply fail to understand how allowance of a habeas hearing "entails significant costs" to anyone under the circumstances of the cases before us. In a similar vein, we are told, ante, at 127, that "[w]e must also acknowledge that writs of habeas corpus frequently cost society the right to punish admitted offenders." I for one will acknowledge nothing of the sort. Respondents were all convicted after trials in which they allege that the burden of proof respecting their affirmative defenses was imposed upon them in an unconstitutional manner. Thus they are not "admitted" offenders at all: If they had been tried with the assertedly proper allocation of the burden of proof, then they might very well have been acquitted. Further, it is sheer demagoguery to blame the "offender" for the logistical and temporal difficulties arising from retrial: If the writ of habeas *148 corpus has been granted, then it is at least as reasonable to blame the State for having prosecuted the first trial "in violation of the Constitution or laws of the United States," 28 U.S. C. 2254(a). Finally, we are told that "the Great Writ imposes special costs on our federal system"; that "[f]ederal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights," ante, at 128; and that "[s]tate courts are understandably frustrated when they faithfully apply existing constitutional law only to have a federal court discover, during a 2254 proceeding, new constitutional commands." Ante, at 128, n. 33. Once again, the Court drags a red herring across its path. I hope that the Court forgets only momentarily that "the States' sovereign power" is limited by the Constitution of the United States: that the "intrusion" complained of is that of the supreme law of the land. But it must be reason for deep concern when this Court forgets, as it certainly does today, that "it is a constitution we are expounding, a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs."[14] It is inimical to the principle of federal constitutional supremacy to defer to state courts' "frustration" at the requirements of federal constitutional law as it is interpreted in an evolving society. promised that its cause-and-prejudice standard would "not prevent a federal habeas court from adjudicating for the first time the federal constitutional claim of a defendant who in the absence of such an adjudication will be the victim of a miscarriage of justice." 433 U.S., Today's decision, with its unvarnished hostility to the assertion of federal constitutional claims, starkly reveals the emptiness of that promise. *149 C Finally, there is the issue of the Court's extension of the standard "to cases in which the constitutional error. affect[s] the truthfinding function of the trial." Ante, at 129. The Court concedes, ibid., that itself involved the violation of the habeas petitioner's Miranda rights, and that although "this defect was serious, it did not affect the determination of guilt at trial." But despite the fact that the present cases admittedly do involve a defect affecting the determination of guilt, the Court refuses to limit and thus bars federal review: "We do not believe that the principles of lend themselves to this limitation." Ante, at 129. In so holding, the Court ignores the manifest differences between claims that affect the truthfinding function of the trial and claims that do not. The Court proclaimed in that "the ultimate question of guilt or innocence. should be the central concern in a criminal proceeding." A defendant's Fourth Amendment rights, see Stone, or his Miranda rights, see may arguably be characterized as "crucially different from many other constitutional rights," in that evidence procured in violation of those rights has not ordinarily been rendered untrustworthy by the means of its procurement. But a defendant's right to a trial at which the burden of proof has been constitutionally allocated can never be violated without rendering the entire trial result untrustworthy. "In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome," and petitioners in the present cases concede as much, Brief for Petitioners 22. As Justice Harlan noted in In re Winship, : "If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk *150 of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent." Where, as here, the burden was placed on respondents, rather than on the prosecution, to prove their affirmative defenses by a preponderance of the evidence, the risk of convicting the innocent is even greater than in Justice Harlan's example. And if this allocation of the burden of proof was erroneous, then that error constitutes a denial of due process of intolerable proportions. We have recognized the truth of this proposition in numerous precedents. In Ivan V. v. City of New York, we held our earlier decision in Winship to be fully retroactive, stating: " `Where the major purpose of a new constitutional doctrine is to overcome an aspect of a criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.' See ;"[15] In sum, this Court has heretofore adhered to the principle that "[i]n the administration of criminal justice, our society imposes almost the entire risk of error upon itself," because "the interests of the defendant are of such magnitude." In the *151 context of the cases before us today, this principle means that a habeas claim that a mistake was made in imposing that risk of error cannot be cavalierly dismissed as just another "type of claim raised by the prisoner," ante, at 129. In my view, the standard is misguided and insupportable in any context. But if it is to be suffered to exist at all, it should be limited to the arguable peripheries of the trial process: It should not be allowed to insulate from all judicial review all violations of the most fundamental rights of the accused. I dissent.

Justice Stevens

majority

Summit Health, Ltd. v. Pinhas

https://www.courtlistener.com/opinion/112599/summit-health-ltd-v-pinhas/

https://www.courtlistener.com/api/rest/v3/clusters/112599/

1990-083

The question presented is whether the interstate commerce requirement of antitrust jurisdiction is satisfied by allegations that petitioners conspired to exclude respondent, a duly licensed and practicing physician and surgeon, from the market for ophthalmological services in Los Angeles because he refused to follow an unnecessarily costly surgical procedure. In 1987, respondent Dr. Simon J. Pinhas filed a complaint in District Court alleging that petitioners Summit Health, Ltd. (Summit), Midway Hospital Medical Center (Midway), its medical staff, and others had entered into a conspiracy to drive him out of business "so that other ophthalmologists and eye physicians [including four of the petitioners] will have a greater share of the eye care and ophthalmic surgery in Los *325 Angeles." App. 39. Among his allegations was a claim that the conspiracy violated § 1 of the Sherman Act.[1] The District Court granted defendants' (now petitioners') motion to dismiss the First Amended Complaint (complaint) without leave to amend, App. 315, but the United States Court of Appeals for the Ninth Circuit reinstated the antitrust claim. 894 F.2d 1024 (1989).[2] We granted certiorari, 496 U.S. 935 (1990), to consider petitioners' contention that the complaint fails to satisfy the jurisdictional requirements of the Sherman Act, as interpreted in McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232 (1980), because it does not describe a factual nexus between the alleged boycott and interstate commerce. I Because this case comes before us from the granting of a motion to dismiss on the pleadings, we must assume the truth of the material facts as alleged in the complaint. Respondent, a diplomate of the American Board of Ophthalmology, has earned a national and international reputation as a specialist in corneal eye problems. App. 7. Since October 1981, he has been a member of the staff of Midway in Los Angeles, and because of his special skills, has performed more eye surgical procedures, including cornea transplants and cataract removals, than any other surgeon at the hospital. Ibid.[3] *326 Prior to 1986, most eye surgeries in Los Angeles were performed by a primary surgeon with the assistance of a second surgeon. Id., at 8. This practice significantly increased the cost of eye surgery. In February of that year, the administrators of the Medicare program announced that they would no longer reimburse physicians for the services of assistants, and most hospitals in southern California abolished the assistant surgeon requirement. Respondent, and certain other ophthalmologists, asked Midway to abandon the requirement, but the medical staff refused to do so. Ibid. Respondent explained that because Medicare reimbursement was no longer available, the requirement would cost him about $60,000 per year in payments to competing surgeons for assistance that he did not need. Id., at 9. Although respondent expressed a desire to maintain the preponderance of his practice at Midway, he nevertheless advised the hospital that he would leave if the assistant surgeon requirement were not eliminated. Ibid. Petitioners responded to respondent's request to forgo an assistant in two ways. First, Midway and its corporate parent offered respondent a "sham" contract that provided for payments of $36,000 per year (later increased by oral offer to $60,000) for services that he would not be asked to perform. Ibid. Second, when respondent refused to sign or return the "sham" contract, petitioners initiated peer review proceedings against him and summarily suspended, and subsequently terminated, his medical staff privileges.[4]Id., at 10. The *327 proceedings were conducted in an unfair manner by biased decisionmakers, and ultimately resulted in an order upholding one of seven charges against respondent, and imposing severe restrictions on his practice.[5] When this action was commenced, petitioners were preparing to distribute an adverse report[6] about respondent that would "preclude him from continued competition in the market place, not only at defendant Midway Hospital [but also] . . . in California, if not the United States." Id., at 40. The defendants allegedly planned to disseminate the report "to all hospitals which Dr. Pinhas is a member [sic], and to all hospitals to which he may apply so as to secure similar actions by those hospitals, thus effectuating a boycott of Dr. Pinhas." Ibid. The complaint alleges that petitioner Summit owns and operates 19 hospitals, including Midway, and 49 other health care facilities in California, six other States, and Saudia Arabia. Id., at 3. Summit, Midway, and each of the four ophthalmic surgeons named as individual defendants, as well as respondent, are all allegedly engaged in interstate commerce. The provision of ophthalmological services affects interstate commerce because both physicians and hospitals serve nonresident patients and receive reimbursement through Medicare payments. Reports concerning peer review proceedings are routinely distributed across *328 state lines and affect doctors' employment opportunities throughout the Nation. In the Court of Appeals, petitioners defended the District Court's dismissal of the complaint on the ground that there was no allegation that interstate commerce would be affected by respondent's removal from the Midway medical staff. The Court of Appeals rejected this argument because "`as a matter of practical economics'" the hospital's "peer review process in general" obviously affected interstate commerce. 894 F.2d, at 1032 (citation omitted). The court added: "Pinhas need not, as appellees apparently believe, make the more particularized showing of the effect on interstate commerce caused by the alleged conspiracy to keep him from working. [McLain v. Real Estate Bd. of New Orleans, Inc., 444 U. S., at 242-243]. He need only prove that peer-review proceedings have an effect on interstate commerce, a fact that can hardly be disputed. The proceedings affect the entire staff at Midway and thus affect the hospital's interstate commerce. Appellees' contention that Pinhas failed to allege a nexus with interstate commerce because the absence of Pinhas's services will not drastically affect the interstate commerce of Midway therefore misses the mark and must be rejected." Ibid. II Congress enacted the Sherman Act in 1890.[7] During the past century, as the dimensions and complexity of our economy have grown, the federal power over commerce, and the concomitant coverage of the Sherman Act, have experienced *329 similar expansion.[8] This history has been recounted before,[9] and we need not reiterate it today.[10] We therefore begin by noting certain propositions that are undisputed in this case. Petitioner Summit, the parent of Midway as well as of several other general hospitals, is unquestionably engaged in interstate commerce. Moreover, although Midway's primary activity is the provision of health care services in a local market, it also engages in interstate commerce. A conspiracy to prevent Midway from expanding would be covered by the Sherman Act, even though any actual impact on interstate commerce would be "`indirect'" and "`fortuitous.'" Hospital Building Co. v. Rex Hospital Trustees, 425 U.S. 738, 744 (1976). No specific purpose to restrain interstate commerce is required. Id., at 745. As a "matter of practical economics," ibid., the effect of such a conspiracy on the hospital's "purchases of out-of-state medicines and supplies as well as its revenues from out-of-state insurance companies," id., at 744, would establish the necessary interstate nexus. This case does not involve the full range of activities conducted at a general hospital. Rather, this case involves the provision of ophthalmological services. It seems clear, however, that these services are regularly performed for out-of-state *330 patients and generate revenues from out-of-state sources; their importance as part of the entire operation of the hospital is evident from the allegations of the complaint. A conspiracy to eliminate the entire ophthalmological department of the hospital, like a conspiracy to destroy the hospital itself, would unquestionably affect interstate commerce. Petitioners contend, however, that a boycott of a single surgeon has no such obvious effect because the complaint does not deny the existence of an adequate supply of other surgeons to perform all of the services that respondent's current and future patients may ever require. Petitioners argue that respondent's complaint is insufficient because there is no factual nexus between the restraint on this one surgeon's practice and interstate commerce. There are two flaws in petitioners' argument. First, because the essence of any violation of § 1 is the illegal agreement itself—rather than the overt acts performed in furtherance of it, see United States v. Kissel, 218 U.S. 601 (1910)—proper analysis focuses, not upon actual consequences, but rather upon the potential harm that would ensue if the conspiracy were successful. As we explained in McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232 (1980): "If establishing jurisdiction required a showing that the unlawful conduct itself had an effect on interstate commerce, jurisdiction would be defeated by a demonstration that the alleged restraint failed to have its intended anticompetitive effect. This is not the rule of our cases. See American Tobacco Co. v. United States, 328 U.S. 781, 811 (1946); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 225, n. 59 (1940). A violation may still be found in such circumstances because in a civil action under the Sherman Act, liability may be established by proof of either an unlawful purpose or an anticompetitive effect. United States v. United States Gypsum Co., 438 U.S. 422, 436, n. 13 (1978); see United *331 States v. Container Corp., 393 U.S. 333, 337 (1969); United States v. National Assn. of Real Estate Boards, 339 U.S. 485, 489 (1950); United States v. Socony-Vacuum Oil Co., supra, at 224-225, n. 59." Id., at 243. Thus, respondent need not allege, or prove, an actual effect on interstate commerce to support federal jurisdiction.[11] Second, if the conspiracy alleged in the complaint is successful, "`as a matter of practical economics'" there will be a reduction in the provision of ophthalmological services in the Los Angeles market. McLain, 444 U. S., at 246 (quoting Hospital Building Co. v. Rex Hospital Trustees, 425 U. S., at 745). In cases involving horizontal agreements to fix prices or allocate territories within a single State, we have based jurisdiction on a general conclusion that the defendants' agreement "almost surely" had a marketwide impact and therefore an effect on interstate commerce, Burke v. Ford, 389 U.S. 320, 322 (1967) (per curiam), or that the agreement "necessarily affect[ed]" the volume of residential sales and therefore the demand for financing and title insurance provided by out-of-state concerns. McLain, 444 U. S., at 246. In the latter case, we explained: "To establish the jurisdictional element of a Sherman Act violation it would be sufficient for petitioners to demonstrate a substantial effect on interstate commerce generated by respondents' brokerage activity. Petitioners need not make the more particularized showing of an effect on interstate commerce caused by the alleged conspiracy to fix commission rates, or by those other aspects of respondents' activity that are alleged to be unlawful." Id., at 242-243. *332 Although plaintiffs in McLain were consumers of the conspirators' real estate brokerage services, and plaintiff in this case is a competing surgeon whose complaint identifies only himself as the victim of the alleged boycott, the same analysis applies. For if a violation of the Sherman Act occurred, the case is necessarily more significant than the fate of "just one merchant whose business is so small that his destruction makes little difference to the economy." Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 213 (1959) (footnote omitted). The case involves an alleged restraint on the practice of ophthalmological services. The restraint was accomplished by an alleged misuse of a congressionally regulated peer review process,[12] which respondent characterizes as the gateway that controls access to the market for his services. The gateway was closed to respondent, both at Midway and at other hospitals, because petitioners insisted upon adhering to an unnecessarily costly procedure. The competitive significance of respondent's exclusion from the market must be measured, not just by a particularized evaluation of his own practice, but rather, by a general evaluation of the impact of the restraint on other participants and potential participants in the market from which he has been excluded. We have no doubt concerning the power of Congress to regulate a peer review process controlling access to the *333 market for ophthalmological surgery in Los Angeles. Thus, respondent's claim that members of the peer review committee conspired with others to abuse that process and thereby deny respondent access to the market for ophthalmological services provided by general hospitals in Los Angeles has a sufficient nexus with interstate commerce to support federal jurisdiction. The judgment of the Court of Appeals is affirmed. It is so ordered.

The question presented is whether the interstate commerce requirement of antitrust jurisdiction is satisfied by allegations that petitioners conspired to exclude respondent, a duly licensed and practicing physician and surgeon, from the market for ophthalmological services in Los Angeles because he refused to follow an unnecessarily costly surgical procedure. In 1987, respondent Dr. Simon J. Pinhas filed a complaint in District Court alleging that petitioners Summit Health, Ltd. (Summit), Midway Hospital Medical Center (Midway), its medical staff, and others had entered into a conspiracy to drive him out of business "so that other ophthalmologists and eye physicians [including four of the petitioners] will have a greater share of the eye care and ophthalmic surgery in Los *325 Angeles." App. 39. Among his allegations was a claim that the conspiracy violated 1 of the Sherman Act.[1] The District Court granted defendants' (now petitioners') motion to dismiss the First Amended Complaint (complaint) without leave to amend, App. 315, but the United States Court of Appeals for the Ninth Circuit reinstated the antitrust claim.[2] We granted certiorari, to consider petitioners' contention that the complaint fails to satisfy the jurisdictional requirements of the Sherman Act, as interpreted in because it does not describe a factual nexus between the alleged boycott and interstate commerce. I Because this case comes before us from the granting of a motion to dismiss on the pleadings, we must assume the truth of the material facts as alleged in the complaint. Respondent, a diplomate of the American Board of Ophthalmology, has earned a national and international reputation as a specialist in corneal eye problems. App. 7. Since October 1981, he has been a member of the staff of Midway in Los Angeles, and because of his special skills, has performed more eye surgical procedures, including cornea transplants and cataract removals, than any other surgeon at the hospital. [3] *326 Prior to 1986, most eye surgeries in Los Angeles were performed by a primary surgeon with the assistance of a second surgeon. This practice significantly increased the cost of eye surgery. In February of that year, the administrators of the Medicare program announced that they would no longer reimburse physicians for the services of assistants, and most hospitals in southern California abolished the assistant surgeon requirement. Respondent, and certain other ophthalmologists, asked Midway to abandon the requirement, but the medical staff refused to do so. Respondent explained that because Medicare reimbursement was no longer available, the requirement would cost him about $60,000 per year in payments to competing surgeons for assistance that he did not need. Although respondent expressed a desire to maintain the preponderance of his practice at Midway, he nevertheless advised the hospital that he would leave if the assistant surgeon requirement were not eliminated. Petitioners responded to respondent's request to forgo an assistant in two ways. First, Midway and its corporate parent offered respondent a "sham" contract that provided for payments of $36,000 per year (later increased by oral offer to $60,000) for services that he would not be asked to perform. Second, when respondent refused to sign or return the "sham" contract, petitioners initiated peer review proceedings against him and summarily suspended, and subsequently terminated, his medical staff privileges.[4] at 10. The *327 proceedings were conducted in an unfair manner by biased decisionmakers, and ultimately resulted in an order upholding one of seven charges against respondent, and imposing severe restrictions on his practice.[5] When this action was commenced, petitioners were preparing to distribute an adverse report[6] about respondent that would "preclude him from continued competition in the market place, not only at defendant Midway Hospital [but also] in California, if not the United States." The defendants allegedly planned to disseminate the report "to all hospitals which Dr. Pinhas is a member [sic], and to all hospitals to which he may apply so as to secure similar actions by those hospitals, thus effectuating a boycott of Dr. Pinhas." The complaint alleges that petitioner Summit owns and operates 19 hospitals, including Midway, and 49 other health care facilities in California, six other States, and Saudia Arabia. Summit, Midway, and each of the four ophthalmic surgeons named as individual defendants, as well as respondent, are all allegedly engaged in interstate commerce. The provision of ophthalmological services affects interstate commerce because both physicians and hospitals serve nonresident patients and receive reimbursement through Medicare payments. Reports concerning peer review proceedings are routinely distributed across *328 state lines and affect doctors' employment opportunities throughout the Nation. In the Court of Appeals, petitioners defended the District Court's dismissal of the complaint on the ground that there was no allegation that interstate commerce would be affected by respondent's removal from the Midway medical staff. The Court of Appeals rejected this argument because "`as a matter of practical economics'" the hospital's "peer review process in general" obviously affected interstate commerce. The court added: "Pinhas need not, as appellees apparently believe, make the more particularized showing of the effect on interstate commerce caused by the alleged conspiracy to keep him from working. [, -243]. He need only prove that peer-review proceedings have an effect on interstate commerce, a fact that can hardly be disputed. The proceedings affect the entire staff at Midway and thus affect the hospital's interstate commerce. Appellees' contention that Pinhas failed to allege a nexus with interstate commerce because the absence of Pinhas's services will not drastically affect the interstate commerce of Midway therefore misses the mark and must be rejected." II Congress enacted the Sherman Act in 1890.[7] During the past century, as the dimensions and complexity of our economy have grown, the federal power over commerce, and the concomitant coverage of the Sherman Act, have experienced *329 similar expansion.[8] This history has been recounted before,[9] and we need not reiterate it today.[10] We therefore begin by noting certain propositions that are undisputed in this case. Petitioner Summit, the parent of Midway as well as of several other general hospitals, is unquestionably engaged in interstate commerce. Moreover, although Midway's primary activity is the provision of health care services in a local market, it also engages in interstate commerce. A conspiracy to prevent Midway from expanding would be covered by the Sherman Act, even though any actual impact on interstate commerce would be "`indirect'" and "`fortuitous.'" Hospital Building No specific purpose to restrain interstate commerce is required. As a "matter of practical economics," ib the effect of such a conspiracy on the hospital's "purchases of out-of-state medicines and supplies as well as its revenues from out-of-state insurance companies," at would establish the necessary interstate nexus. This case does not involve the full range of activities conducted at a general hospital. Rather, this case involves the provision of ophthalmological services. It seems clear, however, that these services are regularly performed for out-of-state *330 patients and generate revenues from out-of-state sources; their importance as part of the entire operation of the hospital is evident from the allegations of the complaint. A conspiracy to eliminate the entire ophthalmological department of the hospital, like a conspiracy to destroy the hospital itself, would unquestionably affect interstate commerce. Petitioners contend, however, that a boycott of a single surgeon has no such obvious effect because the complaint does not deny the existence of an adequate supply of other surgeons to perform all of the services that respondent's current and future patients may ever require. Petitioners argue that respondent's complaint is insufficient because there is no factual nexus between the restraint on this one surgeon's practice and interstate commerce. There are two flaws in petitioners' argument. First, because the essence of any violation of 1 is the illegal agreement itself—rather than the overt acts performed in furtherance of it, see United —proper analysis focuses, not upon actual consequences, but rather upon the potential harm that would ensue if the conspiracy were successful. As we explained in : "If establishing jurisdiction required a showing that the unlawful conduct itself had an effect on interstate commerce, jurisdiction would be defeated by a demonstration that the alleged restraint failed to have its intended anticompetitive effect. This is not the rule of our cases. See American Tobacco ; United A violation may still be found in such circumstances because in a civil action under the Sherman Act, liability may be established by proof of either an unlawful purpose or an anticompetitive effect. United ; see United *331 ; United ; United at 224-." Thus, respondent need not allege, or prove, an actual effect on interstate commerce to support federal jurisdiction.[11] Second, if the conspiracy alleged in the complaint is successful, "`as a matter of practical economics'" there will be a reduction in the provision of ophthalmological services in the Los Angeles market. (quoting Hospital Building 425 U. S., ). In cases involving horizontal agreements to fix prices or allocate territories within a single State, we have based jurisdiction on a general conclusion that the defendants' agreement "almost surely" had a marketwide impact and therefore an effect on interstate commerce, or that the agreement "necessarily affect[ed]" the volume of residential sales and therefore the demand for financing and title insurance provided by out-of-state concerns. In the latter case, we explained: "To establish the jurisdictional element of a Sherman Act violation it would be sufficient for petitioners to demonstrate a substantial effect on interstate commerce generated by respondents' brokerage activity. Petitioners need not make the more particularized showing of an effect on interstate commerce caused by the alleged conspiracy to fix commission rates, or by those other aspects of respondents' activity that are alleged to be unlawful." *332 Although plaintiffs in were consumers of the conspirators' real estate brokerage services, and plaintiff in this case is a competing surgeon whose complaint identifies only himself as the victim of the alleged boycott, the same analysis applies. For if a violation of the Sherman Act occurred, the case is necessarily more significant than the fate of "just one merchant whose business is so small that his destruction makes little difference to the economy." Klor's, v. Broadway-Hale Stores, The case involves an alleged restraint on the practice of ophthalmological services. The restraint was accomplished by an alleged misuse of a congressionally regulated peer review process,[12] which respondent characterizes as the gateway that controls access to the market for his services. The gateway was closed to respondent, both at Midway and at other hospitals, because petitioners insisted upon adhering to an unnecessarily costly procedure. The competitive significance of respondent's exclusion from the market must be measured, not just by a particularized evaluation of his own practice, but rather, by a general evaluation of the impact of the restraint on other participants and potential participants in the market from which he has been excluded. We have no doubt concerning the power of Congress to regulate a peer review process controlling access to the *333 market for ophthalmological surgery in Los Angeles. Thus, respondent's claim that members of the peer review committee conspired with others to abuse that process and thereby deny respondent access to the market for ophthalmological services provided by general hospitals in Los Angeles has a sufficient nexus with interstate commerce to support federal jurisdiction. The judgment of the Court of Appeals is affirmed. It is so ordered.

Justice Brennan

concurring

Bethel School Dist. No. 403 v. Fraser

https://www.courtlistener.com/opinion/111754/bethel-school-dist-no-403-v-fraser/

https://www.courtlistener.com/api/rest/v3/clusters/111754/

1985-160

Respondent gave the following speech at a high school assembly in support of a candidate for student government office: " `I know a man who is firm — he's firm in his pants, he's firm in his shirt, his character is firm — but most . . . of all, his belief in you, the students of Bethel, is firm. " `Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts — he drives hard, pushing and pushing until finally — he succeeds. " `Jeff is a man who will go to the very end — even the climax, for each and every one of you. " `So vote for Jeff for A. S. B. vice-president — he'll never come between you and the best our high school can be.' " App. 47. The Court, referring to these remarks as "obscene," "vulgar," "lewd," and "offensively lewd," concludes that school officials properly punished respondent for uttering the speech. Having read the full text of respondent's remarks, I find it difficult to believe that it is the same speech the Court describes. To my mind, the most that can be said about respondent's speech — and all that need be said — is that in light of the discretion school officials have to teach high school students how to conduct civil and effective public discourse, and to prevent disruption of school educational activities, it was *688 not unconstitutional for school officials to conclude, under the circumstances of this case, that respondent's remarks exceeded permissible limits. Thus, while I concur in the Court's judgment, I write separately to express my understanding of the breadth of the Court's holding. The Court today reaffirms the unimpeachable proposition that students do not " `shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' " Ante, at 680 (quoting Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969)). If respondent had given the same speech outside of the school environment, he could not have been penalized simply because government officials considered his language to be inappropriate, see Cohen v. California, 403 U.S. 15 (1971); the Court's opinion does not suggest otherwise.[1] Moreover, despite the Court's characterizations, the language respondent used is far removed from the very narrow class of "obscene" speech which the Court has held is not protected by the First Amendment. Ginsberg v. New York, 390 U.S. 629, 635 (1968); Roth v. United States, 354 U.S. 476, 485 (1957). It is true, however, that the State has interests in teaching high school students how to conduct civil and effective public discourse and in avoiding disruption of educational school activities. Thus, the Court holds that under certain circumstances, high school students may properly be reprimanded for giving a speech at a high school assembly which school officials conclude disrupted the school's educational *689 mission.[2] Respondent's speech may well have been protected had he given it in school but under different circumstances, where the school's legitimate interests in teaching and maintaining civil public discourse were less weighty. In the present case, school officials sought only to ensure that a high school assembly proceed in an orderly manner. There is no suggestion that school officials attempted to regulate respondent's speech because they disagreed with the views he sought to express. Cf. Tinker, supra. Nor does this case involve an attempt by school officials to ban written materials they consider "inappropriate" for high school students, cf. Board of Education v. Pico, 457 U.S. 853 (1982), or to limit what students should hear, read, or learn about. Thus, the Court's holding concerns only the authority that school officials have to restrict a high school student's use of disruptive language in a speech given to a high school assembly. The authority school officials have to regulate such speech by high school students is not limitless. See Thomas v. Board of Education, Granville Central School Dist., 607 F.2d 1043, 1057 (CA2 1979) (Newman, J., concurring in result) ("[S]chool officials . . . do [not] have limitless discretion to apply their own notions of indecency. Courts have a First *690 Amendment responsibility to insure that robust rhetoric . . . is not suppressed by prudish failures to distinguish the vigorous from the vulgar"). Under the circumstances of this case, however, I believe that school officials did not violate the First Amendment in determining that respondent should be disciplined for the disruptive language he used while addressing a high school assembly.[3] Thus, I concur in the judgment reversing the decision of the Court of Appeals.

Respondent gave the following speech at a high school assembly in support of a candidate for student government office: " `I know a man who is firm — he's firm in his pants, he's firm in his shirt, his character is firm — but most of all, his belief in you, the students of Bethel, is firm. " `Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts — he drives hard, pushing and pushing until finally — he succeeds. " `Jeff is a man who will go to the very end — even the climax, for each and every one of you. " `So vote for Jeff for A. S. B. vice-president — he'll never come between you and the best our high school can be.' " App. 47. The Court, referring to these remarks as "obscene," "vulgar," "lewd," and "offensively lewd," concludes that school officials properly punished respondent for uttering the speech. Having read the full text of respondent's remarks, I find it difficult to believe that it is the same speech the Court describes. To my mind, the most that can be said about respondent's speech — and all that need be said — is that in light of the discretion school officials have to teach high school students how to conduct civil and effective public discourse, and to prevent disruption of school educational activities, it was *688 not unconstitutional for school officials to conclude, under the circumstances of this case, that respondent's remarks exceeded permissible limits. Thus, while I concur in the Court's judgment, I write separately to express my understanding of the breadth of the Court's holding. The Court today reaffirms the unimpeachable proposition that students do not " `shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' " Ante, at 680 ). If respondent had given the same speech outside of the school environment, he could not have been penalized simply because government officials considered his language to be inappropriate, see ; the Court's opinion does not suggest otherwise.[1] Moreover, despite the Court's characterizations, the language respondent used is far removed from the very narrow class of "obscene" speech which the Court has held is not protected by the First Amendment. ; It is true, however, that the State has interests in teaching high school students how to conduct civil and effective public discourse and in avoiding disruption of educational school activities. Thus, the Court holds that under certain circumstances, high school students may properly be reprimanded for giving a speech at a high school assembly which school officials conclude disrupted the school's educational *689 mission.[2] Respondent's speech may well have been protected had he given it in school but under different circumstances, where the school's legitimate interests in teaching and maintaining civil public discourse were less weighty. In the present case, school officials sought only to ensure that a high school assembly proceed in an orderly manner. There is no suggestion that school officials attempted to regulate respondent's speech because they disagreed with the views he sought to express. Cf. Nor does this case involve an attempt by school officials to ban written materials they consider "inappropriate" for high school students, cf. Board of or to limit what students should hear, read, or learn about. Thus, the Court's holding concerns only the authority that school officials have to restrict a high school student's use of disruptive language in a speech given to a high school assembly. The authority school officials have to regulate such speech by high school students is not limitless. See ("[S]chool officials do [not] have limitless discretion to apply their own notions of indecency. Courts have a First *690 Amendment responsibility to insure that robust rhetoric is not suppressed by prudish failures to distinguish the vigorous from the vulgar"). Under the circumstances of this case, however, I believe that school officials did not violate the First Amendment in determining that respondent should be disciplined for the disruptive language he used while addressing a high school assembly.[3] Thus, I concur in the judgment reversing the decision of the Court of Appeals.

Justice Powell

majority

Batson v. Kentucky

https://www.courtlistener.com/opinion/111662/batson-v-kentucky/

https://www.courtlistener.com/api/rest/v3/clusters/111662/

1985-078

This case requires us to reexamine that portion of Swain v. Alabama, 380 U.S. 202 (1965), concerning the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State's use of peremptory challenges to exclude members of his race from the petit jury.[1] I Petitioner, a black man, was indicted in Kentucky on charges of second-degree burglary and receipt of stolen goods. On the first day of trial in Jefferson Circuit Court, the judge conducted voir dire examination of the venire, excused certain jurors for cause, and permitted the parties to *83 exercise peremptory challenges.[2] The prosecutor used his peremptory challenges to strike all four black persons on the venire, and a jury composed only of white persons was selected. Defense counsel moved to discharge the jury before it was sworn on the ground that the prosecutor's removal of the black veniremen violated petitioner's rights under the Sixth and Fourteenth Amendments to a jury drawn from a cross section of the community, and under the Fourteenth Amendment to equal protection of the laws. Counsel requested a hearing on his motion. Without expressly ruling on the request for a hearing, the trial judge observed that the parties were entitled to use their peremptory challenges to "strike anybody they want to." The judge then denied petitioner's motion, reasoning that the cross-section requirement applies only to selection of the venire and not to selection of the petit jury itself. The jury convicted petitioner on both counts. On appeal to the Supreme Court of Kentucky, petitioner pressed, among other claims, the argument concerning the prosecutor's use of peremptory challenges. Conceding that Swain v. Alabama, supra, apparently foreclosed an equal protection claim based solely on the prosecutor's conduct in this case, petitioner urged the court to follow decisions of other States, People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748 (1978); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881 (1979), and to hold that such conduct violated his rights under the Sixth Amendment and § 11 of the Kentucky Constitution to a jury drawn from a cross section of the community. Petitioner also contended *84 that the facts showed that the prosecutor had engaged in a "pattern" of discriminatory challenges in this case and established an equal protection violation under Swain. The Supreme Court of Kentucky affirmed. In a single paragraph, the court declined petitioner's invitation to adopt the reasoning of People v. Wheeler, supra, and Commonwealth v. Soares, supra. The court observed that it recently had reaffirmed its reliance on Swain, and had held that a defendant alleging lack of a fair cross section must demonstrate systematic exclusion of a group of jurors from the venire. See Commonwealth v. McFerron, 680 S.W.2d 924 (1984). We granted certiorari, 471 U.S. 1052 (1985), and now reverse. II In Swain v. Alabama, this Court recognized that a "State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause." 380 U.S., at 203-204. This principle has been "consistently and repeatedly" reaffirmed, id., at 204, in numerous decisions of this Court both preceding and following Swain.[3] We reaffirm the principle today.[4] *85 A More than a century ago, the Court decided that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded. Strauder v. West Virginia, 100 U.S. 303 (1880). That decision laid the foundation for the Court's unceasing efforts to eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn. In Strauder, the Court explained that the central concern of the recently ratified Fourteenth Amendment was to put an end to governmental discrimination on account of race. Id., at 306-307. Exclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure. In holding that racial discrimination in jury selection offends the Equal Protection Clause, the Court in Strauder recognized, however, that a defendant has no right to a "petit jury composed in whole or in part of persons of his own race." Id., at 305.[5] "The number of our races and nationalities stands in the way of evolution of such a conception" of the demand of equal protection. Akins v. Texas, 325 U.S. 398, 403 (1945).[6] But the defendant does have the right to be *86 tried by a jury whose members are selected pursuant to nondiscriminatory criteria. Martin v. Texas, 200 U.S. 316, 321 (1906); Ex parte Virginia, 100 U.S. 339, 345 (1880). The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, Strauder, supra, at 305,[7] or on the false assumption that members of his race as a group are not qualified to serve as jurors, see Norris v. Alabama, 294 U.S. 587, 599 (1935); Neal v. Delaware, 103 U.S. 370, 397 (1881). Purposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure. "The very idea of a jury is a body . . . composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds." Strauder, supra, at 308; see Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 330 (1970). The petit jury has occupied a central position in our system of justice by safeguarding a person accused of crime against the arbitrary exercise of power by prosecutor or judge. Duncan v. Louisiana, 391 U.S. 145, 156 (1968).[8] Those on the venire *87 must be "indifferently chosen,"[9] to secure the defendant's right under the Fourteenth Amendment to "protection of life and liberty against race or color prejudice." Strauder, supra, at 309. Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial. See Thiel v. Southern Pacific Co., 328 U.S. 217, 223-224 (1946). A person's race simply "is unrelated to his fitness as a juror." Id., at 227 (Frankfurter, J., dissenting). As long ago as Strauder, therefore, the Court recognized that by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror. 100 U.S., at 308; see Carter v. Jury Comm'n of Greene County, supra, at 329-330; Neal v. Delaware, supra, at 386. The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. See Ballard v. United States, 329 U.S. 187, 195 (1946); McCray v. New York, 461 U.S. 961, 968 (1983) (MARSHALL, J., dissenting from denial of certiorari). Discrimination within the *88 judicial system is most pernicious because it is "a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others." Strauder, 100 U. S., at 308. B In Strauder, the Court invalidated a state statute that provided that only white men could serve as jurors. Id., at 305. We can be confident that no State now has such a law. The Constitution requires, however, that we look beyond the face of the statute defining juror qualifications and also consider challenged selection practices to afford "protection against action of the State through its administrative officers in effecting the prohibited discrimination." Norris v. Alabama, supra, at 589; see Hernandez v. Texas, 347 U.S. 475, 478-479 (1954); Ex parte Virginia, supra, at 346-347. Thus, the Court has found a denial of equal protection where the procedures implementing a neutral statute operated to exclude persons from the venire on racial grounds,[10] and has made clear that the Constitution prohibits all forms of purposeful racial discrimination in selection of jurors.[11] While decisions of this Court have been concerned largely with discrimination during selection of the venire, the principles announced there also forbid discrimination on account of race in selection of the petit jury. Since the Fourteenth Amendment protects an accused throughout the proceedings bringing him to justice, Hill v. Texas, 316 U.S. 400, 406 (1942), the State may not draw up its jury lists pursuant to neutral procedures but then resort to discrimination at "other stages in the selection process," Avery v. Georgia, 345 U.S. 559, 562 (1953); see McCray v. New York, supra, at 965, 968 *89 (MARSHALL, J., dissenting from denial of certiorari); see also Alexander v. Louisiana, 405 U.S. 625, 632 (1972). Accordingly, the component of the jury selection process at issue here, the State's privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause.[12] Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges "for any reason at all, as long as that reason is related to his view concerning the outcome" of the case to be tried, United States v. Robinson, 421 F. Supp. 467, 473 (Conn. 1976), mandamus granted sub nom. United States v. Newman, 549 F.2d 240 (CA2 1977), the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant. III The principles announced in Strauder never have been questioned in any subsequent decision of this Court. *90 Rather, the Court has been called upon repeatedly to review the application of those principles to particular facts.[13] A recurring question in these cases, as in any case alleging a violation of the Equal Protection Clause, was whether the defendant had met his burden of proving purposeful discrimination on the part of the State. Whitus v. Georgia, 385 U.S. 545, 550 (1967); Hernandez v. Texas, supra, at 478-481; Akins v. Texas, 325 U. S., at 403-404; Martin v. Texas, 200 U.S. 316 (1906). That question also was at the heart of the portion of Swain v. Alabama we reexamine today.[14] A Swain required the Court to decide, among other issues, whether a black defendant was denied equal protection by the State's exercise of peremptory challenges to exclude members of his race from the petit jury. 380 U.S., at 209-210. The record in Swain showed that the prosecutor *91 had used the State's peremptory challenges to strike the six black persons included on the petit jury venire. Id., at 210. While rejecting the defendant's claim for failure to prove purposeful discrimination, the Court nonetheless indicated that the Equal Protection Clause placed some limits on the State's exercise of peremptory challenges. Id., at 222-224. The Court sought to accommodate the prosecutor's historical privilege of peremptory challenge free of judicial control, id., at 214-220, and the constitutional prohibition on exclusion of persons from jury service on account of race, id., at 222-224. While the Constitution does not confer a right to peremptory challenges, id., at 219 (citing Stilson v. United States, 250 U.S. 583, 586 (1919)), those challenges traditionally have been viewed as one means of assuring the selection of a qualified and unbiased jury, 380 U.S., at 219.[15] To preserve the peremptory nature of the prosecutor's challenge, the Court in Swain declined to scrutinize his actions in a particular case by relying on a presumption that he properly exercised the State's challenges. Id., at 221-222. The Court went on to observe, however, that a State may not exercise its challenges in contravention of the Equal Protection Clause. It was impermissible for a prosecutor to use his challenges to exclude blacks from the jury "for reasons wholly unrelated to the outcome of the particular case on trial" or to deny to blacks "the same right and opportunity to participate in the administration of justice enjoyed by the white population." Id., at 224. Accordingly, a black defendant could make out a prima facie case of purposeful discrimination on proof that the peremptory challenge system was "being perverted" in that manner. Ibid. For example, an inference of purposeful discrimination would be raised on evidence that a prosecutor, "in case after case, whatever the *92 circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries." Id., at 223. Evidence offered by the defendant in Swain did not meet that standard. While the defendant showed that prosecutors in the jurisdiction had exercised their strikes to exclude blacks from the jury, he offered no proof of the circumstances under which prosecutors were responsible for striking black jurors beyond the facts of his own case. Id., at 224-228. A number of lower courts following the teaching of Swain reasoned that proof of repeated striking of blacks over a number of cases was necessary to establish a violation of the Equal Protection Clause.[16] Since this interpretation of Swain has placed on defendants a crippling burden of proof,[17] prosecutors' peremptory challenges are now largely immune *93 from constitutional scrutiny. For reasons that follow, we reject this evidentiary formulation as inconsistent with standards that have been developed since Swain for assessing a prima facie case under the Equal Protection Clause. B Since the decision in Swain, we have explained that our cases concerning selection of the venire reflect the general equal protection principle that the "invidious quality" of governmental action claimed to be racially discriminatory "must ultimately be traced to a racially discriminatory purpose." Washington v. Davis, 426 U.S. 229, 240 (1976). As in any equal protection case, the "burden is, of course," on the defendant who alleges discriminatory selection of the venire "to prove the existence of purposeful discrimination." Whitus v. Georgia, 385 U. S., at 550 (citing Tarrance v. Florida, 188 U.S. 519 (1903)). In deciding if the defendant has carried his burden of persuasion, a court must undertake "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977). Circumstantial evidence of invidious intent may include proof of disproportionate impact. Washington v. Davis, 426 U. S., at 242. We have observed that under some circumstances proof of discriminatory impact "may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on non-racial grounds." Ibid. For example, "total or seriously disproportionate exclusion of Negroes from jury venires," ibid., "is itself such an `unequal application of the law . . . as to show intentional discrimination,' " id., at 241 (quoting Akins v. Texas, 325 U. S., at 404). Moreover, since Swain, we have recognized that a black defendant alleging that members of his race have been impermissibly excluded from the venire may make out a prima *94 facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Washington v. Davis, supra, at 239-242. Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion. Alexander v. Louisiana, 405 U. S., at 632. The State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties. See Alexander v. Louisiana, supra, at 632; Jones v. Georgia, 389 U.S. 24, 25 (1967). Rather, the State must demonstrate that "permissible racially neutral selection criteria and procedures have produced the monochromatic result." Alexander v. Louisiana, supra, at 632; see Washington v. Davis, supra, at 241.[18] The showing necessary to establish a prima facie case of purposeful discrimination in selection of the venire may be discerned in this Court's decisions. E. g., Castaneda v. Partida, 430 U.S. 482, 494-495 (1977); Alexander v. Louisiana, supra, at 631-632. The defendant initially must show that he is a member of a racial group capable of being singled out for differential treatment. Castaneda v. Partida, supra, at 494. In combination with that evidence, a defendant may then make a prima facie case by proving that in the particular jurisdiction members of his race have not been summoned for jury service over an extended period of time. Id., at 494. Proof of systematic exclusion from the venire raises an inference of purposeful discrimination because the "result bespeaks discrimination." Hernandez v. Texas, 347 *95 U. S., at 482; see Arlington Heights v. Metropolitan Housing Development Corp., supra, at 266. Since the ultimate issue is whether the State has discriminated in selecting the defendant's venire, however, the defendant may establish a prima facie case "in other ways than by evidence of long-continued unexplained absence" of members of his race "from many panels." Cassell v. Texas, 339 U.S. 282, 290 (1950) (plurality opinion). In cases involving the venire, this Court has found a prima facie case on proof that members of the defendant's race were substantially underrepresented on the venire from which his jury was drawn, and that the venire was selected under a practice providing "the opportunity for discrimination." Whitus v. Georgia, supra, at 552; see Castaneda v. Partida, supra, at 494; Washington v. Davis, supra, at 241; Alexander v. Louisiana, supra, at 629-631. This combination of factors raises the necessary inference of purposeful discrimination because the Court has declined to attribute to chance the absence of black citizens on a particular jury array where the selection mechanism is subject to abuse. When circumstances suggest the need, the trial court must undertake a "factual inquiry" that "takes into account all possible explanatory factors" in the particular case. Alexander v. Louisiana, supra, at 630. Thus, since the decision in Swain, this Court has recognized that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case. These decisions are in accordance with the proposition, articulated in Arlington Heights v. Metropolitan Housing Development Corp., that "a consistent pattern of official racial discrimination" is not "a necessary predicate to a violation of the Equal Protection Clause. A single invidiously discriminatory governmental act" is not "immunized by the absence of such discrimination in the making of other comparable decisions." 429 U.S., at 266, n. 14. For evidentiary requirements *96 to dictate that "several must suffer discrimination" before one could object, McCray v. New York, 461 U. S., at 965 (MARSHALL, J., dissenting from denial of certiorari), would be inconsistent with the promise of equal protection to all.[19] C The standards for assessing a prima facie case in the context of discriminatory selection of the venire have been fully articulated since Swain. See Castaneda v. Partida, supra, at 494-495; Washington v. Davis, 426 U. S., at 241-242; Alexander v. Louisiana, supra, at 629-631. These principles support our conclusion that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, supra, at 494, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Avery v. Georgia, 345 U. S., at 562. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination. In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. *97 For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause. See McCray v. Abrams, 750 F. 2d, at 1132; Booker v. Jabe, 775 F.2d 762, 773 (CA6 1985), cert. pending, No. 85-1028. But the prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race. Cf. Norris v. Alabama, 294 U. S., at 598-599; see Thompson v. United States, 469 U.S. 1024, 1026 (1984) (BRENNAN, J., dissenting from denial of certiorari). Just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, supra, at 86, so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black. The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of *98 such assumptions, which arise solely from the jurors' race. Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or "affirm[ing] [his] good faith in making individual selections." Alexander v. Louisiana, 405 U. S., at 632. If these general assertions were accepted as rebutting a defendant's prima facie case, the Equal Protection Clause "would be but a vain and illusory requirement." Norris v. Alabama, supra, at 598. The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried.[20] The trial court then will have the duty to determine if the defendant has established purposeful discrimination.[21] IV The State contends that our holding will eviscerate the fair trial values served by the peremptory challenge. Conceding that the Constitution does not guarantee a right to peremptory challenges and that Swain did state that their use ultimately is subject to the strictures of equal protection, the State argues that the privilege of unfettered exercise of the challenge is of vital importance to the criminal justice system. While we recognize, of course, that the peremptory challenge occupies an important position in our trial procedures, we do not agree that our decision today will undermine the *99 contribution the challenge generally makes to the administration of justice. The reality of practice, amply reflected in many state- and federal-court opinions, shows that the challenge may be, and unfortunately at times has been, used to discriminate against black jurors. By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice.[22] In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race. Nor are we persuaded by the State's suggestion that our holding will create serious administrative difficulties. In those States applying a version of the evidentiary standard we recognize today, courts have not experienced serious administrative burdens,[23] and the peremptory challenge system has survived. We decline, however, to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges.[24] *100 V In this case, petitioner made a timely objection to the prosecutor's removal of all black persons on the venire. Because the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action, we remand this case for further proceedings. If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner's conviction be reversed. E. g., Whitus v. Georgia, 385 U. S., at 549-550; Hernandez v. Texas, 347 U. S., at 482; Patton v. Mississippi, 332 U. S., at 469.[25] It is so ordered.

This case requires us to reexamine that portion of concerning the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State's use of peremptory challenges to exclude members of his race from the petit [1] I Petitioner, a black man, was indicted in Kentucky on charges of second-degree burglary and receipt of stolen goods. On the first day of trial in Jefferson Circuit Court, the judge conducted voir dire examination of the venire, excused certain for cause, and permitted the parties to *83 exercise peremptory challenges.[2] The prosecutor used his peremptory challenges to strike all four black persons on the venire, and a composed only of white persons was selected. Defense counsel moved to discharge the before it was sworn on the ground that the prosecutor's removal of the black veniremen violated petitioner's rights under the Sixth and Fourteenth Amendments to a drawn from a cross section of the community, and under the Fourteenth Amendment to equal protection of the laws. Counsel requested a hearing on his motion. Without expressly ruling on the request for a hearing, the trial judge observed that the parties were entitled to use their peremptory challenges to "strike anybody they want to." The judge then denied petitioner's motion, reasoning that the cross-section requirement applies only to selection of the venire and not to selection of the petit itself. The convicted petitioner on both counts. On appeal to the Supreme Court of Kentucky, petitioner pressed, among other claims, the argument concerning the prosecutor's use of peremptory challenges. Conceding that apparently foreclosed an equal protection claim based solely on the prosecutor's conduct in this case, petitioner urged the court to follow decisions of other States, ; and to hold that such conduct violated his rights under the Sixth Amendment and 11 of the Kentucky Constitution to a drawn from a cross section of the community. Petitioner also contended *84 that the facts showed that the prosecutor had engaged in a "pattern" of discriminatory challenges in this case and established an equal protection violation under Swain. The Supreme Court of Kentucky affirmed. In a single paragraph, the court declined petitioner's invitation to adopt the reasoning of and The court observed that it recently had reaffirmed its reliance on Swain, and had held that a defendant alleging lack of a fair cross section must demonstrate systematic exclusion of a group of from the venire. See We granted certiorari, and now reverse. II In this Court recognized that a "State's purposeful or deliberate denial to Negroes on account of race of participation as in the administration of justice violates the Equal Protection Clause." -204. This principle has been "consistently and repeatedly" reaffirmed, in numerous decisions of this Court both preceding and following Swain.[3] We reaffirm the principle today.[4] *85 A More than a century ago, the Court decided that the State denies a black defendant equal protection of the laws when it puts him on trial before a from which members of his race have been purposefully excluded. That decision laid the foundation for the Court's unceasing efforts to eradicate racial discrimination in the procedures used to select the venire from which individual are drawn. In the Court explained that the central concern of the recently ratified Fourteenth Amendment was to put an end to governmental discrimination on account of race. Exclusion of black citizens from service as constitutes a primary example of the evil the Fourteenth Amendment was designed to cure. In holding that racial discrimination in selection offends the Equal Protection Clause, the Court in recognized, however, that a defendant has no right to a "petit composed in whole or in part of persons of his own race."[5] "The number of our races and nationalities stands in the way of evolution of such a conception" of the demand of equal protection.[6] But the defendant does have the right to be *86 tried by a whose members are selected pursuant to nondiscriminatory criteria. ; Ex parte The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the venire on account of race,[7] or on the false assumption that members of his race as a group are not qualified to serve as see Norris v. ; Purposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by is intended to secure. "The very idea of a is a body composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds." ; see The petit has occupied a central position in our system of justice by safeguarding a person accused of crime against the arbitrary exercise of power by prosecutor or judge.[8] Those on the venire *87 must be "indifferently chosen,"[9] to secure the defendant's right under the Fourteenth Amendment to "protection of life and liberty against race or color prejudice." Racial discrimination in selection of harms not only the accused whose life or liberty they are summoned to try. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial. See A person's race simply "is unrelated to his fitness as a " As long ago as therefore, the Court recognized that by denying a person participation in service on account of his race, the State unconstitutionally discriminated against the excluded 100 U.S., ; see at 329-; The harm from discriminatory selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. See ; Discrimination within the *88 judicial system is most pernicious because it is "a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others." 100 U. S., B In the Court invalidated a state statute that provided that only white men could serve as We can be confident that no State now has such a law. The Constitution requires, however, that we look beyond the face of the statute defining juror qualifications and also consider challenged selection practices to afford "protection against action of the State through its administrative officers in effecting the prohibited discrimination." Norris v. ; see (4); Ex parte Thus, the Court has found a denial of equal protection where the procedures implementing a neutral statute operated to exclude persons from the venire on racial grounds,[10] and has made clear that the Constitution prohibits all forms of purposeful racial discrimination in selection of[11] While decisions of this Court have been concerned largely with discrimination during selection of the venire, the principles announced there also forbid discrimination on account of race in selection of the petit Since the Fourteenth Amendment protects an accused throughout the proceedings bringing him to justice, the State may not draw up its lists pursuant to neutral procedures but then resort to discrimination at "other stages in the selection process," U.S. 559, (3); see *89 ; see also Accordingly, the component of the selection process at issue here, the State's privilege to strike individual through peremptory challenges, is subject to the commands of the Equal Protection Clause.[12] Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges "for any reason at all, as long as that reason is related to his view concerning the outcome" of the case to be tried, United mandamus granted sub nom. United the Equal Protection Clause forbids the prosecutor to challenge potential solely on account of their race or on the assumption that black as a group will be unable impartially to consider the State's case against a black defendant. III The principles announced in never have been questioned in any subsequent decision of this Court. *90 Rather, the Court has been called upon repeatedly to review the application of those principles to particular facts.[13] A recurring question in these cases, as in any case alleging a violation of the Equal Protection Clause, was whether the defendant had met his burden of proving purposeful discrimination on the part of the State. ; ; 3 U. S., at -404; That question also was at the heart of the portion of we reexamine today.[14] A Swain required the Court to decide, among other issues, whether a black defendant was denied equal protection by the State's exercise of peremptory challenges to exclude members of his race from the petit -210. The record in Swain showed that the prosecutor *91 had used the State's peremptory challenges to strike the six black persons included on the petit venire. While rejecting the defendant's claim for failure to prove purposeful discrimination, the Court nonetheless indicated that the Equal Protection Clause placed some limits on the State's exercise of peremptory challenges. The Court sought to accommodate the prosecutor's historical privilege of peremptory challenge free of judicial control, and the constitutional prohibition on exclusion of persons from service on account of race, While the Constitution does not confer a right to peremptory challenges, at 219 ), those challenges traditionally have been viewed as one means of assuring the selection of a qualified and unbiased[15] To preserve the peremptory nature of the prosecutor's challenge, the Court in Swain declined to scrutinize his actions in a particular case by relying on a presumption that he properly exercised the State's challenges. The Court went on to observe, however, that a State may not exercise its challenges in contravention of the Equal Protection Clause. It was impermissible for a prosecutor to use his challenges to exclude blacks from the "for reasons wholly unrelated to the outcome of the particular case on trial" or to deny to blacks "the same right and opportunity to participate in the administration of justice enjoyed by the white population." Accordingly, a black defendant could make out a prima facie case of purposeful discrimination on proof that the peremptory challenge system was "being perverted" in that manner. For example, an inference of purposeful discrimination would be raised on evidence that a prosecutor, "in case after case, whatever the *92 circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified by the commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries." Evidence offered by the defendant in Swain did not meet that standard. While the defendant showed that prosecutors in the jurisdiction had exercised their strikes to exclude blacks from the he offered no proof of the circumstances under which prosecutors were responsible for striking black beyond the facts of his own case. -228. A number of lower courts following the teaching of Swain reasoned that proof of repeated striking of blacks over a number of cases was necessary to establish a violation of the Equal Protection Clause.[16] Since this interpretation of Swain has placed on defendants a crippling burden of proof,[17] prosecutors' peremptory challenges are now largely immune *93 from constitutional scrutiny. For reasons that follow, we reject this evidentiary formulation as inconsistent with standards that have been developed since Swain for assessing a prima facie case under the Equal Protection Clause. B Since the decision in Swain, we have explained that our cases concerning selection of the venire reflect the general equal protection principle that the "invidious quality" of governmental action claimed to be racially discriminatory "must ultimately be traced to a racially discriminatory purpose." As in any equal protection case, the "burden is, of course," on the defendant who alleges discriminatory selection of the venire "to prove the existence of purposeful discrimination." 385 U. S., at ). In deciding if the defendant has carried his burden of persuasion, a court must undertake "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Arlington Circumstantial evidence of invidious intent may include proof of disproportionate impact. We have observed that under some circumstances proof of discriminatory impact "may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on non-racial grounds." For example, "total or seriously disproportionate exclusion of Negroes from venires," ib "is itself such an `unequal application of the law as to show intentional discrimination,' " (quoting ). Moreover, since Swain, we have recognized that a black defendant alleging that members of his race have been impermissibly excluded from the venire may make out a prima *94 facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion. 405 U. S., at The State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties. See at ; Jones v. Rather, the State must demonstrate that "permissible racially neutral selection criteria and procedures have produced the monochromatic result." at ; see[18] The showing necessary to establish a prima facie case of purposeful discrimination in selection of the venire may be discerned in this Court's decisions. E. g., ; at 631-. The defendant initially must show that he is a member of a racial group capable of being singled out for differential treatment. In combination with that evidence, a defendant may then make a prima facie case by proving that in the particular jurisdiction members of his race have not been summoned for service over an extended period of time. Proof of systematic exclusion from the venire raises an inference of purposeful discrimination because the "result bespeaks discrimination." 347 *; see Arlington at Since the ultimate issue is whether the State has discriminated in selecting the defendant's venire, however, the defendant may establish a prima facie case "in other ways than by evidence of long-continued unexplained absence" of members of his race "from many panels." Cassell v. (0) In cases involving the venire, this Court has found a prima facie case on proof that members of the defendant's race were substantially underrepresented on the venire from which his was drawn, and that the venire was selected under a practice providing "the opportunity for discrimination." ; see ; ; This combination of factors raises the necessary inference of purposeful discrimination because the Court has declined to attribute to chance the absence of black citizens on a particular array where the selection mechanism is subject to abuse. When circumstances suggest the need, the trial court must undertake a "factual inquiry" that "takes into account all possible explanatory factors" in the particular case. Thus, since the decision in Swain, this Court has recognized that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case. These decisions are in accordance with the proposition, articulated in Arlington that "a consistent pattern of official racial discrimination" is not "a necessary predicate to a violation of the Equal Protection Clause. A single invidiously discriminatory governmental act" is not "immunized by the absence of such discrimination in the making of other comparable decisions." 429 U.S., at n. 14. For evidentiary requirements *96 to dictate that "several must suffer discrimination" before one could object, 461 U. S., would be inconsistent with the promise of equal protection to all.[19] C The standards for assessing a prima facie case in the context of discriminatory selection of the venire have been fully articulated since Swain. See at ; 426 U. S., -242; These principles support our conclusion that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a selection practice that permits "those to discriminate who are of a mind to discriminate." U. S., at Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit on account of their race. This combination of factors in the empaneling of the petit as in the selection of the venire, raises the necessary inference of purposeful discrimination. In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. *97 For example, a "pattern" of strikes against black included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause. See McCray v. Abrams, 750 F. 2d, at 1132; cert. pending, No. 85-1028. But the prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged of the defendant's race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race. Cf. Norris v. -; see Just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black. The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of on the basis of *98 such assumptions, which arise solely from the ' race. Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or "affirm[ing] [his] good faith in making individual selections." 405 U. S., at If these general assertions were accepted as rebutting a defendant's prima facie case, the Equal Protection Clause "would be but a vain and illusory requirement." Norris v. The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried.[20] The trial court then will have the duty to determine if the defendant has established purposeful discrimination.[21] IV The State contends that our holding will eviscerate the fair trial values served by the peremptory challenge. Conceding that the Constitution does not guarantee a right to peremptory challenges and that Swain did state that their use ultimately is subject to the strictures of equal protection, the State argues that the privilege of unfettered exercise of the challenge is of vital importance to the criminal justice system. While we recognize, of course, that the peremptory challenge occupies an important position in our trial procedures, we do not agree that our decision today will undermine the *99 contribution the challenge generally makes to the administration of justice. The reality of practice, amply reflected in many state- and federal-court opinions, shows that the challenge may be, and unfortunately at times has been, used to discriminate against black By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice.[22] In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from service because of his race. Nor are we persuaded by the State's suggestion that our holding will create serious administrative difficulties. In those States applying a version of the evidentiary standard we recognize today, courts have not experienced serious administrative burdens,[23] and the peremptory challenge system has survived. We decline, however, to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges.[24] *100 V In this case, petitioner made a timely objection to the prosecutor's removal of all black persons on the venire. Because the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action, we remand this case for further proceedings. If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner's conviction be reversed. E. g., -; ; Patton v.[] It is so ordered.

Justice Blackmun

concurring

South Carolina v. Regan

https://www.courtlistener.com/opinion/111104/south-carolina-v-regan/

https://www.courtlistener.com/api/rest/v3/clusters/111104/

1983-039

I, too, agree with all those who have written opinions in this case that the Anti-Injunction Act, 26 U.S. C. § 7421(a), is no bar to the ability of the State of South Carolina to invoke the original jurisdiction of this Court in order to challenge the validity of a federal tax statute. Like JUSTICE O'CONNOR, I have reservations about the breadth of the approach taken by JUSTICE BRENNAN in determining that Congress did not intend the Act to apply in any case in which the aggrieved party has no alternative avenue by which to contest the legality of a particular tax. In Bob Jones University v. Simon, 416 U.S. 725 (1974), the Court stressed the broad sweep of the Anti-Injunction Act. The Court noted that the language added in 1966, prohibiting any suit for the purpose of restraining the assessment or collection of any tax "by any person, whether or not such person is the person against whom such tax was assessed," see § 110(c) of the Federal Tax Lien Act of 1966, *383 Pub. L. 89-719, 80 Stat. 1144, was intended as a "reaffirmation of the plain meaning" of the Act as it had stood since 1867. See 416 U.S., at 731-732, n. 6. See also Alexander v. "Americans United" Inc., 416 U.S. 752, 760, n. 11 (1974). The Court in Bob Jones rejected the petitioner's efforts to rely on exceptions to the reach of the Act suggested in the 1930's for situations in which there is no adequate remedy short of a suit to enjoin the challenged tax. See 416 U.S., at 744. Because it concluded that the plaintiffs in Bob Jones and "Americans United" had access to judicial forums in which to challenge the alleged deprivations of their property, the Court did not need to decide whether and under what circumstances its broad reading of the Anti-Injunction Act might deny an aggrieved party due process of law. 416 U.S., at 746. Unlike JUSTICE O'CONNOR, I see no need to decide whether Congress intended the Anti-Injunction Act to apply to suits invoking this Court's original jurisdiction. I would decide this case on the narrower ground set forth in my dissenting opinion in "Americans United," 416 U. S., at 763. I there expressed concern that the Court was overlooking a necessary first step in applying the Anti-Injunction Act, that is, the determination whether the litigation is a " `suit for the purpose of restraining' " any tax. Id., at 767, quoting 26 U.S. C. § 7421(a). Here, as in "Americans United," there can be no serious argument that the disposition of South Carolina's claim will have much effect, if any at all, upon federal tax revenues. If South Carolina loses, it will register its securities.[*] If it wins, it will continue to issue unregistered *384 securities. In either event, the Federal Government will receive no more tax revenues from purchasers of such securities than it has enjoyed since Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, was decided in 1895. The acknowledged purpose of Congress in enacting § 310 (b)(1) of TEFRA in 1982 so as to add a new § 103(j) to the Internal Revenue Code of 1954 was to encourage the States to issue securities in registered form. See Staff of Joint Committee on Taxation, General Explanation of the Revenue Provisions of the Tax Equity and Fiscal Responsibility Act of 1982, 97th Cong., 2d Sess., 190 (Comm. Print 1982). In a case such as this, where it is evident that the challenged governmental action is one to "accomplish a broad-based policy objective" rather than to produce revenue, see "Americans United," 416 U. S., at 771 (dissenting opinion), and the disposition of the challenge will have no effect on federal revenues, I conclude that the suit is not one "for the purpose of restraining the assessment or collection of any tax," within the words of § 7421(a). Although I would not hold the Anti-Injunction Act to be a bar to South Carolina's ability to bring this suit in another court, I agree that we should hear this case. Exercise of our original jurisdiction is discretionary and, though the Court has exercised it sparingly, we are not prohibited from doing so by the fact that the original party may have an alternative forum. See Georgia v. Pennsylvania R. Co., 324 U.S. 439, 465 (1945). The issue presented is a substantial one, and is of concern to a number of States. I am satisfied that prompt resolution of the issue here will benefit all concerned and that the decision to grant leave to file is a proper exercise of our discretion. JUSTICE O'CONNOR, with whom JUSTICE POWELL, and JUSTICE REHNQUIST join, concurring in the judgment. The motion of South Carolina for leave to file a complaint in our original jurisdiction raises three questions. First, the Court must decide whether Congress intended by the *385 Tax Anti-Injunction Act, 26 U.S. C. § 7421(a), to bar nontaxpayers like the State of South Carolina from challenging the validity of federal tax statutes in the courts. Second, if the Act generally does bar such nontaxpayer suits, the Court must decide whether Congress intended, and if so whether the Constitution permits it, to bar us from considering South Carolina's complaint in our original jurisdiction. Third, if Congress either did not intend or constitutionally is not permitted to withdraw this case from our original jurisdiction, the Court must decide whether South Carolina's challenge to the constitutionality of § 103(j)(1) of the Internal Revenue Code of 1954, 26 U.S. C. § 103(j)(1) (1982 ed.), as added by § 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97-248, 96 Stat. 596, raises issues appropriate for original adjudication. In answering the first question, the Court reaches the unwarranted conclusion that the Tax Anti-Injunction Act proscribes only those suits in which the complaining party, usually a taxpayer, can challenge the validity of a taxing measure in an alternative forum. The Court holds that suits by nontaxpayers generally are not barred. In my opinion, the Court's interpretation fundamentally misconstrues the congressional anti-injunction policy. Accordingly, I cannot join its opinion. I A The Tax Anti-Injunction Act provides, in pertinent part, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." 26 U.S. C. § 7421(a). The Act's language "could scarcely be more explicit" in prohibiting nontaxpayer suits like this one, Bob Jones University v. Simon, 416 U.S. 725, 736 (1974), since the suit indisputably would have the purpose and effect of restraining taxes. See id., at 738-742. The Act plainly bars not only "a taxpayer's *386 attempt to enjoin the collection of his own taxes, . . ." but also "a suit to enjoin the assessment or collection of anyon[e] [else's] taxes . . . ." Alexander v. "Americans United" Inc., 416 U.S. 752, 760 (1974). Though the Internal Revenue Code (Code) contains a few exceptions to this nearly complete ban,[1] for the most part Congress has restricted the judicial role to resolution of concrete disputes over specific sums of money, either by way of a deficiency proceeding in the Tax Court, see 26 U.S. C. §§ 6212, 6213, or by way of a taxpayer's suit for refund, see 26 U.S. C. §§ 6532, 7422. In depriving courts of jurisdiction to resolve abstract tax controversies, Congress has determined that the United States must be able "to assess and collect taxes alleged to be due without judicial intervention . . . ." Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962). "[T]axes are the life-blood of government," Bull v. United States, 295 U.S. 247, 259 (1935), and the anti-injunction prohibition is Congress' recognition that "the tenacity of the American taxpayer" constantly threatens to drain the Nation of a life-sustaining infusion of revenues. See Gorovitz, Federal Tax Injunctions and the Standard Nut Cases, 10 Taxes 446, 446 (1932). The Act's proscription literally extends to nontaxpayer as well as taxpayer suits, if only to prevent taxpayers from sidestepping the anti-injunction policy by bringing suit through nontaxpaying associations of taxpayers.[2]*387 Moreover, by broadly precluding both taxpayer and nontaxpayer suits, the Act serves a collateral objective of protecting "the collector from litigation pending a suit for refund." Enochs v. Williams Packing & Navigation Co., supra, at 7-8. The tax collector is an attractive target for all kinds of litigation, see, e. g., Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976), and the Act ensures that only Congress and the Treasury, not a host of private plaintiffs, will determine the focus of the collector's energies. B The Act's history expressly reflects the congressional desire that all injunctive suits against the tax collector be prohibited. First enacted in 1867,[3] it apparently was designed to protect the federal tax system from being inundated with the same type of injunctive suits that were then sweeping over the state tax systems. See State Railroad Tax Cases, 92 U.S. 575, 613 (1876); Snyder v. Marks, 109 U.S. 189, 193-194 (1883). There is little contemporaneous documentation,[4] but this Court's decisions indicate that the 39th Congress acted with a ". . . sense of . . . the evils to be feared if courts of justice could, in any case, interfere with the process of collecting *388 the taxes on which the government depends for its continued existence." State Railroad Tax Cases, supra, at 613. The experience in the States demonstrated the grave dangers which accompany intrusion of the injunctive power of the courts into the administration of the revenue: "If there existed in the courts . . . any general power of impeding or controlling the collection of taxes, or relieving the hardship incident to taxation, the very existence of the government might be placed in the power of a hostile judiciary." Cheatham v. United States, 92 U.S. 85, 89 (1876). To avoid these evils and to safeguard the federal tax system, the 39th Congress committed administration of the Code to the discretion of the Secretary of the Treasury.[5] This broad anti-injunction ban remained essentially untouched for almost a century.[6] In 1966, however, Congress *389 took steps to "reaffir[m] the plain meaning of the original language of the Act." Alexander v. "Americans United" Inc., 416 U. S., at 760, and n. 11. In § 110(c) of the Federal Tax Lien Act, Pub. L. 89-719, 80 Stat. 1144, Congress amended the Act to emphasize that no injunctive action "by any person, whether or not such person is the person against whom such tax was assessed" could be maintained in the courts. Ibid. (emphasis added). The Treasury Department proposed the 1966 amendment, and its principal spokesperson, Assistant Secretary Surrey, testified: "Subsection (c) of section 110 of the bill amends section 7421(a) of the code. That section presently prohibits injunctions against the assessment or collection of tax. The cases decided under this provision raise a question as to whether this prohibition applies against actions by persons other than the taxpayer. New section 7426 will specifically allow actions by third parties to enjoin the enforcement of a levy or sale of property. The amendment to section 7421 makes clear that third parties may bring injunction suits only under the circumstances provided in new section 7426(b)(1) of the code." Statement by the Hon. Stanley S. Surrey, Assistant Secretary of the Treasury, reprinted in Hearings on H. R. 11256 and H. R. 11290, before the House Committee on Ways and Means, 89th Cong., 2d Sess., 58 (1966). The House Committee on Ways and Means and the Senate Committee on Finance apparently shared Mr. Surrey's understanding of the rights of nontaxpayers under prior law, for their Reports both state: "Under present law, . . . the United States cannot be sued by third persons where its collection activities interfere with their property rights. This includes cases where the Government wrongfully levies on one person's property in attempting to collect from a taxpayer. However, some courts allow suits to be brought against *390 district directors of Internal Revenue where this occurs." H. R. Rep. No. 1884, 89th Cong., 2d Sess., 27 (1966); S. Rep. No. 1708, 89th Cong., 2d Sess., 29 (1966). To accommodate these conflicting rights, both Committees recommended that Congress enact § 7426, allowing "persons other than taxpayers" to bring suits against the United States to protect pre-existing liens on property levied upon by the Treasury, and amend § 7421(a) to forbid suits by all third persons, excepting those within the ambit of new § 7426. Congress followed the Committees' recommendations, on the understanding that the new language in § 7421(a) was "declaratory, not innovative." Bob Jones University v. Simon, 416 U. S., at 731-732, n. 6.[7] Congress has since relaxed the statutory proscription against third-party suits on several occasions. For example, in 1974, it provided that certain designated persons could obtain declaratory judgments in the Tax Court with respect to the tax status of pension plans. See 26 U.S. C. § 7476. Similarly, in 1976, because "[u]nder [prevailing] law no court review of [Internal Revenue Service] ruling[s] [was] available," H. R. Conf. Rep. No. 94-1515, p. 463 (1976), Congress provided declaratory judgment procedures for determining the tax status of charitable organizations and of certain property transfers. See 26 U.S. C. §§ 7428, 7477; see also H. R. Conf. Rep. No. 94-1515, supra, at 523-524 ("Under present *391 law, the Tax Court can hear declaratory judgment suits only on the tax status of employee retirement plans. In no other case may an individual or an organization seek a declaratory judgment as to an organization's tax-exempt status"). Finally, in 1978, in 26 U.S. C. § 7478 (1982 ed.), Congress provided a mechanism whereby state or local governments could seek declaratory judgments as to the tax status of proposed municipal bond issuances.[8] The relevant Senate Report noted: "As a practical matter, there is no effective appeal from a Service private letter ruling (or failure to issue a private letter ruling) that a proposed issue of municipal bonds is taxable. In those cases, although there may be a real controversy between a State or local government and the Service, present law does not allow the State or local government to go to court. The controversy can be resolved only if the bonds are issued, a bondholder excludes interest on the bonds from income, the exclusion is disallowed, and the Service asserts a deficiency in its statutory notice of deficiency. This uncertainty coupled with the threat of the ultimate loss of the exclusion, invariably makes it impossible to market the bonds. In addition, it is impossible for a State or local government to question the Service rulings and regulations directly. "[S]tate and local government[s] should have a right to court adjudication in the situation described above. The bill deals with the problem by providing . . . for a declaratory judgment as to the tax status of a proposed *392 issue of municipal bonds." S. Rep. No. 95-1263, pp. 150-151 (1978). The Conference Report reflects a similar view of prevailing law. See H. R. Conf. Rep. No. 95-1800, p. 240 (1978). Thus, in 1974, 1976, and again in 1978, Congress expressed its belief that the Tax Anti-Injunction Act generally bars nontaxpayers from bringing the kind of injunctive action the State of South Carolina asks leave to file today.[9] These subsequently enacted provisions and the legislative understanding of them are entitled to "great weight" in construing earlier, related legislation. See, e. g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-381 (1969); FHA v. The Darlington, Inc., 358 U.S. 84, 90 (1958). Combined with the legislative purposes obviously motivating the 39th and 89th Congresses, these provisions conclusively demonstrate that, absent express exemption, the Act generally precludes judicial resolution of all abstract tax controversies, even if the complaining parties would have no other forum in which to bring their challenges. C The Court drew these same conclusions in Bob Jones University v. Simon. See 416 U.S., at 736-746. In that case, the Court rejected a private institution's request that an additional exception beyond the one created in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1 (1962) (equity court may issue injunction where it is clear that under no circumstances *393 could the Government prevail), be carved out of the Act.[10] The Court responded that Williams Packing "was meant to be the capstone to judicial construction of the Act. It spells an end to a cyclical pattern of allegiance to the plain meaning of the Act, followed by periods of uncertainty caused by a judicial departure from that meaning, and followed in turn by the Court's rediscovery of the Act's purpose." 416 U.S., at 742. Bob Jones University then reaffirmed that, except where a litigant can show both that the Government would "under no circumstances . . . prevail" and that equity jurisdiction is otherwise present, the Act would be given its "literal effect." Id., at 737, 742-745. Because the plaintiffs in Bob Jones University were assured ultimately of having access to a judicial forum, the Court did not definitively resolve whether Congress could bar a tax suit in which the complaining party would be denied all access to judicial review. See id., at 746. But the Court's reference to "a case in which an aggrieved party has no access at all to judicial review" came in the context of its discussion of the taxpayer's claim that postponement of its challenge to the revocation of its tax-exempt status would violate due process. Bob Jones University's dictum, therefore, should be interpreted only as reflecting the established rule that Congress cannot, consistently with due process, deny a taxpayer with property rights at stake all opportunity for an ultimate judicial determination of the legality of a tax assessment against him. See Phillips v. Commissioner, 283 U.S. 589, 596-597 (1931). *394 On this reading, Bob Jones University's recognition that the complete inaccessability of judicial review might implicate due process concerns provides absolutely no basis for crafting an exception in this case. The State of South Carolina is not a "person" within the meaning of the Due Process Clause. See South Carolina v. Katzenbach, 383 U.S. 301, 323-324 (1966). Nor does the State assert a right cognizable as a "property" interest protected by that Clause. See generally Logan v. Zimmerman Brush Co., 455 U.S. 422, 430-433 (1982) (cataloging cases). Therefore, it has no due process right to review of its claim in a judicial forum.[11] In holding that the Act does not bar suits by nontaxpayers with no other remedies, the Court today has created a "breach in the general scheme of taxation [that] gives an opening for the disorganization of the whole plan . . . ." Allen v. Regents of University System of Ga., 304 U.S. 439, 454 (1938) (Reed, J., concurring in result). Nontaxpaying associations of taxpayers, and most other nontaxpayers, will now be allowed to sidestep Congress' policy against judicial resolution of abstract tax controversies. They can now challenge both Congress' tax statutes and the Internal Revenue Service's regulations, Revenue Rulings, and private letter decisions. In doing so, they can impede *395 the process of collecting federal revenues and require Treasury to focus its energies on questions deemed important not by it or Congress but by a host of private plaintiffs. The Court's holding travels "a long way down the road to the emasculation of the Anti-Injunction Act, and down the companion pathway that leads to the blunting of the strict requirements of Williams Packing . . . ." Commissioner v. Shapiro, 424 U.S. 614, 635 (1976) (BLACKMUN, J., dissenting). I simply cannot join such a fundamental undermining of the congressional purpose. II The Act's language, purpose, and history should leave no doubt that Congress intended to preclude both taxpayer and nontaxpayer suits, regardless of the availability of an alternative forum. The Solicitor General agrees and contends that, since the anti-injunction prohibition extends to "any court," it should be read to bar this Court from acting in its original jurisdiction as well. The Solicitor General's contention raises a grave constitutional question: namely, whether Congress constitutionally can impose remedial limitations so jurisdictional in nature that they effectively withdraw the original jurisdiction of this Court. A Under the language used in Art. III of the Constitution, Congress relates to the courts of the United States in three textually different ways.[12] In its broadest textual delegation, *396 that Article authorizes Congress to establish the "inferior Courts" and places no express limits on the congressional power to regulate the courts so created. See U. S. Const., Art. III, § 1, cl. 1. By contrast, that Article itself creates the Supreme Court and textually differentiates between Congress' relationship with the appellate and original jurisdictions of that Court. Article III expressly empowers Congress to make "Exceptions" and "Regulations" to the appellate jurisdiction. U. S. Const., Art. III, § 2, cl. 2; Ex parte McCardle, 7 Wall. 506 (1869) (dismissing for want of appellate jurisdiction). But, in what is effectively its narrowest delegation, Art. III is silent regarding Congress' authority to make exceptions to or regulations regarding cases in the original jurisdiction — those that affect "Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." Ibid. Though the original history of Art. III is sparse,[13] what is available indicates that these textual differences were purposeful on the Framers' part. The Framers obviously thought that the National Government should have a judicial system of its own and that that system should have a Supreme Court. However, because the Framers believed the state courts would be adequate for resolving most disputes, they generally left Congress the power of determining what cases, if any, should be channelled to the federal courts. The one textual exception to that rule concerned the original jurisdiction, where the Framers apparently mandated that Supreme Court review be available. "The evident purpose *397 was to open and keep open the highest court of the nation for the determination, in the first instance, of suits involving a State or a diplomatic or commercial representative of a foreign government." Ames v. Kansas, 111 U.S. 449, 464 (1884). The Framers apparently thought that "[s]o much was due . . . the rank and dignity of those for whom the provision was made . . . ." Ibid.; see also The Federalist No. 81, pp. 507-509 (H. Lodge ed. 1888) (A. Hamilton). Perhaps more importantly, the Framers also thought that the original jurisdiction was a necessary substitute for the powers of war and diplomacy that these sovereigns previously had relied upon. See Georgia v. Pennsylvania R. Co., 324 U.S. 439, 450 (1945); United States v. Texas, 143 U.S. 621, 641 (1892). "The Supreme Court [was] given higher standing than any known tribunal, both by the nature of its rights and the categories subject to its jurisdiction," A. de Tocqueville, Democracy in America 149 (J. Mayer ed. 1969) (emphasis in original), precisely to keep sovereign nations and States from using force "to rebuff the exaggerated pretensions of the Union . . . ." Id., at 150. Our cases have long paid tribute to the foreign sovereignty and federalism concerns forming the basis of the original jurisdiction. See Ames v. Kansas, supra, at 464-465; Maryland v. Louisiana, 451 U.S. 725, 743 (1981). Out of respect for these concerns, the Court has held that Congress is without power to add parties not within the initial grant of original jurisdiction, see Marbury v. Madison, 1 Cranch 137, 174 (1803), and has indicated, in dicta, that Congress may not withdraw that jurisdiction either. See, e. g., California v. Arizona, 440 U.S. 59, 65-66 (1979); California v. Southern Pacific Co., 157 U.S. 229, 261 (1895); Wisconsin v. Pelican Insurance Co., 127 U.S. 265, 300 (1888); Ames v. Kansas, supra, at 464; Martin v. Hunter's Lessee, 1 Wheat. 304, 332 (1816); Marbury v. Madison, supra, at 174. Enlarging the original jurisdiction would require the sovereigns for whom the provision was made to compete with other, less dignified, *398 parties for the Court's limited time and resources; diminishing the original jurisdiction possibly would leave those sovereigns without an acceptable alternative to diplomacy and war for settling disputes. To be sure, the Tax Anti-Injunction Act does not expressly withdraw the original jurisdiction of this Court. Rather, it merely prohibits "any court" from "maintain[ing]" a suit that has "the purpose of restraining the assessment or collection" of federal taxes. See 26 U.S. C. § 7421(a). The effect of this prohibition, however, is to preclude this Court ever from assuming original jurisdiction to adjudicate a State qua State's Tenth and Sixteenth Amendment tax claims, in apparent derogation of the grant's constitutional purpose.[14] While "Congress has broad powers over the jurisdiction of the federal courts and over the sovereign immunity of the United States[,] it is extremely doubtful that they include the power to limit in this manner the original jurisdiction conferred upon this Court by the Constitution." California v. Arizona, 440 U. S., at 66. B Nevertheless, it is this Court's longstanding practice to avoid resolution of constitutional questions except when absolutely necessary. Ibid. "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be *399 avoided." Crowell v. Benson, 285 U.S. 22, 62 (1932). Such a construction is possible in this case. The manifest purpose of the Tax Anti-Injunction Act is simply to permit the United States to assess and collect taxes without undue judicial interference and to require that legal challenges be raised in certain designated forums. The language and history of the Act evidence a congressional desire generally to bar both taxpayer and nontaxpayer suits, since both can substantially interrupt "the process of collecting the taxes on which the government depends for its continued existence" if left uncontrolled. State Railroad Tax Cases, 92 U. S., at 613. Similarly, the language and history evidence a congressional desire to prohibit courts from restraining any aspect of the tax laws' administration, since the prohibition against injunctions should not depend upon the alleged legality or character of a particular assessment. See Snyder v. Marks, 109 U. S., at 192-194. Yet the statute was enacted against a settled history in which foreign and state sovereigns had a unique right to seek refuge in the original jurisdiction of this Court. Nothing in the legislative history of the Act of 1867, of the later amendments, or of the related declaratory judgment provisions enacted in 1974, 1976, or 1978, mentions any intent to alter these sovereign parties' unique right occasionally to seek injunctive relief by original action in this Court, even with regard to tax matters. Admittedly, the Act precludes "any court" from maintaining a suit initiated for the purpose of restraining the assessment or collection of federal taxes. See 26 U.S. C. § 7421(a). That language clearly instructs all courts that Congress constitutionally controls not to prematurely interfere with the assessment and collection of federal taxes. That language does not, however, necessarily encompass this Court, which Congress did not create and which Congress is not expressly empowered to make "Exceptions" or "Regulations" as to its original jurisdiction. Moreover, since only a small number of pre-enforcement suits could conceivably involve a party for whom the original jurisdiction was created, *400 there is no reason to believe that Congress would want to have the constitutionality of its anti-injunction policy placed into question.[15] Given this de minimis effect and the absence of express congressional intent to the contrary, I would conclude that the Act's reference to "any court" means to assure that all state, as well as federal, courts are subject to the anti-injunction prohibition. Such an interpretation gives meaning to the Act and avoids a grave constitutional question.[16] III Interpreting the Tax Anti-Injunction Act to bar both taxpayer and nontaxpayer claims in "any court" but this Court requires a determination whether this case is "appropriate" for the Court's obligatory original jurisdiction. Illinois v. City of Milwaukee, 406 U.S. 91, 93 (1972). "[A]lthough it may initially have been contemplated that this Court would always exercise its original jurisdiction when properly called upon to do so," Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 497 (1971), our cases recognize "the need [for] exercise of a sound discretion in order to protect this Court from an abuse of the opportunity to resort to its original jurisdiction. . . ." Massachusetts v. Missouri, 308 U.S. 1, 19 (1939). An original party establishes that a case is "appropriate" for obligatory jurisdiction by demonstrating, through "clear and convincing evidence," that it has suffered an injury *401 of "serious magnitude," see New York v. New Jersey, 256 U.S. 296, 309 (1921); see also Alabama v. Arizona, 291 U.S. 286, 292 (1934), and that it otherwise will be without an alternative forum. Maryland v. Louisiana, 451 U. S., at 740; Illinois v. City of Milwaukee, supra, at 93. The State of South Carolina's motion for leave to file satisfies, albeit by the barest of margins, both of these tests.[17] The State has demonstrated injury of "serious magnitude." It contends, and provides uncontroverted affidavits to support, that application of § 103(j)(1) will "materially interfere with and infringe upon the authority of South Carolina to borrow funds." Complaint 16. The authority the State claims has significant historical basis, see Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895), and the injury the State alleges could deprive it of a meaningful political choice. See Colorado v. Kansas, 320 U.S. 383, 393, and n. 8 (1943). Twenty-four States have filed a joint brief amici curiae in support of South Carolina's motion, which further attests to the "serious magnitude" of the federalism concerns at issue. Similarly, the State qua State has demonstrated that it has no adequate alternative forum in which to raise its unique Tenth and Sixteenth Amendment claims. See Maryland v. Lousiana, supra, at 743, and n. 19. If the State issues bearer bonds and urges its purchasers to contest the legality of § 103(j)(1), it will suffer irremedial injury. The purchasers will inevitably demand higher interest rates as compensation for bearing the risk of future potential federal taxes. Conversely, if the State forsakes bearer bonds in favor of registered ones, it will bear the increased expense that issuers of registered bonds incur, and it will be unable ever to contest the constitutionality of § 103(j)(1). In short, the State will *402 suffer irremedial injury if the Court does not assume original jurisdiction. Therefore, although great deference is due the longstanding congressional policy against premature judicial interference with federal taxes, I believe it is proper to exercise the Court's original jurisdiction under these unique circumstances. I emphasize both the unique circumstances of this case and the congressional policy against premature judicial interference because original litigants should not be misled into believing that this Court will become a haven for suits that cannot be entertained in lower courts with concurrent jurisdiction. The original jurisdiction is not a forum for litigating everyday tax concerns. Rather, it must be "sparingly" invoked. United States v. Nevada, 412 U.S. 534, 538 (1973). Moreover, the legislative policy against premature judicial interference embodied in the Act must be paid the highest deference by this Court. Thus, where the original party does not present a clear and convincing case that the tax at issue will impair its ability to structure integral operations of its government and that irremedial injury is likely to occur absent review in the original jurisdiction, I would defer to the legislative directive against premature judicial interference.[18] But since South Carolina's claims meet these stringent requirements, its motion for leave to file should be granted. IV I agree with the Court that the record is not sufficiently developed to permit us to address the merits and that a Special Master should be appointed. But I do not share its view *403A that the Tax Anti-Injunction Act applies only when Congress has provided an alternative avenue for a complaining party — one with original status or not — to litigate claims on its own behalf. That view is not, in my opinion, based on any fair or even tenable canon of statutory construction, and cannot be reconciled with express statements of congressional intent and purpose. Accordingly, I can concur only in the Court's judgment. *403B JUSTICE STEVENS, concurring in part and dissenting in part. While I join Parts I and II of the Court's opinion, I disagree with Part III. The Solicitor General has persuaded me that the Court should exercise its discretion to deny leave to file this complaint. We should do so not only because the proceeding can be conducted more expeditiously in another forum,[1] but also because it is so plain that even if we read the complaint liberally in favor of the State of South Carolina, there is simply no merit to the claim the State has advanced. I do not believe the Court does a sovereign State a favor by giving it an opportunity to expend resources in litigation that has no chance of success. I would therefore deny leave to file. South Carolina claims that § 103(j)(1) of the Internal Revenue Code of 1954, 26 U.S. C. § 103(j)(1) (1982 ed.), as added *404 by § 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982, 96 Stat. 596, is unconstitutional because it abridges the State's power to borrow money. Under the federal statute, the income that private citizens receive from state bonds is taxed unless the bonds are issued in registered form. As a practical matter, this requirement will force South Carolina to issue its bonds in registered form. Its complaint alleges that registered bonds are more costly to issue than bearer bonds and therefore that its future bond issues will generate smaller net revenues for the State. Although the State's constitutional arguments are not stated in precisely this form, in essence it claims that the statute is invalid because it violates: (1) the doctrine of intergovernmental tax immunity; (2) the Tenth Amendment; and (3) the doctrine of National League of Cities v. Usery, 426 U.S. 833 (1976). A long line of cases plainly forecloses the first claim; the other two are frivolous. I The origins of intergovernmental taxation immunity are found in McCulloch v. Maryland, 4 Wheat. 316 (1819). Of course, McCulloch dealt not with the immunity of the States, but rather with that of the United States. The Court held that the State of Maryland could not constitutionally tax the Bank of the United States because the power to tax the bank could be used to destroy it, thereby undermining the constitutionally guaranteed supremacy of the Federal Government. See id., at 425-437. The Court's argument was premised explicitly upon the Supremacy Clause of the Constitution, and thus its holding did not require that any immunity from taxation be accorded the States.[2] Therefore, the case upon which South Carolina relies is not McCulloch but Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895). There the Court specifically held that a *405 provision of the federal income tax statute taxing income derived from municipal bonds was unconstitutional. It noted that the Court had previously held that the United States lacks the authority to tax the property or revenues of States or municipalities, since their independence from federal control is secured by the Tenth Amendment. Of the cases cited by the Court, most dealt with whether the Federal Government could lay a tax directly upon the property of States or localities, paid by them. In only one, Collector v. Day, 11 Wall. 113 (1871), did the Court address whether the United States could tax the income of an individual derived from his dealings with a State. There, the Court had held that the United States could not tax the salaries of judicial officers of a State. After reciting this case law, the Court continued: "It is contended that although the property or revenues of the States or their instrumentalities cannot be taxed, nevertheless the income derived from state, county, and municipal securities can be taxed. But we think the same want of power to tax the property or revenues of the States or their instrumentalities exists in relation to a tax on the income from their securities, and for the same reason, and that reason is given by Chief Justice Marshall in Weston v. Charleston, 2 Pet. 449, 468, where he said: `The right to tax the contract to any extent, when made, must operate upon the power to borrow before it is exercised, and have a sensible influence on the contract. The extent of this influence, depends on the will of a distinct government. To any extent, however inconsiderable, it is a burthen on the operations of government. It may be carried to an extent which shall arrest them entirely. . . . The tax on government stock is thought by this court to be a tax on the contract, a tax on the power to borrow money on the credit of the United States, and consequently to be repugnant to the Constitution.' Applying this language to these municipal securities, it is obvious that taxation on the interest therefrom would operate on the power to borrow before *406 it is exercised, and would have a sensible influence on the contract, and that the tax in question is a tax on the power of the States and their instrumentalities to borrow money, and consequently repugnant to the Constitution." 157 U.S., at 585-586 (ellipsis in original). The theory employed in Pollock is what I shall refer to as the "intergovernmental burden" theory: even though a tax is not laid directly upon another government, if it has a "sensible influence" on the costs incurred by that government, it must fall. This theory is the only rationale offered by the Pollock Court for its decision, and it is on this theory that Pollock must stand or fall. The precedential weight of Pollock was doubtful almost from the start. Within a generation Pollock was seemingly overruled by constitutional amendment. The Sixteenth Amendment, ratified in 1913, states: "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration." (Emphasis supplied.) This clear language makes the fact that income is derived from interest on state or local obligations constitutionally irrelevant. Any doubt about the vitality of Pollock is dispelled by our subsequent cases. At every opportunity, this Court has rejected the intergovernmental burden theory. In Metcalf & Eddy v. Mitchell, 269 U.S. 514 (1926), the Court first rejected the theory. It held that the United States could tax the income derived by an independent contractor from its contracts with a State. The Court recognized that the federal tax increased costs incurred by the State,[3] but nevertheless upheld the tax: *407 "[H]ere the tax is imposed on the income of one who is neither an officer nor an employee of government and whose only relation to it is that of contract, under which there is an obligation to furnish service, for practical purposes not unlike a contract to sell and deliver a commodity. The tax is imposed without discrimination upon income whether derived from services rendered to the state or services rendered to private individuals. In such a situation it cannot be said that the tax is imposed upon an agency of government in any technical sense, and the tax cannot be deemed to be an interference with government, or an impairment of the efficiency of its agencies in any substantial way." Id., at 524-525.[4] Thus, the conceptual basis for Pollock had been undermined. A burden on the State imposed by taxing those who contract with it was no longer sufficient to invalidate a tax; the theory that a State's contracts could not be taxed which the Court had relied upon in Pollock was no longer good law.[5] *408 In Helvering v. Gerhardt, 304 U.S. 405 (1938), the repudiation of Pollock was unmistakable. The Court there held that the United States could tax the salaries of state employees. The Court began its analysis by pointing out that the scope of McCulloch was limited to state taxation of federal instrumentalities.[6] The Court read Weston v. Charleston, 2 Pet. 449 (1829), on which the Pollock Court had relied, as also limited in its application to state taxes, involving as it did an attempt whereby through state taxation "an impediment was laid upon the exercise of a power with respect to which the national government was supreme." 304 U.S., at 413, n. 3. It concluded that state immunity against federal taxation must be narrowly construed since "the people of all the states have created the national government and are represented in Congress. Through that representation they exercise *409 the national taxing power. The very fact that when they are exercising it they are taxing themselves, serves to guard against its abuse . . . ." Id., at 416. Moreover, "any allowance of a tax immunity for the protection of state sovereignty is at the expense of the sovereign power of the nation to tax. Enlargement of the one involves diminution of the other. When enlargement proceeds beyond the necessity of protecting the state, the burden of the immunity is thrown upon the national government with benefit only to a privileged class of taxpayers.. . . [I]f every federal tax which is laid on some new form of state activity, or whose economic burden reaches in some measure the state or those who serve it, were to be set aside as an infringement of state sovereignty, it is evident that a restriction on the national power, devised only as a shield to protect the states from curtailment of the essential operations of government which they have exercised from the beginning, would become a ready means for striking down the taxing power of the nation." Id., at 416-417. The Court concluded by explicitly rejecting the intergovernmental burden theory: "The state and national governments must co-exist. Each must be supported by taxation of those who are citizens of both. The mere fact that the economic burden of such taxes may be passed on to a state government and thus increase to some extent, here wholly conjectural, the expense of its operation, infringes no constitutional immunity. Such burdens are but normal incidents of the organization within the same territory of two governments, each possessed of the taxing power." Id., at 422. In Graves v. New York ex rel. O'Keefe, 306 U.S. 466 (1939), the Court held that a State could tax the salary of a *410 federal employee.[7] After again observing that state taxation immunity is narrower than that of the United States, see id., at 477-478, and should be narrowly construed, see id., at 483-484, the Court followed Gerhardt in upholding the state tax, overruled Collector v. Day, which had been relied upon in Pollock, and noted, in a passage pertinent to the claim made here by South Carolina, that "we perceive no *411 basis for a difference in result whether the taxed income be salary or some other form of compensation . . . ." 306 U.S., at 486. The Court concluded by again repudiating the intergovernmental burden theory. "So much of the burden of a non-discriminatory general tax upon the incomes of employees of a government, state or national, as may be passed on economically to that government, through the effect of the tax on the price level of labor or materials, is but the normal incident of the organization within the same territory of two governments, each possessing the taxing power. The burden, so far as it can be said to exist or to affect the government in any indirect or incidental way, is one which the Constitution presupposes, and hence it cannot rightly be deemed to be within an implied restriction upon the taxing power of the national and state governments which the Constitution has expressly granted to one and has confirmed to the other." Id., at 487.[8] The intergovernmental burden theory was rejected about as clearly as possible in Alabama v. King & Boozer, 314 U.S. 1 (1941), in which the Court upheld a state sales tax levied on the cost of material used by a federal contractor in performing a cost-plus contract, despite the fact that under the contract the economic burden of the tax fell exclusively on the United States.[9] Subsequently, the Court has consistently adhered to its repudiation of the intergovernmental *412 burden theory. See Washington v. United States, 460 U.S. 536, 540 (1983); Memphis Bank & Trust Co. v. Garner, 459 U.S. 392, 397 (1983); United States v. New Mexico, 455 U.S. 720, 734 (1982); United States v. County of Fresno, 429 U.S. 452, 460-462 (1977); Gurley v. Rhoden, 421 U.S. 200, 205 (1975). As the Court recently wrote, "an economic burden on traditional state functions without more is not a sufficient basis for sustaining a claim of immunity." Massachusetts v. United States, 435 U.S. 444, 461 (1978).[10] Perhaps the plainest explication of this Court's position on state tax immunity is found in New York v. United States, 326 U.S. 572 (1946), a case holding that the United States could tax New York's income from its sale of state-owned mineral waters. Justice Frankfurter, joined by Justice Rutledge, wrote that in his view any nondiscriminatory tax on *413 state activities was constitutional. See id., at 581-584 (opinion of Frankfurter, J.); see also id., at 584-585 (Rutledge, J., concurring). Four additional Justices agreed that the tax was valid, stating: "Only when and because the subject of taxation is State property or a State activity must we consider whether such a non-discriminatory tax unduly interferes with the performance of the State's functions of government." Id., at 588 (Stone, C. J., joined by Reed, Murphy, and Burton, JJ., concurring in result).[11] S. R. A., Inc. v. Minnesota, 327 U.S. 558 (1946), was decided during the same Term. There, land owned by the United States was occupied by S. R. A., which had bought the land under a conditional sales contract that left title in the United States pending full payment of the purchase price. Nevertheless, the Court held that state property taxes could be assessed against the land, since in reality the private *414 party and not the United States was being taxed.[12] Thus the Court recognized that where the property inures to the benefit of a private party, it has no immunity from taxation despite the fact that the taxation may increase the costs imposed on the governmental entity.[13] The same approach was taken in United States v. City of Detroit, 355 U.S. 466 (1958), when the Court upheld a municipal tax on property owned by the United States but leased to a private party, observing that "it is well settled that the Government's constitutional immunity does not shield private parties with whom it does business from state taxes imposed on them merely because part or all of the financial burden of the tax eventually falls on the Government." Id., at 469.[14] See also United States v. Township of Muskegon, 355 U.S. 484 (1958); City of Detroit v. Murray Corp., 355 U.S. 489 (1958); Wilmette Park Dist. v. Campbell, 338 U.S. 411, 419-420 (1949). Our cases thus demonstrate the insubstantiality of South Carolina's claim. Under § 103(j)(1), South Carolina is not required to pay any federal tax at all. The tax is imposed not upon state property or revenues, but only upon persons with whom it contracts. Under the test adopted by a majority of the Court in New York v. United States, and followed since, *415 this alone defeats its claim. South Carolina is trying to shield private parties with whom it does business from taxation because part of the financial burden of the tax falls upon it. This Court has repeatedly rejected exactly that sort of claim.[15] Moreover, the rationale on which Pollock is based — the intergovernmental burden theory — has been repudiated over and over again by this Court. There is simply nothing left of Pollock on which South Carolina can base a claim. Even if there were enough left of Pollock to invalidate a federal tax that might cripple traditional state functions, the burden imposed on the State here is far from crushing. South Carolina estimates that if it must issue its bonds in registered form it will have to pay an additional one quarter of one percent interest on its bonds.[16] It identifies in its offer of *416 proof no disruption in its operation except for this slight increase in interest costs.[17] Surely this cost is infinitesimal compared to the costs imposed on States and localities because their employees' salaries are federally taxed — a burden that the Federal Government unquestionably has the constitutional power to impose. Moreover, the challenged statute still provides States and localities with the ability to offer debt instruments at substantially less than the market rates which must be paid by private enterprise — three to five points lower according to South Carolina's estimate. It is hard to see how marginal increases in the interest they must pay can destroy the integrity of governmental entities when private entities are able not only to survive but generally to make a profit while obtaining financing at significantly higher rates of interest. As Professor Thomas Reed Powell observed: "Public bonds will not be put in an unfavorable position relatively by being subjected to taxes on the income. They will merely be deprived of an artificial advantage heretofore enjoyed, which however is not strictly necessary in all probability in order to give them a practical success on the financial markets of the country when offered at the same rates of interest that have usually been offered in the past." Powell, Intergovernmental Tax Immunities, 8 Geo. Wash. L. Rev. 1213, 1214-1215 (1940). In contrast to the slight burden alleged by South Carolina, the Federal Government's interest in encouraging bearer bonds to be issued in registered form is substantial, as the Senate Report on this provision makes clear. *417 "The Committee believes that a fair and efficient system of information reporting and withholding cannot be achieved with respect to interest-bearing obligations as long as a significant volume of long-term bearer instruments is issued. A system of book-entry registration will preserve the liquidity of obligations while requiring the creation of ownership records that can produce useful information reports with respect to both the payment of interest and the sale of obligations prior to maturity through brokers. Furthermore, registration will reduce the ability of noncompliant taxpayers to conceal income and property from the reach of the income, estate, and gift taxes. Finally, the registration requirement may reduce the volume of readily negotiable substitutes for cash available to persons engaged in illegal activities." S. Rep. No. 97-494, pt. 1, p. 242 (1982). As this Court has previously held, the Constitution does not invalidate every burden on a State or locality created by federal taxation because such burdens are the "normal incident" of a system of dual sovereigns with dual taxing powers, which the Constitution envisions will coexist. Surely it follows that the Constitution intended that the taxing power it gave the Federal Government not be undermined through the abuse engendered by bearer instruments. The burden imposed upon States and localities by efforts to eliminate such abuse is one necessary in a system committed to the efficacy of dual taxing authorities. The fairness of this requirement is highlighted by the fact that § 103(j)(1) requires that federally issued bonds also be in registered form to be tax exempt. Even in the heyday of Pollock, the Court never held that the Federal Government impermissibly infringed state sovereignty by imposing a burden on the States that it also imposed on itself. If Congress has destroyed some protected concept of state sovereignty through § 103(j)(1), then it has destroyed the sovereignty of the United States as well. *418 II South Carolina's complaint alleges that § 103(j)(1) violates the Tenth Amendment. That Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In order to bring its challenge within the terms of that Amendment, South Carolina alleges: "The Congress of the United States has no power whatsoever to impose an income tax upon the interest paid by South Carolina to its lenders." Complaint ¶ 9. This allegation is inconsistent with the plain language of the Constitution itself. Article I, § 8, specifically delegates to Congress the "Power To lay and collect Taxes," and the Sixteenth Amendment removes any possible ambiguity concerning the scope of the power exercised by Congress in this case. The cases I have discussed above confirm this point. Because the power to tax private income has been expressly delegated to Congress, the Tenth Amendment has no application to this case. III Finally, South Carolina relies on National League of Cities v. Usery, 426 U.S. 833 (1976). In that case the Court held that a federal statute extending the provisions of the Fair Labor Standards Act to certain public employees was "not within the authority granted Congress by Art. I, § 8, cl. 3." Id., at 852 (footnote omitted). The conclusion that the case merely involved an interpretation of the outer limits of the congressional power to regulate interstate commerce was then confirmed by the following footnote: "We express no view as to whether different results might obtain if Congress seeks to affect integral operations of state governments by exercising authority granted it under other sections of the Constitution such *419 as the spending power, Art. I, § 8, cl. 1, or § 5 of the Fourteenth Amendment." Id., at 852, n. 17. By its express terms, therefore, the National League of Cities case has no application to South Carolina's challenge to an exercise of the federal taxing power.[18] In sum, I can see no basis on which South Carolina could prevail in this case, even accepting its allegations and offers of proof for all they are worth. We do South Carolina no favor by permitting it to file and litigate a claim on which it has no chance of prevailing. At the same time, the Court's decision to permit South Carolina to file this claim is an unwise use of its scarce resources. Accordingly, I respectfully dissent from the Court's decision to grant South Carolina's motion for leave to file its complaint.

I, too, agree with all those who have written opinions in this case that the Anti-Injunction Act, 26 U.S. C. 421(a), is no bar to the ability of the State of South Carolina to invoke the original jurisdiction of this Court in order to challenge the validity of a federal tax statute. Like JUSTICE O'CONNOR, I have reservations about the breadth of the approach taken by JUSTICE BRENNAN in determining that Congress did not intend the Act to apply in any case in which the aggrieved party has no alternative avenue by which to contest the legality of a particular tax. In Bob Jones the Court stressed the broad sweep of the Anti-Injunction Act. The Court noted that the language added in 66, prohibiting any suit for the purpose of restraining the assessment or collection of any tax "by any person, whether or not such person is the person against whom such tax was assessed," see 110(c) of the Federal Tax Lien Act of 66, *383 Stat. 1144, was intended as a "reaffirmation of the plain meaning" of the Act as it had stood since 186. See -32, n. 6. See also The Court in Bob Jones rejected the petitioner's efforts to rely on exceptions to the reach of the Act suggested in the 10's for situations in which there is no adequate remedy short of a suit to enjoin the challenged tax. See Because it concluded that the plaintiffs in Bob Jones and "Americans United" had access to judicial forums in which to challenge the alleged deprivations of their property, the Court did not need to decide whether and under what circumstances its broad reading of the Anti-Injunction Act might deny an aggrieved party due of law. Unlike JUSTICE O'CONNOR, I see no need to decide whether Congress intended the Anti-Injunction Act to apply to suits invoking this Court's original jurisdiction. I would decide this case on the narrower ground set forth in my dissenting opinion in "Americans United," I there expressed concern that the Court was overlooking a necessary first step in applying the Anti-Injunction Act, that is, the determination whether the litigation is a " `suit for the purpose of restraining' " any tax. quoting 26 U.S. C. 421(a). Here, as in "Americans United," there can be no serious argument that the disposition of South Carolina's claim will have much effect, if any at all, upon federal tax revenues. If South Carolina loses, it will register its securities.[*] If it wins, it will continue to issue unregistered *384 securities. In either event, the Federal Government will receive no more tax revenues from purchasers of such securities than it has enjoyed since was decided in 15. The acknowledged purpose of Congress in enacting 310 (b)(1) of TEFRA in 82 so as to add a new 103(j) to the Internal Revenue Code of 54 was to encourage the States to issue securities in registered form. See Staff of Joint Committee on Taxation, General Explanation of the Revenue Provisions of the Tax Equity and Fiscal Responsibility Act of 82, 9th Cong., 2d Sess., 1 In a case such as this, where it is evident that the challenged governmental action is one to "accomplish a broad-based policy objective" rather than to produce revenue, see "Americans United," and the disposition of the challenge will have no effect on federal revenues, I conclude that the suit is not one "for the purpose of restraining the assessment or collection of any tax," within the words of 421(a). Although I would not hold the Anti-Injunction Act to be a bar to South Carolina's ability to bring this suit in another court, I agree that we should hear this case. Exercise of our original jurisdiction is discretionary and, though the Court has exercised it sparingly, we are not prohibited from doing so by the fact that the original party may have an alternative forum. See The issue presented is a substantial one, and is of concern to a number of States. I am satisfied that prompt resolution of the issue here will benefit all concerned and that the decision to grant leave to file is a proper exercise of our discretion. JUSTICE O'CONNOR, with whom JUSTICE POWELL, and JUSTICE REHNQUIST join, concurring in the judgment. The motion of South Carolina for leave to file a complaint in our original jurisdiction raises three questions. First, the Court must decide whether Congress intended by the *385 Tax Anti-Injunction Act, 26 U.S. C. 421(a), to bar nontaxpayers like the State of South Carolina from challenging the validity of federal tax statutes in the courts. Second, if the Act generally does bar such nontaxpayer suits, the Court must decide whether Congress intended, and if so whether the Constitution permits it, to bar us from considering South Carolina's complaint in our original jurisdiction. Third, if Congress either did not intend or constitutionally is not permitted to withdraw this case from our original jurisdiction, the Court must decide whether South Carolina's challenge to the constitutionality of 103(j)(1) of the Internal Revenue Code of 54, 26 U.S. C. 103(j)(1) (82 ed.), as added by 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 82, Stat. 596, raises issues appropriate for original adjudication. In answering the first question, the Court reaches the unwarranted conclusion that the Tax Anti-Injunction Act proscribes only those suits in which the complaining party, usually a taxpayer, can challenge the validity of a taxing measure in an alternative forum. The Court holds that suits by nontaxpayers generally are not barred. In my opinion, the Court's interpretation fundamentally misconstrues the congressional anti-injunction policy. Accordingly, I cannot join its opinion. I A The Tax Anti-Injunction Act provides, in pertinent part, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." 26 U.S. C. 421(a). The Act's language "could scarcely be more explicit" in prohibiting nontaxpayer suits like this one, Bob Jones since the suit indisputably would have the purpose and effect of restraining taxes. See The Act plainly bars not only "a taxpayer's *386 attempt to enjoin the collection of his own taxes," but also "a suit to enjoin the assessment or collection of anyon[e] [else's] taxes" Though the Internal Revenue Code (Code) contains a few exceptions to this nearly complete ban,[1] for the most part Congress has restricted the judicial role to resolution of concrete disputes over specific sums of money, either by way of a deficiency proceeding in the Tax Court, see 26 U.S. C. 12, 13, or by way of a taxpayer's suit for refund, see 26 U.S. C. 6532, 422. In depriving courts of jurisdiction to resolve abstract tax controversies, Congress has determined that the United States must be able "to assess and collect taxes alleged to be due without judicial intervention" "[T]axes are the life-blood of government," 295 U.S. 24, and the anti-injunction prohibition is Congress' recognition that "the tenacity of the American taxpayer" constantly threatens to drain the Nation of a life-sustaining infusion of revenues. See Gorovitz, Federal Tax Injunctions and the Standard Nut The Act's proscription literally extends to nontaxpayer as well as taxpayer suits, if only to prevent taxpayers from sidestepping the anti-injunction policy by bringing suit through nontaxpaying associations of taxpayers.[2]*38 Moreover, by broadly precluding both taxpayer and nontaxpayer suits, the Act serves a collateral objective of protecting "the collector from litigation pending a suit for refund." at -8. The tax collector is an attractive target for all kinds of litigation, see, e. g., (6), and the Act ensures that only Congress and the Treasury, not a host of private plaintiffs, will determine the focus of the collector's energies. B The Act's history expressly reflects the congressional desire that all injunctive suits against the tax collector be prohibited. First enacted in 186,[3] it apparently was designed to protect the federal tax system from being inundated with the same type of injunctive suits that were then sweeping over the state tax systems. See State Railroad Tax 92 U.S. 55, (186); There is little contemporaneous documentation,[4] but this Court's decisions indicate that the 39th Congress acted with a ". sense of the evils to be feared if courts of justice could, in any case, interfere with the of collecting *388 the taxes on which the government depends for its continued existence." State Railroad Tax at The experience in the States demonstrated the grave dangers which accompany intrusion of the injunctive power of the courts into the administration of the revenue: "If there existed in the courts any general power of impeding or controlling the collection of taxes, or relieving the hardship incident to taxation, the very existence of the government might be placed in the power of a hostile judiciary." (186). To avoid these evils and to safeguard the federal tax system, the 39th Congress committed administration of the Code to the discretion of the Secretary of the Treasury.[5] This broad anti-injunction ban remained essentially untouched for almost a century.[6] In 66, however, Congress *3 took steps to "reaffir[m] the plain meaning of the original language of the Act." 416 U. S., at and n. 11. In 110(c) of the Federal Tax Lien Act, Stat. 1144, Congress amended the Act to emphasize that no injunctive action "by any person, whether or not such person is the person against whom such tax was assessed" could be maintained in the courts. The Treasury Department proposed the 66 amendment, and its principal spokesperson, Assistant Secretary Surrey, testified: "Subsection (c) of section 110 of the bill amends section 421(a) of the code. That section presently prohibits injunctions against the assessment or collection of tax. The cases decided under this provision raise a question as to whether this prohibition applies against actions by persons other than the taxpayer. New section 426 will specifically allow actions by third parties to enjoin the enforcement of a levy or sale of property. The amendment to section 421 makes clear that third parties may bring injunction suits only under the circumstances provided in new section 426(b)(1) of the code." Statement by the Hon. Stanley S. Surrey, Assistant Secretary of the Treasury, reprinted in Hearings on H. R. 11256 and H. R. 112, before the House Committee on Ways and Means, th Cong., 2d Sess., 58 The House Committee on Ways and Means and the Senate Committee on Finance apparently shared Mr. Surrey's understanding of the rights of nontaxpayers under prior law, for their Reports both state: "Under present law, the United States cannot be sued by third persons where its collection activities interfere with their property rights. This includes cases where the Government wrongfully levies on one person's property in attempting to collect from a taxpayer. However, some courts allow suits to be brought against *3 district directors of Internal Revenue where this occurs." H. R. Rep. No. 1884, th Cong., 2d Sess., 2 ; S. Rep. No. 108, th Cong., 2d Sess., 29 To accommodate these conflicting rights, both Committees recommended that Congress enact 426, allowing "persons other than taxpayers" to bring suits against the United States to protect pre-existing liens on property levied upon by the Treasury, and amend 421(a) to forbid suits by all third persons, excepting those within the ambit of new 426. Congress followed the Committees' recommendations, on the understanding that the new language in 421(a) was "declaratory, not innovative." Bob Jones 416 U. S., at 31-32, n. 6.[] Congress has since relaxed the statutory proscription against third-party suits on several occasions. For example, in 4, it provided that certain designated persons could obtain declaratory judgments in the Tax Court with respect to the tax status of pension plans. See 26 U.S. C. 46. Similarly, in 6, because "[u]nder [prevailing] law no court review of [Internal Revenue Service] ruling[s] [was] available," H. R. Conf. Rep. No. p. 463 (6), Congress provided declaratory judgment procedures for determining the tax status of charitable organizations and of certain property transfers. See 26 U.S. C. 428, 4; see also H. R. Conf. Rep. No. Finally, in 8, in 26 U.S. C. 48 (82 ed.), Congress provided a mechanism whereby state or local governments could seek declaratory judgments as to the tax status of proposed municipal bond issuances.[8] The relevant Senate Report noted: "As a practical matter, there is no effective appeal from a Service private letter ruling (or failure to issue a private letter ruling) that a proposed issue of municipal bonds is taxable. In those cases, although there may be a real controversy between a State or local government and the Service, present law does not allow the State or local government to go to court. The controversy can be resolved only if the bonds are issued, a bondholder excludes interest on the bonds from income, the exclusion is disallowed, and the Service asserts a deficiency in its statutory notice of deficiency. This uncertainty coupled with the threat of the ultimate loss of the exclusion, invariably makes it impossible to market the bonds. In addition, it is impossible for a State or local government to question the Service rulings and regulations directly. "[S]tate and local government[s] should have a right to court adjudication in the situation described above. The bill deals with the problem by providing for a declaratory judgment as to the tax status of a proposed *392 issue of municipal bonds." S. Rep. No. 95-1263, pp. 150-151 (8). The Conference Report reflects a similar view of prevailing law. See H. R. Conf. Rep. No. 95-1800, p. 240 (8). Thus, in 4, 6, and again in 8, Congress expressed its belief that the Tax Anti-Injunction Act generally bars nontaxpayers from bringing the kind of injunctive action the State of South Carolina asks leave to file today.[9] These subsequently enacted provisions and the legislative understanding of them are entitled to "great weight" in construing earlier, related legislation. See, e. g., Red Lion Broadcasting v. FCC, 395 U.S. 36, ; FHA v. The Darlington, Combined with the legislative purposes obviously motivating the 39th and th Congresses, these provisions conclusively demonstrate that, absent express exemption, the Act generally precludes judicial resolution of all abstract tax controversies, even if the complaining parties would have no other forum in which to bring their challenges. C The Court drew these same conclusions in Bob Jones See 416 U.S., at -46. In that case, the Court rejected a private institution's request that an additional exception beyond the one created in be carved out of the Act.[10] The Court responded that Williams Packing "was meant to be the capstone to judicial construction of the Act. It spells an end to a cyclical pattern of allegiance to the plain meaning of the Act, followed by periods of uncertainty caused by a judicial departure from that meaning, and followed in turn by the Court's rediscovery of the Act's purpose." 416 U.S., at 42. Bob Jones University then reaffirmed that, except where a litigant can show both that the Government would "under no circumstances prevail" and that equity jurisdiction is otherwise present, the Act would be given its "literal effect." at 3, 42-45. Because the plaintiffs in Bob Jones University were assured ultimately of having access to a judicial forum, the Court did not definitively resolve whether Congress could bar a tax suit in which the complaining party would be denied all access to judicial review. See at 46. But the Court's reference to "a case in which an aggrieved party has no access at all to judicial review" came in the context of its discussion of the taxpayer's claim that postponement of its challenge to the revocation of its tax-exempt status would violate due Bob Jones University's dictum, therefore, should be interpreted only as reflecting the established rule that Congress cannot, consistently with due deny a taxpayer with property rights at stake all opportunity for an ultimate judicial determination of the legality of a tax assessment against him. See 283 U.S. 5, 596-59 *394 On this reading, Bob Jones University's recognition that the complete inaccessability of judicial review might implicate due concerns provides absolutely no basis for crafting an exception in this case. The State of South Carolina is not a "person" within the meaning of the Due Process Clause. See South Nor does the State assert a right cognizable as a "property" interest protected by that Clause. See generally Logan v. Zimmerman Brush Therefore, it has no due right to review of its claim in a judicial forum.[11] In holding that the Act does not bar suits by nontaxpayers with no other remedies, the Court today has created a "breach in the general scheme of taxation [that] gives an opening for the disorganization of the whole plan" Nontaxpaying associations of taxpayers, and most other nontaxpayers, will now be allowed to sidestep Congress' policy against judicial resolution of abstract tax controversies. They can now challenge both Congress' tax statutes and the Internal Revenue Service's regulations, Revenue Rulings, and private letter decisions. In doing so, they can impede *395 the of collecting federal revenues and require Treasury to focus its energies on questions deemed important not by it or Congress but by a host of private plaintiffs. The Court's holding travels "a long way down the road to the emasculation of the Anti-Injunction Act, and down the companion pathway that leads to the blunting of the strict requirements of Williams Packing" (6) I simply cannot join such a fundamental undermining of the congressional purpose. II The Act's language, purpose, and history should leave no doubt that Congress intended to preclude both taxpayer and nontaxpayer suits, regardless of the availability of an alternative forum. The Solicitor General agrees and contends that, since the anti-injunction prohibition extends to "any court," it should be read to bar this Court from acting in its original jurisdiction as well. The Solicitor General's contention raises a grave constitutional question: namely, whether Congress constitutionally can impose remedial limitations so jurisdictional in nature that they effectively withdraw the original jurisdiction of this Court. A Under the language used in Art. III of the Constitution, Congress relates to the courts of the United States in three textually different ways.[12] In its broadest textual delegation, *396 that Article authorizes Congress to establish the "inferior Courts" and places no express limits on the congressional power to regulate the courts so created. See U. S. Const., Art. III, 1, cl. 1. By contrast, that Article itself creates the Supreme Court and textually differentiates between Congress' relationship with the appellate and original jurisdictions of that Court. Article III expressly empowers Congress to make "Exceptions" and "Regulations" to the appellate jurisdiction. U. S. Const., Art. III, 2, cl. 2; Ex parte McCardle, Wall. 506 But, in what is effectively its narrowest delegation, Art. III is silent regarding Congress' authority to make exceptions to or regulations regarding cases in the original jurisdiction — those that affect "Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." Though the original history of Art. III is sparse,[13] what is available indicates that these textual differences were purposeful on the Framers' part. The Framers obviously thought that the National Government should have a judicial system of its own and that that system should have a Supreme Court. However, because the Framers believed the state courts would be adequate for resolving most disputes, they generally left Congress the power of determining what cases, if any, should be channelled to the federal courts. The one textual exception to that rule concerned the original jurisdiction, where the Framers apparently mandated that Supreme Court review be available. "The evident purpose *39 was to open and keep open the highest court of the nation for the determination, in the first instance, of suits involving a State or a diplomatic or commercial representative of a foreign government." The Framers apparently thought that "[s]o much was due the rank and dignity of those for whom the provision was made" ; see also The Federalist No. 81, pp. 50-509 (A. Hamilton). Perhaps more importantly, the Framers also thought that the original jurisdiction was a necessary substitute for the powers of war and diplomacy that these sovereigns previously had relied upon. See ; United (12). "The Supreme Court [was] given higher standing than any known tribunal, both by the nature of its rights and the categories subject to its jurisdiction," A. de Tocqueville, Democracy in America 149 (emphasis in original), precisely to keep sovereign nations and States from using force "to rebuff the exaggerated pretensions of the Union" Our cases have long paid tribute to the foreign sovereignty and federalism concerns forming the basis of the original jurisdiction. See at -; 451 U.S. 25, 43 Out of respect for these concerns, the Court has held that Congress is without power to add parties not within the initial grant of original jurisdiction, see 1 Cranch 13, 14 and has indicated, in dicta, that Congress may not withdraw that jurisdiction either. See, e. g., (9); California v. Southern Pacific 15 U.S. 229, (15); Wisconsin v. Pelican Insurance 12 U.S. 265, ; at ; ; at 14. Enlarging the original jurisdiction would require the sovereigns for whom the provision was made to compete with other, less dignified, *398 parties for the Court's limited time and resources; diminishing the original jurisdiction possibly would leave those sovereigns without an acceptable alternative to diplomacy and war for settling disputes. To be sure, the Tax Anti-Injunction Act does not expressly withdraw the original jurisdiction of this Court. Rather, it merely prohibits "any court" from "maintain[ing]" a suit that has "the purpose of restraining the assessment or collection" of federal taxes. See 26 U.S. C. 421(a). The effect of this prohibition, however, is to preclude this Court ever from assuming original jurisdiction to adjudicate a State qua State's Tenth and Sixteenth Amendment tax claims, in apparent derogation of the grant's constitutional purpose.[14] While "Congress has broad powers over the jurisdiction of the federal courts and over the sovereign immunity of the United States[,] it is extremely doubtful that they include the power to limit in this manner the original jurisdiction conferred upon this Court by the Constitution." B Nevertheless, it is this Court's longstanding practice to avoid resolution of constitutional questions except when absolutely necessary. "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be *399 avoided." Such a construction is possible in this case. The manifest purpose of the Tax Anti-Injunction Act is simply to permit the United States to assess and collect taxes without undue judicial interference and to require that legal challenges be raised in certain designated forums. The language and history of the Act evidence a congressional desire generally to bar both taxpayer and nontaxpayer suits, since both can substantially interrupt "the of collecting the taxes on which the government depends for its continued existence" if left uncontrolled. State Railroad Tax 92 U. S., at Similarly, the language and history evidence a congressional desire to prohibit courts from restraining any aspect of the tax laws' administration, since the prohibition against injunctions should not depend upon the alleged legality or character of a particular assessment. See -4. Yet the statute was enacted against a settled history in which foreign and state sovereigns had a unique right to seek refuge in the original jurisdiction of this Court. Nothing in the legislative history of the Act of 186, of the later amendments, or of the related declaratory judgment provisions enacted in 4, 6, or 8, mentions any intent to alter these sovereign parties' unique right occasionally to seek injunctive relief by original action in this Court, even with regard to tax matters. Admittedly, the Act precludes "any court" from maintaining a suit initiated for the purpose of restraining the assessment or collection of federal taxes. See 26 U.S. C. 421(a). That language clearly instructs all courts that Congress constitutionally controls not to prematurely interfere with the assessment and collection of federal taxes. That language does not, however, necessarily encompass this Court, which Congress did not create and which Congress is not expressly empowered to make "Exceptions" or "Regulations" as to its original jurisdiction. Moreover, since only a small number of pre-enforcement suits could conceivably involve a party for whom the original jurisdiction was created, *400 there is no reason to believe that Congress would want to have the constitutionality of its anti-injunction policy placed into question.[15] Given this de minimis effect and the absence of express congressional intent to the contrary, I would conclude that the Act's reference to "any court" means to assure that all state, as well as federal, courts are subject to the anti-injunction prohibition. Such an interpretation gives meaning to the Act and avoids a grave constitutional question.[16] III Interpreting the Tax Anti-Injunction Act to bar both taxpayer and nontaxpayer claims in "any court" but this Court requires a determination whether this case is "appropriate" for the Court's obligatory original jurisdiction. (2). "[A]lthough it may initially have been contemplated that this Court would always exercise its original jurisdiction when properly called upon to do so," 401 U.S. 4, 49 (1), our cases recognize "the need [for] exercise of a sound discretion in order to protect this Court from an abuse of the opportunity to resort to its original jurisdiction." (). An original party establishes that a case is "appropriate" for obligatory jurisdiction by demonstrating, through "clear and convincing evidence," that it has suffered an injury *401 of "serious magnitude," see New (21); see also Alabama v. (14), and that it otherwise will be without an alternative forum. 451 U. S., at 40; at The State of South Carolina's motion for leave to file satisfies, albeit by the barest of margins, both of these tests.[1] The State has demonstrated injury of "serious magnitude." It contends, and provides uncontroverted affidavits to support, that application of 103(j)(1) will "materially interfere with and infringe upon the authority of South Carolina to borrow funds." Complaint 16. The authority the State claims has significant historical basis, see (15), and the injury the State alleges could deprive it of a meaningful political choice. See Colorado v. 3, (43). Twenty-four States have filed a joint brief amici curiae in support of South Carolina's motion, which further attests to the "serious magnitude" of the federalism concerns at issue. Similarly, the State qua State has demonstrated that it has no adequate alternative forum in which to raise its unique Tenth and Sixteenth Amendment claims. See Maryland v. at 43, and n. If the State issues bearer bonds and urges its purchasers to contest the legality of 103(j)(1), it will suffer irremedial injury. The purchasers will inevitably demand higher interest rates as compensation for bearing the risk of future potential federal taxes. Conversely, if the State forsakes bearer bonds in favor of registered ones, it will bear the increased expense that issuers of registered bonds incur, and it will be unable ever to contest the constitutionality of 103(j)(1). In short, the State will *402 suffer irremedial injury if the Court does not assume original jurisdiction. Therefore, although great deference is due the longstanding congressional policy against premature judicial interference with federal taxes, I believe it is proper to exercise the Court's original jurisdiction under these unique circumstances. I emphasize both the unique circumstances of this case and the congressional policy against premature judicial interference because original litigants should not be misled into believing that this Court will become a haven for suits that cannot be entertained in lower courts with concurrent jurisdiction. The original jurisdiction is not a forum for litigating everyday tax concerns. Rather, it must be "sparingly" invoked. United (1). Moreover, the legislative policy against premature judicial interference embodied in the Act must be paid the highest deference by this Court. Thus, where the original party does not present a clear and convincing case that the tax at issue will impair its ability to structure integral operations of its government and that irremedial injury is likely to occur absent review in the original jurisdiction, I would defer to the legislative directive against premature judicial interference.[18] But since South Carolina's claims meet these stringent requirements, its motion for leave to file should be granted. IV I agree with the Court that the record is not sufficiently developed to permit us to address the merits and that a Special Master should be appointed. But I do not share its view *403A that the Tax Anti-Injunction Act applies only when Congress has provided an alternative avenue for a complaining party — one with original status or not — to litigate claims on its own behalf. That view is not, in my opinion, based on any fair or even tenable canon of statutory construction, and cannot be reconciled with express statements of congressional intent and purpose. Accordingly, I can concur only in the Court's judgment. *403B JUSTICE STEVENS, concurring in part and dissenting in part. While I join Parts I and II of the Court's opinion, I disagree with Part III. The Solicitor General has persuaded me that the Court should exercise its discretion to deny leave to file this complaint. We should do so not only because the proceeding can be conducted more expeditiously in another forum,[1] but also because it is so plain that even if we read the complaint liberally in favor of the State of South Carolina, there is simply no merit to the claim the State has advanced. I do not believe the Court does a sovereign State a favor by giving it an opportunity to expend resources in litigation that has no chance of success. I would therefore deny leave to file. South Carolina claims that 103(j)(1) of the Internal Revenue Code of 54, 26 U.S. C. 103(j)(1) (82 ed.), as added *404 by 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 82, is unconstitutional because it abridges the State's power to borrow money. Under the federal statute, the income that private citizens receive from state bonds is taxed unless the bonds are issued in registered form. As a practical matter, this requirement will force South Carolina to issue its bonds in registered form. Its complaint alleges that registered bonds are more costly to issue than bearer bonds and therefore that its future bond issues will generate smaller net revenues for the State. Although the State's constitutional arguments are not stated in precisely this form, in essence it claims that the statute is invalid because it violates: (1) the doctrine of intergovernmental tax immunity; (2) the Tenth Amendment; and (3) the doctrine of National League of (6). A long line of cases plainly forecloses the first claim; the other two are frivolous. I The origins of intergovernmental taxation immunity are found in (18). Of course, McCulloch dealt not with the immunity of the States, but rather with that of the United States. The Court held that the State of Maryland could not constitutionally tax the Bank of the United States because the power to tax the bank could be used to destroy it, thereby undermining the constitutionally guaranteed supremacy of the Federal Government. See at 425-43. The Court's argument was premised explicitly upon the Supremacy Clause of the Constitution, and thus its holding did not require that any immunity from taxation be accorded the States.[2] Therefore, the case upon which South Carolina relies is not McCulloch but (15). There the Court specifically held that a *405 provision of the federal income tax statute taxing income derived from municipal bonds was unconstitutional. It noted that the Court had previously held that the United States lacks the authority to tax the property or revenues of States or municipalities, since their independence from federal control is secured by the Tenth Amendment. Of the cases cited by the Court, most dealt with whether the Federal Government could lay a tax directly upon the property of States or localities, paid by them. In only one, (181), did the Court address whether the United States could tax the income of an individual derived from his dealings with a State. There, the Court had held that the United States could not tax the salaries of judicial officers of a State. After reciting this case law, the Court continued: "It is contended that although the property or revenues of the States or their instrumentalities cannot be taxed, nevertheless the income derived from state, county, and municipal securities can be taxed. But we think the same want of power to tax the property or revenues of the States or their instrumentalities exists in relation to a tax on the income from their securities, and for the same reason, and that reason is given by Chief Justice Marshall in where he said: `The right to tax the contract to any extent, when made, must operate upon the power to borrow before it is exercised, and have a sensible influence on the contract. The extent of this influence, depends on the will of a distinct government. To any extent, however inconsiderable, it is a burthen on the operations of government. It may be carried to an extent which shall arrest them entirely. The tax on government stock is thought by this court to be a tax on the contract, a tax on the power to borrow money on the credit of the United States, and consequently to be repugnant to the Constitution.' Applying this language to these municipal securities, it is obvious that taxation on the interest therefrom would operate on the power to borrow before *406 it is exercised, and would have a sensible influence on the contract, and that the tax in question is a tax on the power of the States and their instrumentalities to borrow money, and consequently repugnant to the Constitution." 15 U.S., at 585-586 The theory employed in Pollock is what I shall refer to as the "intergovernmental burden" theory: even though a tax is not laid directly upon another government, if it has a "sensible influence" on the costs incurred by that government, it must fall. This theory is the only rationale offered by the Pollock Court for its decision, and it is on this theory that Pollock must stand or fall. The precedential weight of Pollock was doubtful almost from the start. Within a generation Pollock was seemingly overruled by constitutional amendment. The Sixteenth Amendment, ratified in 13, states: "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration." (Emphasis supplied.) This clear language makes the fact that income is derived from interest on state or local obligations constitutionally irrelevant. Any doubt about the vitality of Pollock is dispelled by our subsequent cases. At every opportunity, this Court has rejected the intergovernmental burden theory. In Metcalf & (26), the Court first rejected the theory. It held that the United States could tax the income derived by an independent contractor from its contracts with a State. The Court recognized that the federal tax increased costs incurred by the State,[3] but nevertheless upheld the tax: *40 "[H]ere the tax is imposed on the income of one who is neither an officer nor an employee of government and whose only relation to it is that of contract, under which there is an obligation to furnish service, for practical purposes not unlike a contract to sell and deliver a commodity. The tax is imposed without discrimination upon income whether derived from services rendered to the state or services rendered to private individuals. In such a situation it cannot be said that the tax is imposed upon an agency of government in any technical sense, and the tax cannot be deemed to be an interference with government, or an impairment of the efficiency of its agencies in any substantial way."[4] Thus, the conceptual basis for Pollock had been undermined. A burden on the State imposed by taxing those who contract with it was no longer sufficient to invalidate a tax; the theory that a State's contracts could not be taxed which the Court had relied upon in Pollock was no longer good law.[5] *408 In the repudiation of Pollock was unmistakable. The Court there held that the United States could tax the salaries of state employees. The Court began its analysis by pointing out that the scope of McCulloch was limited to state taxation of federal instrumentalities.[6] The Court read on which the Pollock Court had relied, as also limited in its application to state taxes, involving as it did an attempt whereby through state taxation "an impediment was laid upon the exercise of a power with respect to which the national government was supreme." n. 3. It concluded that state immunity against federal taxation must be narrowly construed since "the people of all the states have created the national government and are represented in Congress. Through that representation they exercise *409 the national taxing power. The very fact that when they are exercising it they are taxing themselves, serves to guard against its abuse" Moreover, "any allowance of a tax immunity for the protection of state sovereignty is at the expense of the sovereign power of the nation to tax. Enlargement of the one involves diminution of the other. When enlargement proceeds beyond the necessity of protecting the state, the burden of the immunity is thrown upon the national government with benefit only to a privileged class of taxpayers. [I]f every federal tax which is laid on some new form of state activity, or whose economic burden reaches in some measure the state or those who serve it, were to be set aside as an infringement of state sovereignty, it is evident that a restriction on the national power, devised only as a shield to protect the states from curtailment of the essential operations of government which they have exercised from the beginning, would become a ready means for striking down the taxing power of the nation." -41. The Court concluded by explicitly rejecting the intergovernmental burden theory: "The state and national governments must co-exist. Each must be supported by taxation of those who are citizens of both. The mere fact that the economic burden of such taxes may be passed on to a state government and thus increase to some extent, here wholly conjectural, the expense of its operation, infringes no constitutional immunity. Such burdens are but normal incidents of the organization within the same territory of two governments, each possessed of the taxing power." In (), the Court held that a State could tax the salary of a *410 federal employee.[] After again observing that state taxation immunity is narrower than that of the United States, see at 4-48, and should be narrowly construed, see the Court followed Gerhardt in upholding the state tax, overruled which had been relied upon in Pollock, and noted, in a passage pertinent to the claim made here by South Carolina, that "we perceive no *411 basis for a difference in result whether the taxed income be salary or some other form of compensation" The Court concluded by again repudiating the intergovernmental burden theory. "So much of the burden of a non-discriminatory general tax upon the incomes of employees of a government, state or national, as may be passed on economically to that government, through the effect of the tax on the price level of labor or materials, is but the normal incident of the organization within the same territory of two governments, each possessing the taxing power. The burden, so far as it can be said to exist or to affect the government in any indirect or incidental way, is one which the Constitution presupposes, and hence it cannot rightly be deemed to be within an implied restriction upon the taxing power of the national and state governments which the Constitution has expressly granted to one and has confirmed to the other." at 48.[8] The intergovernmental burden theory was rejected about as clearly as possible in (41), in which the Court upheld a state sales tax levied on the cost of material used by a federal contractor in performing a cost-plus contract, despite the fact that under the contract the economic burden of the tax fell exclusively on the United States.[9] Subsequently, the Court has consistently adhered to its repudiation of the intergovernmental *412 burden theory. See (83); Memphis Bank & Trust v. Garner, 39 (83); United 455 U.S. 20, 34 ; United 460-4 (); (5). As the Court recently wrote, "an economic burden on traditional state functions without more is not a sufficient basis for sustaining a claim of immunity." (8).[10] Perhaps the plainest explication of this Court's position on state tax immunity is found in New 326 U.S. 52 (46), a case holding that the United States could tax New York's income from its sale of state-owned mineral waters. Justice Frankfurter, joined by Justice Rutledge, wrote that in his view any nondiscriminatory tax on *413 state activities was constitutional. See ; see also Four additional Justices agreed that the tax was valid, stating: "Only when and because the subject of taxation is State property or a State activity must we consider whether such a non-discriminatory tax unduly interferes with the performance of the State's functions of government."[11] S. R. A., v. Minnesota, 32 U.S. 558 (46), was decided during the same Term. There, land owned by the United States was occupied by S. R. A., which had bought the land under a conditional sales contract that left title in the United States pending full payment of the purchase price. Nevertheless, the Court held that state property taxes could be assessed against the land, since in reality the private *414 party and not the United States was being taxed.[12] Thus the Court recognized that where the property inures to the benefit of a private party, it has no immunity from taxation despite the fact that the taxation may increase the costs imposed on the governmental entity.[13] The same approach was taken in United when the Court upheld a municipal tax on property owned by the United States but leased to a private party, observing that "it is well settled that the Government's constitutional immunity does not shield private parties with whom it does business from state taxes imposed on them merely because part or all of the financial burden of the tax eventually falls on the Government."[14] See also United ; City of 355 U.S. 4 ; Wilmette Park 4-420 (49). Our cases thus demonstrate the insubstantiality of South Carolina's claim. Under 103(j)(1), South Carolina is not required to pay any federal tax at all. The tax is imposed not upon state property or revenues, but only upon persons with whom it contracts. Under the test adopted by a majority of the Court in New and followed since, *415 this alone defeats its claim. South Carolina is trying to shield private parties with whom it does business from taxation because part of the financial burden of the tax falls upon it. This Court has repeatedly rejected exactly that sort of claim.[15] Moreover, the rationale on which Pollock is based — the intergovernmental burden theory — has been repudiated over and over again by this Court. There is simply nothing left of Pollock on which South Carolina can base a claim. Even if there were enough left of Pollock to invalidate a federal tax that might cripple traditional state functions, the burden imposed on the State here is far from crushing. South Carolina estimates that if it must issue its bonds in registered form it will have to pay an additional one quarter of one percent interest on its bonds.[16] It identifies in its offer of *416 proof no disruption in its operation except for this slight increase in interest costs.[1] Surely this cost is infinitesimal compared to the costs imposed on States and localities because their employees' salaries are federally taxed — a burden that the Federal Government unquestionably has the constitutional power to impose. Moreover, the challenged statute still provides States and localities with the ability to offer debt instruments at substantially less than the market rates which must be paid by private enterprise — three to five points lower according to South Carolina's estimate. It is hard to see how marginal increases in the interest they must pay can destroy the integrity of governmental entities when private entities are able not only to survive but generally to make a profit while obtaining financing at significantly higher rates of interest. As Professor Thomas Reed Powell observed: "Public bonds will not be put in an unfavorable position relatively by being subjected to taxes on the income. They will merely be deprived of an artificial advantage heretofore enjoyed, which however is not strictly necessary in all probability in order to give them a practical success on the financial markets of the country when offered at the same rates of interest that have usually been offered in the past." Powell, Intergovernmental Tax Immunities, (40). In contrast to the slight burden alleged by South Carolina, the Federal Government's interest in encouraging bearer bonds to be issued in registered form is substantial, as the Senate Report on this provision makes clear. *41 "The Committee believes that a fair and efficient system of information reporting and withholding cannot be achieved with respect to interest-bearing obligations as long as a significant volume of long-term bearer instruments is issued. A system of book-entry registration will preserve the liquidity of obligations while requiring the creation of ownership records that can produce useful information reports with respect to both the payment of interest and the sale of obligations prior to maturity through brokers. Furthermore, registration will reduce the ability of noncompliant taxpayers to conceal income and property from the reach of the income, estate, and gift taxes. Finally, the registration requirement may reduce the volume of readily negotiable substitutes for cash available to persons engaged in illegal activities." S. Rep. No. 9-494, pt. 1, p. 242 As this Court has previously held, the Constitution does not invalidate every burden on a State or locality created by federal taxation because such burdens are the "normal incident" of a system of dual sovereigns with dual taxing powers, which the Constitution envisions will coexist. Surely it follows that the Constitution intended that the taxing power it gave the Federal Government not be undermined through the abuse engendered by bearer instruments. The burden imposed upon States and localities by efforts to eliminate such abuse is one necessary in a system committed to the efficacy of dual taxing authorities. The fairness of this requirement is highlighted by the fact that 103(j)(1) requires that federally issued bonds also be in registered form to be tax exempt. Even in the heyday of Pollock, the Court never held that the Federal Government impermissibly infringed state sovereignty by imposing a burden on the States that it also imposed on itself. If Congress has destroyed some protected concept of state sovereignty through 103(j)(1), then it has destroyed the sovereignty of the United States as well. *418 II South Carolina's complaint alleges that 103(j)(1) violates the Tenth Amendment. That Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In order to bring its challenge within the terms of that Amendment, South Carolina alleges: "The Congress of the United States has no power whatsoever to impose an income tax upon the interest paid by South Carolina to its lenders." Complaint ¶ 9. This allegation is inconsistent with the plain language of the Constitution itself. Article I, 8, specifically delegates to Congress the "Power To lay and collect Taxes," and the Sixteenth Amendment removes any possible ambiguity concerning the scope of the power exercised by Congress in this case. The cases I have discussed above confirm this point. Because the power to tax private income has been expressly delegated to Congress, the Tenth Amendment has no application to this case. III Finally, South Carolina relies on National League of (6). In that case the Court held that a federal statute extending the provisions of the Fair Labor Standards Act to certain public employees was "not within the authority granted Congress by Art. I, 8, cl. 3." The conclusion that the case merely involved an interpretation of the outer limits of the congressional power to regulate interstate commerce was then confirmed by the following footnote: "We express no view as to whether different results might obtain if Congress seeks to affect integral operations of state governments by exercising authority granted it under other sections of the Constitution such *4 as the spending power, Art. I, 8, cl. 1, or 5 of the Fourteenth Amendment." n. 1. By its express terms, therefore, the National League of Cities case has no application to South Carolina's challenge to an exercise of the federal taxing power.[18] In sum, I can see no basis on which South Carolina could prevail in this case, even accepting its allegations and offers of proof for all they are worth. We do South Carolina no favor by permitting it to file and litigate a claim on which it has no chance of prevailing. At the same time, the Court's decision to permit South Carolina to file this claim is an unwise use of its scarce resources. Accordingly, I respectfully dissent from the Court's decision to grant South Carolina's motion for leave to file its complaint.

Justice Thomas

majority

O'Dell v. Netherland

https://www.courtlistener.com/opinion/118131/odell-v-netherland/

https://www.courtlistener.com/api/rest/v3/clusters/118131/

1996-078

This case presents the question whether the rule set out in Simmons v. South Carolina, 512 U.S. 154 (1994)—which requires that a capital defendant be permitted to inform his sentencing jury that he is parole ineligible if the prosecution argues that he presents a future danger—was "new" within the meaning of Teague v. Lane, 489 U.S. 288 (1989), and thereby inapplicable to an already final death sentence. We conclude that it was new, and that it cannot, therefore, be used to disturb petitioner's death sentence, which had been final for six years when Simmons was decided. I Helen Schartner was last seen alive late in the evening of February 5, 1985, leaving the County Line Lounge in Virginia Beach, Virginia. Her lifeless body was discovered the next day, in a muddy field across a highway from the lounge. Schartner's head had been laid open by several blows with the barrel of a handgun, and she had been strangled with such violence that bones in her neck were broken and finger imprints were left on her skin. An abundance of physical evidence linked petitioner to the crime scene and crime— among other things, tire tracks near Schartner's body were consistent with petitioner's car, and bodily fluids recovered *154 from Schartner's body matched petitioner. He was indicted on counts of capital murder, rape, sodomy, and abduction (which count was later dismissed). After a jury trial, petitioner was found guilty on the murder, rape, and sodomy counts. During the subsequent sentencing hearing, the prosecution sought to establish two aggravating factors: that petitioner presented a future danger, and that the murder had been "wanton, vile or inhuman." Evidence was presented that, prior to Schartner's murder, petitioner had been convicted of a host of other offenses, including the kidnaping and assault of another woman while he was on parole, and the murder of a fellow inmate during an earlier prison stint. Petitioner sought a jury instruction explaining that he was not eligible for parole if sentenced to life in prison. The trial judge denied petitioner's request. After the sentencing hearing, the jury found beyond a reasonable doubt that petitioner "would constitute a continuous serious threat to society" and that "his conduct in committing the offense was outrageously wanton, vile or inhuman." 46 Record 208. The jury recommended that petitioner be sentenced to death.[1] The trial judge adopted the jury's recommendation and sentenced petitioner to 40 years' imprisonment each for the rape and sodomy convictions, and to death by electrocution for Schartner's murder. Petitioner appealed to the Supreme Court of Virginia, which affirmed both the conviction and the sentence. O'Dell v. Commonwealth, 234 Va. 672, 364 S.E.2d 491 (1988). We denied certiorari. O'Dell v. Virginia, 488 U.S. 871 (1988). Petitioner's efforts at state habeas relief were unsuccessful, and we again denied certiorari. O'Dell v. Thompson, 502 U.S. 995 (1991). *155 Petitioner then filed a federal habeas claim. He contended, inter alia, that newly obtained DNA evidence established that he was actually innocent, and that his death sentence was faulty because he had been prevented from informing the jury of his ineligibility for parole. The District Court rejected petitioner's claim of innocence. O'Dell v. Thompson, Civ. Action No. 3:92CV480 (ED Va., Sept. 6, 1994), App. 171-172. But it agreed with petitioner that he was entitled to resentencing under the intervening decision in Simmons v. South Carolina, supra. The District Court described Simmons as holding that "where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, the Due Process Clause of the Fourteenth Amendment requires that the sentencing jury be informed that the defendant is not eligible for parole." App. 198. The court concluded that the Simmons rule was not new and thus was available to petitioner. Because the prosecutor "obviously used O'Dell's prior releases on crossexamination, and in his closing argument, to argue that the defendant presented a future danger to society," App. 201 (citations omitted), the District Court held that petitioner was entitled to be resentenced if it could be demonstrated that he was in fact ineligible for parole. A divided en banc Court of Appeals for the Fourth Circuit reversed. 95 F.3d 1214 (1996). After an exhaustive review of our precedents, the Court of Appeals majority determined that "Simmons was the paradigmatic `new rule,' " id., at 1218, and, as such, could not aid petitioner. The Fourth Circuit was closely divided as to whether Simmons set forth a new rule, but every member of the court agreed that petitioner's "claim of actual innocence [was] not even colorable." 95 F.3d, at 1218; see also id., at 1255-1256 (Ervin, J., concurring in part and dissenting in part). We declined review on petitioner's claim of actual innocence, but granted certiorari to determine whether the rule of Simmons was new. 519 *156 U. S. 1050 (1996); see also ibid. (Scalia, J., respecting the grant of certiorari). II Before a state prisoner may upset his state conviction or sentence on federal collateral review, he must demonstrate as a threshold matter that the court-made rule of which he seeks the benefit is not "new." We have stated variously the formula for determining when a rule is new. See, e. g., Graham v. Collins, 506 U.S. 461, 467 (1993) ("A holding constitutes a `new rule' within the meaning of Teague if it `breaks new ground,' `imposes a new obligation on the States or the Federal Government,' or was not `dictated by precedent existing at the time the defendant's conviction became final' ") (quoting Teague, 489 U. S., at 301) (emphasis in original). At bottom, however, the Teague doctrine "validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions." Butler v. McKellar, 494 U.S. 407, 414 (1990) (citation omitted). "Reasonableness, in this as in many other contexts, is an objective standard." Stringer v. Black, 503 U.S. 222, 237 (1992). Accordingly, we will not disturb a final state conviction or sentence unless it can be said that a state court, at the time the conviction or sentence became final, would have acted objectively unreasonably by not extending the relief later sought in federal court. The Teague inquiry is conducted in three steps. First, the date on which the defendant's conviction became final is determined. Lambrix v. Singletary, 520 U.S. 518, 527 (1997). Next, the habeas court considers whether "`a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution.' " Ibid. (quoting Saffle v. Parks, 494 U.S. 484, 488 (1990)) (alterations in Lambrix ). If not, then the rule is new. If the rule is determined to be new, the final step in the Teague analysis requires the court to determine whether *157 the rule nonetheless falls within one of the two narrow exceptions to the Teague doctrine. 520 U.S., at 527. The first, limited exception is for new rules "forbidding criminal punishment of certain primary conduct [and] rules prohibiting a certain category of punishment for a class of defendants because of their status or offense." Penry v. Lynaugh, 492 U.S. 302, 330 (1989). The second, even more circumscribed, exception permits retroactive application of "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Graham, supra, at 478 (quoting Teague, supra, at 311) (internal quotation marks omitted). "Whatever the precise scope of this [second] exception, it is clearly meant to apply only to a small core of rules requiring observance of those procedures that. . . are implicit in the concept of ordered liberty." Graham, supra, at 478 (internal quotation marks omitted). III Petitioner's conviction became final on October 3, 1988, when we declined to review the Virginia Supreme Court's decision affirming his sentence on direct review. Simmons, the rule of which petitioner now seeks to avail himself, was decided in 1994. In Simmons, the defendant had been found guilty of capital murder for the brutal killing of an elderly woman. The defendant had also assaulted other elderly women, resulting in convictions that rendered him—at least as of the time he was sentenced—ineligible for parole. Prosecutors in South Carolina are permitted to argue to sentencing juries that defendants' future dangerousness is an appropriate consideration in determining whether to affix a sentence of death. 512 U.S., at 162-163 (plurality opinion). Simmons sought to rebut the prosecution's "generalized argument of future dangerousness" by presenting the jury with evidence that "his dangerousness was limited to elderly women," none of whom he was likely to encounter in prison. Id., at 157. *158 Simmons' efforts to shore up this argument by demonstrating to the jury that, under South Carolina law, he was ineligible for parole were rebuffed by the trial court. This Court reversed the judgment of the South Carolina Supreme Court upholding Simmons' death sentence. A plurality of the Court noted that a prosecutor's future dangerousness argument will "necessarily [be] undercut" by "the fact that the alternative sentence to death is life without parole." Id., at 169. The plurality, relying on Gardner v. Florida, 430 U.S. 349 (1977), and Skipper v. South Carolina, 476 U.S. 1 (1986), concluded that "[b]ecause truthful information of parole ineligibility allows the defendant to `deny or explain' the showing of future dangerousness, due process plainly requires that he be allowed to bring it to the jury's attention." 512 U.S., at 169. Justice O'Connor, joined by The Chief Justice and Justice Kennedy, concurred in the judgment, providing the dispositive votes necessary to sustain it. The concurrence recognized: "[The Court has] previously noted with approval . . . that `[m]any state courts have held it improper for the jury to consider or to be informed—through argument or instruction—of the possibility of commutation, pardon, or parole.' California v. Ramos, 463 U. S. [992, 1013, n. 30 (1983)]. The decision whether or not to inform the jury of the possibility of early release is generally left to the States." Id., at 176. The concurrence also distinguished Skipper, noting that Skipper involved an attempt to introduce "factual evidence" regarding the defendant himself, while Simmons "sought to rely on the operation of South Carolina's sentencing law" to demonstrate that he did not present a future danger. 512 U.S., at 176. But the concurrence nonetheless concluded that, "[w]hen the State seeks to show the defendant's future *159 dangerousness," the defendant "should be allowed to bring his parole ineligibility to the jury's attention." Id., at 177. Petitioner asserts that the Simmons rule covers his case, and that because he was parole ineligible—but not allowed to relay that information to the jury in order to rebut the prosecutor's argument as to his future dangerousness—Simmons requires vacatur of his sentence. Before we can decide whether petitioner's claim falls within the scope of Simmons, we must determine whether the rule of Simmons was new for Teague purposes, and, if so, whether that rule falls within one of the two exceptions to Teague `s bar. A We observe, at the outset, that Simmons is an unlikely candidate for "old-rule" status. As noted above, there was no opinion for the Court. Rather, Justice Blackmun's plurality opinion, for four Members, concluded that the Due Process Clause required allowing the defendant to inform the jury—through argument or instruction—of his parole ineligibility in the face of a prosecution's future dangerousness argument. 512 U.S., at 168-169. Two Members of the plurality, Justice Souter and Justice Stevens, would have further held that the Eighth Amendment mandated that the trial court instruct the jury on a capital defendant's parole ineligibility even if future dangerousness was not at issue. Id., at 172-174 (Souter, J., concurring). Justice Ginsburg, also a Member of the plurality, wrote a concurrence grounded in the Due Process Clause. Id., at 174-175. The Chief Justice and Justice Kennedy joined Justice O'Connor's decisive opinion concurring in the judgment, as described above. Id., at 175-178. And, two Justices dissented, arguing that the result did not "fit" the Court's precedents and that it was not, in any case, required by the Constitution. Id., at 180, 185 (opinion of Scalia, J., joined by Thomas, J.). The array of views expressed in Simmons itself suggests that the rule announced there was, in light of *160 this Court's precedent, "susceptible to debate among reasonable minds." Butler, 494 U. S., at 415; cf. Sawyer v. Smith, 497 U.S. 227, 236-237 (1990) (citing, as evidence that Caldwell v. Mississippi, 472 U.S. 320 (1985), announced a new rule, the views of the three Caldwell dissenters). An assessment of the legal landscape existing at the time petitioner's conviction and sentence became final bolsters this conclusion. 1 Petitioner's review of the relevant precedent discloses the decisions relied upon in Simmons, namely, Gardner v. Florida, supra, and Skipper v. South Carolina, supra. Petitioner asserts that a reasonable jurist considering his claim in light of those two decisions "would have felt `compelled. . . to conclude that the rule [petitioner] seeks was required by the Constitution.' " Brief for Petitioner 14 (quoting Saffle, 494 U. S., at 488) (emphasis deleted). In Gardner, the defendant received a death sentence from a judge who had reviewed a presentence report that was not made available to the defendant. Gardner produced no opinion for the Court. A plurality of the Court concluded that the defendant "was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." 430 U.S., at 362. Justice White concurred in the judgment, providing the narrowest grounds of decision among the Justices whose votes were necessary to the judgment. Cf. Marks v. United States, 430 U.S. 188, 193 (1977). He concluded that the Eighth Amendment was violated by a "procedure for selecting people for the death penalty which permits consideration of such secret information relevant to the character and record of the individual offender. " 430 U.S., at 364 (internal quotation marks omitted; emphasis added). In Skipper, the prosecutor argued during the penalty phase that a death sentence was appropriate because the defendant "would pose disciplinary problems if sentenced to *161 prison and would likely rape other prisoners." 476 U.S., at 3. Skipper's efforts to introduce evidence that he had behaved himself in, and made a "good adjustment" to, jail in the time between his arrest and his trial were rejected by the trial court. Ibid. The Court concluded: "[E]vidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating. Under Eddings [v. Oklahoma, 455 U.S. 104 (1982)], such evidence may not be excluded from the sentencer's consideration." 476 U.S., at 5 (footnote omitted). This holding was grounded, as was Eddings, in the Eighth Amendment. The Court also cited the Due Process Clause, stating that "[w]here the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty," due process required that "a defendant not be sentenced to death `on the basis of information which he had no opportunity to deny or explain.' " 476 U.S., at 5, n. 1 (quoting Gardner, supra, at 362). Simmons, argues petitioner, presented merely a variation on the facts of Skipper. In each, the prosecution raised the issue of future dangerousness. Skipper was unconstitutionally prevented from demonstrating that he had behaved in prison and thus would not be a danger to his fellow prisoners. Simmons, likewise, says petitioner, was not allowed to inform the jury that he would be in, rather than out of, prison and so could not present a danger to elderly women. Because the rule of Simmons was allegedly set forth in the 1986 decision in Skipper, which in turn relied upon the 1977 decision in Gardner, petitioner argues that his death sentence was flawed when affirmed in 1988, and we may set it aside without running afoul of Teague.[2] *162 Even were these two cases the sum total of relevant precedent bearing on the rule of Simmons, petitioner's argument that the result in Simmons followed ineluctably would not be compelling. Gardner produced seven opinions, none for a majority of the Court. Taking the view expressed in Justice White's opinion concurring in the judgment as the rule of Gardner, see Marks , supra, at 193, the holding is a narrow one—that "[a] procedure for selecting people for the death penalty which permits consideration of . .. secret information relevant to the character and record of the individual offender " violates the Eighth Amendment's requirement of "reliability in the determination that death is the appropriate punishment." 430 U.S., at 364 (citation and internal quotation marks omitted; emphasis added). Petitioner points to no secret evidence given to the sentencer but not to him. And, the evidence that he sought to present to the jury was not historical evidence about his "character and record," but evidence concerning the operation of the extant legal regime. In Skipper, too, the evidence that the defendant was unconstitutionally prevented from adducing was evidence of his past behavior. It is a step from a ruling that a defendant must be permitted to present evidence of that sort to a requirement that he be afforded an opportunity to describe the extant legal regime. Cf. Simmons, 512 U. S., at 176 (O'Connor, J., concurring in judgment). 2 Whatever support Gardner and Skipper, standing alone, might lend to petitioner's claim that Simmons was a foregone conclusion, the legal landscape in 1988 was far more complex. Respondents point to, and the Fourth Circuit majority *163 relied on, two other cases that had been decided by the time petitioner's conviction became final and that bear on its constitutionality: California v. Ramos, 463 U.S. 992 (1983), and Caldwell v. Mississippi, 472 U.S. 320 (1985). In Ramos, the Court upheld an instruction that informed the jury that a defendant sentenced to life in prison without parole could nonetheless be rendered parole eligible if the Governor elected to commute his sentence. The Court concluded that the instruction neither introduced a constitutionally irrelevant factor into the sentencing process, 463 U.S., at 1001-1004, nor diverted the jury's attention from the task of rendering an "individualized sentencing determination," id., at 1005. Within the bounds of the Constitution, the Court stated that it would defer to California's "identification of the Governor's power to commute a life sentence as a substantive factor to be presented for the sentencing jury's consideration." Id., at 1013. We emphasized, however, that this conclusion was not to be taken to "override the contrary judgment of state legislatures" that capital juries not learn of a Governor's commutation power. Ibid. "Many state courts," we pointed out, "have held it improper for the jury to consider or to be informed—through argument or instruction—of the possibility of commutation, pardon, or parole. " Id., at 1013, n. 30 (emphasis added); see also ibid. (citing, inter alia, Ga. Code Ann. § 17-8—76 (1982), and describing that statute as "prohibiting argument as to possibility of pardon, parole, or clemency" (emphasis added)). "We sit as judges, not as legislators, and the wisdom of the decision to permit juror consideration of possible commutation is best left to the States." 463 U.S., at 1014. The dissenters in Ramos disputed the constitutionality of ever informing juries of the Governor's power to commute a death sentence. See id., at 1018 (opinion of Marshall, J., joined by Brennan and Blackmun, JJ.); see also id., at 1019-1020 (asserting that consideration by a capital sentencing jury *164 of a defendant's prospects for commutation or parole is unconstitutional). The general proposition that the States retained the prerogative to determine how much (if at all) juries would be informed about the postsentencing legal regime was given further credence in Caldwell v. Mississippi, supra. In that case, the prosecution and the judge had, the Court concluded, improperly left the jury with the impression that a death sentence was not final because it would be extensively reviewed. Justice Marshall authored the opinion for the Court except for one portion. In that portion, Justice Marshall—writing for a plurality—concluded that, Ramos notwithstanding, sentencing juries were not to be given information about postsentencing appellate proceedings. Justice O'Connor, who provided the fifth vote necessary to the judgment, did not join this portion of Justice Marshall's opinion. She wrote separately, stating that, under Ramos, a State could choose whether or not to "instruc[t] the jurors on the sentencing procedure, including the existence and limited nature of appellate review," so long as any information it chose to provide was accurate. 472 U.S., at 342 (opinion concurring in part and concurring in judgment). 3 In light of Ramos and Caldwell, we think it plain that a reasonable jurist in 1988 would not have felt compelled to adopt the rule later set out in Simmons. As noted above, neither Gardner nor Skipper involved a prohibition on imparting information concerning what might happen, under then-extant law, after a sentence was imposed. Rather, the information at issue in each case was information pertaining to the defendant's "character and record." Although the principal opinions in Simmons found Skipper (which, in turn, relied on Gardner ) persuasive, Justice O'Connor distinguished Skipper from the facts presented in Simmons on this very ground, see 512 U.S., at 176 (opinion concurring *165 in judgment), suggesting that the rule announced in Simmons was not inevitable. See also id., at 183 (Scalia, J., dissenting). That distinction—between information concerning state postsentencing law on the one hand and evidence specifically related to the defendant on the other—was also at the heart of Ramos and Caldwell. In Ramos, the majority concluded that California had reasonably chosen to provide some, limited, postsentence information to the capital sentencing jury—though it noted that many other States had elected just the opposite. The principal dissent in Ramos would have forbidden the provision of any information about postsentence occurrences for the very reason that it did not constitute evidence concerning the defendant's "character or the nature of his crime." 463 U.S., at 1022 (opinion of Marshall, J.). In Caldwell, the plurality and Justice O'Connor contested whether the fact that "appellate review is available to a capital defendant sentenced to death" was "simply a factor that in itself is wholly irrelevant to the determination of the appropriate sentence" (as the plurality concluded, 472 U.S., at 336), or whether provision of that information was a constitutional "policy choice in favor of jury education" (as Justice O'Connor concluded, id., at 342 (opinion concurring in part and concurring in judgment)). A reasonable jurist in 1988, then, could have drawn a distinction between information about a defendant and information concerning the extant legal regime. It would hardly have been unreasonable in light of Ramos and Caldwell for the jurist to conclude that his State had acted constitutionally by choosing not to advise its jurors as to events that would (or would not) follow their recommendation of a death sentence, as provided by the legal regime of the moment. Indeed, given the sentiments, expressed in Justice Marshall's Ramos dissent and Caldwell plurality, that information about postsentence procedures was never to go to the jury and given that the decision whether to provide such information *166 had been described by the Ramos majority opinion and Justice O'Connor's concurrence in Caldwell as a "policy choice" left to the States, the reasonable jurist may well have concluded that the most surely constitutional course, when confronted with a request to inform a jury about a defendant's parole eligibility, was silence. Teague asks state-court judges to judge reasonably, not presciently. See Stringer v. Black, 503 U. S., at 244 (Souter, J., dissenting). In Simmons, the Court carved out an exception to the general rule described in Ramos by, for the first time ever, requiring that a defendant be allowed to inform the jury of postsentencing legal eventualities. A 1988 jurist's failure to predict this cannot, we think, be deemed unreasonable. Accordingly, the rule announced in Simmons was new, and petitioner may not avail himself of it unless the rule of Simmons falls within one of the exceptions to Teague `s bar.[3] *167 B Petitioner contends that, even if it is new, the rule of Simmons falls within the second exception to Teague, which permits retroactive application of "`watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Graham, 506 U. S., at 478 (quoting Teague, 489 U. S., at 311). Petitioner describes the "practice condemned in Simmons " as a "shocking one." Brief for Petitioner 33. The rule forbidding it, we are told, is "on par" with Gideon v. Wainwright, 372 U.S. 335 (1963)— which we have cited as an example of the sort of rule falling within Teague `s second exception, see Saffle, 494 U. S., at 495—because "both cases rest upon this Court's belief that certain procedural protections are essential to prevent a miscarriage of justice," Brief for Petitioner 35 (citations omitted). We disagree.[4] Unlike the sweeping rule of Gideon, which established an affirmative right to counsel in all felony cases, the narrow right of rebuttal that Simmons affords to defendants in a limited class of capital cases has hardly "` "alter[ed] our understanding of the bedrock procedural elements "` essential to the fairness of a proceeding." Sawyer, 497 U. S., at 242 (quoting Teague, supra, at 311, quoting, in turn, Mackey v. United States, 401 U.S. 667, 693 (1971) (Harlan, J., concurring in judgments in part and dissenting in part) (emphasis in Teague )). Simmons possesses little of the "watershed" character envisioned by Teague `s second exception. *168 IV For the reasons stated herein, the judgment of the Court of Appeals is affirmed. It is so ordered.

This case presents the question whether the rule set out in —which requires that a capital defendant be permitted to inform his sentencing jury that he is parole ineligible if the prosecution argues that he presents a future danger—was "new" within the meaning of and thereby inapplicable to an already final death sentence. We conclude that it was new, and that it cannot, therefore, be used to disturb petitioner's death sentence, which had been final for six years when Simmons was decided. I Helen Schartner was last seen alive late in the evening of February 5, 1985, leaving the County Line Lounge in Virginia Beach, Virginia. Her lifeless body was discovered the next day, in a muddy field across a highway from the lounge. Schartner's head had been laid open by several blows with the barrel of a handgun, and she had been strangled with such violence that bones in her neck were broken and finger imprints were left on her skin. An abundance of physical evidence linked petitioner to the crime scene and crime— among other things, tire tracks near Schartner's body were consistent with petitioner's car, and bodily fluids recovered *154 from Schartner's body matched petitioner. He was indicted on counts of capital murder, rape, sodomy, and abduction (which count was later dismissed). After a jury trial, petitioner was found guilty on the murder, rape, and sodomy counts. During the subsequent sentencing hearing, the prosecution sought to establish two aggravating factors: that petitioner presented a future danger, and that the murder had been "wanton, vile or inhuman." Evidence was presented that, prior to Schartner's murder, petitioner had been convicted of a host of other offenses, including the kidnaping and assault of another woman while he was on parole, and the murder of a fellow inmate during an earlier prison stint. Petitioner sought a jury instruction explaining that he was not eligible for parole if sentenced to life in prison. The trial judge denied petitioner's request. After the sentencing hearing, the jury found beyond a reasonable doubt that petitioner "would constitute a continuous serious threat to society" and that "his conduct in committing the offense was outrageously wanton, vile or inhuman." 46 Record 208. The jury recommended that petitioner be sentenced to death.[1] The trial judge adopted the jury's recommendation and sentenced petitioner to 40 years' imprisonment each for the rape and sodomy convictions, and to death by electrocution for Schartner's murder. Petitioner appealed to the Supreme Court of Virginia, which affirmed both the conviction and the sentence. We denied certiorari. Petitioner's efforts at state habeas relief were unsuccessful, and we again denied certiorari. *155 Petitioner then filed a federal habeas claim. He contended, inter alia, that newly obtained DNA evidence established that he was actually innocent, and that his death sentence was faulty because he had been prevented from informing the jury of his ineligibility for parole. The District Court rejected petitioner's claim of innocence. Thompson, Civ. Action No. 3:92CV480 App. 171-172. But it agreed with petitioner that he was entitled to resentencing under the intervening decision in The District Court described Simmons as holding that "where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, the Due Process Clause of the Fourteenth Amendment requires that the sentencing jury be informed that the defendant is not eligible for parole." App. 198. The court concluded that the Simmons rule was not new and thus was available to petitioner. Because the prosecutor "obviously used O'Dell's prior releases on crossexamination, and in his closing argument, to argue that the defendant presented a future danger to society," App. 201 (citations omitted), the District Court held that petitioner was entitled to be resentenced if it could be demonstrated that he was in fact ineligible for parole. A divided en banc Court of Appeals for the Fourth Circuit reversed. After an exhaustive review of our precedents, the Court of Appeals majority determined that "Simmons was the paradigmatic `new rule,' " and, as such, could not aid petitioner. The Fourth Circuit was closely divided as to whether Simmons set forth a new rule, but every member of the court agreed that petitioner's "claim of actual innocence [was] not even colorable." 95 F.3d, ; see also We declined review on petitioner's claim of actual innocence, but granted certiorari to determine whether the rule of Simmons was new. 519 * ; see also II Before a state prisoner may upset his state conviction or sentence on federal collateral review, he must demonstrate as a threshold matter that the court-made rule of which he seeks the benefit is not "new." We have stated variously the formula for determining when a rule is new. See, e. g., (quoting ) (emphasis in original). At bottom, however, the doctrine "validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions." "Reasonableness, in this as in many other contexts, is an objective standard." Accordingly, we will not disturb a final state conviction or sentence unless it can be said that a state court, at the time the conviction or sentence became final, would have acted objectively unreasonably by not extending the relief later sought in federal court. The inquiry is conducted in three steps. First, the date on which the defendant's conviction became final is determined. Next, the habeas court considers whether "`a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution.' " ) (alterations in Lambrix ). If not, then the rule is new. If the rule is determined to be new, the final step in the analysis requires the court to determine whether *157 the rule nonetheless falls within one of the two narrow exceptions to the 520 U.S., at The first, limited exception is for new rules "forbidding criminal punishment of certain primary conduct [and] rules prohibiting a certain category of punishment for a class of defendants because of their status or offense." The second, even more circumscribed, exception permits retroactive application of "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." (quoting ) "Whatever the precise scope of this [second] exception, it is clearly meant to apply only to a small core of rules requiring observance of those procedures that. are implicit in the concept of ordered liberty." III Petitioner's conviction became final on October 3, when we declined to review the Virginia Supreme Court's decision affirming his sentence on direct review. Simmons, the rule of which petitioner now seeks to avail himself, was decided in 1994. In Simmons, the defendant had been found guilty of capital murder for the brutal killing of an elderly woman. The defendant had also assaulted other elderly women, resulting in convictions that rendered him—at least as of the time he was sentenced—ineligible for parole. Prosecutors in South are permitted to argue to sentencing juries that defendants' future dangerousness is an appropriate consideration in determining whether to affix a sentence of death. -163 Simmons sought to rebut the prosecution's "generalized argument of future dangerousness" by presenting the jury with evidence that "his dangerousness was limited to elderly women," none of whom he was likely to encounter in prison. *158 Simmons' efforts to shore up this argument by demonstrating to the jury that, under South law, he was ineligible for parole were rebuffed by the trial court. This Court reversed the judgment of the South Supreme Court upholding Simmons' death sentence. A plurality of the Court noted that a prosecutor's future dangerousness argument will "necessarily [be] undercut" by "the fact that the alternative sentence to death is life without parole." The plurality, relying on and Skipper v. South concluded that "[b]ecause truthful information of parole ineligibility allows the defendant to `deny or explain' the showing of future dangerousness, due plainly requires that he be allowed to bring it to the jury's attention." 512 U.S., Justice O'Connor, joined by The Chief Justice and Justice Kennedy, concurred in the judgment, providing the dispositive votes necessary to sustain it. The concurrence recognized: "[The Court has] previously noted with approval that `[m]any state courts have held it improper for the jury to consider or to be informed—through argument or instruction—of the possibility of commutation, pardon, or parole.' 463 U. S. [992, 1013, n. 30 ]. The decision whether or not to inform the jury of the possibility of early release is generally left to the States." The concurrence also distinguished Skipper, noting that Skipper involved an attempt to introduce "factual evidence" regarding the defendant himself, while Simmons "sought to rely on the operation of South 's sentencing law" to demonstrate that he did not present a future 512 U.S., But the concurrence nonetheless concluded that, "[w]hen the State seeks to show the defendant's future *159 dangerousness," the defendant "should be allowed to bring his parole ineligibility to the jury's attention." Petitioner asserts that the Simmons rule covers his case, and that because he was parole ineligible—but not allowed to relay that information to the jury in order to rebut the prosecutor's argument as to his future dangerousness—Simmons requires vacatur of his sentence. Before we can decide whether petitioner's claim falls within the scope of Simmons, we must determine whether the rule of Simmons was new for purposes, and, if so, whether that rule falls within one of the two exceptions to `s bar. A We observe, at the outset, that Simmons is an unlikely candidate for "old-rule" status. As noted above, there was no opinion for the Court. Rather, Justice mun's plurality opinion, for four Members, concluded that the Due Process Clause required allowing the defendant to inform the jury—through argument or instruction—of his parole ineligibility in the face of a prosecution's future dangerousness argument. -169. Two Members of the plurality, Justice Souter and Justice Stevens, would have further held that the Eighth Amendment mandated that the trial court instruct the jury on a capital defendant's parole ineligibility even if future dangerousness was not at issue. Justice Ginsburg, also a Member of the plurality, wrote a concurrence grounded in the Due Process Clause. The Chief Justice and Justice Kennedy joined Justice O'Connor's decisive opinion concurring in the judgment, as described above. And, two Justices dissented, arguing that the result did not "fit" the Court's precedents and that it was not, in any case, required by the Constitution. The array of views expressed in Simmons itself suggests that the rule announced there was, in light of *160 this Court's precedent, "susceptible to debate among reasonable minds." ; cf. 236- An assessment of the legal landscape existing at the time petitioner's conviction and sentence became final bolsters this conclusion. 1 Petitioner's review of the relevant precedent discloses the decisions relied upon in Simmons, namely, and Skipper v. South Petitioner asserts that a reasonable jurist considering his claim in light of those two decisions "would have felt `compelled. to conclude that the rule [petitioner] seeks was required by the Constitution.' " Brief for Petitioner 14 (quoting 494 U. S., at ) (emphasis deleted). In the defendant received a death sentence from a judge who had reviewed a presentence report that was not made available to the defendant. produced no opinion for the Court. A plurality of the Court concluded that the defendant "was denied due of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." Justice White concurred in the judgment, providing the narrowest grounds of decision among the Justices whose votes were necessary to the judgment. Cf. He concluded that the Eighth Amendment was violated by a "procedure for selecting people for the death penalty which permits consideration of such secret information relevant to the character and record of the individual offender. " In Skipper, the prosecutor argued during the penalty phase that a death sentence was appropriate because the defendant "would pose disciplinary problems if sentenced to *161 prison and would likely rape other prisoners." Skipper's efforts to introduce evidence that he had behaved himself in, and made a "good adjustment" to, jail in the time between his arrest and his trial were rejected by the trial court. The Court concluded: "[E]vidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating. Under Eddings [v. Oklahoma, ], such evidence may not be excluded from the sentencer's consideration." This holding was grounded, as was Eddings, in the Eighth Amendment. The Court also cited the Due Process Clause, stating that "[w]here the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty," due required that "a defendant not be sentenced to death `on the basis of information which he had no opportunity to deny or explain.' " n. 1 (quoting ). Simmons, argues petitioner, presented merely a variation on the facts of Skipper. In each, the prosecution raised the issue of future dangerousness. Skipper was unconstitutionally prevented from demonstrating that he had behaved in prison and thus would not be a danger to his fellow prisoners. Simmons, likewise, says petitioner, was not allowed to inform the jury that he would be in, rather than out of, prison and so could not present a danger to elderly women. Because the rule of Simmons was allegedly set forth in the 1986 decision in Skipper, which in turn relied upon the 1977 decision in petitioner argues that his death sentence was flawed when affirmed in and we may set it aside without running afoul of[2] *162 Even were these two cases the sum total of relevant precedent bearing on the rule of Simmons, petitioner's argument that the result in Simmons followed ineluctably would not be compelling. produced seven opinions, none for a majority of the Court. Taking the view expressed in Justice White's opinion concurring in the judgment as the rule of see Marks at the holding is a narrow one—that "[a] procedure for selecting people for the death penalty which permits consideration of secret information relevant to the character and record of the individual offender " violates the Eighth Amendment's requirement of "reliability in the determination that death is the appropriate punishment." Petitioner points to no secret evidence given to the sentencer but not to him. And, the evidence that he sought to present to the jury was not historical evidence about his "character and record," but evidence concerning the operation of the extant legal regime. In Skipper, too, the evidence that the defendant was unconstitutionally prevented from adducing was evidence of his past behavior. It is a step from a ruling that a defendant must be permitted to present evidence of that sort to a requirement that he be afforded an opportunity to describe the extant legal regime. Cf. Simmons, 512 U. S., 2 Whatever support and Skipper, standing alone, might lend to petitioner's claim that Simmons was a foregone conclusion, the legal landscape in was far more complex. Respondents point to, and the Fourth Circuit majority *163 relied on, two other cases that had been decided by the time petitioner's conviction became final and that bear on its constitutionality: and In Ramos, the Court upheld an instruction that informed the jury that a defendant sentenced to life in prison without parole could nonetheless be rendered parole eligible if the Governor elected to commute his sentence. The Court concluded that the instruction neither introduced a constitutionally irrelevant factor into the sentencing -1004, nor diverted the jury's attention from the task of rendering an "individualized sentencing determination," Within the bounds of the Constitution, the Court stated that it would defer to California's "identification of the Governor's power to commute a life sentence as a substantive factor to be presented for the sentencing jury's consideration." We emphasized, however, that this conclusion was not to be taken to "override the contrary judgment of state legislatures" that capital juries not learn of a Governor's commutation power. "Many state courts," we pointed out, "have held it improper for the jury to consider or to be informed—through argument or instruction—of the possibility of commutation, pardon, or parole. " n. 30 ; see also and describing that statute as "prohibiting argument as to possibility of pardon, parole, or clemency" ). "We sit as judges, not as legislators, and the wisdom of the decision to permit juror consideration of possible commutation is best left to the States." The dissenters in Ramos disputed the constitutionality of ever informing juries of the Governor's power to commute a death sentence. See ; see also The general proposition that the States retained the prerogative to determine how much (if at all) juries would be informed about the postsentencing legal regime was given further credence in In that case, the prosecution and the judge had, the Court concluded, improperly left the jury with the impression that a death sentence was not final because it would be extensively reviewed. Justice Marshall authored the opinion for the Court except for one portion. In that portion, Justice Marshall—writing for a plurality—concluded that, Ramos notwithstanding, sentencing juries were not to be given information about postsentencing appellate proceedings. Justice O'Connor, who provided the fifth vote necessary to the judgment, did not join this portion of Justice Marshall's opinion. She wrote separately, stating that, under Ramos, a State could choose whether or not to "instruc[t] the jurors on the sentencing procedure, including the existence and limited nature of appellate review," so long as any information it chose to provide was accurate. 3 In light of Ramos and Caldwell, we think it plain that a reasonable jurist in would not have felt compelled to adopt the rule later set out in Simmons. As noted above, neither nor Skipper involved a prohibition on imparting information concerning what might happen, under then-extant law, after a sentence was imposed. Rather, the information at issue in each case was information pertaining to the defendant's "character and record." Although the principal opinions in Simmons found Skipper (which, in turn, relied on ) persuasive, Justice O'Connor distinguished Skipper from the facts presented in Simmons on this very ground, see 512 U.S., suggesting that the rule announced in Simmons was not inevitable. See also That distinction—between information concerning state postsentencing law on the one hand and evidence specifically related to the defendant on the other—was also at the heart of Ramos and Caldwell. In Ramos, the majority concluded that California had reasonably chosen to provide some, limited, postsentence information to the capital sentencing jury—though it noted that many other States had elected just the opposite. The principal dissent in Ramos would have forbidden the provision of any information about postsentence occurrences for the very reason that it did not constitute evidence concerning the defendant's "character or the nature of his crime." In Caldwell, the plurality and Justice O'Connor contested whether the fact that "appellate review is available to a capital defendant sentenced to death" was "simply a factor that in itself is wholly irrelevant to the determination of the appropriate sentence" (as the plurality concluded, ), or whether provision of that information was a constitutional "policy choice in favor of jury education" (as Justice O'Connor concluded, ). A reasonable jurist in then, could have drawn a distinction between information about a defendant and information concerning the extant legal regime. It would hardly have been unreasonable in light of Ramos and Caldwell for the jurist to conclude that his State had acted constitutionally by choosing not to advise its jurors as to events that would (or would not) follow their recommendation of a death sentence, as provided by the legal regime of the moment. Indeed, given the sentiments, expressed in Justice Marshall's Ramos dissent and Caldwell plurality, that information about postsentence procedures was never to go to the jury and given that the decision whether to provide such information *166 had been described by the Ramos majority opinion and Justice O'Connor's concurrence in Caldwell as a "policy choice" left to the States, the reasonable jurist may well have concluded that the most surely constitutional course, when confronted with a request to inform a jury about a defendant's parole eligibility, was silence. asks state-court judges to judge reasonably, not presciently. See In Simmons, the Court carved out an exception to the general rule described in Ramos by, for the first time ever, requiring that a defendant be allowed to inform the jury of postsentencing legal eventualities. A jurist's failure to predict this cannot, we think, be deemed unreasonable. Accordingly, the rule announced in Simmons was new, and petitioner may not avail himself of it unless the rule of Simmons falls within one of the exceptions to `s bar.[3] *167 B Petitioner contends that, even if it is new, the rule of Simmons falls within the second exception to which permits retroactive application of "`watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." 506 U. S., (quoting 489 U. S., ). Petitioner describes the "practice condemned in Simmons " as a "shocking one." Brief for Petitioner 33. The rule forbidding it, we are told, is "on par" with — which we have cited as an example of the sort of rule falling within `s second exception, see —because "both cases rest upon this Court's belief that certain procedural protections are essential to prevent a miscarriage of justice," Brief for Petitioner 35 (citations omitted). We disagree.[4] Unlike the sweeping rule of Gideon, which established an affirmative right to counsel in all felony cases, the narrow right of rebuttal that Simmons affords to defendants in a limited class of capital cases has hardly "` "alter[ed] our understanding of the bedrock procedural elements "` essential to the fairness of a proceeding." Sawyer, (emphasis in )). Simmons possesses little of the "watershed" character envisioned by `s second exception. *168 IV For the reasons stated herein, the judgment of the Court of Appeals is affirmed. It is so ordered.

Justice White

majority

United States v. Watson

https://www.courtlistener.com/opinion/109352/united-states-v-watson/

https://www.courtlistener.com/api/rest/v3/clusters/109352/

1975-032

This case presents questions under the Fourth Amendment as to the legality of a warrantless arrest and of an ensuing search of the arrestee's automobile carried out with his purported consent. I The relevant events began on August 17, 1972, when an informant, one Khoury, telephoned a postal inspector informing him that respondent Watson was in possession of a stolen credit card and had asked Khoury to cooperate in using the card to their mutual advantage. On five to 10 previous occasions Khoury had provided the inspector with reliable information on postal inspection matters, some involving Watson. Later that day *413 Khoury delivered the card to the inspector. On learning that Watson had agreed to furnish additional cards, the inspector asked Khoury to arrange to meet with Watson. Khoury did so, a meeting being scheduled for August 22.[1] Watson canceled that engagement, but at noon on August 23, Khoury met with Watson at a restaurant designated by the latter. Khoury had been instructed that if Watson had additional stolen credit cards, Khoury was to give a designated signal. The signal was given, the officers closed in, and Watson was forthwith arrested. He was removed from the restaurant to the street where he was given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). A search having revealed that Watson had no credit cards on his person, the inspector asked if he could look inside Watson's car, which was standing within view. Watson said, "Go ahead," and repeated these words when the inspector cautioned that "[i]f I find anything, it is going to go against you." Using keys furnished by Watson, the inspector entered the car and found under the floor mat an envelope containing two credit cards in the names of other persons. These cards were the basis for two counts of a four-count indictment charging Watson with possessing stolen mail in violation of 18 U.S. C. § 1708.[2] Prior to trial, Watson moved to suppress the cards, claiming that his arrest was illegal for want of probable cause and an arrest warrant and that his consent to search the car was involuntary and ineffective because he had not been told that he could withhold consent. *414 The motion was denied, and Watson was convicted of illegally possessing the two cards seized from his car.[3] A divided panel of the Court of Appeals for the Ninth Circuit reversed, 504 F.2d 849 (1974), ruling that the admission in evidence of the two credit cards found in the car was prohibited by the Fourth Amendment. In reaching this judgment, the court decided two issues in Watson's favor. First, notwithstanding its agreement with the District Court that Khoury was reliable and that there was probable cause for arresting Watson, the court held the arrest unconstitutional because the postal inspector had failed to secure an arrest warrant although he concededly had time to do so. Second, based on the totality of the circumstances, one of which was the illegality of the arrest, the court held Watson's consent to search had been coerced and hence was not a valid ground for the warrantless search of the automobile. We granted certiorari. 420 U.S. 924 (1975). II A major part of the Court of Appeals' opinion was its holding that Watson's warrantless arrest violated the Fourth Amendment. Although it did not expressly do so, it may have intended to overturn the conviction on the independent ground that the two credit cards were the inadmissible fruits of an unconstitutional arrest. Cf. Brown v. Illinois, 422 U.S. 590 (1975). However that may be, the Court of Appeals treated the illegality of Watson's arrest as an important factor in determining the voluntariness of his consent to search his car. We therefore deal first with the arrest issue. Contrary to the Court of Appeals' view, Watson's arrest was not invalid because executed without a warrant. *415 Title 18 U.S. C. § 3061 (a) (3) expressly empowers the Board of Governors of the Postal Service to authorize Postal Service officers and employees "performing duties related to the inspection of postal matters" to "make arrests without warrant for felonies cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such a felony." By regulation, 39 CFR § 232.5 (a) (3) (1975), and in identical language, the Board of Governors has exercised that power and authorized warrantless arrests. Because there was probable cause in this case to believe that Watson had violated § 1708, the inspector and his subordinates, in arresting Watson, were acting strictly in accordance with the governing statute and regulations. The effect of the judgment of the Court of Appeals was to invalidate the statute as applied in this case and as applied to all the situations where a court fails to find exigent circumstances justifying a warrantless arrest. We reverse that judgment. Under the Fourth Amendment, the people are to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . and no Warrants shall issue, but upon probable cause . . . ." Section 3061 represents a judgment by Congress that it is not unreasonable under the Fourth Amendment for postal inspectors to arrest without a warrant provided they have probable cause to do so.[4] This was not an *416 isolated or quixotic judgment of the legislative branch. Other federal law enforcement officers have been expressly authorized by statute for many years to make felony arrests on probable cause but without a warrant. This is true of United States marshals, 18 U.S. C. § 3053, and of agents of the Federal Bureau of Investigation, 18 U.S. C. § 3052; the Drug Enforcement Administration, 84 Stat. 1273, 21 U.S. C. § 878; the Secret Service, 18 U.S. C. § 3056 (a); and the Customs Service, 26 U.S. C. § 7607.[5] Because there is a "strong presumption of constitutionality due to an Act of Congress, especially when it turns on what is `reasonable,' " "[o]bviously the Court should be reluctant to decide that a search thus authorized by Congress was unreasonable and that the Act was therefore unconstitutional." United States v. Di Re, 332 U.S. 581, 585 (1948). Moreover, there is nothing in the Court's prior cases indicating that under the *417 Fourth Amendment a warrant is required to make a valid arrest for a felony. Indeed, the relevant prior decisions are uniformly to the contrary. "The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony . . . ." Carroll v. United States, 267 U.S. 132, 156 (1925). In Henry v. United States, 361 U.S. 98 (1959), the Court dealt with an FBI agent's warrantless arrest under 18 U.S. C. § 3052, which authorizes a warrantless arrest where there are reasonable grounds to believe that the person to be arrested has committed a felony. The Court declared that "[t]he statute states the constitutional standard. . . ." 361 U.S., at 100. The necessary inquiry, therefore, was not whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest. In Abel v. United States, 362 U.S. 217, 232 (1960), the Court sustained an administrative arrest made without "a judicial warrant within the scope of the Fourth Amendment." The crucial question in Draper v. United States, 358 U.S. 307 (1959), was whether there was probable cause for the warrantless arrest. If there was, the Court said, "the arrest, though without a warrant, was lawful . . . ." Id., at 310. Ker v. California, 374 U.S. 23, 34-35 (1963) (opinion of Clark, J.), reiterated the rule that "[t]he lawfulness of the arrest without warrant, in turn, must be based upon probable cause . . ." and went on to sustain the warrantless arrest over other claims going to the mode of entry. Just last Term, while recognizing that maximum protection of individual rights could be assured by requiring a magistrate's review of the factual justification prior to any arrest, we stated that "such a requirement would constitute an intolerable handicap for legitimate law enforcement" and noted that the Court "has never invalidated an arrest supported by probable cause solely *418 because the officers failed to secure a warrant." Gerstein v. Pugh, 420 U.S. 103, 113 (1975).[6] The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest. 10 Halsbury's Laws of England 344-345 (3d ed. 1955); 4 W. Blackstone, Commentaries *292; 1 J. Stephen, A History of the Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the Crown *72-74; Wilgus, Arrest Without a Warrant 22 Mich. L. Rev. 541, 547-550, 686-688 (1924); *419 Samuel v. Payne, 1 Doug. 359, 99 Eng. Rep. 230 (K. B. 1780); Beckwith v. Philby, 6 Barn. & Cress. 635, 108 Eng. Rep. 585 (K. B. 1827). This has also been the prevailing rule under state constitutions and statutes. "The rule of the common law, that a peace officer or a private citizen may arrest a felon without a warrant, has been generally held by the courts of the several States to be in force in cases of felony punishable by the civil tribunals." Kurtz v. Moffitt, 115 U.S. 487, 504 (1885). In Rohan v. Sawin, 59 Mass. 281 (1850), a false-arrest case, the Supreme Judicial Court of Massachusetts held that the common-law rule obtained in that State. Given probable cause to arrest, "[t]he authority of a constable, to arrest without warrant, in cases of felony, is most fully established by the elementary books, and adjudicated cases." Id., at 284. In reaching this judgment the court observed: "It has been sometimes contended, that an arrest of this character, without a warrant, was a violation of the great fundamental principles of our national and state constitutions, forbidding unreasonable searches and arrests, except by warrant founded upon a complaint made under oath. Those provisions doubtless had another and different purpose, being in restraint of general warrants to make searches, and requiring warrants to issue only upon a complaint made under oath. They do not conflict with the authority of constables or other peace-officers, or private persons under proper limitations, to arrest without warrant those who have committed felonies. The public safety, and the due apprehension of criminals, charged with heinous offences, imperiously require that such arrests should be made without warrant by officers of the law." Id., at 284-285. *420 Also rejected, id., at 285-286, was the trial court's view that to justify a warrantless arrest, the State must show "an immediate necessity therefor, arising from the danger, that the plaintiff would otherwise escape, or secrete the stolen property, before a warrant could be procured against him." The Supreme Judicial Court ruled that there was no "authority for thus restricting a constable in the exercise of his authority to arrest for a felony without a warrant." Id., at 286. Other early cases to similar effect were Wakely v. Hart, 6 Binn. 316 (Pa. 1814); Tolley v. Mix, 3 Wend. 350 (N. Y. Sup. Ct. 1829); State v. Brown, 5 Del. 505 (Ct. Gen. Sess. 1853); Johnson v. State, 30 Ga. 426 (1860); Wade v. Chaffee, 8 Rawle I. 224 (1865). See Reuck v. McGregor, 32 N. J. L. 70, 74 (Sup. Ct. 1866); Baltimore & O. R. Co. v. Cain, 81 Md. 87, 100, 102, 31 A. 801, 803, 804 (1895).[7] Because the common-law rule authorizing arrests without a warrant generally prevailed in the States, it is important for present purposes to note that in 1792 Congress invested United States marshals and their deputies with "the same powers in executing the laws of the United States, as sheriffs and their deputies in the several states have by law, in executing the laws of their respective states." Act of May 2, 1792, c. 28, § 9, 1 Stat. 265. The Second Congress thus saw no inconsistency between the Fourth Amendment and legislation giving United States marshals the same power as local peace officers to arrest for a felony without a warrant.[8] This provision equating the power of federal marshals *421 with those of local sheriffs was several times reenacted[9] and is today § 570 of Title 28 of the United States Code. That provision, however, was supplemented in 1935 by § 504a of the Judicial Code,[10] which in its essential elements is now 18 U.S. C. § 3053 and which expressly empowered marshals to make felony arrests without warrant and on probable cause. It was enacted to furnish a federal standard independent of the vagaries of state laws, the Committee Report remarking that under existing law a "marshal or deputy marshal may make an arrest without a warrant within his district in all cases where the sheriff might do so under the State statutes." H. R. Rep. No. 283, 74th Cong., 1st Sess., 1 (1935). See United States v. Riggs, 474 F.2d 699, 702-703, n. 2 (CA2), cert. denied, 414 U.S. 820 (1973). The balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact. It appears *422 in almost all of the States in the form of express statutory authorization. In 1963, the American Law Institute undertook the task of formulating a model statute governing police powers and practice in criminal law enforcement and related aspects of pretrial procedure. In 1975, after years of discussion, A Model Code of Pre-arraignment Procedure was proposed. Among its provisions was § 120.1 which authorizes an officer to take a person into custody if the officer has reasonable cause to believe that the person to be arrested has committed a felony, or has committed a misdemeanor or petty misdemeanor in his presence.[11] The commentary to this section said: "The Code thus adopts the traditional and almost universal standard for arrest without a warrant."[12] *423 This is the rule Congress has long directed its principal law enforcement officers to follow. Congress has plainly decided against conditioning warrantless arrest power on proof of exigent circumstances.[13] Law enforcement officers may find it wise to seek arrest warrants where practicable to do so, and their judgments about probable cause may be more readily accepted where backed by a warrant issued by a magistrate. See United States v. Ventresca, 380 U.S. 102, 106 (1965); Aguilar v. Texas, 378 U.S. 108, 111 (1964); Wong Sun v. United States, 371 U.S. 471, 479-480 (1963). But we decline to transform this judicial preference into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable *424 to get a warrant, whether the suspect was about to flee, and the like. Watson's arrest did not violate the Fourth Amendment, and the Court of Appeals erred in holding to the contrary. III Because our judgment is that Watson's arrest comported with the Fourth Amendment, Watson's consent to the search of his car was not the product of an illegal arrest. To the extent that the issue of the voluntariness of Watson's consent was resolved on the premise that his arrest was illegal, the Court of Appeals was also in error. We are satisfied in addition that the remaining factors relied upon by the Court of Appeals to invalidate Watson's consent are inadequate to demonstrate that, in the totality of the circumstances, Watson's consent was not his own "essentially free and unconstrained choice" because his "will ha[d] been overborne and his capacity for self-determination critically impaired." Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973). There was no overt act or threat of force against Watson proved or claimed. There were no promises made to him and no indication of more subtle forms of coercion that might flaw his judgment. He had been arrested and was in custody, but his consent was given while on a public street, not in the confines of the police station. Moreover, the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search. Similarly, under Schneckloth, the absence of proof that Watson knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be given controlling significance. There is no indication in this record that Watson was a newcomer *425 to the law,[14] mentally deficient, or unable in the face of a custodial arrest to exercise a free choice. He was given Miranda warnings and was further cautioned that the results of the search of his car could be used against him. He persisted in his consent. In these circumstances, to hold that illegal coercion is made out from the fact of arrest and the failure to inform the arrestee that he could withhold consent would not be consistent with Schneckloth and would distort the voluntariness standard that we reaffirmed in that case. In consequence, we reverse the judgment of the Court of Appeals. So ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. MR.

This case presents questions under the Fourth Amendment as to the legality of a warrantless arrest and of an ensuing search of the arrestee's automobile carried out with his purported consent. I The relevant events began on August 17, 1972, when an informant, one Khoury, telephoned a postal inspector informing him that respondent Watson was in possession of a stolen credit card and had asked Khoury to cooperate in using the card to their mutual advantage. On five to 10 previous occasions Khoury had provided the inspector with reliable information on postal inspection matters, some involving Watson. Later that day *413 Khoury delivered the card to the inspector. On learning that Watson had agreed to furnish additional cards, the inspector asked Khoury to arrange to meet with Watson. Khoury did so, a meeting being scheduled for August 22.[1] Watson canceled that engagement, but at noon on August 23, Khoury met with Watson at a restaurant designated by the latter. Khoury had been instructed that if Watson had additional stolen credit cards, Khoury was to give a designated signal. The signal was given, the officers closed in, and Watson was forthwith arrested. He was removed from the restaurant to the street where he was given the warnings required by A search having revealed that Watson had no credit cards on his person, the inspector asked if he could look inside Watson's car, which was standing within view. Watson said, "Go ahead," and repeated these words when the inspector cautioned that "[i]f I find anything, it is going to go against you." Using keys furnished by Watson, the inspector entered the car and found under the floor mat an envelope containing two credit cards in the names of other persons. These cards were the basis for two counts of a four-count indictment charging Watson with possessing stolen mail in violation of 18 U.S. C. 1708.[2] Prior to trial, Watson moved to suppress the cards, claiming that his arrest was illegal for want of probable cause and an arrest warrant and that his consent to search the car was involuntary and ineffective because he had not been told that he could withhold consent. *414 The motion was denied, and Watson was convicted of illegally possessing the two cards seized from his car.[3] A divided panel of the Court of Appeals for the Ninth Circuit reversed, ruling that the admission in evidence of the two credit cards found in the car was prohibited by the Fourth Amendment. In reaching this judgment, the court decided two issues in Watson's favor. First, notwithstanding its agreement with the District Court that Khoury was reliable and that there was probable cause for arresting Watson, the court held the arrest unconstitutional because the postal inspector had failed to secure an arrest warrant although he concededly had time to do so. Second, based on the totality of the circumstances, one of which was the illegality of the arrest, the court held Watson's consent to search had been coerced and hence was not a valid ground for the warrantless search of the automobile. We granted certiorari. II A major part of the Court of Appeals' opinion was its holding that Watson's warrantless arrest violated the Fourth Amendment. Although it did not expressly do so, it may have intended to overturn the conviction on the independent ground that the two credit cards were the inadmissible fruits of an unconstitutional arrest. Cf. However that may be, the Court of Appeals treated the illegality of Watson's arrest as an important factor in determining the voluntariness of his consent to search his car. We therefore deal first with the arrest issue. Contrary to the Court of Appeals' view, Watson's arrest was not invalid because executed without a warrant. *415 Title 18 U.S. C. 3061 (3) expressly empowers the Board of Governors of the Postal Service to authorize Postal Service officers and employees "performing duties related to the inspection of postal matters" to "make arrests without warrant for felonies cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such a felony." By regulation, 39 CFR5 (3) and in identical language, the Board of Governors has exercised that power and authorized warrantless arrests. Because there was probable cause in this case to believe that Watson had violated 1708, the inspector and his subordinates, in arresting Watson, were acting strictly in accordance with the governing statute and regulations. The effect of the judgment of the Court of Appeals was to invalidate the statute as applied in this case and as applied to all the situations where a court fails to find exigent circumstances justifying a warrantless arrest. We reverse that judgment. Under the Fourth Amendment, the people are to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, and no Warrants shall issue, but upon probable cause" Section 3061 represents a judgment by Congress that it is not unreasonable under the Fourth Amendment for postal inspectors to arrest without a warrant provided they have probable cause to do so.[4] This was not an *416 isolated or quixotic judgment of the legislative branch. Other federal law enforcement officers have been expressly authorized by statute for many years to make felony arrests on probable cause but without a warrant. This is true of United States marshals, 18 U.S. C. 3053, and of agents of the Federal Bureau of Investigation, 18 U.S. C. 3052; the Drug Enforcement Administration, 21 U.S. C. 878; the Secret Service, 18 U.S. C. 3056 ; and the Customs Service, 26 U.S. C. 7607.[5] Because there is a "strong presumption of constitutionality due to an Act of Congress, especially when it turns on what is `reasonable,' " "[o]bviously the Court should be reluctant to decide that a search thus authorized by Congress was unreasonable and that the Act was therefore unconstitutional." United States v. Di Re, Moreover, there is nothing in the Court's prior cases indicating that under the *417 Fourth Amendment a warrant is required to make a valid arrest for a felony. Indeed, the relevant prior decisions are uniformly to the contrary. "The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony" In the Court dealt with an FBI agent's warrantless arrest under 18 U.S. C. 3052, which authorizes a warrantless arrest where there are reasonable grounds to believe that the person to be arrested has committed a felony. The Court declared that "[t]he statute states the constitutional standard." The necessary inquiry, therefore, was not whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest. In the Court sustained an administrative arrest made without "a judicial warrant within the scope of the Fourth Amendment." The crucial question in was whether there was probable cause for the warrantless arrest. If there was, the Court said, "the arrest, though without a warrant, was lawful" reiterated the rule that "[t]he lawfulness of the arrest without warrant, in turn, must be based upon probable cause" and went on to sustain the warrantless arrest over other claims going to the mode of entry. Just last Term, while recognizing that maximum protection of individual rights could be assured by requiring a magistrate's review of the factual justification prior to any arrest, we stated that "such a requirement would constitute an intolerable handicap for legitimate law enforcement" and noted that the Court "has never invalidated an arrest supported by probable cause solely *418 because the officers failed to secure a warrant."[6] The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest. 10 Halsbury's Laws of England 344-345 (3d ed. 1955); 4 W. Blackstone, Commentaries *292; 1 J. Stephen, A History of the Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the Crown *72-74; Wilgus, Arrest Without a Warrant ; *419 ; Beckwith v. Philby, 6 Barn. & Cress. 635, 108 Eng. Rep. (K. B. 1827). This has also been the prevailing rule under state constitutions and statutes. "The rule of the common law, that a peace officer or a private citizen may arrest a felon without a warrant, has been generally held by the courts of the several States to be in force in cases of felony punishable by the civil tribunals." In a false-arrest case, the Supreme Judicial Court of Massachusetts held that the common-law rule obtained in that State. Given probable cause to arrest, "[t]he authority of a constable, to arrest without warrant, in cases of felony, is most fully established by the elementary books, and adjudicated cases." In reaching this judgment the court observed: "It has been sometimes contended, that an arrest of this character, without a warrant, was a violation of the great fundamental principles of our national and state constitutions, forbidding unreasonable searches and arrests, except by warrant founded upon a complaint made under oath. Those provisions doubtless had another and different purpose, being in restraint of general warrants to make searches, and requiring warrants to issue only upon a complaint made under oath. They do not conflict with the authority of constables or other peace-officers, or private persons under proper limitations, to arrest without warrant those who have committed felonies. The public safety, and the due apprehension of criminals, charged with heinous offences, imperiously require that such arrests should be made without warrant by officers of the law." -285. *420 Also rejected, was the trial court's view that to justify a warrantless arrest, the State must show "an immediate necessity therefor, arising from the danger, that the plaintiff would otherwise escape, or secrete the stolen property, before a warrant could be procured against him." The Supreme Judicial Court ruled that there was no "authority for thus restricting a constable in the exercise of his authority to arrest for a felony without a warrant." Other early cases to similar effect were ; ; ; ; Wade v. Chaffee, 8 Rawle I. 224 (1865). See Reuck v. McGregor, 32 N. J. L. 70, 74 (Sup. Ct. 1866); Baltimore & O. R.[7] Because the common-law rule authorizing arrests without a warrant generally prevailed in the States, it is important for present purposes to note that in 1792 Congress invested United States marshals and their deputies with "the same powers in executing the laws of the United States, as sheriffs and their deputies in the several states have by law, in executing the laws of their respective states." Act of May 2, 1792, c. 28, 9, The Second Congress thus saw no inconsistency between the Fourth Amendment and legislation giving United States marshals the same power as local peace officers to arrest for a felony without a warrant.[8] This provision equating the power of federal marshals *421 with those of local sheriffs was several times reenacted[9] and is today 570 of Title 28 of the United States Code. That provision, however, was supplemented in 1935 by a of the Judicial Code,[10] which in its essential elements is now 18 U.S. C. 3053 and which expressly empowered marshals to make felony arrests without warrant and on probable cause. It was enacted to furnish a federal standard independent of the vagaries of state laws, the Committee Report remarking that under existing law a "marshal or deputy marshal may make an arrest without a warrant within his district in all cases where the sheriff might do so under the State statutes." H. R. Rep. No. 283, 74th Cong., 1st Sess., 1 (1935). See United (CA2), cert. denied, The balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact. It appears *422 in almost all of the States in the form of express statutory authorization. In 1963, the American Law Institute undertook the task of formulating a model statute governing police powers and practice in criminal law enforcement and related aspects of pretrial procedure. In 1975, after years of discussion, A Model Code of Pre-arraignment Procedure was proposed. Among its provisions was 120.1 which authorizes an officer to take a person into custody if the officer has reasonable cause to believe that the person to be arrested has committed a felony, or has committed a misdemeanor or petty misdemeanor in his presence.[11] The commentary to this section said: "The Code thus adopts the traditional and almost universal standard for arrest without a warrant."[12] *423 This is the rule Congress has long directed its principal law enforcement officers to follow. Congress has plainly decided against conditioning warrantless arrest power on proof of exigent circumstances.[13] Law enforcement officers may find it wise to seek arrest warrants where practicable to do so, and their judgments about probable cause may be more readily accepted where backed by a warrant issued by a magistrate. See United ; ; Wong But we decline to transform this judicial preference into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable *424 to get a warrant, whether the suspect was about to flee, and the like. Watson's arrest did not violate the Fourth Amendment, and the Court of Appeals erred in holding to the contrary. III Because our judgment is that Watson's arrest comported with the Fourth Amendment, Watson's consent to the search of his car was not the product of an illegal arrest. To the extent that the issue of the voluntariness of Watson's consent was resolved on the premise that his arrest was illegal, the Court of Appeals was also in error. We are satisfied in addition that the remaining factors relied upon by the Court of Appeals to invalidate Watson's consent are inadequate to demonstrate that, in the totality of the circumstances, Watson's consent was not his own "essentially free and unconstrained choice" because his "will ha[d] been overborne and his capacity for self-determination critically impaired." There was no overt act or threat of force against Watson proved or claimed. There were no promises made to him and no indication of more subtle forms of coercion that might flaw his judgment. He had been arrested and was in custody, but his consent was given while on a public street, not in the confines of the police station. Moreover, the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search. Similarly, under Schneckloth, the absence of proof that Watson knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be given controlling significance. There is no indication in this record that Watson was a newcomer *425 to the law,[14] mentally deficient, or unable in the face of a custodial arrest to exercise a free choice. He was given Miranda warnings and was further cautioned that the results of the search of his car could be used against him. He persisted in his consent. In these circumstances, to hold that illegal coercion is made out from the fact of arrest and the failure to inform the arrestee that he could withhold consent would not be consistent with Schneckloth and would distort the voluntariness standard that we reaffirmed in that case. In consequence, we reverse the judgment of the Court of Appeals. So ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. MR.

Justice Rehnquist

majority

Green Tree Financial Corp.-Ala. v. Randolph

https://www.courtlistener.com/opinion/118394/green-tree-financial-corp-ala-v-randolph/

https://www.courtlistener.com/api/rest/v3/clusters/118394/

2000-008

In this case we first address whether an order compelling arbitration and dismissing a party's underlying claims is a "final decision with respect to an arbitration" within the meaning of § 16(a)(3) of the Federal Arbitration Act, 9 U.S. C. § 16(a)(3), and thus is immediately appealable pursuant to that Act. Because we decide that question in the affirmative, we also address the question whether an arbitration agreement that does not mention arbitration costs and fees is unenforceable because it fails to affirmatively protect a party from potentially steep arbitration costs. We conclude that an arbitration agreement's silence with respect to such matters does not render the agreement unenforceable. I Respondent Larketta Randolph purchased a mobile home from Better Cents Home Builders, Inc., in Opelika, Alabama. She financed this purchase through petitioners Green Tree Financial Corporation and its wholly owned subsidiary, Green Tree Financial Corp.-Alabama. Petitioners' Manufactured Home Retail Installment Contract and Security Agreement required that Randolph buy Vendor's Single Interest insurance, which protects the vendor or lienholder against the costs of repossession in the event of default. The agreement also provided that all disputes arising from, *83 or relating to, the contract, whether arising under case law or statutory law, would be resolved by binding arbitration.[1] Randolph later sued petitioners, alleging that they violated the Truth in Lending Act (TILA), 15 U.S. C. § 1601 et seq., by failing to disclose as a finance charge the Vendor's Single Interest insurance requirement. She later amended her complaint to add a claim that petitioners violated the Equal Credit Opportunity Act, 15 U.S. C. §§ 1691-1691f, by requiring her to arbitrate her statutory causes of action. She brought this action on behalf of a similarly situated class. In lieu of an answer, petitioners filed a motion to compel arbitration, to stay the action, or, in the alternative, to dismiss. The District Court granted petitioners' motion to compel arbitration, denied the motion to stay, and dismissed Randolph's claims with prejudice. The District Court also denied her request to certify a class. 991 F. Supp. 1410 (MD Ala. 1997). She requested reconsideration, asserting that *84 she lacked the resources to arbitrate and, as a result, would have to forgo her claims against petitioners. See Plaintiff's Motion for Reconsideration, Record Doc. No. 53, p. 9. The District Court denied reconsideration. 991 F. Supp., at 1425-1426. Randolph appealed. The Court of Appeals for the Eleventh Circuit first held that it had jurisdiction to review the District Court's order because that order was a final decision. 178 F.3d 1149 (1999). The Court of Appeals looked to § 16 of the Federal Arbitration Act (FAA), 9 U.S. C. § 16, which governs appeal from a district court's arbitration order, and specifically § 16(a)(3), which allows appeal from "a final decision with respect to an arbitration that is subject to this title." The court determined that a final, appealable order within the meaning of the FAA is one that disposes of all the issues framed by the litigation, leaving nothing to be done but execute the order. The Court of Appeals found the District Court's order within that definition. The court then determined that the arbitration agreement failed to provide the minimum guarantees that respondent could vindicate her statutory rights under the TILA. Critical to this determination was the court's observation that the arbitration agreement was silent with respect to payment of filing fees, arbitrators' costs, and other arbitration expenses. On that basis, the court held that the agreement to arbitrate posed a risk that respondent's ability to vindicate her statutory rights would be undone by "steep" arbitration costs, and therefore was unenforceable. We granted certiorari, 529 U.S. 1052 (2000), and we now affirm the Court of Appeals with respect to the first conclusion, and reverse it with respect to the second. II Section 16 of the Federal Arbitration Act, enacted in 1988, governs appellate review of arbitration orders. 9 U.S. C. § 16. It provides: *85 "(a) An appeal may be taken from— "(1) an order— "(A) refusing a stay of any action under section 3 of this title, "(B) denying a petition under section 4 of this title to order arbitration to proceed, "(C) denying an application under section 206 of this title to compel arbitration, "(D) confirming or denying confirmation of an award or partial award, or "(E) modifying, correcting, or vacating an award; "(2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject to this title; or "(3) a final decision with respect to an arbitration that is subject to this title. "(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order— "(1) granting a stay of any action under section 3 of this title; "(2) directing arbitration to proceed under section 4 of this title; "(3) compelling arbitration under section 206 of this title; or "(4) refusing to enjoin an arbitration that is subject to this title." The District Court's order directed that arbitration proceed and dismissed respondent's claims for relief. The question before us, then, is whether that order can be appealed as "a final decision with respect to an arbitration" within the meaning of § 16(a)(3). Petitioners urge us to hold that it cannot. They rely, in part, on the FAA's policy favoring arbitration agreements and its goal of "mov[ing] the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible." Moses H. Cone Memorial *86 Hospital v. Mercury Constr. Corp., 460 U.S. 1, 22 (1983); id., at 24. In accordance with that purpose, petitioners point out, § 16 generally permits immediate appeal of orders hostile to arbitration, whether the orders are final or interlocutory, but bars appeal of interlocutory orders favorable to arbitration. Section 16(a)(3), however, preserves immediate appeal of any "final decision with respect to an arbitration," regardless of whether the decision is favorable or hostile to arbitration. And as petitioners and respondent agree, the term "final decision" has a well-developed and longstanding meaning. It is a decision that "`ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment.'" Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994), and Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (both quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). See also St. Louis, I. M. & S. R. Co. v. Southern Express Co., 108 U.S. 24, 28-29 (1883). Because the FAA does not define "a final decision with respect to an arbitration" or otherwise suggest that the ordinary meaning of "final decision" should not apply, we accord the term its well-established meaning. See Evans v. United States, 504 U.S. 255, 259-260 (1992). The District Court's order directed that the dispute be resolved by arbitration and dismissed respondent's claims with prejudice, leaving the court nothing to do but execute the judgment. That order plainly disposed of the entire case on the merits and left no part of it pending before the court. The FAA does permit parties to arbitration agreements to bring a separate proceeding in a district court to enter judgment on an arbitration award once it is made (or to vacate or modify it), but the existence of that remedy does not vitiate the finality of the District Court's resolution of the claims in the instant proceeding. 9 U.S. C. §§ 9, 10, 11. The District Court's order was therefore "a final decision with respect to an arbitration" within the meaning of § 16(a)(3), and *87 an appeal may be taken.[2] See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 431 (1956) (explaining that had the District Court dismissed all the claims in an action, its decision would be final and appealable); Catlin, supra, at 236 (noting that had petitioners' motion to dismiss been granted and a judgment of dismissal entered, "clearly there would have been an end of the litigation and appeal would lie . . ."). Petitioners contend that the phrase "final decision" does not include an order compelling arbitration and dismissing the other claims in the action, when that order occurs in an "embedded" proceeding, such as this one. Brief for Petitioners 26. "Embedded" proceedings are simply those actions involving both a request for arbitration and other claims for relief. "Independent" proceedings, by contrast, are actions in which a request to order arbitration is the sole issue before the court. Those Courts of Appeals attaching significance to this distinction hold that an order compelling arbitration in an "independent" proceeding is final within the meaning of § 16(a)(3), but that such an order in an "embedded" proceeding is not, even if the district court dismisses the remaining claims.[3] Petitioners contend that the distinction *88 between independent and embedded proceedings and its consequences for finality were so firmly established at the time of § 16's enactment that we should assume Congress meant to incorporate them into § 16(a)(3). See Brief for Petitioners 23-26. We disagree. It does not appear that, at the time of § 16(a)(3)'s enactment, the rules of finality were firmly established in cases like this one, where the District Court both ordered arbitration and dismissed the remaining claims.[4] We also note that at that time, Courts of Appeals did not have a uniform approach to finality with respect to orders directing arbitration in "embedded" proceedings.[5] The term "final decision," by contrast, enjoys a consistent and longstanding interpretation. Certainly the plain language of the statutory text does not suggest that Congress intended to incorporate the rather complex independent/ *89 embedded distinction, and its consequences for finality, into § 16(a)(3). We therefore conclude that where, as here, the District Court has ordered the parties to proceed to arbitration, and dismissed all the claims before it, that decision is "final" within the meaning of § 16(a)(3), and therefore appealable. III We now turn to the question whether Randolph's agreement to arbitrate is unenforceable because it says nothing about the costs of arbitration, and thus fails to provide her protection from potentially substantial costs of pursuing her federal statutory claims in the arbitral forum. Section 2 of the FAA provides that "[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S. C. § 2. In considering whether respondent's agreement to arbitrate is unenforceable, we are mindful of the FAA's purpose "to reverse the longstanding judicial hostility to arbitration agreements . . . and to place arbitration agreements upon the same footing as other contracts." Gilmer v. Interstate/ Johnson Lane Corp., 500 U.S. 20, 24 (1991). In light of that purpose, we have recognized that federal statutory claims can be appropriately resolved through arbitration, and we have enforced agreements to arbitrate that involve such claims. See, e. g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) (Securities Act of 1933); Shearson/American Express Inc. v. McMahon, 482 U.S. 220 (1987) (Securities Exchange Act of 1934 and Racketeer Influenced and Corrupt Organizations Act); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) (Sherman Act). We have likewise rejected generalized attacks on arbitration that rest on "suspicion of arbitration as a method of weakening the protections *90 afforded in the substantive law to would-be complainants." Rodriguez de Quijas, supra, at 481. These cases demonstrate that even claims arising under a statute designed to further important social policies may be arbitrated because "`so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum,' " the statute serves its functions. See Gilmer, supra, at 28 (quoting Mitsubishi, supra, at 637). In determining whether statutory claims may be arbitrated, we first ask whether the parties agreed to submit their claims to arbitration, and then ask whether Congress has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue. See Gilmer, supra, at 26; Mitsubishi, supra, at 628. In this case, it is undisputed that the parties agreed to arbitrate all claims relating to their contract, including claims involving statutory rights. Nor does Randolph contend that the TILA evinces an intention to preclude a waiver of judicial remedies. She contends instead that the arbitration agreement's silence with respect to costs and fees creates a "risk" that she will be required to bear prohibitive arbitration costs if she pursues her claims in an arbitral forum, and thereby forces her to forgo any claims she may have against petitioners. Therefore, she argues, she is unable to vindicate her statutory rights in arbitration. See Brief for Respondent 29-30. It may well be that the existence of large arbitration costs could preclude a litigant such as Randolph from effectively vindicating her federal statutory rights in the arbitral forum. But the record does not show that Randolph will bear such costs if she goes to arbitration. Indeed, it contains hardly any information on the matter.[6] As the Court of Appeals *91 recognized, "we lack . . . information about how claimants fare under Green Tree's arbitration clause." 178 F.3d, at 1158. The record reveals only the arbitration agreement's silence on the subject, and that fact alone is plainly insufficient to render it unenforceable. The "risk" that Randolph will be saddled with prohibitive costs is too speculative to justify the invalidation of an arbitration agreement. To invalidate the agreement on that basis would undermine the "liberal federal policy favoring arbitration agreements." Moses H. Cone Memorial Hospital, 460 U. S., at 24. It would also conflict with our prior holdings that the party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration. See Gilmer, supra, at 26; McMahon, supra, at 227. We have *92 held that the party seeking to avoid arbitration bears the burden of establishing that Congress intended to preclude arbitration of the statutory claims at issue. See Gilmer, supra; McMahon, supra. Similarly, we believe that where, as here, a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs. Randolph did not meet that burden. How detailed the showing of prohibitive expense must be before the party seeking arbitration must come forward with contrary evidence is a matter we need not discuss; for in this case neither during discovery nor when the case was presented on the merits was there any timely showing at all on the point. The Court of Appeals therefore erred in deciding that the arbitration agreement's silence with respect to costs and fees rendered it unenforceable.[7] The judgment of the Court of Appeals is affirmed in part and reversed in part. It is so ordered. Justice Ginsburg, with whom Justice Stevens and Justice Souter join, and with whom Justice Breyer joins as to Parts I and III, concurring in part and dissenting in part. I I join Part II of the Court's opinion, which holds that the District Court's order, dismissing all the claims before it, was a "final," and therefore immediately appealable, decision. Ante, at 84-89. On the matter the Court airs in Part III, *93 ante, at 89-92—allocation of the costs of arbitration—I would not rule definitively. Instead, I would vacate the Eleventh Circuit's decision, which dispositively declared the arbitration clause unenforceable, and remand the case for closer consideration of the arbitral forum's accessibility. II The Court today deals with a "who pays" question, specifically, who pays for the arbitral forum. The Court holds that Larketta Randolph bears the burden of demonstrating that the arbitral forum is financially inaccessible to her. Essentially, the Court requires a party, situated as Randolph is, either to submit to arbitration without knowing who will pay for the forum or to demonstrate up front that the costs, if imposed on her, will be prohibitive. Ante, at 91-92. As I see it, the case in its current posture is not ripe for such a disposition. The Court recognizes that "the existence of large arbitration costs could preclude a litigant such as Randolph from effectively vindicating her federal statutory rights in the arbitral forum." Ante, at 90. But, the Court next determines, "the party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration" and "Randolph did not meet that burden." Ante, at 91, 92. In so ruling, the Court blends two discrete inquiries: First, is the arbitral forum adequate to adjudicate the claims at issue; second, is that forum accessible to the party resisting arbitration. Our past decisions deal with the first question, the adequacy of the arbitral forum to adjudicate various statutory claims. See, e. g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (Age Discrimination in Employment Act claims are amenable to arbitration); Shearson/American Express Inc. v. McMahon, 482 U.S. 220 (1987) (Claims under Racketeer Influenced and Corrupt Organizations Act and Securities Exchange Act are amenable to arbitration). *94 These decisions hold that the party resisting arbitration bears the burden of establishing the inadequacy of the arbitral forum for adjudication of claims of a particular genre. See Gilmer, 500 U. S., at 26; McMahon, 482 U. S., at 227. It does not follow like the night the day, however, that the party resisting arbitration should also bear the burden of showing that the arbitral forum would be financially inaccessible to her. The arbitration agreement at issue is contained in a form contract drawn by a commercial party and presented to an individual consumer on a take-it-or-leave-it basis. The case on which the Court dominantly relies, Gilmer, also involved a nonnegotiated arbitration clause. But the "who pays" question presented in this case did not arise in Gilmer. Under the rules that governed in Gilmer —those of the New York Stock Exchange—it was the standard practice for securities industry parties, arbitrating employment disputes, to pay all of the arbitrators' fees. See Cole v. Burns Int'l Security Servs., 105 F.3d 1465, 1483 (CADC 1997). Regarding that practice, the Court of Appeals for the District of Columbia Circuit recently commented: "[I]n Gilmer, the Supreme Court endorsed a system of arbitration in which employees are not required to pay for the arbitrator assigned to hear their statutory claims. There is no reason to think that the Court would have approved arbitration in the absence of this arrangement. Indeed, we are unaware of any situation in American jurisprudence in which a beneficiary of a federal statute has been required to pay for the services of the judge assigned to hear her or his case." Id., at 1484. III The form contract in this case provides no indication of the rules under which arbitration will proceed or the costs a *95 consumer is likely to incur in arbitration.[1] Green Tree, drafter of the contract, could have filled the void by specifying, for instance, that arbitration would be governed by the rules of the American Arbitration Association (AAA). Under the AAA's Consumer Arbitration Rules, consumers in small-claims arbitration incur no filing fee and pay only $125 of the total fees charged by the arbitrator. All other fees and costs are to be paid by the business party. Brief for American Arbitration Association as Amicus Curiae 15-16. Other national arbitration organizations have developed similar models for fair cost and fee allocation.[2] It may be that in this case, as in Gilmer, there is a standard practice on arbitrators' fees and expenses, one that fills the blank space in the arbitration agreement. Counsel for Green Tree offered a hint in that direction. See Tr. of Oral Arg. 26 ("Green Tree does pay [arbitration] costs in a lot of instances . . . ."). But there is no reliable indication in this record that Randolph's claim will be arbitrated under any consumer-protective fee arrangement. *96 As a repeat player in the arbitration required by its form contract, Green Tree has superior information about the cost to consumers of pursuing arbitration. Cf. Raleigh v. Illinois Dept. of Revenue, 530 U.S. 15, 21 (2000) ("the very fact that the burden of proof has often been placed on the taxpayer [to disprove tax liability] . . . reflects several compelling rationales . . . [including] the taxpayer's readier access to the relevant information"); 9 J. Wigmore, Evidence § 2486 (J. Chadbourn rev. ed. 1981) (where fairness so requires, burden of proof of a particular fact may be assigned to "party who presumably has peculiar means of knowledge" of the fact); Restatement (Second) of Contracts § 206 (1979) ("In choosing among the reasonable meanings of . . . [an] agreement or a term thereof, that meaning is generally preferred which operates against the [drafting] party . . . ."). In these circumstances, it is hardly clear that Randolph should bear the burden of demonstrating up front the arbitral forum's inaccessibility, or that she should be required to submit to arbitration without knowing how much it will cost her. As I see it, the Court has reached out prematurely to resolve the matter in the lender's favor. If Green Tree's practice under the form contract with retail installment sales purchasers resembles that of the employer in Gilmer, Randolph would be insulated from prohibitive costs. And if the arbitral forum were in this case financially accessible to Randolph, there would be no occasion to reach the decision today rendered by the Court. Before writing a term into the form contract, as the District of Columbia Circuit did, see Cole, 105 F. 3d, at 1485,[3] or leaving cost allocation initially to each arbitrator, as the Court does, I would remand for clarification of Green Tree's practice. *97 The Court's opinion, if I comprehend it correctly, does not prevent Randolph from returning to court, postarbitration, if she then has a complaint about cost allocation. If that is so, the issue reduces to when, not whether, she can be spared from payment of excessive costs. Neither certainty nor judicial economy is served by leaving that issue unsettled until the end of the line. For the reasons stated, I dissent from the Court's reversal of the Eleventh Circuit's decision on the cost question. I would instead vacate and remand for further consideration of the accessibility of the arbitral forum to Randolph.[4]

In this case we first address whether an order compelling arbitration and dismissing a party's underlying claims is a "final decision with respect to an arbitration" within the meaning of 16(a)(3) of the Federal Arbitration Act, 9 U.S. C. 16(a)(3), and thus is immediately appealable pursuant to that Act. Because we decide that question in the affirmative, we also address the question whether an arbitration agreement that does not mention arbitration costs and fees is unenforceable because it fails to affirmatively protect a party from potentially steep arbitration costs. We conclude that an arbitration agreement's silence with respect to such matters does not render the agreement unenforceable. I Respondent Larketta Randolph purchased a mobile home from Better Cents Home Builders, Inc., in Opelika, Alabama. She financed this purchase through petitioners Green Tree Financial Corporation and its wholly owned subsidiary, Green Tree Financial Corp.-Alabama. Petitioners' Manufactured Home Retail Installment Contract and Security Agreement required that Randolph buy Vendor's Single Interest insurance, which protects the vendor or lienholder against the costs of repossession in the event of default. The agreement also provided that all disputes arising from, *83 or relating to, the contract, whether arising under case law or statutory law, would be resolved by binding arbitration.[1] Randolph later sued petitioners, alleging that they violated the Truth in Lending Act (TILA), 15 U.S. C. 1601 et seq., by failing to disclose as a finance charge the Vendor's Single Interest insurance requirement. She later amended her complaint to add a claim that petitioners violated the Equal Credit Opportunity Act, 15 U.S. C. 1691-1691f, by requiring her to arbitrate her statutory causes of action. She brought this action on behalf of a similarly situated class. In lieu of an answer, petitioners filed a motion to compel arbitration, to stay the action, or, in the alternative, to dismiss. The District Court granted petitioners' motion to compel arbitration, denied the motion to stay, and dismissed Randolph's claims with prejudice. The District Court also denied her request to certify a class. She requested reconsideration, asserting that *84 she lacked the resources to arbitrate and, as a result, would have to forgo her claims against petitioners. See Plaintiff's Motion for Reconsideration, Record Doc. No. 53, p. 9. The District Court denied -1426. Randolph appealed. The Court of Appeals for the Eleventh Circuit first held that it had jurisdiction to review the District Court's order because that order was a final decision. The Court of Appeals looked to 16 of the Federal Arbitration Act (FAA), 9 U.S. C. 16, which governs appeal from a district court's arbitration order, and specifically 16(a)(3), which allows appeal from "a final decision with respect to an arbitration that is subject to this title." The court determined that a final, appealable order within the meaning of the FAA is one that disposes of all the issues framed by the litigation, leaving nothing to be done but execute the order. The Court of Appeals found the District Court's order within that definition. The court then determined that the arbitration agreement failed to provide the minimum guarantees that respondent could vindicate her statutory rights under the TILA. Critical to this determination was the court's observation that the arbitration agreement was silent with respect to payment of filing fees, arbitrators' costs, and other arbitration expenses. On that basis, the court held that the agreement to arbitrate posed a risk that respondent's ability to vindicate her statutory rights would be undone by "steep" arbitration costs, and therefore was unenforceable. We granted certiorari, and we now affirm the Court of Appeals with respect to the first conclusion, and reverse it with respect to the second. II Section 16 of the Federal Arbitration Act, enacted in 1988, governs appellate review of arbitration orders. 9 U.S. C. 16. It provides: *85 "(a) An appeal may be taken from— "(1) an order— "(A) refusing a stay of any action under section 3 of this title, "(B) denying a petition under section 4 of this title to order arbitration to proceed, "(C) denying an application under section 206 of this title to compel arbitration, "(D) confirming or denying confirmation of an award or partial award, or "(E) modifying, correcting, or vacating an award; "(2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject to this title; or "(3) a final decision with respect to an arbitration that is subject to this title. "(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order— "(1) granting a stay of any action under section 3 of this title; "(2) directing arbitration to proceed under section 4 of this title; "(3) compelling arbitration under section 206 of this title; or "(4) refusing to enjoin an arbitration that is subject to this title." The District Court's order directed that arbitration proceed and dismissed respondent's claims for relief. The question before us, then, is whether that order can be appealed as "a final decision with respect to an arbitration" within the meaning of 16(a)(3). Petitioners urge us to hold that it cannot. They rely, in part, on the FAA's policy favoring arbitration agreements and its goal of "mov[ing] the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible." Moses H. Cone Memorial *86 ; In accordance with that purpose, petitioners point out, 16 generally permits immediate appeal of orders hostile to arbitration, whether the orders are final or interlocutory, but bars appeal of interlocutory orders favorable to arbitration. Section 16(a)(3), however, preserves immediate appeal of any "final decision with respect to an arbitration," regardless of whether the decision is favorable or hostile to arbitration. And as petitioners and respondent agree, the term "final decision" has a well-developed and longstanding meaning. It is a decision that "`ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment.'" Digital Equipment and Coopers & ). See also St. Louis, I. M. & S. R. Because the FAA does not define "a final decision with respect to an arbitration" or otherwise suggest that the ordinary meaning of "final decision" should not apply, we accord the term its well-established meaning. See The District Court's order directed that the dispute be resolved by arbitration and dismissed respondent's claims with prejudice, leaving the court nothing to do but execute the judgment. That order plainly disposed of the entire case on the merits and left no part of it pending before the court. The FAA does permit parties to arbitration agreements to bring a separate proceeding in a district court to enter judgment on an arbitration award once it is made (or to vacate or modify it), but the existence of that remedy does not vitiate the finality of the District Court's resolution of the claims in the instant proceeding. 9 U.S. C. 9, 10, 11. The District Court's order was therefore "a final decision with respect to an arbitration" within the meaning of 16(a)(3), and *87 an appeal may be taken.[2] See Sears, Roebuck & ; (noting that had petitioners' motion to dismiss been granted and a judgment of dismissal entered, "clearly there would have been an end of the litigation and appeal would lie"). Petitioners contend that the phrase "final decision" does not include an order compelling arbitration and dismissing the other claims in the action, when that order occurs in an "embedded" proceeding, such as this one. Brief for Petitioners 26. "Embedded" proceedings are simply those actions involving both a request for arbitration and other claims for relief. "Independent" proceedings, by contrast, are actions in which a request to order arbitration is the sole issue before the court. Those Courts of Appeals attaching significance to this distinction hold that an order compelling arbitration in an "independent" proceeding is final within the meaning of 16(a)(3), but that such an order in an "embedded" proceeding is not, even if the district court dismisses the remaining claims.[3] Petitioners contend that the distinction *88 between independent and embedded proceedings and its consequences for finality were so firmly established at the time of 16's enactment that we should assume Congress meant to incorporate them into 16(a)(3). See Brief for Petitioners 23-26. We disagree. It does not appear that, at the time of 16(a)(3)'s enactment, the rules of finality were firmly established in cases like this one, where the District Court both ordered arbitration and dismissed the remaining claims.[4] We also note that at that time, Courts of Appeals did not have a uniform approach to finality with respect to orders directing arbitration in "embedded" proceedings.[5] The term "final decision," by contrast, enjoys a consistent and longstanding interpretation. Certainly the plain language of the statutory text does not suggest that Congress intended to incorporate the rather complex independent/ *89 embedded distinction, and its consequences for finality, into 16(a)(3). We therefore conclude that where, as here, the District Court has ordered the parties to proceed to arbitration, and dismissed all the claims before it, that decision is "final" within the meaning of 16(a)(3), and therefore appealable. III We now turn to the question whether Randolph's agreement to arbitrate is unenforceable because it says nothing about the costs of arbitration, and thus fails to provide her protection from potentially substantial costs of pursuing her federal statutory claims in the arbitral forum. Section 2 of the FAA provides that "[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S. C. 2. In considering whether respondent's agreement to arbitrate is unenforceable, we are mindful of the FAA's purpose "to reverse the longstanding judicial hostility to arbitration agreements and to place arbitration agreements upon the same footing as other contracts." In light of that purpose, we have recognized that federal statutory claims can be appropriately resolved through arbitration, and we have enforced agreements to arbitrate that involve such claims. See, e. g., Rodriguez de ; Shearson/American Express 482 U.S. 0 ; Motors We have likewise rejected generalized attacks on arbitration that rest on "suspicion of arbitration as a method of weakening the protections *90 afforded in the substantive law to would-be complainants." Rodriguez de These cases demonstrate that even claims arising under a statute designed to further important social policies may be arbitrated because "`so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum,' " the statute serves its functions. See (quoting ). In determining whether statutory claims may be arbitrated, we first ask whether the parties agreed to submit their claims to arbitration, and then ask whether Congress has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue. See ; In this case, it is undisputed that the parties agreed to arbitrate all claims relating to their contract, including claims involving statutory rights. Nor does Randolph contend that the TILA evinces an intention to preclude a waiver of judicial remedies. She contends instead that the arbitration agreement's silence with respect to costs and fees creates a "risk" that she will be required to bear prohibitive arbitration costs if she pursues her claims in an arbitral forum, and thereby forces her to forgo any claims she may have against petitioners. Therefore, she argues, she is unable to vindicate her statutory rights in arbitration. See Brief for Respondent 29-30. It may well be that the existence of large arbitration costs could preclude a litigant such as Randolph from effectively vindicating her federal statutory rights in the arbitral forum. But the record does not show that Randolph will bear such costs if she goes to arbitration. Indeed, it contains hardly any information on the matter.[6] As the Court of Appeals *91 recognized, "we lack information about how claimants fare under Green Tree's arbitration clause." The record reveals only the arbitration agreement's silence on the subject, and that fact alone is plainly insufficient to render it unenforceable. The "risk" that Randolph will be saddled with prohibitive costs is too speculative to justify the invalidation of an arbitration agreement. To invalidate the agreement on that basis would undermine the "liberal federal policy favoring arbitration agreements." Moses H. Cone Memorial 460 U. S., It would also conflict with our prior holdings that the party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration. See ; at 7. We have *92 held that the party seeking to avoid arbitration bears the burden of establishing that Congress intended to preclude arbitration of the statutory claims at issue. See Similarly, we believe that where, as here, a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs. Randolph did not meet that burden. How detailed the showing of prohibitive expense must be before the party seeking arbitration must come forward with contrary evidence is a matter we need not discuss; for in this case neither during discovery nor when the case was presented on the merits was there any timely showing at all on the point. The Court of Appeals therefore erred in deciding that the arbitration agreement's silence with respect to costs and fees rendered it unenforceable.[7] The judgment of the Court of Appeals is affirmed in part and reversed in part. It is so ordered. Justice Ginsburg, with whom Justice Stevens and Justice Souter join, and with whom Justice Breyer joins as to Parts I and III, concurring in part and dissenting in part. I I join Part II of the Court's opinion, which holds that the District Court's order, dismissing all the claims before it, was a "final," and therefore immediately appealable, decision. Ante, at 84-89. On the matter the Court airs in Part III, *93 ante, at 89-92—allocation of the costs of arbitration—I would not rule definitively. Instead, I would vacate the Eleventh Circuit's decision, which dispositively declared the arbitration clause unenforceable, and remand the case for closer consideration of the arbitral forum's accessibility. II The Court today deals with a "who pays" question, specifically, who pays for the arbitral forum. The Court holds that Larketta Randolph bears the burden of demonstrating that the arbitral forum is financially inaccessible to her. Essentially, the Court requires a party, situated as Randolph is, either to submit to arbitration without knowing who will pay for the forum or to demonstrate up front that the costs, if imposed on her, will be prohibitive. Ante, at 91-92. As I see it, the case in its current posture is not ripe for such a disposition. The Court recognizes that "the existence of large arbitration costs could preclude a litigant such as Randolph from effectively vindicating her federal statutory rights in the arbitral forum." Ante, at 90. But, the Court next determines, "the party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration" and "Randolph did not meet that burden." Ante, at 91, 92. In so ruling, the Court blends two discrete inquiries: First, is the arbitral forum adequate to adjudicate the claims at issue; second, is that forum accessible to the party resisting arbitration. Our past decisions deal with the first question, the adequacy of the arbitral forum to adjudicate various statutory claims. See, e. g., v. Interstate/Johnson Lane Corp., ; Shearson/American Express 482 U.S. 0 *94 These decisions hold that the party resisting arbitration bears the burden of establishing the inadequacy of the arbitral forum for adjudication of claims of a particular genre. See 500 U. S., ; 482 U. S., at 7. It does not follow like the night the day, however, that the party resisting arbitration should also bear the burden of showing that the arbitral forum would be financially inaccessible to her. The arbitration agreement at issue is contained in a form contract drawn by a commercial party and presented to an individual consumer on a take-it-or-leave-it basis. The case on which the Court dominantly relies, also involved a nonnegotiated arbitration clause. But the "who pays" question presented in this case did not arise in Under the rules that governed in —those of the New York Stock Exchange—it was the standard practice for securities industry parties, arbitrating employment disputes, to pay all of the arbitrators' fees. See Regarding that practice, the Court of Appeals for the District of Columbia Circuit recently commented: "[I]n the Supreme Court endorsed a system of arbitration in which employees are not required to pay for the arbitrator assigned to hear their statutory claims. There is no reason to think that the Court would have approved arbitration in the absence of this arrangement. Indeed, we are unaware of any situation in American jurisprudence in which a beneficiary of a federal statute has been required to pay for the services of the judge assigned to hear her or his case." III The form contract in this case provides no indication of the rules under which arbitration will proceed or the costs a *95 consumer is likely to incur in arbitration.[1] Green Tree, drafter of the contract, could have filled the void by specifying, for instance, that arbitration would be governed by the rules of the American Arbitration Association (AAA). Under the AAA's Consumer Arbitration Rules, consumers in small-claims arbitration incur no filing fee and pay only $125 of the total fees charged by the arbitrator. All other fees and costs are to be paid by the business party. Brief for American Arbitration Association as Amicus Curiae 15-16. Other national arbitration organizations have developed similar models for fair cost and fee allocation.[2] It may be that in this case, as in there is a standard practice on arbitrators' fees and expenses, one that fills the blank space in the arbitration agreement. Counsel for Green Tree offered a hint in that direction. See Tr. of Oral Arg. 26 ("Green Tree does pay [arbitration] costs in a lot of instances"). But there is no reliable indication in this record that Randolph's claim will be arbitrated under any consumer-protective fee arrangement. *96 As a repeat player in the arbitration required by its form contract, Green Tree has superior information about the cost to consumers of pursuing arbitration. Cf. ; 9 J. Wigmore, Evidence 86 (J. Chadbourn rev. ed. 1981) (where fairness so requires, burden of proof of a particular fact may be assigned to "party who presumably has peculiar means of knowledge" of the fact); Restatement (Second) of Contracts 206 (1979) ("In choosing among the reasonable meanings of [an] agreement or a term thereof, that meaning is generally preferred which operates against the [drafting] party"). In these circumstances, it is hardly clear that Randolph should bear the burden of demonstrating up front the arbitral forum's inaccessibility, or that she should be required to submit to arbitration without knowing how much it will cost her. As I see it, the Court has reached out prematurely to resolve the matter in the lender's favor. If Green Tree's practice under the form contract with retail installment sales purchasers resembles that of the employer in Randolph would be insulated from prohibitive costs. And if the arbitral forum were in this case financially accessible to Randolph, there would be no occasion to reach the decision today rendered by the Court. Before writing a term into the form contract, as the District of Columbia Circuit did, see[3] or leaving cost allocation initially to each arbitrator, as the Court does, I would remand for clarification of Green Tree's practice. *97 The Court's opinion, if I comprehend it correctly, does not prevent Randolph from returning to court, postarbitration, if she then has a complaint about cost allocation. If that is so, the issue reduces to when, not whether, she can be spared from payment of excessive costs. Neither certainty nor judicial economy is served by leaving that issue unsettled until the end of the line. For the reasons stated, I dissent from the Court's reversal of the Eleventh Circuit's decision on the cost question. I would instead vacate and remand for further consideration of the accessibility of the arbitral forum to Randolph.[4]

Justice Sotomayor

majority

Moncrieffe v. Holder

https://www.courtlistener.com/opinion/858802/moncrieffe-v-holder/

https://www.courtlistener.com/api/rest/v3/clusters/858802/

The Immigration and Nationality Act (INA), 66 Stat. 163, 8 U.S. C. §1101 et seq., provides that a noncitizen who has been convicted of an “aggravated felony” may be deported from this country. The INA also prohibits the Attorney General from granting discretionary relief from removal to an aggravated felon, no matter how compelling his case. Among the crimes that are classified as aggra- vated felonies, and thus lead to these harsh consequences, are illicit drug trafficking offenses. We must decide whether this category includes a state criminal statute that extends to the social sharing of a small amount of marijuana. We hold it does not. I A The INA allows the Government to deport various classes of noncitizens, such as those who overstay their visas, and those who are convicted of certain crimes while in the United States, including drug offenses. §1227. Ordinarily, when a noncitizen is found to be deportable on one of these grounds, he may ask the Attorney General for cer- 2 MONCRIEFFE v. HOLDER Opinion of the Court tain forms of discretionary relief from removal, like asy- lum (if he has a well-founded fear of persecution in his home country) and cancellation of removal (if, among other things, he has been lawfully present in the United States for a number of years). §§1158, 1229b. But if a noncitizen has been convicted of one of a narrower set of crimes classified as “aggravated felonies,” then he is not only deportable, §1227(a)(2)(A)(iii), but also ineligible for these discretionary forms of relief. See §§1158(b)(2)(A)(ii), (B)(i); §§1229b(a)(3), (b)(1)(C).1 The INA defines “aggravated felony” to include a host of offenses. §1101(a)(43). Among them is “illicit trafficking in a controlled substance.” §1101(a)(43)(B). This general term is not defined, but the INA states that it “includ[es] a drug trafficking crime (as defined in section 924(c) of title 18).” Ibid. In turn, 18 U.S. C. §924(c)(2) defines “drug trafficking crime” to mean “any felony punishable under the Controlled Substances Act,” or two other statues not relevant here. The chain of definitions ends with §3559(a)(5), which provides that a “felony” is an offense for which the “maximum term of imprisonment authorized” is “more than one year.” The upshot is that a noncitizen’s conviction of an offense that the Controlled Substances Act (CSA) makes punishable by more than one year’s impris- —————— 1 In addition to asylum, a noncitizen who fears persecution may seek withholding of removal, 8 U.S. C. §1231(b)(3)(A), and deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 85; 8 CFR §1208.17(a) (2012). These forms of relief require the noncitizen to show a greater likelihood of persecution or torture at home than is necessary for asylum, but the Attorney General has no discretion to deny relief to a noncitizen who establishes his eligibility. A conviction of an aggra- vated felony has no effect on CAT eligibility, but will render a nonciti- zen ineligible for withholding of removal if he “has been sentenced to an aggregate term of imprisonment of at least 5 years” for any aggravated felonies. 8 U.S. C. §1231(b)(3)(B). Cite as: 569 U. S. ____ (2013) 3 Opinion of the Court onment will be counted as an “aggravated felony” for immigration purposes. A conviction under either state or federal law may qualify, but a “state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales, 549 U.S. 47, 60 (2006). B Petitioner Adrian Moncrieffe is a Jamaican citizen who came to the United States legally in 1984, when he was three. During a 2007 traffic stop, police found 1.3 grams of marijuana in his car. This is the equivalent of about two or three marijuana cigarettes. Moncrieffe pleaded guilty to possession of marijuana with intent to distribute, a violation of Ga. Code Ann. §16–13–30(j)(1) (2007). Un- der a Georgia statute providing more lenient treatment to first-time offenders, §42–8–60(a) (1997), the trial court withheld entering a judgment of conviction or imposing any term of imprisonment, and instead required that Moncrieffe complete five years of probation, after which his charge will be expunged altogether.2 App. to Brief for Petitioner 11–15. Alleging that this Georgia conviction constituted an aggravated felony, the Federal Government sought to deport Moncrieffe. The Government reasoned that posses- sion of marijuana with intent to distribute is an offense under the CSA, 21 U.S. C. §841(a), punishable by up to five years’ imprisonment, §841(b)(1)(D), and thus an ag- gravated felony. An Immigration Judge agreed and or- dered Moncrieffe removed. App. to Pet. for Cert. 14a–18a. The Board of Immigration Appeals (BIA) affirmed that —————— 2 Theparties agree that this resolution of Moncrieffe’s Georgia case is nevertheless a “conviction” as the INA defines that term, 8 U.S. C. §1101(a)(48)(A). See Brief for Petitioner 6, n. 2; Brief for Respondent 5, n. 2. 4 MONCRIEFFE v. HOLDER Opinion of the Court conclusion on appeal. Id., at 10a–13a. The Court of Appeals denied Moncrieffe’s petition for review. The court rejected Moncrieffe’s reliance upon §841(b)(4), a provision that, in effect, makes marijuana distribution punishable only as a misdemeanor if the offense involves a small amount of marijuana for no re- muneration. It held that in a federal criminal prosecution, “the default sentencing range for a marijuana distribution offense is the CSA’s felony provision, §841(b)(1)(D), rather than the misdemeanor provision.” 662 F.3d 387, 392 (CA5 2011). Because Moncrieffe’s Georgia offense penal- ized possession of marijuana with intent to distribute, the court concluded that it was “equivalent to a federal felony.” Ibid. We granted certiorari, 566 U. S. ___ (2012), to resolve a conflict among the Courts of Appeals with respect to whether a conviction under a statute that criminalizes conduct described by both §841’s felony provision and its misdemeanor provision, such as a statute that punishes all marijuana distribution without regard to the amount or remuneration, is a conviction for an offense that “pro- scribes conduct punishable as a felony under” the CSA.3 Lopez, 549 U. S., at 60. We now reverse. II A When the Government alleges that a state conviction qualifies as an “aggravated felony” under the INA, we generally employ a “categorical approach” to determine whether the state offense is comparable to an offense listed in the INA. See, e.g., Nijhawan v. Holder, 557 U. S. —————— 3 Compare 662 F.3d 387 (CA5 2011) (case below), Garcia v. Holder, 638 F.3d 511 (CA6 2011) (is an aggravated felony), and Julce v. Mukasey, 530 F.3d 30 (CA1 2008) (same), with Martinez v. Mukasey, 551 F.3d 113 (CA2 2008) (is not an aggravated felony), and Wilson v. Ashcroft, 350 F.3d 377 (CA3 2003) (same). Cite as: 569 U. S. ____ (2013) 5 Opinion of the Court 29, 33–38 (2009); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185–187 (2007). Under this approach we look “not to the facts of the particular prior case,” but instead to whether “the state statute defining the crime of convic- tion” categorically fits within the “generic” federal defini- tion of a corresponding aggravated felony. Id., at 186 (citing Taylor v. United States, 495 U.S. 575, 599–600 (1990)). By “generic,” we mean the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison. Accordingly, a state offense is a categorical match with a generic federal offense only if a conviction of the state offense “ ‘necessarily’ involved . . . facts equating to [the] generic [federal offense].” Shepard v. United States, 544 U.S. 13, 24 (2005) (plurality opin- ion). Whether the noncitizen’s actual conduct involved such facts “is quite irrelevant.” United States ex rel. Gua- rino v. Uhl, 107 F.2d 399, 400 (CA2 1939) (L. Hand, J.). Because we examine what the state conviction neces- sarily involved, not the facts underlying the case, we must presume that the conviction “rested upon [nothing] more than the least of th[e] acts” criminalized, and then deter- mine whether even those acts are encompassed by the generic federal offense. Johnson v. United States, 559 U.S. 133, 137 (2010); see Guarino, 107 F. 2d, at 400. But this rule is not without qualification. First, our cases have addressed state statutes that contain several different crimes, each described separately, and we have held that a court may determine which particular offense the nonciti- zen was convicted of by examining the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or “ ‘some comparable judi- cial record’ of the factual basis for the plea.” Nijhawan, 557 U. S., at 35 (quoting Shepard, 544 U. S., at 26). Sec- ond, our focus on the minimum conduct criminalized by the state statute is not an invitation to apply “legal imagi- 6 MONCRIEFFE v. HOLDER Opinion of the Court nation” to the state offense; there must be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Duenas-Alvarez, 549 U. S., at 193. This categorical approach has a long pedigree in our Nation’s immigration law. See Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categori- cal Analysis in Immigration Law, 86 N. Y. U. L. Rev. 1669, 1688–1702, 1749–1752 (2011) (tracing judicial decisions back to 1913). The reason is that the INA asks what offense the noncitizen was “convicted” of, 8 U.S. C. §1227(a)(2)(A)(iii), not what acts he committed. “[C]on- viction” is “the relevant statutory hook.”4 Carachuri- Rosendo v. Holder, 560 U.S. ___, ___ (2010) (slip op., at 16); see United States ex rel. Mylius v. Uhl, 210 F. 860, 862 (CA2 1914). B The aggravated felony at issue here, “illicit trafficking in a controlled substance,” is a “generic crim[e].” Nijhawan, 557 U. S., at 37. So the categorical approach applies. Ibid. As we have explained, supra, at 2–3, this aggravated felony encompasses all state offenses that “proscrib[e] conduct punishable as a felony under [the CSA].” Lopez, 549 U. S., at 60. In other words, to satisfy the categorical approach, a state drug offense must meet two conditions: It must “necessarily” proscribe conduct that is an offense under the CSA, and the CSA must “necessarily” prescribe felony punishment for that conduct. Moncrieffe was convicted under a Georgia statute that —————— 4 Carachuri-Rosendo construed a different provision of the INA that concerns cancellation of removal, which also requires determining whether the noncitizen has been “convicted of any aggravated felony.” 8 U.S. C. §1229b(a)(3) (emphasis added). Our analysis is the same in both contexts. Cite as: 569 U. S. ____ (2013) 7 Opinion of the Court makes it a crime to “possess, have under [one’s] control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute mari- juana.” Ga. Code Ann. §16–13–30(j)(1). We know from his plea agreement that Moncrieffe was convicted of the last of these offenses. App. to Brief for Petitioner 11; Shepard, 544 U. S., at 26. We therefore must determine whether possession of marijuana with intent to distribute is “nec- essarily” conduct punishable as a felony under the CSA. We begin with the relevant conduct criminalized by the CSA. There is no question that it is a federal crime to “possess with intent to . . . distribute . . . a controlled substance,” 21 U.S. C. §841(a)(1), one of which is mari- juana, §812(c).5 So far, the state and federal provisions correspond. But this is not enough, because the generically defined federal crime is “any felony punishable under the Controlled Substances Act,” 18 U.S. C. §924(c)(2), not just any “offense under the CSA.” Thus we must look to what punishment the CSA imposes for this offense. Section 841 is divided into two subsections that are relevant here: (a), titled “Unlawful acts,” which includes the offense just described, and (b), titled “Penalties.” Subsection (b) tells us how “any person who violates sub- section (a)” shall be punished, depending on the circum- stances of his crime (e.g., the type and quantity of con- trolled substance involved, whether it is a repeat offense).6 —————— 5 In full, 21 U.S. C. §841(a)(1) provides, “Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally— “(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . .” 6 In pertinent part, §§841(b)(1)(D) and (b)(4) (2006 ed. and Supp. V) provide, “Except as otherwise provided in section 849, 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows: . . . . . 8 MONCRIEFFE v. HOLDER Opinion of the Court Subsection (b)(1)(D) provides that if a person commits a violation of subsection (a) involving “less than 50 kilo- grams of marihuana,” then “such person shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of imprisonment of not more than 5 years,” i.e., as a felon. But one of the exceptions is im- portant here. Paragraph (4) provides, “Notwithstanding paragraph (1)(D) of this subsection, any person who vio- lates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as” a simple drug possessor, 21 U.S. C. §844, which for our purposes means as a misdemeanant.7 These dovetail- ing provisions create two mutually exclusive categories of punishment for CSA marijuana distribution offenses: one —————— “[(1)](D) In the case of less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of weight, 10 kilograms of hashish, or one kilogram of hashish oil, such person shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of imprisonment of not more than 5 years, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $250,000 if the defendant is an individual or $1,000,000 if the defendant is other than an individual, or both. . . . . . . . . “(4) Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of title 18.” 7 Although paragraph (4) speaks only of “distributing” marijuana, the parties agree that it also applies to “the more inchoate offense of possession with intent to distribute that drug.” Matter of Castro Rodriguez, 25 I. & N. Dec. 698, 699, n. 2 (BIA 2012); see Brief for Petitioner 6, n. 2; Brief for Respondent 8, n. 5. The CSA does not define “small amount.” The BIA has suggested that 30 grams “serve[s] as a useful guidepost,” Castro Rodriguez, 25 I. & N. Dec., at 703, noting that the INA exempts from deportable controlled substances offenses “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” 8 U.S. C. §1227(a)(2)(B)(i). The meaning of “small amount” is not at issue in this case, so we need not, and do not, define the term. Cite as: 569 U. S. ____ (2013) 9 Opinion of the Court a felony, and one not. The only way to know whether a marijuana distribution offense is “punishable as a felony” under the CSA, Lopez, 549 U. S., at 60, is to know whether the conditions described in paragraph (4) are present or absent. A conviction under the same Georgia statute for “sell[ing]” marijuana, for example, would seem to establish remuneration. The presence of remuneration would mean that paragraph (4) is not implicated, and thus that the conviction is necessarily for conduct punishable as a felony under the CSA (under paragraph (1)(D)). In contrast, the fact of a conviction for possession with intent to distribute marijuana, standing alone, does not reveal whether either remuneration or more than a small amount of marijuana was involved. It is possible neither was; we know that Georgia prosecutes this offense when a defendant possesses only a small amount of marijuana, see, e.g., Taylor v. State, 260 Ga. App. 890, 581 S.E.2d 386, 388 (2003) (6.6 grams), and that “distribution” does not require remuner- ation, see, e.g., Hadden v. State, 181 Ga. App. 628, 628– 629, 353 S.E.2d 532, 533–534 (1987). So Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. Ambiguity on this point means that the conviction did not “necessarily” involve facts that correspond to an offense punishable as a felony under the CSA. Under the categorical approach, then, Moncrieffe was not convicted of an aggravated felony. III A The Government advances a different approach that leads to a different result. In its view, §841(b)(4)’s misde- meanor provision is irrelevant to the categorical analysis because paragraph (4) is merely a “mitigating exception,” to the CSA offense, not one of the “elements” of the of- fense. Brief for Respondent 12. And because possession 10 MONCRIEFFE v. HOLDER Opinion of the Court with intent to distribute marijuana is “presumptive[ly]” a felony under the CSA, the Government asserts, any state offense with the same elements is presumptively an ag- gravated felony. Id., at 37. These two contentions are related, and we reject both of them. First, the Government reads our cases to hold that the categorical approach is concerned only with the “elements” of an offense, so §841(b)(4) “is not relevant” to the categor- ical analysis. Id., at 20. It is enough to satisfy the cate- gorical inquiry, the Government suggests, that the “ele- ments” of Moncrieffe’s Georgia offense are the same as those of the CSA offense: (1) possession (2) of marijuana (a controlled substance), (3) with intent to distribute it. But that understanding is inconsistent with Carachuri- Rosendo, our only decision to address both “elements” and “sentencing factors.” There we recognized that when Congress has chosen to define the generic federal offense by reference to punishment, it may be necessary to take account of federal sentencing factors too. See 560 U. S., at ___ (slip op., at 3). In that case the relevant CSA offense was simple possession, which “becomes a ‘felony punisha- ble under the [CSA]’ only because the sentencing factor of recidivism authorizes additional punishment beyond one year, the criterion for a felony.” Id., at ___ (SCALIA, J., concurring in judgment) (slip op., at 2). We therefore called the generic federal offense “recidivist simple posses- sion,” even though such a crime is not actually “a separate offense” under the CSA, but rather an “ ‘amalgam’ ” of offense elements and sentencing factors. Id., at ___, and n. 3, ___ (majority opinion) (slip op., at 3, and n. 3, 7). In other words, not only must the state offense of convic- tion meet the “elements” of the generic federal offense defined by the INA, but the CSA must punish that offense as a felony. Here, the facts giving rise to the CSA offense establish a crime that may be either a felony or a misde- meanor, depending upon the presence or absence of cer- Cite as: 569 U. S. ____ (2013) 11 Opinion of the Court tain factors that are not themselves elements of the crime. And so to qualify as an aggravated felony, a conviction for the predicate offense must necessarily establish those factors as well. The Government attempts to distinguish Carachuri- Rosendo on the ground that the sentencing factor there was a “narrow” aggravating exception that turned a mis- demeanor into a felony, whereas here §841(b)(4) is a nar- row mitigation exception that turns a felony into a misde- meanor. Brief for Respondent 40–43. This argument hinges upon the Government’s second assertion: that any marijuana distribution conviction is “presumptively” a felony. But that is simply incorrect, and the Government’s argument collapses as a result. Marijuana distribution is neither a felony nor a misdemeanor until we know whether the conditions in paragraph (4) attach: Section 841(b)(1)(D) makes the crime punishable by five years’ imprisonment “except as provided” in paragraph (4), and §841(b)(4) makes it punishable as a misdemeanor “[n]otwithstanding paragraph (1)(D)” when only “a small amount of marihuana for no remuneration” is involved. (Emphasis added.) The CSA’s text makes neither provi- sion the default. Rather, each is drafted to be exclusive of the other. Like the BIA and the Fifth Circuit, the Government believes the felony provision to be the default because, in practice, that is how federal criminal prosecutions for marijuana distribution operate. See 662 F. 3d, at 391– 392; Matter of Aruna, 24 I. & N. Dec. 452, 456–457 (2008); Brief for Respondent 18–23. It is true that every Court of Appeals to have considered the question has held that a defendant is eligible for a 5-year sentence under §841(b)(1)(D) if the Government proves he possessed marijuana with the intent to distribute it, and that the Government need not negate the §841(b)(4) factors in each case. See, e.g., United States v. Outen, 286 F.3d 622, 636– 12 MONCRIEFFE v. HOLDER Opinion of the Court 639 (CA2 2002) (describing §841(b)(4) as a “mitigating exception”); United States v. Hamlin, 319 F.3d 666, 670– 671 (CA4 2003) (collecting cases). Instead, the burden is on the defendant to show that he qualifies for the lesser sentence under §841(b)(4). Cf. id., at 671. We cannot discount §841’s text, however, which creates no default punishment, in favor of the procedural overlay or burdens of proof that would apply in a hypothetical federal criminal prosecution. In Carachuri-Rosendo, we rejected the Fifth Circuit’s “ ‘hypothetical approach,’ ” which examined whether conduct “ ‘could have been pun- ished as a felony’ ‘had [it] been prosecuted in federal court.’ ” 560 U. S., at ___, ___ (slip op., at 8, 11).8 The outcome in a hypothetical prosecution is not the relevant inquiry. Rather, our “more focused, categorical inquiry” is whether the record of conviction of the predicate offense necessarily establishes conduct that the CSA, on its own terms, makes punishable as a felony. Id., at ___ (slip op., at 16). The analogy to a federal prosecution is misplaced for another reason. The Court of Appeals cases the Govern- ment cites distinguished between elements and sentencing factors to determine which facts must be proved to a jury, —————— 8 JUSTICE ALITO states that the statute “obviously” requires examina- tion of whether “conduct associated with the state offense . . . would have supported a qualifying conviction under the federal CSA.” Post, at 3 (dissenting opinion) (emphasis added); see also post, at 8. But this echoes the Fifth Circuit’s approach in Carachuri-Rosendo. As noted in the text, our opinion explicitly rejected such reasoning based on condi- tional perfect formulations. See also, e.g., Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 16) (criticizing approach that “focuses on facts known to the immigration court that could have but did not serve as the basis for the state conviction and punishment” (emphasis altered)). Instead, as we have explained, supra, at 10–11, our holding depended upon the fact that Carachuri-Rosendo’s conviction did not establish the fact necessary to distinguish between misdemeanor and felony punish- ment under the CSA. The same is true here. Cite as: 569 U. S. ____ (2013) 13 Opinion of the Court in light of the Sixth Amendment concerns addressed in Apprendi v. New Jersey, 530 U.S. 466 (2000). The courts considered which “provision . . . states a complete crime upon the fewest facts,” Outen, 286 F. 3d, at 638, which was significant after Apprendi to identify what a jury had to find before a defendant could receive §841(b)(1)(D)’s max- imum 5-year sentence. But those concerns do not apply in this context. Here we consider a “generic” federal offense in the abstract, not an actual federal offense being prose- cuted before a jury. Our concern is only which facts the CSA relies upon to distinguish between felonies and mis- demeanors, not which facts must be found by a jury as opposed to a judge, nor who has the burden of proving which facts in a federal prosecution.9 Because of these differences, we made clear in Carachuri- Rosendo that, for purposes of the INA, a generic fed- eral offense may be defined by reference to both “ ‘ele- ments’ in the traditional sense” and sentencing factors. 560 U. S., at ___, n. 3, ___ (slip op., at 3, n. 3, 7); see also id., at ___ (SCALIA, J., concurring in judgment) (slip op., at 3) (describing the generic federal offense there as “the Controlled Substances Act felony of possession-plus- recidivism”). Indeed, the distinction between “elements” and “sentencing factors” did not exist when Congress added illicit drug trafficking to the list of aggravated felonies, Anti-Drug Abuse Act of 1988, 102 Stat. 4469– 4470, and most courts at the time understood both §841(b)(1)(D) and §841(b)(4) to contain sentencing factors —————— 9 The Government also cites 21 U.S. C. §885(a)(1), which provides that the Government need not “negative any exemption or exception set forth” in the CSA, and instead “the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.” Brief for Respondent 21. Even assum- ing §841(b)(4) is such an “exception,” §885(a)(1) applies, by its own terms, only to “any trial, hearing, or other proceeding under” the CSA itself, not to the rather different proceedings under the INA. 14 MONCRIEFFE v. HOLDER Opinion of the Court that draw the line between a felony and a misdemeanor. See, e.g., United States v. Campuzano, 905 F.2d 677, 679 (CA2 1990). Carachuri-Rosendo controls here. Finally, there is a more fundamental flaw in the Gov- ernment’s approach: It would render even an undisputed misdemeanor an aggravated felony. This is “just what the English language tells us not to expect,” and that leaves us “very wary of the Government’s position.” Lopez, 549 U. S., at 54. Consider a conviction under a New York statute that provides, “A person is guilty of criminal sale of marihuana in the fifth degree when he knowingly and unlawfully sells, without consideration, [marihuana] of an aggregate weight of two grams or less; or one cigarette containing marihuana.” N. Y. Penal Law Ann. §221.35 (West 2008) (emphasis added). This statute criminalizes only the distribution of a small amount of marijuana for no remuneration, and so all convictions under the statute would fit within the CSA misdemeanor provision, §841(b)(4). But the Government would categorically deem a conviction under this statute to be an aggravated felony, because the statute contains the corresponding “elements” of (1) distributing (2) marijuana, and the Government believes all marijuana distribution offenses are punishable as felonies. The same anomaly would result in the case of a nonciti- zen convicted of a misdemeanor in federal court under §§841(a) and (b)(4) directly. Even in that case, under the Government’s logic, we would need to treat the federal misdemeanor conviction as an aggravated felony, because the conviction establishes elements of an offense that is presumptively a felony. This cannot be. “We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors,” only to have courts presume felony treatment and ignore the very factors that distinguish felonies from misdemeanors. Lopez, 549 U. S., at 58. Cite as: 569 U. S. ____ (2013) 15 Opinion of the Court B Recognizing that its approach leads to consequences Congress could not have intended, the Government hedges its argument by proposing a remedy: Noncitizens should be given an opportunity during immigration proceedings to demonstrate that their predicate marijuana distribution convictions involved only a small amount of marijuana and no remuneration, just as a federal criminal defendant could do at sentencing. Brief for Respondent 35–39. This is the procedure adopted by the BIA in Matter of Castro Rodriguez, 25 I. & N. Dec. 698, 702 (2012), and endorsed by JUSTICE ALITO’s dissent, post, at 11–12. This solution is entirely inconsistent with both the INA’s text and the categorical approach. As noted, the relevant INA provisions ask what the noncitizen was “convicted of,” not what he did, and the inquiry in immi- gration proceedings is limited accordingly. 8 U.S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3); see Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 11). The Government cites no statutory authority for such case-specific factfinding in immigration court, and none is apparent in the INA. Indeed, the Government’s main categorical argument would seem to preclude this inquiry: If the Government were correct that “the fact of a marijuana-distribution conviction alone constitutes a CSA felony,” Brief for Re- spondent 37, then all marijuana distribution convictions would categorically be convictions of the drug trafficking aggravated felony, mandatory deportation would follow under the statute, and there would be no room for the Government’s follow-on factfinding procedure. The Gov- ernment cannot have it both ways. Moreover, the procedure the Government envisions would require precisely the sort of post hoc investigation into the facts of predicate offenses that we have long deemed undesirable. The categorical approach serves “practical” purposes: It promotes judicial and administra- 16 MONCRIEFFE v. HOLDER Opinion of the Court tive efficiency by precluding the relitigation of past convic- tions in minitrials conducted long after the fact. Cham- bers v. United States, 555 U.S. 122, 125 (2009); see also Mylius, 210 F., at 862–863. Yet the Government’s ap- proach would have our Nation’s overburdened immigra- tion courts entertain and weigh testimony from, for exam- ple, the friend of a noncitizen who may have shared a marijuana cigarette with him at a party, or the local police officer who recalls to the contrary that cash traded hands. And, as a result, two noncitizens, each “convicted of ” the same offense, might obtain different aggravated felony determinations depending on what evidence remains available or how it is perceived by an individual immigra- tion judge. The categorical approach was designed to avoid this “potential unfairness.” Taylor, 495 U. S., at 601; see also Mylius, 210 F., at 863. Furthermore, the minitrials the Government proposes would be possible only if the noncitizen could locate wit- nesses years after the fact, notwithstanding that during removal proceedings noncitizens are not guaranteed legal representation and are often subject to mandatory deten- tion, §1226(c)(1)(B), where they have little ability to collect evidence. See Katzmann, The Legal Profession and the Unmet Needs of the Immigrant Poor, 21 Geo. J. Legal Ethics 3, 5–10 (2008); Brief for National Immigrant Jus- tice Center et al. as Amici Curiae 5–18; Brief for Immigra- tion Law Professors as Amici Curiae 27–32. A noncitizen in removal proceedings is not at all similarly situated to a defendant in a federal criminal prosecution. The Govern- ment’s suggestion that the CSA’s procedures could readily be replicated in immigration proceedings is therefore misplaced. Cf. Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 14–15) (rejecting the Government’s argument that procedures governing determination of the recidivism sentencing factor could “be satisfied during the immigra- tion proceeding”). Cite as: 569 U. S. ____ (2013) 17 Opinion of the Court The Government defends its proposed immigration court proceedings as “a subsequent step outside the categorical approach in light of Section 841(b)(4)’s ‘circumstance- specific’ nature.” Brief for Respondent 37. This argument rests upon Nijhawan, in which we considered another aggravated felony, “an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U.S. C. §1101(a)(43)(M)(i). We held that the $10,000 threshold was not to be applied categorically as a required component of a generic offense, but instead called for a “circumstance-specific approach” that allows for an examination, in immigration court, of the “particular circumstances in which an offender committed the crime on a particular occasion.” Nijhawan, 557 U. S., at 38–40. The Government suggests the §841(b)(4) factors are like the monetary threshold, and thus similarly amenable to a circumstance-specific inquiry. We explained in Nijhawan, however, that unlike the provision there, “illicit trafficking in a controlled sub- stance” is a “generic crim[e]” to which the categorical approach applies, not a circumstance-specific provision. Id., at 37; see also Carachuri-Rosendo, 560 U. S., at ___, n. 11 (slip op., at 12–13, n. 11). That distinction is evident in the structure of the INA. The monetary threshold is a limitation, written into the INA itself, on the scope of the aggravated felony for fraud. And the monetary threshold is set off by the words “in which,” which calls for a circum- stance-specific examination of “the conduct involved ‘in’ the commission of the offense of conviction.” Nijhawan, 557 U. S., at 39. Locating this exception in the INA proper suggests an intent to have the relevant facts found in immigration proceedings. But where, as here, the INA incorporates other criminal statutes wholesale, we have held it “must refer to generic crimes,” to which the cate- gorical approach applies. Id., at 37. Finally, the Government suggests that the immigration 18 MONCRIEFFE v. HOLDER Opinion of the Court court’s task would not be so daunting in some cases, such as those in which a noncitizen was convicted under the New York statute previously discussed or convicted directly under §841(b)(4). True, in those cases, the record of conviction might reveal on its face that the predicate offense was punishable only as a misdemeanor. But most States do not have stand-alone offenses for the social sharing of marijuana, so minitrials concerning convictions from the other States, such as Georgia, would be inevita- ble.10 The Government suggests that even in these other States, the record of conviction may often address the §841(b)(4) factors, because noncitizens “will be advised of the immigration consequences of a conviction,” as defense counsel is required to do under Padilla v. Kentucky, 559 U.S. 359 (2010), and as a result counsel can build an appropriate record when the facts are fresh. Brief for Respondent 38. Even assuming defense counsel “will” do something simply because it is required of effective coun- sel (an assumption experience does not always bear out), this argument is unavailing because there is no reason to believe that state courts will regularly or uniformly admit evidence going to facts, such as remuneration, that are irrelevant to the offense charged. In short, to avoid the absurd consequences that would flow from the Government’s narrow understanding of the categorical approach, the Government proposes a solution —————— 10 Inaddition to New York, it appears that 13 other States have sepa- rate offenses for §841(b)(4) conduct. See Cal. Health & Safety Code Ann. §11360(b) (West Supp. 2013); Colo. Rev. Stat. Ann. §18–18–406(5) (2012); Fla. Stat. §893.13(2)(b)(3) (2010); Ill. Comp. Stat., ch. 20, §§550/3, 550/4, 550/6 (West 2010); Iowa Code §124.410 (2009); Minn. Stat. §152.027(4)(a) (2010); N. M. Stat. Ann. §30–31–22(E) (Supp. 2011); Ohio Rev. Code Ann. §2925.03(C)(3)(h) (Lexis 2012 Cum. Supp.); Ore. Rev. Stat. §475.860(3) (2011); Pa. Stat. Ann., Tit. 35, §780–113(a)(31) (Purdon Supp. 2012); S. D. Codified Laws §22–42–7 (Supp. 2012); Tex. Health & Safety Code Ann. §481.120(b)(1) (West 2010); W. Va. Code Ann. §60A–4–402(c) (Lexis 2010). Cite as: 569 U. S. ____ (2013) 19 Opinion of the Court that largely undermines the categorical approach. That the only cure is worse than the disease suggests the Gov- ernment is simply wrong. C The Government fears the consequences of our decision, but its concerns are exaggerated. The Government ob- serves that, like Georgia, about half the States criminalize marijuana distribution through statutes that do not re- quire remuneration or any minimum quantity of mari- juana. Id., at 26–28. As a result, the Government contends, noncitizens convicted of marijuana distribution offenses in those States will avoid “aggravated felony” determina- tions, purely because their convictions do not resolve whether their offenses involved federal felony conduct or misdemeanor conduct, even though many (if not most) prosecutions involve either remuneration or larger amounts of marijuana (or both). Escaping aggravated felony treatment does not mean escaping deportation, though. It means only avoiding mandatory removal. See Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 17). Any marijuana distribution offense, even a misdemeanor, will still render a noncitizen deport- able as a controlled substances offender. 8 U.S. C. §1227(a)(2)(B)(i). At that point, having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation of removal, assuming he satisfies the other eligibility criteria. §§1158(b), 1229b(a)(1)–(2). But those forms of relief are discretionary. The Attorney General may, in his discre- tion, deny relief if he finds that the noncitizen is actually a member of one “of the world’s most dangerous drug car- tels,” post, at 2 (opinion of ALITO, J.), just as he may deny relief if he concludes the negative equities outweigh the positive equities of the noncitizen’s case for other reasons. As a result, “to the extent that our rejection of the Gov- 20 MONCRIEFFE v. HOLDER Opinion of the Court ernment’s broad understanding of the scope of ‘aggravated felony’ may have any practical effect on policing our Na- tion’s borders, it is a limited one.” Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 17). In any event, serious drug traffickers may be adjudi- cated aggravated felons regardless, because they will likely be convicted under greater “trafficking” offenses that necessarily establish that more than a small amount of marijuana was involved. See, e.g., Ga. Code Ann. §16–13– 31(c)(1) (Supp. 2012) (separate provision for trafficking in more than 10 pounds of marijuana). Of course, some offenders’ conduct will fall between §841(b)(4) conduct and the more serious conduct required to trigger a “trafficking” statute. Brief for Respondent 30. Those offenders may avoid aggravated felony status by operation of the categor- ical approach. But the Government’s objection to that underinclusive result is little more than an attack on the categorical approach itself.11 We prefer this degree of imperfection to the heavy burden of relitigating old prose- cutions. See supra, at 15–16. And we err on the side of underinclusiveness because ambiguity in criminal statutes —————— 11 Similarly, JUSTICE ALITO’s dissent suggests that he disagrees with the first premises of the categorical approach. He says it is a “strange and disruptive resul[t]” that “defendants convicted in different States for committing the same criminal conduct” might suffer different collateral consequences depending upon how those States define their statutes of conviction. Post, at 9. Yet that is the longstanding, natural result of the categorical approach, which focuses not on the criminal conduct a defendant “commit[s],” but rather what facts are necessarily established by a conviction for the state offense. Different state offenses will necessarily establish different facts. Some will track the “uni- form” federal definition of the generic offense, and some will not. Taylor v. United States, 495 U.S. 575, 590 (1990). Whatever disparity this may create as between defendants whose real-world conduct was the same, it ensures that all defendants whose convictions establish the same facts will be treated consistently, and thus predictably, under federal law. This was Taylor’s chief concern in adopting the categorical approach. See id., at 599–602. Cite as: 569 U. S. ____ (2013) 21 Opinion of the Court referenced by the INA must be construed in the nonciti- zen’s favor. See Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 17); Leocal v. Ashcroft, 543 U.S. 1, 11, n. 8 (2004). Finally, the Government suggests that our holding will frustrate the enforcement of other aggravated felony provisions, like §1101(a)(43)(C), which refers to a federal firearms statute that contains an exception for “antique firearm[s],” 18 U.S. C. §921(a)(3). The Government fears that a conviction under any state firearms law that lacks such an exception will be deemed to fail the categorical inquiry. But Duenas-Alvarez requires that there be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” 549 U. S., at 193. To defeat the categorical comparison in this manner, a non- citizen would have to demonstrate that the State actu- ally prosecutes the relevant offense in cases involving an- tique firearms. Further, the Government points to §1101(a)(43)(P), which makes passport fraud an aggravat- ed felony, except when the noncitizen shows he committed the offense to assist an immediate family member. But that exception is provided in the INA itself. As we held in Nijhawan, a circumstance-specific inquiry would apply to that provision, so it is not comparable. 557 U. S., at 37–38. * * * This is the third time in seven years that we have con- sidered whether the Government has properly character- ized a low-level drug offense as “illicit trafficking in a controlled substance,” and thus an “aggravated felony.” Once again we hold that the Government’s approach defies “the ‘commonsense conception’” of these terms. Carachuri- Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53). Sharing a small amount of mari- juana for no remuneration, let alone possession with 22 MONCRIEFFE v. HOLDER Opinion of the Court intent to do so, “does not fit easily into the ‘everyday un- derstanding’ ” of “trafficking,” which “ ‘ordinarily . . . means some sort of commercial dealing.’ ” Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53–54). Nor is it sensible that a state statute that criminalizes conduct that the CSA treats as a misde- meanor should be designated an “aggravated felony.” We hold that it may not be. If a noncitizen’s conviction for a mari- juana distribution offense fails to establish that the of- fense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggra- vated felony under the INA. The contrary judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 569 U. S. ____ (2013) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 11–702 _________________ ADRIAN MONCRIEFFE, PETITIONER v. ERIC H. HOLDER, JR.,

The Immigration and Nationality Act (INA), 66 Stat. 163, 8 U.S. C. et seq., provides that a noncitizen who has been convicted of an “aggravated felony” may be deported from this country. The INA also prohibits the Attorney General from granting discretionary relief from removal to an aggravated felon, no matter how compelling his case. Among the crimes that are classified as aggra- vated felonies, and thus lead to these harsh consequences, are illicit drug trafficking offenses. We must decide whether this category includes a state criminal statute that extends to the social sharing of a small amount of marijuana. We hold it does not. I A The INA allows the Government to deport various classes of noncitizens, such as those who overstay their visas, and those who are convicted of certain crimes while in the United States, including drug offenses. Ordinarily, when a noncitizen is found to be deportable on one of these grounds, he may ask the Attorney General for cer- 2 MONCRIEFFE v. HOLDER Opinion of the Court tain forms of discretionary relief from removal, like asy- lum (if he has a well-founded fear of persecution in his home country) and cancellation of removal (if, among other things, he has been lawfully present in the United States for a number of years). 1229b. But if a noncitizen has been convicted of one of a narrower set of crimes classified as “aggravated felonies,” then he is not only deportable, but also ineligible for these discretionary forms of relief. See (B)(i); (b)(1)(C).1 The INA defines “aggravated felony” to include a host of offenses. (a)(43). Among them is “illicit trafficking in a controlled substance.” (a)(43)(B). This general term is not defined, but the INA states that it “includ[es] a drug trafficking crime (as defined in section 9(c) of title 18).” In turn, 18 U.S. C. defines “drug trafficking crime” to mean “any felony punishable under the Controlled Substances Act,” or two other statues not relevant here. The chain of definitions ends with which provides that a “felony” is an offense for which the “maximum term of imprisonment authorized” is “more than one year.” The upshot is that a noncitizen’s conviction of an offense that the Controlled Substances Act (CSA) makes punishable by more than one year’s impris- —————— 1 In addition to asylum, a noncitizen who fears persecution may seek withholding of removal, 8 U.S. C. and deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 85; 8 CFR These forms of relief require the noncitizen to show a greater likelihood of persecution or torture at home than is necessary for asylum, but the Attorney General has no discretion to deny relief to a noncitizen who establishes his eligibility. A conviction of an aggra- vated felony has no effect on CAT eligibility, but will render a nonciti- zen ineligible for withholding of removal if he “has been sentenced to an aggregate term of imprisonment of at least 5 years” for any aggravated felonies. 8 U.S. C. Cite as: 569 U. S. (2013) 3 Opinion of the Court onment will be counted as an “aggravated felony” for immigration purposes. A conviction under either state or federal law may qualify, but a “state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” (2006). B Petitioner Adrian Moncrieffe is a Jamaican citizen who came to the United States legally in 1984, when he was three. During a 2007 traffic stop, police found 1.3 grams of marijuana in his car. This is the equivalent of about two or three marijuana cigarettes. Moncrieffe pleaded guilty to possession of marijuana with intent to distribute, a violation of –13–30(j)(1) (2007). Un- der a Georgia statute providing more lenient treatment to first-time offenders, §42–8–(a) (1997), the trial court withheld entering a judgment of conviction or imposing any term of imprisonment, and instead required that Moncrieffe complete five years of probation, after which his charge will be expunged altogether.2 App. to Brief for Petitioner 11–15. Alleging that this Georgia conviction constituted an aggravated felony, the Federal Government sought to deport Moncrieffe. The Government reasoned that posses- sion of marijuana with intent to distribute is an offense under the CSA, 21 U.S. C. punishable by up to five years’ imprisonment, and thus an ag- gravated felony. An Immigration Judge agreed and or- dered Moncrieffe removed. App. to Pet. for Cert. 14a–18a. The Board of Immigration Appeals (BIA) affirmed that —————— 2 Theparties agree that this resolution of Moncrieffe’s Georgia case is nevertheless a “conviction” as the INA defines that term, 8 U.S. C. (a)(48)(A). See Brief for Petitioner 6, n. 2; Brief for Respondent 5, n. 2. 4 MONCRIEFFE v. HOLDER Opinion of the Court conclusion on appeal. at 10a–13a. The Court of Appeals denied Moncrieffe’s petition for review. The court rejected Moncrieffe’s reliance upon a provision that, in effect, makes marijuana distribution punishable only as a misdemeanor if the offense involves a small amount of marijuana for no re- muneration. It held that in a federal criminal prosecution, “the default sentencing range for a marijuana distribution offense is the CSA’s felony provision, rather than the misdemeanor provision.” Because Moncrieffe’s Georgia offense penal- ized possession of marijuana with intent to distribute, the court concluded that it was “equivalent to a federal felony.” We granted certiorari, 566 U. S. to resolve a conflict among the Courts of Appeals with respect to whether a conviction under a statute that criminalizes conduct described by both felony provision and its misdemeanor provision, such as a statute that punishes all marijuana distribution without regard to the amount or remuneration, is a conviction for an offense that “pro- scribes conduct punishable as a felony under” the CSA.3 549 U. S., at We now reverse. II A When the Government alleges that a state conviction qualifies as an “aggravated felony” under the INA, we generally employ a “categorical approach” to determine whether the state offense is comparable to an offense listed in the INA. See, e.g., and Julce v. Mukasey, with and Wilson v. Ashcroft, Cite as: 569 U. S. (2013) 5 Opinion of the Court 29, 33–38 ; Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185–187 (2007). Under this approach we look “not to the facts of the particular prior case,” but instead to whether “the state statute defining the crime of convic- tion” categorically fits within the “generic” federal defini- tion of a corresponding aggravated felony. ). By “generic,” we mean the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison. Accordingly, a state offense is a categorical match with a generic federal offense only if a conviction of the state offense “ ‘necessarily’ involved facts equating to [the] generic [federal offense].” v. United States, (plurality opin- ion). Whether the noncitizen’s actual conduct involved such facts “is quite irrelevant.” United States ex rel. Gua- Because we examine what the state conviction neces- sarily involved, not the facts underlying the case, we must presume that the conviction “rested upon [nothing] more than the least of th[e] acts” criminalized, and then deter- mine whether even those acts are encompassed by the generic federal offense. Johnson v. United States, 559 U.S. 133, 137 (2010); see Guarino, 107 F. 2d, at But this rule is not without qualification. First, our cases have addressed state statutes that contain several different crimes, each described separately, and we have held that a court may determine which particular offense the nonciti- zen was convicted of by examining the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or “ ‘some comparable judi- cial record’ of the factual basis for the plea.” (quoting ). Sec- ond, our focus on the minimum conduct criminalized by the state statute is not an invitation to apply “legal imagi- 6 MONCRIEFFE v. HOLDER Opinion of the Court nation” to the state offense; there must be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Duenas-Alvarez, 549 U. S., at 193. This categorical approach has a long pedigree in our Nation’s immigration law. See Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categori- cal Analysis in Immigration Law, 86 N. Y. U. L. Rev. 1669, 1688–1, 1749–1752 (tracing judicial decisions back to 1913). The reason is that the INA asks what offense the noncitizen was “convicted” of, 8 U.S. C. not what acts he committed. “[C]on- viction” is “the relevant statutory hook.”4 Carachuri- Rosendo v. Holder, 5 U.S. (2010) (slip op., at 16); see United States ex rel. 210 F. 8, (CA2 1914). B The aggravated felony at issue here, “illicit trafficking in a controlled substance,” is a “generic crim[e].” So the categorical approach applies. As we have at 2–3, this aggravated felony encompasses all state offenses that “proscrib[e] conduct punishable as a felony under [the CSA].” 549 U. S., at In other words, to satisfy the categorical approach, a state drug offense must meet two conditions: It must “necessarily” proscribe conduct that is an offense under the CSA, and the CSA must “necessarily” prescribe felony punishment for that conduct. Moncrieffe was convicted under a Georgia statute that —————— 4 Carachuri-Rosendo construed a different provision of the INA that concerns cancellation of removal, which also requires determining whether the noncitizen has been “convicted of any aggravated felony.” 8 U.S. C. (emphasis added). Our analysis is the same in both contexts. Cite as: 569 U. S. (2013) 7 Opinion of the Court makes it a crime to “possess, have under [one’s] control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute mari- juana.” –13–30(j)(1). We know from his plea agreement that Moncrieffe was convicted of the last of these offenses. App. to Brief for Petitioner 11; We therefore must determine whether possession of marijuana with intent to distribute is “nec- essarily” conduct punishable as a felony under the CSA. We begin with the relevant conduct criminalized by the CSA. There is no question that it is a federal crime to “possess with intent to distribute a controlled substance,” 21 U.S. C. one of which is mari- juana, So far, the state and federal provisions correspond. But this is not enough, because the generically defined federal crime is “any felony punishable under the Controlled Substances Act,” 18 U.S. C. not just any “offense under the CSA.” Thus we must look to what punishment the CSA imposes for this offense. Section 841 is divided into two subsections that are relevant here: (a), titled “Unlawful acts,” which includes the offense just described, and (b), titled “Penalties.” Subsection (b) tells us how “any person who violates sub- section (a)” shall be punished, depending on the circum- stances of his crime (e.g., the type and quantity of con- trolled substance involved, whether it is a repeat offense).6 —————— 5 In full, 21 U.S. C. provides, “Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally— “(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance” 6 In pertinent part, and (b)(4) (2006 ed. and Supp. V) provide, “Except as otherwise provided in section 849, 859, 8, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows: 8 MONCRIEFFE v. HOLDER Opinion of the Court Subsection (b)(1)(D) provides that if a person commits a violation of subsection (a) involving “less than 50 kilo- grams of marihuana,” then “such person shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of imprisonment of not more than 5 years,” i.e., as a felon. But one of the exceptions is im- portant here. Paragraph (4) provides, “Notwithstanding paragraph (1)(D) of this subsection, any person who vio- lates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as” a simple drug possessor, 21 U.S. C. which for our purposes means as a misdemeanant.7 These dovetail- ing provisions create two mutually exclusive categories of punishment for CSA marijuana distribution offenses: one —————— “[(1)](D) In the case of less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of weight, 10 kilograms of hashish, or one kilogram of hashish oil, such person shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of imprisonment of not more than 5 years, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $250,000 if the defendant is an individual or $1,000,000 if the defendant is other than an individual, or both. “(4) Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 37 of title 18.” 7 Although paragraph (4) speaks only of “distributing” marijuana, the parties agree that it also applies to “the more inchoate offense of possession with intent to distribute that drug.” Matter of Castro Rodriguez, ; see Brief for Petitioner 6, n. 2; Brief for Respondent 8, n. 5. The CSA does not define “small amount.” The BIA has suggested that 30 grams “serve[s] as a useful guidepost,” Castro Rodriguez, 25 I. & N. Dec., at 703, noting that the INA exempts from deportable controlled substances offenses “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” 8 U.S. C. The meaning of “small amount” is not at issue in this case, so we need not, and do not, define the term. Cite as: 569 U. S. (2013) 9 Opinion of the Court a felony, and one not. The only way to know whether a marijuana distribution offense is “punishable as a felony” under the CSA, 549 U. S., at is to know whether the conditions described in paragraph (4) are present or absent. A conviction under the same Georgia statute for “sell[ing]” marijuana, for example, would seem to establish remuneration. The presence of remuneration would mean that paragraph (4) is not implicated, and thus that the conviction is necessarily for conduct punishable as a felony under the CSA (under paragraph (1)(D)). In contrast, the fact of a conviction for possession with intent to distribute marijuana, standing alone, does not reveal whether either remuneration or more than a small amount of marijuana was involved. It is possible neither was; we know that Georgia prosecutes this offense when a defendant possesses only a small amount of marijuana, see, e.g., Taylor v. State, 2 Ga. App. 890, (6.6 grams), and that “distribution” does not require remuner- ation, see, e.g., 628– 629, So Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. Ambiguity on this point means that the conviction did not “necessarily” involve facts that correspond to an offense punishable as a felony under the CSA. Under the categorical approach, then, Moncrieffe was not convicted of an aggravated felony. III A The Government advances a different approach that leads to a different result. In its view, misde- meanor provision is irrelevant to the categorical analysis because paragraph (4) is merely a “mitigating exception,” to the CSA offense, not one of the “elements” of the of- fense. Brief for Respondent 12. And because possession 10 MONCRIEFFE v. HOLDER Opinion of the Court with intent to distribute marijuana is “presumptive[ly]” a felony under the CSA, the Government asserts, any state offense with the same elements is presumptively an ag- gravated felony. These two contentions are related, and we reject both of them. First, the Government reads our cases to hold that the categorical approach is concerned only with the “elements” of an offense, so “is not relevant” to the categor- ical analysis. It is enough to satisfy the cate- gorical inquiry, the Government suggests, that the “ele- ments” of Moncrieffe’s Georgia offense are the same as those of the CSA offense: (1) possession (2) of marijuana (a controlled substance), (3) with intent to distribute it. But that understanding is inconsistent with Carachuri- Rosendo, our only decision to address both “elements” and “sentencing factors.” There we recognized that when Congress has chosen to define the generic federal offense by reference to punishment, it may be necessary to take account of federal sentencing factors too. See 5 U. S., at (slip op., at 3). In that case the relevant CSA offense was simple possession, which “becomes a ‘felony punisha- ble under the [CSA]’ only because the sentencing factor of recidivism authorizes additional punishment beyond one year, the criterion for a felony.” at (SCALIA, J., concurring in judgment) (slip op., at 2). We therefore called the generic federal offense “recidivist simple posses- sion,” even though such a crime is not actually “a separate offense” under the CSA, but rather an “ ‘amalgam’ ” of offense elements and sentencing factors. at and n. 3, (majority opinion) (slip op., at 3, and n. 3, 7). In other words, not only must the state offense of convic- tion meet the “elements” of the generic federal offense defined by the INA, but the CSA must punish that offense as a felony. Here, the facts giving rise to the CSA offense establish a crime that may be either a felony or a misde- meanor, depending upon the presence or absence of cer- Cite as: 569 U. S. (2013) 11 Opinion of the Court tain factors that are not themselves elements of the crime. And so to qualify as an aggravated felony, a conviction for the predicate offense must necessarily establish those factors as well. The Government attempts to distinguish Carachuri- Rosendo on the ground that the sentencing factor there was a “narrow” aggravating exception that turned a mis- demeanor into a felony, whereas here is a nar- row mitigation exception that turns a felony into a misde- meanor. Brief for Respondent 40–43. This argument hinges upon the Government’s second assertion: that any marijuana distribution conviction is “presumptively” a felony. But that is simply incorrect, and the Government’s argument collapses as a result. Marijuana distribution is neither a felony nor a misdemeanor until we know whether the conditions in paragraph (4) attach: Section 841(b)(1)(D) makes the crime punishable by five years’ imprisonment “except as provided” in paragraph (4), and makes it punishable as a misdemeanor “[n]otwithstanding paragraph (1)(D)” when only “a small amount of marihuana for no remuneration” is involved. (Emphasis added.) The CSA’s text makes neither provi- sion the default. Rather, each is drafted to be exclusive of the other. Like the BIA and the Fifth Circuit, the Government believes the felony provision to be the default because, in practice, that is how federal criminal prosecutions for marijuana distribution operate. See – ; Matter of Aruna, I. & N. Dec. 452, ; Brief for Respondent 18–23. It is true that every Court of Appeals to have considered the question has held that a defendant is eligible for a 5-year sentence under if the Government proves he possessed marijuana with the intent to distribute it, and that the Government need not negate the factors in each case. See, e.g., United 636– 12 MONCRIEFFE v. HOLDER Opinion of the Court 639 (CA2 2002) (describing as a “mitigating exception”); United 670– 671 (collecting cases). Instead, the burden is on the defendant to show that he qualifies for the lesser sentence under Cf. We cannot discount text, however, which creates no default punishment, in favor of the procedural overlay or burdens of proof that would apply in a hypothetical federal criminal prosecution. In Carachuri-Rosendo, we rejected the Fifth Circuit’s “ ‘hypothetical approach,’ ” which examined whether conduct “ ‘could have been pun- ished as a felony’ ‘had [it] been prosecuted in federal court.’ ” 5 U. S., at (slip op., at 8, 11).8 The outcome in a hypothetical prosecution is not the relevant inquiry. Rather, our “more focused, categorical inquiry” is whether the record of conviction of the predicate offense necessarily establishes conduct that the CSA, on its own terms, makes punishable as a felony. at (slip op., at 16). The analogy to a federal prosecution is misplaced for another reason. The Court of Appeals cases the Govern- ment cites distinguished between elements and sentencing factors to determine which facts must be proved to a jury, —————— 8 JUSTICE ALITO states that the statute “obviously” requires examina- tion of whether “conduct associated with the state offense would have supported a qualifying conviction under the federal CSA.” Post, at 3 (dissenting opinion) (emphasis added); see also post, at 8. But this echoes the Fifth Circuit’s approach in Carachuri-Rosendo. As noted in the text, our opinion explicitly rejected such reasoning based on condi- tional perfect formulations. See also, e.g., Carachuri-Rosendo, 5 U. S., at (slip op., at 16) (criticizing approach that “focuses on facts known to the immigration court that could have but did not serve as the basis for the state conviction and punishment” (emphasis altered)). Instead, as we have at 10–11, our holding depended upon the fact that Carachuri-Rosendo’s conviction did not establish the fact necessary to distinguish between misdemeanor and felony punish- ment under the CSA. The same is true here. Cite as: 569 U. S. (2013) 13 Opinion of the Court in light of the Sixth Amendment concerns addressed in The courts considered which “provision states a complete crime upon the fewest facts,” which was significant after Apprendi to identify what a jury had to find before a defendant could receive ’s max- imum 5-year sentence. But those concerns do not apply in this context. Here we consider a “generic” federal offense in the abstract, not an actual federal offense being prose- cuted before a jury. Our concern is only which facts the CSA relies upon to distinguish between felonies and mis- demeanors, not which facts must be found by a jury as opposed to a judge, nor who has the burden of proving which facts in a federal prosecution.9 Because of these differences, we made clear in Carachuri- Rosendo that, for purposes of the INA, a generic fed- eral offense may be defined by reference to both “ ‘ele- ments’ in the traditional sense” and sentencing factors. 5 U. S., at n. 3, (slip op., at 3, n. 3, 7); see also at (SCALIA, J., concurring in judgment) (slip op., at 3) (describing the generic federal offense there as “the Controlled Substances Act felony of possession-plus- recidivism”). Indeed, the distinction between “elements” and “sentencing factors” did not exist when Congress added illicit drug trafficking to the list of aggravated felonies, Anti-Drug Abuse Act of 1988, – 4470, and most courts at the time understood both and to contain sentencing factors —————— 9 The Government also cites 21 U.S. C. which provides that the Government need not “negative any exemption or exception set forth” in the CSA, and instead “the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.” Brief for Respondent 21. Even assum- ing is such an “exception,” applies, by its own terms, only to “any trial, hearing, or other proceeding under” the CSA itself, not to the rather different proceedings under the INA. 14 MONCRIEFFE v. HOLDER Opinion of the Court that draw the line between a felony and a misdemeanor. See, e.g., United Carachuri-Rosendo controls here. Finally, there is a more fundamental flaw in the Gov- ernment’s approach: It would render even an undisputed misdemeanor an aggravated felony. This is “just what the English language tells us not to expect,” and that leaves us “very wary of the Government’s position.” 549 U. S., at 54. Consider a conviction under a New York statute that provides, “A person is guilty of criminal sale of marihuana in the fifth degree when he knowingly and unlawfully sells, without consideration, [marihuana] of an aggregate weight of two grams or less; or one cigarette containing marihuana.” N. Y. Penal Law Ann. (emphasis added). This statute criminalizes only the distribution of a small amount of marijuana for no remuneration, and so all convictions under the statute would fit within the CSA misdemeanor provision, But the Government would categorically deem a conviction under this statute to be an aggravated felony, because the statute contains the corresponding “elements” of (1) distributing (2) marijuana, and the Government believes all marijuana distribution offenses are punishable as felonies. The same anomaly would result in the case of a nonciti- zen convicted of a misdemeanor in federal court under and (b)(4) directly. Even in that case, under the Government’s logic, we would need to treat the federal misdemeanor conviction as an aggravated felony, because the conviction establishes elements of an offense that is presumptively a felony. This cannot be. “We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors,” only to have courts presume felony treatment and ignore the very factors that distinguish felonies from misdemeanors. Cite as: 569 U. S. (2013) 15 Opinion of the Court B Recognizing that its approach leads to consequences Congress could not have intended, the Government hedges its argument by proposing a remedy: Noncitizens should be given an opportunity during immigration proceedings to demonstrate that their predicate marijuana distribution convictions involved only a small amount of marijuana and no remuneration, just as a federal criminal defendant could do at sentencing. Brief for Respondent 35–39. This is the procedure adopted by the BIA in Matter of Castro Rodriguez, and endorsed by JUSTICE ALITO’s dissent, post, at 11–12. This solution is entirely inconsistent with both the INA’s text and the categorical approach. As noted, the relevant INA provisions ask what the noncitizen was “convicted of,” not what he did, and the inquiry in immi- gration proceedings is limited accordingly. 8 U.S. C. § 1229b(a)(3); see Carachuri-Rosendo, 5 U. S., at (slip op., at 11). The Government cites no statutory authority for such case-specific factfinding in immigration court, and none is apparent in the INA. Indeed, the Government’s main categorical argument would seem to preclude this inquiry: If the Government were correct that “the fact of a marijuana-distribution conviction alone constitutes a CSA felony,” Brief for Re- spondent 37, then all marijuana distribution convictions would categorically be convictions of the drug trafficking aggravated felony, mandatory deportation would follow under the statute, and there would be no room for the Government’s follow-on factfinding procedure. The Gov- ernment cannot have it both ways. Moreover, the procedure the Government envisions would require precisely the sort of post hoc investigation into the facts of predicate offenses that we have long deemed undesirable. The categorical approach serves “practical” purposes: It promotes judicial and administra- 16 MONCRIEFFE v. HOLDER Opinion of the Court tive efficiency by precluding the relitigation of past convic- tions in minitrials conducted long after the fact. Cham- ; see also 210 F., at –863. Yet the Government’s ap- proach would have our Nation’s overburdened immigra- tion courts entertain and weigh testimony from, for exam- ple, the friend of a noncitizen who may have shared a marijuana cigarette with him at a party, or the local police officer who recalls to the contrary that cash traded hands. And, as a result, two noncitizens, each “convicted of ” the same offense, might obtain different aggravated felony determinations depending on what evidence remains available or how it is perceived by an individual immigra- tion judge. The categorical approach was designed to avoid this “potential unfairness.” Taylor, 495 U. S., at 1; see also Furthermore, the minitrials the Government proposes would be possible only if the noncitizen could locate wit- nesses years after the fact, notwithstanding that during removal proceedings noncitizens are not guaranteed legal representation and are often subject to mandatory deten- tion, where they have little ability to collect evidence. See Katzmann, The Legal Profession and the Unmet Needs of the Immigrant Poor, 21 Geo. J. Legal Ethics 3, 5–10 ; Brief for National Immigrant Jus- tice Center et al. as Amici Curiae 5–18; Brief for Immigra- tion Law Professors as Amici Curiae 27–32. A noncitizen in removal proceedings is not at all similarly situated to a defendant in a federal criminal prosecution. The Govern- ment’s suggestion that the CSA’s procedures could readily be replicated in immigration proceedings is therefore misplaced. Cf. Carachuri-Rosendo, 5 U. S., at (slip op., at 14–15) (rejecting the Government’s argument that procedures governing determination of the recidivism sentencing factor could “be satisfied during the immigra- tion proceeding”). Cite as: 569 U. S. (2013) 17 Opinion of the Court The Government defends its proposed immigration court proceedings as “a subsequent step outside the categorical approach in light of Section 841(b)(4)’s ‘circumstance- specific’ nature.” Brief for Respondent 37. This argument rests upon in which we considered another aggravated felony, “an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U.S. C. (a)(43)(M)(i). We held that the $10,000 threshold was not to be applied categorically as a required component of a generic offense, but instead called for a “circumstance-specific approach” that allows for an examination, in immigration court, of the “particular circumstances in which an offender committed the crime on a particular occasion.” –40. The Government suggests the factors are like the monetary threshold, and thus similarly amenable to a circumstance-specific inquiry. We in however, that unlike the provision there, “illicit trafficking in a controlled sub- stance” is a “generic crim[e]” to which the categorical approach applies, not a circumstance-specific provision. ; see also Carachuri-Rosendo, 5 U. S., at n. 11 (slip op., at 12–13, n. 11). That distinction is evident in the structure of the INA. The monetary threshold is a limitation, written into the INA itself, on the scope of the aggravated felony for fraud. And the monetary threshold is set off by the words “in which,” which calls for a circum- stance-specific examination of “the conduct involved ‘in’ the commission of the offense of conviction.” Locating this exception in the INA proper suggests an intent to have the relevant facts found in immigration proceedings. But where, as here, the INA incorporates other criminal statutes wholesale, we have held it “must refer to generic crimes,” to which the cate- gorical approach applies. Finally, the Government suggests that the immigration 18 MONCRIEFFE v. HOLDER Opinion of the Court court’s task would not be so daunting in some cases, such as those in which a noncitizen was convicted under the New York statute previously discussed or convicted directly under True, in those cases, the record of conviction might reveal on its face that the predicate offense was punishable only as a misdemeanor. But most States do not have stand-alone offenses for the social sharing of marijuana, so minitrials concerning convictions from the other States, such as Georgia, would be inevita- ble.10 The Government suggests that even in these other States, the record of conviction may often address the factors, because noncitizens “will be advised of the immigration consequences of a conviction,” as defense counsel is required to do under Padilla v. Kentucky, 559 U.S. 359 (2010), and as a result counsel can build an appropriate record when the facts are fresh. Brief for Respondent 38. Even assuming defense counsel “will” do something simply because it is required of effective coun- sel (an assumption experience does not always bear out), this argument is unavailing because there is no reason to believe that state courts will regularly or uniformly admit evidence going to facts, such as remuneration, that are irrelevant to the offense charged. In short, to avoid the absurd consequences that would flow from the Government’s narrow understanding of the categorical approach, the Government proposes a solution —————— 10 Inaddition to New York, it appears that 13 other States have sepa- rate offenses for conduct. See Cal. Health & Safety Code Ann. §113(b) (West Supp. 2013); –18–406(5) ; (2)(b)(3) (2010); Ill. Comp. Stat., ch. 20, 550/4, 550/6 (West 2010); Iowa Code §1.410 ; Minn. Stat. (2010); N. M. Stat. Ann. ; (C)(3)(h) (Lexis Cum. Supp.); Ore. Rev. Stat. §475.8(3) ; Pa. Stat. Ann., Tit. 35, ; S. D. Codified Laws ; Tex. Health & Safety Code Ann. (West 2010); W. Va. Code Ann. §A–4–402(c) (Lexis 2010). Cite as: 569 U. S. (2013) 19 Opinion of the Court that largely undermines the categorical approach. That the only cure is worse than the disease suggests the Gov- ernment is simply wrong. C The Government fears the consequences of our decision, but its concerns are exaggerated. The Government ob- serves that, like Georgia, about half the States criminalize marijuana distribution through statutes that do not re- quire remuneration or any minimum quantity of mari- juana. at 26–28. As a result, the Government contends, noncitizens convicted of marijuana distribution offenses in those States will avoid “aggravated felony” determina- tions, purely because their convictions do not resolve whether their offenses involved federal felony conduct or misdemeanor conduct, even though many (if not most) prosecutions involve either remuneration or larger amounts of marijuana (or both). Escaping aggravated felony treatment does not mean escaping deportation, though. It means only avoiding mandatory removal. See Carachuri-Rosendo, 5 U. S., at (slip op., at 17). Any marijuana distribution offense, even a misdemeanor, will still render a noncitizen deport- able as a controlled substances offender. 8 U.S. C. At that point, having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation of removal, assuming he satisfies the other eligibility criteria. 1229b(a)(1)–(2). But those forms of relief are discretionary. The Attorney General may, in his discre- tion, deny relief if he finds that the noncitizen is actually a member of one “of the world’s most dangerous drug car- tels,” post, at 2 (opinion of ALITO, J.), just as he may deny relief if he concludes the negative equities outweigh the positive equities of the noncitizen’s case for other reasons. As a result, “to the extent that our rejection of the Gov- 20 MONCRIEFFE v. HOLDER Opinion of the Court ernment’s broad understanding of the scope of ‘aggravated felony’ may have any practical effect on policing our Na- tion’s borders, it is a limited one.” Carachuri-Rosendo, 5 U. S., at (slip op., at 17). In any event, serious drug traffickers may be adjudi- cated aggravated felons regardless, because they will likely be convicted under greater “trafficking” offenses that necessarily establish that more than a small amount of marijuana was involved. See, e.g., –13– 31(c)(1) (separate provision for trafficking in more than 10 pounds of marijuana). Of course, some offenders’ conduct will fall between conduct and the more serious conduct required to trigger a “trafficking” statute. Brief for Respondent 30. Those offenders may avoid aggravated felony status by operation of the categor- ical approach. But the Government’s objection to that underinclusive result is little more than an attack on the categorical approach itself.11 We prefer this degree of imperfection to the heavy burden of relitigating old prose- cutions. See at 15–16. And we err on the side of underinclusiveness because ambiguity in criminal statutes —————— 11 Similarly, JUSTICE ALITO’s dissent suggests that he disagrees with the first premises of the categorical approach. He says it is a “strange and disruptive resul[t]” that “defendants convicted in different States for committing the same criminal conduct” might suffer different collateral consequences depending upon how those States define their statutes of conviction. Post, at 9. Yet that is the longstanding, natural result of the categorical approach, which focuses not on the criminal conduct a defendant “commit[s],” but rather what facts are necessarily established by a conviction for the state offense. Different state offenses will necessarily establish different facts. Some will track the “uni- form” federal definition of the generic offense, and some will not. Whatever disparity this may create as between defendants whose real-world conduct was the same, it ensures that all defendants whose convictions establish the same facts will be treated consistently, and thus predictably, under federal law. This was Taylor’s chief concern in adopting the categorical approach. See at 599–2. Cite as: 569 U. S. (2013) 21 Opinion of the Court referenced by the INA must be construed in the nonciti- zen’s favor. See Carachuri-Rosendo, 5 U. S., at (slip op., at 17); Finally, the Government suggests that our holding will frustrate the enforcement of other aggravated felony provisions, like (a)(43)(C), which refers to a federal firearms statute that contains an exception for “antique firearm[s],” 18 U.S. C. The Government fears that a conviction under any state firearms law that lacks such an exception will be deemed to fail the categorical inquiry. But Duenas-Alvarez requires that there be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” To defeat the categorical comparison in this manner, a non- citizen would have to demonstrate that the State actu- ally prosecutes the relevant offense in cases involving an- tique firearms. Further, the Government points to (a)(43)(P), which makes passport fraud an aggravat- ed felony, except when the noncitizen shows he committed the offense to assist an immediate family member. But that exception is provided in the INA itself. As we held in a circumstance-specific inquiry would apply to that provision, so it is not comparable. 557 U. S., at 37–38. * * * This is the third time in seven years that we have con- sidered whether the Government has properly character- ized a low-level drug offense as “illicit trafficking in a controlled substance,” and thus an “aggravated felony.” Once again we hold that the Government’s approach defies “the ‘commonsense conception’” of these terms. Carachuri- Rosendo, 5 U. S., at (slip op., at 9) (quoting ). Sharing a small amount of mari- juana for no remuneration, let alone possession with 22 MONCRIEFFE v. HOLDER Opinion of the Court intent to do so, “does not fit easily into the ‘everyday un- derstanding’ ” of “trafficking,” which “ ‘ordinarily means some sort of commercial dealing.’ ” Carachuri-Rosendo, 5 U. S., at (slip op., at 9) (quoting 549 U. S., at 53–54). Nor is it sensible that a state statute that criminalizes conduct that the CSA treats as a misde- meanor should be designated an “aggravated felony.” We hold that it may not be. If a noncitizen’s conviction for a mari- juana distribution offense fails to establish that the of- fense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggra- vated felony under the INA. The contrary judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 569 U. S. (2013) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 11– ADRIAN MONCRIEFFE, PETITIONER v. ERIC H. HOLDER, JR.,

Justice Brennan

concurring

United States v. Hensley

https://www.courtlistener.com/opinion/111294/united-states-v-hensley/

https://www.courtlistener.com/api/rest/v3/clusters/111294/

1984-015

I join the opinion of the Court. With respect to its effect on respondent's "right . . . to be secure . . . in [his] perso[n]" guaranteed by the Fourth Amendment, the stop in this case — although it no doubt seriously infringed upon respondent's privacy — lasted a mere matter of moments, see ante, at 224-225, before the discovery of the gun ripened what had been merely reasonable suspicion into the full-scale probable cause necessary for an arrest. For circumstances like these, Terry v. Ohio, 392 U.S. 1 (1968), "defined a special category of Fourth Amendment `seizures' so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment `seizures' reasonable could be replaced by a balancing test." Dunaway v. New York, 442 U.S. 200, 210 (1979). See ante, at 228. Such a balancing test is appropriate as long as it is conducted with full *237 regard for the serious privacy interests implicated even by such a relatively nonintrusive stop. See Terry v. Ohio, supra. Of course, in the case of intrusions properly classifiable as full-scale arrests for Fourth Amendment purposes, no such balancing test is needed. Such arrests are governed by the probable-cause standard provided by the text of the Fourth Amendment itself

I join the opinion of the Court. With respect to its effect on respondent's "right to be secure in [his] perso[n]" guaranteed by the Fourth Amendment, the stop in this case — although it no doubt seriously infringed upon respondent's privacy — lasted a mere matter of moments, see ante, at 224-225, before the discovery of the gun ripened what had been merely reasonable suspicion into the full-scale probable cause necessary for an arrest. For circumstances like these, "defined a special category of Fourth Amendment `seizures' so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment `seizures' reasonable could be replaced by a balancing test." See ante, at 228. Such a balancing test is appropriate as long as it is conducted with full *237 regard for the serious privacy interests implicated even by such a relatively nonintrusive stop. See Of course, in the case of intrusions properly classifiable as full-scale arrests for Fourth Amendment purposes, no such balancing test is needed. Such arrests are governed by the probable-cause standard provided by the text of the Fourth Amendment itself

Justice White

majority

Hancock v. Train

https://www.courtlistener.com/opinion/109467/hancock-v-train/

https://www.courtlistener.com/api/rest/v3/clusters/109467/

1975-111

The question for decision in this case is whether a State whose federally approved implementation plan forbids an air contaminant source to operate without a state permit may require existing federally owned or operated installations to secure such a permit. The case presents an issue of statutory construction requiring examination of the Clean Air Act, as amended, 42 U.S. C. § 1857 et seq., and its legislative history in light of established constitutional principles governing the determination of whether and the extent to which federal installations have been subjected to state regulation.[1] The specific question is whether obtaining a permit to operate *169 is among those "requirements respecting control and abatement of air pollution" with which existing federal facilities must comply under § 118 of the Clean Air Act.[2] I Last Term in Train v. Natural Resources Defense Council, 421 U.S. 60 (1975), we reviewed the development of federal air pollution legislation through the Clean Air Amendments of 1970 (Amendments)[3] and observed that although the Amendments "sharply increased federal authority and responsibility in the continuing effort to combat air pollution," they "explicitly preserved the principle" that " `[e]ach State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State . . . ,' " id., at 64, quoting from § 107 (a) of the Clean Air Act, as added, 84 Stat. 1678, 42 U.S. C. § 1857c-2 (a). Consistently with this principle, the Amendments required that within nine months after the Environmental Protection Agency (EPA) promulgated the primary and secondary ambient air quality standards required by § 109 (a) of the Clean Air Act, as added, 84 Stat. 1679, 42 U.S. C. § 1857c-4 (a),[4] for certain air pollutants,[5] each State submit to the EPA a plan by which it would implement and maintain those standards within its territory. § 110 (a) (1) of the Clean Air Act, as added, 84 Stat. 1680, 42 U.S. C. § 1857c-5 (a) (1). See 40 CFR pt. 51 (1975). The EPA was required to approve each State's *170 implementation plan as long as it was adopted after public hearings and satisfied the conditions specified in § 110 (a) (2). For existing sources[6] the State must propose "emission limitations, schedules, and timetables for compliance with such limitations" necessary to meet the air quality standards. § 110 (a) (2) (B). As we observed in Train, supra, at 78-79, given the EPA's nationwide air quality standards, the State is to adopt a plan setting "the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards. "[The EPA] is relegated by the Act to a secondary role in the process of determining and enforcing the specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met. . . . The Act gives [the EPA] no authority to question the wisdom of a State's choices of emission limitations if they are part of a plan which satisfies the standards of § 110 (a) (2). . . . Thus, so long as the ultimate effect of a State's choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation." (Footnote omitted.) Along with increasing federal authority and "taking a stick to the States"[7] by requiring them to implement the *171 federal standards promulgated pursuant to that authority, Congress also intended the Amendments "to strengthen the strictures against air pollution by federal facilities."[8] Before 1970, § 111 (a) of the Clean Air Act simply declared "the intent of Congress" to be that federal installations "shall, to the extent practicable and consistent with the interests of the United States and within any available appropriations, cooperate with" federal and state air pollution control authorities "in preventing and controlling the pollution of the air in any area insofar as the discharge of any matter from or by such" federal installation "may cause or contribute to pollution of the air in such area."[9] Experience with performance by federal sources of air pollution under this voluntary scheme[10] led the Congress to conclude that admonishing federal agencies to prevent and control air pollution was inadequate, because "[i]nstead of exercising leadership in controlling or eliminating air pollution"[11] "Federal agencies have been notoriously laggard in abating pollution."[12] Both to provide the leadership to private industry and to abate violations of air pollution standards by federal facilities, in 1970 Congress added § 118 to the Clean Air Act. The first sentence of the section provides: "Each department, agency, and instrumentality of the executive, legislative, and judicial branches of *172 the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, shall comply with Federal, State, interstate, and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements." 42 U.S. C. § 1857f. The remainder of § 118 authorizes the President, upon a determination that it is "in the paramount interest of the United States to do so" and subject to several limitations, to exempt certain federal emission sources from "compliance with such a requirement."[13] After enactment of § 118 there is no longer any question whether federal installations must comply with established air pollution control and abatement measures. The question has become how their compliance is to be enforced. II In February 1972, Kentucky submitted its implementation plan to the EPA. On May 31, 1972, the plan was approved by the Administrator in relevant part.[14] Chapter 7 of the plan included Kentucky Air Pollution Control Commission (Commission) Regulation No. AP-1, § 5 (1), which provides: "No person shall construct, modify, use, operate, or maintain an air contaminant source or maintain *173 or allow physical conditions to exist on property owned by or subject to the control of such person, resulting in the presence of air contaminants in the atmosphere, unless a permit therefor has been issued by the Commission and is currently in effect."[15] An applicant for a permit must complete a form supplied by the Commission and, "when specifically requested by the Commission, include an analysis of the characteristics, properties, and volume of the air contaminants based upon source or stack samples of the air contaminants taken under normal operating conditions."[16] The process of review of the application may include hearings.[17] Permits are denied if the applicant does not supply the "information required or deemed necessary by the Commission to enable it to act upon the permit application,"[18] or when "the air contaminant source will prevent or interfere with the attainment or maintenance of state or federal air quality standards."[19] When granted, a permit may be "subject to such terms and conditions set forth and embodied in the permit as the Commission shall deem necessary to insure compliance with its standards."[20] Once issued, a permit may be revoked or modified for failure to comply with the terms and conditions of the permit, with emission standards applicable to the air contaminant source, or with the *174 ambient air standards for the area in which the air contaminant source is located. Reg. AP-1, § 5 (5), CA App. 122. Soon after the implementation plan was approved, a Commission official wrote to numerous officials responsible for various Kentucky facilities of the United States Army,[21] of the Tennessee Valley Authority (TVA),[22] and of the Atomic Energy Commission (AEC)[23] requesting that they apply for and obtain permits as requested by the EPA-approved plan. The responses to these requests were to the effect that federally owned or operated facilities located in Kentucky were not required to secure an operating permit. Each response, however, either offered to or did supply the information and data requested on the standard permit application form.[24] The Commission continued to press the federal officials *175 to apply for operating permits. In October 1972, the Regional Administrator of the EPA sent a letter to the operators of all federal facilities in the region, including those to which the Kentucky officials had addressed their requests, and to the Commission. Setting forth EPA policy and the agency's interpretation of § 118 of the Clean Air Act,[25] the Regional Administrator stated: "It is clear that Section 118 . . . requires Federal facilities to meet state air quality standards and emission limitations and to comply with deadlines established in the approved state air implementation plans." App. 57. To aid the States in accomplishing these objections, wrote the Administrator, each federal facility should develop a compliance schedule and should provide "reasonable and specific" data requested by the State. Id., at 58. On the question whether federal facilities must apply for state permits, the letter reiterated the EPA position that although "Federal agencies are [not] required to apply for state operating permits . . . [o]ur aim is to encourage Federal agencies to provide the states with all the information required to assess compliance of pollution sources with standards, emission and discharge limitations and the needs for additional abatement measures."[26]Ibid. *176 Kentucky then brought this suit in the United States District Court for the Western District of Kentucky.[27] The complaint sought declaratory and injunctive relief requiring the Army, TVA, and AEC facilities to secure operating permits. Kentucky also named several EPA officials as defendants and asked the District Court to order them to commence appropriate actions under § 113 of the Clean Air Act, directing the Army, the TVA, and the AEC facilities to comply with the provisions of Regulation AP-1, § 5 (1).[28] On cross-motions for summary *177 judgment, the District Court ordered the complaint dismissed. Kentucky ex rel. Hancock v. Ruckelshaus, 362 F. Supp. 360 (1973). The Court of Appeals affirmed, 497 F.2d 1172 (CA6 1974). Like the District Court, 362 F. Supp., at 363 n. 3, the Court of Appeals found it unnecessary to determine whether the federal installations were in compliance with Kentucky's emission limitations or had adopted adequate compliance schedules, for it was Kentucky's position that notwithstanding possible compliance "the Kentucky Plan is so formulated that the State cannot meet its primary responsibility under the Clean Air Act without the use of permits." 497 F.2d, at 1174-1175. After examining § 118 and its purposes in relation to other provisions of the Clean Air Act, the court concluded: "We do not believe the congressional scheme for accomplishment of these purposes included subjection of federal agencies to state or local permit requirements. Congress did commit the United States to compliance with air quality and emission standards, and it is undisputed in this record that the federal facilities in Kentucky have cooperated with the Commission toward this end." 497 F.2d, at 1177. We granted Kentucky's petition for certiorari, 420 U.S. 971 (1975), to resolve a conflict in the Courts of Appeals,[29] and now affirm. *178 III It is a seminal principle of our law "that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them." M'Culloch v. Maryland, 4 Wheat. 316, 426 (1819). From this principle is deduced the corollary that "[i]t is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence." Id., at 427. The effect of this corollary, which derives from the Supremacy Clause[30] and is exemplified in the Plenary Powers Clause[31] giving Congress exclusive legislative authority over federal enclaves purchased with the consent of a State, is "that the activities of the Federal Government are free from regulation by any state."[32] As Mr. Justice Holmes put it in Johnson v. Maryland, 254 U.S. 51, 57 (1920): "[T]he immunity of the instruments of the United States from state control in the performance of their duties extends to a requirement that they *179 desist from performance until they satisfy a state officer upon examination that they are competent for a necessary part of them . . . ." Taken with the "old and well-known rule that statutes which in general terms divest pre-existing rights or privileges will not be applied to the sovereign"[33] "without a clear expression or implication to that effect,"[34] this immunity means that where "Congress does not affirmatively declare its instrumentalities or property subject to regulation," "the federal function must be left free" of regulation.[35] Particular deference should be accorded that "old and well-known rule" where, as here, the rights and privileges of the Federal Government at stake not only find their origin in the Constitution, but are to be divested in favor of and subjected to regulation by a subordinate sovereign. Because of the fundamental importance of the principles shielding federal installations and activities from regulation by the States, an authorization of state regulation is found only when and to the extent there is "a clear congressional mandate,"[36] "specific congressional action"[37] that makes this authorization of state regulation "clear and unambiguous."[38] Neither the Supremacy Clause nor the Plenary Powers Clause bars all state regulation which may touch the activities of the Federal Government. See Penn Dairies *180 v. Pennsylvania Milk Control Comm'n, 318 U.S. 261 (1943); Alabama v. King & Boozer, 314 U.S. 1, 9 (1941), and cases cited. "Here, however, the State places a prohibition on the Federal Government."[39] The permit requirement is not intended simply to regulate the amount of pollutants which the federal installations may discharge. Without a permit, an air contaminant source is forbidden to operate even if it is in compliance with every other state measure respecting air pollution control and abatement. It is clear from the record that prohibiting operation of the air contaminant sources for which the State seeks to require permits, App. 14-17, is tantamount to prohibiting operation of the federal installations on which they are located. Id., at 89-93. Kentucky, like the Court of Appeals for the Fifth Circuit in Alabama v. Seeber, 502 F.2d 1238, 1247-1248 (1974), finds in § 118 a sufficient congressional authorization to the States, not only to establish the amount of pollutants a federal installation may discharge, but also to condition operation of federal installations on securing a state permit. We disagree because we are not convinced that Congress intended to subject federal agencies to state permits. We are unable to find in § 118, on its face or in relation to the Clean Air Act as a whole, or to derive from the legislative history of the Amendments any clear and unambiguous declaration by the Congress that federal installations may not perform their activities unless a state official issues a permit. Nor can congressional intention to submit federal activity to state control be implied from the claim that under Kentucky's EPA-approved implementation plan it is only through the permit system that compliance schedules and other *181 requirements may be administratively enforced against federal installations. IV The parties rightly agree that § 118 obligates federal installations to conform to state air pollution standards or limitations and compliance schedules.[40] With the enactment of the Amendments in 1970 came the end of the era in which it was enough for federal facilities to volunteer their cooperation with federal and state officials. In Kentucky's view that era has been replaced by one in which federal installations are not only required to limit their air pollutant emissions to the same extent as their nonfederal neighbors, but also, subject only to case-by-case Presidential exemption, to submit themselves completely to the state regime by which the necessary information to promulgate emission limitations and compliance schedules is gathered and by which collection of that information and enforcement of the emission limitations and compliance schedules are accomplished. Respondents (hereafter sometimes EPA) take the position that the Congress has not gone so far. While federal and nonfederal installations are governed by the same emission standards, standards which the States have the primary responsibility to develop, the EPA maintains that the authority to compel federal installations to provide necessary information to the States and to conform to state standards necessary to carry out the federal policy to control and regulate air pollution has not been extended to the States. *182 Analysis must begin with § 118.[41] Although the language of this provision is notable for what it states in comparison with its predecessor,[42] it is also notable for what it does not state. It does not provide that federal installations "shall comply with all federal, state, interstate, and local requirements to the same extent as any other person." Nor does it state that federal installations "shall comply with all requirements of the applicable state implementation plan." Section 118 states only to what extent—the same as any person— federal installations must comply with applicable state requirements; it does not identify the applicable requirements. There is agreement that § 118 obligates existing federal installations to join nonfederal sources in abating *183 air pollution, that comparable federal and nonfederal sources are expected to achieve the same levels of performance in abating air pollution, and that those levels of performance are set by the States. Given agreement that § 118 makes it the duty of federal facilities to comply with state-established air quality and emission standards, the question is, as the Fifth Circuit put it in another case, "whether Congress intended that the enforcement mechanisms of federally approved state implementation plans, in this case permit systems, would be" available to the States to enforce that duty. Alabama v. Seeber, 502 F. 2d, at 1247. In the case before us the Court of Appeals concluded that federal installations were obligated to comply with state substantive requirements, as opposed to state procedural requirements, 497 F.2d, at 1177, but Kentucky rejects the distinction between procedural and substantive requirements, saying that whatever is required by a state implementation plan is a "requirement" under § 118. The heart of the argument that the requirement that all air contaminant sources secure an operating permit is a "requirement respecting control and abatement of air pollution" is that Congress necessarily implied the power to enforce from the conceded authority to develop and set emission standards. Under Kentucky's EPA-approved implementation plan, the permit requirement "is the mechanism through which [it] is able to compel the production of data concerning air contaminant sources, including the ability to prescribe the monitoring techniques to be employed, and it is the only mechanism which allows [it] to develop and review a source's compliance schedule and insure that schedule is followed."[43] When a State is without administrative means of implementing and enforcing its standards *184 against federal sources, a duty to comply with those standards is said to be utterly meaningless.[44] The difficulty with this position is threefold. First, it assumes that only the States are empowered to enforce federal installations' compliance with the standards. Second, it assumes the Congress intended to grant the States such authority over the operation of federal installations. Third, it unduly disregards the substantial change in the responsibilities of federal air contaminant sources under § 118 in comparison with 42 U.S. C. § 1857f (a) (1964 ed., Supp. V), supra, at 171. Contrary to Kentucky's contention that Congress necessarily intended to subject federal facilities to the enforcement mechanisms of state implementation plans, our study of the Clean Air Act not only discloses no clear declaration or implication of congressional intention to submit federal installations to that degree of state regulation and control but also reveals significant indications that in preserving a State's "primary responsibility for assuring air quality within [its] entire geographic area" the Congress did not intend to extend that responsibility by subjecting federal installations to such authority. The Clean Air Act, as amended, does not expressly provide for a permit system as part of a State's implementation plan.[45] It is true that virtually every State *185 has adopted a form of permit system much like that adopted by Kentucky, see 40 CFR pt. 52 (1975), as a means of gathering information to determine what emission standards to set and compliance schedules to approve and of assuring compliance with them. Also, only an implementation plan enabling a State to meet these— and other—objectives can be approved by the EPA.[46] Nonetheless we find in the 1970 Amendments several firm indications that the Congress intended to treat emission standards and compliance schedules—those requirements which when met work the actual reduction of air pollutant discharge—differently from administrative and enforcement *186 methods and devices—those provisions by which the States were to establish and enforce emission standards, compliance schedules, and the like. This is so in spite of the absence of any definition of the word "requirements" or of the phrase "requirements respecting control and abatement of air pollution."[47] *187 In § 110 (e) (1) (A), for example, the EPA is authorized to extend for two years a State's three-year deadline for attaining a national primary air quality standard if, upon timely application, it is determined that an emission source is unable to meet "the requirements of such plan which implement such primary standard because the necessary technology" is unavailable. 42 U.S. C. § 1857c-5 (e) (1) (A). Although compiling the information necessary for a permit may require familiarity with technology, it is plain that the "requirements" to which this section refers are those for which technologically adequate industrial processes might not be available. Section 110 (e) (2) (A) necessarily contemplates the same meaning of "requirements," that is, emission standards and compliance schedules, as does § 110 (f) which provides for one-year postponement of the application of "requirements" to sources the continued operation of which is "essential to national security or to the public health." 42 U.S. C. § 1857c-5 (f) (1) (D). See Train, 421 U. S., at 80-84.[48] Stronger indications that the term "requirements" as used in § 118 does not embrace every measure incorporated in a State's implementation limitations and compliance *188 schedules appear in the emergence of § 118 from the House bill and Senate amendment from which it was derived. The House bill provided that federal installations "shall comply with applicable Federal, State, interstate, and local emission standards."[49] The House Report stated that this "legislation directs Federal agencies in the executive, legislative, and judicial branches to comply with applicable Federal, State, interstate, and local emission standards."[50] The Senate amendment provided that federal agencies "shall provide leadership in carrying out the policy and purposes of this Act and shall comply with the requirements of this Act in the same manner as any person . . . ."[51] The Senate Report stated that this provision "requires that Federal facilities meet the emission standards necessary to achieve ambient air quality standards as well as those established in other sections of Title I."[52] Thus while the House bill spoke of "emission standards," the Senate amendment, like § 118 as enacted, spoke of "requirements." In accommodating the different language in the two bills and formulating what is now § 118, the Conference Committee simply combined the House and Senate provisions. If, as Kentucky argues, *189 the Conference Committee in taking the Senate language of "requirements" meant thereby to subject federal facilities to enforcement measures obviously not embraced in the language of the House bill, it is remarkable that it made no reference to its having reconciled this difference in favor of extending state regulation over federal installations. Given the interchangeable use of "emission standards" and "emission requirements" in the Senate amendment, see n. 52, supra, the predominance of the language of the Senate version in § 118 as enacted,[53] and the absence of any mention of disagreement between the two bills, it is more probable that the Conference Committee intended only that federal installations comply with emission standards and compliance schedules than that its intention was to empower a State to require federal installations to comply with every measure in its implementation plan. See Alabama v. Seeber, 502 F. 2d, at 1247. The impression that Congress intended only that federal agencies comply with emission limitations and standards is strengthened by the Conference Report, which stated in full: "The House bill and the Senate amendment declared that Federal departments and agencies should comply with applicable standards of air quality and emissions. "The conference substitute modifies the House *190 provision to require that the President rather than the Administrator be responsible for assuring compliance by Federal agencies."[54] This examination of § 118 and the central phrase "requirements respecting control or abatement of air pollution," discloses a regime of divided responsibility for the mobilization of federal installations in the effort to abate air pollution. Kentucky agrees but persists in its contention that existing federal sources have been subjected to state regulation by differing on where that division places authority to enforce compliance by existing federal facilities— " `sources with respect to which state implementation plans establish the criteria for enforcement.' "[55] For such—existing—sources, Kentucky maintains, the States are granted primary enforcement authority while " `the responsibility and authority for *191 enforcement . . . is granted to EPA in those instances (i. e., new sources and hazardous pollutants) where EPA establishes the criteria.' "[56] Perhaps we could agree if the issue were not whether there is a clear and unambiguous congressional authorization for the regulatory authority petitioner seeks, for as the Fifth Circuit has said, such a "scheme is a reasonable one." Alabama v. Seeber, supra, at 1244. But that is the issue, and the implications Kentucky draws from its evaluation of the manner in which the Congress divided responsibility for regulation of new sources and of hazardous air pollutants do not persuade us. In drawing on the manner in which the Clean Air Act has divided the authority to regulate new sources of air pollutants[57] and the emission of hazardous air pollutants[58] in comparison with existing air pollutant sources, Kentucky makes two separate though related arguments. The first is that when Congress wanted to exempt federal facilities from compliance with a state requirement, it did so by express exclusionary language. Thus § 111 (c) (1) authorizes the Administrator to delegate to a State "any authority he has under this Act to implement and enforce" new-source standards of performance—with which new sources owned or operated by the United States must comply (§ 111 (b) (4))—"except with respect to new sources owned or operated by the United States." 42 U.S. C. § 1857c-6 (c) (1). Section 114 (b) (1) of the Clean Air Act, as added, 84 Stat. 1688, is to the same *192 effect respecting inspections, monitoring, and entry of an emission source. 42 U.S. C. § 1857c-9 (b) (1). Similarly, § 112 (d) (1) authorizes the Administrator, upon finding that a State's plan to enforce emission standards for hazardous pollutants is adequate to the task, to delegate to that State "any authority he has under this Act to implement and enforce such standards (except with respect to stationary sources owned or operated by the United States)." 42 U.S. C. § 1857c-7 (d) (1). The argument that these specific exemptions of federal facilities from state enforcement and implementation methods are necessary only because § 118 has, as a general matter, subjected federal installations to all state requirements fails on several counts. First, as we have demonstrated, by itself § 118 does not have the effect petitioner claims. Second, the relevant portions of §§ 111, 112, and 114 assume that the Administrator possesses the authority to enforce and implement the respective requirements against sources owned or operated by the United States. See §§ 111 (c) (2), 112 (d) (2), and 114 (b) (2). Third, just as in providing for Presidential exemptions in § 118 Congress separated the requirements of §§ 111 and 112 from other requirements, Congress naturally treated the submission of federal installations to state regulation under §§ 111, 112, and 114 separately from general provisions for meeting ambient air quality standards under § 110 implementation plans devised by the States and approved by the EPA. A State must promulgate an implementation plan. § 110 (a). The delegation provisions of §§ 111, 112, and 114, on the other hand, are permissive, providing that "[e]ach State may develop and submit to the Administrator a procedure" to carry out the section. (Emphasis added.) Kentucky's second argument is that the manner in which Congress differentiated treatment of new sources *193 and existing sources in §§ 111 and 114 clearly implies that existing federal sources were to be subject to the enforcement provisions of a State's implementation plan. The implication is said to arise from the different nature of the control required for the two types of installations. The difference is explained as follows: For existing sources the first step for a State is to determine the general quality of air in the relevant air quality region and then to compute the amounts of pollution attributable to each source. Next, appropriate emission standards necessary to meet the national ambient air quality standards must be assigned to the various sources, followed by determining the compliance schedule by which each installation will achieve the assigned standards by the attainment date prescribed in the Act. To carry out this process of gathering information and coordinating control throughout the State, it is said to be necessary for the States to have ready administrative authority over all sources, federal and nonfederal. This administrative authority, concededly a major part of an implementation plan as to nonfederal sources, must therefore have been intended to extend to federal sources as well. In contrast, controlling "new sources" is described as a straightforward task. This is because "standards of performance" for such sources, which are established in light of technologically feasible emission controls and not in relation to ambient air quality standards[59] are set by the EPA for various categories of sources and are uniform throughout the Nation. A comprehensive enforcement *194 mechanism to develop and coordinate application of these standards is unnecessary, especially because all new sources must be in compliance before operation begins, § 111 (e). The Congress is said, therefore, to have exempted new federal installations from state enforcement of federally promulgated standards of performance because it was unnecessary to submit those installations to the same kind of coordinated control to which existing sources had been submitted. The Act itself belies this contention. It recognizes that a "new source," even one in full compliance with applicable standards of performance, may hinder or prevent attainment or maintenance of air quality standards within the air quality region in which it is located, and requires a state implementation plan to include procedures for averting such problems. See §§ 110 (a) (2) (D), (a) (4). The arguments respecting the federal new-source exception in § 114 also fail to bear the weight they must carry if Kentucky is to prevail. Section 114 provides for the establishment of various means by which to collect information "[f]or the purpose (i) of developing or assisting in the development of any implementation plan under section 110 or 111 (d), any standard of performance under section 111, or any emission standard under section 112, [or] (ii) of determining whether any person is in violation of any such standard or any requirement of such a plan . . . ." 84 Stat. 1687, as added, 42 U.S. C. § 1857c-9 (a). Unlike §§ 111 and 112, § 114 is doubly permissive. First, although the Administrator "shall" publish § 111 new-source standards of performance and § 112 hazardous air-pollutant-emission standards, under § 114 (a) the Administrator "may," but need not, require operators *195 of emission sources to keep records, to make reports, to install, use, and maintain monitoring equipment, and to sample its emissions. Second, as with §§ 111 and 112, the States "may" develop procedures to carry out the section. That Congress provided for this slight possibility that existing federal sources would be obliged to conform to state procedures for carrying out § 114 in addition to emission standards and compliance schedules scarcely implies, as petitioner suggests, that Congress intended existing federal sources to comply with all state regulatory measures, not only emission standards and compliance schedules. Rather than exempting new federal sources from an obligation to which they would otherwise have been subject, Congress may as well have been extending the obligation to conform to state § 114 regulatory procedures to existing—but not to new—federal sources which would not otherwise have been thought subject to such regulation. Finally, we reject the argument that § 304 of the Clean Air Act, reveals congressional intention to grant the States authority to subject existing federal sources to the enforcement mechanisms of their enforcement plan. The section provides in part: "(a) Except as provided in subsection (b), any person may commence a civil action on his own behalf— "(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this Act or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . . ." 42 U.S. C. § 1857h-2. *196 Section 302 (e) includes a "State" in the definition of a "person," 42 U.S. C. § 1857h (e), and § 304 (f) provides: "For purposes of this section, the term `emission standard or limitation under this Act' means—(1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard. . . which is in effect under this Act (including a requirement applicable by reason of section 118) or under an applicable implementation plan." 42 U.S. C. § 1857h-2 (f). Although it is argued that § 304 was not intended to permit a State to sue violators under the Act, we agree with the EPA that § 304 is the only means provided by the Act for the States to remedy noncompliance by federal facilities with § 118. That § 304 was so intended is plain from both the language of § 304 (f) and the legislative origins of § 304. The Senate version of § 118 provided that a State "in which any Federal property, facility, or activity is located may seek to enforce the provisions of this section pursuant to section 304 of this Act."[60] When the Conference Committee eliminated this subsection from the Senate amendment, it retained the definition of "person," which included a "State" in § 302 (e), and added § 304 (f) with the parenthetical phrase "including a requirement applicable by reason of section 118." This made clear that § 118 was to be enforced through § 304, and § 304 is the only provision in the Act for state enforcement of the duties of a federal installation under § 118. In short, § 118 establishes the duty of federal installations to comply with state "requirements," and § 304 provides the means of enforcing that duty in federal court. In light of this *197 close relationship between the two sections, we find it significant that § 304 (f) extends the enforcement power only to "a schedule or timetable of compliance, emission limitation, standard of performance or emission standard," and not to all state implementation measures. Thus circumscribed, the scope of the § 304 power to enforce § 118 strongly suggests that § 118 duties themselves are similarly limited, for it seems most unlikely that in providing that a State might bring suit in district court to enforce the duties of federal installations under § 118, the Congress would not make all of those duties enforceable in district court. Yet this is exactly what Kentucky argues, saying: "There can be no explanation for the existence of Section 118 if it imposes no obligations other than those imposed under Section 304."[61] The argument is defective on another count. Even if, standing alone, § 304 could be read to require federal facilities to comply with the matters within § 304 (f), the assumption that the two sections independently impose duties on federal installations conflicts with the legislative history. Section 304 (a) was first extended to apply to federal sources of pollution in Conference, at the same point at which the express provision for enforcement authority over federal installations was removed from § 118.[62] Given this relationship between *198 the two measures, we cannot credit the argument that § 118 was intended to impose on federal installations any broader duty to comply with state implementation measures than specified in § 304. The absence in § 304 of any express provision for enforcing state permit requirements in federal court is therefore too substantial an indication that congressional understanding was that the "requirements" federal facilities are obliged to meet under § 118 did not include permit requirements to be overcome by assertions to the contrary. V In view of the undoubted congressional awareness of the requirement of clear language to bind the United States,[63] our conclusion is that with respect to subjecting federal installations to state permit requirements, the Clean Air Act does not satisfy the traditional requirement that such intention be evinced with satisfactory clarity. Should this nevertheless be the desire of Congress, it need only amend the Act to make its intention manifest.[64] Absent such amendment, we can only conclude that to the extent it considered the matter in enacting § 118 Congress has fashioned a compromise which, while requiring federal installations to abate their pollution to the same extent as any other air contaminant source and under standards which the States have prescribed, *199 stopped short of subjecting federal installations to state control. This conclusion does not mean that we are persuaded that the States are as able to administer their implementation plans as they would be if they possessed the degree of authority over federal installations urged here, although, as Kentucky acknowledged at oral argument, the EPA, acting under the impetus of Executive Order No. 11752, 3 CFR 380 (1974), has promulgated guidelines for compliance by federal agencies with stationary source air pollution standards, 40 Fed. Reg. 20664 (1975), which will lead to federal agencies' entering "consent agreements which are exactly identical in every respect to what a compliance schedule would have been."[65] The judgment of the Court of Appeals is Affirmed.

The question for decision in this case is whether a State whose federally approved implementation plan forbids an air contaminant source to operate without a state permit may require existing federally owned or operated installations to secure such a permit. The case presents an issue of statutory construction requiring examination of the Clean Air Act, as amended, 42 U.S. C. 18 et seq., and its legislative history in light of established constitutional principles governing the determination of whether and the extent to which federal installations have been subjected to state regulation.[1] The specific question is whether obtaining a permit to operate *16 is among those " respecting control and abatement of air pollution" with which existing federal facilities must comply under 118 of the Clean Air Act.[2] I Last Term in we reviewed the development of federal air pollution legislation through the Clean Air Amendments of 170 (Amendments)[3] and observed that although the Amendments "sharply increased federal authority and responsibility in the continuing effort to combat air pollution," they "explicitly preserved the principle" that " `[e]ach State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State' " quoting from 107 (a) of the Clean Air Act, as added, 42 U.S. C. 18c-2 (a). Consistently with this principle, the Amendments required that within nine months after the Environmental Protection Agency (EPA) promulgated the primary and secondary ambient air quality standards required by 10 (a) of the Clean Air Act, as added, 42 U.S. C. 18c-4 (a),[4] for certain air pollutants,[5] each State submit to the EPA a plan by which it would implement and maintain those standards within its territory. 110 (a) (1) of the Clean Air Act, as added, 42 U.S. C. 18c-5 (a) (1). See 40 CFR pt. 51 The EPA was required to approve each State's *170 implementation plan as long as it was adopted after public hearings and satisfied the conditions specified in 110 (a) (2). For existing sources[6] the State must propose "emission limitations, schedules, and timetables for compliance with such limitations" necessary to meet the air quality standards. 110 (a) (2) (B). As we observed in given the EPA's nationwide air quality standards, the State is to adopt a plan setting "the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards. "[The EPA] is relegated by the Act to a secondary role in the process of determining and enforcing the specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met. The Act gives [the EPA] no authority to question the wisdom of a State's choices of emission limitations if they are part of a plan which satisfies the standards of 110 (a) (2). Thus, so long as the ultimate effect of a State's choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation." (Footnote omitted.) Along with increasing federal authority and "taking a stick to the States"[7] by requiring them to implement the *171 federal standards promulgated pursuant to that authority, Congress also intended the Amendments "to strengthen the strictures against air pollution by federal facilities."[8] Before 170, 111 (a) of the Clean Air Act simply declared "the intent of Congress" to be that federal installations "shall, to the extent practicable and consistent with the interests of the United States and within any available appropriations, cooperate with" federal and state air pollution control authorities "in preventing and controlling the pollution of the air in any area insofar as the discharge of any matter from or by such" federal installation "may cause or contribute to pollution of the air in such area."[] Experience with performance by federal sources of air pollution under this voluntary scheme[10] led the Congress to conclude that admonishing federal agencies to prevent and control air pollution was inadequate, because "[i]nstead of exercising leadership in controlling or eliminating air pollution"[11] "Federal agencies have been notoriously laggard in abating pollution."[12] Both to provide the leadership to private industry and to abate violations of air pollution standards by federal facilities, in 170 Congress added 118 to the Clean Air Act. The first sentence of the section provides: "Each department, agency, and instrumentality of the executive, legislative, and judicial branches of *172 the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, shall comply with Federal, State, interstate, and local respecting control and abatement of air pollution to the same extent that any person is subject to such" 42 U.S. C. 18f. The remainder of 118 authorizes the President, upon a determination that it is "in the paramount interest of the United States to do so" and subject to several limitations, to exempt certain federal emission sources from "compliance with such a requirement."[13] After enactment of 118 there is no longer any question whether federal installations must comply with established air pollution control and abatement measures. The question has become how their compliance is to be enforced. II In February 172, Kentucky submitted its implementation plan to the EPA. On May 31, 172, the plan was approved by the Administrator in relevant part.[14] Chapter 7 of the plan included Kentucky Air Pollution Control Commission (Commission) Regulation No. AP-1, 5 (1), which provides: "No person shall construct, modify, use, operate, or maintain an air contaminant source or maintain *173 or allow physical conditions to exist on property owned by or subject to the control of such person, resulting in the presence of air contaminants in the atmosphere, unless a permit therefor has been issued by the Commission and is currently in effect."[15] An applicant for a permit must complete a form supplied by the Commission and, "when specifically requested by the Commission, include an analysis of the characteristics, properties, and volume of the air contaminants based upon source or stack samples of the air contaminants taken under normal operating conditions."[16] The process of review of the application may include hearings.[17] Permits are denied if the applicant does not supply the "information required or deemed necessary by the Commission to enable it to act upon the permit application,"[18] or when "the air contaminant source will prevent or interfere with the attainment or maintenance of state or federal air quality standards."[1] When granted, a permit may be "subject to such terms and conditions set forth and embodied in the permit as the Commission shall deem necessary to insure compliance with its standards."[20] Once issued, a permit may be revoked or modified for failure to comply with the terms and conditions of the permit, with emission standards applicable to the air contaminant source, or with the *174 ambient air standards for the area in which the air contaminant source is located. Reg. AP-1, 5 (5), CA App. 122. Soon after the implementation plan was approved, a Commission official wrote to numerous officials responsible for various Kentucky facilities of the United States Army,[21] of the Tennessee Valley Authority (TVA),[22] and of the Atomic Energy Commission (AEC)[23] requesting that they apply for and obtain permits as requested by the EPA-approved plan. The responses to these requests were to the effect that federally owned or operated facilities located in Kentucky were not required to secure an operating permit. Each response, however, either offered to or did supply the information and data requested on the standard permit application form.[24] The Commission continued to press the federal officials *175 to apply for operating permits. In October 172, the Regional Administrator of the EPA sent a letter to the operators of all federal facilities in the region, including those to which the Kentucky officials had addressed their requests, and to the Commission. Setting forth EPA policy and the agency's interpretation of 118 of the Clean Air Act,[25] the Regional Administrator stated: "It is clear that Section 118 requires Federal facilities to meet state air quality standards and emission limitations and to comply with deadlines established in the approved state air implementation plans." App. To aid the States in accomplishing these objections, wrote the Administrator, each federal facility should develop a compliance schedule and should provide "reasonable and specific" data requested by the State. On the question whether federal facilities must apply for state permits, the letter reiterated the EPA position that although "Federal agencies are [not] required to apply for state operating permits [o]ur aim is to encourage Federal agencies to provide the states with all the information required to assess compliance of pollution sources with standards, emission and discharge limitations and the needs for additional abatement measures."[26]Ibid. *176 Kentucky then brought this suit in the United States District for the Western District of Kentucky.[27] The complaint sought declaratory and injunctive relief requiring the Army, TVA, and AEC facilities to secure operating permits. Kentucky also named several EPA officials as defendants and asked the District to order them to commence appropriate actions under 113 of the Clean Air Act, directing the Army, the TVA, and the AEC facilities to comply with the provisions of Regulation AP-1, 5 (1).[28] On cross-motions for summary *177 judgment, the District ordered the complaint dismissed. Kentucky ex rel. The of Appeals affirmed, Like the District n. 3, the of Appeals found it unnecessary to determine whether the federal installations were in compliance with Kentucky's emission limitations or had adopted adequate compliance schedules, for it was Kentucky's position that notwithstanding possible compliance "the Kentucky Plan is so formulated that the State cannot meet its primary responsibility under the Clean Air Act without the use of permits." -1175. After examining 118 and its purposes in relation to other provisions of the Clean Air Act, the court concluded: "We do not believe the congressional scheme for accomplishment of these purposes included subjection of federal agencies to state or local permit Congress did commit the United States to compliance with air quality and emission standards, and it is undisputed in this record that the federal facilities in Kentucky have cooperated with the Commission toward this end." We granted Kentucky's petition for certiorari, to resolve a conflict in the s of Appeals,[2] and now affirm. *178 III It is a seminal principle of our law "that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them." From this principle is deduced the corollary that "[i]t is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence." The effect of this corollary, which derives from the Supremacy Clause[30] and is exemplified in the Plenary Powers Clause[31] giving Congress exclusive legislative authority over federal enclaves purchased with the consent of a State, is "that the activities of the Federal Government are free from regulation by any state."[32] As Mr. Justice Holmes put it in : "[T]he immunity of the instruments of the United States from state control in the performance of their duties extends to a requirement that they *17 desist from performance until they satisfy a state officer upon examination that they are competent for a necessary part of them" Taken with the "old and well-known rule that statutes which in general terms divest pre-existing rights or privileges will not be applied to the sovereign"[33] "without a clear expression or implication to that effect,"[34] this immunity means that where "Congress does not affirmatively declare its instrumentalities or property subject to regulation," "the federal function must be left free" of regulation.[35] Particular deference should be accorded that "old and well-known rule" where, as here, the rights and privileges of the Federal Government at stake not only find their origin in the Constitution, but are to be divested in favor of and subjected to regulation by a subordinate sovereign. Because of the fundamental importance of the principles shielding federal installations and activities from regulation by the States, an authorization of state regulation is found only when and to the extent there is "a clear congressional mandate,"[36] "specific congressional action"[37] that makes this authorization of state regulation "clear and unambiguous."[38] Neither the Supremacy Clause nor the Plenary Powers Clause bars all state regulation which may touch the activities of the Federal Government. See Penn Dairies ; and cases cited. "Here, however, the State places a prohibition on the Federal Government."[3] The permit requirement is not intended simply to regulate the amount of pollutants which the federal installations may discharge. Without a permit, an air contaminant source is forbidden to operate even if it is in compliance with every other state measure respecting air pollution control and abatement. It is clear from the record that prohibiting operation of the air contaminant sources for which the State seeks to require permits, App. 14-17, is tantamount to prohibiting operation of the federal installations on which they are located. at 8-3. Kentucky, like the of Appeals for the Fifth Circuit in finds in 118 a sufficient congressional authorization to the States, not only to establish the amount of pollutants a federal installation may discharge, but also to condition operation of federal installations on securing a state permit. We disagree because we are not convinced that Congress intended to subject federal agencies to state permits. We are unable to find in 118, on its face or in relation to the Clean Air Act as a whole, or to derive from the legislative history of the Amendments any clear and unambiguous declaration by the Congress that federal installations may not perform their activities unless a state official issues a permit. Nor can congressional intention to submit federal activity to state control be implied from the claim that under Kentucky's EPA-approved implementation plan it is only through the permit system that compliance schedules and other *181 may be administratively enforced against federal installations. IV The parties rightly agree that 118 obligates federal installations to conform to state air pollution standards or limitations and compliance schedules.[40] With the enactment of the Amendments in 170 came the end of the era in which it was enough for federal facilities to volunteer their cooperation with federal and state officials. In Kentucky's view that era has been replaced by one in which federal installations are not only required to limit their air pollutant emissions to the same extent as their nonfederal neighbors, but also, subject only to case-by-case Presidential exemption, to submit themselves completely to the state regime by which the necessary information to promulgate emission limitations and compliance schedules is gathered and by which collection of that information and enforcement of the emission limitations and compliance schedules are accomplished. Respondents (hereafter sometimes EPA) take the position that the Congress has not gone so far. While federal and nonfederal installations are governed by the same emission standards, standards which the States have the primary responsibility to develop, the EPA maintains that the authority to compel federal installations to provide necessary information to the States and to conform to state standards necessary to carry out the federal policy to control and regulate air pollution has not been extended to the States. *182 Analysis must begin with 118.[41] Although the language of this provision is notable for what it states in comparison with its predecessor,[42] it is also notable for what it does not state. It does not provide that federal installations "shall comply with all federal, state, interstate, and local to the same extent as any other person." Nor does it state that federal installations "shall comply with all of the applicable state implementation plan." Section 118 states only to what extent—the same as any person— federal installations must comply with applicable state ; it does not identify the applicable There is agreement that 118 obligates existing federal installations to join nonfederal sources in abating *183 air pollution, that comparable federal and nonfederal sources are expected to achieve the same levels of performance in abating air pollution, and that those levels of performance are set by the States. Given agreement that 118 makes it the duty of federal facilities to comply with state-established air quality and emission standards, the question is, as the Fifth Circuit put it in another case, "whether Congress intended that the enforcement mechanisms of federally approved state implementation plans, in this case permit systems, would be" available to the States to enforce that duty. 502 F. 2d, at 1247. In the case before us the of Appeals concluded that federal installations were obligated to comply with state substantive as opposed to state procedural but Kentucky rejects the distinction between procedural and substantive saying that whatever is required by a state implementation plan is a "requirement" under 118. The heart of the argument that the requirement that all air contaminant sources secure an operating permit is a "requirement respecting control and abatement of air pollution" is that Congress necessarily implied the power to enforce from the conceded authority to develop and set emission standards. Under Kentucky's EPA-approved implementation plan, the permit requirement "is the mechanism through which [it] is able to compel the production of data concerning air contaminant sources, including the ability to prescribe the monitoring techniques to be employed, and it is the only mechanism which allows [it] to develop and review a source's compliance schedule and insure that schedule is followed."[43] When a State is without administrative means of implementing and enforcing its standards *184 against federal sources, a duty to comply with those standards is said to be utterly meaningless.[44] The difficulty with this position is threefold. First, it assumes that only the States are empowered to enforce federal installations' compliance with the standards. Second, it assumes the Congress intended to grant the States such authority over the operation of federal installations. Third, it unduly disregards the substantial change in the responsibilities of federal air contaminant sources under 118 in comparison with 42 U.S. C. 18f (a) (164 ed., Supp. V), Contrary to Kentucky's contention that Congress necessarily intended to subject federal facilities to the enforcement mechanisms of state implementation plans, our study of the Clean Air Act not only discloses no clear declaration or implication of congressional intention to submit federal installations to that degree of state regulation and control but also reveals significant indications that in preserving a State's "primary responsibility for assuring air quality within [its] entire geographic area" the Congress did not intend to extend that responsibility by subjecting federal installations to such authority. The Clean Air Act, as amended, does not expressly provide for a permit system as part of a State's implementation plan.[45] It is true that virtually every State *185 has adopted a form of permit system much like that adopted by Kentucky, see 40 CFR pt. as a means of gathering information to determine what emission standards to set and compliance schedules to approve and of assuring compliance with them. Also, only an implementation plan enabling a State to meet these— and other—objectives can be approved by the EPA.[46] Nonetheless we find in the 170 Amendments several firm indications that the Congress intended to treat emission standards and compliance schedules—those which when met work the actual reduction of air pollutant discharge—differently from administrative and enforcement *186 methods and devices—those provisions by which the States were to establish and enforce emission standards, compliance schedules, and the like. This is so in spite of the absence of any definition of the word "" or of the phrase " respecting control and abatement of air pollution."[47] *187 In 110 (e) (1) (A), for example, the EPA is authorized to extend for two years a State's three-year deadline for attaining a national primary air quality standard if, upon timely application, it is determined that an emission source is unable to meet "the of such plan which implement such primary standard because the necessary technology" is unavailable. 42 U.S. C. 18c-5 (e) (1) (A). Although compiling the information necessary for a permit may require familiarity with technology, it is plain that the "" to which this section refers are those for which technologically adequate industrial processes might not be available. Section 110 (e) (2) (A) necessarily contemplates the same meaning of "," that is, emission standards and compliance schedules, as does 110 (f) which provides for one-year postponement of the application of "" to sources the continued operation of which is "essential to national security or to the public health." 42 U.S. C. 18c-5 (f) (1) (D). See -84.[48] Stronger indications that the term "" as used in 118 does not embrace every measure incorporated in a State's implementation limitations and compliance *188 schedules appear in the emergence of 118 from the House bill and Senate amendment from which it was derived. The House bill provided that federal installations "shall comply with applicable Federal, State, interstate, and local emission standards."[4] The House Report stated that this "legislation directs Federal agencies in the executive, legislative, and judicial branches to comply with applicable Federal, State, interstate, and local emission standards."[50] The Senate amendment provided that federal agencies "shall provide leadership in carrying out the policy and purposes of this Act and shall comply with the of this Act in the same manner as any person"[51] The Senate Report stated that this provision "requires that Federal facilities meet the emission standards necessary to achieve ambient air quality standards as well as those established in other sections of Title I."[] Thus while the House bill spoke of "emission standards," the Senate amendment, like 118 as enacted, spoke of "." In accommodating the different language in the two bills and formulating what is now 118, the Conference Committee simply combined the House and Senate provisions. If, as Kentucky argues, *18 the Conference Committee in taking the Senate language of "" meant thereby to subject federal facilities to enforcement measures obviously not embraced in the language of the House bill, it is remarkable that it made no reference to its having reconciled this difference in favor of extending state regulation over federal installations. Given the interchangeable use of "emission standards" and "emission " in the Senate amendment, see n. the predominance of the language of the Senate version in 118 as enacted,[53] and the absence of any mention of disagreement between the two bills, it is more probable that the Conference Committee intended only that federal installations comply with emission standards and compliance schedules than that its intention was to empower a State to require federal installations to comply with every measure in its implementation plan. See 502 F. 2d, at 1247. The impression that Congress intended only that federal agencies comply with emission limitations and standards is strengthened by the Conference Report, which stated in full: "The House bill and the Senate amendment declared that Federal departments and agencies should comply with applicable standards of air quality and emissions. "The conference substitute modifies the House *10 provision to require that the President rather than the Administrator be responsible for assuring compliance by Federal agencies."[54] This examination of 118 and the central phrase " respecting control or abatement of air pollution," discloses a regime of divided responsibility for the mobilization of federal installations in the effort to abate air pollution. Kentucky agrees but persists in its contention that existing federal sources have been subjected to state regulation by differing on where that division places authority to enforce compliance by existing federal facilities— " `sources with respect to which state implementation plans establish the criteria for enforcement.' "[55] For such—existing—sources, Kentucky maintains, the States are granted primary enforcement authority while " `the responsibility and authority for *11 enforcement is granted to EPA in those instances (i. e., new sources and hazardous pollutants) where EPA establishes the criteria.' "[56] Perhaps we could agree if the issue were not whether there is a clear and unambiguous congressional authorization for the regulatory authority petitioner seeks, for as the Fifth Circuit has said, such a "scheme is a reasonable one." But that is the issue, and the implications Kentucky draws from its evaluation of the manner in which the Congress divided responsibility for regulation of new sources and of hazardous air pollutants do not persuade us. In drawing on the manner in which the Clean Air Act has divided the authority to regulate new sources of air pollutants[] and the emission of hazardous air pollutants[58] in comparison with existing air pollutant sources, Kentucky makes two separate though related arguments. The first is that when Congress wanted to exempt federal facilities from compliance with a state requirement, it did so by express exclusionary language. Thus 111 (c) (1) authorizes the Administrator to delegate to a State "any authority he has under this Act to implement and enforce" new-source standards of performance—with which new sources owned or operated by the United States must comply ( 111 (b) (4))—"except with respect to new sources owned or operated by the United States." 42 U.S. C. 18c-6 (c) (1). Section 114 (b) (1) of the Clean Air Act, as added, is to the same *12 effect respecting inspections, monitoring, and entry of an emission source. 42 U.S. C. 18c- (b) (1). Similarly, 112 (d) (1) authorizes the Administrator, upon finding that a State's plan to enforce emission standards for hazardous pollutants is adequate to the task, to delegate to that State "any authority he has under this Act to implement and enforce such standards (except with respect to stationary sources owned or operated by the United States)." 42 U.S. C. 18c-7 (d) (1). The argument that these specific exemptions of federal facilities from state enforcement and implementation methods are necessary only because 118 has, as a general matter, subjected federal installations to all state fails on several counts. First, as we have demonstrated, by itself 118 does not have the effect petitioner claims. Second, the relevant portions of 111, 112, and 114 assume that the Administrator possesses the authority to enforce and implement the respective against sources owned or operated by the United States. See 111 (c) (2), 112 (d) (2), and 114 (b) (2). Third, just as in providing for Presidential exemptions in 118 Congress separated the of 111 and 112 from other Congress naturally treated the submission of federal installations to state regulation under 111, 112, and 114 separately from general provisions for meeting ambient air quality standards under 110 implementation plans devised by the States and approved by the EPA. A State must promulgate an implementation plan. 110 (a). The delegation provisions of 111, 112, and 114, on the other hand, are permissive, providing that "[e]ach State may develop and submit to the Administrator a procedure" to carry out the section. (Emphasis added.) Kentucky's second argument is that the manner in which Congress differentiated treatment of new sources *13 and existing sources in 111 and 114 clearly implies that existing federal sources were to be subject to the enforcement provisions of a State's implementation plan. The implication is said to arise from the different nature of the control required for the two types of installations. The difference is explained as follows: For existing sources the first step for a State is to determine the general quality of air in the relevant air quality region and then to compute the amounts of pollution attributable to each source. Next, appropriate emission standards necessary to meet the national ambient air quality standards must be assigned to the various sources, followed by determining the compliance schedule by which each installation will achieve the assigned standards by the attainment date prescribed in the Act. To carry out this process of gathering information and coordinating control throughout the State, it is said to be necessary for the States to have ready administrative authority over all sources, federal and nonfederal. This administrative authority, concededly a major part of an implementation plan as to nonfederal sources, must therefore have been intended to extend to federal sources as well. In contrast, controlling "new sources" is described as a straightforward task. This is because "standards of performance" for such sources, which are established in light of technologically feasible emission controls and not in relation to ambient air quality standards[5] are set by the EPA for various categories of sources and are uniform throughout the Nation. A comprehensive enforcement *14 mechanism to develop and coordinate application of these standards is unnecessary, especially because all new sources must be in compliance before operation begins, 111 (e). The Congress is said, therefore, to have exempted new federal installations from state enforcement of federally promulgated standards of performance because it was unnecessary to submit those installations to the same kind of coordinated control to which existing sources had been submitted. The Act itself belies this contention. It recognizes that a "new source," even one in full compliance with applicable standards of performance, may hinder or prevent attainment or maintenance of air quality standards within the air quality region in which it is located, and requires a state implementation plan to include procedures for averting such problems. See 110 (a) (2) (D), (a) (4). The arguments respecting the federal new-source exception in 114 also fail to bear the weight they must carry if Kentucky is to prevail. Section 114 provides for the establishment of various means by which to collect information "[f]or the purpose (i) of developing or assisting in the development of any implementation plan under section 110 or 111 (d), any standard of performance under section 111, or any emission standard under section 112, [or] (ii) of determining whether any person is in violation of any such standard or any requirement of such a plan" as added, 42 U.S. C. 18c- (a). Unlike 111 and 112, 114 is doubly permissive. First, although the Administrator "shall" publish 111 new-source standards of performance and 112 hazardous air-pollutant-emission standards, under 114 (a) the Administrator "may," but need not, require operators *15 of emission sources to keep records, to make reports, to install, use, and maintain monitoring equipment, and to sample its emissions. Second, as with 111 and 112, the States "may" develop procedures to carry out the section. That Congress provided for this slight possibility that existing federal sources would be obliged to conform to state procedures for carrying out 114 in addition to emission standards and compliance schedules scarcely implies, as petitioner suggests, that Congress intended existing federal sources to comply with all state regulatory measures, not only emission standards and compliance schedules. Rather than exempting new federal sources from an obligation to which they would otherwise have been subject, Congress may as well have been extending the obligation to conform to state 114 regulatory procedures to existing—but not to new—federal sources which would not otherwise have been thought subject to such regulation. Finally, we reject the argument that 304 of the Clean Air Act, reveals congressional intention to grant the States authority to subject existing federal sources to the enforcement mechanisms of their enforcement plan. The section provides in part: "(a) Except as provided in subsection (b), any person may commence a civil action on his own behalf— "(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this Act or (B) an order issued by the Administrator or a State with respect to such a standard or limitation" 42 U.S. C. 18h-2. *16 Section 302 (e) includes a "State" in the definition of a "person," 42 U.S. C. 18h (e), and 304 (f) provides: "For purposes of this section, the term `emission standard or limitation under this Act' means—(1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard. which is in effect under this Act (including a requirement applicable by reason of section 118) or under an applicable implementation plan." 42 U.S. C. 18h-2 (f). Although it is argued that 304 was not intended to permit a State to sue violators under the Act, we agree with the EPA that 304 is the only means provided by the Act for the States to remedy noncompliance by federal facilities with 118. That 304 was so intended is plain from both the language of 304 (f) and the legislative origins of 304. The Senate version of 118 provided that a State "in which any Federal property, facility, or activity is located may seek to enforce the provisions of this section pursuant to section 304 of this Act."[60] When the Conference Committee eliminated this subsection from the Senate amendment, it retained the definition of "person," which included a "State" in 302 (e), and added 304 (f) with the parenthetical phrase "including a requirement applicable by reason of section 118." This made clear that 118 was to be enforced through 304, and 304 is the only provision in the Act for state enforcement of the duties of a federal installation under 118. In short, 118 establishes the duty of federal installations to comply with state "," and 304 provides the means of enforcing that duty in federal court. In light of this *17 close relationship between the two sections, we find it significant that 304 (f) extends the enforcement power only to "a schedule or timetable of compliance, emission limitation, standard of performance or emission standard," and not to all state implementation measures. Thus circumscribed, the scope of the 304 power to enforce 118 strongly suggests that 118 duties themselves are similarly limited, for it seems most unlikely that in providing that a State might bring suit in district court to enforce the duties of federal installations under 118, the Congress would not make all of those duties enforceable in district court. Yet this is exactly what Kentucky argues, saying: "There can be no explanation for the existence of Section 118 if it imposes no obligations other than those imposed under Section 304."[61] The argument is defective on another count. Even if, standing alone, 304 could be read to require federal facilities to comply with the matters within 304 (f), the assumption that the two sections independently impose duties on federal installations conflicts with the legislative history. Section 304 (a) was first extended to apply to federal sources of pollution in Conference, at the same point at which the express provision for enforcement authority over federal installations was removed from 118.[62] Given this relationship between *18 the two measures, we cannot credit the argument that 118 was intended to impose on federal installations any broader duty to comply with state implementation measures than specified in 304. The absence in 304 of any express provision for enforcing state permit in federal court is therefore too substantial an indication that congressional understanding was that the "" federal facilities are obliged to meet under 118 did not include permit to be overcome by assertions to the contrary. V In view of the undoubted congressional awareness of the requirement of clear language to bind the United States,[63] our conclusion is that with respect to subjecting federal installations to state permit the Clean Air Act does not satisfy the traditional requirement that such intention be evinced with satisfactory clarity. Should this nevertheless be the desire of Congress, it need only amend the Act to make its intention manifest.[64] Absent such amendment, we can only conclude that to the extent it considered the matter in enacting 118 Congress has fashioned a compromise which, while requiring federal installations to abate their pollution to the same extent as any other air contaminant source and under standards which the States have prescribed, *1 stopped short of subjecting federal installations to state control. This conclusion does not mean that we are persuaded that the States are as able to administer their implementation plans as they would be if they possessed the degree of authority over federal installations urged here, although, as Kentucky acknowledged at oral argument, the EPA, acting under the impetus of Executive Order No. 117, 3 CFR 380 has promulgated guidelines for compliance by federal agencies with stationary source air pollution standards, which will lead to federal agencies' entering "consent agreements which are exactly identical in every respect to what a compliance schedule would have been."[65] The judgment of the of Appeals is Affirmed.

per_curiam

per_curiam

United States v. Michigan Nat. Corp.

https://www.courtlistener.com/opinion/2496261/united-states-v-michigan-nat-corp/

https://www.courtlistener.com/api/rest/v3/clusters/2496261/

1974-001

This is an appeal from an order of the District Court dismissing without prejudice the Government's suit under § 7 of the Clayton Act, 38 Stat. 731, 15 U.S. C. § 18, to enjoin a bank holding company's acquisition. Appellee Michigan National Corporation (MNC), a bank holding company that owns five Michigan banks, seeks control of four additional Michigan banks. The planned acquisition will take the following form. MNC will charter four "phantom" banks, initially having no assets or deposits, whose stock it will acquire. The four target banks will be merged with the phantom banks, thereby becoming subsidiary banks of the holding company. The form of the transaction brings it within the purview of two regulatory statutes. Section 3 of the Bank Holding Company Act of 1956, 70 Stat. 134, as amended, 80 Stat. 237, 12 U.S. C. § 1842, requires that an acquisition of a subsidiary bank by a holding company be approved by the Board of Governors of the Federal Reserve System. Section 18 (c) (2) (A) of the Federal Deposit Insurance Act, as amended by the Bank Merger Act, 80 Stat. 7, 12 U.S. C. § 1828 (c) (2) (A), requires approval of bank mergers by a designated agency, which in the case of an acquisition by a national bank is the Comptroller of the Currency. Each regulatory statute provides time limitations for antitrust suits challenging transactions that have gained administrative approval. The Bank Holding Company Act, § 11, as amended, 80 Stat. 240, 12 U.S. C. § 1849, provides that an antitrust suit arising from a holding company acquisition must be brought within 30 days of approval by the Federal Reserve Board. The Bank Merger Act, 12 U.S. C. §§ 1828 (c) (6) and (7), establishes a similar 30-day period following approval of a merger by the designated administrative body.[1] Under both statutes, *3 transactions having administrative approval cannot go forward during the period within which an antitrust suit may be brought, or during the pendency of a timely antitrust suit unless the court otherwise orders. The expiration of the period without the filing of an antitrust suit, however, allows the transacting parties to consummate arrangements without fear of challenge. MNC made applications to both the Federal Reserve Board and the Comptroller for approval of its proposed transactions. Disapproval by either body would prevent MNC from completing the entire acquisition as planned. In October 1973 the Federal Reserve Board approved the acquisitions by the holding company. Without awaiting action by the Comptroller, the Government filed complaints under the Clayton Act to enjoin the acquisition; the suit was brought within the 30-day period prescribed by § 11 of the Bank Holding Company Act. The District Court dismissed the complaints without prejudice, ruling that the Government should bring a new lawsuit if and when the Comptroller approved the merger of the target banks with the "phantoms." The Government took a direct appeal to this Court, 32 Stat. 823, 15 U.S. C. § 29. The District Court reasoned that the Government's suit was "premature," since a disapproval by the Comptroller would moot the Clayton Act claim. Whether viewed as a dismissal for lack of a "case or controversy" or as an exercise of equitable discretion, we believe the District Court's action was error. The view that the possibility of disapproval by the Comptroller deprived the District Court of an actual controversy to adjudicate, a position taken by appellees *4 below, cannot be squared with the many decisions permitting a federal court to stay proceedings in a case properly before it while awaiting the decision of another tribunal. This is the holding of Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941), which launched the abstention doctrine. Pullman held that where an order of the Texas Railroad Commission was challenged in a District Court as violative of the Fourteenth Amendment and as outside the Commission's authority under state law, the federal court should stay proceedings pending a resolution by the Texas courts of the state law question of the Commission's authority. In succeeding cases that have applied the Pullman doctrine, the common practice has been for the district court to retain jurisdiction but to stay proceedings while awaiting a decision in the state courts. See, e. g., Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168 (1942); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101 (1944); Government & Civic Employees Organizing Committee v. Windsor, 353 U.S. 364 (1957); Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959); England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964); Lake Carriers' Assn. v. MacMullan, 406 U.S. 498 (1972). That a favorable decision in the state court might moot the plaintiff's constitutional claim brought to the federal court was never thought to create any jurisdictional impediment. For jurisdictional purposes, it suffices that there is a "real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 241 (1937). The same procedure has generally been followed when the resolution of a claim cognizable in a federal court *5 must await a determination by an administrative agency having primary jurisdiction. See Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 222-224 (1966); General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 432-433 (1940); Mitchell Coal Co. v. Pennsylvania R. Co., 230 U.S. 247 (1913). Dismissal rather than a stay has been approved where there is assurance that no party is prejudiced thereby.[2] See Far East Conference v. United States, 342 U.S. 570 (1952). In the present case we cannot say with assurance that the Government will not be prejudiced by a dismissal. Section 11 of the Bank Holding Company Act provides that "[a]ny action brought under the antitrust laws arising out of an acquisition, merger, or consolidation transaction" shall be commenced within the 30-day period following approval by the Board. 12 U.S. C. § 1849 (b) (emphasis added). By the time the Comptroller approves the mergers, the 30-day period following Board approval may have long since expired.[3] By waiting *6 for approval of the Comptroller before filing its lawsuit, the Government runs the risk that complete relief will be barred by the provisions of § 11. MNC disputes this, arguing that so long as the Government brings suit following the Comptroller's approval within the time prescribed by the Bank Merger Act, it will be able to challenge the merger of the target banks with the "phantoms," the only event which gives the transaction competitive significance. Congress does not appear to have considered expressly the application of the time limitations to transactions falling within both regulatory statutes.[4] While the question is not free from doubt, there is a procedure that preserves beyond doubt the Government's ability fully to pursue its Clayton Act suit and at the same time produces no hardship to the other party.[5] Where suit is brought after the first administrative decision and stayed until remaining administrative proceedings have concluded, judicial resources are conserved and both parties fully protected. The judgment of the District Court is vacated and the case remanded for the entry of further orders consistent with this opinion. So ordered.

This is an appeal from an order of the District Court dismissing without prejudice the Government's suit under 7 of the Clayton Act, 15 U.S. C. 18, to enjoin a bank holding company's acquisition. Appellee Michigan National Corporation (MNC), a bank holding company that owns five Michigan banks, seeks control of four additional Michigan banks. The planned acquisition will take the following form. MNC will charter four "phantom" banks, initially having no assets or deposits, whose stock it will acquire. The four target banks will be merged with the phantom banks, thereby becoming subsidiary banks of the holding company. The form of the transaction brings it within the purview of two regulatory statutes. Section 3 of the Bank Holding Company Act of 1956, as amended, 12 U.S. C. 1842, requires that an acquisition of a subsidiary bank by a holding company be approved by the Board of Governors of the Federal Reserve System. Section 18 (c) (2) (A) of the Federal Deposit Insurance Act, as amended by the Bank Merger Act, 12 U.S. C. 1828 (c) (2) (A), requires approval of bank mergers by a designated agency, which in the case of an acquisition by a national bank is the Comptroller of the Currency. Each regulatory statute provides time limitations for antitrust suits challenging transactions that have gained administrative approval. The Bank Holding Company Act, 11, as amended, 12 U.S. C. 1849, provides that an antitrust suit arising from a holding company acquisition must be brought within 30 days of approval by the Federal Reserve Board. The Bank Merger Act, 12 U.S. C. 1828 (c) (6) and (7), establishes a similar 30-day period following approval of a merger by the designated administrative body.[1] Under both statutes, *3 transactions having administrative approval cannot go forward during the period within which an antitrust suit may be brought, or during the pendency of a timely antitrust suit unless the court otherwise orders. The expiration of the period without the filing of an antitrust suit, however, allows the transacting parties to consummate arrangements without fear of challenge. MNC made applications to both the Federal Reserve Board and the Comptroller for approval of its proposed transactions. Disapproval by either body would prevent MNC from completing the entire acquisition as planned. In October 1973 the Federal Reserve Board approved the acquisitions by the holding company. Without awaiting action by the Comptroller, the Government filed complaints under the Clayton Act to enjoin the acquisition; the suit was brought within the 30-day period prescribed by 11 of the Bank Holding Company Act. The District Court dismissed the complaints without prejudice, ruling that the Government should bring a new lawsuit if and when the Comptroller approved the merger of the target banks with the "phantoms." The Government took a direct appeal to this Court, 15 U.S. C. 29. The District Court reasoned that the Government's suit was "premature," since a disapproval by the Comptroller would moot the Clayton Act claim. Whether viewed as a dismissal for lack of a "case or controversy" or as an exercise of equitable discretion, we believe the District Court's action was error. The view that the possibility of disapproval by the Comptroller deprived the District Court of an actual controversy to adjudicate, a position taken by appellees *4 below, cannot be squared with the many decisions permitting a federal court to stay proceedings in a case properly before it while awaiting the decision of another tribunal. This is the holding of Railroad which launched the abstention doctrine. Pullman held that where an order of the Texas Railroad Commission was challenged in a District Court as violative of the Fourteenth Amendment and as outside the Commission's authority under state law, the federal court should stay proceedings pending a resolution by the Texas courts of the state law question of the Commission's authority. In succeeding cases that have applied the Pullman doctrine, the common practice has been for the district court to retain jurisdiction but to stay proceedings while awaiting a decision in the state courts. See, e. g., ; Spector Motor Service, ; Government & Civic Employees Organizing ; Louisiana Power & Light ; ; Lake Carriers' That a favorable decision in the state court might moot the plaintiff's constitutional claim brought to the federal court was never thought to create any jurisdictional impediment. For jurisdictional purposes, it suffices that there is a "real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Insurance The same procedure has generally been followed when the resolution of a claim cognizable in a federal court *5 must await a determination by an administrative agency having primary jurisdiction. See Carnation ; General American Tank Car ; Mitchell Coal Dismissal rather than a stay has been approved where there is assurance that no party is prejudiced thereby.[2] See Far East In the present case we cannot say with assurance that the Government will not be prejudiced by a dismissal. Section 11 of the Bank Holding Company Act provides that "[a]ny action brought under the antitrust laws arising out of an acquisition, merger, or consolidation transaction" shall be commenced within the 30-day period following approval by the Board. 12 U.S. C. 1849 (b) (emphasis added). By the time the Comptroller approves the mergers, the 30-day period following Board approval may have long since expired.[3] By waiting *6 for approval of the Comptroller before filing its lawsuit, the Government runs the risk that complete relief will be barred by the provisions of 11. MNC disputes this, arguing that so long as the Government brings suit following the Comptroller's approval within the time prescribed by the Bank Merger Act, it will be able to challenge the merger of the target banks with the "phantoms," the only event which gives the transaction competitive significance. Congress does not appear to have considered expressly the application of the time limitations to transactions falling within both regulatory statutes.[4] While the question is not free from doubt, there is a procedure that preserves beyond doubt the Government's ability fully to pursue its Clayton Act suit and at the same time produces no hardship to the other party.[5] Where suit is brought after the first administrative decision and stayed until remaining administrative proceedings have concluded, judicial resources are conserved and both parties fully protected. The judgment of the District Court is vacated and the case remanded for the entry of further orders consistent with this opinion. So ordered.

Justice Scalia

majority

Holland v. Illinois

https://www.courtlistener.com/opinion/112358/holland-v-illinois/

https://www.courtlistener.com/api/rest/v3/clusters/112358/

1989-026

The questions presented by this case are (1) whether a white defendant has standing to raise a Sixth Amendment *476 challenge to the prosecutor's exercise of peremptory challenges to exclude all black potential jurors from his petit jury, and (2) whether such exclusion violates his Sixth Amendment right to trial by an impartial jury. I Petitioner Daniel Holland was charged in the Circuit Court of Cook County, Illinois, with aggravated kidnaping, rape, deviate sexual assault, armed robbery, and aggravated battery. According to his allegations, a venire of 30 potential jurors was assembled, 2 of whom were black. Petitioner's counsel objected to those of the State's peremptory challenges that struck the two black venire members from the petit jury, on the ground that petitioner had a Sixth Amendment right to "be tried by a representative cross section of the community." App. 7-8. The trial judge overruled the objection, and petitioner was subsequently convicted of all except the aggravated battery charge. The convictions were reversed by the Illinois Appellate Court, First District, 147 Ill. App. 3d 323, 497 N.E.2d 1230 (1986), on grounds that are irrelevant here, but on further appeal by the State were reinstated by the Illinois Supreme Court, which rejected petitioner's Equal Protection Clause and Sixth Amendment challenges to the exclusion of the black jurors. 121 Ill. 2d 136, 520 N.E.2d 270 (1987). We granted Holland's petition for certiorari asserting that the Sixth Amendment holding was error. 489 U.S. 1051 (1989). II The threshold question is whether petitioner, who is white, has standing to raise a Sixth Amendment challenge to the exclusion of blacks from his jury. We hold that he does. In Batson v. Kentucky, 476 U.S. 79, 96 (1986), we said that to establish a prima facie Equal Protection Clause violation in the discriminatory exclusion of petit jurors, the defendant "must show that he is a member of a cognizable racial *477 group . . . and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." (Emphasis added.) We have never suggested, however, that such a requirement of correlation between the group identification of the defendant and the group identification of excluded venire members is necessary for Sixth Amendment standing. To the contrary, our cases hold that the Sixth Amendment entitles every defendant to object to a venire that is not designed to represent a fair cross section of the community, whether or not the systematically excluded groups are groups to which he himself belongs. See, e. g., Duren v. Missouri, 439 U.S. 357 (1979); Taylor v. Louisiana, 419 U.S. 522 (1975). Thus, in Taylor, we found standing in circumstances analogous to petitioner's: "The State first insists that Taylor, a male, has no standing to object to the exclusion of women from his jury. But Taylor's claim is that he was constitutionally entitled to a jury drawn from a venire constituting a fair cross section of the community and that the jury that tried him was not such a jury by reason of the exclusion of women. Taylor was not a member of the excluded class; but there is no rule that claims such as Taylor presents may be made only by those defendants who are members of the group excluded from jury service." Id., at 526. Of course, in this case petitioner seeks an extension of the fair-cross-section requirement from the venire to the petit jury — but that variation calls into question the scope of the Sixth Amendment guarantee, not his standing to assert it. We proceed, then, to the merits of the claim. III Petitioner asserts that the prosecutor intentionally used his peremptory challenges to strike all black prospective jurors solely on the basis of their race, thereby preventing a distinctive group in the community from being represented *478 on his jury. This, he contends, violated the Sixth Amendment by denying him a "fair possibility" of a petit jury representing a cross section of the community. Petitioner invites us to remedy the perceived violation by incorporating into the Sixth Amendment the test we devised in Batson to permit black defendants to establish a prima facie violation of the Equal Protection Clause. Under petitioner's approach, a defendant of any race could establish a prima facie violation of the Sixth Amendment by objecting to the use of peremptory challenges to exclude all blacks from the jury. The burden would then shift to the prosecutor to show that the exercise of his peremptory challenges was not based on intentional discrimination against the black potential jurors solely because of their race. Only if the prosecutor could then show nonracial grounds for the strikes would no Sixth Amendment violation be found. We reject petitioner's fundamental thesis that a prosecutor's use of peremptory challenges to eliminate a distinctive group in the community deprives the defendant of a Sixth Amendment right to the "fair possibility" of a representative jury. While statements in our prior cases have alluded to such a "fair possibility" requirement, satisfying it has not been held to require anything beyond the inclusion of all cognizable groups in the venire, see Lockhart v. McCree, 476 U.S. 162 (1986); Duren, supra; Taylor, supra, and the use of a jury numbering at least six persons, see Ballew v. Georgia, 435 U.S. 223 (1978); Williams v. Florida, 399 U.S. 78 (1970). A prohibition upon the exclusion of cognizable groups through peremptory challenges has no conceivable basis in the text of the Sixth Amendment, is without support in our prior decisions, and would undermine rather than further the constitutional guarantee of an impartial jury. It has long been established that racial groups cannot be excluded from the venire from which a jury is selected. That constitutional principle was first set forth not under the Sixth Amendment but under the Equal Protection Clause. *479 Strauder v. West Virginia, 100 U.S. 303 (1880). In that context, the object of the principle and the reach of its logic are not established by our common-law traditions of jury trial, but by the Fourteenth Amendment's prohibition of unequal treatment in general and racial discrimination in particular. That prohibition therefore has equal application at the petit jury and the venire stages, as our cases have long recognized. Thus, in a decision rendered only 12 years after the Fourteenth Amendment was enacted, striking down a West Virginia law that excluded blacks from jury service, we said: "[I]t is hard to see why the statute of West Virginia should not be regarded as discriminating against a colored man when he is put upon trial for an alleged criminal offense against the State. It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?" Strauder, supra, at 309. Four Terms ago, in Batson, we squarely held that race-based exclusion is no more permissible at the individual petit jury stage than at the venire stage — not because the two stages are inseparably linked, but because the intransigent prohibition of racial discrimination contained in the Fourteenth Amendment applies to both of them. *480 Our relatively recent cases, beginning with Taylor v. Louisiana, hold that a fair-cross-section venire requirement is imposed by the Sixth Amendment, which provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. . . ." The fair-cross-section venire requirement is obviously not explicit in this text, but is derived from the traditional understanding of how an "impartial jury" is assembled. That traditional understanding includes a representative venire, so that the jury will be, as we have said, "drawn from a fair cross section of the community," Taylor, 419 U. S., at 527 (emphasis added). But it has never included the notion that, in the process of drawing the jury, that initial representativeness cannot be diminished by allowing both the accused and the State to eliminate persons thought to be inclined against their interests — which is precisely how the traditional peremptory-challenge system operates. As we described that system in Swain v. Alabama, 380 U.S. 202 (1965): "[The peremptory challenge] is often exercised . . . on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be." Id., at 220-221 (citation and footnote omitted). The Sixth Amendment requirement of a fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does). Without that requirement, the State could draw up jury lists in such manner as to produce a pool of prospective jurors disproportionately ill disposed towards one or all classes of defendants, and thus more likely to yield *481 petit juries with similar disposition. The State would have, in effect, unlimited peremptory challenges to compose the pool in its favor. The fair-cross-section venire requirement assures, in other words, that in the process of selecting the petit jury the prosecution and defense will compete on an equal basis. But to say that the Sixth Amendment deprives the State of the ability to "stack the deck" in its favor is not to say that each side may not, once a fair hand is dealt, use peremptory challenges to eliminate prospective jurors belonging to groups it believes would unduly favor the other side. Any theory of the Sixth Amendment leading to that result is implausible. The tradition of peremptory challenges for both the prosecution and the accused was already venerable at the time of Blackstone, see 4 W. Blackstone, Commentaries 346-348 (1769), was reflected in a federal statute enacted by the same Congress that proposed the Bill of Rights, see Act of Apr. 30, 1790, ch. 9, § 30, 1 Stat. 119, was recognized in an opinion by Justice Story to be part of the common law of the United States, see United States v. Marchant, 12 Wheat. 480, 483-484 (1827), and has endured through two centuries in all the States, see Swain, supra, at 215-217. The constitutional phrase "impartial jury" must surely take its content from this unbroken tradition.[1] One could plausibly *482 argue (though we have said the contrary, see Stilson v. United States, 250 U.S. 583, 586 (1919) that the requirement of an "impartial jury" impliedly compels peremptory challenges, but in no way could it be interpreted directly or indirectly to prohibit them. We have gone out of our way to make this clear in our opinions. In Lockhart, we said: "We have never invoked the fair-cross-section principle to invalidate *483 the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large." 476 U.S., at 173. In Taylor, we "emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition." 419 U.S., at 538. Accord, Duren v. Missouri, 439 U. S., at 363-364, and n. 20. The fundamental principle underlying today's decision is the same principle that underlay Lockhart, which rejected the claim that allowing challenge for cause, in the guilt phase of a capital trial, to jurors unalterably opposed to the death penalty (so-called "Witherspoon-excludables") violates the fair-cross-section requirement. It does not violate that requirement, we said, to disqualify a group for a reason that is related "to the ability of members of the group to serve as jurors in a particular case." 476 U.S., at 175 (emphasis added). The "representativeness" constitutionally required at the venire stage can be disrupted at the jury-panel stage to serve a State's "legitimate interest." Ibid. In Lockhart the legitimate interest was "obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial." Id., at 175-176. Here the legitimate interest is the assurance of impartiality that the system of peremptory challenges has traditionally provided. The rule we announce today is not only the only plausible reading of the text of the Sixth Amendment, but we think it best furthers the Amendment's central purpose as well. Although the constitutional guarantee runs only to the individual and not to the State, the goal it expresses is jury impartiality with respect to both contestants: neither the defendant nor the State should be favored. This goal, it seems to us, *484 would positively be obstructed by a petit jury cross-section requirement which, as we have described, would cripple the device of peremptory challenge. We have acknowledged that that device occupies "an important position in our trial procedures," Batson, 476 U. S., at 98, and has indeed been considered "a necessary part of trial by jury," Swain v. Alabama, 380 U. S., at 219. Peremptory challenges, by enabling each side to exclude those jurors it believes will be most partial toward the other side, are a means of "eliminat[ing] extremes of partiality on both sides," ibid., thereby "assuring the selection of a qualified and unbiased jury," Batson, supra, at 91 (emphasis added).[2] Petitioner seeks to minimize the harm that recognition of his claim would cause to the peremptory challenge system by assuring us that the striking of identifiable community groups other than blacks need not be accorded similar treatment. That is a comforting assurance, but the theory of petitioner's case is not compatible with it. If the goal of the Sixth Amendment is representation of a fair cross section of the community on the petit jury, then intentionally using peremptory challenges to exclude any identifiable group should be impermissible — which would, as we said in Lockhart, "likely require the elimination of peremptory challenges." 476 U.S., at 178. JUSTICE MARSHALL argues that prohibiting purposeful peremptory challenge of members of distinctive groups "would leave the peremptory challenge system almost entirely untouched" because the Court is unlikely to recognize many groups as "distinctive." Post, at 502. Misplaced optimism on this subject is cost free to those who in any event "would *485. . . eliminat[e] peremptory challenges entirely in criminal cases," Batson, supra at 107 (MARSHALL, J., concurring), but we see no justification for indulging it. To support his prediction, JUSTICE MARSHALL states that the only groups the Court has recognized as distinctive thus far have been women and certain racial groups, post, at 502 (citing Lockhart, 476 U. S., at 175). That is true enough, but inasmuch as those groups happen to constitute all the groups we have considered in the venire context, what it demonstrates is not how difficult it is to meet our standards for distinctiveness, but how few groups are systematically excluded from the venire. As we have discussed, however, many groups are regularly excluded from the petit jury through peremptory challenge. Lockhart itself suggests, quite rightly, that even so exotic a group as "Witherspoon-excludables" would be a distinctive group whose rejection at the venire stage would violate the Sixth Amendment. 476 U.S., at 176. If, as JUSTICE MARSHALL would have it, rejection at the venire stage and rejection at the panel stage are one and the same, there is every reason to believe that many commonly exercised bases for peremptory challenge would be rendered unavailable. Dispassionate analysis does not bear out JUSTICE MARSHALL's contentions that we have "ignor[ed] precedent after precedent," post, at 503, "reject[ed] . . . the principles underlying a whole line of cases," ibid., and suffer from "selective amnesia with respect to our cases in this area," post, at 500. His dissent acknowledges that the fair-cross-section decisions it discusses — Taylor, Duren, and Lockhart — "referr[ed] to exclusion of prospective jurors from venires, not their exclusion from petit juries by means of peremptory challenges," post, at 496. It nonetheless counts those cases as "well-grounded precedents," post, at 490, because "the particular context does not affect the analysis," post, at 496. That may be the dissent's view, but it was assuredly not the view expressed in the cases themselves. As noted earlier, all three *486 of those opinions specifically disclaimed application of their analysis to the petit jury. See supra, at 482-483. Last Term, in Teague v. Lane, 489 U.S. 288 (1989), we were asked to decide the very same question we decide today — "whether," as JUSTICE O'CONNOR's plurality opinion put it, "the Sixth Amendment's fair cross section requirement should now be extended to the petit jury." Id., at 292. We did not reach that question because the four-Justice plurality, with JUSTICE WHITE agreeing as to the result, held that "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced," id., at 310, and found that in asserting a fair-cross-section requirement at the petit jury stage petitioner was urging adoption of such a "new rule," id., at 301 — that is, a rule producing a result "not dictated by [prior] precedent," ibid. (emphasis in original). Though there were four Justices in dissent, only two of them expressed the view that a petit jury fair-cross-section requirement was compelled by prior precedent. See id., at 340-344 (BRENNAN, J., dissenting). In short, there is no substance to the contention that what we hold today "ignor[es] precedent after precedent." JUSTICE MARSHALL's dissent rolls out the ultimate weapon, the accusation of insensitivity to racial discrimination — which will lose its intimidating effect if it continues to be fired so randomly. It is not remotely true that our opinion today "lightly . . . set[s] aside" the constitutional goal of "eliminat[ing] racial discrimination in our system of criminal justice." Post, at 503-504. The defendant in this case is not a black man, but a convicted white rapist who seeks to use the striking of blacks from his jury to overturn his conviction. His Sixth Amendment claim would be just as strong if the object of the exclusion had been, not blacks, but postmen, or lawyers, or clergymen, or any number of other identifiable groups. Race as such has nothing to do with the legal issue in this case. We do not hold that the systematic exclusion of *487 blacks from the jury system through peremptory challenges is lawful; it obviously is not, see Batson, supra. We do not even hold that the exclusion of blacks through peremptory challenges in this particular trial was lawful. Nor do we even hold that this particular (white) defendant does not have a valid constitutional challenge to such racial exclusion.[3] All we hold is that he does not have a valid constitutional challenge based on the Sixth Amendment — which no more forbids the prosecutor to strike jurors on the basis of race than it forbids him to strike them on the basis of innumerable other generalized characteristics. To be sure, as JUSTICE MARSHALL says, the Sixth Amendment sometimes operates "as a weapon to combat racial discrimination," post, at 504, n. 2 — just as statutes against murder sometimes operate that way. But it is no more reasonable to portray this as a civil rights case than it is to characterize a proposal for increased murder penalties as an antidiscrimination law. Since only the Sixth Amendment claim, and not the equal protection claim, is at issue, the question before us is not whether the defendant has been unlawfully discriminated against because he was white, or whether the excluded jurors have been unlawfully discriminated *488A against because they were black, but whether the defendant has been denied the right to "trial . . . by an impartial jury." The earnestness of this Court's commitment to racial justice is not to be measured by its willingness to expand constitutional provisions designed for other purposes beyond their proper bounds. The judgment of the Illinois Supreme Court is Affirmed.

The questions presented by this case are (1) whether a white defendant has standing to raise a Sixth Amendment *476 challenge to the prosecutor's exercise of peremptory challenges to exclude all black potential jurors from his petit jury, and (2) whether such exclusion violates his Sixth Amendment right to trial by an impartial jury. I Petitioner Daniel Holland was charged in the Circuit Court of Cook County, Illinois, with aggravated kidnaping, rape, deviate sexual assault, armed robbery, and aggravated battery. According to his allegations, a venire of 30 potential jurors was assembled, 2 of whom were black. Petitioner's counsel objected to those of the State's peremptory challenges that struck the two black venire members from the petit jury, on the ground that petitioner had a Sixth Amendment right to "be tried by a representative cross section of the community." App. 7-8. The trial judge overruled the objection, and petitioner was subsequently convicted of all except the aggravated battery charge. The convictions were reversed by the Illinois Appellate Court, First District, on grounds that are irrelevant here, but on further appeal by the State were reinstated by the Illinois Supreme Court, which rejected petitioner's Equal Protection Clause and Sixth Amendment challenges to the exclusion of the black jurors. We granted Holland's petition for certiorari asserting that the Sixth Amendment holding was error. II The threshold question is whether petitioner, who is white, has standing to raise a Sixth Amendment challenge to the exclusion of blacks from his jury. We hold that he does. In we said that to establish a prima facie Equal Protection Clause violation in the discriminatory exclusion of petit jurors, the defendant "must show that he is a member of a cognizable racial *477 group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." (Emphasis added.) We have never suggested, however, that such a requirement of correlation between the group identification of the defendant and the group identification of excluded venire members is necessary for Sixth Amendment standing. To the contrary, our cases hold that the Sixth Amendment entitles every defendant to object to a venire that is not designed to represent a fair cross section of the community, whether or not the systematically excluded groups are groups to which he himself belongs. See, e. g., ; Thus, in we found standing in circumstances analogous to petitioner's: "The State first insists that a male, has no standing to object to the exclusion of women from his jury. But 's claim is that he was constitutionally entitled to a jury drawn from a venire constituting a fair cross section of the community and that the jury that tried him was not such a jury by reason of the exclusion of women. was not a member of the excluded class; but there is no rule that claims such as presents may be made only by those defendants who are members of the group excluded from jury service." Of course, in this case petitioner seeks an extension of the fair-cross-section requirement from the venire to the petit jury — but that variation calls into question the scope of the Sixth Amendment guarantee, not his standing to assert it. We proceed, then, to the merits of the claim. III Petitioner asserts that the prosecutor intentionally used his peremptory challenges to strike all black prospective jurors solely on the basis of their race, thereby preventing a distinctive group in the community from being represented *478 on his jury. This, he contends, violated the Sixth Amendment by denying him a "fair possibility" of a petit jury representing a cross section of the community. Petitioner invites us to remedy the perceived violation by incorporating into the Sixth Amendment the test we devised in to permit black defendants to establish a prima facie violation of the Equal Protection Clause. Under petitioner's approach, a defendant of any race could establish a prima facie violation of the Sixth Amendment by objecting to the use of peremptory challenges to exclude all blacks from the jury. The burden would then shift to the prosecutor to show that the exercise of his peremptory challenges was not based on intentional discrimination against the black potential jurors solely because of their race. Only if the prosecutor could then show nonracial grounds for the strikes would no Sixth Amendment violation be found. We reject petitioner's fundamental thesis that a prosecutor's use of peremptory challenges to eliminate a distinctive group in the community deprives the defendant of a Sixth Amendment right to the "fair possibility" of a representative jury. While statements in our prior cases have alluded to such a "fair possibility" requirement, satisfying it has not been held to require anything beyond the inclusion of all cognizable groups in the venire, see ; and the use of a jury numbering at least six persons, see ; A prohibition upon the exclusion of cognizable groups through peremptory challenges has no conceivable basis in the text of the Sixth Amendment, is without support in our prior decisions, and would undermine rather than further the constitutional guarantee of an impartial jury. It has long been established that racial groups cannot be excluded from the venire from which a jury is selected. That constitutional principle was first set forth not under the Sixth Amendment but under the Equal Protection Clause. *479 In that context, the object of the principle and the reach of its logic are not established by our common-law traditions of jury trial, but by the Fourteenth Amendment's prohibition of unequal treatment in general and racial discrimination in particular. That prohibition therefore has equal application at the petit jury and the venire stages, as our cases have long recognized. Thus, in a decision rendered only 12 years after the Fourteenth Amendment was enacted, striking down a West Virginia law that excluded blacks from jury service, we said: "[I]t is hard to see why the statute of West Virginia should not be regarded as discriminating against a colored man when he is put upon trial for an alleged criminal offense against the State. It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?" Strauder, Four Terms ago, in we squarely held that race-based exclusion is no more permissible at the individual petit jury stage than at the venire stage — not because the two stages are inseparably linked, but because the intransigent prohibition of racial discrimination contained in the Fourteenth Amendment applies to both of them. *480 Our relatively recent cases, beginning with hold that a fair-cross-section venire requirement is imposed by the Sixth Amendment, which provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." The fair-cross-section venire requirement is obviously not explicit in this text, but is derived from the traditional understanding of how an "impartial jury" is assembled. That traditional understanding includes a representative venire, so that the jury will be, as we have said, "drawn from a fair cross section of the community," But it has never included the notion that, in the process of drawing the jury, that initial representativeness cannot be diminished by allowing both the accused and the State to eliminate persons thought to be inclined against their interests — which is precisely how the traditional peremptory-challenge system operates. As we described that system in (15): "[The peremptory challenge] is often exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be." The Sixth Amendment requirement of a fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does). Without that requirement, the State could draw up jury lists in such manner as to produce a pool of prospective jurors disproportionately ill disposed towards one or all classes of defendants, and thus more likely to yield *481 petit juries with similar disposition. The State would have, in effect, unlimited peremptory challenges to compose the pool in its favor. The fair-cross-section venire requirement assures, in other words, that in the process of selecting the petit jury the prosecution and defense will compete on an equal basis. But to say that the Sixth Amendment deprives the State of the ability to "stack the deck" in its favor is not to say that each side may not, once a fair hand is dealt, use peremptory challenges to eliminate prospective jurors belonging to groups it believes would unduly favor the other side. Any theory of the Sixth Amendment leading to that result is implausible. The tradition of peremptory challenges for both the prosecution and the accused was already venerable at the time of Blackstone, see 4 W. Blackstone, Commentaries 346-348 (1769), was reflected in a federal statute enacted by the same Congress that proposed the Bill of Rights, see Act of Apr. 30, 1790, ch. 9, 30, was recognized in an opinion by Justice Story to be part of the common law of the United States, see United and has endured through two centuries in all the States, see The constitutional phrase "impartial jury" must surely take its content from this unbroken tradition.[1] One could plausibly *482 argue that the requirement of an "impartial jury" impliedly compels peremptory challenges, but in no way could it be interpreted directly or indirectly to prohibit them. We have gone out of our way to make this clear in our opinions. In we said: "We have never invoked the fair-cross-section principle to invalidate *483 the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large." In we "emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition." Accord, -364, and n. 20. The fundamental principle underlying today's decision is the same principle that underlay which rejected the claim that allowing challenge for cause, in the guilt phase of a capital trial, to jurors unalterably opposed to the death penalty (so-called "Witherspoon-excludables") violates the fair-cross-section requirement. It does not violate that requirement, we said, to disqualify a group for a reason that is related "to the ability of members of the group to serve as jurors in a particular case." The "representativeness" constitutionally required at the venire stage can be disrupted at the jury-panel stage to serve a State's "legitimate interest." In the legitimate interest was "obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial." Here the legitimate interest is the assurance of impartiality that the system of peremptory challenges has traditionally provided. The rule we announce today is not only the only plausible reading of the text of the Sixth Amendment, but we think it best furthers the Amendment's central purpose as well. Although the constitutional guarantee runs only to the individual and not to the State, the goal it expresses is jury impartiality with respect to both contestants: neither the defendant nor the State should be favored. This goal, it seems to us, *484 would positively be obstructed by a petit jury cross-section requirement which, as we have described, would cripple the device of peremptory challenge. We have acknowledged that that device occupies "an important position in our trial procedures," and has indeed been considered "a necessary part of trial by jury," Peremptory challenges, by enabling each side to exclude those jurors it believes will be most partial toward the other side, are a means of "eliminat[ing] extremes of partiality on both sides," ib thereby "assuring the selection of a qualified and unbiased jury,"[2] Petitioner seeks to minimize the harm that recognition of his claim would cause to the peremptory challenge system by assuring us that the striking of identifiable community groups other than blacks need not be accorded similar treatment. That is a comforting assurance, but the theory of petitioner's case is not compatible with it. If the goal of the Sixth Amendment is representation of a fair cross section of the community on the petit jury, then intentionally using peremptory challenges to exclude any identifiable group should be impermissible — which would, as we said in "likely require the elimination of peremptory challenges." JUSTICE MARSHALL argues that prohibiting purposeful peremptory challenge of members of distinctive groups "would leave the peremptory challenge system almost entirely untouched" because the Court is unlikely to recognize many groups as "distinctive." Post, at 502. Misplaced optimism on this subject is cost free to those who in any event "would *485. eliminat[e] peremptory challenges entirely in criminal cases," but we see no justification for indulging it. To support his prediction, JUSTICE MARSHALL states that the only groups the Court has recognized as distinctive thus far have been women and certain racial groups, post, at 502 (citing ). That is true enough, but inasmuch as those groups happen to constitute all the groups we have considered in the venire context, what it demonstrates is not how difficult it is to meet our standards for distinctiveness, but how few groups are systematically excluded from the venire. As we have discussed, however, many groups are regularly excluded from the petit jury through peremptory challenge. itself suggests, quite rightly, that even so exotic a group as "Witherspoon-excludables" would be a distinctive group whose rejection at the venire stage would violate the Sixth Amendment. If, as JUSTICE MARSHALL would have it, rejection at the venire stage and rejection at the panel stage are one and the same, there is every reason to believe that many commonly exercised bases for peremptory challenge would be rendered unavailable. Dispassionate analysis does not bear out JUSTICE MARSHALL's contentions that we have "ignor[ed] precedent after precedent," post, at 503, "reject[ed] the principles underlying a whole line of cases," ib and suffer from "selective amnesia with respect to our cases in this area," post, at 500. His dissent acknowledges that the fair-cross-section decisions it discusses — and — "referr[ed] to exclusion of prospective jurors from venires, not their exclusion from petit juries by means of peremptory challenges," post, at 4. It nonetheless counts those cases as "well-grounded precedents," post, at 490, because "the particular context does not affect the analysis," post, at 4. That may be the dissent's view, but it was assuredly not the view expressed in the cases themselves. As noted earlier, all three *486 of those opinions specifically disclaimed application of their analysis to the petit jury. See Last Term, in we were asked to decide the very same question we decide today — "whether," as JUSTICE O'CONNOR's plurality opinion put it, "the Sixth Amendment's fair cross section requirement should now be extended to the petit jury." We did not reach that question because the four-Justice plurality, with JUSTICE WHITE agreeing as to the result, held that "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced," and found that in asserting a fair-cross-section requirement at the petit jury stage petitioner was urging adoption of such a "new rule," at 301 — that is, a rule producing a result "not dictated by [prior] precedent," Though there were four Justices in dissent, only two of them expressed the view that a petit jury fair-cross-section requirement was compelled by prior precedent. See In short, there is no substance to the contention that what we hold today "ignor[es] precedent after precedent." JUSTICE MARSHALL's dissent rolls out the ultimate weapon, the accusation of insensitivity to racial discrimination — which will lose its intimidating effect if it continues to be fired so randomly. It is not remotely true that our opinion today "lightly set[s] aside" the constitutional goal of "eliminat[ing] racial discrimination in our system of criminal justice." Post, at 503-504. The defendant in this case is not a black man, but a convicted white rapist who seeks to use the striking of blacks from his jury to overturn his conviction. His Sixth Amendment claim would be just as strong if the object of the exclusion had been, not blacks, but postmen, or lawyers, or clergymen, or any number of other identifiable groups. Race as such has nothing to do with the legal issue in this case. We do not hold that the systematic exclusion of *487 blacks from the jury system through peremptory challenges is lawful; it obviously is not, see We do not even hold that the exclusion of blacks through peremptory challenges in this particular trial was lawful. Nor do we even hold that this particular (white) defendant does not have a valid constitutional challenge to such racial exclusion.[3] All we hold is that he does not have a valid constitutional challenge based on the Sixth Amendment — which no more forbids the prosecutor to strike jurors on the basis of race than it forbids him to strike them on the basis of innumerable other generalized characteristics. To be sure, as JUSTICE MARSHALL says, the Sixth Amendment sometimes operates "as a weapon to combat racial discrimination," post, at 504, n. 2 — just as statutes against murder sometimes operate that way. But it is no more reasonable to portray this as a civil rights case than it is to characterize a proposal for increased murder penalties as an antidiscrimination law. Since only the Sixth Amendment claim, and not the equal protection claim, is at issue, the question before us is not whether the defendant has been unlawfully discriminated against because he was white, or whether the excluded jurors have been unlawfully discriminated *488A against because they were black, but whether the defendant has been denied the right to "trial by an impartial jury." The earnestness of this Court's commitment to racial justice is not to be measured by its willingness to expand constitutional provisions designed for other purposes beyond their proper bounds. The judgment of the Illinois Supreme Court is Affirmed.

Justice Douglas

dissenting

United Air Lines, Inc. v. Mahin

https://www.courtlistener.com/opinion/108737/united-air-lines-inc-v-mahin/

https://www.courtlistener.com/api/rest/v3/clusters/108737/

1972-072

The Court today makes a break with the history of the Commerce Clause that has been largely responsible for creating in this Nation a great common market. One *633 protective device this Court has used to keep the national channels of commerce open against hostile state legislation has been the constitutional ban on state taxation levied on interstate activities. In 1873, in Case of State Freight Tax, 15 Wall. 232, we held unconstitutional a state tax "so far as it applies to articles . . . taken up in the State and carried out of it . . . ." Id., at 282. While there are ways in which interstate commerce can be required to pay its way, we have not until today abandoned the basic principle that a State may not tax interstate activities. That is what is done here, for the Illinois tax is levied on filling the fuel tanks of airplanes taking off for interstate or foreign journeys. If Illinois can tax that segment of the interstate activity, there is no reason why she may not tax the takeoff itself. The filling of fuel tanks to make an interstate or foreign journey is as indispensable a part and parcel of the interstate or foreign journey as using the runways for that purpose. The Supreme Court of Illinois sustained the Illinois Use Tax[1] on all aviation fuel loaded aboard United's interstate and foreign flights departing from Chicago. United purchases fuel outside Illinois and stores it in Illinois temporarily for its interstate and foreign operations. The use tax exempts from the tax property purchased outside Illinois, temporarily stored in the State, and used solely outside the State.[2] Until 1963 the temporary storage exception was construed by the Illinois Department of Revenue so as to subject to the use tax only that fuel loaded on departing flights that was actually burned over Illinois. In 1963 the Department changed its prior ruling and announced: "[T]emporary storage ends and a taxable use occurs when the fuel is taken out of storage facilities *634 and is placed into the tank of the airplane, railroad engine or truck. At this point, the fuel is converted into its ultimate use, and, therefore, a taxable use occurs in Illinois." The Supreme Court of Illinois upheld that construction and application of the use tax against the claim that it violates the Commerce Clause, saying that United's storage becomes something more than temporary storage for safekeeping "prior to its use solely outside of Illinois." 49 Ill. 2d 45, 55, 273 N.E.2d 585, 590. The taxable event is the act of loading the fuel aboard United's aircraft in Illinois preparatory to their interstate or foreign journey. The majority states that the Supreme Court of Illinois concluded that either the storage of the gasoline itself or the withdrawal therefrom is a use which may be taxed without offending the Federal Constitution. But that statement of the Supreme Court of Illinois was made in its discussion of the exemption from the use tax which, as relevant here, provides: "[T]he temporary storage, in this State, of tangible personal property which is acquired outside this State and which, subsequent to being brought into this State and stored here temporarily, is used solely outside this State." Ill. Rev. Stat., c. 120, § 439.3 (1971). That means that the temporary-storage exemption would extend, not merely to storage on the ground, but also to its loading aboard the transportation vehicles, such as trucks or railroad cars, and to its transportation from the State. It is thus obvious that, unless the means of removing the property from the State is included in the scope of the temporary storage, it would be a nullity, as appellant maintains. Since in this case, there is no tax if fuel is withdrawn from storage and taken from the State by other means, it is clear that neither the storage nor the removal from storage is what makes the fuel taxable. The majority properly notes that, as a matter of state *635 law and the Illinois court's interpretation thereof, it is the "consumption" wholly without the State that makes the exception operable. Conversely, I read the Illinois opinion to mean that, as a matter of state law, it is at least partial consumption within the State that brings the tax on all the fuel into play. That is so even if only a small portion of the fuel is consumed within the State, while the remainder is consumed out of State during an interstate or foreign flight. The inescapable conclusion from the state court's interpretation of this state law is that the act of loading the fuel into the fuel tanks of the interstate aircraft solely for use as the motive power is the taxable event. If that event were used to tax fuel used on an intrastate flight, no problem under the Commerce Clause would arise. But loading is part of the interstate activity when planes prepare for an interstate journey, just as loading is a part of the shipment of goods by rail or water interstate (Puget Sound Stevedoring Co. v. Tax Comm'n, 302 U.S. 90, 92-94; Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 427, 433-434) and just as local pickups of parcels and local delivery of parcels in interstate movement are not permissible grounds "for a state license, privilege or occupation tax." Railway Express Agency v. Virginia, 347 U.S. 359, 368. In Richfield Oil Corp. v. State Board, 329 U.S. 69, we held invalid a state sales tax levied on the delivery of fuel oil into a ship for overseas carriage. We said "[t]he incident which gave rise to the accrual of the tax was a step in the export process." Id., at 84. A like result was reached in Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, where a State sought to impose a severance tax on the transfer of gas from a refinery pipeline to an interstate pipeline. We noted that the "taxable incidence" was the taking of gas from a local plant "for the purpose of immediate interstate transmission." *636 Id., at 161. We, therefore, held it unconstitutional, since it was a tax "on the exit of the gas from the State." Id., at 167. The present tax is analogous to the tax on the privilege of carrying on an exclusively interstate business which we struck down in Spector Motor Service v. O'Connor, 340 U.S. 602, 608. A tax upon an integral part of interstate commerce is a tax that no State by reason of the Commerce Clause is empowered to impose, unless authorized by Congress. Id., at 608. The fuel in United's planes propels the interstate flights; because it is the source of the motive power, it is essential to the interstate journey. It is, therefore, indisputably a part and parcel of the interstate movement. McCarroll v. Dixie Greyhound Lines, 309 U.S. 176, involved an Arkansas statute which prohibited any truck or automobile from entering the State with more than 20 gallons of gasoline in its tank unless an excise tax were paid on the gasoline. The Court held the tax unconstitutional because it imposed a tax on "gasoline to be immediately transported over the roads of Arkansas for consumption beyond." Id., at 180 (emphasis added). Similarly, Illinois imposes its tax on all of the fuel loaded into airplane tanks, whether or not that fuel is consumed out of State. In Helson v. Kentucky, 279 U.S. 245, on which the Illinois Supreme Court relied in disapproving the earlier construction of the statute, a ferry boat operated between Illinois and Kentucky, having its office in Illinois and buying all its fuel there. Kentucky sought to tax that portion of the fuel used in Kentucky. This Court invalidated the tax, saying it was "exacted as the price of the privilege of using an instrumentality of interstate commerce." Id., at 252. If that tax is invalid, it follows a fortiori that Illinois may not tax the movement of airplanes from Illinois to California, from Illinois to Europe, or from Illinois to any other out-of-state point. *637 It is now well settled that interstate commerce can be required to pay its way, Illinois Central R. Co. v. Minnesota, 309 U.S. 157; Western Live Stock v. Bureau of Revenue, 303 U.S. 250; Greyhound Lines v. Mealey, 334 U.S. 653; Northwestern Cement Co. v. Minnesota, 358 U.S. 450, a result commonly reached by formulae which allocate to the taxing State business derived from operations within the State. Railway Express Agency v. Virginia, 358 U.S. 434. Yet, when pieces or segments of an interstate business are taxed, our cases reveal discrimination in approving or disapproving taxes that may be imposed. A State may not exact a license tax for the privilege of carrying on interstate commerce. McGoldrick v. Berwind-White Co., 309 U.S. 33, 56-58; Murdock v. Pennsylvania, 319 U.S. 105, 112-113. As stated in Berwind-White, taxes "which are aimed at or discriminate against [interstate] commerce or impose a levy for the privilege of doing it, or tax interstate transportation or communication or their gross earnings, or levy an exaction on merchandise in the course of its interstate journey" are within the ban, since they may "so readily be made the instrument of impeding or destroying interstate commerce." 309 U.S., at 48. Sales within the State, however, are taxable, though the goods have reached the market by interstate channels. Magnano Co. v. Hamilton, 292 U.S. 40, 43; McGoldrick v. Berwind-White Co., supra, at 58. The sales tax in Berwind-White was on the "transfer of title or possession, or both," id., at 43. And we sustained the tax because of "a local activity" which we described as "delivery of goods within the state upon their purchase for consumption," id., at 58. As a consequence, an out-of-state buyer who purchases goods in New York City and takes them with him pays the tax, while if he has them shipped to him, he pays no sales tax. Although "delivery of goods" within the State may be taxed, "solicitation" within the State for out-of-state *638 confirmation and shipment into the State may not be. Nippert v. Richmond, 327 U.S. 416, 422; West Point Grocery Co. v. Opelika, 354 U.S. 390. In Dunbar-Stanley Studios v. Alabama, 393 U.S. 537, a tax was sustained on out-of-state photographers, since their activities were not soliciting orders for an out-of-state house but taking photographs within the State. The use tax came into being to complement the sales tax, i. e., to fill in gaps where the States could not constitutionally tax interstate arrivals or departures. See Henneford v. Silas Mason Co., 300 U.S. 577, 581. Thus, goods may be taxed at the end of their interstate journey, where the tax does not discriminate against interstate commerce. Id., at 582-583; Felt & Tarrant Co. v. Gallagher, 306 U.S. 62 (use tax on storage, use, or other consumption); Southern Pacific Co. v. Gallagher, 306 U.S. 167 (storage and use). Use taxes imposed on storage or withdrawal from storage have consistently been sustained. Eastern Air Transport v. Tax Comm'n, 285 U.S. 147; Gregg Dyeing Co. v. Query, 286 U.S. 472; Nashville, Chattanooga & St. Louis R. Co. v. Wallace, 288 U.S. 249; McGoldrick v. Berwind-White Co., supra, at 49. Nice distinctions are often necessary because, although all taxes on interstate carriers "in an ultimate sense, come out of interstate commerce" (Freeman v. Hewit, 329 U.S. 249, 256), the constitutional ban relates only to "a direct imposition on that very freedom of commercial flow which for more than a hundred and fifty years has been the ward of the Commerce Clause." Id., at 256. For Illinois to tax the storage of fuel within its borders is, of course, constitutionally permissible, even though in time the fuel may be used in interstate or foreign commerce. In Edelman v. Boeing Air Transport, 289 U.S. 249, 251, the use tax was "not levied upon the consumption of gasoline in furnishing motive power for respondent's *639 interstate planes." The tax was "applied to the stored gasoline as it is withdrawn from the storage tanks at the airport and placed in the planes." Ibid. "It is at the time of withdrawal alone that `use' is measured for the purposes of the tax." Id., at 252. (Italics added.) At that time, the gasoline was not irrevocably committed to interstate commerce, for it might be diverted to planes on intrastate journeys. By contrast, the taxable event on which Illinois levies her tax is not storage for future use, or withdrawal from storage, but only loading in the tanks of planes preparing for interstate or foreign journeys. It is, therefore, inescapably a tax on the actual motive power for an interstate or foreign journey. Taxing the fuel loaded in a plane destined for an interstate or foreign journey is, in other words, taxing the privilege of using a facility in commerce, because the motive power[3] represented by the fuel has become part and parcel of the facility. The decision today marks a break with our constitutional tradition, which, absent an Act of Congress, has led this Court consistently to hold that the free flow of interstate commerce is a ward of the Commerce Clause. Without that free flow of commerce we would not have the great common market we enjoy today. I would reverse the judgment of the Supreme Court of Illinois. MR.

The Court today makes a break with the history of the Commerce Clause that has been largely responsible for creating in this Nation a great common market. One *633 protective device this Court has used to keep the national channels of commerce open against hostile state legislation has been the constitutional ban on state taxation levied on interstate activities. In 1873, in Case of State Freight Tax, we held unconstitutional a state tax "so far as it applies to articles taken up in the State and carried out of it" While there are ways in which interstate commerce can be required to pay its way, we have not until today abandoned the basic principle that a State may not tax interstate activities. That is what is done here, for the Illinois tax is levied on filling the fuel tanks of airplanes taking off for interstate or foreign journeys. If Illinois can tax that segment of the interstate activity, there is no reason why she may not tax the takeoff itself. The filling of fuel tanks to make an interstate or foreign journey is as indispensable a part and parcel of the interstate or foreign journey as using the runways for that purpose. The Supreme Court of Illinois sustained the Illinois Use Tax[1] on all aviation fuel loaded aboard United's interstate and foreign flights departing from Chicago. United purchases fuel outside Illinois and stores it in Illinois temporarily for its interstate and foreign operations. The use tax exempts from the tax property purchased outside Illinois, temporarily stored in the State, and used solely outside the State.[2] Until 1963 the temporary storage exception was construed by the Illinois Department of Revenue so as to subject to the use tax only that fuel loaded on departing flights that was actually burned over Illinois. In 1963 the Department changed its prior ruling and announced: "[T]emporary storage ends and a taxable use occurs when the fuel is taken out of storage facilities *634 and is placed into the tank of the airplane, railroad engine or truck. At this point, the fuel is converted into its ultimate use, and, therefore, a taxable use occurs in Illinois." The Supreme Court of Illinois upheld that construction and application of the use tax against the claim that it violates the Commerce Clause, saying that United's storage becomes something more than temporary storage for safekeeping "prior to its use solely outside of Illinois." The taxable event is the act of loading the fuel aboard United's aircraft in Illinois preparatory to their interstate or foreign journey. The majority states that the Supreme Court of Illinois concluded that either the storage of the gasoline itself or the withdrawal therefrom is a use which may be taxed without offending the Federal Constitution. But that statement of the Supreme Court of Illinois was made in its discussion of the exemption from the use tax which, as relevant here, provides: "[T]he temporary storage, in this State, of tangible personal property which is acquired outside this State and which, subsequent to being brought into this State and stored here temporarily, is used solely outside this State." Ill. Rev. Stat., c. 120, 9.3 (1971). That means that the temporary-storage exemption would extend, not merely to storage on the ground, but also to its loading aboard the transportation vehicles, such as trucks or railroad cars, and to its transportation from the State. It is thus obvious that, unless the means of removing the property from the State is included in the scope of the temporary storage, it would be a nullity, as appellant maintains. Since in this case, there is no tax if fuel is withdrawn from storage and taken from the State by other means, it is clear that neither the storage nor the removal from storage is what makes the fuel taxable. The majority properly notes that, as a matter of state *635 law and the Illinois court's interpretation thereof, it is the "consumption" wholly without the State that makes the exception operable. Conversely, I read the Illinois opinion to mean that, as a matter of state law, it is at least partial consumption within the State that brings the tax on all the fuel into play. That is so even if only a small portion of the fuel is consumed within the State, while the remainder is consumed out of State during an interstate or foreign flight. The inescapable conclusion from the state court's interpretation of this state law is that the act of loading the fuel into the fuel tanks of the interstate aircraft solely for use as the motive power is the taxable event. If that event were used to tax fuel used on an intrastate flight, no problem under the Commerce Clause would arise. But loading is part of the interstate activity when planes prepare for an interstate journey, just as loading is a part of the shipment of goods by rail or water interstate (Puget Sound Stevedoring ; ) and just as local pickups of parcels and local delivery of parcels in interstate movement are not permissible grounds "for a state license, privilege or occupation tax." Railway Express In Richfield Oil we held invalid a state sales tax levied on the delivery of fuel oil into a ship for overseas carriage. We said "[t]he incident which gave rise to the accrual of the tax was a step in the export process." A like result was reached in Michigan-Wisconsin Pipe Line where a State sought to impose a severance tax on the transfer of gas from a refinery pipeline to an interstate pipeline. We noted that the "taxable incidence" was the taking of gas from a local plant "for the purpose of immediate interstate transmission." *636 We, therefore, held it unconstitutional, since it was a tax "on the exit of the gas from the State." The present tax is analogous to the tax on the privilege of carrying on an exclusively interstate business which we struck down in Spector Motor A tax upon an integral part of interstate commerce is a tax that no State by reason of the Commerce Clause is empowered to impose, unless authorized by Congress. at The fuel in United's planes propels the interstate flights; because it is the source of the motive power, it is essential to the interstate journey. It is, therefore, indisputably a part and parcel of the interstate movement. involved an Arkansas statute which prohibited any truck or automobile from entering the State with more than 20 gallons of gasoline in its tank unless an excise tax were paid on the gasoline. The Court held the tax unconstitutional because it imposed a tax on "gasoline to be immediately transported over the roads of Arkansas for consumption beyond." Similarly, Illinois imposes its tax on all of the fuel loaded into airplane tanks, whether or not that fuel is consumed out of State. In on which the Illinois Supreme Court relied in disapproving the earlier construction of the statute, a ferry boat operated between Illinois and Kentucky, having its office in Illinois and buying all its fuel there. Kentucky sought to tax that portion of the fuel used in Kentucky. This Court invalidated the tax, saying it was "exacted as the price of the privilege of using an instrumentality of interstate commerce." If that tax is invalid, it follows a fortiori that Illinois may not tax the movement of airplanes from Illinois to California, from Illinois to Europe, or from Illinois to any other out-of-state point. *637 It is now well settled that interstate commerce can be required to pay its way, Illinois Central R. ; Western Live ; Greyhound ; Northwestern Cement a result commonly reached by formulae which allocate to the taxing State business derived from operations within the State. Railway Express Yet, when pieces or segments of an interstate business are taxed, our cases reveal discrimination in approving or disapproving taxes that may be imposed. A State may not exact a license tax for the privilege of carrying on interstate commerce. ; As stated in Berwind-White, taxes "which are aimed at or discriminate against [interstate] commerce or impose a levy for the privilege of doing it, or tax interstate transportation or communication or their gross earnings, or levy an exaction on merchandise in the course of its interstate journey" are within the ban, since they may "so readily be made the instrument of impeding or destroying interstate commerce." Sales within the State, however, are taxable, though the goods have reached the market by interstate channels. Magnano ; The sales tax in Berwind-White was on the "transfer of title or possession, or both," at And we sustained the tax because of "a local activity" which we described as "delivery of goods within the state upon their purchase for consumption," As a consequence, an out-of-state buyer who purchases goods in New York City and takes them with him pays the tax, while if he has them shipped to him, he pays no sales tax. Although "delivery of goods" within the State may be taxed, "solicitation" within the State for out-of-state *638 confirmation and shipment into the State may not be. ; West Point Grocery v. Opelika, In Dunbar-Stanley a tax was sustained on out-of-state photographers, since their activities were not soliciting orders for an out-of-state house but taking photographs within the State. The use tax came into being to complement the sales tax, i. e., to fill in gaps where the States could not constitutionally tax interstate arrivals or departures. See Henneford v. Silas Mason Thus, goods may be taxed at the end of their interstate journey, where the tax does not discriminate against interstate commerce. 2-583; Felt & Tarrant v. Gallagher, (use tax on storage, use, or other consumption); Southern Pacific v. Gallagher, (storage and use). Use taxes imposed on storage or withdrawal from storage have consistently been sustained. Eastern Air ; Gregg Dyeing v. Query, ; Nashville, Chattanooga & St. Louis R. v. Wallace, ; Nice distinctions are often necessary because, although all taxes on interstate carriers "in an ultimate sense, come out of interstate commerce" ), the constitutional ban relates only to "a direct imposition on that very freedom of commercial flow which for more than a hundred and fifty years has been the ward of the Commerce Clause." at For Illinois to tax the storage of fuel within its borders is, of course, constitutionally permissible, even though in time the fuel may be used in interstate or foreign commerce. In the use tax was "not levied upon the consumption of gasoline in furnishing motive power for respondent's *639 interstate planes." The tax was "applied to the stored gasoline as it is withdrawn from the storage tanks at the airport and placed in the planes." "It is at the time of withdrawal alone that `use' is measured for the purposes of the tax." (Italics added.) At that time, the gasoline was not irrevocably committed to interstate commerce, for it might be diverted to planes on intrastate journeys. By contrast, the taxable event on which Illinois levies her tax is not storage for future use, or withdrawal from storage, but only loading in the tanks of planes preparing for interstate or foreign journeys. It is, therefore, inescapably a tax on the actual motive power for an interstate or foreign journey. Taxing the fuel loaded in a plane destined for an interstate or foreign journey is, in other words, taxing the privilege of using a facility in commerce, because the motive power[3] represented by the fuel has become part and parcel of the facility. The decision today marks a break with our constitutional tradition, which, absent an Act of Congress, has led this Court consistently to hold that the free flow of interstate commerce is a ward of the Commerce Clause. Without that free flow of commerce we would not have the great common market we enjoy today. I would reverse the judgment of the Supreme Court of Illinois. MR.

per_curiam

per_curiam

Youakim v. Miller

https://www.courtlistener.com/opinion/109422/youakim-v-miller/

https://www.courtlistener.com/api/rest/v3/clusters/109422/

1975-070

As part of the federal Aid to Families with Dependent Children (AFDC) program, 42 U.S. C. § 601 et seq., the State of Illinois provides federally subsidized foster care (AFDC-FC) payments of $105 per month for a dependent child placed with unrelated foster parents. Under Illinois' administration of the program no foster care payments are made to foster parents who are related to the foster child. Related foster parents are eligible, however, to receive payments under the State's regular AFDC program for the support of dependent children in the amount of $63 per month. These payments are made without regard to the financial circumstances of the family caring for the child. In addition, as an exception to the State's regular policy, related foster parents, upon an adequate showing of financial need, may receive supplemental payments for child care which bring the payments in connection with the related foster child to approximately $105 per month. Appellants are Linda Youakim and her husband, Marcel, and Linda's four minor brothers and sisters, Timothy, Mary Lou, Larry, and Sherry Robertson. Since 1972, the Youakims have been foster parents of Timothy and Mary Lou. Larry and Sherry have been living in separate, unrelated foster care facilities since 1969. Because Linda is related to Timothy and Mary Lou, the Youakims were ineligible for AFDC-FC foster care payments. They did apply for and receive the smaller AFDC payments for both children. Alleging injury resulting from financial inability to provide adequate care for Timothy and Mary Lou and to bring Larry and Sherry into their foster family, appellants filed suit in the District Court against the state officials on behalf of themselves and all other persons similarly situated. Their complaint described the suit as an action to enjoin *233 enforcement of the foster care payment scheme on the ground that it denied related foster families the equal protection of the laws and likewise discriminated against wards of the State and relatives who could not provide an adequate foster home without full foster care payments. They asked that a three-judge District Court convene and enjoin the enforcement of the Illinois statutes and regulations. The three-judge court "approved" the Fed. Rule Civ. Proc. 23 (b) (2) class, granted appellees' motion for summary judgment, and ultimately held that the "Illinois scheme does not deny plaintiffs equal protection of the laws." 374 F. Supp. 1204, 1210 (ND Ill. 1974). The jurisdictional statement filed here expressly challenged the Illinois scheme both on equal protection grounds and on the ground of conflict with the Social Security Act. We noted probable jurisdiction. 420 U.S. 970 (1975). Although the jurisdictional statement as to which we noted probable jurisdiction presented the question of conflict between the Illinois law and the Social Security Act, it appears that the Supremacy Clause claim was not presented to the District Court as an independent ground for invalidating the state law. The complaint described the suit as one seeking an injunction on equal protection grounds. The sole ground for relief expressly claimed in each of the three causes of action which the complaint purported to allege, as well as in the prayer for relief, was that the Illinois program denied appellants equal protection of the laws. It does not appear from the record in the District Court that as the case developed appellants rested on the Supremacy Clause as a separate basis for their injunction claim. Nor did the District Court address the relationship between state and federal law independently of the equal protection issue. *234 Ordinarily, this Court does not decide questions not raised or resolved in the lower court. California v. Taylor, 353 U.S. 553, 557 n. 2 (1957); Lawn v. United States, 355 U.S. 339, 362-363, n. 16 (1958). But as Pollard v. United States, 352 U.S. 354, 359 (1957), and Brotherhood of Carpenters v. United States, 330 U.S. 395, 412 (1947), for example, demonstrate, the rule is not inflexible. Cf. Boynton v. Virginia, 364 U.S. 454, 457 (1960). Its usual formulation is: "It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed." Duignan v. United States, 274 U.S. 195, 200 (1927). Here, as we shall describe, the circumstances justify our dealing with the issue of conflict between state and federal statutes at least to the extent of vacating the judgment below and remanding the case for consideration of the claim that the Illinois foster care program is in conflict with the Social Security Act. Initially, it should be noted that the statutory issue is not foreign to the subject matter of the complaint. Attacks on state welfare statutes often combine Equal Protection Clause and Supremacy Clause issues. The latter question could surely have been pursued under the complaint filed in this case, which, as part of the "facts" incorporated by reference in each of the three causes of action, alleged that the Illinois program was in conflict with the policy of the United States expressed in sub-chapter IV of the Social Security Act, 49 Stat. 627, as amended, 42 U.S. C. § 601 et seq., specifically with the federal policy of encouraging the care of children in their own homes or in the homes of relatives wherever possible. It is also apparent that the District Court was of the view that under Townsend v. Swank, 404 U.S. 282 (1971), "serious equal protection problems" might arise if "a state attempts to rely on the concept of fiscal *235 integrity to limit beyond statutory standards the class eligible to receive federally subsidized payments." 374 F. Supp., at 1210. For this reason, the District Court compared federal and state law, and concluded: "Far from being inconsistent with the federal scheme, the Illinois scheme in general seems to parallel it. . . . Thus the federal statute makes the same classification as the Illinois statute." Ibid. Had appellants relied on the Supremacy Clause issue as a separate ground for decision it would appear that the claim would have been rejected by the District Court. In light of these circumstances, the case is at most only marginally subject to the rule that this Court will not consider issues "not pressed or passed upon" in the court below. Beyond these considerations, on October 25, 1974, after the filing of the jurisdictional statement but before we noted probable jurisdiction, the Department of Health, Education, and Welfare issued Program Instruction APA-PI-75-9 stating that under the controlling federal law, "[w]hen a child has been removed from his home by judicial determination and is placed in foster care under the various conditions specified . . . , the foster care rate of payment prevails regardless of whether or not the foster home is operated by a relative." Also, in response to appellants' jurisdictional statement, the Solicitor General filed a statement in this Court urging that the Illinois foster care program was inconsistent with the Social Security Act insofar as it provided higher payments to unrelated foster parents than to those who were related. Neither the appellants nor the District Court had the benefit of either of these developments when the case was in the lower court. The interpretation of a statute by an agency charged with its enforcement is a substantial factor to be considered in construing the statute, New York Dept. of Social Services v. Dublino, *236 413 U.S. 405, 421 (1973); Columbia Broadcasting System, Inc. v. Democratic Comm., 412 U.S. 94, 121 (1973); Investment Co. Institute v. Camp, 401 U.S. 617, 626-627 (1971); and appellants[1] now wish to press the issue of conflict between state and federal law. We think that it is appropriate to afford them the opportunity to do so, but that the claim should be aired first in the District Court. Vacating the judgment and remanding the case for this purpose will require the District Court first to decide the statutory issue, Hagans v. Lavine, 415 U.S. 528 (1974), and if appellants prevail on that question, it will be unnecessary for either the District Court or this Court to reach the equal protection issue at all. A remand is thus consistent with our usual practice of avoiding decisions on constitutional matters if a case may be resolved on other grounds.[2] *237 The action we take here is similar to the order the Court entered in Thorpe v. Housing Authority, 386 U.S. 670 (1967). There, rather than deciding the constitutionality of an eviction from a public housing project, the Court remanded the case for reconsideration in light of a supervening administrative directive which was issued by federal authorities and which it was thought might provide a nonconstitutional basis for decision. Cf. Richardson v. Wright, 405 U.S. 208, 209 (1972). The judgment of the District Court is vacated, and the case is remanded to that court for further proceedings consistent with this opinion. So ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case.

As part of the federal Aid to Families with Dependent Children (AFDC) program, 42 U.S. C. 601 et seq., the State of Illinois provides federally subsidized foster care (AFDC-FC) payments of $105 per month for a dependent child placed with unrelated foster parents. Under Illinois' administration of the program no foster care payments are made to foster parents who are related to the foster child. Related foster parents are eligible, however, to receive payments under the State's regular AFDC program for the support of dependent children in the amount of $63 per month. These payments are made without regard to the financial circumstances of the family caring for the child. In addition, as an exception to the State's regular policy, related foster parents, upon an adequate showing of financial need, may receive supplemental payments for child care which bring the payments in connection with the related foster child to approximately $105 per month. Appellants are Linda Youakim and her husband, Marcel, and Linda's four minor brothers and sisters, Timothy, Mary Lou, Larry, and Sherry Robertson. Since 1972, the Youakims have been foster parents of Timothy and Mary Lou. Larry and Sherry have been living in separate, unrelated foster care facilities since 1969. Because Linda is related to Timothy and Mary Lou, the Youakims were ineligible for AFDC-FC foster care payments. They did apply for and receive the smaller AFDC payments for both children. Alleging injury resulting from financial inability to provide adequate care for Timothy and Mary Lou and to bring Larry and Sherry into their foster family, appellants filed suit in the District Court against the state officials on behalf of themselves and all other persons similarly situated. Their complaint described the suit as an action to enjoin *233 enforcement of the foster care payment scheme on the ground that it denied related foster families the equal protection of the laws and likewise discriminated against wards of the State and relatives who could not provide an adequate foster home without full foster care payments. They asked that a three-judge District Court convene and enjoin the enforcement of the Illinois statutes and regulations. The three-judge court "approved" the Fed. Rule Civ. Proc. 23 (b) (2) class, granted appellees' motion for summary judgment, and ultimately held that the "Illinois scheme does not deny plaintiffs equal protection of the laws." The jurisdictional statement filed here expressly challenged the Illinois scheme both on equal protection grounds and on the ground of conflict with the Social Security Act. We noted probable jurisdiction. Although the jurisdictional statement as to which we noted probable jurisdiction presented the question of conflict between the Illinois law and the Social Security Act, it appears that the Supremacy Clause claim was not presented to the District Court as an independent ground for invalidating the state law. The complaint described the suit as one seeking an injunction on equal protection grounds. The sole ground for relief expressly claimed in each of the three causes of action which the complaint purported to allege, as well as in the prayer for relief, was that the Illinois program denied appellants equal protection of the laws. It does not appear from the record in the District Court that as the case developed appellants rested on the Supremacy Clause as a separate basis for their injunction claim. Nor did the District Court address the relationship between state and federal law independently of the equal protection issue. *234 Ordinarily, this Court does not decide questions not raised or resolved in the lower court. ; But as and Brotherhood of for example, demonstrate, the rule is not inflexible. Cf. Its usual formulation is: "It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed." Here, as we shall describe, the circumstances justify our dealing with the issue of conflict between state and federal statutes at least to the extent of vacating the judgment below and remanding the case for consideration of the claim that the Illinois foster care program is in conflict with the Social Security Act. Initially, it should be noted that the statutory issue is not foreign to the subject matter of the complaint. Attacks on state welfare statutes often combine Equal Protection Clause and Supremacy Clause issues. The latter question could surely have been pursued under the complaint filed in this case, which, as part of the "facts" incorporated by reference in each of the three causes of action, alleged that the Illinois program was in conflict with the policy of the United States expressed in sub-chapter IV of the Social Security Act, as amended, 42 U.S. C. 601 et seq., specifically with the federal policy of encouraging the care of children in their own homes or in the homes of relatives wherever possible. It is also apparent that the District Court was of the view that under "serious equal protection problems" might arise if "a state attempts to rely on the concept of fiscal *235 integrity to limit beyond statutory standards the class eligible to receive federally subsidized payments." 374 F. Supp., at For this reason, the District Court compared federal and state law, and concluded: "Far from being inconsistent with the federal scheme, the Illinois scheme in general seems to parallel it. Thus the federal statute makes the same classification as the Illinois statute." Had appellants relied on the Supremacy Clause issue as a separate ground for decision it would appear that the claim would have been rejected by the District Court. In light of these circumstances, the case is at most only marginally subject to the rule that this Court will not consider issues "not pressed or passed upon" in the court below. Beyond these considerations, on October 25, after the filing of the jurisdictional statement but before we noted probable jurisdiction, the Department of Health, Education, and Welfare issued Program Instruction APA-PI-75-9 stating that under the controlling federal law, "[w]hen a child has been removed from his home by judicial determination and is placed in foster care under the various conditions specified the foster care rate of payment prevails regardless of whether or not the foster home is operated by a relative." Also, in response to appellants' jurisdictional statement, the Solicitor General filed a statement in this Court urging that the Illinois foster care program was inconsistent with the Social Security Act insofar as it provided higher payments to unrelated foster parents than to those who were related. Neither the appellants nor the District Court had the benefit of either of these developments when the case was in the lower court. The interpretation of a statute by an agency charged with its enforcement is a substantial factor to be considered in construing the statute, New York Dept. of Social ; Columbia Broadcasting System, U.S. 94, ; Investment Co. ; and appellants[1] now wish to press the issue of conflict between state and federal law. We think that it is appropriate to afford them the opportunity to do so, but that the claim should be aired first in the District Court. Vacating the judgment and remanding the case for this purpose will require the District Court first to decide the statutory issue, and if appellants prevail on that question, it will be unnecessary for either the District Court or this Court to reach the equal protection issue at all. A remand is thus consistent with our usual practice of avoiding decisions on constitutional matters if a case may be resolved on other grounds.[2] *237 The action we take here is similar to the order the Court entered in There, rather than deciding the constitutionality of an eviction from a public housing project, the Court remanded the case for reconsideration in light of a supervening administrative directive which was issued by federal authorities and which it was thought might provide a nonconstitutional basis for decision. Cf. The judgment of the District Court is vacated, and the case is remanded to that court for further proceedings consistent with this opinion. So ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case.

Justice Kennedy

majority

Weaver v. Massachusetts

https://www.courtlistener.com/opinion/4403801/weaver-v-massachusetts/

https://www.courtlistener.com/api/rest/v3/clusters/4403801/

2016-069

During petitioner’s trial on state criminal charges, the courtroom was occupied by potential jurors and closed to the public for two days of the jury selection process. De- fense counsel neither objected to the closure at trial nor raised the issue on direct review. And the case comes to the Court on the assumption that, in failing to object, defense counsel provided ineffective assistance. In the direct review context, the underlying constitu- tional violation—the courtroom closure—has been treated by this Court as a structural error, i.e., an error entitling the defendant to automatic reversal without any inquiry into prejudice. The question is whether invalidation of the conviction is required here as well, or if the prejudice inquiry is altered when the structural error is raised in the context of an ineffective-assistance-of-counsel claim. I In 2003, a 15-year-old boy was shot and killed in Boston. A witness saw a young man fleeing the scene of the crime and saw him pull out a pistol. A baseball hat fell off of his head. The police recovered the hat, which featured a 2 WEAVER v. MASSACHUSETTS Opinion of the Court distinctive airbrushed Detroit Tigers logo on either side. The hat’s distinctive markings linked it to 16-year-old Kentel Weaver. He is the petitioner here. DNA obtained from the hat matched petitioner’s DNA. Two weeks after the crime, the police went to petition- er’s house to question him. He admitted losing his hat around the time of the shooting but denied being involved. Petitioner’s mother was not so sure. Later, she questioned petitioner herself. She asked whether he had been at the scene of the shooting, and he said he had been there. But when she asked if he was the shooter, or if he knew who the shooter was, petitioner put his head down and said nothing. Believing his response to be an admission of guilt, she insisted that petitioner go to the police station to confess. He did. Petitioner was indicted in Massachusetts state court for first-degree murder and the unlicensed possession of a handgun. He pleaded not guilty and pro- ceeded to trial. The pool of potential jury members was large, some 60 to 100 people. The assigned courtroom could accommodate only 50 or 60 in the courtroom seating. As a result, the trial judge brought all potential jurors into the courtroom so that he could introduce the case and ask certain prelim- inary questions of the entire venire panel. Many of the potential jurors did not have seats and had to stand in the courtroom. After the preliminary questions, the potential jurors who had been standing were moved outside the courtroom to wait during the individual questioning of the other potential jurors. The judge acknowledged that the hallway was not “the most comfortable place to wait” and thanked the potential jurors for their patience. 2 Tr. II– 103 (Apr. 10, 2006). The judge noted that there was simply not space in the courtroom for everybody. As all of the seats in the courtroom were occupied by the venire panel, an officer of the court excluded from the courtroom any member of the public who was not a poten- Cite as: 582 U. S. ____ (2017) 3 Opinion of the Court tial juror. So when petitioner’s mother and her minister came to the courtroom to observe the two days of jury selection, they were turned away. All this occurred before the Court’s decision in Presley v. Georgia, 558 U.S. 209 (2010) (per curiam). Presley made it clear that the public-trial right extends to jury selection as well as to other portions of the trial. Id., at 213–215. Before Presley, Massachusetts courts would often close courtrooms to the public during jury selection, in particu- lar during murder trials. In this case petitioner’s mother told defense counsel about the closure at some point during jury selection. But counsel “believed that a courtroom closure for [ jury selec- tion] was constitutional.” Crim. No. 2003–11293 (Super. Ct. Mass., Feb. 22, 2013), App. to Pet. for Cert. 49a. As a result, he “did not discuss the matter” with petitioner, or tell him “that his right to a public trial included the [jury voir dire],” or object to the closure. Ibid. During the ensuing trial, the government presented strong evidence of petitioner’s guilt. Its case consisted of the incriminating details outlined above, including peti- tioner’s confession to the police. The jury convicted peti- tioner on both counts. The court sentenced him to life in prison on the murder charge and to about a year in prison on the gun-possession charge. Five years later, petitioner filed a motion for a new trial in Massachusetts state court. As relevant here, he argued that his attorney had provided ineffective assistance by failing to object to the courtroom closure. After an eviden- tiary hearing, the trial court recognized a violation of the right to a public trial based on the following findings: The courtroom had been closed; the closure was neither de minimis nor trivial; the closure was unjustified; and the closure was full rather than partial (meaning that all members of the public, rather than only some of them, had been excluded from the courtroom). The trial court fur- 4 WEAVER v. MASSACHUSETTS Opinion of the Court ther determined that defense counsel failed to object be- cause of “serious incompetency, inefficiency, or inatten- tion.” Id., at 63a (quoting Massachusetts v. Chleikh, 82 Mass. App. 718, 722, 978 N.E.2d 96, 100 (2012)). On the other hand, petitioner had not “offered any evidence or legal argument establishing prejudice.” App. to Pet. for Cert. 64a. For that reason, the court held that petitioner was not entitled to relief. Petitioner appealed the denial of the motion for a new trial to the Massachusetts Supreme Judicial Court. The court consolidated that appeal with petitioner’s direct appeal. As noted, there had been no objection to the clo- sure at trial; and the issue was not raised in the direct appeal. The Supreme Judicial Court then affirmed in relevant part. Although it recognized that “[a] violation of the Sixth Amendment right to a public trial constitutes structural error,” the court stated that petitioner had “failed to show that trial counsel’s conduct caused preju- dice warranting a new trial.” 474 Mass. 787, 814, 54 N.E. 3d 495, 520 (2016). On this reasoning, the court rejected petitioner’s claim of ineffective assistance of counsel. There is disagreement among the Federal Courts of Appeals and some state courts of last resort about whether a defendant must demonstrate prejudice in a case like this one—in which a structural error is neither preserved nor raised on direct review but is raised later via a claim alleging ineffective assistance of counsel. Some courts have held that, when a defendant shows that his attorney unreasonably failed to object to a structural error, the defendant is entitled to a new trial without further in- quiry. See, e.g., Johnson v. Sherry, 586 F.3d 439, 447 (CA6 2009); Owens v. United States, 483 F.3d 48, 64–65 (CA1 2007); Littlejohn v. United States, 73 A.3d 1034, 1043–1044 (D. C. 2013); State v. Lamere, 327 Mont. 115, 125, 112 P.3d 1005, 1013 (2005). Other courts have held that the defendant is entitled to relief only if he or she can Cite as: 582 U. S. ____ (2017) 5 Opinion of the Court show prejudice. See, e.g., Purvis v. Crosby, 451 F.3d 734, 738 (CA11 2006); United States v. Gomez, 705 F.3d 68, 79–80 (CA2 2013); Reid v. State, 286 Ga. 484, 487, 690 S.E.2d 177, 180–181 (2010). This Court granted certio- rari to resolve that disagreement. 580 U. S. ___ (2017). The Court does so specifically and only in the context of trial counsel’s failure to object to the closure of the courtroom during jury selection. II This case requires a discussion, and the proper applica- tion, of two doctrines: structural error and ineffective assistance of counsel. The two doctrines are intertwined; for the reasons an error is deemed structural may influ- ence the proper standard used to evaluate an ineffective- assistance claim premised on the failure to object to that error. A The concept of structural error can be discussed first. In Chapman v. California, 386 U.S. 18 (1967), this Court “adopted the general rule that a constitutional error does not automatically require reversal of a conviction.” Ari- zona v. Fulminante, 499 U.S. 279, 306 (1991) (citing Chap- man, supra). If the government can show “beyond a rea- sonable doubt that the error complained of did not contribute to the verdict obtained,” the Court held, then the error is deemed harmless and the defendant is not entitled to reversal. Id., at 24. The Court recognized, however, that some errors should not be deemed harmless beyond a reasonable doubt. Id., at 23, n. 8. These errors came to be known as structural errors. See Fulminante, 499 U.S., at 309–310. The pur- pose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial. Thus, the 6 WEAVER v. MASSACHUSETTS Opinion of the Court defining feature of a structural error is that it “affect[s] the framework within which the trial proceeds,” rather than being “simply an error in the trial process itself.” Id., at 310. For the same reason, a structural error “def[ies] analysis by harmless error standards.” Id., at 309 (inter- nal quotation marks omitted). The precise reason why a particular error is not amen- able to that kind of analysis—and thus the precise reason why the Court has deemed it structural—varies in a sig- nificant way from error to error. There appear to be at least three broad rationales. First, an error has been deemed structural in some instances if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest. This is true of the defendant’s right to conduct his own defense, which, when exercised, “usu- ally increases the likelihood of a trial outcome unfavorable to the defendant.” McKaskle v. Wiggins, 465 U.S. 168, 177, n. 8 (1984). That right is based on the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty. See Faretta v. California, 422 U.S. 806, 834 (1975). Because harm is irrelevant to the basis underlying the right, the Court has deemed a violation of that right structural error. See United States v. Gonzalez-Lopez, 548 U.S. 140, 149, n. 4 (2006). Second, an error has been deemed structural if the effects of the error are simply too hard to measure. For example, when a defendant is denied the right to select his or her own attorney, the precise “effect of the violation cannot be ascertained.” Ibid. (quoting Vasquez v. Hillery, 474 U.S. 254, 263 (1986)). Because the government will, as a result, find it almost impossible to show that the error was “harmless beyond a reasonable doubt,” Chapman, supra, at 24, the efficiency costs of letting the government try to make the showing are unjustified. Cite as: 582 U. S. ____ (2017) 7 Opinion of the Court Third, an error has been deemed structural if the error always results in fundamental unfairness. For example, if an indigent defendant is denied an attorney or if the judge fails to give a reasonable-doubt instruction, the resulting trial is always a fundamentally unfair one. See Gideon v. Wainwright, 372 U.S. 335, 343–345 (1963) (right to an attorney); Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (right to a reasonable-doubt instruction). It there- fore would be futile for the government to try to show harmlessness. These categories are not rigid. In a particular case, more than one of these rationales may be part of the ex- planation for why an error is deemed to be structural. See e.g., id., at 280–282. For these purposes, however, one point is critical: An error can count as structural even if the error does not lead to fundamental unfairness in every case. See Gonzalez-Lopez, supra, at 149, n. 4 (rejecting as “inconsistent with the reasoning of our precedents” the idea that structural errors “always or necessarily render a trial fundamentally unfair and unreliable” (emphasis deleted)). B As noted above, a violation of the right to a public trial is a structural error. See supra, at 1, 4. It is relevant to determine why that is so. In particular, the question is whether a public-trial violation counts as structural be- cause it always leads to fundamental unfairness or for some other reason. In Waller v. Georgia, 467 U.S. 39 (1984), the state court prohibited the public from viewing a weeklong suppression hearing out of concern for the privacy of persons other than those on trial. See id., at 41–43. Although it recog- nized that there would be instances where closure was justified, this Court noted that “such circumstances will be rare” and that the closure in question was unjustified. Id., 8 WEAVER v. MASSACHUSETTS Opinion of the Court at 45, 48. Still, the Court did not order a new trial. Id., at 49–50. Instead it ordered a new suppression hearing that was open to the public. Id., at 50. If the same evidence was found admissible in that renewed pretrial proceeding, the Court held, no new trial as to guilt would be neces- sary. Ibid. This was despite the structural aspect of the violation. Some 25 years after the Waller decision, the Court issued its per curiam ruling in Presley v. Georgia. 558 U.S. 209. In that case, as here, the courtroom was closed to the public during jury voir dire. Id., at 210. Unlike here, however, there was a trial objection to the closure, and the issue was raised on direct appeal. Id., at 210–211. On review of the State Supreme Court’s decision allowing the closure, this Court expressed concern that the state court’s reasoning would allow the courtroom to be closed during jury selection “whenever the trial judge decides, for whatever reason, that he or she would prefer to fill the courtroom with potential jurors rather than spectators.” Id., at 215 (internal quotation marks omitted). Although the Court expressly noted that courtroom closure may be ordered in some circumstances, the Court also stated that it was “still incumbent upon” the trial court “to consider all reasonable alternatives to closure.” Id., at 215–216. These opinions teach that courtroom closure is to be avoided, but that there are some circumstances when it is justified. The problems that may be encountered by trial courts in deciding whether some closures are necessary, or even in deciding which members of the public should be admitted when seats are scarce, are difficult ones. For example, there are often preliminary instructions that a judge may want to give to the venire as a whole, rather than repeating those instructions (perhaps with uninten- tional differences) to several groups of potential jurors. On the other hand, various constituencies of the public— the family of the accused, the family of the victim, mem- Cite as: 582 U. S. ____ (2017) 9 Opinion of the Court bers of the press, and other persons—all have their own interests in observing the selection of jurors. How best to manage these problems is not a topic discussed at length in any decision or commentary the Court has found. So although the public-trial right is structural, it is subject to exceptions. See Simonson, The Criminal Court Audience in a Post-Trial World, 127 Harv. L. Rev. 2173, 2219–2222 (2014) (discussing situations in which a trial court may order a courtroom closure). Though these cases should be rare, a judge may deprive a defendant of his right to an open courtroom by making proper factual findings in support of the decision to do so. See Waller, supra, at 45. The fact that the public-trial right is subject to these exceptions suggests that not every public-trial violation results in fundamental unfairness. A public-trial violation can occur, moreover, as it did in Presley, simply because the trial court omits to make the proper findings before closing the courtroom, even if those findings might have been fully supported by the evidence. See 558 U.S., at 215. It would be unconvincing to deem a trial fundamentally unfair just because a judge omitted to announce factual findings before making an otherwise valid decision to order the courtroom temporarily closed. As a result, it would be likewise unconvincing if the Court had said that a public-trial violation always leads to a fundamentally unfair trial. Indeed, the Court has not said that a public-trial viola- tion renders a trial fundamentally unfair in every case. In the two cases in which the Court has discussed the rea- sons for classifying a public-trial violation as structural error, the Court has said that a public-trial violation is structural for a different reason: because of the “difficulty of assessing the effect of the error.” Gonzalez-Lopez, 548 U.S., at 149, n. 4; see also Waller, supra, at 49, n. 9. The public-trial right also protects some interests that do not belong to the defendant. After all, the right to an 10 WEAVER v. MASSACHUSETTS Opinion of the Court open courtroom protects the rights of the public at large, and the press, as well as the rights of the accused. See, e.g., Press-Enterprise Co. v. Superior Court of Cal., River- side Cty., 464 U.S. 501, 508–510 (1984); Richmond News- papers, Inc. v. Virginia, 448 U.S. 555, 572–573 (1980). So one other factor leading to the classification of structural error is that the public-trial right furthers interests other than protecting the defendant against unjust conviction. These precepts confirm the conclusion the Court now reaches that, while the public-trial right is important for fundamental reasons, in some cases an unlawful closure might take place and yet the trial still will be fundamen- tally fair from the defendant’s standpoint. III The Court now turns to the proper remedy for address- ing the violation of a structural right, and in particular the right to a public trial. Despite its name, the term “struc- tural error” carries with it no talismanic significance as a doctrinal matter. It means only that the government is not entitled to deprive the defendant of a new trial by showing that the error was “harmless beyond a reasonable doubt.” Chapman, 386 U.S., at 24. Thus, in the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the defendant gener- ally is entitled to “automatic reversal” regardless of the error’s actual “effect on the outcome.” Neder v. United States, 527 U.S. 1, 7 (1999). The question then becomes what showing is necessary when the defendant does not preserve a structural error on direct review but raises it later in the context of an ineffective-assistance-of-counsel claim. To obtain relief on the basis of ineffective assistance of counsel, the defendant as a general rule bears the burden to meet two standards. First, the defendant must show deficient performance— that the attorney’s error was “so serious that counsel was Cite as: 582 U. S. ____ (2017) 11 Opinion of the Court not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, the defendant must show that the attorney’s error “prejudiced the defense.” Ibid. The prejudice showing is in most cases a necessary part of a Strickland claim. The reason is that a defendant has a right to effective representation, not a right to an attor- ney who performs his duties “mistake-free.” Gonzalez- Lopez, 548 U.S., at 147. As a rule, therefore, a “violation of the Sixth Amendment right to effective representation is not ‘complete’ until the defendant is prejudiced.” Ibid. (emphasis deleted); see also Premo v. Moore, 562 U.S. 115, 128 (2011); Lockhart v. Fretwell, 506 U.S. 364, 370 (1993). That said, the concept of prejudice is defined in different ways depending on the context in which it appears. In the ordinary Strickland case, prejudice means “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S., at 694. But the Strickland Court cautioned that the prejudice inquiry is not meant to be applied in a “me- chanical” fashion. Id., at 696. For when a court is evalu- ating an ineffective-assistance claim, the ultimate inquiry must concentrate on “the fundamental fairness of the proceeding.” Ibid. Petitioner therefore argues that under a proper interpretation of Strickland, even if there is no showing of a reasonable probability of a different outcome, relief still must be granted if the convicted person shows that attorney errors rendered the trial fundamentally unfair. For the analytical purposes of this case, the Court will assume that petitioner’s interpretation of Strickland is the correct one. In light of the Court’s ultimate holding, however, the Court need not decide that question here. As explained above, not every public-trial violation will in fact lead to a fundamentally unfair trial. See supra, at 10. Nor can it be said that the failure to object to a public- trial violation always deprives the defendant of a reason- 12 WEAVER v. MASSACHUSETTS Opinion of the Court able probability of a different outcome. Thus, when a de- fendant raises a public-trial violation via an ineffective- assistance-of-counsel claim, Strickland prejudice is not shown automatically. Instead, the burden is on the de- fendant to show either a reasonable probability of a differ- ent outcome in his or her case or, as the Court has as- sumed for these purposes, see supra, at 11, to show that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair. Neither the reasoning nor the holding here calls into question the Court’s precedents determining that certain errors are deemed structural and require reversal because they cause fundamental unfairness, either to the defend- ant in the specific case or by pervasive undermining of the systemic requirements of a fair and open judicial process. See Murray, A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 1791, 1813, 1822 (2017) (noting that the “eclectic normative objectives of criminal proce- dure” go beyond protecting a defendant from erroneous conviction and include ensuring “ ‘that the administration of justice should reasonably appear to be disinterested’ ” (quoting Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 869–870 (1988))). Those precedents include Sullivan v. Louisiana, 508 U.S., at 278–279 (failure to give a reasonable-doubt instruction); Tumey v. Ohio, 273 U.S. 510, 535 (1927) (biased judge); and Vasquez v. Hillery, 474 U.S., at 261–264 (exclusion of grand jurors on the basis of race). See Neder, supra, at 8 (describing each of these errors as structural). This Court, in addition, has granted automatic relief to defendants who prevailed on claims alleging race or gender discrimination in the selec- tion of the petit jury, see Batson v. Kentucky, 476 U.S. 79, 100 (1986); J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 145–146 (1994), though the Court has yet to label those errors structural in express terms, see, e.g., Neder, supra, at 8. The errors in those cases necessitated automatic Cite as: 582 U. S. ____ (2017) 13 Opinion of the Court reversal after they were preserved and then raised on direct appeal. And this opinion does not address whether the result should be any different if the errors were raised instead in an ineffective-assistance claim on collateral review. The reason for placing the burden on the petitioner in this case, however, derives both from the nature of the error, see supra, at 11–12, and the difference between a public-trial violation preserved and then raised on direct review and a public-trial violation raised as an ineffective- assistance-of-counsel claim. As explained above, when a defendant objects to a courtroom closure, the trial court can either order the courtroom opened or explain the reasons for keeping it closed. See supra, at 8–9. When a defendant first raises the closure in an ineffective- assistance claim, however, the trial court is deprived of the chance to cure the violation either by opening the courtroom or by explaining the reasons for closure. Furthermore, when state or federal courts adjudicate errors objected to during trial and then raised on direct review, the systemic costs of remedying the error are diminished to some extent. That is because, if a new trial is ordered on direct review, there may be a reasonable chance that not too much time will have elapsed for wit- ness memories still to be accurate and physical evidence not to be lost. There are also advantages of direct judicial supervision. Reviewing courts, in the regular course of the appellate process, can give instruction to the trial courts in a familiar context that allows for elaboration of the rele- vant principles based on review of an adequate record. For instance, in this case, the factors and circumstances that might justify a temporary closure are best considered in the regular appellate process and not in the context of a later proceeding, with its added time delays. When an ineffective-assistance-of-counsel claim is raised in postconviction proceedings, the costs and uncertainties 14 WEAVER v. MASSACHUSETTS Opinion of the Court of a new trial are greater because more time will have elapsed in most cases. The finality interest is more at risk, see Strickland, 466 U.S., at 693–694 (noting the “profound importance of finality in criminal proceedings”), and direct review often has given at least one opportunity for an appellate review of trial proceedings. These differ- ences justify a different standard for evaluating a struc- tural error depending on whether it is raised on direct review or raised instead in a claim alleging ineffective assistance of counsel. In sum, “[a]n ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial,” thus undermining the final- ity of jury verdicts. Harrington v. Richter, 562 U.S. 86, 105 (2011). For this reason, the rules governing ineffec- tive-assistance claims “must be applied with scrupulous care.” Premo, 562 U.S., at 122. IV The final inquiry concerns the ineffective-assistance claim in this case. Although the case comes on the as- sumption that petitioner has shown deficient performance by counsel, he has not shown prejudice in the ordinary sense, i.e., a reasonable probability that the jury would not have convicted him if his attorney had objected to the closure. It is of course possible that potential jurors might have behaved differently if petitioner’s family had been present. And it is true that the presence of the public might have had some bearing on juror reaction. But here petitioner offered no “evidence or legal argument establishing preju- dice” in the sense of a reasonable probability of a different outcome but for counsel’s failure to object. App. to Pet. for Cert. 64a; see Strickland, 466 U.S., at 694. In other circumstances a different result might obtain. If, for instance, defense counsel errs in failing to object Cite as: 582 U. S. ____ (2017) 15 Opinion of the Court when the government’s main witness testifies in secret, then the defendant might be able to show prejudice with little more detail. See ibid. Even in those circumstances, however, the burden would remain on the defendant to make the prejudice showing, id., at 694, 696, because a public-trial violation does not always lead to a fundamen- tally unfair trial, see supra, at 10. In light of the above assumption that prejudice can be shown by a demonstration of fundamental unfairness, see supra, at 11, the remaining question is whether petitioner has shown that counsel’s failure to object rendered the trial fundamentally unfair. See Strickland, supra, at 696. The Court concludes that petitioner has not made the showing. Although petitioner’s mother and her minister were indeed excluded from the courtroom for two days during jury selection, petitioner’s trial was not conducted in secret or in a remote place. Cf. In re Oliver, 333 U.S. 257, 269, n. 22 (1948). The closure was limited to the jury voir dire; the courtroom remained open during the eviden- tiary phase of the trial; the closure decision apparently was made by court officers rather than the judge; there were many members of the venire who did not become jurors but who did observe the proceedings; and there was a record made of the proceedings that does not indicate any basis for concern, other than the closure itself. There has been no showing, furthermore, that the po- tential harms flowing from a courtroom closure came to pass in this case. For example, there is no suggestion that any juror lied during voir dire; no suggestion of misbehav- ior by the prosecutor, judge, or any other party; and no suggestion that any of the participants failed to approach their duties with the neutrality and serious purpose that our system demands. It is true that this case comes here on the assumption that the closure was a Sixth Amendment violation. And it must be recognized that open trials ensure respect for the 16 WEAVER v. MASSACHUSETTS Opinion of the Court justice system and allow the press and the public to judge the proceedings that occur in our Nation’s courts. Even so, the violation here did not pervade the whole trial or lead to basic unfairness. In sum, petitioner has not shown a reasonable probabil- ity of a different outcome but for counsel’s failure to object, and he has not shown that counsel’s shortcomings led to a fundamentally unfair trial. He is not entitled to a new trial. * * * In the criminal justice system, the constant, indeed unending, duty of the judiciary is to seek and to find the proper balance between the necessity for fair and just trials and the importance of finality of judgments. When a structural error is preserved and raised on direct review, the balance is in the defendant’s favor, and a new trial generally will be granted as a matter of right. When a structural error is raised in the context of an ineffective- assistance claim, however, finality concerns are far more pronounced. For this reason, and in light of the other circumstances present in this case, petitioner must show prejudice in order to obtain a new trial. As explained above, he has not made the required showing. The judg- ment of the Massachusetts Supreme Judicial Court is affirmed. It is so ordered. Cite as: 582 U. S. ____ (2017) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 16–240 _________________ KENTEL MYRONE WEAVER, PETITIONER v.

During petitioner’s trial on state criminal charges, the courtroom was occupied by potential jurors and closed to the public for two days of the jury selection process. De- fense counsel neither objected to the closure at trial nor raised the issue on direct review. And the case comes to the Court on the assumption that, in failing to object, defense counsel provided ineffective assistance. In the direct review context, the underlying constitu- tional violation—the courtroom closure—has been treated by this Court as a structural error, i.e., an error entitling the defendant to automatic reversal without any inquiry into prejudice. The question is whether invalidation of the conviction is required here as well, or if the prejudice inquiry is altered when the structural error is raised in the context of an ineffective-assistance-of-counsel claim. I In 2003, a 15-year-old boy was shot and killed in Boston. A witness saw a young fleeing the scene of the crime and saw him pull out a pistol. A baseball hat fell off of his head. The police recovered the hat, which featured a 2 WEAVER v. MASSACHUSETTS Opinion of the Court distinctive airbrushed Detroit Tigers logo on either side. The hat’s distinctive markings linked it to 16-year-old Kentel Weaver. He is the petitioner here. DNA obtained from the hat matched petitioner’s DNA. Two weeks after the crime, the police went to petition- er’s house to question him. He admitted losing his hat around the time of the shooting but denied being involved. Petitioner’s mother was not so sure. Later, she questioned petitioner herself. She asked whether he had been at the scene of the shooting, and he said he had been there. But when she asked if he was the shooter, or if he knew who the shooter was, petitioner put his head down and said nothing. Believing his response to be an admission of guilt, she insisted that petitioner go to the police station to confess. He did. Petitioner was indicted in Massachusetts state court for first-degree murder and the unlicensed possession of a handgun. He pleaded not guilty and pro- ceeded to trial. The pool of potential jury members was large, some 60 to people. The assigned courtroom could accommodate only 50 or 60 in the courtroom seating. As a result, the trial judge brought all potential jurors into the courtroom so that he could introduce the case and ask certain prelim- inary questions of the entire venire panel. Many of the potential jurors did not have seats and had to stand in the courtroom. After the preliminary questions, the potential jurors who had been standing were moved outside the courtroom to wait during the individual questioning of the other potential jurors. The judge acknowledged that the hallway was not “the most comfortable place to wait” and thanked the potential jurors for their patience. 2 Tr. II– 103 (Apr. 10, 2006). The judge noted that there was simply not space in the courtroom for everybody. As all of the seats in the courtroom were occupied by the venire panel, an officer of the court excluded from the courtroom any member of the public who was not a poten- Cite as: 582 U. S. (201) 3 Opinion of the Court tial juror. So when petitioner’s mother and her minister came to the courtroom to observe the two days of jury selection, they were turned away. All this occurred before the Court’s decision in Presley v. Georgia, Presley made it clear that the public-trial right extends to jury selection as well as to other portions of the trial. at 213–215. Before Presley, Massachusetts courts would often close courtrooms to the public during jury selection, in particu- lar during murder trials. In this case petitioner’s mother told defense counsel about the closure at some point during jury selection. But counsel “believed that a courtroom closure for [ jury selec- tion] was constitutional.” Crim. No. 2003–11293 (Super. Ct. Mass., Feb. 22, 2013), App. to Pet. for Cert. 49a. As a result, he “did not discuss the matter” with petitioner, or tell him “that his right to a public trial included the [jury voir dire],” or object to the closure. During the ensuing trial, the government presented strong evidence of petitioner’s guilt. Its case consisted of the incriminating details outlined above, including peti- tioner’s confession to the police. The jury convicted peti- tioner on both counts. The court sentenced him to life in prison on the murder charge and to about a year in prison on the gun-possession charge. Five years later, petitioner filed a motion for a new trial in Massachusetts state court. As relevant here, he argued that his attorney had provided ineffective assistance by failing to object to the courtroom closure. After an eviden- tiary hearing, the trial court recognized a violation of the right to a public trial based on the following findings: The courtroom had been closed; the closure was neither de minimis nor trivial; the closure was unjustified; and the closure was full rather than partial (meaning that all members of the public, rather than only some of them, had been excluded from the courtroom). The trial court fur- 4 WEAVER v. MASSACHUSETTS Opinion of the Court ther determined that defense counsel failed to object be- cause of “serious incompetency, inefficiency, or inatten- tion.” at 63a ). On the other hand, petitioner had not “offered any evidence or legal argument establishing prejudice.” App. to Pet. for Cert. 64a. For that reason, the court held that petitioner was not entitled to relief. Petitioner appealed the denial of the motion for a new trial to the Massachusetts Supreme Judicial Court. The court consolidated that appeal with petitioner’s direct appeal. As noted, there had been no objection to the clo- sure at trial; and the issue was not raised in the direct appeal. The Supreme Judicial Court then affirmed in relevant part. Although it recognized that “[a] violation of the Sixth Amendment right to a public trial constitutes structural error,” the court stated that petitioner had “failed to show that trial counsel’s conduct caused preju- dice warranting a new trial.” 54 N.E. 3d 495, 520 (2016). On this reasoning, the court rejected petitioner’s claim of ineffective assistance of counsel. There is disagreement among the Federal Courts of Appeals and some state courts of last resort about whether a defendant must demonstrate prejudice in a case like this one—in which a structural error is neither preserved nor raised on direct review but is raised later via a claim alleging ineffective assistance of counsel. Some courts have held that, when a defendant shows that his attorney unreasonably failed to object to a structural error, the defendant is entitled to a new trial without further in- quiry. See, e.g., (CA6 2009); 64–65 (CA1 200); 1043–1044 (D. C. 2013); 125, 112 P.3d 5, Other courts have held that the defendant is entitled to relief only if he or she can Cite as: 582 U. S. (201) 5 Opinion of the Court show prejudice. See, e.g., 38 (CA11 2006); United 9–80 (CA2 2013); S.E.2d 1, 180–181 This Court granted certio- rari to resolve that disagreement. 580 U. S. (201). The Court does so specifically and only in the context of trial counsel’s failure to object to the closure of the courtroom during jury selection. II This case requires a discussion, and the proper applica- tion, of two doctrines: structural error and ineffective assistance of counsel. The two doctrines are intertwined; for the reasons an error is deemed structural may influ- ence the proper standard used to evaluate an ineffective- assistance claim premised on the failure to object to that error. A The concept of structural error can be discussed first. In this Court “adopted the general rule that a constitutional error does not automatically require reversal of a conviction.” Ari- (citing Chap- If the government can show “beyond a rea- sonable doubt that the error complained of did not contribute to the verdict obtained,” the Court held, then the error is deemed harmless and the defendant is not entitled to reversal. The Court recognized, however, that some errors should not be deemed harmless beyond a reasonable doubt. at 23, n. 8. These errors came to be known as structural errors. See –310. The pur- pose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial. Thus, the 6 WEAVER v. MASSACHUSETTS Opinion of the Court defining feature of a structural error is that it “affect[s] the framework within which the trial proceeds,” rather than being “simply an error in the trial process itself.” at 310. For the same reason, a structural error “def[ies] analysis by harmless error standards.” (inter- nal quotation marks omitted). The precise reason why a particular error is not amen- able to that kind of analysis—and thus the precise reason why the Court has deemed it structural—varies in a sig- nificant way from error to error. There appear to be at least three broad rationales. First, an error has been deemed structural in some instances if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest. This is true of the defendant’s right to conduct his own defense, which, when exercised, “usu- ally increases the likelihood of a trial outcome unfavorable to the defendant.” 1, n. 8 That right is based on the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty. See (195). Because harm is irrelevant to the basis underlying the right, the Court has deemed a violation of that right structural error. See United States v. 548 U.S. 140, 149, n. 4 (2006). Second, an error has been deemed structural if the effects of the error are simply too hard to measure. For example, when a defendant is denied the right to select his or her own attorney, the precise “effect of the violation cannot be ascertained.” ). Because the government will, as a result, find it almost impossible to show that the error was “harmless beyond a reasonable doubt,” Chap, the efficiency costs of letting the government try to make the showing are unjustified. Cite as: 582 U. S. (201) Opinion of the Court Third, an error has been deemed structural if the error always results in fundamental unfairness. For example, if an indigent defendant is denied an attorney or if the judge fails to give a reasonable-doubt instruction, the resulting trial is always a fundamentally unfair one. See Gideon v. Wainwright, (right to an attorney); (right to a reasonable-doubt instruction). It there- fore would be futile for the government to try to show harmlessness. These categories are not rigid. In a particular case, more than one of these rationales may be part of the ex- planation for why an error is deemed to be structural. See e.g., at 280–282. For these purposes, however, one point is critical: An error can count as structural even if the error does not lead to fundamental unfairness in every case. See (rejecting as “inconsistent with the reasoning of our precedents” the idea that structural errors “always or necessarily render a trial fundamentally unfair and unreliable” (emphasis deleted)). B As noted above, a violation of the right to a public trial is a structural error. See It is relevant to determine why that is so. In particular, the question is whether a public-trial violation counts as structural be- cause it always leads to fundamental unfairness or for some other reason. In the state court prohibited the public from viewing a weeklong suppression hearing out of concern for the privacy of persons other than those on trial. See at 41–43. Although it recog- nized that there would be instances where closure was justified, this Court noted that “such circumstances will be rare” and that the closure in question was unjustified. 8 WEAVER v. MASSACHUSETTS Opinion of the Court 48. Still, the Court did not order a new trial. at 49–50. Instead it ordered a new suppression hearing that was open to the public. If the same evidence was found admissible in that renewed pretrial proceeding, the Court held, no new trial as to guilt would be neces- sary. This was despite the structural aspect of the violation. Some 25 years after the decision, the Court issued its per curiam ruling in Presley v. Georgia. 558 U.S. 209. In that case, as here, the courtroom was closed to the public during jury voir dire. Unlike here, however, there was a trial objection to the closure, and the issue was raised on direct appeal. –211. On review of the State Supreme Court’s decision allowing the closure, this Court expressed concern that the state court’s reasoning would allow the courtroom to be closed during jury selection “whenever the trial judge decides, for whatever reason, that he or she would prefer to fill the courtroom with potential jurors rather than spectators.” Although the Court expressly noted that courtroom closure may be ordered in some circumstances, the Court also stated that it was “still incumbent upon” the trial court “to consider all reasonable alternatives to closure.” –216. These opinions teach that courtroom closure is to be avoided, but that there are some circumstances when it is justified. The problems that may be encountered by trial courts in deciding whether some closures are necessary, or even in deciding which members of the public should be admitted when seats are scarce, are difficult ones. For example, there are often preliminary instructions that a judge may want to give to the venire as a whole, rather than repeating those instructions (perhaps with uninten- tional differences) to several groups of potential jurors. On the other hand, various constituencies of the public— the family of the accused, the family of the victim, mem- Cite as: 582 U. S. (201) 9 Opinion of the Court bers of the press, and other persons—all have their own interests in observing the selection of jurors. How best to age these problems is not a topic discussed at length in any decision or commentary the Court has found. So although the public-trial right is structural, it is subject to exceptions. See Simonson, The Criminal Court Audience in a Post-Trial World, 2219–2222 (2014) (discussing situations in which a trial court may order a courtroom closure). Though these cases should be rare, a judge may deprive a defendant of his right to an open courtroom by making proper factual findings in support of the decision to do so. See The fact that the public-trial right is subject to these exceptions suggests that not every public-trial violation results in fundamental unfairness. A public-trial violation can occur, moreover, as it did in Presley, simply because the trial court omits to make the proper findings before closing the courtroom, even if those findings might have been fully supported by the evidence. See 558 U.S., It would be unconvincing to deem a trial fundamentally unfair just because a judge omitted to announce factual findings before making an otherwise valid decision to order the courtroom temporarily closed. As a result, it would be likewise unconvincing if the Court had said that a public-trial violation always leads to a fundamentally unfair trial. Indeed, the Court has not said that a public-trial viola- tion renders a trial fundamentally unfair in every case. In the two cases in which the Court has discussed the rea- sons for classifying a public-trial violation as structural error, the Court has said that a public-trial violation is structural for a different reason: because of the “difficulty of assessing the effect of the error.” 548 U.S., ; see also The public-trial right also protects some interests that do not belong to the defendant. After all, the right to an 10 WEAVER v. MASSACHUSETTS Opinion of the Court open courtroom protects the rights of the public at large, and the press, as well as the rights of the accused. See, e.g., Press-Enterprise ; Richmond News- papers, So one other factor leading to the classification of structural error is that the public-trial right furthers interests other than protecting the defendant against unjust conviction. These precepts confirm the conclusion the Court now reaches that, while the public-trial right is important for fundamental reasons, in some cases an unlawful closure might take place and yet the trial still will be fundamen- tally fair from the defendant’s standpoint. III The Court now turns to the proper remedy for address- ing the violation of a structural right, and in particular the right to a public trial. Despite its name, the term “struc- tural error” carries with it no talisic significance as a doctrinal matter. It means only that the government is not entitled to deprive the defendant of a new trial by showing that the error was “harmless beyond a reasonable doubt.” Chap, 386 U.S., Thus, in the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the defendant gener- ally is entitled to “automatic reversal” regardless of the error’s actual “effect on the outcome.” The question then becomes what showing is necessary when the defendant does not preserve a structural error on direct review but raises it later in the context of an ineffective-assistance-of-counsel claim. To obtain relief on the basis of ineffective assistance of counsel, the defendant as a general rule bears the burden to meet two standards. First, the defendant must show deficient perforce— that the attorney’s error was “so serious that counsel was Cite as: 582 U. S. (201) 11 Opinion of the Court not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” v. Washington, 466 U.S. 668, 68 Second, the defendant must show that the attorney’s error “prejudiced the defense.” The prejudice showing is in most cases a necessary part of a claim. The reason is that a defendant has a right to effective representation, not a right to an attor- ney who performs his duties “mistake-free.” Gonzalez- 548 U.S., at 14. As a rule, therefore, a “violation of the Sixth Amendment right to effective representation is not ‘complete’ until the defendant is prejudiced.” (emphasis deleted); see also 128 (2011); 30 That said, the concept of prejudice is defined in different ways depending on the context in which it appears. In the ordinary case, prejudice means “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” But the Court cautioned that the prejudice inquiry is not meant to be applied in a “me- chanical” fashion. For when a court is evalu- ating an ineffective-assistance claim, the ultimate inquiry must concentrate on “the fundamental fairness of the proceeding.” Petitioner therefore argues that under a proper interpretation of even if there is no showing of a reasonable probability of a different outcome, relief still must be granted if the convicted person shows that attorney errors rendered the trial fundamentally unfair. For the analytical purposes of this case, the Court will assume that petitioner’s interpretation of is the correct one. In light of the Court’s ultimate holding, however, the Court need not decide that question here. As explained above, not every public-trial violation will in fact lead to a fundamentally unfair trial. See at 10. Nor can it be said that the failure to object to a public- trial violation always deprives the defendant of a reason- 12 WEAVER v. MASSACHUSETTS Opinion of the Court able probability of a different outcome. Thus, when a de- fendant raises a public-trial violation via an ineffective- assistance-of-counsel claim, prejudice is not shown automatically. Instead, the burden is on the de- fendant to show either a reasonable probability of a differ- ent outcome in his or her case or, as the Court has as- sumed for these purposes, see to show that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair. Neither the reasoning nor the holding here calls into question the Court’s precedents determining that certain errors are deemed structural and require reversal because they cause fundamental unfairness, either to the defend- ant in the specific case or by pervasive undermining of the systemic requirements of a fair and open judicial process. See Murray, A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 191, (201) )). Those precedents include 508 U.S., at 28– (failure to give a reasonable-doubt instruction); Tumey v. Ohio, 23 U.S. 510, 535 (192) (biased judge); and Vasquez v. 44 U.S., at 261–264 (exclusion of grand jurors on the basis of race). See (describing each of these errors as structural). This Court, in addition, has granted automatic relief to defendants who prevailed on claims alleging race or gender discrimination in the selec- tion of the petit jury, see 46 U.S. 9, ; J. E. 511 U.S. 12, 145–146 (1994), though the Court has yet to label those errors structural in express terms, see, e.g., The errors in those cases necessitated automatic Cite as: 582 U. S. (201) 13 Opinion of the Court reversal after they were preserved and then raised on direct appeal. And this opinion does not address whether the result should be any different if the errors were raised instead in an ineffective-assistance claim on collateral review. The reason for placing the burden on the petitioner in this case, however, derives both from the nature of the error, see –12, and the difference between a public-trial violation preserved and then raised on direct review and a public-trial violation raised as an ineffective- assistance-of-counsel claim. As explained above, when a defendant objects to a courtroom closure, the trial court can either order the courtroom opened or explain the reasons for keeping it closed. See –9. When a defendant first raises the closure in an ineffective- assistance claim, however, the trial court is deprived of the chance to cure the violation either by opening the courtroom or by explaining the reasons for closure. Furthermore, when state or federal courts adjudicate errors objected to during trial and then raised on direct review, the systemic costs of remedying the error are diminished to some extent. That is because, if a new trial is ordered on direct review, there may be a reasonable chance that not too much time will have elapsed for wit- ness memories still to be accurate and physical evidence not to be lost. There are also advantages of direct judicial supervision. Reviewing courts, in the regular course of the appellate process, can give instruction to the trial courts in a familiar context that allows for elaboration of the rele- vant principles based on review of an adequate record. For instance, in this case, the factors and circumstances that might justify a temporary closure are best considered in the regular appellate process and not in the context of a later proceeding, with its added time delays. When an ineffective-assistance-of-counsel claim is raised in postconviction proceedings, the costs and uncertainties 14 WEAVER v. MASSACHUSETTS Opinion of the Court of a new trial are greater because more time will have elapsed in most cases. The finality interest is more at risk, see –694 (noting the “profound importance of finality in criminal proceedings”), and direct review often has given at least one opportunity for an appellate review of trial proceedings. These differ- ences justify a different standard for evaluating a struc- tural error depending on whether it is raised on direct review or raised instead in a claim alleging ineffective assistance of counsel. In sum, “[a]n ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial,” thus undermining the final- ity of jury verdicts. 105 (2011). For this reason, the rules governing ineffec- tive-assistance claims “must be applied with scrupulous care.” IV The final inquiry concerns the ineffective-assistance claim in this case. Although the case comes on the as- sumption that petitioner has shown deficient perforce by counsel, he has not shown prejudice in the ordinary sense, i.e., a reasonable probability that the jury would not have convicted him if his attorney had objected to the closure. It is of course possible that potential jurors might have behaved differently if petitioner’s family had been present. And it is true that the presence of the public might have had some bearing on juror reaction. But here petitioner offered no “evidence or legal argument establishing preju- dice” in the sense of a reasonable probability of a different outcome but for counsel’s failure to object. App. to Pet. for Cert. 64a; see In other circumstances a different result might obtain. If, for instance, defense counsel errs in failing to object Cite as: 582 U. S. (201) 15 Opinion of the Court when the government’s main witness testifies in secret, then the defendant might be able to show prejudice with little more detail. See Even in those circumstances, however, the burden would remain on the defendant to make the prejudice showing, because a public-trial violation does not always lead to a fundamen- tally unfair trial, see In light of the above assumption that prejudice can be shown by a demonstration of fundamental unfairness, see the remaining question is whether petitioner has shown that counsel’s failure to object rendered the trial fundamentally unfair. See The Court concludes that petitioner has not made the showing. Although petitioner’s mother and her minister were indeed excluded from the courtroom for two days during jury selection, petitioner’s trial was not conducted in secret or in a remote place. Cf. In re Oliver, 333 U.S. 25, 269, n. 22 (1948). The closure was limited to the jury voir dire; the courtroom remained open during the eviden- tiary phase of the trial; the closure decision apparently was made by court officers rather than the judge; there were y members of the venire who did not become jurors but who did observe the proceedings; and there was a record made of the proceedings that does not indicate any basis for concern, other than the closure itself. There has been no showing, furthermore, that the po- tential harms flowing from a courtroom closure came to pass in this case. For example, there is no suggestion that any juror lied during voir dire; no suggestion of misbehav- ior by the prosecutor, judge, or any other party; and no suggestion that any of the participants failed to approach their duties with the neutrality and serious purpose that our system deds. It is true that this case comes here on the assumption that the closure was a Sixth Amendment violation. And it must be recognized that open trials ensure respect for the 16 WEAVER v. MASSACHUSETTS Opinion of the Court justice system and allow the press and the public to judge the proceedings that occur in our Nation’s courts. Even so, the violation here did not pervade the whole trial or lead to basic unfairness. In sum, petitioner has not shown a reasonable probabil- ity of a different outcome but for counsel’s failure to object, and he has not shown that counsel’s shortcomings led to a fundamentally unfair trial. He is not entitled to a new trial. * * * In the criminal justice system, the constant, indeed unending, duty of the judiciary is to seek and to find the proper balance between the necessity for fair and just trials and the importance of finality of judgments. When a structural error is preserved and raised on direct review, the balance is in the defendant’s favor, and a new trial generally will be granted as a matter of right. When a structural error is raised in the context of an ineffective- assistance claim, however, finality concerns are far more pronounced. For this reason, and in light of the other circumstances present in this case, petitioner must show prejudice in order to obtain a new trial. As explained above, he has not made the required showing. The judg- ment of the Massachusetts Supreme Judicial Court is affirmed. It is so ordered. Cite as: 582 U. S. (201) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES No. 16–240 KENTEL MYRONE WEAVER, PETITIONER v.

Justice Scalia

majority

Midland Asphalt Corp. v. United States

https://www.courtlistener.com/opinion/112226/midland-asphalt-corp-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/112226/

1988-061

Federal Rule of Criminal Procedure 6(e)(2) prohibits public disclosure by Government attorneys of "matters occurring before the grand jury" except in certain specified circumstances. This case presents the question whether a district court order denying a criminal defendant's motion to dismiss an indictment for an alleged violation of Rule 6(e) is immediately appealable. I On January 23, 1987, a federal grand jury in the Western District of New York returned an indictment against petitioners Midland Asphalt Corporation, a business engaged in the sale of liquid bituminous material used to resurface roads, and Albert C. Litteer, Midland's president and part owner. The indictment alleged that they had violated § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S. C. § 1, by conspiring with other unindicted persons to allocate contracts and to submit collusive bids to the State of New York and certain counties in western New York. On July 21, 1987, petitioners moved to dismiss the indictment on grounds which included an alleged violation by federal prosecutors of Rule 6(e)(2). Petitioners' Rule 6(e) allegations arose from the following facts: When the grand jury that ultimately returned the Sherman Act indictment was sitting, Midland and another company under investigation brought suit seeking to have the Government pay for the cost of compliance with grand jury subpoenas. In re Grand Jury Subpoenas to Midland Asphalt Corp. and Krantz Asphalt Co., Civ. No. 85-633E (WDNY, Feb. 12, 1985) (In re Grand Jury Subpoenas). In *796 that action Midland filed a motion asking that the District Court compel the Government to retain its rough and final notes of witness interviews. In response, the Government filed a memorandum in which it agreed to retain rough notes and final reports prepared by prosecutors and other Government personnel during its investigation of the western New York road-paving business. Approximately one year later, the defendants in a separate criminal case, also involving allegations of asphalt contract bid rigging in western New York State, United States v. Allegany Bitumens, Inc., Crim. No. 86-59C (WDNY, Apr. 14, 1986), filed a similar motion to require the Government to preserve its interview notes. Again the Government filed a memorandum agreeing to do so, noting that it had already made such a commitment to the District Court, and attaching a copy of its earlier memorandum in the In re Grand Jury Subpoenas case. Petitioners' motion to dismiss the indictment in the present case alleged that the Government's filing, in Allegany Bitumens, of its memorandum from the In re Grand Jury Subpoenas case, publicly "disclose[d] matters occurring before the grand jury" in violation of Rule 6(e)(2). Specifically, the motion alleged that the memorandum disclosed the nature and focus of the investigation, the name of a grand jury witness, and the fact that the witness was to testify as an individual and not as a document custodian for Midland. Finding that the prosecution had not violated Rule 6(e)(2), the District Court denied petitioners' motion to dismiss the indictment. On appeal in the Court of Appeals for the Second Circuit, the Government moved to dismiss for lack of jurisdiction, contending that the District Court's order declining to dismiss the indictment was not a "final decision" under 28 U.S. C. § 1291. Petitioners responded that this Court's decision in United States v. Mechanik, 475 U.S. 66 (1986), in which we held that an alleged violation of Federal Rule of Criminal Procedure 6(d) was rendered harmless beyond a *797 reasonable doubt by a petit jury's guilty verdict, would make district court orders denying motions to dismiss indictments based on alleged violations of Rule 6(e) "effectively unreviewable on appeal from a final judgment," Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978), and hence immediately appealable under the collateral order doctrine, see ibid. The Court of Appeals rejected petitioners' contention on the ground that Rule 6(d), the subsection at issue in Mechanik, exists primarily "to protect the person under investigation from being indicted in the absence of probable cause," 840 F.2d 1040, 1046 (1988), whereas Rule 6(e) serves the different function of "protect[ing] society's interest in keeping secret the identity of grand jury witnesses and persons under investigation," ibid. It concluded that "Mechanik [would not] preclud[e] a federal court of appeals from exercising post-trial review of an order denying a motion to dismiss an indictment for violation of Rule 6(e)," ibid., that denials of motions to dismiss indictments for alleged violations of Rule 6(e) are therefore not immediately appealable under the collateral order doctrine, and that the Government's motion to dismiss the appeal in the case before it should be granted. We granted certiorari to resolve a disagreement among the Courts of Appeals.[1] 487 U.S. 1217 (1988). *798 II In the Judiciary Act of 1789, 1 Stat. 73, the First Congress established the principle that only "final judgments and decrees" of the federal district courts may be reviewed on appeal. Id., at 84. The statute has changed little since then: 28 U.S. C. § 1291 today provides that federal courts of appeals "shall have jurisdiction of appeals from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court." For purposes of this provision, a final judgment is normally deemed not to have occurred "until there has been a decision by the District Court that `ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Van Cauwenberghe v. Biard, 486 U.S. 517, 521 (1988), quoting Catlin v. United States, 324 U.S. 229, 233 (1945). In criminal cases, this prohibits appellate review until after conviction and imposition of sentence. Flanagan v. United States, 465 U.S. 259, 263 (1984); Berman v. United States, 302 U.S. 211, 212 (1937). Since petitioners have not yet even been tried, much less convicted or sentenced, it is plain that the District Court's order denying their motion to dismiss falls within this prohibition. In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), we carved out a narrow exception to the normal application of the final judgment rule, which has come to be known as the collateral order doctrine. This exception considers as "final judgments," even though they do not "end the litigation on the merits," decisions "which finally determine claims of right separate from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate jurisdiction be deferred until the whole case is adjudicated." *799 Id., at 546. To fall within the limited class of final collateral orders, an order must (1) "conclusively determine the disputed question," (2) "resolve an important issue completely separate from the merits of the action," and (3) "be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, supra, at 468. We have interpreted the collateral order exception "with the utmost strictness" in criminal cases. Flanagan, supra, at 265. Although we have had numerous opportunities in the 40 years since Cohen to consider the appealability of prejudgment orders in criminal cases, we have found denials of only three types of motions to be immediately appealable: motions to reduce bail, Stack v. Boyle, 342 U.S. 1 (1951), motions to dismiss on double jeopardy grounds, Abney v. United States, 431 U.S. 651 (1977), and motions to dismiss under the Speech or Debate Clause, Helstoski v. Meanor, 442 U.S. 500 (1979). These decisions, along with the far more numerous ones in which we have refused to permit interlocutory appeals, manifest the general rule that the third prong of the Coopers & Lybrand test is satisfied only where the order at issue involves "an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial." United States v. MacDonald, 435 U.S. 850, 860 (1978). We have little difficulty concluding that an order denying a motion to dismiss an indictment for an alleged violation of Rule 6(e) does not satisfy our "stringent conditions for qualification as an immediately appealable collateral order." Flanagan, supra, at 270. Whether a violation of Rule 6(e) will be reviewable on appeal following conviction, as the Court of Appeals below held, 840 F.2d, at 1046, or will be rendered harmless as a matter of law by the conviction, as the Ninth Circuit has decided, United States v. Benjamin, 812 F.2d 548, 553 (1987), a district court order declining to dismiss an indictment for an alleged violation of the Rule fails one or the other of the final two requirements set out in *800 Coopers & Lybrand. If Mechanik is not extended beyond violations of Rule 6(d), and if Rule 6(e) violations can accordingly provide the basis for reversal of a conviction on appeal, it is obvious that they are not "effectively unreviewable on appeal from a final judgment." Coopers & Lybrand, 437 U. S., at 468. If, on the other hand, Mechanik is applied to bar postconviction review of alleged violations of Rule 6(e), it will be because the purpose of that Rule is the same as the purpose of Rule 6(d), namely, to "protec[t] against the danger that a defendant will be required to defend against a charge for which there is no probable cause to believe him guilty," Mechanik, 475 U. S., at 70, which danger has demonstrably been avoided whenever there is a guilty verdict at trial. If this latter analysis is correct, however, orders denying motions to dismiss for Rule 6(e) violations cannot be said to "resolve an important issue completely separate from the merits of the action," Coopers & Lybrand, supra, at 468, but rather involve "considerations enmeshed in the merits of the dispute," Van Cauwenberghe, supra, at 528, and would "affect . . . or be affected by" the decision on the merits of the case, DiBella v. United States, 369 U.S. 121, 126 (1962) (emphasis added). Thus, whatever view one takes of the scope of Mechanik (an issue we need not resolve here), the present order is not immediately appealable. Petitioners attempt to avoid this reasoning by suggesting that orders of this sort, even if theoretically reviewable after conviction, are "effectively unreviewable," Coopers & Lybrand, supra, at 468, once trial has been held, because they pertain to a right "the . . . practical value of which [is] destroyed if it [is] not vindicated before trial," MacDonald, supra, at 860 — namely, the right not merely not to be convicted, but not to be tried at all "on an indictment returned by a grand jury whose decision to indict was substantially influenced by the government's violation of 6(e)." Brief for Petitioner 24. We do not agree. It is true that deprivation of the right not to be tried satisfies the Coopers & Lybrand *801 requirement of being "effectively unreviewable on appeal from a final judgment." See Abney v. United States, supra; Helstoski v. Meanor, supra. One must be careful, however, not to play word games with the concept of a "right not to be tried." In one sense, any legal rule can be said to give rise to a "right not to be tried" if failure to observe it requires the trial court to dismiss the indictment or terminate the trial. But that is assuredly not the sense relevant for purposes of the exception to the final judgment rule. "Certainly, the fact that this Court has held dismissal of the indictment to be the proper remedy when the Sixth Amendment right to a speedy trial has been violated. . . does not mean that a defendant enjoys a `right not to be tried' which must be safeguarded by interlocutory appellate review. Dismissal of the indictment is the proper sanction when a defendant has been granted immunity from prosecution, when his indictment is defective, or, usually, when the only evidence against him was seized in violation of the Fourth Amendment. Obviously, however, this has not led the Court to conclude that such defendants can pursue interlocutory appeals." MacDonald, supra, at 860, n. 7. There is a "crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges." United States v. Hollywood Motor Car Co., 458 U.S. 263, 269 (1982). A right not to be tried in the sense relevant to the Cohen exception rests upon an explicit statutory or constitutional guarantee that trial will not occur — as in the Double Jeopardy Clause ("nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"), see Abney v. United States, supra, or the Speech or Debate Clause ("[F]or any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place"), see Helstoski v. Meanor, supra. Neither Rule 6(e) nor the Constitution affords such a guarantee in the event of a violation of grand jury secrecy. *802 The text of Rule 6(e) contains no hint that a governmental violation of its prescriptions gives rise to a right not to stand trial. To be sure, we held last Term in Bank of Nova Scotia v. United States, 487 U.S. 250, 263 (1988), that a district court has authority in certain circumstances to dismiss an indictment for violations of Rule 6(e). But as just noted, that has nothing to do with a "right not to be tried" in the sense relevant here. As for the Grand Jury Clause of the Fifth Amendment, that reads in relevant part as follows: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." That does indeed confer a right not to be tried (in the pertinent sense) when there is no grand jury indictment. Undoubtedly the common-law protections traditionally associated with the grand jury attach to the grand jury required by this provision — including the requisite secrecy of grand jury proceedings. But that is far from saying that every violation of those protections, like the lack of a grand jury indictment itself, gives rise to a right not to be tried. We have held that even the grand jury's violation of the defendant's right against self-incrimination does not trigger the Grand Jury Clause's "right not to be tried." Lawn v. United States, 355 U.S. 339, 349 (1958). Only a defect so fundamental that it causes the grand jury no longer to be a grand jury, or the indictment no longer to be an indictment, gives rise to the constitutional right not to be tried. An isolated breach of the traditional secrecy requirements does not do so. * * * For these reasons, the Court of Appeals was correct to grant the Government's motion to dismiss the appeal, and its judgment is Affirmed.

Federal Rule of Criminal Procedure 6(e)(2) prohibits public disclosure by Government attorneys of "matters occurring before the grand jury" except in certain specified circumstances. This case presents the question whether a district court order denying a criminal defendant's motion to dismiss an indictment for an alleged violation of Rule 6(e) is immediately appealable. I On January 23, a federal grand jury in the Western District of New York returned an indictment against petitioners Midland Asphalt Corporation, a business engaged in the sale of liquid bituminous material used to resurface roads, and Albert C. Litteer, Midland's president and part owner. The indictment alleged that they had violated 1 of the Sherman Act, as amended, 15 U.S. C. 1, by conspiring with other unindicted persons to allocate contracts and to submit collusive bids to the State of New York and certain counties in western New York. On July 21, petitioners moved to dismiss the indictment on grounds which included an alleged violation by federal prosecutors of Rule 6(e)(2). Petitioners' Rule 6(e) allegations arose from the following facts: When the grand jury that ultimately returned the Sherman Act indictment was sitting, Midland and another company under investigation brought suit seeking to have the Government pay for the cost of compliance with grand jury subpoenas. In re Grand Jury Subpoenas to Midland Asphalt Corp. and Krantz Asphalt Co., Civ. No. 85-633E (WDNY, Feb. 12, 1985) (In re Grand Jury Subpoenas). In *796 that action Midland filed a motion asking that the District Court compel the Government to retain its rough and final notes of witness interviews. In response, the Government filed a memorandum in which it agreed to retain rough notes and final reports prepared by prosecutors and other Government personnel during its investigation of the western New York road-paving business. Approximately one year later, the defendants in a separate criminal case, also involving allegations of asphalt contract bid rigging in western New York State, United v. Allegany Bitumens, Inc., Crim. No. 86-59C filed a similar motion to require the Government to preserve its interview notes. Again the Government filed a memorandum agreeing to do so, noting that it had already made such a commitment to the District Court, and attaching a copy of its earlier memorandum in the In re Grand Jury Subpoenas case. Petitioners' motion to dismiss the indictment in the present case alleged that the Government's filing, in Allegany Bitumens, of its memorandum from the In re Grand Jury Subpoenas case, publicly "disclose[d] matters occurring before the grand jury" in violation of Rule 6(e)(2). Specifically, the motion alleged that the memorandum disclosed the nature and focus of the investigation, the name of a grand jury witness, and the fact that the witness was to testify as an individual and not as a document custodian for Midland. Finding that the prosecution had not violated Rule 6(e)(2), the District Court denied petitioners' motion to dismiss the indictment. On appeal in the Court of Appeals for the Second Circuit, the Government moved to dismiss for lack of jurisdiction, contending that the District Court's order declining to dismiss the indictment was not a "final decision" under 28 U.S. C. 1291. Petitioners responded that this Court's decision in United in which we that an alleged violation of Federal Rule of Criminal Procedure 6(d) was rendered harmless beyond a *797 reasonable doubt by a petit jury's guilty verdict, would make district court orders denying motions to dismiss indictments based on alleged violations of Rule 6(e) "effectively unreviewable on appeal from a final judgment," Coopers & and hence immediately appealable under the collateral order doctrine, see The Court of Appeals rejected petitioners' contention on the ground that Rule 6(d), the subsection at issue in Mechanik, exists primarily "to protect the person under investigation from being indicted in the absence of probable cause," whereas Rule 6(e) serves the different function of "protect[ing] society's interest in keeping secret the identity of grand jury witnesses and persons under investigation," It concluded that "Mechanik [would not] preclud[e] a federal court of appeals from exercising post-trial review of an order denying a motion to dismiss an indictment for violation of Rule 6(e)," that denials of motions to dismiss indictments for alleged violations of Rule 6(e) are therefore not immediately appealable under the collateral order doctrine, and that the Government's motion to dismiss the appeal in the case before it should be granted. We granted certiorari to resolve a disagreement among the Courts of Appeals.[1] *798 II In the Judiciary Act of 1789, the First Congress established the principle that only "final judgments and decrees" of the federal district courts may be reviewed on appeal. The statute has changed little since then: 28 U.S. C. 1291 today provides that federal courts of appeals "shall have jurisdiction of appeals from all final decisions of the district courts except where a direct review may be had in the Supreme Court." For purposes of this provision, a final judgment is normally deemed not to have occurred "until there has been a decision by the District Court that `ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Van quoting In criminal cases, this prohibits appellate review until after conviction and imposition of sentence. ; Since petitioners have not yet even been tried, much less convicted or sentenced, it is plain that the District Court's order denying their motion to dismiss falls within this prohibition. In we carved out a narrow exception to the normal application of the final judgment rule, which has come to be known as the collateral order doctrine. This exception considers as "final judgments," even though they do not "end the litigation on the merits," decisions "which finally determine claims of right separate from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate jurisdiction be deferred until the whole case is adjudicated." *799 To fall within the limited class of final collateral orders, an order must (1) "conclusively determine the disputed question," (2) "resolve an important issue completely separate from the merits of the action," and (3) "be effectively unreviewable on appeal from a final judgment." Coopers & at We have interpreted the collateral order exception "with the utmost strictness" in criminal cases. Although we have had numerous opportunities in the 40 years since Cohen to consider the appealability of prejudgment orders in criminal cases, we have found denials of only three types of motions to be immediately appealable: motions to reduce bail, motions to dismiss on double jeopardy grounds, and motions to dismiss under the Speech or Debate Clause, These decisions, along with the far more numerous ones in which we have refused to permit interlocutory appeals, manifest the general rule that the third prong of the Coopers & test is satisfied only where the order at issue involves "an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial." United We have little difficulty concluding that an order denying a motion to dismiss an indictment for an alleged violation of Rule 6(e) does not satisfy our "stringent conditions for qualification as an immediately appealable collateral order." Whether a violation of Rule 6(e) will be reviewable on appeal following conviction, as the Court of Appeals below 840 F.2d, at or will be rendered harmless as a matter of law by the conviction, as the Ninth Circuit has decided, United a district court order declining to dismiss an indictment for an alleged violation of the Rule fails one or the other of the final two requirements set out in *800 Coopers & If Mechanik is not extended beyond violations of Rule 6(d), and if Rule 6(e) violations can accordingly provide the basis for reversal of a conviction on appeal, it is obvious that they are not "effectively unreviewable on appeal from a final judgment." Coopers & 437 U. S., at If, on the other hand, Mechanik is applied to bar postconviction review of alleged violations of Rule 6(e), it will be because the purpose of that Rule is the same as the purpose of Rule 6(d), namely, to "protec[t] against the danger that a defendant will be required to defend against a charge for which there is no probable cause to believe him guilty," Mechanik, which danger has demonstrably been avoided whenever there is a guilty verdict at trial. If this latter analysis is correct, however, orders denying motions to dismiss for Rule 6(e) violations cannot be said to "resolve an important issue completely separate from the merits of the action," Coopers & at but rather involve "considerations enmeshed in the merits of the dispute," Van and would "affect or be affected by" the decision on the merits of the case, Thus, whatever view one takes of the scope of Mechanik (an issue we need not resolve here), the present order is not immediately appealable. Petitioners attempt to avoid this reasoning by suggesting that orders of this sort, even if theoretically reviewable after conviction, are "effectively unreviewable," Coopers & at once trial has been because they pertain to a right "the practical value of which [is] destroyed if it [is] not vindicated before trial," at — namely, the right not merely not to be convicted, but not to be tried at all "on an indictment returned by a grand jury whose decision to indict was substantially influenced by the government's violation of 6(e)." Brief for Petitioner 24. We do not agree. It is true that deprivation of the right not to be tried satisfies the Coopers & *801 requirement of being "effectively unreviewable on appeal from a final judgment." See One must be careful, however, not to play word games with the concept of a "right not to be tried." In one sense, any legal rule can be said to give rise to a "right not to be tried" if failure to observe it requires the trial court to dismiss the indictment or terminate the trial. But that is assuredly not the sense relevant for purposes of the exception to the final judgment rule. "Certainly, the fact that this Court has dismissal of the indictment to be the proper remedy when the Sixth Amendment right to a speedy trial has been violated. does not mean that a defendant enjoys a `right not to be tried' which must be safeguarded by interlocutory appellate review. Dismissal of the indictment is the proper sanction when a defendant has been granted immunity from prosecution, when his indictment is defective, or, usually, when the only evidence against him was seized in violation of the Fourth Amendment. Obviously, however, this has not led the Court to conclude that such defendants can pursue interlocutory appeals." at n. 7. There is a "crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges." United v. Hollywood Motor Car Co., 458 U.S. A right not to be tried in the sense relevant to the Cohen exception rests upon an explicit statutory or constitutional guarantee that trial will not occur — as in the Double Jeopardy Clause ("nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"), see or the Speech or Debate Clause ("[F]or any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place"), see Neither Rule 6(e) nor the Constitution affords such a guarantee in the event of a violation of grand jury secrecy. *802 The text of Rule 6(e) contains no hint that a governmental violation of its prescriptions gives rise to a right not to stand trial. To be sure, we last Term in Bank of Nova Scotia v. United that a district court has authority in certain circumstances to dismiss an indictment for violations of Rule 6(e). But as just noted, that has nothing to do with a "right not to be tried" in the sense relevant here. As for the Grand Jury Clause of the Fifth Amendment, that reads in relevant part as follows: "No person shall be to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." That does indeed confer a right not to be tried (in the pertinent sense) when there is no grand jury indictment. Undoubtedly the common-law protections traditionally associated with the grand jury attach to the grand jury required by this provision — including the requisite secrecy of grand jury proceedings. But that is far from saying that every violation of those protections, like the lack of a grand jury indictment itself, gives rise to a right not to be tried. We have that even the grand jury's violation of the defendant's right against self-incrimination does not trigger the Grand Jury Clause's "right not to be tried." Lawn v. United Only a defect so fundamental that it causes the grand jury no longer to be a grand jury, or the indictment no longer to be an indictment, gives rise to the constitutional right not to be tried. An isolated breach of the traditional secrecy requirements does not do so. * * * For these reasons, the Court of Appeals was correct to grant the Government's motion to dismiss the appeal, and its judgment is Affirmed.

Justice Brennan

majority

Union Labor Life Ins. Co. v. Pireno

https://www.courtlistener.com/opinion/110772/union-labor-life-ins-co-v-pireno/

https://www.courtlistener.com/api/rest/v3/clusters/110772/

1981-149

In these cases we consider an alleged conspiracy to eliminate price competition among chiropractors, by means of a "peer review committee" that advised an insurance company whether particular chiropractors' treatments and fees were "necessary" and "reasonable." The question presented is whether the alleged conspiracy is exempt from federal antitrust laws as part of the "business of insurance" within the meaning of the McCarran-Ferguson Act.[1] I Petitioners are the New York State Chiropractic Association (NYSCA), a professional association of chiropractors, and the Union Labor Life Insurance Co. (ULL), a Maryland insurer doing business in New York. As required by New York law, ULL's health insurance policies cover certain policyholder claims for chiropractic treatments. But certain ULL policies limit the company's liability to "the reasonable charges" for "necessary medical care and services." *123 App. 19a, 22a (emphasis added). Accordingly, when presented with a policyholder claim for reimbursement for chiropractic treatments, ULL must determine whether the treatments were necessary and whether the charges for them were reasonable. In making some of these determinations, ULL has arranged with NYSCA to use the advice of NYSCA's Peer Review Committee. The Committee was established by NYSCA in 1971, primarily to aid insurers in evaluating claims for chiropractic treatments.[2] It is composed of 10 practicing New York chiropractors, who serve on a voluntary basis. At the request of an insurer, the Committee will examine a chiropractor's treatments and charges in a particular case, and will render an opinion on the necessity for the treatments and the reasonableness of the charges made for them. The opinion will be based upon such considerations as the treating chiropractor's experience and specialty degrees; the location of his office; the number of visits and time spent with the patient; the patient's age, occupation, general physical condition, and history of previous treatment; and X-ray findings. Respondent is a chiropractor licensed and practicing in the State of New York. On a number of occasions his treatments of ULL policyholders, and his charges for those treatments, have been referred by ULL to the Committee, which has sometimes concluded that his treatments were unnecessary or his charges unreasonable. Petitioners assert that respondent has treated his patients "in a manner calculated to maximize the number of treatments for a particular condition, and that his fees for these treatments are unusually high." 650 F.2d 387, 389 (CA2 1981). Respondent, for his part, contends that the members of the Committee "practice `antiquated' techniques that they seek to impose on their more innovative competitors." Ibid. *124 This dispute resulted in the present suit, brought by respondent in the United States District Court for the Southern District of New York. Respondent alleged that the peer review practices of petitioners violated § 1 of the Sherman Act.[3] In particular, he claimed that petitioners and others had used the Committee as the vehicle for a conspiracy to fix the prices that chiropractors, including respondent, would be permitted to charge for their services. He concluded that he had been restrained from providing his chiropractic services to the public freely and fully, and that would-be recipients of chiropractic services had been deprived of the benefits of competition. Respondent requested, inter alia, declaratory and injunctive relief against ULL's continued use of NYSCA's Peer Review Committee in evaluating policyholders' claims. After extensive discovery, the District Court granted petitioners' motion for summary judgment dismissing respondent's complaint, concluding that ULL's use of NYSCA's Peer Review Committee was exempted from antitrust scrutiny by the McCarran-Ferguson Act. App. to Pet. for Cert. in No. 81-389, pp. 20a-37a. The court noted that three requirements must be met in order to obtain the McCarran-Ferguson exemption: The challenged practices (1) must constitute the "business of insurance," (2) must be regulated by state law, and (3) must not amount to a "boycott, coercion, or intimidation." Id., at 27a-28a. In the court's view, all three of these requirements were satisfied in the present case. In particular, the court held that petitioners' peer review practices constituted the "business of insurance" because they served "to define the precise extent of ULL's *125 contractual obligations ... under [its] policies." Id., at 29a-30a. Moreover, the court determined that the peer review practices "involve[d] the spreading of risk, an indispensable element of the `business of insurance.'" Id., at 30a.[4] Respondents' Sherman Act claim was accordingly dismissed with prejudice. The Court of Appeals for the Second Circuit reversed. 650 F.2d 387 (1981). Relying upon this Court's recent opinion in Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205 (1979), the Court of Appeals concluded that the District Court had erred in holding that ULL's use of NYSCA's Peer Review Committee constituted the "business of insurance."[5] Accordingly, the Court of Appeals remanded the action for further proceedings. We granted certiorari to resolve a conflict among the Courts of Appeals on the question presented.[6] 454 U.S. 1052 (1981). *126 II The only issue before us is whether petitioners' peer review practices are exempt from antitrust scrutiny as part of the "business of insurance." "It is axiomatic that conduct which is not exempt from the antitrust laws may nevertheless be perfectly legal." Group Life & Health Ins. Co. v. Royal Drug Co., supra, at 210, n. 5. Thus in deciding these cases we have no occasion to address the merits of respondent's Sherman Act claims. However, the Sherman Act does express a "longstanding congressional commitment to the policy of free markets and open competition." Community Communications Co. v. Boulder, 455 U.S. 40, 56 (1982); see also United States v. Topco Associates, Inc., 405 U.S. 596, 610 (1972). Accordingly, our precedents consistently hold that exemptions from the antitrust laws must be construed narrowly. FMC v. Seatrain Lines, Inc., 411 U.S. 726, 733 (1973). This principle applies not only to implicit exemptions, see Group Life & Health Ins. Co. v. Royal Drug Co., supra, at 231, but also to express statutory exemptions, see United States v. McKesson & Robbins, Inc., 351 U.S. 305, 316 (1956). In Royal Drug, supra, this Court had occasion to reexamine the scope of the express antitrust exemption provided for the "business of insurance" by § 2(b) of the McCarran-Ferguson Act. We hold that decision of the question before us is controlled by Royal Drug. The principal petitioner in Royal Drug was a Texas insurance company, Blue Shield, that offered policies entitling insured persons to purchase prescription drugs for $2 each from any pharmacy participating in a "Pharmacy Agreement" with Blue Shield; policyholders were also allowed to purchase prescription drugs from a nonparticipating pharmacy, but in that event they would have to pay full price for the drugs and would be reimbursed by Blue Shield for only a part of that price. Blue Shield offered Pharmacy Agreements to all licensed pharmacies in Texas, but participating pharmacies were required to sell prescription drugs to Blue *127 Shield's policyholders for $2 each, and were reimbursed only for their cost in acquiring the drugs thus sold. "Thus, only pharmacies that [could] afford to distribute prescription drugs for less than this $2 markup [could] profitably participate in the plan." 440 U.S., at 209 (footnote omitted). Respondents in Royal Drug were the owners of nonparticipating pharmacies. They sued Blue Shield and several participating pharmacies under § 1 of the Sherman Act, alleging that the Pharmacy Agreements were the instrument by which Blue Shield had conspired with participating pharmacies to fix the retail prices of prescription drugs. Respondents also alleged that the Agreements encouraged Blue Shield's policyholders to avoid nonparticipating pharmacies, thus constituting an unlawful group boycott. The District Court granted summary judgment to Blue Shield and the other petitioners, holding that the challenged Agreements were exempt under § 2(b) of the McCarran-Ferguson Act. But the Court of Appeals disagreed, holding that the Agreements were not the "business of insurance" within the meaning of that Act, and reversed. 440 U.S., at 210. This Court affirmed. Looking to "the structure of the Act and its legislative history," id., at 211, the Court discussed three characteristics of the business of insurance that Congress had intended to exempt through § 2(b). First, after noting that one "indispensable characteristic of insurance" is the "spreading and underwriting of a policyholder's risk," id., at 211-212,[7] the Court observed that parts *128 of the legislative history of the McCarran-Ferguson Act "strongly suggest that Congress understood the business of insurance to be the underwriting and spreading of risk," id., at 220-221. The Court then dismissed Blue Shield's contention that its Pharmacy Agreements involved such activities. "The Pharmacy Agreements ... are merely arrangements for the purchase of goods and services by Blue Shield. By agreeing with pharmacies on the maximum prices it will pay for drugs, Blue Shield effectively reduces the total amount it must pay to its policyholders. The Agreements thus enable Blue Shield to minimize costs and maximize profits. Such cost-savings arrangements may well be sound business practice, and may well inure ultimately to the benefit of policyholders in the form of lower premiums, but they are not the `business of insurance.'" Id., at 214 (footnote omitted). Second, the Court identified "the contract between the insurer and the insured" as "[a]nother commonly understood aspect of the business of insurance." Id., at 215. The Court noted that, in enacting the McCarran-Ferguson Act, Congress had been concerned with the "`relationship between insurer and insured, the type of policy which could be issued, its reliability, interpretation, and enforcement—these were the core of the "business of insurance."'" Id., at 215-216, quoting SEC v. National Securities, Inc., 393 U.S. 453, 460 (1969). The Court then rejected Blue Shield's argument that its Pharmacy Agreements were so closely related to the "reliability, interpretation, and enforcement" of its policies as to fall within the intended scope of § 2(b): "This argument ... proves too much." 440 U.S., at 216. "At the most, the petitioners have demonstrated that the Pharmacy Agreements result in cost savings to Blue Shield which may be reflected in lower premiums if the cost savings are passed on to policyholders. But, in that sense, every business decision made by an insurance company has some impact on its reliability, its ratemaking, *129 and its status as a reliable insurer ... [and thus] could be included in the `business of insurance.' Such a result would be plainly contrary to the statutory language, which exempts the `business of insurance' and not the `business of insurance companies.'" Id., at 216-217. Finally, the Court noted that in enacting the McCarran-Ferguson Act, "the primary concern of both representatives of the insurance industry and the Congress was that cooperative ratemaking efforts be exempt from the antitrust laws." Id., at 221. This was so because of "the widespread view that it [was] very difficult to underwrite risks in an informed and responsible way without intra-industry cooperation." Ibid. The Court was thus reluctant to extend the § 2(b) exemption to the case before it, "because the Pharmacy Agreements involve parties wholly outside the insurance industry." Id., at 231. "There is not the slightest suggestion in the legislative history that Congress in any way contemplated that arrangements such as the Pharmacy Agreements in this case, which involve the mass purchase of goods and services from entities outside the insurance industry, are the `business of insurance.'" Id., at 224 (footnote omitted). In sum, Royal Drug identified three criteria relevant in determining whether a particular practice is part of the "business of insurance" exempted from the antitrust laws by § 2(b): first, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry. None of these criteria is necessarily determinative in itself, but examining the arrangement between petitioners NYSCA and ULL with respect to all three criteria, we do not hesitate to conclude that it is not a part of the "business of insurance." *130 Plainly, ULL's use of NYSCA's Peer Review Committee plays no part in the "spreading and underwriting of a policyholder's risk." Group Life & Health Ins. Co. v. Royal Drug Co., 440 U. S., at 211. Both the "spreading" and the "underwriting" of risk refer in this context to the transfer of risk characteristic of insurance. See n. 7, supra. And as the Court of Appeals below observed: "The risk that an insured will require chiropractic treatment has been transferred from the insured to [ULL] by the very purchase of insurance. Peer review takes place only after the risk has been transferred by means of the policy, and then it functions only to determine whether the risk of the entire loss (the insured's cost of treatment) has been transferred to [ULL]—that is, whether the insured's loss falls within the policy limits." 650 F.2d, at 393. Petitioner ULL argues that the Court of Appeals' analysis is "semantic and unrealistic." Brief for Petitioner ULL 17. Petitioner reasons that "[i]t is inconceivable that Congress would have included risk transfer within the `business of insurance' but excluded a device that helps `determine whether the risk ... has been transferred' and acts as `an aid in determining the scope of the transfer.'" Ibid. We find no merit in this argument, because the challenged peer review arrangement is logically and temporally unconnected to the transfer of risk accomplished by ULL's insurance policies. The transfer of risk from insured to insurer is effected by means of the contract between the parties—the insurance policy—and that transfer is complete at the time that the contract is entered. See 9 G. Couch, Cyclopedia of Insurance Law §§ 39:53, 39:63 (2d ed. 1962). If the policy limits coverage to "necessary" treatments and "reasonable" charges for them, then that limitation is the measure of the risk that has actually been transferred to the insurer: To the extent that *131 the insured pays unreasonable charges for unnecessary treatments, he will not be reimbursed, because the risk of incurring such treatments and charges was never transferred to the insurer, but was instead always retained by the insured. Petitioner's argument contains the unspoken premise that the transfer of risk from an insured to his insurer actually takes place not when the contract between those parties is completed, but rather only when the insured's claim is settled. This premise is contrary to the fundamental principle of insurance that the insurance policy defines the scope of risk assumed by the insurer from the insured. See id., § 39:3; R. Keeton, Insurance Law § 5.1(a) (1971). Turning to the second Royal Drug criterion, it is clear that ULL's use of NYSCA's Peer Review Committee is not an integral part of the policy relationship between insurer and insured. In the first place, the challenged arrangement between ULL and NYSCA is obviously distinct from ULL's contracts with its policyholders. In this sense the challenged arrangement resembles the Pharmacy Agreements in Royal Drug. There the Court rejected the proposition that the Agreements were "`between insurer and insured.'" Group Life & Health Ins. Co. v. Royal Drug Co., supra, at 215, quoting SEC v. National Securities, Inc., 393 U. S., at 460. Rather, it recognized those Agreements as "separate contractual arrangements between Blue Shield and pharmacies engaged in the sale and distribution of goods and services other than insurance." 440 U.S., at 216. Similarly, ULL's use of NYSCA's Peer Review Committee is a separate arrangement between the insurer and third parties not engaged in the business of insurance. Petitioner ULL argues that the challenged peer review practices satisfy this criterion because peer review "directly involves the `interpretation' and `enforcement' of the insurance contract." Brief for Petitioner ULL 16. But this argument is essentially identical to one made and rejected in *132 Royal Drug. Blue Shield there contended that its Pharmacy Agreements "so closely affect[ed] the `reliability, interpretation, and enforcement' of the insurance contract ... as to fall within the exempted area." 440 U.S., at 216 (footnote omitted). This Court noted, however: "The benefit promised to Blue Shield policyholders is that their premiums will cover the cost of prescription drugs except for a $2 charge for each prescription. So long as that promise is kept, policyholders are basically unconcerned with arrangements made between Blue Shield and participating pharmacies." Id., at 213-214 (footnotes omitted). Similarly, when presented with policyholder claims for reimbursement, ULL must decide whether the claims are covered by its policies. But these decisions are entirely ULL's, and its use of NYSCA's Peer Review Committee as an aid in its decisionmaking process is a matter of indifference to the policyholder, whose only concern is whether his claim is paid, not why it is paid. As in Royal Drug, petitioners have shown, at the most, that the challenged peer review practices result in "cost savings to [ULL] which may be reflected in lower premiums if the cost savings are passed on to policyholders." Id., at 216. To grant the practices a § 2(b) exemption on such a showing "would be plainly contrary to the statutory language, which exempts the `business of insurance' and not the `business of insurance companies.'" Id., at 217. Finally, as respects the third Royal Drug criterion, it is plain that the challenged peer review practices are not limited to entities within the insurance industry. On the contrary, ULL's use of NYSCA's Peer Review Committee inevitably involves third parties wholly outside the insurance industry—namely, practicing chiropractors. Petitioners do not dispute this fact, but instead deprecate its importance. They argue that we should not conclude "that ULL's use of the peer review process is outside the scope of the `business *133 of insurance' simply because NYSCA is not an insurance company." Brief for Petitioner ULL 25. In petitioners' view: "There is nothing in the McCarran-Ferguson Act that limits the `business of insurance' to the business of insurance companies. As this Court has stated, `[the Act's] language refers not to the persons or companies who are subject to state regulation, but to laws "regulating the business of insurance."' National Securities, 393 U. S. at 459." Ibid. (emphasis in original of quoted opinion). Asserting that "the [New York] Superintendent of Insurance effectively can regulate the peer review process through his authority over the claims adjustment procedures of ULL," id., at 26, petitioners conclude that the process is part of the "business of insurance" despite the necessary involvement of third parties outside the insurance industry. We may assume that the challenged peer review practices need not be denied the § 2(b) exemption solely because they involve parties outside the insurance industry. But the involvement of such parties, even if not dispositive, constitutes part of the inquiry mandated by the Royal Drug analysis. As the Court noted there, § 2(b) was intended primarily to protect "intra-industry cooperation" in the underwriting of risks. 440 U.S., at 221 (emphasis added). Arrangements between insurance companies and parties outside the insurance industry can hardly be said to lie at the center of that legislative concern. More importantly, such arrangements may prove contrary to the spirit as well as the letter of § 2(b), because they have the potential to restrain competition in noninsurance markets. Indeed, the peer review practices challenged in the present cases assertedly realize precisely this potential: Respondent's claim is that the practices restrain competition in a provider market—the market for chiropractic services—rather than in an insurance market. App. 8a. Thus we cannot join petitioners in depreciating the *134 fact that parties outside the insurance industry are intimately involved in the peer review practices at issue in these cases.[8] III In sum, we conclude that ULL's use of NYSCA's Peer Review Committee does not constitute the "business of insurance" within the meaning of § 2(b) of the McCarran-Ferguson Act.[9] The judgment of the Court of Appeals is accordingly Affirmed.

In these cases we consider an alleged conspiracy to eliminate price competition among chiropractors, by means of a "peer review committee" that advised an insurance company whether particular chiropractors' treatments and fees were "necessary" and "reasonable." The question presented is whether the alleged conspiracy is exempt from federal antitrust laws as part of the "business of insurance" within the meaning of the McCarran-Ferguson Act.[1] I Petitioners are the New York State Chiropractic Association (NYSCA), a professional association of chiropractors, and the Union Labor Life Insurance (ULL), a Maryland insurer doing business in New York. As required by New York law, ULL's health insurance policies cover certain holder claims for chiropractic treatments. But certain ULL policies limit the company's liability to "the reasonable charges" for "necessary medical care and services." *123 App. 19a, 22a Accordingly, when presented with a holder claim for reimbursement for chiropractic treatments, ULL must determine whether the treatments were necessary and whether the charges for them were reasonable. In making some of these determinations, ULL has arranged with NYSCA to use the advice of NYSCA's Peer Review Committee. The Committee was established by NYSCA in 191, primarily to aid insurers in evaluating claims for chiropractic treatments.[2] It is composed of 10 practicing New York chiropractors, who serve on a voluntary basis. At the request of an insurer, the Committee will examine a chiropractor's treatments and charges in a particular case, and will render an opinion on the necessity for the treatments and the reasonableness of the charges made for them. The opinion will be based upon such considerations as the treating chiropractor's experience and specialty degrees; the location of his office; the number of visits and time spent with the patient; the patient's age, occupation, general physical condition, and history of previous treatment; and X-ray findings. Respondent is a chiropractor licensed and practicing in the State of New York. On a number of occasions his treatments of ULL holders, and his charges for those treatments, have been referred by ULL to the Committee, which has sometimes concluded that his treatments were unnecessary or his charges unreasonable. Petitioners assert that respondent has treated his patients "in a manner calculated to maximize the number of treatments for a particular condition, and that his fees for these treatments are unusually high." Respondent, for his part, contends that the members of the Committee "practice `antiquated' techniques that they seek to impose on their more innovative competitors." *124 This dispute resulted in the present suit, brought by respondent in the United States District Court for the Southern District of New York. Respondent alleged that the peer review practices of petitioners violated 1 of the Sherman Act.[3] In particular, he claimed that petitioners and others had used the Committee as the vehicle for a conspiracy to fix the prices that chiropractors, including respondent, would be permitted to charge for their services. He concluded that he had been restrained from providing his chiropractic services to the public freely and fully, and that would-be recipients of chiropractic services had been deprived of the benefits of competition. Respondent requested, inter alia, declaratory and injunctive relief against ULL's continued use of NYSCA's Peer Review Committee in evaluating holders' claims. After extensive discovery, the District Court granted petitioners' motion for summary judgment dismissing respondent's complaint, concluding that ULL's use of NYSCA's Peer Review Committee was exempted from antitrust scrutiny by the McCarran-Ferguson Act. App. to Pet. for Cert. in No. 81-, pp. 20a-3a. The court noted that three requirements must be met in order to obtain the McCarran-Ferguson exemption: The challenged practices (1) must constitute the "business of insurance," (2) must be regulated by state law, and (3) must not amount to a "boycott, coercion, or intimidation." at 2a-28a. In the court's view, all three of these requirements were satisfied in the present case. In particular, the court held that petitioners' peer review practices constituted the "business of insurance" because they served "to define the precise extent of ULL's *125 contractual obligations under [its] policies." at 29a-30a. Moreover, the court determined that the peer review practices "involve[d] the spreading of risk, an indispensable element of the `business of insurance.'" at 30a.[4] Respondents' Sherman Act claim was accordingly dismissed with prejudice. The Court of Appeals for the Second Circuit Relying upon this Court's recent opinion in Group Life & Health Ins. the Court of Appeals concluded that the District Court had erred in holding that ULL's use of NYSCA's Peer Review Committee constituted the "business of insurance."[5] Accordingly, the Court of Appeals remanded the action for further proceedings. We granted certiorari to resolve a conflict among the Courts of Appeals on the question presented.[6] *126 II The only issue before us is whether petitioners' peer review practices are exempt from antitrust scrutiny as part of the "business of insurance." "It is axiomatic that conduct which is not exempt from the antitrust laws may nevertheless be perfectly legal." Group Life & Health Ins. Thus in deciding these cases we have no occasion to address the merits of respondent's Sherman Act claims. However, the Sherman Act does express a "longstanding congressional commitment to the of free markets and open competition." Community Communications v. Boulder, ; see also United Accordingly, our precedents consistently hold that exemptions from the antitrust laws must be construed narrowly. This principle applies not only to implicit exemptions, see Group Life & Health Ins. but also to express statutory exemptions, see United (19). In Royal this Court had occasion to reexamine the scope of the express antitrust exemption provided for the "business of insurance" by 2(b) of the McCarran-Ferguson Act. We hold that decision of the question before us is controlled by Royal The principal petitioner in Royal was a Texas insurance company, Blue Shield, that offered policies entitling insured persons to purchase prescription drugs for $2 each from any pharmacy participating in a "Pharmacy Agreement" with Blue Shield; holders were also allowed to purchase prescription drugs from a nonparticipating pharmacy, but in that event they would have to pay full price for the drugs and would be reimbursed by Blue Shield for only a part of that price. Blue Shield offered Pharmacy Agreements to all licensed pharmacies in Texas, but participating pharmacies were required to sell prescription drugs to Blue *12 Shield's holders for $2 each, and were reimbursed only for their cost in acquiring the drugs thus sold. "Thus, only pharmacies that [could] afford to distribute prescription drugs for less than this $2 markup [could] profitably participate in the plan." Respondents in Royal were the owners of nonparticipating pharmacies. They sued Blue Shield and several participating pharmacies under 1 of the Sherman Act, alleging that the Pharmacy Agreements were the instrument by which Blue Shield had conspired with participating pharmacies to fix the retail prices of prescription drugs. Respondents also alleged that the Agreements encouraged Blue Shield's holders to avoid nonparticipating pharmacies, thus constituting an unlawful group boycott. The District Court granted summary judgment to Blue Shield and the other petitioners, holding that the challenged Agreements were exempt under 2(b) of the McCarran-Ferguson Act. But the Court of Appeals disagreed, holding that the Agreements were not the "business of insurance" within the meaning of that Act, and This Court affirmed. Looking to "the structure of the Act and its legislative history," the Court discussed three characteristics of the business of insurance that Congress had intended to exempt through 2(b). First, after noting that one "indispensable characteristic of insurance" is the "spreading and underwriting of a holder's risk," -212,[] the Court observed that parts *128 of the legislative history of the McCarran-Ferguson Act "strongly suggest that Congress understood the business of insurance to be the underwriting and spreading of risk," The Court then dismissed Blue Shield's contention that its Pharmacy Agreements involved such activities. "The Pharmacy Agreements are merely arrangements for the purchase of goods and services by Blue Shield. By agreeing with pharmacies on the maximum prices it will pay for drugs, Blue Shield effectively reduces the total amount it must pay to its holders. The Agreements thus enable Blue Shield to minimize costs and maximize profits. Such cost-savings arrangements may well be sound business practice, and may well inure ultimately to the benefit of holders in the form of lower premiums, but they are not the `business of insurance.'" Second, the Court identified "the contract between the insurer and the insured" as "[a]nother commonly understood aspect of the business of insurance." The Court noted that, in enacting the McCarran-Ferguson Act, Congress had been concerned with the "`relationship between insurer and insured, the type of which could be issued, its reliability, interpretation, and enforcement—these were the core of the "business of insurance."'" -216, quoting The Court then rejected Blue Shield's argument that its Pharmacy Agreements were so closely related to the "reliability, interpretation, and enforcement" of its policies as to fall within the intended scope of 2(b): "This argument proves too much." "At the most, the petitioners have demonstrated that the Pharmacy Agreements result in cost savings to Blue Shield which may be reflected in lower premiums if the cost savings are passed on to holders. But, in that sense, every business decision made by an insurance company has some impact on its reliability, its ratemaking, *129 and its status as a reliable insurer [and thus] could be included in the `business of insurance.' Such a result would be plainly contrary to the statutory language, which exempts the `business of insurance' and not the `business of insurance companies.'" Finally, the Court noted that in enacting the McCarran-Ferguson Act, "the primary concern of both representatives of the insurance industry and the Congress was that cooperative ratemaking efforts be exempt from the antitrust laws." This was so because of "the widespread view that it [was] very difficult to underwrite risks in an informed and responsible way without intra-industry cooperation." The Court was thus reluctant to extend the 2(b) exemption to the case before it, "because the Pharmacy Agreements involve parties wholly outside the insurance industry." "There is not the slightest suggestion in the legislative history that Congress in any way contemplated that arrangements such as the Pharmacy Agreements in this case, which involve the mass purchase of goods and services from entities outside the insurance industry, are the `business of insurance.'" In sum, Royal identified three criteria relevant in determining whether a particular practice is part of the "business of insurance" exempted from the antitrust laws by 2(b): first, whether the practice has the effect of transferring or spreading a holder's risk; second, whether the practice is an integral part of the relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry. None of these criteria is necessarily determinative in itself, but examining the arrangement between petitioners NYSCA and ULL with respect to all three criteria, we do not hesitate to conclude that it is not a part of the "business of insurance." *130 Plainly, ULL's use of NYSCA's Peer Review Committee plays no part in the "spreading and underwriting of a holder's risk." Group Life & Health Ins. 440 U. S., Both the "spreading" and the "underwriting" of risk refer in this context to the transfer of risk characteristic of insurance. See n. And as the Court of Appeals below observed: "The risk that an insured will require chiropractic treatment has been transferred from the insured to [ULL] by the very purchase of insurance. Peer review takes place only after the risk has been transferred by means of the and then it functions only to determine whether the risk of the entire loss (the insured's cost of treatment) has been transferred to [ULL]—that is, whether the insured's loss falls within the limits." Petitioner ULL argues that the Court of Appeals' analysis is "semantic and unrealistic." Brief for Petitioner ULL 1. Petitioner reasons that "[i]t is inconceivable that Congress would have included risk transfer within the `business of insurance' but excluded a device that helps `determine whether the risk has been transferred' and acts as `an aid in determining the scope of the transfer.'" We find no merit in this argument, because the challenged peer review arrangement is logically and temporally unconnected to the transfer of risk accomplished by ULL's insurance policies. The transfer of risk from insured to insurer is effected by means of the contract between the parties—the insurance —and that transfer is complete at the time that the contract is entered. See 9 G. Couch, Cyclopedia of Insurance Law 39:53, 39:63 (2d ed. 1962). If the limits coverage to "necessary" treatments and "reasonable" charges for them, then that limitation is the measure of the risk that has actually been transferred to the insurer: To the extent that *131 the insured pays unreasonable charges for unnecessary treatments, he will not be reimbursed, because the risk of incurring such treatments and charges was never transferred to the insurer, but was instead always retained by the insured. Petitioner's argument contains the unspoken premise that the transfer of risk from an insured to his insurer actually takes place not when the contract between those parties is completed, but rather only when the insured's claim is settled. This premise is contrary to the fundamental principle of insurance that the insurance defines the scope of risk assumed by the insurer from the insured. See 39:3; R. Keeton, Insurance Law 5.1(a) (191). Turning to the second Royal criterion, it is clear that ULL's use of NYSCA's Peer Review Committee is not an integral part of the relationship between insurer and insured. In the first place, the challenged arrangement between ULL and NYSCA is obviously distinct from ULL's contracts with its holders. In this sense the challenged arrangement resembles the Pharmacy Agreements in Royal There the Court rejected the proposition that the Agreements were "`between insurer and insured.'" Group Life & Health Ins. quoting 393 U. S., at Rather, it recognized those Agreements as "separate contractual arrangements between Blue Shield and pharmacies engaged in the sale and distribution of goods and services other than insurance." Similarly, ULL's use of NYSCA's Peer Review Committee is a separate arrangement between the insurer and third parties not engaged in the business of insurance. Petitioner ULL argues that the challenged peer review practices satisfy this criterion because peer review "directly involves the `interpretation' and `enforcement' of the insurance contract." Brief for Petitioner ULL 16. But this argument is essentially identical to one made and rejected in *132 Royal Blue Shield there contended that its Pharmacy Agreements "so closely affect[ed] the `reliability, interpretation, and enforcement' of the insurance contract as to fall within the exempted area." This Court noted, however: "The benefit promised to Blue Shield holders is that their premiums will cover the cost of prescription drugs except for a $2 charge for each prescription. So long as that promise is kept, holders are basically unconcerned with arrangements made between Blue Shield and participating pharmacies." Similarly, when presented with holder claims for reimbursement, ULL must decide whether the claims are covered by its policies. But these decisions are entirely ULL's, and its use of NYSCA's Peer Review Committee as an aid in its decisionmaking process is a matter of indifference to the holder, whose only concern is whether his claim is paid, not why it is paid. As in Royal petitioners have shown, at the most, that the challenged peer review practices result in "cost savings to [ULL] which may be reflected in lower premiums if the cost savings are passed on to holders." To grant the practices a 2(b) exemption on such a showing "would be plainly contrary to the statutory language, which exempts the `business of insurance' and not the `business of insurance companies.'" at 21. Finally, as respects the third Royal criterion, it is plain that the challenged peer review practices are not limited to entities within the insurance industry. On the contrary, ULL's use of NYSCA's Peer Review Committee inevitably involves third parties wholly outside the insurance industry—namely, practicing chiropractors. Petitioners do not dispute this fact, but instead deprecate its importance. They argue that we should not conclude "that ULL's use of the peer review process is outside the scope of the `business *133 of insurance' simply because NYSCA is not an insurance company." Brief for Petitioner ULL 25. In petitioners' view: "There is nothing in the McCarran-Ferguson Act that limits the `business of insurance' to the business of insurance companies. As this Court has stated, `[the Act's] language refers not to the persons or companies who are subject to state regulation, but to laws "regulating the business of insurance."' National" Asserting that "the [New York] Superintendent of Insurance effectively can regulate the peer review process through his authority over the claims adjustment procedures of ULL," petitioners conclude that the process is part of the "business of insurance" despite the necessary involvement of third parties outside the insurance industry. We may assume that the challenged peer review practices need not be denied the 2(b) exemption solely because they involve parties outside the insurance industry. But the involvement of such parties, even if not dispositive, constitutes part of the inquiry mandated by the Royal analysis. As the Court noted there, 2(b) was intended primarily to protect "intra-industry cooperation" in the underwriting of 440 U.S., Arrangements between insurance companies and parties outside the insurance industry can hardly be said to lie at the center of that legislative concern. More importantly, such arrangements may prove contrary to the spirit as well as the letter of 2(b), because they have the potential to restrain competition in noninsurance markets. Indeed, the peer review practices challenged in the present cases assertedly realize precisely this potential: Respondent's claim is that the practices restrain competition in a provider market—the market for chiropractic services—rather than in an insurance market. App. 8a. Thus we cannot join petitioners in depreciating the *134 fact that parties outside the insurance industry are intimately involved in the peer review practices at issue in these cases.[8] III In sum, we conclude that ULL's use of NYSCA's Peer Review Committee does not constitute the "business of insurance" within the meaning of 2(b) of the McCarran-Ferguson Act.[9] The judgment of the Court of Appeals is accordingly Affirmed.

Justice White

majority

Keeney v. Tamayo-Reyes

https://www.courtlistener.com/opinion/112728/keeney-v-tamayo-reyes/

https://www.courtlistener.com/api/rest/v3/clusters/112728/

1991-066

Respondent is a Cuban immigrant with little education and almost no knowledge of English. In 1984, he was charged with murder arising from the stabbing death of a man who had allegedly attempted to intervene in a confrontation between respondent and his girlfriend in a bar. Respondent was provided with a defense attorney and interpreter. The attorney recommended to respondent that he plead nolo contendere to first-degree manslaughter. Ore. Rev. Stat. § 163.118(1)(a) (1987). Respondent signed a plea form that explained in English the rights he was waiving by entering the plea. The state court held a plea hearing, at which petitioner was represented by counsel and his interpreter. The judge asked the attorney and interpreter if they had explained to respondent the rights in the plea form and the consequences of his plea; they responded in the affirmative. The judge then explained to respondent, in English, the rights he would waive by his plea, and asked the interpreter to translate. Respondent indicated that he understood his rights and still wished to plead nolo contendere. The judge accepted his plea. Later, respondent brought a collateral attack on the plea in a state-court proceeding. He alleged his plea had not been knowing and intelligent and therefore was invalid because his translator had not translated accurately and completely for him the mens rea element of manslaughter. He also contended that he did not understand the purposes of the plea form or the plea hearing. He contended that he did not know he was pleading no contest to manslaughter, but rather that he thought he was agreeing to be tried for manslaughter. *4 After a hearing, the state court dismissed respondent's petition, finding that respondent was properly served by his trial interpreter and that the interpreter correctly, fully, and accurately translated the communications between respondent and his attorney. App. 51. The State Court of Appeals affirmed, and the State Supreme Court denied review. Respondent then entered Federal District Court seeking a writ of habeas corpus. Respondent contended that the material facts concerning the translation were not adequately developed at the state-court hearing, implicating the fifth circumstance of Townsend v. Sain, 372 U.S. 293, 313 (1963), and sought a federal evidentiary hearing on whether his nolo contendere plea was unconstitutional. The District Court found that the failure to develop the critical facts relevant to his federal claim was attributable to inexcusable neglect and that no evidentiary hearing was required. App. to Pet. for Cert. 37, 38. Respondent appealed. The Court of Appeals for the Ninth Circuit recognized that the alleged failure to translate the mens rea element of firstdegree manslaughter, if proved, would be a basis for overturning respondent's plea, 926 F.2d 1492, 1494 (1991), and determined that material facts had not been adequately developed in the state postconviction court, id., at 1500, apparently due to the negligence of postconviction counsel. The court held that Townsend v. Sain, supra, at 317, and Fay v. Noia, 372 U.S. 391, 438 (1963), required an evidentiary hearing in the District Court unless respondent had deliberately bypassed the orderly procedure of the state courts. Because counsel's negligent failure to develop the facts did not constitute a deliberate bypass, the Court of Appeals ruled that respondent was entitled to an evidentiary hearing on the question whether the mens rea element of first-degree manslaughter was properly explained to him. 926 F.2d, at 1502.[1] *5 We granted certiorari to decide whether the deliberate bypass standard is the correct standard for excusing a habeas petitioner's failure to develop a material fact in state-court proceedings. 502 U.S. 807 (1991). We reverse. Because the holding of Townsend v. Sain that Fay v. Noia `s deliberate bypass standard is applicable in a case like this had not been reversed, it is quite understandable that the Court of Appeals applied that standard in this case. However, in light of more recent decisions of this Court, Townsend `s holding in this respect must be overruled.[2]Fay v. *6 Noia was itself a case where the habeas petitioner had not taken advantage of state remedies by failing to appeal—a procedural default case. Since that time, however, this Court has rejected the deliberate bypass standard in state procedural default cases and has applied instead a standard of cause and prejudice. In Francis v. Henderson, 425 U.S. 536 (1976), we acknowledged a federal court's power to entertain an application for habeas even where the claim has been procedurally waived in state proceedings, but nonetheless examined the appropriateness of the exercise of that power and recognized, as we had in Fay, that considerations of comity and concerns for the orderly administration of criminal justice may in some circumstances require a federal court to forgo the exercise of its habeas corpus power. 425 U.S., at 538-539. We held that a federal habeas petitioner is required to show cause for his procedural default, as well as actual prejudice. Id., at 542. In Wainwright v. Sykes, 433 U.S. 72 (1977), we rejected the application of Fay `s standard of "knowing waiver" or "deliberate bypass" to excuse a petitioner's failure to comply with a state contemporaneous-objection rule, stating that the state rule deserved more respect than the Fay standard accorded it. 433 U.S., at 88. We observed that procedural rules that contribute to error-free state trial proceedings are thoroughly desirable. We applied a cause-and-prejudice standard to a petitioner's failure to object at trial and limited *7 Fay to its facts. 433 U.S., at 87-88, and n. 12. We have consistently reaffirmed that the "cause-and-prejudice" standard embodies the correct accommodation between the competing concerns implicated in a federal court's habeas power. Reed v. Ross, 468 U.S. 1, 11 (1984); Engle v. Isaac, 456 U.S. 107, 129 (1982). In McCleskey v. Zant, 499 U.S. 467 (1991), we held that the same standard used to excuse state procedural defaults should be applied in habeas corpus cases where abuse of the writ is claimed by the government. Id., at 493. This conclusion rested on the fact that the two doctrines are similar in purpose and design and implicate similar concerns. Id., at 493-494. The writ strikes at finality of a state criminal conviction, a matter of particular importance in a federal system. Id., at 491, citing Murray v. Carrier, 477 U.S. 478, 487 (1986). Federal habeas litigation also places a heavy burden on scarce judicial resources, may give litigants incentives to withhold claims for manipulative purposes, and may create disincentives to present claims when evidence is fresh. 499 U.S., at 491-492. See also Reed v. Ross, supra, at 13; Wainwright, supra, at 89. Again addressing the issue of state procedural default in Coleman v. Thompson , 501 U.S. 722 (1991), we described Fay as based on a conception of federal/state relations that undervalued the importance of state procedural rules, 501 U.S., at 750, and went on to hold that the cause-andprejudice standard applicable to failure to raise a particular claim should apply as well to failure to appeal at all. Ibid. "All of the State's interests—in channeling the resolution of claims to the most appropriate forum, in finality, and in having an opportunity to correct its own errors—are implicated whether a prisoner defaults one claim or all of them." Id., at 750. We therefore applied the cause-and-prejudice standard uniformly to state procedural defaults, eliminating the "irrational" distinction between Fay and subsequent cases. 501 U.S., at 751. In light of these decisions, it is similarly *8 irrational to distinguish between failing to properly assert a federal claim in state court and failing in state court to properly develop such a claim, and to apply to the latter a remnant of a decision that is no longer upheld with regard to the former. The concerns that motivated the rejection of the deliberate bypass standard in Wainwright, Coleman, and other cases are equally applicable to this case.[3] As in cases of state procedural default, application of the cause-andprejudice standard to excuse a state prisoner's failure to develop material facts in state court will appropriately accommodate concerns of finality, comity, judicial economy, and channeling the resolution of claims into the most appropriate forum. Applying the cause-and-prejudice standard in cases like this will obviously contribute to the finality of convictions, for requiring a federal evidentiary hearing solely on the basis of a habeas petitioner's negligent failure to develop facts in *9 state-court proceedings dramatically increases the opportunities to relitigate a conviction. Similarly, encouraging the full factual development in state court of a claim that state courts committed constitutional error advances comity by allowing a coordinate jurisdiction to correct its own errors in the first instance. It reduces the "inevitable friction" that results when a federal habeas court "overturn[s] either the factual or legal conclusions reached by the state-court system." Sumner v. Mata, 449 U.S. 539, 550 (1981). Also, by ensuring that full factual development takes place in the earlier, state-court proceedings, the cause-andprejudice standard plainly serves the interest of judicial economy. It is hardly a good use of scarce judicial resources to duplicate factfinding in federal court merely because a petitioner has negligently failed to take advantage of opportunities in state-court proceedings. Furthermore, ensuring that full factual development of a claim takes place in state court channels the resolution of the claim to the most appropriate forum. The state court is the appropriate forum for resolution of factual issues in the first instance, and creating incentives for the deferral of factfinding to later federal-court proceedings can only degrade the accuracy and efficiency of judicial proceedings. This is fully consistent with, and gives meaning to, the requirement of exhaustion. The Court has long held that state prisoners must exhaust state remedies before obtaining federal habeas relief. Ex parte Royall, 117 U.S. 241 (1886). The requirement that state prisoners exhaust state remedies before a writ of habeas corpus is granted by a federal court is now incorporated in the federal habeas statute.[4] 28 U.S. C. *10 § 2254. Exhaustion means more than notice. In requiring exhaustion of a federal claim in state court, Congress surely meant that exhaustion be serious and meaningful. The purpose of exhaustion is not to create a procedural hurdle on the path to federal habeas court, but to channel claims into an appropriate forum, where meritorious claims may be vindicated and unfounded litigation obviated before resort to federal court. Comity concerns dictate that the requirement of exhaustion is not satisfied by the mere statement of a federal claim in state court. Just as the State must afford the petitioner a full and fair hearing on his federal claim, so must the petitioner afford the State a full and fair opportunity to address and resolve the claim on the merits. Cf. Picard v. Connor, 404 U.S. 270, 275 (1971). Finally, it is worth noting that applying the cause-andprejudice standard in this case also advances uniformity in the law of habeas corpus. There is no good reason to maintain in one area of habeas law a standard that has been rejected in the area in which it was principally enunciated. And little can be said for holding a habeas petitioner to one standard for failing to bring a claim in state court and excusing the petitioner under another, lower standard for failing to develop the factual basis of that claim in the same forum. A different rule could mean that a habeas petitioner would not be excused for negligent failure to object to the introduction of the prosecution's evidence, but nonetheless would be excused for negligent failure to introduce any evidence of his own to support a constitutional claim.[5] *11 Respondent Tamayo-Reyes is entitled to an evidentiary hearing if he can show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure. We also adopt the narrow exception *12 to the cause-and-prejudice requirement: A habeas petitioner's failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing. Cf. McCleskey v. Zant, 499 U. S., at 494; Murray v. Carrier, 477 U. S., at 496. The State concedes that a remand to the District Court is appropriate in order to afford respondent the opportunity to bring forward evidence establishing cause and prejudice, Brief for Petitioner 21, and we agree that respondent should have that opportunity. Accordingly, the decision of the Court of Appeals is reversed, and the cause is remanded to the District Court for further proceedings consistent with this opinion. So ordered.

Respondent is a Cuban immigrant with little education and almost no knowledge of English. In 1984, he was charged with murder arising from the stabbing death of a man who had allegedly attempted to intervene in a confrontation between respondent and his girlfriend in a bar. Respondent was provided with a defense attorney and interpreter. The attorney recommended to respondent that he plead nolo contendere to first-degree manslaughter. Ore. Rev. Stat. 163.8(1)(a) (1987). Respondent signed a plea form that explained in English the rights he was waiving by entering the plea. The state court held a plea hearing, at which petitioner was represented by counsel and his interpreter. The judge asked the attorney and interpreter if they had explained to respondent the rights in the plea form and the consequences of his plea; they responded in the affirmative. The judge then explained to respondent, in English, the rights he would waive by his plea, and asked the interpreter to translate. Respondent indicated that he understood his rights and still wished to plead nolo contendere. The judge accepted his plea. Later, respondent brought a collateral attack on the plea in a state-court proceeding. He alleged his plea had not been knowing and intelligent and therefore was invalid because his translator had not translated accurately and completely for him the mens rea element of manslaughter. He also contended that he did not understand the purposes of the plea form or the plea hearing. He contended that he did not know he was pleading no contest to manslaughter, but rather that he thought he was agreeing to be tried for manslaughter. *4 After a hearing, the state court dismissed respondent's petition, finding that respondent was properly served by his trial interpreter and that the interpreter correctly, fully, and accurately translated the communications between respondent and his attorney. App. 51. The State Court of Appeals affirmed, and the State Supreme Court denied review. Respondent then entered Federal District Court seeking a writ of habeas corpus. Respondent contended that the material facts concerning the translation were not adequately developed at the state-court hearing, implicating the fifth circumstance of and sought a federal evidentiary hearing on whether his nolo contendere plea was unconstitutional. The District Court found that the failure to develop the critical facts relevant to his federal claim was attributable to inexcusable neglect and that no evidentiary hearing was required. App. to Pet. for Cert. 37, 38. Respondent appealed. The Court of Appeals for the Ninth Circuit recognized that the alleged failure to translate the mens rea element of firstdegree manslaughter, if proved, would be a basis for overturning respondent's plea, and determined that material facts had not been adequately developed in the state postconviction court, apparently due to the negligence of postconviction counsel. The court held that and required an evidentiary hearing in the District Court unless respondent had deliberately bypassed the orderly procedure of the state courts. Because counsel's negligent failure to develop the facts did not constitute a deliberate bypass, the Court of Appeals ruled that respondent was entitled to an evidentiary hearing on the question whether the mens rea element of first-degree manslaughter was properly explained to him.[1] *5 We granted certiorari to decide whether the deliberate bypass standard is the correct standard for excusing a habeas petitioner's failure to develop a material fact in state-court proceedings. We reverse. Because the holding of that `s deliberate bypass standard is applicable in a case like this had not been reversed, it is quite understandable that the Court of Appeals applied that standard in this case. However, in light of more recent decisions of this Court, Townsend `s holding in this respect must be overruled.[2]Fay v. *6 Noia was itself a case where the habeas petitioner had not taken advantage of state remedies by failing to appeal—a procedural default case. Since that time, however, this Court has rejected the deliberate bypass standard in state procedural default cases and has applied instead a standard of cause and prejudice. In we acknowledged a federal court's power to entertain an application for habeas even where the claim has been procedurally waived in state proceedings, but nonetheless examined the appropriateness of the exercise of that power and recognized, as we had in Fay, that considerations of comity and concerns for the orderly administration of criminal justice may in some circumstances require a federal court to forgo the exercise of its habeas corpus -539. We held that a federal habeas petitioner is required to show cause for his procedural default, as well as actual prejudice. In we rejected the application of Fay `s standard of "knowing waiver" or "deliberate bypass" to excuse a petitioner's failure to comply with a state contemporaneous-objection rule, stating that the state rule deserved more respect than the Fay standard accorded We observed that procedural that contribute to error-free state trial proceedings are thoroughly desirable. We applied a cause-and-prejudice standard to a petitioner's failure to object at trial and limited *7 Fay to its -88, and n. 12. We have consistently reaffirmed that the "cause-and-prejudice" standard embodies the correct accommodation between the competing concerns implicated in a federal court's habeas ; In we held that the same standard used to excuse state procedural defaults should be applied in habeas corpus cases where abuse of the writ is claimed by the government. This conclusion rested on the fact that the two doctrines are similar in purpose and design and implicate similar concerns. -494. The writ strikes at finality of a state criminal conviction, a matter of particular importance in a federal system. citing Federal habeas litigation also places a heavy burden on scarce judicial resources, may give litigants incentives to withhold claims for manipulative purposes, and may create disincentives to present claims when evidence is 499 U.S., -492. See also ; Again addressing the issue of state procedural default in we described Fay as based on a conception of federal/state relations that undervalued the importance of state procedural and went on to hold that the cause-andprejudice standard applicable to failure to raise a particular claim should apply as well to failure to appeal at all. "All of the State's interests—in channeling the resolution of claims to the most appropriate forum, in finality, and in having an opportunity to correct its own errors—are implicated whether a prisoner defaults one claim or all of them." We therefore applied the cause-and-prejudice standard uniformly to state procedural defaults, eliminating the "irrational" distinction between Fay and subsequent In light of these decisions, it is similarly *8 irrational to distinguish between failing to properly assert a federal claim in state court and failing in state court to properly develop such a claim, and to apply to the latter a remnant of a decision that is no longer upheld with regard to the former. The concerns that motivated the rejection of the deliberate bypass standard in Coleman, and other cases are equally applicable to this case.[3] As in cases of state procedural default, application of the cause-andprejudice standard to excuse a state prisoner's failure to develop material facts in state court will appropriately accommodate concerns of finality, comity, judicial economy, and channeling the resolution of claims into the most appropriate forum. Applying the cause-and-prejudice standard in cases like this will obviously contribute to the finality of convictions, for requiring a federal evidentiary hearing solely on the basis of a habeas petitioner's negligent failure to develop facts in *9 state-court proceedings dramatically increases the opportunities to relitigate a conviction. Similarly, encouraging the full factual development in state court of a claim that state courts committed constitutional error advances comity by allowing a coordinate jurisdiction to correct its own errors in the first instance. It reduces the "inevitable friction" that results when a federal habeas court "overturn[s] either the factual or legal conclusions reached by the state-court system." Also, by ensuring that full factual development takes place in the earlier, state-court proceedings, the cause-andprejudice standard plainly serves the interest of judicial economy. It is hardly a good use of scarce judicial resources to duplicate factfinding in federal court merely because a petitioner has negligently failed to take advantage of opportunities in state-court proceedings. Furthermore, ensuring that full factual development of a claim takes place in state court channels the resolution of the claim to the most appropriate forum. The state court is the appropriate forum for resolution of factual issues in the first instance, and creating incentives for the deferral of factfinding to later federal-court proceedings can only degrade the accuracy and efficiency of judicial proceedings. This is fully consistent with, and gives meaning to, the requirement of exhaustion. The Court has long held that state prisoners must exhaust state remedies before obtaining federal habeas relief. Ex parte Royall, 7 U.S. 241 The requirement that state prisoners exhaust state remedies before a writ of habeas corpus is granted by a federal court is now incorporated in the federal habeas statute.[4] 28 U.S. C. *10 2254. Exhaustion means more than notice. In requiring exhaustion of a federal claim in state court, Congress surely meant that exhaustion be serious and meaningful. The purpose of exhaustion is not to create a procedural hurdle on the path to federal habeas court, but to channel claims into an appropriate forum, where meritorious claims may be vindicated and unfounded litigation obviated before resort to federal court. Comity concerns dictate that the requirement of exhaustion is not satisfied by the mere statement of a federal claim in state court. Just as the State must afford the petitioner a full and fair hearing on his federal claim, so must the petitioner afford the State a full and fair opportunity to address and resolve the claim on the merits. Cf. Finally, it is worth noting that applying the cause-andprejudice standard in this case also advances uniformity in the law of habeas corpus. There is no good reason to maintain in one area of habeas law a standard that has been rejected in the area in which it was principally enunciated. And little can be said for holding a habeas petitioner to one standard for failing to bring a claim in state court and excusing the petitioner under another, lower standard for failing to develop the factual basis of that claim in the same forum. A different rule could mean that a habeas petitioner would not be excused for negligent failure to object to the introduction of the prosecution's evidence, but nonetheless would be excused for negligent failure to introduce any evidence of his own to support a constitutional claim.[5] * Respondent Tamayo-Reyes is entitled to an evidentiary hearing if he can show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure. We also adopt the narrow exception *12 to the cause-and-prejudice requirement: A habeas petitioner's failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing. Cf. ; The State concedes that a remand to the District Court is appropriate in order to afford respondent the opportunity to bring forward evidence establishing cause and prejudice, Brief for Petitioner 21, and we agree that respondent should have that opportunity. Accordingly, the decision of the Court of Appeals is reversed, and the cause is remanded to the District Court for further proceedings consistent with this opinion. So ordered.

Justice Stevens

dissenting

Connecticut Bd. of Pardons v. Dumschat

https://www.courtlistener.com/opinion/110525/connecticut-bd-of-pardons-v-dumschat/

https://www.courtlistener.com/api/rest/v3/clusters/110525/

1980-121

"Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action." Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18 (opinion of POWELL, J.). *469 The liberty that is worthy of constitutional protection is not merely "a statutory creation of the State," Wolff v. McDonnell, 418 U.S. 539, 558. Surely the Court stumbles when it states that liberty "must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency," ante, at 465, or when it implies that liberty has "its roots in state law," Meachum v. Fano, 427 U.S. 215, 226. To some of us, it is "self-evident" that individual liberty has far deeper roots.[1] Moreover, the deprivation of liberty that follows conviction of a criminal offense is not total; the individual possesses a residuum of constitutionally protected liberty even while he is in the legal custody of the State.[2] The question this case presents is not whether these respondents are mere slaves, wholly divested of any constitutionally protected interest in liberty; rather, the question is whether the decision by the Connecticut Board of Pardons refusing to commute their life sentences constitutes a deprivation of liberty entitling respondents to the protection of the Due Process Clause. *470 The facile answer to that question is that the distinction between a refusal to grant freedom on the one hand and the imposition of a sentence or the revocation of a parole on the other forms the basis for a determination whether due process is implicated. Only the imposition of sentence or revocation of parole is obviously a deprivation of liberty. But in practice, as JUSTICE POWELL has explained, that distinction is far less satisfactory than it first appears.[3] In my judgment, it provides an insufficient answer to the question presented by this case because the distinction does not correctly evaluate the character of the deprivation of liberty that occurs when a person is convicted of a crime. If the conviction were effective to terminate the defendant's liberty, he would thereafter retain no constitutional right to procedural safeguards against arbitrary action. The process of sentencing, parole release, parole revocation, and ultimate discharge could all be totally arbitrary. But no State asserts such total control over the convicted offender, and this Court has unequivocally held that the Constitution affords protection at different stages of the postconviction *471 process.[4] The basic reason the constitutional protection applies at these stages is that liberty itself survives to some extent and its deprivation is a continuous process rather than an isolated event. This case involves the State of Connecticut's process for determining when a relatively small group of serious offenders will be released from custody. Routinely that process includes three determinations: the judge imposes a life sentence; the Board of Pardons in due course commutes that sentence; and finally the Board of Parole discharges the prisoner from custody. Each of these three decisions is a regular and critical component of the decisionmaking process employed by the State of Connecticut to determine the magnitude of its deprivation of the prisoner's liberty.[5] In my opinion the Due Process Clause applies to each step and denies the State the power to act arbitrarily.[6] *472 Whether the refusal to provide the inmates with a statement of reasons is a procedural shortcoming of constitutional magnitude is, admittedly, fairly debatable. Judges often decide difficult and important cases without explaining their reasons, and I would not suggest that they thereby commit constitutional error. But the ordinary litigant has other substantial procedural safeguards against arbitrary decision-making in the courtroom. The prison inmate has few such protections. Indeed, as in this case, often he is not even afforded the protection of written standards to govern the exercise of the powers of the Board of Pardons. His protection is somewhat analogous to that of the litigant in the earliest days of our common-law history. The judges then were guided by few written laws, but developed a meaningful set of rules by the process of case-by-case adjudication. Their explanations of why they decided cases as they did provided guideposts for future decisions and an assurance to litigants that like cases were being decided in a similar way. Many of us believe that those statements of reasons provided a better guarantee of justice than could possibly have been described in a code written in sufficient detail to be fit for Napoleon. As JUSTICE MARSHALL has pointed out, "the obligation to justify a decision publicly would provide the assurance, critical to the appearance of fairness that the Board's decision is not capricious," see Greenholtz, 442 U. S., at 40 (dissenting opinion). I therefore believe the Court of Appeals correctly concluded that in this context a brief statement of reasons is an essential element of the process that is due these respondents. Accordingly, I respectfully dissent.

"Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action." (opinion of POWELL, J.). *469 The liberty that is worthy of constitutional protection is not merely "a statutory creation of the State," 4 U.S. 539, Surely the Court stumbles when it states that liberty "must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency," ante, at 465, or when it implies that liberty has "its roots in state law," To some of us, it is "self-evident" that individual liberty has far deeper roots.[1] Moreover, the deprivation of liberty that follows conviction of a criminal offense is not total; the individual possesses a residuum of constitutionally protected liberty even while he is in the legal custody of the State.[2] The question this case presents is not whether these respondents are mere slaves, wholly divested of any constitutionally protected interest in liberty; rather, the question is whether the decision by the Connecticut Board of Pardons refusing to commute their life sentences constitutes a deprivation of liberty entitling respondents to the protection of the Due Process Clause. *470 The facile answer to that question is that the distinction between a refusal to grant freedom on the one hand and the imposition of a sentence or the revocation of a parole on the other forms the basis for a determination whether due process is implicated. Only the imposition of sentence or revocation of parole is obviously a deprivation of liberty. But in practice, as JUSTICE POWELL has explained, that distinction is far less satisfactory than it first appears.[3] In my judgment, it provides an insufficient answer to the question presented by this case because the distinction does not correctly evaluate the character of the deprivation of liberty that occurs when a person is convicted of a crime. If the conviction were effective to terminate the defendant's liberty, he would thereafter retain no constitutional right to procedural safeguards against arbitrary action. The process of sentencing, parole release, parole revocation, and ultimate discharge could all be totally arbitrary. But no State asserts such total control over the convicted offender, and this Court has unequivocally held that the Constitution affords protection at different stages of the postconviction *471 process.[4] The basic reason the constitutional protection applies at these stages is that liberty itself survives to some extent and its deprivation is a continuous process rather than an isolated event. This case involves the State of Connecticut's process for determining when a relatively small group of serious offenders will be released from custody. Routinely that process includes three determinations: the judge imposes a life sentence; the Board of Pardons in due course commutes that sentence; and finally the Board of Parole discharges the prisoner from custody. Each of these three decisions is a regular and critical component of the decisionmaking process employed by the State of Connecticut to determine the magnitude of its deprivation of the prisoner's liberty.[5] In my opinion the Due Process Clause applies to each step and denies the State the power to act arbitrarily.[6] *472 Whether the refusal to provide the inmates with a statement of reasons is a procedural shortcoming of constitutional magnitude is, admittedly, fairly debatable. Judges often decide difficult and important cases without explaining their reasons, and I would not suggest that they thereby commit constitutional error. But the ordinary litigant has other substantial procedural safeguards against arbitrary decision-making in the courtroom. The prison inmate has few such protections. Indeed, as in this case, often he is not even afforded the protection of written standards to govern the exercise of the powers of the Board of Pardons. His protection is somewhat analogous to that of the litigant in the earliest days of our common-law history. The judges then were guided by few written laws, but developed a meaningful set of rules by the process of case-by-case adjudication. Their explanations of why they decided cases as they did provided guideposts for future decisions and an assurance to litigants that like cases were being decided in a similar way. Many of us believe that those statements of reasons provided a better guarantee of justice than could possibly have been described in a code written in sufficient detail to be fit for Napoleon. As JUSTICE MARSHALL has pointed out, "the obligation to justify a decision publicly would provide the assurance, critical to the appearance of fairness that the Board's decision is not capricious," see I therefore believe the Court of Appeals correctly concluded that in this context a brief statement of reasons is an essential element of the process that is due these respondents. Accordingly, I respectfully dissent.

Justice Stewart

majority

Hills v. Gautreaux

https://www.courtlistener.com/opinion/109428/hills-v-gautreaux/

https://www.courtlistener.com/api/rest/v3/clusters/109428/

1975-076

The United States Department of Housing and Urban Development (HUD) has been judicially found to have violated the Fifth Amendment and the Civil Rights Act of 1964 in connection with the selection of sites for public housing in the city of Chicago. The issue before us is whether the remedial order of the federal trial court may extend beyond Chicago's territorial boundaries. I This extended litigation began in 1966 when the respondents, six Negro tenants in or applicants for public housing in Chicago, brought separate actions on behalf of themselves and all other Negro tenants and applicants similarly situated against the Chicago Housing Authority (CHA) and HUD.[1] The complaint filed against CHA in the United States District Court for the Northern District of Illinois alleged that between 1950 and 1965 substantially all of the sites for family public housing selected by CHA and approved by the Chicago City Council were "at the time of such selection, and are now," located "within the areas known as the Negro Ghetto." The respondents further alleged that CHA deliberately selected the sites to "avoid the placement of Negro families in white neighborhoods" in violation of federal statutes and the Fourteenth Amendment. In a companion suit against HUD the respondents claimed that it had "assisted in the carrying on and continues to assist in the carrying on of a racially discriminatory public housing system within the City of Chicago" by providing *287 financial assistance and other support for CHA's discriminatory housing projects.[2] The District Court stayed the action against HUD pending resolution of the CHA suit.[3] In February 1969, the court entered summary judgment against CHA on the ground that it had violated the respondents' constitutional rights by selecting public housing sites and assigning tenants on the basis of race.[4]Gautreaux v. Chicago Housing Authority, 296 F. Supp. 907. Uncontradicted *288 evidence submitted to the District Court established that the public housing system operated by CHA was racially segregated, with four overwhelmingly white projects located in white neighborhoods and with 99 1/2% of the remaining family units located in Negro neighborhoods and 99% of those units occupied by Negro tenants. Id., at 910.[5] In order to prohibit future violations and to remedy the effects of past unconstitutional practices, the court directed CHA to build its next 700 family units in predominantly white areas of Chicago and thereafter to locate at least 75% of its new family public housing in predominantly white areas inside Chicago or in Cook County. Gautreaux v. Chicago Housing Authority, 304 F. Supp. 736, 738-739.[6] In addition, CHA was ordered to modify its tenant-assignment and site-selection procedures and to use its best efforts to increase the supply of dwelling units as rapidly as possible in conformity with the judgment. Id., at 739-741. *289 The District Court then turned to the action against HUD. In September 1970, it granted HUD's motion to dismiss the complaint for lack of jurisdiction and failure to state a claim on which relief could be granted. The United States Court of Appeals for the Seventh Circuit reversed and ordered the District Court to enter summary judgment for the respondents, holding that HUD had violated both the Fifth Amendment and § 601 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S. C. § 2000d, by knowingly sanctioning and assisting CHA's racially discriminatory public housing program. Gautreaux v. Romney, 448 F.2d 731, 739-740.[7] On remand, the trial court addressed the difficult problem of providing an effective remedy for the racially segregated public housing system that had been created by the unconstitutional conduct of CHA and HUD.[8]*290 The court granted the respondents' motion to consolidate the CHA and HUD cases and ordered the parties to formulate "a comprehensive plan to remedy the past effects of unconstitutional site selection procedures." The order directed the parties to "provide the Court with as broad a range of alternatives as seem . . . feasible" including "alternatives which are not confined in their scope to the geographic boundary of the City of Chicago." After consideration of the plans submitted by the parties and the evidence adduced in their support, the court denied the respondents' motion to consider metropolitan area relief and adopted the petitioner's *291 proposed order requiring HUD to use its best efforts to assist CHA in increasing the supply of dwelling units and enjoining HUD from funding family public housing programs in Chicago that were inconsistent with the previous judgment entered against CHA. The court found that metropolitan area relief was unwarranted because "the wrongs were committed within the limits of Chicago and solely against residents of the City" and there were no allegations that "CHA and HUD discriminated or fostered racial discrimination in the suburbs." On appeal, the Court of Appeals for the Seventh Circuit, with one judge dissenting, reversed and remanded the case for "the adoption of a comprehensive metropolitan area plan that will not only disestablish the segregated public housing system in the City of Chicago . . . but will increase the supply of dwelling units as rapidly as possible." 503 F.2d 930, 939. Shortly before the Court of Appeals announced its decision, this Court in Milliken v. Bradley, 418 U.S. 717, had reversed a judgment of the Court of Appeals for the Sixth Circuit that had approved a plan requiring the consolidation of 54 school districts in the Detroit metropolitan area to remedy racial discrimination in the operation of the Detroit public schools. Understanding Milliken "to hold that the relief sought there would be an impractical and unreasonable overresponse to a violation limited to one school district," the Court of Appeals concluded that the Milliken decision did not bar a remedy extending beyond the limits of Chicago in the present case because of the equitable and administrative distinctions between a metropolitan public housing plan and the consolidation of numerous local school districts. 503 F.2d, at 935-936. In addition, the appellate court found that, in contrast to Milliken, there was evidence of suburban discrimination and *292 of the likelihood that there had been an "extra-city impact" of the petitioner's "intra-city discrimination." Id., at 936-937, 939-940. The appellate court's determination that a remedy extending beyond the city limits was both "necessary and equitable" rested in part on the agreement of the parties and the expert witnesses that "the metropolitan area is a single relevant locality for low rent housing purposes and that a city-only remedy will not work." Id., at 936-937. HUD subsequently sought review in this Court of the permissibility in light of Milliken of "inter-district relief for discrimination in public housing in the absence of a finding of an inter-district violation."[9] We granted certiorari to consider this important question. 421 U.S. 962. II In Milliken v. Bradley, supra, this Court considered the proper scope of a federal court's equity decree in the context of a school desegregation case. The respondents in that case had brought an action alleging that the Detroit public school system was segregated on the basis of race as the result of official conduct and sought an order establishing " `a unitary, nonracial school system.' " 418 U.S., at 723. After finding that constitutional violations committed by the Detroit School Board and state officials had contributed to racial segregation in the Detroit schools, the trial court had proceeded to the formulation of a remedy. Although there had been neither proof of unconstitutional actions on the part of neighboring school districts nor a demonstration that the Detroit violations had produced significant segregative effects in those districts, the court established *293 a desegregation panel and ordered it to prepare a remedial plan consolidating the Detroit school system and 53 independent suburban school districts. Id., at 733-734.[10] The Court of Appeals for the Sixth Circuit affirmed the desegregation order on the ground that, in view of the racial composition of the Detroit school system, the only feasible remedy required "the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts." 484 F.2d 215, 249. This Court reversed the Court of Appeals, holding that the multidistrict remedy contemplated by the desegregation order was an erroneous exercise of the equitable authority of the federal courts. Although the Milliken opinion discussed the many practical problems that would be encountered in the consolidation of numerous school districts by judicial decree, the Court's decision rejecting the metropolitan area desegregation order was actually based on fundamental limitations on the remedial powers of the federal courts to restructure the operation of local and state governmental entities. That power is not plenary. It "may be exercised `only on the basis of a constitutional violation.' " 418 U.S., at 738, quoting Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16. See Rizzo v. Goode, 423 U.S. 362, 377. Once a constitutional violation is found, a federal court is required to *294 tailor "the scope of the remedy" to fit "the nature and extent of the constitutional violation." 418 U.S., at 744; Swann, supra, at 16. In Milliken, there was no finding of unconstitutional action on the part of the suburban school officials and no demonstration that the violations committed in the operation of the Detroit school system had had any significant segregative effects in the suburbs. See 418 U.S., at 745, 748. The desegregation order in Milliken requiring the consolidation of local school districts in the Detroit metropolitan area thus constituted direct federal judicial interference with local governmental entities without the necessary predicate of a constitutional violation by those entities or of the identification within them of any significant segregative effects resulting from the Detroit school officials' unconstitutional conduct. Under these circumstances, the Court held that the interdistrict decree was impermissible because it was not commensurate with the constitutional violation to be repaired. Since the Milliken decision was based on basic limitations on the exercise of the equity power of the federal courts and not on a balancing of particular considerations presented by school desegregation cases, it is apparent that the Court of Appeals erred in finding Milliken inapplicable on that ground to this public housing case.[11]*295 The school desegregation context of the Milliken case is nonetheless important to an understanding of its discussion of the limitations on the exercise of federal judicial power. As the Court noted, school district lines cannot be "casually ignored or treated as a mere administrative convenience" because they separate independent governmental entities responsible for the operation of autonomous *296 public school systems. 418 U.S., at 741-743. The Court's holding that there had to be an interdistrict violation or effect before a federal court could order the crossing of district boundary lines reflected the substantive impact of a consolidation remedy on separate and independent school districts.[12] The District Court's desegregation order in Milliken was held to be an impermissible remedy not because it envisioned relief against a wrongdoer extending beyond the city in which the violation occurred but because it contemplated a judicial decree restructuring the operation of local governmental entities that were not implicated in any constitutional violation. III The question presented in this case concerns only the authority of the District Court to order HUD to take remedial action outside the city limits of Chicago. HUD does not dispute the Court of Appeals' determination that it violated the Fifth Amendment and § 601 of the Civil Rights Act of 1964 by knowingly funding CHA's racially discriminatory family public housing program, nor does it question the appropriateness of a remedial order designed to alleviate the effects of past segregative practices by requiring that public housing be developed in areas that will afford respondents an opportunity to reside in desegregated neighborhoods. But HUD contends that the Milliken decision bars a remedy affecting *297 its conduct beyond the boundaries of Chicago for two reasons. First, it asserts that such a remedial order would constitute the grant of relief incommensurate with the constitutional violation to be repaired. And, second, it claims that a decree regulating HUD's conduct beyond Chicago's boundaries would inevitably have the effect of "consolidat[ing] for remedial purposes" governmental units not implicated in HUD's and CHA's violations. We address each of these arguments in turn. A We reject the contention that, since HUD's constitutional and statutory violations were committed in Chicago, Milliken precludes an order against HUD that will affect its conduct in the greater metropolitan area. The critical distinction between HUD and the suburban school districts in Milliken is that HUD has been found to have violated the Constitution. That violation provided the necessary predicate for the entry of a remedial order against HUD and, indeed, imposed a duty on the District Court to grant appropriate relief. See 418 U.S., at 744. Our prior decisions counsel that in the event of a constitutional violation "all reasonable methods be available to formulate an effective remedy," North Carolina State Board of Education v. Swann, 402 U.S. 43, 46, and that every effort should be made by a federal court to employ those methods "to achieve the greatest possible degree of [relief], taking into account the practicalities of the situation." Davis v. School Comm'rs of Mobile County, 402 U.S. 33, 37. As the Court observed in Swann v. Charlotte-Mecklenburg Board of Education: "Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." 402 U.S., at 15. *298 Nothing in the Milliken decision suggests a per se rule that federal courts lack authority to order parties found to have violated the Constitution to undertake remedial efforts beyond the municipal boundaries of the city where the violation occurred.[13] As we noted in Part II, supra, the District Court's proposed remedy in Milliken was impermissible because of the limits on the federal judicial power to interfere with the operation of state political entities that were not implicated in unconstitutional conduct. Here, unlike the desegregation remedy found erroneous in Milliken, a judicial order directing relief beyond the boundary lines of Chicago will not necessarily entail coercion of uninvolved governmental units, because both CHA and HUD have the authority to operate outside the Chicago city limits.[14] *299 In this case, it is entirely appropriate and consistent with Milliken to order CHA and HUD to attempt to create housing alternatives for the respondents in the Chicago suburbs. Here the wrong committed by HUD confined the respondents to segregated public housing. The relevant geographic area for purposes of the respondents' housing options is the Chicago housing market, not the Chicago city limits. That HUD recognizes this reality is evident in its administration of federal housing assistance programs through "housing market areas" encompassing "the geographic area `within which all dwelling units . . .' are in competition with one another as alternatives for the users of housing." Department of Housing and Urban Development, FHA Techniques of Housing Market Analysis 8 (Jan. 1970), quoting the Institute for Urban Land Use and Housing Studies, Housing Market Analysis: A Study of Theory and Methods, c. 2 (1953). The housing market area "usually extends beyond the city limits" and in the larger markets "may extend into several adjoining counties." FHA Techniques of Housing Market Analysis, supra, at 12.[15] An order against HUD and CHA regulating their conduct in the greater metropolitan area will *300 do no more than take into account HUD's expert determination of the area relevant to the respondents' housing opportunities and will thus be wholly commensurate with the "nature and extent of the constitutional violation." 418 U.S., at 744. To foreclose such relief solely because HUD's constitutional violation took place within the city limits of Chicago would transform Milliken's principled limitation on the exercise of federal judicial authority into an arbitrary and mechanical shield for those found to have engaged in unconstitutional conduct. B The more substantial question under Milliken is whether an order against HUD affecting its conduct beyond Chicago's boundaries would impermissibly interfere with local governments and suburban housing authorities that have not been implicated in HUD's unconstitutional conduct. In examining this issue, it is important to note that the Court of Appeals' decision did not endorse or even discuss "any specific metropolitan plan" but instead left the formulation of the remedial plan to the District Court on remand. 503 F.2d, at 936. On rehearing, the Court of Appeals characterized its remand order as one calling "for additional evidence and for further consideration of the issue of metropolitan area relief in light of this opinion and that of the Supreme Court in Milliken v. Bradley." Id., at 940. In the current posture of the case, HUD's contention that any remand for consideration of a metropolitan area order would be impermissible as a matter of law must necessarily be based on its claim at oral argument "that court-ordered metropolitan relief in this case, no matter how gently it's gone about, no matter how it's framed, is bound to require HUD to ignore the safeguards of local autonomy and local political processes" and therefore to violate the limitations on federal judicial power *301 established in Milliken. In addressing this contention we are not called upon, in other words, to evaluate the validity of any specific order, since no such order has yet been formulated. HUD's position, we think, underestimates the ability of a federal court to formulate a decree that will grant the respondents the constitutional relief to which they may be entitled without overstepping the limits of judicial power established in the Milliken case. HUD's discretion regarding the selection of housing proposals to assist with funding as well as its authority under a recent statute to contract for low-income housing directly with private owners and developers can clearly be directed toward providing relief to the respondents in the greater Chicago metropolitan area without preempting the power of local governments by undercutting the role of those governments in the federal housing assistance scheme. An order directing HUD to use its discretion under the various federal housing programs to foster projects located in white areas of the Chicago housing market would be consistent with and supportive of well-established federal housing policy.[16] Title VI of the Civil Rights Act of 1964 prohibits racial discrimination in federally assisted programs including, of course, public housing programs.[17] Based upon this statutory prohibition, HUD in 1967 issued site-approval rules for low-rent *302 housing designed to avoid racial segregation and expand the opportunities of minority group members "to locate outside areas of [minority] concentration." Department of Housing and Urban Development, Low-Rent Housing Manual, § 205.1, ¶ 4g (Feb. 1967 rev.). Title VIII of the Civil Rights Act of 1968 expressly directed the Secretary of HUD to "administer the programs and activities relating to housing and urban development in a manner affirmatively to further" the Act's fair housing policy. 82 Stat. 85, 42 U.S. C. § 3608 (d) (5). Among the steps taken by HUD to discharge its statutory duty to promote fair housing was the adoption of project-selection criteria for use in "eliminating clearly unacceptable proposals and assigning priorities in funding to assure that the best proposals are funded first." HUD Evaluation of Rent Supplement Projects and Low-Rent Housing Assistance Applications, 37 Fed. Reg. 203 (1972). In structuring the minority housing opportunity component of the project-selection criteria, HUD attempted "to assure that building in minority areas goes forward only after there truly exist housing opportunities for minorities elsewhere" in the housing market and to avoid encouraging projects located in substantially racially mixed areas. Id., at 204. See 24 CFR § 200.710 (1975). See generally Maxwell, HUD's Project Selection Criteria—A Cure for "Impermissible Color Blindness"?, 48 Notre Dame Law. 92 (1972).[18] More recently, in *303 the Housing and Community Development Act of 1974, Congress emphasized the importance of locating housing so as to promote greater choice of housing opportunities and to avoid undue concentrations of lower income persons. See 88 Stat. 633, 42 U.S. C. §§ 5301 (c) (6), 5304 (a) (4) (A), (C) (ii) (1970 ed., Supp. IV); H. R. Rep. No. 93-1114, p. 8 (1974). A remedial plan designed to insure that HUD will utilize its funding and administrative powers in a manner consistent with affording relief to the respondents need not abrogate the role of local governmental units in the federal housing-assistance programs. Under the major housing programs in existence at the time the District Court entered its remedial order pertaining to HUD, local housing authorities and municipal governments had to make application for funds or approve the use of funds in the locality before HUD could make housing-assistance money available. See 42 U.S. C. §§ 1415 (7) (b), 1421b (a) (2). An order directed solely to HUD would not force unwilling localities to apply for assistance under these programs but would merely reinforce the regulations guiding HUD's determination of which of the locally authorized projects to assist with federal funds. The Housing and Community Development Act of 1974, amending the United States Housing Act of 1937, 88 Stat. 653, 42 U.S. C. § 1437 et seq. (1970 ed., Supp. IV), significantly enlarged HUD's role in the creation of housing opportunities. Under the § 8 Lower-Income Housing Assistance program, which has largely replaced the older federal low-income housing programs,[19] HUD *304 may contract directly with private owners to make leased housing units available to eligible lower income persons.[20] As HUD has acknowledged in this case, "local governmental approval is no longer explicitly required as a condition of the program's applicability to a locality." Brief for Petitioner 33-34. Regulations governing the § 8 program permit HUD to select "the geographic area or areas in which the housing is to be constructed," 24 CFR § 880.203 (b) (1975), and direct that sites be chosen to "promote greater choice of housing opportunities and avoid undue concentration of assisted persons in areas containing a high proportion of low-income persons." §§ 880.112 (d), 883.209 (a) (3). See §§ 880.112 (b), (c), 883.209 (a) (2), (b) (2). In most cases the Act grants the unit of local government in which the assistance is to be provided the right to comment on the application and, in certain specified circumstances, to preclude the Secretary of HUD from approving the application. See 42 U.S. C. §§ 1439 (a)-(c) (1970 ed., Supp. IV).[21]*305 Use of the § 8 program to expand low-income housing opportunities outside areas of minority concentration would not have a coercive effect on suburban municipalities. For under the program, the local governmental units retain the right to comment on specific assistance proposals, to reject certain proposals that are inconsistent with their approved housing-assistance plans, and to require that zoning and other land-use restrictions be adhered to by builders. In sum, there is no basis for the petitioner's claim that court-ordered metropolitan area relief in this case would be impermissible as a matter of law under the Milliken decision. In contrast to the desegregation order in that case, a metropolitan area relief order directed to HUD would not consolidate or in any way restructure local *306 governmental units. The remedial decree would neither force suburban governments to submit public housing proposals to HUD nor displace the rights and powers accorded local government entities under federal or state housing statutes or existing land-use laws. The order would have the same effect on the suburban governments as a discretionary decision by HUD to use its statutory powers to provide the respondents with alternatives to the racially segregated Chicago public housing system created by CHA and HUD. Since we conclude that a metropolitan area remedy in this case is not impermissible as a matter of law, we affirm the judgment of the Court of Appeals remanding the case to the District Court "for additional evidence and for further consideration of the issue of metropolitan area relief." 503 F.2d, at 940. Our determination that the District Court has the authority to direct HUD to engage in remedial efforts in the metropolitan area outside the city limits of Chicago should not be interpreted as requiring a metropolitan area order. The nature and scope of the remedial decree to be entered on remand is a matter for the District Court in the exercise of its equitable discretion, after affording the parties an opportunity to present their views. The judgment of the Court of Appeals remanding this case to the District Court is affirmed, but further proceedings in the District Court are to be consistent with this opinion. It is so ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR.

The United States Department of Housing and Urban Development (HUD) has been judicially found to have violated the Fifth Amendment and the Civil Rights Act of 1964 in connection with the selection of sites for public housing in the city of Chicago. The issue before us is whether the remedial order of the federal trial court may extend beyond Chicago's territorial boundaries. I This extended litigation began in 1966 when the respondents, six Negro tenants in or applicants for public housing in Chicago, brought separate actions on behalf of themselves and all other Negro tenants and applicants similarly situated against the Chicago Housing Authority (CHA) and HUD.[1] The complaint filed against CHA in the United States District Court for the Northern District of Illinois alleged that between 1950 and 1965 substantially all of the sites for family public housing selected by CHA and approved by the Chicago City Council were "at the time of such selection, and are now," located "within the areas known as the Negro Ghetto." The respondents further alleged that CHA deliberately selected the sites to "avoid the placement of Negro families in white neighborhoods" in violation of federal statutes and the Fourteenth Amendment. In a companion suit against HUD the respondents claimed that it had "assisted in the carrying on and continues to assist in the carrying on of a racially discriminatory public housing system within the City of Chicago" by providing *287 financial assistance and other support for CHA's discriminatory housing projects.[2] The District Court stayed the action against HUD pending resolution of the CHA suit.[3] In February 1969, the court entered summary judgment against CHA on the ground that it had violated the respondents' constitutional rights by selecting public housing sites and assigning tenants on the basis of Uncontradicted *288 evidence submitted to the District Court established that the public housing system operated by CHA was racially segregated, with four overwhelmingly white projects located in white neighborhoods and with 99 1/2% of the remaining family units located in Negro neighborhoods and 99% of those units occupied by Negro tenants.[5] In order to prohibit future violations and to remedy the effects of past unconstitutional practices, the court directed CHA to build its next 700 family units in predominantly white areas of Chicago and thereafter to locate at least 75% of its new family public housing in predominantly white areas inside Chicago or in Cook County.[6] In addition, CHA was ordered to modify its tenant-assignment and site-selection procedures and to use its best efforts to increase the supply of dwelling units as rapidly as possible in conformity with the judgment. *289 The District Court then turned to the action against HUD. In September 1970, it granted HUD's motion to dismiss the complaint for lack of jurisdiction and failure to state a claim on which relief could be granted. The United States Court of Appeals for the Seventh Circuit reversed and ordered the District Court to enter summary judgment for the respondents, holding that HUD had violated both the Fifth Amendment and 601 of the Civil Rights Act of 1964, 42 U.S. C. 2000d, by knowingly sanctioning and assisting CHA's racially discriminatory public housing program.[7] On remand, the trial court addressed the difficult problem of providing an effective remedy for the racially segregated public housing system that had been created by the unconstitutional conduct of CHA and HUD.[8]*290 The court granted the respondents' motion to consolidate the CHA and HUD cases and ordered the parties to formulate "a comprehensive plan to remedy the past effects of unconstitutional site selection procedures." The order directed the parties to "provide the Court with as broad a range of alternatives as seem feasible" including "alternatives which are not confined in their scope to the geographic boundary of the City of Chicago." After consideration of the plans submitted by the parties and the evidence adduced in their support, the court denied the respondents' motion to consider metropolitan area relief and adopted the petitioner's *291 proposed order requiring HUD to use its best efforts to assist CHA in increasing the supply of dwelling units and enjoining HUD from funding family public housing programs in Chicago that were inconsistent with the previous judgment entered against CHA. The court found that metropolitan area relief was unwarranted because "the wrongs were committed within the limits of Chicago and solely against residents of the City" and there were no allegations that "CHA and HUD discriminated or fostered racial discrimination in the suburbs." On appeal, the Court of Appeals for the Seventh Circuit, with one judge dissenting, reversed and remanded the case for "the adoption of a comprehensive metropolitan area plan that will not only disestablish the segregated public housing system in the City of Chicago but will increase the supply of dwelling units as rapidly as possible." Shortly before the Court of Appeals announced its decision, this Court in had reversed a judgment of the Court of Appeals for the Sixth Circuit that had approved a plan requiring the consolidation of 54 school districts in the Detroit metropolitan area to remedy racial discrimination in the operation of the Detroit public schools. Understanding Milliken "to hold that the relief sought there would be an impractical and unreasonable overresponse to a violation limited to one school district," the Court of Appeals concluded that the Milliken decision did not bar a remedy extending beyond the limits of Chicago in the present case because of the equitable and administrative distinctions between a metropolitan public housing plan and the consolidation of numerous local school districts. -936. In addition, the appellate court found that, in contrast to Milliken, there was evidence of suburban discrimination and *292 of the likelihood that there had been an "extra-city impact" of the petitioner's "intra-city discrimination." -940. The appellate court's determination that a remedy extending beyond the city limits was both "necessary and equitable" rested in part on the agreement of the parties and the expert witnesses that "the metropolitan area is a single relevant locality for low rent housing purposes and that a city-only remedy will not work." HUD subsequently sought review in this Court of the permissibility in light of Milliken of "inter-district relief for discrimination in public housing in the absence of a finding of an inter-district violation."[9] We granted certiorari to consider this important question. In this Court considered the proper scope of a federal court's equity decree in the context of a school desegregation case. The respondents in that case had brought an action alleging that the Detroit public school system was segregated on the basis of race as the result of official conduct and sought an order establishing " `a unitary, nonracial school system.' " After finding that constitutional violations committed by the Detroit School Board and state officials had contributed to racial segregation in the Detroit schools, the trial court had proceeded to the formulation of a remedy. Although there had been neither proof of unconstitutional actions on the part of neighboring school districts nor a demonstration that the Detroit violations had produced significant segregative effects in those districts, the court established *293 a desegregation panel and ordered it to prepare a remedial plan consolidating the Detroit school system and 53 independent suburban school districts.[10] The Court of Appeals for the Sixth Circuit affirmed the desegregation order on the ground that, in view of the racial composition of the Detroit school system, the only feasible remedy required "the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts." This Court reversed the Court of Appeals, holding that the multidistrict remedy contemplated by the desegregation order was an erroneous exercise of the equitable authority of the federal courts. Although the Milliken opinion discussed the many practical problems that would be encountered in the consolidation of numerous school districts by judicial decree, the Court's decision rejecting the metropolitan area desegregation order was actually based on fundamental limitations on the remedial powers of the federal courts to restructure the operation of local and state governmental entities. That power is not plenary. It "may be exercised `only on the basis of a constitutional violation.' " quoting See Once a constitutional violation is found, a federal court is required to *294 tailor "the scope of the remedy" to fit "the nature and extent of the constitutional violation." ; at In Milliken, there was no finding of unconstitutional action on the part of the suburban school officials and no demonstration that the violations committed in the operation of the Detroit school system had had any significant segregative effects in the suburbs. See 748. The desegregation order in Milliken requiring the consolidation of local school districts in the Detroit metropolitan area thus constituted direct federal judicial interference with local governmental entities without the necessary predicate of a constitutional violation by those entities or of the identification within them of any significant segregative effects resulting from the Detroit school officials' unconstitutional conduct. Under these circumstances, the Court held that the interdistrict decree was impermissible because it was not commensurate with the constitutional violation to be repaired. Since the Milliken decision was based on basic limitations on the exercise of the equity power of the federal courts and not on a balancing of particular considerations presented by school desegregation cases, it is apparent that the Court of Appeals erred in finding Milliken inapplicable on that ground to this public housing case.[11]*295 The school desegregation context of the Milliken case is nonetheless important to an understanding of its discussion of the limitations on the exercise of federal judicial power. As the Court noted, school district lines cannot be "casually ignored or treated as a mere administrative convenience" because they separate independent governmental entities responsible for the operation of autonomous *296 public school systems. -743. The Court's holding that there had to be an interdistrict violation or effect before a federal court could order the crossing of district boundary lines reflected the substantive impact of a consolidation remedy on separate and independent school districts.[12] The District Court's desegregation order in Milliken was held to be an impermissible remedy not because it envisioned relief against a wrongdoer extending beyond the city in which the violation occurred but because it contemplated a judicial decree restructuring the operation of local governmental entities that were not implicated in any constitutional violation. I The question presented in this case concerns only the authority of the District Court to order HUD to take remedial action outside the city limits of Chicago. HUD does not dispute the Court of Appeals' determination that it violated the Fifth Amendment and 601 of the Civil Rights Act of 1964 by knowingly funding CHA's racially discriminatory family public housing program, nor does it question the appropriateness of a remedial order designed to alleviate the effects of past segregative practices by requiring that public housing be developed in areas that will afford respondents an opportunity to reside in desegregated neighborhoods. But HUD contends that the Milliken decision bars a remedy affecting *297 its conduct beyond the boundaries of Chicago for two reasons. First, it asserts that such a remedial order would constitute the grant of relief incommensurate with the constitutional violation to be repaired. And, second, it claims that a decree regulating HUD's conduct beyond Chicago's boundaries would inevitably have the effect of "consolidat[ing] for remedial purposes" governmental units not implicated in HUD's and CHA's violations. We address each of these arguments in turn. A We reject the contention that, since HUD's constitutional and statutory violations were committed in Chicago, Milliken precludes an order against HUD that will affect its conduct in the greater metropolitan area. The critical distinction between HUD and the suburban school districts in Milliken is that HUD has been found to have violated the Constitution. That violation provided the necessary predicate for the entry of a remedial order against HUD and, indeed, imposed a duty on the District Court to grant appropriate relief. See Our prior decisions counsel that in the event of a constitutional violation "all reasonable methods be available to formulate an effective remedy," North Carolina State Board of Education v. and that every effort should be made by a federal court to employ those methods "to achieve the greatest possible degree of [relief], taking into account the practicalities of the situation." As the Court observed in : "Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." *298 Nothing in the Milliken decision suggests a per se rule that federal courts lack authority to order parties found to have violated the Constitution to undertake remedial efforts beyond the municipal boundaries of the city where the violation occurred.[13] As we noted in Part the District Court's proposed remedy in Milliken was impermissible because of the limits on the federal judicial power to interfere with the operation of state political entities that were not implicated in unconstitutional conduct. Here, unlike the desegregation remedy found erroneous in Milliken, a judicial order directing relief beyond the boundary lines of Chicago will not necessarily entail coercion of uninvolved governmental units, because both CHA and HUD have the authority to operate outside the Chicago city limits.[14] *299 In this case, it is entirely appropriate and consistent with Milliken to order CHA and HUD to attempt to create housing alternatives for the respondents in the Chicago suburbs. Here the wrong committed by HUD confined the respondents to segregated public housing. The relevant geographic area for purposes of the respondents' housing options is the Chicago housing market, not the Chicago city limits. That HUD recognizes this reality is evident in its administration of federal housing assistance programs through "housing market areas" encompassing "the geographic area `within which all dwelling units' are in competition with one another as alternatives for the users of housing." Department of Housing and Urban Development, FHA Techniques of Housing Market 8 (Jan. 1970), quoting the Institute for Urban Land Use and Housing Studies, Housing Market : A Study of Theory and Methods, c. 2 (1953). The housing market area "usually extends beyond the city limits" and in the larger markets "may extend into several adjoining counties." FHA Techniques of Housing Market[15] An order against HUD and CHA regulating their conduct in the greater metropolitan area will *300 do no more than take into account HUD's expert determination of the area relevant to the respondents' housing opportunities and will thus be wholly commensurate with the "nature and extent of the constitutional violation." To foreclose such relief solely because HUD's constitutional violation took place within the city limits of Chicago would transform Milliken's principled limitation on the exercise of federal judicial authority into an arbitrary and mechanical shield for those found to have engaged in unconstitutional conduct. B The more substantial question under Milliken is whether an order against HUD affecting its conduct beyond Chicago's boundaries would impermissibly interfere with local governments and suburban housing authorities that have not been implicated in HUD's unconstitutional conduct. In examining this issue, it is important to note that the Court of Appeals' decision did not endorse or even discuss "any specific metropolitan plan" but instead left the formulation of the remedial plan to the District Court on remand. On rehearing, the Court of Appeals characterized its remand order as one calling "for additional evidence and for further consideration of the issue of metropolitan area relief in light of this opinion and that of the Supreme Court in" In the current posture of the case, HUD's contention that any remand for consideration of a metropolitan area order would be impermissible as a matter of law must necessarily be based on its claim at oral argument "that court-ordered metropolitan relief in this case, no matter how gently it's gone about, no matter how it's framed, is bound to require HUD to ignore the safeguards of local autonomy and local political processes" and therefore to violate the limitations on federal judicial power *301 established in Milliken. In addressing this contention we are not called upon, in other words, to evaluate the validity of any specific order, since no such order has yet been formulated. HUD's position, we think, underestimates the ability of a federal court to formulate a decree that will grant the respondents the constitutional relief to which they may be entitled without overstepping the limits of judicial power established in the Milliken case. HUD's discretion regarding the selection of housing proposals to assist with funding as well as its authority under a recent statute to contract for low-income housing directly with private owners and developers can clearly be directed toward providing relief to the respondents in the greater Chicago metropolitan area without preempting the power of local governments by undercutting the role of those governments in the federal housing assistance scheme. An order directing HUD to use its discretion under the various federal housing programs to foster projects located in white areas of the Chicago housing market would be consistent with and supportive of well-established federal housing policy.[] Title VI of the Civil Rights Act of 1964 prohibits racial discrimination in federally assisted programs including, of course, public housing programs.[17] Based upon this statutory prohibition, HUD in 1967 issued site-approval rules for low-rent *302 housing designed to avoid racial segregation and expand the opportunities of minority group members "to locate outside areas of [minority] concentration." Department of Housing and Urban Development, Low-Rent Housing Manual, 205.1, ¶ 4g (Feb. 1967 rev.). Title VI of the Civil Rights Act of 1968 expressly directed the Secretary of HUD to "administer the programs and activities relating to housing and urban development in a manner affirmatively to further" the Act's fair housing policy. 42 U.S. C. 3608 (d) (5). Among the steps taken by HUD to discharge its statutory duty to promote fair housing was the adoption of project-selection criteria for use in "eliminating clearly unacceptable proposals and assigning priorities in funding to assure that the best proposals are funded first." HUD Evaluation of Rent Supplement Projects and Low-Rent Housing Assistance Applications, Fed. Reg. 203 In structuring the minority housing opportunity component of the project-selection criteria, HUD attempted "to assure that building in minority areas goes forward only after there truly exist housing opportunities for minorities elsewhere" in the housing market and to avoid encouraging projects located in substantially racially mixed areas. See 24 CFR 200.710 (1975). See generally Maxwell, HUD's Project Selection Criteria—A Cure for "Impermissible Color Blindness"?,[18] More recently, in *303 the Housing and Community Development Act of 1974, Congress emphasized the importance of locating housing so as to promote greater choice of housing opportunities and to avoid undue concentrations of lower income persons. See 42 U.S. C. 5301 (c) (6), 5304 (a) (4) (A), (C) (ii) (1970 ed., Supp. IV); H. R. Rep. No. 93-1114, p. 8 (1974). A remedial plan designed to insure that HUD will utilize its funding and administrative powers in a manner consistent with affording relief to the respondents need not abrogate the role of local governmental units in the federal housing-assistance programs. Under the major housing programs in existence at the time the District Court entered its remedial order pertaining to HUD, local housing authorities and municipal governments had to make application for funds or approve the use of funds in the locality before HUD could make housing-assistance money available. See 42 U.S. C. 1415 (7) 1421b (a) (2). An order directed solely to HUD would not force unwilling localities to apply for assistance under these programs but would merely reinforce the regulations guiding HUD's determination of which of the locally authorized projects to assist with federal funds. The Housing and Community Development Act of 1974, amending the United States Housing Act of 19, 42 U.S. C. 14 et seq. (1970 ed., Supp. IV), significantly enlarged HUD's role in the creation of housing opportunities. Under the 8 Lower-Income Housing Assistance program, which has largely replaced the older federal low-income housing programs,[19] HUD *304 may contract directly with private owners to make leased housing units available to eligible lower income persons.[20] As HUD has acknowledged in this case, "local governmental approval is no longer explicitly required as a condition of the program's applicability to a locality." Brief for Petitioner 33-34. Regulations governing the 8 program permit HUD to select "the geographic area or areas in which the housing is to be constructed," 24 CFR 880.203 (1975), and direct that sites be chosen to "promote greater choice of housing opportunities and avoid undue concentration of assisted persons in areas containing a high proportion of low-income persons." 880.112 (d), 883.209 (a) (3). See 880.112 (c), 883.209 (a) (2), (2). In most cases the Act grants the unit of local government in which the assistance is to be provided the right to comment on the application and, in certain specified circumstances, to preclude the Secretary of HUD from approving the application. See 42 U.S. C. 1439 (a)-(c) (1970 ed., Supp. IV).[21]*305 Use of the 8 program to expand low-income housing opportunities outside areas of minority concentration would not have a coercive effect on suburban municipalities. For under the program, the local governmental units retain the right to comment on specific assistance proposals, to reject certain proposals that are inconsistent with their approved housing-assistance plans, and to require that zoning and other land-use restrictions be adhered to by builders. In sum, there is no basis for the petitioner's claim that court-ordered metropolitan area relief in this case would be impermissible as a matter of law under the Milliken decision. In contrast to the desegregation order in that case, a metropolitan area relief order directed to HUD would not consolidate or in any way restructure local *306 governmental units. The remedial decree would neither force suburban governments to submit public housing proposals to HUD nor displace the rights and powers accorded local government entities under federal or state housing statutes or existing land-use laws. The order would have the same effect on the suburban governments as a discretionary decision by HUD to use its statutory powers to provide the respondents with alternatives to the racially segregated Chicago public housing system created by CHA and HUD. Since we conclude that a metropolitan area remedy in this case is not impermissible as a matter of law, we affirm the judgment of the Court of Appeals remanding the case to the District Court "for additional evidence and for further consideration of the issue of metropolitan area relief." 503 F.2d, Our determination that the District Court has the authority to direct HUD to engage in remedial efforts in the metropolitan area outside the city limits of Chicago should not be interpreted as requiring a metropolitan area order. The nature and scope of the remedial decree to be entered on remand is a matter for the District Court in the exercise of its equitable discretion, after affording the parties an opportunity to present their views. The judgment of the Court of Appeals remanding this case to the District Court is affirmed, but further proceedings in the District Court are to be consistent with this opinion. It is so ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR.

Justice Stevens

concurring

Givhan v. Western Line Consol. School Dist.

https://www.courtlistener.com/opinion/109967/givhan-v-western-line-consol-school-dist/

https://www.courtlistener.com/api/rest/v3/clusters/109967/

1978-025

Because this Court's opinion in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, had not been announced when the District Court decided this case, it did not expressly find that respondents would have rehired petitioner if she had not engaged in constitutionally protected conduct. The District Court did find, however, that petitioner's protected conduct was the "primary" reason for respondents' decision.[*] The *418 Court of Appeals regarded that finding as foreclosing respondents' Mt. Healthy claim. In essence, the Court of Appeals concluded that the District Court would have made an appropriate finding on the issue if it had access to our Mt. Healthy opinion. My understanding of the District Court's finding is the same as the Court of Appeals'. Nevertheless, I agree that the District Court should have the opportunity to decide whether there is any need for further proceedings on the issue. If that court regards the present record as adequate to enable it to supplement its original findings without taking additional evidence, it is free to do so. On that understanding, I join the Court's opinion.

Because this Court's opinion in Mt. Healthy City Bd. of had not been announced when the District Court decided this case, it did not expressly find that respondents would have rehired petitioner if she had not engaged in constitutionally protected conduct. The District Court did find, however, that petitioner's protected conduct was the "primary" reason for respondents' decision.[*] The *418 Court of Appeals regarded that finding as foreclosing respondents' Mt. Healthy claim. In essence, the Court of Appeals concluded that the District Court would have made an appropriate finding on the issue if it had access to our Mt. Healthy opinion. My understanding of the District Court's finding is the same as the Court of Appeals'. Nevertheless, I agree that the District Court should have the opportunity to decide whether there is any need for further proceedings on the issue. If that court regards the present record as adequate to enable it to supplement its original findings without taking additional evidence, it is free to do so. On that understanding, I join the Court's opinion.

Justice Breyer

majority

O'Gilvie v. United States

https://www.courtlistener.com/opinion/118070/ogilvie-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118070/

1996-009

Internal Revenue Code § 104(a)(2), as it read in 1988, excluded from "gross income" the "amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness. " 26 U.S. C. § 104(a)(2) (emphasis added). The issue before us is whether this provision applies to (and thereby makes nontaxable) punitive damages received by a plaintiff in a tort suit for personal injuries. We conclude that the punitive damages received here were not received "on account of " personal injuries; hence the provision does not apply, and the damages are taxable. I Petitioners in this litigation are the husband and two children of Betty O'Gilvie, who died in 1983 of toxic shock syndrome. Her husband, Kelly, brought a tort suit (on his own behalf and that of her estate) based on Kansas law against the maker of the product that caused Betty O'Gilvie's death. Eventually, he and the two children received the net proceeds of a jury award of $1,525,000 actual damages and $10 million punitive damages. Insofar as the proceeds represented punitive damages, petitioners paid income tax on the proceeds but immediately sought a refund. The litigation before us concerns petitioners' legal entitlement to that refund. Procedurally speaking, the litigation represents the consolidation of two cases brought in the same Federal District Court: Kelly's suit against the Government for a refund, and the Government's suit against the children to recover the refund that the Government had made to the children earlier. 26 U.S. C. § 7405(b) (authorizing *82 suits by the United States to recover refunds erroneously made). The Federal District Court held on the merits that the statutory phrase "damages . . . On account of personal injury or sickness" includes punitive damages, thereby excluding punitive damages from gross income and entitling Kelly to obtain, and the children to keep, their refund. The Court of Appeals for the Tenth Circuit, however, reversed the District Court. Along with the Fourth, Ninth, and Federal Circuits, it held that the exclusionary provision does not cover punitive damages. 66 F.3d 1550 (1995). Because the Sixth Circuit has held the contrary, the Circuits are divided about the proper interpretation of the provision. We granted certiorari to resolve this conflict. II Petitioners received the punitive damages at issue here "by suit"—indeed "by" an ordinary "suit" for "personal injuries." Contrast United States v. Burke, 504 U.S. 229 (1992) (§ 104(a)(2) exclusion not applicable to backpay awarded under Title VII of the Civil Rights Act of 1964 because the claim was not based upon "`tort or tort type rights,' " id., at 233); Commissioner v. Schleier, 515 U.S. 323 (1995) (alternative holding) (Age Discrimination in Employment Act of 1967 (ADEA) claim is similar to Title VII claim in Burke in this respect). These legal circumstances bring those damages within the gross-income-exclusion provision, however, only if petitioners also "received" those damages "on account of" the "personal injuries." And the phrase "on account of" does not unambiguously define itself. On one linguistic interpretation of those words, that of petitioners, they require no more than a "but-for" connection between "any" damages and a lawsuit for personal injuries. They would thereby bring virtually all personal injury lawsuit damages within the scope of the provision, since: "but for the personal injury, there would be no lawsuit, and but for the lawsuit, there would be no damages." *83 On the Government's alternative interpretation, however, those words impose a stronger causal connection, making the provision applicable only to those personal injury lawsuit damages that were awarded by reason of, or because of, the personal injuries. To put the matter more specifically, they would make the section inapplicable to punitive damages, where those damages "`are not compensation for injury [but] [i]nstead . . . are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.' " Elec- trical Workers v. Foust, 442 U.S. 42, 48 (1979), quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (footnote omitted). The Government says that such damages were not "received. . . on account of" the personal injuries, but rather were awarded "on account of" a defendant's reprehensible conduct and the jury's need to punish and to deter it. Hence, despite some historical uncertainty about the matter, see Rev. Rul. 75-45, 1975-1 Cum. Bull. 47, revoked by Rev. Rul. 84-108, 1984-2 Cum. Bull. 32, the Government now concludes that these punitive damages fall outside the statute's coverage. We agree with the Government's interpretation of the statute. For one thing, its interpretation gives the phrase "on account of" a meaning consistent with the dictionary definition. See, e. g., Webster's Third New International Dictionary 13 (1981) ("for the sake of: by reason of: because of"). More important, in Schleier, supra, we came close to resolving the statute's ambiguity in the Government's favor. That case did not involve damages received in an ordinary tort suit; it involved liquidated damages and backpay received in a settlement of a lawsuit charging a violation of the ADEA. Nonetheless, in deciding one of the issues there presented (whether the provision now before us covered ADEA liquidated damages), we contrasted the elements of *84 an ordinary tort recovery with ADEA liquidated damages. We said that pain and suffering damages, medical expenses, and lost wages in an ordinary tort case are covered by the statute and hence excluded from income "not simply because the taxpayer received a tort settlement, but rather because each element . . . satisfies the requirement . . . that the damages were received `on account of personal injuries or sickness.' " Id., at 330. In holding that ADEA liquidated damages are not covered, we said that they are not "designed to compensate ADEA victims," id., at 332, n. 5; instead, they are "`punitive in nature,' " id., at 332, quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125 (1985). Applying the same reasoning here would lead to the conclusion that the punitive damages are not covered because they are an element of damages not "designed to compensate. . . victims," Schleier, 515 U. S., at 332; rather they are "`punitive in nature,' " ibid. Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an "independent" ground in support of our decision, id., at 334. We cannot accept petitioners' claim that it was simply a dictum. We also find the Government's reading more faithful to the history of the statutory provision as well as the basic tax-related purpose that the history reveals. That history begins in approximately 1918. At that time, this Court had recently decided several cases based on the principle that a restoration of capital was not income; hence it fell outside the definition of "income" upon which the law imposed a tax. E. g., Doyle v. Mitchell Brothers Co., 247 U.S. 179, 187 (1918); Southern Pacific Co. v. Lowe, 247 U.S. 330, 335 (1918). The Attorney General then advised the Secretary of the Treasury that proceeds of an accident insurance policy should be treated as nontaxable because they primarily *85 "substitute . . . capital which is the source of future periodical income . . . merely tak[ing] the place of capital in human ability which was destroyed by the accident. They are therefore [nontaxable] `capital' as distinguished from `income' receipts." 31 Op. Atty. Gen. 304, 308 (1918). The Treasury Department added that "upon similar principles . . . an amount received by an individual as the result of a suit or compromise for personal injuries sustained by him through accident is not income [that is] taxable. . . ." T. D. 2747, 20 Treas. Dec. Int. Rev. 457 (1918). Soon thereafter, Congress enacted the first predecessor of the provision before us. That provision excluded from income "[a]mounts received, through accident or health insurance or under workmen's compensation acts, as compensation for personal injuries or sickness, plus the amount of any damages received whether by suit or agreement on account of such injuries or sickness." Revenue Act of 1918, ch. 18, § 213(b)(6), 40 Stat. 1066. The provision is similar to the cited materials from the Attorney General and the Secretary of the Treasury in language and structure, all of which suggests that Congress sought, in enacting the statute, to codify the Treasury's basic approach. A contemporaneous House Report, insofar as relevant, confirms this similarity of approach, for it says: "Under the present law it is doubtful whether amounts received through accident or health insurance, or under workmen's compensation acts, as compensation for personal injury or sickness, and damages received on account of such injuries or sickness, are required to be included in gross income. The proposed bill provides *86 that such amounts shall not be included in gross income." H. R. Rep. No. 767, pp. 9-10 (1918). This history and the approach it reflects suggest there is no strong reason for trying to interpret the statute's language to reach beyond those damages that, making up for a loss, seek to make a victim whole, or, speaking very loosely, "return the victim's personal or financial capital." We concede that the original provision's language does go beyond what one might expect a purely tax-policy-related "human capital" rationale to justify. That is because the language excludes from taxation not only those damages that aim to substitute for a victim's physical or personal wellbeing—personal assets that the Government does not tax and would not have taxed had the victim not lost them. It also excludes from taxation those damages that substitute, say, for lost wages, which would have been taxed had the victim earned them. To that extent, the provision can make the compensated taxpayer better off from a tax perspective than had the personal injury not taken place. But to say this is not to support cutting the statute totally free from its original moorings in victim loss. The statute's failure to separate those compensatory elements of damages (or accident insurance proceeds) one from the other does not change its original focus upon damages that restore a loss, that seek to make a victim whole, with a tax-equality objective providing an important part of, even if not the entirety of, the statute's rationale. All this is to say that the Government's interpretation of the current provision (the wording of which has not changed significantly from the original) is more consistent than is petitioners' with the statute's original focus. Finally, we have asked why Congress might have wanted the exclusion to have covered these punitive damages, and we have found no very good answer. Those damages are not a substitute for any normally untaxed personal (or financial) quality, good, or "asset." They do not compensate for *87 any kind of loss. The statute's language does not require, or strongly suggest, their exclusion from income. And we can find no evidence that congressional generosity or concern for administrative convenience stretched beyond the bounds of an interpretation that would distinguish compensatory from noncompensatory damages. Of course, as we have just said, from the perspective of tax policy one might argue that noncompensatory punitive damages and, for example, compensatory lost wages are much the same thing. That is, in both instances, exclusion from gross income provides the taxpayer with a windfall. This circumstance alone, however, does not argue strongly for an interpretation that covers punitive damages, for coverage of compensatory damages has both language and history in its favor to a degree that coverage of noncompensatory punitive damages does not. Moreover, this policy argument assumes that coverage of lost wages is something of an anomaly; if so, that circumstance would not justify the extension of the anomaly or the creation of another. See Wolfman, Current Issues of Federal Tax Policy, 16 U. Ark. Little Rock L. J. 543, 549-550 (1994) ("[T]o build upon" what is, from a tax policy perspective, the less easily explained portion "of the otherwise rational exemption for personal injury," simply "does not make sense"). Petitioners make three sorts of arguments to the contrary. First, they emphasize certain words or phrases in the original, or current, provision that work in their favor. For example, they stress the word "any" in the phrase "any damages." And they note that in both original and current versions Congress referred to certain amounts of money received (from workmen's compensation, for example) as "amounts received . . . as compensation," while here they refer only to "damages received" without adding the limiting phrase "as compensation." 26 U.S. C. § 104(a); Revenue Act of 1918, § 213(b)(6), 40 Stat. 1066. They add that in the original version, the words "on account of personal injuries" *88 might have referred to, and modified, the kind of lawsuit, not the kind of damages. And they find support for this view in the second sentence of the Treasury Regulation first adopted in 1958 which says: "The term `damages received (whether by suit or agreement)' means an amount received (other than workmen's compensation) through prosecution of a legal suit or action based upon tort or tort type rights, or through a settlement agreement entered into in lieu of such prosecution." 26 CFR § 1.104-1(c) (1996). These arguments, however, show only that one can reasonably read the statute's language in different ways—the very assumption upon which our analysis rests. They do not overcome our interpretation of the provision in Schleier, nor do they change the provision's history. The help that the Treasury Regulation's second sentence gives the petitioners is offset by its first sentence, which says that the exclusion applies to damages received "on account of personal injuries or sickness," and which we have held sets forth an independent requirement. Schleier, 515 U. S., at 336. See Appendix, infra, at 92. Second, petitioners argue that to some extent the purposes that might have led Congress to exclude, say, lost wages from income would also have led Congress to exclude punitive damages, for doing so is both generous to victims and avoids such administrative problems as separating punitive from compensatory portions of a global settlement or determining the extent to which a punitive damages award is itself intended to compensate. Our problem with these arguments is one of degree. Tax generosity presumably has its limits. The administrative problem of distinguishing punitive from compensatory elements is likely to be less serious than, say, distinguishing among the compensatory elements of a settlement (which difficulty might account for the statute's treatment of, say, lost *89 wages). And, of course, the problem of identifying the elements of an ostensibly punitive award does not exist where, as here, relevant state law makes clear that the damages at issue are not at all compensatory, but entirely punitive. Brewer v. Home-Stake Production Co., 200 Kan. 96, 100, 434 P.2d 828, 831 (1967) ("[E]xemplary damages are not regarded as compensatory in any degree"); accord, Smith v. Printup, 254 Kan. 315, 866 P.2d 985 (1993); Folks v. Kansas Power & Light Co., 243 Kan. 57, 755 P.2d 1319 (1988); Nordstrom v. Miller, 227 Kan. 59, 605 P.2d 545 (1980). Third, petitioners rely upon a later enacted law. In 1989, Congress amended the law so that it now specifically says the personal injury exclusion from gross income "shall not apply to any punitive damages in connection with a case not involving physical injury or physical sickness." 26 U.S. C. § 104(a). Why, petitioners ask, would Congress have enacted this amendment removing punitive damages (in nonphysical injury cases) unless Congress believed that, in the amendment's absence, punitive damages did fall within the provision's coverage? The short answer to this question is that Congress might simply have thought that the then-current law about the provision's treatment of punitive damages—in cases of physical and nonphysical injuries—was unclear, that it wanted to clarify the matter in respect to nonphysical injuries, but it wanted to leave the law where it found it in respect to physical injuries. The fact that the law was indeed uncertain at the time supports this view. Compare Rev. Rul. 84-108, 1984-2 Cum. Bull. 32, with, e. g., Roemer v. Commissioner, 716 F.2d 693 (CA9 1983); Miller v. Commissioner, 93 T.C. 330 (1989), rev'd 914 F.2d 586 (CA4 1990). The 1989 amendment's legislative history, insofar as relevant, offers further support. The amendment grew out of the Senate's refusal to agree to a House bill that would have *90 made all damages in nonphysical personal injury cases taxable. The Senate was willing to specify only that the Government could tax punitive damages in such cases. Compare H. R. Rep. No. 101-247, p. 1355 (1989), with H. R. Conf. Rep. No. 101-386, pp. 622-623 (1989). Congress' primary focus, in other words, was upon what to do about nonphysical personal injuries, not upon the provision's coverage of punitive damages under pre-existing law. We add that, in any event, the view of a later Congress cannot control the interpretation of an earlier enacted statute. United States v. Price, 361 U.S. 304 (1960); Higgins v. Smith, 308 U.S. 473 (1940). But cf. Burke, 504 U. S., at 235, n. 6 (including a passing reference to the 1989 amendment, in dicta, as support for a view somewhat like that of petitioners). (Although neither party has argued that it is relevant, we note in passing that § 1605 of the Small Business Job Protection Act of 1996, Pub. L. 104-188, 110 Stat. 1838, explicitly excepts most punitive damages from the exclusion provided by § 104(a)(2). Because it is of prospective application, the section does not apply here. The Conference Report on the new law says that "[n]o inference is intended" as to the proper interpretation of § 104(a)(2) prior to amendment. H. R. Conf. Rep. No. 104-737, p. 301 (1996).) The upshot is that we do not find petitioners' arguments sufficiently persuasive. And, for the reasons set out supra, at 83-87, we agree with the Government's interpretation of the statute. III Petitioners have raised two further issues, specific to the procedural posture of this litigation. First, the O'Gilvie children point out that the Government had initially accepted their claim for a refund and wrote those checks on July 6, 1990. The Government later changed its mind and, on July 9, 1992, two years plus three days later, filed suit against them seeking the return of a refund erroneously made. 26 U.S. C. § 7405(b) (authorizing a "civil action brought in the *91 name of the United States" to recover any "portion of a tax. . . which has been erroneously refunded"). They add that the relevant statute of limitations specifies that recovery of the refund "shall be allowed only if such suit is begun within 2 years after the making of such refund." § 6532(b). The children concede that they received the refund checks on July 9, 1990, and they agree that if the limitation period runs from the date of receipt—if, as the Government argues, that is the date of the "making of" the refund—the Government's suit was timely. But the children say that the refund was made on, and the limitations period runs from, the date the Government mailed the checks (presumably July 6, 7, or 8), in which case the Government brought this suit one or two or three days too late. In our view, the Government is correct in its claim that its lawsuit was timely. The language of the statute admits of both interpretations. But the law ordinarily provides that an action to recover mistaken payments of money "accrues upon the receipt of payment," New Bedford v. Lloyd Investment Associates, Inc., 363 Mass. 112, 119, 292 N.E.2d 688, 692 (1973); accord, Sizemore v. E. T. Barwick Industries, Inc., 225 Tenn. 226, 233, 465 S.W.2d 873, 876 (1971) ("`[T]he time of making the . . . payment . . . was the date of actual receipt' "), unless, as in some States and in some cases, it accrues upon the still later date of the mistake's discovery, see Allen & Lamkin, When Statute of Limitations Begins to Run Against Action to Recover Money Paid By Mistake, 79 A. L. R. 3d 754, 766-769 (1977). We are not aware of any good reason why Congress would have intended a different result where the nature of the claim is so similar to a traditional action for money paid by mistake—an action the roots of which can be found in the old common-law claim of "assumpsit" or "money had and received." New Bedford, supra, at 118, 292 N.E.2d, at 691-692. The lower courts and commentators have reached a similar conclusion. United States v. Carter, 906 F.2d 1375 (CA9 1990); Akers v. United States, 541 F. Supp. 65, 67 (MD Tenn. 1981); United *92 States v. Woodmansee, 388 F. Supp. 36, 46 (ND Cal. 1975), rev'd on other grounds, 578 F.2d 1302 (CA9 1978); 14 J. Mertens Law of Federal Income Taxation § 54A.69 (1995); Kafka & Cavanagh, Litigation of Federal Civil Tax Controversies § 20.03, p. 20-15 (2d ed. 1995). That conclusion is consistent with dicta in an earlier case from this Court, United States v. Wurts, 303 U.S. 414, 417-418 (1938), as well as with this Court's normal practice of construing ambiguous statutes of limitations in Government action in the Government's favor. E. g., Badaracco v. Commissioner, 464 U.S. 386, 391 (1984). We concede the children's argument that a "date of mailing" interpretation produces marginally greater certainty, for such a rule normally would refer the court to the postmark to establish the date. But there is no indication that a "date of receipt" rule has proved difficult to administer in ordinary state or common-law actions for money paid erroneously. The date the check clears, after all, sets an outer bound. Second, Kelly O'Gilvie says that the Court of Appeals should not have considered the Government's original appeal from the District Court's judgment in his favor because, in his view, the Government filed its notice of appeal a few days too late. The Court of Appeals describes the circumstances underlying this case-specific issue in its opinion. We agree with its determination of the matter for the reasons it has there set forth. The judgment of the Court of Appeals is Affirmed. APPENDIX TO OPINION OF THE COURT Section 104(a), in 1988, read as follows: "Compensation for injuries or sickness "(a) In general.—Except in the case of amounts attributable to (and not in excess of) deductions allowed under *93 section 213 (relating to medical, etc., expenses) for any prior taxable year, gross income does not include— "(1) amounts received under workmen's compensation acts as compensation for personal injuries or sickness; "(2) the amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness; "(3) amounts received through accident or health insurance for personal injuries or sickness (other than amounts received by an employee, to the extent such amounts (A) are attributable to contributions by the employer which were not includible in the gross income of the employee, or (B) are paid by the employer); "(4) amounts received as a pension, annuity, or similar allowance for personal injuries or sickness resulting from active service in the armed forces of any country or in the Coast and Geodetic Survey or the Public Health Service, or as a disability annuity payable under the provisions of section 808 of the Foreign Service Act of 1980; and "(5) amounts received by an individual as disability income attributable to injuries incurred as a direct result of a violent attack which the Secretary of State determines to be a terrorist attack and which occurred while such individual was an employee of the United States engaged in the performance of his official duties outside the United States." 26 U.S. C. § 104 (1988 ed.). In 1989, § 104(a) was amended, adding, among other things, the following language: "Paragraph (2) shall not apply to any punitive damages in connection with a case not involving physical injury or physical sickness." 26 U.S. C. § 104(a). *94 Treasury Regulation § 1.104-1(c) provides: "Section 104(a)(2) excludes from gross income the amount of any damages received (whether by suit or agreement) on account of personal injuries or sickness. The term `damages received (whether by suit or agreement)' means an amount received (other than workmen's compensation) through prosecution of a legal suit or action based upon tort or tort type rights, or through a settlement agreement entered into in lieu of such prosecution." 26 CFR § 1.104-1(c) (1996).

Internal Revenue Code 104(a)(2), as it read in excluded from "gross income" the "amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness. " 26 U.S. C. 104(a)(2) (emphasis added). The issue before us is whether this provision applies to (and thereby makes nontaxable) punitive damages received by a plaintiff in a tort suit for personal injuries. We conclude that the punitive damages received here were not received "on account of " personal injuries; hence the provision does not apply, and the damages are taxable. I Petitioners in this litigation are the husband and two children of Betty O'Gilvie, who died in of toxic shock syndrome. Her husband, Kelly, brought a tort suit (on his own behalf and that of her estate) based on Kansas law against the maker of the product that caused Betty O'Gilvie's death. Eventually, he and the two children received the net proceeds of a jury award of $1,525,000 actual damages and $10 million punitive damages. Insofar as the proceeds represented punitive damages, petitioners paid income tax on the proceeds but immediately sought a refund. The litigation before us concerns petitioners' legal entitlement to that refund. Procedurally speaking, the litigation represents the consolidation of two cases brought in the same Federal District Court: Kelly's suit against the Government for a refund, and the Government's suit against the children to recover the refund that the Government had made to the children earlier. 26 U.S. C. 7405(b) (authorizing *82 suits by the United States to recover refunds erroneously made). The Federal District Court held on the merits that the statutory phrase "damages On account of personal injury or sickness" includes punitive damages, thereby excluding punitive damages from gross income and entitling Kelly to obtain, and the children to keep, their refund. The Court of Appeals for the Tenth Circuit, however, reversed the District Court. Along with the Fourth, Ninth, and Federal Circuits, it held that the exclusionary provision does not cover punitive damages. Because the Sixth Circuit has held the contrary, the Circuits are divided ab the proper interpretation of the provision. We granted certiorari to resolve this conflict. II Petitioners received the punitive damages at issue here "by suit"—indeed "by" an ordinary "suit" for "personal injuries." Contrast United ( 104(a)(2) exclusion not applicable to backpay awarded under Title VII of the Civil Rights Act of 1964 because the claim was not based upon "`tort or tort type rights,' " ); (Age Discrimination in Employment Act of (ADEA) claim is similar to Title VII claim in in this respect). These legal circumstances bring those damages within the gross-income-exclusion provision, however, only if petitioners also "received" those damages "on account of" the "personal injuries." And the phrase "on account of" does not unambiguously define itself. On one linguistic interpretation of those words, that of petitioners, they require no more than a "but-for" connection between "any" damages and a lawsuit for personal injuries. They would thereby bring virtually all personal injury lawsuit damages within the scope of the provision, since: "but for the personal injury, there would be no lawsuit, and but for the lawsuit, there would be no damages." *83 On the Government's alternative interpretation, however, those words impose a stronger causal connection, making the provision applicable only to those personal injury lawsuit damages that were awarded by reason of, or because of, the personal injuries. To put the matter more specifically, they would make the section inapplicable to punitive damages, where those damages "`are not compensation for injury [but] [i]nstead are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.' " Elec- trical quoting The Government says that such damages were not "received. on account of" the personal injuries, but rather were awarded "on account of" a defendant's reprehensible conduct and the jury's need to punish and to deter it. Hence, despite some historical uncertainty ab the matter, see Rev. Rul. 75-45, -1 Cum. Bull. 47, revoked by Rev. Rul. 84-108, 1984-2 Cum. Bull. 32, the Government now concludes that these punitive damages fall side the statute's coverage. We agree with the Government's interpretation of the statute. For one thing, its interpretation gives the phrase "on account of" a meaning consistent with the dictionary definition. See, e. g., Webster's Third New International Dictionary 13 ("for the sake of: by reason of: because of"). More important, in we came close to resolving the statute's ambiguity in the Government's favor. That case did not involve damages received in an ordinary tort suit; it involved liquidated damages and backpay received in a settlement of a lawsuit charging a violation of the ADEA. Nonetheless, in deciding one of the issues there presented (whether the provision now before us covered ADEA liquidated damages), we contrasted the elements of *84 an ordinary tort recovery with ADEA liquidated damages. We said that pain and suffering damages, medical expenses, and lost wages in an ordinary tort case are covered by the statute and hence excluded from income "not simply because the taxpayer received a tort settlement, but rather because each element satisfies the requirement that the damages were received `on account of personal injuries or sickness.' " In holding that ADEA liquidated damages are not covered, we said that they are not "designed to compensate ADEA victims," ; instead, they are "`punitive in nature,' " quoting Trans World Airlines, Applying the same reasoning here would lead to the conclusion that the punitive damages are not covered because they are an element of damages not "designed to compensate. victims," 515 U. S., ; rather they are "`punitive in nature,' " Although we gave other reasons for our holding in as well, we explicitly labeled this reason an "independent" ground in support of our decision, We cannot accept petitioners' claim that it was simply a dictum. We also find the Government's reading more faithful to the history of the statutory provision as well as the basic tax-related purpose that the history reveals. That history begins in approximately At that time, this Court had recently decided several cases based on the principle that a restoration of capital was not income; hence it fell side the definition of "income" upon which the law imposed a tax. E. g., ; Shern Pacific The Attorney General then advised the Secretary of the Treasury that proceeds of an accident insurance policy should be treated as nontaxable because they primarily *85 "substitute capital which is the source of future periodical income merely tak[ing] the place of capital in human ability which was destroyed by the accident. They are therefore [nontaxable] `capital' as distinguished from `income' receipts." 31 Op. Atty. Gen. 304, 308 The Treasury Department added that "upon similar principles an amount received by an individual as the result of a suit or compromise for personal injuries sustained by him through accident is not income [that is] taxable." T. D. 2747, Soon thereafter, Congress enacted the first predecessor of the provision before us. That provision excluded from income "[a]mounts received, through accident or health insurance or under workmen's compensation acts, as compensation for personal injuries or sickness, plus the amount of any damages received whether by suit or agreement on account of such injuries or sickness." Revenue Act of ch. 18, 213(b)(6), The provision is similar to the cited materials from the Attorney General and the Secretary of the Treasury in language and structure, all of which suggests that Congress sought, in enacting the statute, to codify the Treasury's basic approach. A contemporaneous House Report, insofar as relevant, confirms this similarity of approach, for it says: "Under the present law it is doubtful whether amounts received through accident or health insurance, or under workmen's compensation acts, as compensation for personal injury or sickness, and damages received on account of such injuries or sickness, are required to be included in gross income. The proposed bill provides *86 that such amounts shall not be included in gross income." H. R. Rep. No. 7, pp. 9-10 This history and the approach it reflects suggest there is no strong reason for trying to interpret the statute's language to reach beyond those damages that, making up for a loss, seek to make a victim whole, or, speaking very loosely, "return the victim's personal or financial capital." We concede that the original provision's language does go beyond what one might expect a purely tax-policy-related "human capital" rationale to justify. That is because the language excludes from taxation not only those damages that aim to substitute for a victim's physical or personal wellbeing—personal assets that the Government does not tax and would not have taxed had the victim not lost them. It also excludes from taxation those damages that substitute, say, for lost wages, which would have been taxed had the victim earned them. To that extent, the provision can make the compensated taxpayer better off from a tax perspective than had the personal injury not taken place. But to say this is not to support cutting the statute totally free from its original moorings in victim loss. The statute's failure to separate those compensatory elements of damages (or accident insurance proceeds) one from the other does not change its original focus upon damages that restore a loss, that seek to make a victim whole, with a tax-equality objective providing an important part of, even if not the entirety of, the statute's rationale. All this is to say that the Government's interpretation of the current provision (the wording of which has not changed significantly from the original) is more consistent than is petitioners' with the statute's original focus. Finally, we have asked why Congress might have wanted the exclusion to have covered these punitive damages, and we have found no very good answer. Those damages are not a substitute for any normally untaxed personal (or financial) quality, good, or "asset." They do not compensate for *87 any kind of loss. The statute's language does not require, or strongly suggest, their exclusion from income. And we can find no evidence that congressional generosity or concern for administrative convenience stretched beyond the bounds of an interpretation that would distinguish compensatory from noncompensatory damages. Of course, as we have just said, from the perspective of tax policy one might argue that noncompensatory punitive damages and, for example, compensatory lost wages are much the same thing. That is, in both instances, exclusion from gross income provides the taxpayer with a windfall. This circumstance alone, however, does not argue strongly for an interpretation that covers punitive damages, for coverage of compensatory damages has both language and history in its favor to a degree that coverage of noncompensatory punitive damages does not. Moreover, this policy argument assumes that coverage of lost wages is something of an anomaly; if so, that circumstance would not justify the extension of the anomaly or the creation of another. See Wolfman, Current Issues of Federal Tax Policy, 16 U. Ark. Little Rock L. J. 543, 549-550 (1994) ("[T]o build upon" what is, from a tax policy perspective, the less easily explained portion "of the otherwise rational exemption for personal injury," simply "does not make sense"). Petitioners make three sorts of arguments to the contrary. First, they emphasize certain words or phrases in the original, or current, provision that work in their favor. For example, they stress the word "any" in the phrase "any damages." And they note that in both original and current versions Congress referred to certain amounts of money received (from workmen's compensation, for example) as "amounts received as compensation," while here they refer only to "damages received" with adding the limiting phrase "as compensation." 26 U.S. C. 104(a); Revenue Act of 213(b)(6), They add that in the original version, the words "on account of personal injuries" *88 might have referred to, and modified, the kind of lawsuit, not the kind of damages. And they find support for this view in the second sentence of the Treasury Regulation first adopted in 1958 which says: "The term `damages received (whether by suit or agreement)' means an amount received (other than workmen's compensation) through prosecution of a legal suit or action based upon tort or tort type rights, or through a settlement agreement entered into in lieu of such prosecution." 26 CFR 1.104-1(c) (1996). These arguments, however, show only that one can reasonably read the statute's language in different ways—the very assumption upon which our analysis rests. They do not overcome our interpretation of the provision in nor do they change the provision's history. The help that the Treasury Regulation's second sentence gives the petitioners is offset by its first sentence, which says that the exclusion applies to damages received "on account of personal injuries or sickness," and which we have held sets forth an independent requirement. See Appendix, infra, at 92. Second, petitioners argue that to some extent the purposes that might have led Congress to exclude, say, lost wages from income would also have led Congress to exclude punitive damages, for doing so is both generous to victims and avoids such administrative problems as separating punitive from compensatory portions of a global settlement or determining the extent to which a punitive damages award is itself intended to compensate. Our problem with these arguments is one of degree. Tax generosity presumably has its limits. The administrative problem of distinguishing punitive from compensatory elements is likely to be less serious than, say, distinguishing among the compensatory elements of a settlement (which difficulty might account for the statute's treatment of, say, lost *89 wages). And, of course, the problem of identifying the elements of an ostensibly punitive award does not exist where, as here, relevant state law makes clear that the damages at issue are not at all compensatory, but entirely punitive. ; accord, ; ; Third, petitioners rely upon a later enacted law. In Congress amended the law so that it now specifically says the personal injury exclusion from gross income "shall not apply to any punitive damages in connection with a case not involving physical injury or physical sickness." 26 U.S. C. 104(a). Why, petitioners ask, would Congress have enacted this amendment removing punitive damages (in nonphysical injury cases) unless Congress believed that, in the amendment's absence, punitive damages did fall within the provision's coverage? The short answer to this question is that Congress might simply have thought that the then-current law ab the provision's treatment of punitive damages—in cases of physical and nonphysical injuries—was unclear, that it wanted to clarify the matter in respect to nonphysical injuries, but it wanted to leave the law where it found it in respect to physical injuries. The fact that the law was indeed uncertain at the time supports this view. Compare Rev. Rul. 84-108, 1984-2 Cum. Bull. 32, with, e. g., ; rev'd The amendment's legislative history, insofar as relevant, offers further support. The amendment grew of the Senate's refusal to agree to a House bill that would have *90 made all damages in nonphysical personal injury cases taxable. The Senate was willing to specify only that the Government could tax punitive damages in such cases. Compare H. R. Rep. No. 101-247, p. 1355 with H. R. Conf. Rep. No. 101-386, pp. 622-623 Congress' primary focus, in other words, was upon what to do ab nonphysical personal injuries, not upon the provision's coverage of punitive damages under pre-existing law. We add that, in any event, the view of a later Congress cannot control the interpretation of an earlier enacted statute. United ; But cf. n. 6 (including a passing reference to the amendment, in dicta, as support for a view somewhat like that of petitioners). (Although neither party has argued that it is relevant, we note in passing that 1605 of the Small Business Job Protection Act of 1996, Stat. 1838, explicitly excepts most punitive damages from the exclusion provided by 104(a)(2). Because it is of prospective application, the section does not apply here. The Conference Report on the new law says that "[n]o inference is intended" as to the proper interpretation of 104(a)(2) prior to amendment. H. R. Conf. Rep. No. 104-737, p. 301 (1996).) The upshot is that we do not find petitioners' arguments sufficiently persuasive. And, for the reasons set we agree with the Government's interpretation of the statute. III Petitioners have raised two further issues, specific to the procedural posture of this litigation. First, the O'Gilvie children point that the Government had initially accepted their claim for a refund and wrote those checks on July 6, The Government later changed its mind and, on July 9, 1992, two years plus three days later, filed suit against them seeking the return of a refund erroneously made. 26 U.S. C. 7405(b) (authorizing a "civil action brought in the *91 name of the United States" to recover any "portion of a tax. which has been erroneously refunded"). They add that the relevant statute of limitations specifies that recovery of the refund "shall be allowed only if such suit is begun within 2 years after the making of such refund." 6532(b). The children concede that they received the refund checks on July 9, and they agree that if the limitation period runs from the date of receipt—if, as the Government argues, that is the date of the "making of" the refund—the Government's suit was timely. But the children say that the refund was made on, and the limitations period runs from, the date the Government mailed the checks (presumably July 6, 7, or 8), in which case the Government brought this suit one or two or three days too late. In our view, the Government is correct in its claim that its lawsuit was timely. The language of the statute admits of both interpretations. But the law ordinarily provides that an action to recover mistaken payments of money "accrues upon the receipt of payment," New ; accord, unless, as in some States and in some cases, it accrues upon the still later date of the mistake's discovery, see Allen & Lamkin, When Statute of Limitations Begins to Run Against Action to Recover Money Paid By Mistake, 79 A. L. R. 3d 754, 766-769 (1977). We are not aware of any good reason why Congress would have intended a different result where the nature of the claim is so similar to a traditional action for money paid by mistake—an action the roots of which can be found in the old common-law claim of "assumpsit" or "money had and received." New Bedford, -. The lower courts and commentators have reached a similar conclusion. United ; ; United *92 rev'd on other grounds, ; 14 J. Mertens Law of Federal Income Taxation 54A.69 ; Kafka & Cavanagh, Litigation of Federal Civil Tax Controversies 20.03, p. 20-15 That conclusion is consistent with dicta in an earlier case from this Court, United as well as with this Court's normal practice of construing ambiguous statutes of limitations in Government action in the Government's favor. E. g., 4 U.S. 386, We concede the children's argument that a "date of mailing" interpretation produces marginally greater certainty, for such a rule normally would refer the court to the postmark to establish the date. But there is no indication that a "date of receipt" rule has proved difficult to administer in ordinary state or common-law actions for money paid erroneously. The date the check clears, after all, sets an er bound. Second, Kelly O'Gilvie says that the Court of Appeals should not have considered the Government's original appeal from the District Court's judgment in his favor because, in his view, the Government filed its notice of appeal a few days too late. The Court of Appeals describes the circumstances underlying this case-specific issue in its opinion. We agree with its determination of the matter for the reasons it has there set forth. The judgment of the Court of Appeals is Affirmed. APPENDIX TO OPINION OF THE COURT Section 104(a), in read as follows: "Compensation for injuries or sickness "(a) In general.—Except in the case of amounts attributable to (and not in excess of) deductions allowed under *93 section 213 (relating to medical, etc., expenses) for any prior taxable year, gross income does not include— "(1) amounts received under workmen's compensation acts as compensation for personal injuries or sickness; "(2) the amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness; "(3) amounts received through accident or health insurance for personal injuries or sickness (other than amounts received by an employee, to the extent such amounts (A) are attributable to contributions by the employer which were not includible in the gross income of the employee, or (B) are paid by the employer); "(4) amounts received as a pension, annuity, or similar allowance for personal injuries or sickness resulting from active service in the armed forces of any country or in the Coast and Geodetic Survey or the Public Health Service, or as a disability annuity payable under the provisions of section 808 of the Foreign Service Act of ; and "(5) amounts received by an individual as disability income attributable to injuries incurred as a direct result of a violent attack which the Secretary of State determines to be a terrorist attack and which occurred while such individual was an employee of the United States engaged in the performance of his official duties side the United States." 26 U.S. C. 104 ( ed.). In 104(a) was amended, adding, among other things, the following language: "Paragraph (2) shall not apply to any punitive damages in connection with a case not involving physical injury or physical sickness." 26 U.S. C. 104(a). *94 Treasury Regulation 1.104-1(c) provides: "Section 104(a)(2) excludes from gross income the amount of any damages received (whether by suit or agreement) on account of personal injuries or sickness. The term `damages received (whether by suit or agreement)' means an amount received (other than workmen's compensation) through prosecution of a legal suit or action based upon tort or tort type rights, or through a settlement agreement entered into in lieu of such prosecution." 26 CFR 1.104-1(c) (1996).

Justice Brennan

majority

Greene v. Lindsey

https://www.courtlistener.com/opinion/110705/greene-v-lindsey/

https://www.courtlistener.com/api/rest/v3/clusters/110705/

1981-089

A Kentucky statute provides that in forcible entry or detainer actions, service of process may be made under certain circumstances by posting a summons on the door of a tenant's apartment. The question presented is whether this statute, as applied to tenants in a public housing project, fails to afford those tenants the notice of proceedings initiated against them required by the Due Process Clause of the Fourteenth Amendment. *446 I Appellees Linnie Lindsey, Barbara Hodgens, and Pamela Ray are tenants in a Louisville, Ky., housing project. Appellants are the Sheriff of Jefferson County, Ky., and certain unnamed Deputy Sheriffs charged with responsibility for serving process in forcible entry and detainer actions. In 1975, the Housing Authority of Louisville initiated detainer actions against each of appellees, seeking repossession of their apartments. Service of process was made pursuant to Ky. Rev. Stat. § 454.030 (1975), which states: "If the officer directed to serve notice on the defendant in forcible entry or detainer proceedings cannot find the defendant on the premises mentioned in the writ, he may explain and leave a copy of the notice with any member of the defendant's family thereon over sixteen (16) years of age, and if no such person is found he may serve the notice by posting a copy thereof in a conspicuous place on the premises. The notice shall state the time and place of meeting of the court." In each instance, notice took the form of posting a copy of the writ of forcible entry and detainer on the door of the tenant's apartment.[1] Appellees claim never to have seen these posted summonses; they state that they did not learn of the *447 eviction proceedings until they were served with writs of possession, executed after default judgments had been entered against them, and after their opportunity for appeal had lapsed. Thus without recourse in the state courts, appellees filed this suit as a class action in the United States District Court for the Western District of Kentucky, seeking declaratory and injunctive relief under 42 U.S. C. § 1983. They claimed that the notice procedure employed as a predicate to these eviction proceedings did not satisfy the minimum standards of constitutionally adequate notice described in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), and that the Commonwealth of Kentucky had thus failed to afford them the due process of law guaranteed by the Fourteenth Amendment. Named as defendants were the Housing Authority of Louisville, several public officials charged with responsibility over particular Louisville public housing projects, Joseph Greene, the Jefferson County Sheriff, and certain known and unknown Deputy Sheriffs. On cross-motions for summary judgment, the District Court granted judgment for appellants. In an unreported opinion, the court noted that some 70 years earlier, in Weber v. Grand Lodge of Kentucky, F. & A. M., 169 F. 522 (1909), the Court of Appeals for the Sixth Circuit had held that constructive notice by posting on the door of a building, pursuant to the predecessor statute to § 454.030, provided an adequate constitutional basis upon which to commence an eviction action, on the ground that it was reasonable for the State to presume that a notice posted on the door of the building in dispute would give the tenant actual notice in time to contest the action. Although the District Court recognized that "conditions have changed since the decision in Weber . . . and. . . that there is undisputed testimony in this case that notices posted on the apartment doors of tenants are often removed by other tenants," App. 41-42, the court nevertheless concluded that the procedures employed did not deny due *448 process in light of the fact "that posting only comes into play after the officer directed to serve notice cannot find the defendant on the premises," id., at 42. The Court of Appeals for the Sixth Circuit reversed the grant of summary judgment in favor of appellants and remanded the case for further proceedings. 649 F.2d 425 (1981). Acknowledging that its decision in Weber directed a contrary result, the Court of Appeals examined the doctrinal basis of that decision, and concluded that it rested in part on distinctions between actions in rem and actions in personam that had been drawn in cases such as Pennoyer v. Neff, 95 U.S. 714 (1878); Huling v. Kaw Valley Railway & Improvement Co., 130 U.S. 559 (1889); Arndt v. Griggs, 134 U.S. 316 (1890); Ballard v. Hunter, 204 U.S. 241 (1907); and Longyear v. Toolan, 209 U.S. 414 (1908), and that had been substantially undercut by intervening decisions of this Court. In overruling Weber, the Court of Appeals cited International Shoe Co. v. Washington, 326 U.S. 310 (1945), Mullane, supra, and Shaffer v. Heitner, 433 U.S. 186 (1977), as cases calling for a more realistic appraisal of the adequacy of process provided by the State. Turning to the circumstances of this case and the procedures contemplated by § 454.030, the Court of Appeals noted that while there may have been "a time when posting provided a surer means of giving notice than did mailing, [t]hat time has passed. The uncontradicted testimony by process servers themselves that posted summonses are not infrequently removed by persons other than those served constitutes effective confirmation of the conclusion that notice by posting `is not reasonably calculated to reach those who could easily be informed by other means at hand,' " 649 F.2d, at 428, quoting Mullane, supra, at 319.[2] The court held, therefore, that the notice provided *449 pursuant to § 454.030 was constitutionally deficient. We noted probable jurisdiction, 454 U.S. 938 (1981), and now affirm. II A "The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U.S. 385, 394 (1914). And the "right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest," Mullane, supra, at 314. Personal service guarantees actual notice of the pendency of a legal action; it thus presents the ideal circumstance under which to commence legal proceedings against a person, and has traditionally been deemed necessary in actions styled in personam. McDonald v. Mabee, 243 U.S. 90, 92 (1917). Nevertheless, certain less rigorous notice procedures have enjoyed substantial acceptance throughout our legal history; in light of this history and the practical obstacles to providing personal service in every instance, we have allowed judicial proceedings to be prosecuted in some situations on the basis of procedures that do not carry with them the same certainty of actual notice that inheres in personal service. But we have also clearly recognized that the Due Process Clause does prescribe a constitutional minimum: "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the *450 pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U. S., at 314 (emphasis added). It is against this standard that we evaluate the procedures employed in this case. B Appellants argue that because a forcible entry and detainer action is an action in rem, notice by posting is ipso facto constitutionally adequate. Appellees concede that posting has traditionally been deemed appropriate for in rem proceedings, but argue that detainer actions can now encompass more than the simple issue of the tenant's continued right to possession, and that they therefore require the more exacting forms of notice customarily provided for proceedings in personam. Appellants counter by conceding that if the particular detainer proceeding was one in which the landlord sought to recover past due rent, personal service would be required by Kentucky law, but argue that such claims are unusual in such proceedings, and that in the case before us the landlord claimed only a right to recover possession. Tr. of Oral Arg. 19-21. As in Mullane, we decline to resolve the constitutional question based upon the determination whether the particular action is more properly characterized as one in rem or in personam. 339 U. S., at 312. See Shaffer v. Heitner, supra, at 206. That is not to say that the nature of the action has no bearing on a constitutional assessment of the reasonableness of the procedures employed. The character of the action reflects the extent to which the court purports to extend its power, and thus may roughly describe the scope of potential adverse consequences to the person claiming a right to more effective notice. But " `[a]ll proceedings, like all rights, are really against persons.' "[3] In this case, appellees *451 have been deprived of a significant interest in property: indeed, of the right to continued residence in their homes.[4] In light of this deprivation, it will not suffice to recite that because the action is in rem, it is only necessary to serve notice "upon the thing itself."[5] The sufficiency of notice must be tested with reference to its ability to inform people of the pendency of proceedings that affect their interests. In arriving at the constitutional assessment, we look to the realities of the case before us: In determining the constitutionality of a procedure established by the State to provide notice in a particular class of cases, "its effect must be judged in the light of its practical application to the affairs of men as they are ordinarily conducted." North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283 (1925). It is, of course, reasonable to assume that a property owner will maintain superintendence of his property, and to presume that actions physically disturbing his holdings will come to his attention. See Mullane, supra, at 316.[6] The *452 frequent restatement of this rule impresses upon the property owner the fact that a failure to maintain watch over his property may have significant legal consequences for him, providing a spur to his attentiveness, and a consequent reinforcement to the empirical foundation of the principle. Upon this understanding, a State may in turn conclude that in most cases, the secure posting of a notice on the property of a person is likely to offer that property owner sufficient warning of the pendency of proceedings possibly affecting his interests. The empirical basis of the presumption that notice posted upon property is adequate to alert the owner or occupant of property of the pendency of legal proceedings would appear to make the presumption particularly well founded where notice is posted at a residence. With respect to claims affecting the continued possession of that residence, the application of this presumption seems particularly apt: If the tenant has a continuing interest in maintaining possession of the property for his use and occupancy, he might reasonably be expected to frequent the premises; if he no longer occupies the premises, then the injury that might result from his not having received actual notice as a consequence of the posted notice is reduced. Short of providing personal service, then, posting notice on the door of a person's home would, in many *453 or perhaps most instances, constitute not only a constitutionally acceptable means of service, but indeed a singularly appropriate and effective way of ensuring that a person who cannot conveniently be served personally is actually apprised of proceedings against him. But whatever the efficacy of posting in many cases, it is clear that, in the circumstances of this case, merely posting notice on an apartment door does not satisfy minimum standards of due process. In a significant number of instances, reliance on posting pursuant to the provisions of § 454.030 results in a failure to provide actual notice to the tenant concerned. Indeed, appellees claim to have suffered precisely such a failure of actual notice. As the process servers were well aware, notices posted on apartment doors in the area where these tenants lived were "not infrequently" removed by children or other tenants before they could have their intended effect.[7] Under these conditions, notice by *454 posting on the apartment door cannot be considered a "reliable means of acquainting interested parties of the fact that their rights are before the courts." Mullane, 339 U. S., at 315. Of course, the reasonableness of the notice provided must be tested with reference to the existence of "feasible and customary" alternatives and supplements to the form of notice chosen. Ibid. In this connection, we reject appellants' characterization of the procedure contemplated by § 454.030 as one in which " `posting' is used as a method of service only as a last resort." Brief for Appellants 7. To be sure, the statute requires the officer serving notice to make a visit to the tenant's home and to attempt to serve the writ personally on the tenant or some member of his family. But if no one is at home at the time of that visit, as is apparently true in a "good percentage" of cases,[8] posting follows forthwith. Neither the statute, nor the practice of the process servers, makes provision for even a second attempt at personal service, perhaps at some time of day when the tenant is more likely to be at home. The failure to effect personal service on the first visit hardly suggests that the tenant has abandoned his interest in the apartment such that mere pro forma notice might be held constitutionally adequate. Cf. Mullane, 339 U. S., at 317-318. *455 As noted by the Court of Appeals, and as we noted in Mullane, the mails provide an "efficient and inexpensive means of communication," id., at 319, upon which prudent men will ordinarily rely in the conduct of important affairs, id., at 319-320. Notice by mail in the circumstances of this case would surely go a long way toward providing the constitutionally required assurance that the State has not allowed its power to be invoked against a person who has had no opportunity to present a defense despite a continuing interest in the resolution of the controversy.[9] Particularly where the subject matter of the action also happens to be the mailing address of the defendant, and where personal service is ineffectual, notice by mail may reasonably be relied upon to provide interested persons with actual notice of judicial proceedings. We need not go so far as to insist that in order to "dispense with personal service the substitute that is most likely to reach the defendant is the least that ought to be required," McDonald v. Mabee, 243 U. S., at 92, in order to recognize that where an inexpensive and efficient mechanism such as mail service is available to enhance the reliability of an otherwise unreliable notice procedure, the State's continued exclusive reliance on an ineffective means of service is not notice "reasonably calculated to reach those who could *456 easily be informed by other means at hand." Mullane, supra, at 319.[10] III We conclude that in failing to afford appellees adequate notice of the proceedings against them before issuing final orders of eviction, the State has deprived them of property without the due process of law required by the Fourteenth Amendment. The judgment of the Court of Appeals is therefore Affirmed.

A Kentucky statute provides that in forcible entry or detainer actions, service of process may be made under certain circumstances by posting a summons on the door of a tenant's apartment. The question presented is whether this statute, as applied to tenants in a public housing project, fails to afford those tenants the notice of proceedings initiated against them required by the Due Process Clause of the Fourteenth Amendment. *446 I Appellees Linnie Lindsey, Barbara Hodgens, and Pamela Ray are tenants in a Louisville, Ky., housing project. Appellants are the Sheriff of Jefferson County, Ky., and certain unnamed Deputy Sheriffs charged with responsibility for serving process in forcible entry and detainer actions. In 1975, the Housing Authority of Louisville initiated detainer actions against each of appellees, seeking repossession of their apartments. Service of process was made pursuant to Ky. Rev. Stat. 454.030 (1975), which states: "If the officer directed to serve notice on the defendant in forcible entry or detainer proceedings cannot find the defendant on the premises mentioned in the writ, he may explain and leave a copy of the notice with any member of the defendant's family thereon over sixteen (16) years of age, and if no such person is found he may serve the notice by posting a copy thereof in a conspicuous place on the premises. The notice shall state the time and place of meeting of the court." In each instance, notice took the form of posting a copy of the writ of forcible entry and detainer on the door of the tenant's apartment.[1] Appellees claim never to have seen these posted summonses; they state that they did not learn of the *447 eviction proceedings until they were served with writs of possession, executed after default judgments had been entered against them, and after their opportunity for appeal had lapsed. Thus without recourse in the state courts, appellees filed this suit as a class action in the United States District Court for the Western District of Kentucky, seeking declaratory and injunctive relief under 42 U.S. C. 1983. They claimed that the notice procedure employed as a predicate to these eviction proceedings did not satisfy the minimum standards of constitutionally adequate notice described in and that the Commonwealth of Kentucky had thus failed to afford them the due process of law guaranteed by the Fourteenth Amendment. Named as defendants were the Housing Authority of Louisville, several public officials charged with responsibility over particular Louisville public housing projects, Joseph Greene, the Jefferson County Sheriff, and certain known and unknown Deputy Sheriffs. On cross-motions for summary judgment, the District Court granted judgment for appellants. In an unreported opinion, the court noted that some 70 years earlier, in the Court of Appeals for the Sixth Circuit had held that constructive notice by posting on the door of a building, pursuant to the predecessor statute to 454.030, provided an adequate constitutional basis upon which to commence an eviction action, on the ground that it was reasonable for the State to presume that a notice posted on the door of the building in dispute would give the tenant actual notice in time to contest the action. Although the District Court recognized that "conditions have changed since the decision in Weber and. that there is undisputed testimony in this case that notices posted on the apartment doors of tenants are often removed by other tenants," App. 41-42, the court nevertheless concluded that the procedures employed did not deny due *448 process in light of the fact "that posting only comes into play after the officer directed to serve notice cannot find the defendant on the premises," The Court of Appeals for the Sixth Circuit reversed the grant of summary judgment in favor of appellants and remanded the case for further proceedings. Acknowledging that its decision in Weber directed a contrary result, the Court of Appeals examined the doctrinal basis of that decision, and concluded that it rested in part on distinctions between actions in rem and actions in personam that had been drawn in cases such as ; ; ; ; and and that had been substantially undercut by intervening decisions of this Court. In overruling Weber, the Court of Appeals cited International Shoe and as cases calling for a more realistic appraisal of the adequacy of process provided by the State. Turning to the circumstances of this case and the procedures contemplated by 454.030, the Court of Appeals noted that while there may have been "a time when posting provided a surer means of giving notice than did mailing, [t]hat time has passed. The uncontradicted testimony by process servers themselves that posted summonses are not infrequently removed by persons other than those served constitutes effective confirmation of the conclusion that notice by posting `is not reasonably calculated to reach those who could easily be informed by other means at hand,' " 649 F.2d, 8, quoting[2] The court held, therefore, that the notice provided *449 pursuant to 454.030 was constitutionally deficient. We noted probable jurisdiction, and now affirm. II A "The fundamental requisite of due process of law is the opportunity to be heard." And the "right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest," Personal service guarantees actual notice of the pendency of a legal action; it thus presents the ideal circumstance under which to commence legal proceedings against a person, and has traditionally been deemed necessary in actions styled in Nevertheless, certain less rigorous notice procedures have enjoyed substantial acceptance throughout our legal history; in light of this history and the practical obstacles to providing personal service in every instance, we have allowed judicial proceedings to be prosecuted in some situations on the basis of procedures that do not carry with them the same certainty of actual notice that inheres in personal service. But we have also clearly recognized that the Due Process Clause does prescribe a constitutional minimum: "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the *450 pendency of the action and afford them an opportunity to present their objections." 339 U. S., It is against this standard that we evaluate the procedures employed in this case. B Appellants argue that because a forcible entry and detainer action is an action in rem, notice by posting is ipso facto constitutionally adequate. Appellees concede that posting has traditionally been deemed appropriate for in rem proceedings, but argue that detainer actions can now encompass more than the simple issue of the tenant's continued right to possession, and that they therefore require the more exacting forms of notice customarily provided for proceedings in Appellants counter by conceding that if the particular detainer proceeding was one in which the landlord sought to recover past due rent, personal service would be required by Kentucky law, but argue that such claims are unusual in such proceedings, and that in the case before us the landlord claimed only a right to recover possession. Tr. of Oral Arg. 19-21. As in we decline to resolve the constitutional question based upon the determination whether the particular action is more properly characterized as one in rem or in See That is not to say that the nature of the action has no bearing on a constitutional assessment of the reasonableness of the procedures employed. The character of the action reflects the extent to which the court purports to extend its power, and thus may roughly describe the scope of potential adverse consequences to the person claiming a right to more effective notice. But " `[a]ll proceedings, like all rights, are really against persons.' "[3] In this case, appellees *451 have been deprived of a significant interest in property: indeed, of the right to continued residence in their homes.[4] In light of this deprivation, it will not suffice to recite that because the action is in rem, it is only necessary to serve notice "upon the thing itself."[5] The sufficiency of notice must be tested with reference to its ability to inform people of the pendency of proceedings that affect their interests. In arriving at the constitutional assessment, we look to the realities of the case before us: In determining the constitutionality of a procedure established by the State to provide notice in a particular class of cases, "its effect must be judged in the light of its practical application to the affairs of men as they are ordinarily conducted." North Laramie Land (15). It is, of course, reasonable to assume that a property owner will maintain superintendence of his property, and to presume that actions physically disturbing his holdings will come to his attention. See[6] The *452 frequent restatement of this rule impresses upon the property owner the fact that a failure to maintain watch over his property may have significant legal consequences for him, providing a spur to his attentiveness, and a consequent reinforcement to the empirical foundation of the principle. Upon this understanding, a State may in turn conclude that in most cases, the secure posting of a notice on the property of a person is likely to offer that property owner sufficient warning of the pendency of proceedings possibly affecting his interests. The empirical basis of the presumption that notice posted upon property is adequate to alert the owner or occupant of property of the pendency of legal proceedings would appear to make the presumption particularly well founded where notice is posted at a residence. With respect to claims affecting the continued possession of that residence, the application of this presumption seems particularly apt: If the tenant has a continuing interest in maintaining possession of the property for his use and occupancy, he might reasonably be expected to frequent the premises; if he no longer occupies the premises, then the injury that might result from his not having received actual notice as a consequence of the posted notice is reduced. Short of providing personal service, then, posting notice on the door of a person's home would, in many *453 or perhaps most instances, constitute not only a constitutionally acceptable means of service, but indeed a singularly appropriate and effective way of ensuring that a person who cannot conveniently be served personally is actually apprised of proceedings against him. But whatever the efficacy of posting in many cases, it is clear that, in the circumstances of this case, merely posting notice on an apartment door does not satisfy minimum standards of due process. In a significant number of instances, reliance on posting pursuant to the provisions of 454.030 results in a failure to provide actual notice to the tenant concerned. Indeed, appellees claim to have suffered precisely such a failure of actual notice. As the process servers were well aware, notices posted on apartment doors in the area where these tenants lived were "not infrequently" removed by children or other tenants before they could have their intended effect.[7] Under these conditions, notice by *454 posting on the apartment door cannot be considered a "reliable means of acquainting interested parties of the fact that their rights are before the courts." Of course, the reasonableness of the notice provided must be tested with reference to the existence of "feasible and customary" alternatives and supplements to the form of notice chosen. In this connection, we reject appellants' characterization of the procedure contemplated by 454.030 as one in which " `posting' is used as a method of service only as a last resort." Brief for Appellants 7. To be sure, the statute requires the officer serving notice to make a visit to the tenant's home and to attempt to serve the writ personally on the tenant or some member of his family. But if no one is at home at the time of that visit, as is apparently true in a "good percentage" of cases,[8] posting follows forthwith. Neither the statute, nor the practice of the process servers, makes provision for even a second attempt at personal service, perhaps at some time of day when the tenant is more likely to be at home. The failure to effect personal service on the first visit hardly suggests that the tenant has abandoned his interest in the apartment such that mere pro forma notice might be held constitutionally adequate. Cf. -318. *455 As noted by the Court of Appeals, and as we noted in the mails provide an "efficient and inexpensive means of communication," upon which prudent men will ordinarily rely in the conduct of important affairs, -320. Notice by mail in the circumstances of this case would surely go a long way toward providing the constitutionally required assurance that the State has not allowed its power to be invoked against a person who has had no opportunity to present a defense despite a continuing interest in the resolution of the controversy.[9] Particularly where the subject matter of the action also happens to be the mailing address of the defendant, and where personal service is ineffectual, notice by mail may reasonably be relied upon to provide interested persons with actual notice of judicial proceedings. We need not go so far as to insist that in order to "dispense with personal service the substitute that is most likely to reach the defendant is the least that ought to be required," 243 U. S., at in order to recognize that where an inexpensive and efficient mechanism such as mail service is available to enhance the reliability of an otherwise unreliable notice procedure, the State's continued exclusive reliance on an ineffective means of service is not notice "reasonably calculated to reach those who could *456 easily be informed by other means at hand."[10] III We conclude that in failing to afford appellees adequate notice of the proceedings against them before issuing final orders of eviction, the State has deprived them of property without the due process of law required by the Fourteenth Amendment. The judgment of the Court of Appeals is therefore Affirmed.

Justice Brennan

dissenting

Wainwright v. Sykes

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

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

1976-162

Over the course of the last decade, the deliberate-bypass standard announced in Fay v. Noia, 372 U.S. 391, 438-439 (1963), has played a central role in efforts by the federal judiciary to accommodate the constitutional rights of the individual with the States' interests in the integrity of their judicial procedural regimes. The Court today decides that this standard should no longer apply with respect to procedural defaults occurring during the trial of a criminal defendant. In its place, the Court adopts the two-part "cause"-and-"prejudice" test originally developed in Davis v. United States, 411 U.S. 233 (1973), and Francis v. Henderson, 425 U.S. 536 (1976). As was true with these earlier cases,[1]*100 however, today's decision makes no effort to provide concrete guidance as to the content of those terms. More particularly, left unanswered is the thorny question that must be recognized to be central to a realistic rationalization of this area of law: How should the federal habeas court treat a procedural default in a state court that is attributable purely and simply to the error or negligence of a defendant's trial counsel? Because this key issue remains unresolved, I shall attempt in this opinion a re-examination of the policies[2] that should *101 inform—and in Fay did inform—the selection of the standard governing the availability of federal habeas corpus jurisdiction in the face of an intervening procedural default in the state court. I I begin with the threshold question: What is the meaning and import of a procedural default? If it could be assumed that a procedural default more often than not is the product of a defendant's conscious refusal to abide by the duly constituted, legitimate processes of the state courts, then I might agree that a regime of collateral review weighted in favor of a State's procedural rules would be warranted.[3]Fay, however, recognized that such rarely is the case; and therein lies Fay's basic unwillingness to embrace a view of habeas jurisdiction that results in "an airtight system of [procedural] forfeitures." 372 U.S., at 432. This, of course, is not to deny that there are times when the failure to heed a state procedural requirement stems from an intentional decision to avoid the presentation of constitutional claims to the state forum. Fay was not insensitive to this possibility. Indeed, the very purpose of its bypass test is to detect and enforce such intentional procedural *102 forfeitures of outstanding constitutionally based claims. Fay does so through application of the longstanding rule used to test whether action or inaction on the part of a criminal defendant should be construed as a decision to surrender the assertion of rights secured by the Constitution: To be an effective waiver, there must be "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Incorporating this standard, Fay recognized that if one "understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief. . . ." 372 U.S., at 439. For this reason, the Court's assertion that it "think[s]" that the Fay rule encourages intentional "sandbagging" on the part of the defense lawyers is without basis, ante, at 89; certainly the Court points to no cases or commentary arising during the past 15 years of actual use of the Fay test to support this criticism. Rather, a consistent reading of case law demonstrates that the bypass formula has provided a workable vehicle for protecting the integrity of state rules in those instances when such protection would be both meaningful and just.[4] *103 But having created the bypass exception to the availability of collateral review, Fay recognized that intentional, tactical forfeitures are not the norm upon which to build a rational system of federal habeas jurisdiction. In the ordinary case, litigants simply have no incentive to slight the state tribunal, since constitutional adjudication on the state and federal levels are not mutually exclusive. Brown v. Allen, 344 U.S. 443 (1953); Brewer v. Williams, 430 U.S. 387 (1977); Castaneda v. Partida, 430 U.S. 482 (1977). Under the regime of collateral review recognized since the days of Brown v. Allen, and enforced by the Fay bypass test, no rational lawyer would risk the "sandbagging" feared by the Court.[5] If a constitutional challenge is not properly raised *104 on the state level, the explanation generally will be found elsewhere than in an intentional tactical decision. In brief then, any realistic system of federal habeas corpus jurisdiction must be premised on the reality that the ordinary procedural default is born of the inadvertence, negligence, inexperience, or incompetence of trial counsel. See, e. g., Hill, The Inadequate State Ground, 65 Colum. L. Rev. 943, 997 (1965). The case under consideration today is typical. The Court makes no effort to identify a tactical motive for the failure of Sykes' attorney to challenge the admissibility or reliability of a highly inculpatory statement. While my Brother STEVENS finds a possible tactical advantage, I agree with the Court of Appeals that this reading is most implausible: "We can find no possible advantage which the defense might have gained, or thought they might gain, from the failure to conform with Florida Criminal Procedure Rule 3.190 (i)." 528 F.2d 522, 527 (1976). Indeed, there is no basis for inferring that Sykes or his state trial lawyer was even aware of the existence of his claim under the Fifth Amendment; for this is not a case where the trial judge expressly drew the attention of the defense to a possible constitutional contention or procedural requirement, e. g., Murch v. Mottram, 409 U.S. 41 (1972); cf. Henry v. Mississippi, 379 U.S. 443, 448 n. 3 (1965), or where the defense signals its knowledge of a constitutional claim by abandoning a challenge previously raised, e. g., Sanders v. United States, 373 U.S. 1, *105 18 (1963). Rather, any realistic reading of the record demonstrates that we are faced here with a lawyer's simple error.[6] Fay's answer thus is plain: the bypass test simply refuses to credit what is essentially a lawyer's mistake as a forfeiture of constitutional rights. I persist in the belief that the interests of Sykes and the State of Florida are best rationalized by adherence to this test, and by declining to react to inadvertent defaults through the creation of an "airtight system of forfeitures." II What are the interests that Sykes can assert in preserving the availability of federal collateral relief in the face of his inadvertent state procedural default? Two are paramount. As is true with any federal habeas applicant, Sykes seeks access to the federal court for the determination of the validity of his federal constitutional claim. Since at least Brown v. Allen, it has been recognized that the "fair effect [of] the habeas corpus jurisdiction as enacted by Congress" entitles a state prisoner to such federal review. 344 U.S., at 500 (opinion of Frankfurter, J.). While some of my Brethren may feel uncomfortable with this congressional choice of policy, see, e. g., Stone v. Powell, 428 U.S. 465 (1976), the Legislative Branch nonetheless remains entirely free to determine that the constitutional rights of an individual subject to state custody, like those of the civil rights *106 plaintiff suing under 42 U.S. C. § 1983, are best preserved by "interpos[ing] the federal courts between the States and the people, as guardians of the people's federal rights . . . ." Mitchum v. Foster, 407 U.S. 225, 242 (1972). With respect to federal habeas corpus jurisdiction, Congress explicitly chose to effectuate the federal court's primary responsibility for preserving federal rights and privileges by authorizing the litigation of constitutional claims and defenses in a district court after the State vindicates its own interest through trial of the substantive criminal offense in the state courts.[7] This, of course, was not the only course that Congress might have followed: As an alternative, it might well have decided entirely to circumvent all state procedure through the expansion of existing federal removal statutes such as 28 U.S. C. §§ 1442 (a) (1) and 1443, thereby authorizing the pretrial transfer of all state criminal cases to the federal courts whenever federal defenses or claims are in issue.[8] But liberal post-trial federal review is the redress *107 that Congress ultimately chose to allow and the consequences of a state procedural default should be evaluated in conformance with this policy choice. Certainly, we can all agree that once a state court has assumed jurisdiction of a criminal case, the integrity of its own process is a matter of legitimate concern. The Fay bypass test, by seeking to discover intentional abuses of the rules of the state forum, is, I believe, compatible with this state institutional interest. See Part III, infra. But whether Fay was correct in penalizing a litigant solely for his intentional forfeitures properly must be read in light of Congress' desired norm of widened post-trial access to the federal courts. If the standard adopted today is later construed to require that the simple mistakes of attorneys are to be treated as binding forfeitures, it would serve to subordinate the fundamental rights contained in our constitutional charter to inadvertent defaults of rules promulgated by state agencies, and would essentially leave it to the States, through the enactment of procedure and the certification of the competence of local attorneys, to determine whether a habeas applicant will be permitted the access to the federal forum that is guaranteed him by Congress.[9] *108 Thus, I remain concerned that undue deference to local procedure can only serve to undermine the ready access to a federal court to which a state defendant otherwise is entitled. But federal review is not the full measure of Sykes' interest, for there is another of even greater immediacy: assuring that his constitutional claims can be addressed to some court. For the obvious consequence of barring Sykes from the federal courthouse is to insulate Florida's alleged constitutional violation from any and all judicial review because of a lawyer's mistake. From the standpoint of the habeas petitioner, it is a harsh rule indeed that denies him "any review at all where the state has granted none," Brown v. Allen, 344 U. S., at 552 (Black, J., dissenting)—particularly when he would have enjoyed both state and federal consideration had his attorney not erred. Fay's answer to Sykes' predicament, measuring the existence and extent of his procedural waiver by the Zerbst standard is, I submit, a realistic one. The Fifth Amendment assures that no person "shall be compelled in any criminal case to be a witness against himself . . . ." A defendant like Sykes can forgo this protection in two ways: He may decide to waive his substantive self-incrimination right at the point that he gives an inculpatory statement to the police authorities, Miranda v. Arizona, 384 U.S. 436, 478 (1966), or he and his attorney may choose not to challenge the admissibility of an incriminating statement when such a challenge would be effective under state trial procedure. See Estelle v. Williams, 425 U.S. 501, 524 (1976) (dissenting opinion). With few exceptions in the past 40 years, e. g., Estelle v. Williams, supra; Schneckloth v. Bustamonte, 412 U.S. 218 (1973), this Court has required that the substantive waiver, to be valid, must be a knowing and intelligent one. *109 See, e. g., Brewer v. Williams, 430 U. S., at 404; Brookhart v. Janis, 384 U.S. 1, 4 (1966); Escobedo v. Williams, 378 U.S. 478, 490 n. 14 (1964); Green v. United States, 355 U.S. 184, 191-192 (1957); Smith v. United States, 337 U.S. 137, 149-150 (1949); Adams v. United States ex rel. McCann, 317 U.S. 269, 275 (1942). It has long been established that such is the case for the waiver of the protections of the Miranda rule. See 384 U.S., at 475; Schneckloth v. Bustamonte, supra, at 240. Fay simply evaluates the procedural waiver of Sykes' Fifth Amendment rights by the same standard. From the standpoint of the habeas petitioner this symmetry is readily understandable. To him, the inevitable consequence of either type of forfeiture—be it substantive or procedural—is that the protection of the Fifth Amendment is lost and his own words are introduced at trial to the prejudice of his defense. The defendant's vital interest in preserving his Fifth Amendment privilege entitles him to informed and intelligent consideration of any decision leading to its forfeiture. It may be, of course, that the State's countervailing institutional interests are more compelling in the case of eliciting a procedural default, thereby justifying a relaxation of the Zerbst standard. I discuss this possibility in greater detail in Part III, infra. It is sufficient for present purposes, however, that there is no reason for believing that this necessarily is true. That the State legitimately desires to preserve an orderly and efficient judicial process is undeniable. But similar interests of efficiency and the like also can be identified with respect to other state institutions, such as its law enforcement agencies. Yet, as was only recently reconfirmed, we would not permit and have not permitted the state police to enhance the orderliness and efficiency of their law enforcement activities by embarking on a campaign of acquiring inadvertent waivers of important constitutional rights. Brewer v. Williams, supra, at 401-406; see generally Francis v. Henderson, 425 U. S., at 548-549, n. 2 (dissenting opinion). *110 A procedural default should be treated accordingly. Indeed, a recent development in the law of habeas corpus suggests that adherence to the deliberate-bypass test may be more easily justified today than it was when Fay was decided. It also suggests that the "prejudice" prong of the Court's new test may prove to be a redundancy. Last Term the Court ruled that alleged violations of the Fourth Amendment in most circumstances no longer will be cognizable in habeas corpus. Stone v. Powell, 428 U.S. 465 (1976). While, for me, the principle that generated this conclusion was not readily apparent, I expressed my concern that the Stone decision contains the seeds for the exclusion from collateral review of a variety of constitutional rights that my Brethren somehow deem to be unimportant—perhaps those that they are able to conclude are not "guilt-related." See id., at 517-518 (dissenting opinion). If this trail is to be followed, it would be quite unthinkable that an unintentional procedural default should be allowed to stand in the way of vindication of constitutional rights bearing upon the guilt or innocence of a defendant. Indeed, if as has been argued, a key to decision in this area turns upon a comparison of the importance of the constitutional right at stake with the state procedural rule, Sandalow, Henry v. Mississippi and the Adequate State Ground: Proposals for a Revised Doctrine, 1965 Sup. Ct. Rev. 187, 236-237, then the Court's threshold effort to identify those rights of sufficient importance to be litigated collaterally should largely predetermine the outcome of this balance. In sum, I believe that Fay's commitment to enforcing intentional but not inadvertent procedural defaults offers a realistic measure of protection for the habeas corpus petitioner seeking federal review of federal claims that were not litigated before the State. The threatened creation of a more "airtight system of forfeitures" would effectively deprive habeas petitioners of the opportunity for litigating *111 their constitutional claims before any forum and would disparage the paramount importance of constitutional rights in our system of government. Such a restriction of habeas corpus jurisdiction should be countenanced, I submit, only if it fairly can be concluded that Fay's focus on knowing and voluntary forfeitures unduly interferes with the legitimate interests of state courts or institutions. The majority offers no suggestion that actual experience has shown that Fay's bypass test can be criticized on this score. And, as I now hope to demonstrate, any such criticism would be unfounded. III A regime of federal habeas corpus jurisdiction that permits the reopening of state procedural defaults does not invalidate any state procedural rule as such;[10] Florida's courts remain entirely free to enforce their own rules as they choose, and to deny any and all state rights and remedies to a defendant who fails to comply with applicable state procedure. The relevant inquiry is whether more is required—specifically, whether the fulfillment of important interests of the State necessitates that federal courts be called upon to impose additional sanctions for inadvertent noncompliance with state procedural requirements such as the contemporaneous-objection rule involved here. *112 Florida, of course, can point to a variety of legitimate interests in seeking allegiance to its reasonable procedural requirements, the contemporaneous-objection rule included. See Henry v. Mississippi, 379 U. S., at 448. As Fay recognized, a trial, like any organized activity, must conform to coherent process, and "there must be sanctions for the flouting of such procedure." 372 U.S., at 431. The strict enforcement of procedural defaults, therefore, may be seen as a means of deterring any tendency on the part of the defense to slight the state forum, to deny state judges their due opportunity for playing a meaningful role in the evolving task of constitutional adjudication, or to mock the needed finality of criminal trials. All of these interests are referred to by the Court in various forms.[11] The question remains, however, whether any of these policies or interests are efficiently and fairly served by enforcing both intentional and inadvertent defaults pursuant to the identical stringent standard. I remain convinced that when one pierces the surface justifications for a harsher rule posited by the Court, no standard stricter than Fay's deliberate-bypass test is realistically defensible. *113 Punishing a lawyer's unintentional errors by closing the federal courthouse door to his client is both a senseless and misdirected method of deterring the slighting of state rules. It is senseless because unplanned and unintentional action of any kind generally is not subject to deterrence; and, to the extent that it is hoped that a threatened sanction addressed to the defense will induce greater care and caution on the part of trial lawyers, thereby forestalling negligent conduct or error, the potential loss of all valuable state remedies would be sufficient to this end.[12] And it is a misdirected sanction because even if the penalization of incompetence or carelessness will encourage more thorough legal training and trial preparation, the habeas applicant, as opposed to his lawyer, hardly is the proper recipient of such a penalty. Especially with fundamental constitutional rights *114 at stake, no fictional relationship of principal-agent or the like can justify holding the criminal defendant accountable for the naked errors of his attorney.[13] This is especially true when so many indigent defendants are without any realistic choice in selecting who ultimately represents them at trial.[14] Indeed, if responsibility for error must be apportioned between the parties, it is the State, through its attorney's admissions and certification policies, that is more fairly held to blame for the fact that practicing lawyers too often are ill-prepared or ill-equipped to act carefully and knowledgeably when faced with decisions governed by state procedural requirements. *115 Hence, while I can well agree that the proper functioning of our system of criminal justice, both federal and state, necessarily places heavy reliance on the professionalism and judgment of trial attorneys, I cannot accept a system that ascribes the absolute forfeiture of an individual's constitutional claims to situations where his lawyer manifestly exercises no professional judgment at all—where carelessness, mistake, or ignorance is the explanation for a procedural default. Of course, it is regrettable that certain errors that might have been cured earlier had trial counsel acted expeditiously must be corrected collaterally and belatedly. I can understand the Court's wistfully wishing for the day when the trial was the sole, binding and final "event" of the adversarial process—although I hesitate to agree that in the eyes of the criminal defendant it has ever ceased being the "main" one, ante, at 90. But it should be plain that in the real world, the interest in finality is repeatedly compromised in numerous ways that arise with far greater frequency than do procedural defaults. The federal criminal system, to take one example, expressly disapproves of interlocutory review in the generality of cases even though such a policy would foster finality by permitting the authoritative resolution of all legal and constitutional issues prior to the convening of the "main event." See generally Abney v. United States, 431 U.S. 651 (1977). Instead, it relies on the belated correction of error, through appeal and collateral review, to ensure the fairness and legitimacy of the criminal sanction. Indeed, the very existence of the well-established right collaterally to reopen issues previously litigated before the state courts, Brown v. Allen, 344 U.S. 443 (1953), represents a congressional policy choice that is inconsistent with notions of strict finality—and probably more so than authorizing the litigation of issues that, due to inadvertence, were never addressed to any court. Ultimately, all of these limitations on the finality of criminal convictions emerge from the tension between justice *116 and efficiency in a judicial system that hopes to remain true to its principles and ideals. Reasonable people may disagree on how best to resolve these tensions. But the solution that today's decision risks embracing seems to me the most unfair of all: the denial of any judicial consideration of the constitutional claims of a criminal defendant because of errors made by his attorney which lie outside the power of the habeas petitioner to prevent or deter and for which, under no view of morality or ethics, can he be held responsible. In short, I believe that the demands of our criminal justice system warrant visiting the mistakes of a trial attorney on the head of a habeas corpus applicant only when we are convinced that the lawyer actually exercised his expertise and judgment in his client's service, and with his client's knowing and intelligent participation where possible. This, of course, is the precise system of habeas review established by Fay v. Noia. IV Perhaps the primary virtue of Fay is that the bypass test at least yields a coherent yardstick for federal district courts in rationalizing their power of collateral review. See n. 4, supra. In contrast, although some four years have passed since its introduction in Davis v. United States, 411 U.S. 233 (1973), the only thing clear about the Court's "cause"-and-"prejudice" standard is that it exhibits the notable tendency of keeping prisoners in jail without addressing their constitutional complaints. Hence, as of today, all we know of the "cause" standard[15] is its requirement that habeas applicants bear an undefined burden of explanation for the failure to obey the state rule, ante, at 91. Left unresolved is whether a habeas petitioner like Sykes can adequately discharge this burden by *117 offering the commonplace and truthful explanation for his default: attorney ignorance or error beyond the client's control. The "prejudice" inquiry, meanwhile, appears to bear a strong resemblance to harmless-error doctrine. Compare ante, at 91, with Chapman v. California, 386 U.S. 18, 24 (1967). I disagree with the Court's appraisal of the harmlessness of the admission of respondent's confession, but if this is what is meant by prejudice, respondent's constitutional contentions could be as quickly and easily disposed of in this regard by permitting federal courts to reach the merits of his complaint. In the absence of a persuasive alternative formulation to the bypass test, I would simply affirm the judgment of the Court of Appeals and allow Sykes his day in court on the ground that the failure of timely objection in this instance was not a tactical or deliberate decision but stemmed from a lawyer's error that should not be permitted to bind his client. One final consideration deserves mention. Although the standards recently have been relaxed in various jurisdictions,[16] it is accurate to assert that most courts, this one included,[17] traditionally have resisted any realistic inquiry into the competency of trial counsel. There is nothing unreasonable, *118 however, in adhering to the proposition that it is the responsibility of a trial lawyer who takes on the defense of another to be aware of his client's basic legal rights and of the legitimate rules of the forum in which he practices his profession.[18] If he should unreasonably permit such rules to bar the assertion of the colorable constitutional claims of his client, then his conduct may well fall below the level of competence that can fairly be expected of him.[19] For almost 40 years it has been established that inadequacy of counsel undercuts the very competence and jurisdiction of the trial court and is always open to collateral review. Johnson v. Zerbst, 304 U.S. 458 (1938).[20] Obviously, as a practical matter, a trial counsel cannot procedurally waive his own inadequacy. If the scope of habeas jurisdiction previously governed by Fay v. Noia is to be redefined so as to enforce the errors and neglect of lawyers with unnecessary and unjust rigor, the time may come when conscientious and fairminded federal and state courts, in adhering to the teaching of Johnson v. Zerbst, will have to reconsider whether they can continue to indulge the comfortable fiction that all lawyers are skilled or even competent craftsmen in representing the fundamental rights of their clients.

Over the course of the last decade, the deliberate-bypass standard announced in has played a central role in efforts by the federal judiciary to accommodate the constitutional rights of the individual with the States' interests in the integrity of their judicial procedural regimes. The Court today decides that this standard should no longer apply with respect to procedural defaults occurring during the trial of a criminal defendant. In its place, the Court adopts the two-part "cause"-and-"prejudice" test originally developed in and As was true with these earlier cases,[1]*100 however, today's decision makes no effort to provide concrete guidance as to the content of those terms. More particularly, left unanswered is the thorny question that must be recognized to be central to a realistic rationalization of this area of law: How should the federal habeas court treat a procedural default in a state court that is attributable purely and simply to the error or negligence of a defendant's trial counsel? Because this key issue remains unresolved, I shall attempt in this opinion a re-examination of the policies[2] that should *101 inform—and in Fay did inform—the selection of the standard governing the availability of federal habeas corpus jurisdiction in the face of an intervening procedural default in the state court. I I begin with the threshold question: What is the meaning and import of a procedural default? If it could be assumed that a procedural default more often than not is the product of a defendant's conscious refusal to abide by the duly constituted, legitimate processes of the state courts, then I might agree that a regime of collateral review weighted in favor of a State's procedural rules would be warranted.[3]Fay, however, recognized that such rarely is the case; and therein lies Fay's basic unwillingness to embrace a view of habeas jurisdiction that results in "an airtight system of [procedural] forfeitures." This, of course, is not to deny that there are times when the failure to heed a state procedural requirement stems from an intentional decision to avoid the presentation of constitutional claims to the state forum. Fay was not insensitive to this possibility. Indeed, the very purpose of its bypass test is to detect and enforce such intentional procedural *102 forfeitures of outstanding constitutionally based claims. Fay does so through application of the longstanding rule used to test whether action or inaction on the part of a criminal defendant should be construed as a decision to surrender the assertion of rights secured by the Constitution: To be an effective waiver, there must be "an intentional relinquishment or abandonment of a known right or privilege." Incorporating this standard, Fay recognized that if one "understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all" For this reason, the Court's assertion that it "think[s]" that the Fay rule encourages intentional "sandbagging" on the part of the defense lawyers is without basis, ante, at 89; certainly the Court points to no cases or commentary arising during the past 15 years of actual use of the Fay test to support this criticism. Rather, a consistent reading of case law demonstrates that the bypass formula has provided a workable vehicle for protecting the integrity of state rules in those instances when such protection would be both meaningful and just.[] *103 But having created the bypass exception to the availability of collateral review, Fay recognized that intentional, tactical forfeitures are not the norm upon which to build a rational system of federal habeas jurisdiction. In the ordinary case, litigants simply have no incentive to slight the state tribunal, since constitutional adjudication on the state and federal levels are not mutually exclusive. ; ; Under the regime of collateral review recognized since the days of and enforced by the Fay bypass test, no rational lawyer would risk the "sandbagging" feared by the Court.[5] If a constitutional challenge is not properly raised *10 on the state level, the explanation generally will be found elsewhere than in an intentional tactical decision. In brief then, any realistic system of federal habeas corpus jurisdiction must be premised on the reality that the ordinary procedural default is born of the inadvertence, negligence, inexperience, or incompetence of trial counsel. See, e. g., Hill, The Inadequate State Ground, The case under consideration today is typical. The Court makes no effort to identify a tactical motive for the failure of Sykes' attorney to challenge the admissibility or reliability of a highly inculpatory statement. While my Brother STEVENS finds a possible tactical advantage, I agree with the Court of Appeals that this reading is most implausible: "We can find no possible advantage which the defense might have gained, or thought they might gain, from the failure to conform with Florida Criminal Procedure Rule 3.190 (i)." Indeed, there is no basis for inferring that Sykes or his state trial lawyer was even aware of the existence of his claim under the Fifth Amendment; for this is not a case where the trial judge expressly drew the attention of the defense to a possible constitutional contention or procedural requirement, e. g., ; cf. or where the defense signals its knowledge of a constitutional claim by abandoning a challenge previously raised, e. g., Rather, any realistic reading of the record demonstrates that we are faced here with a lawyer's simple error.[6] Fay's answer thus is plain: the bypass test simply refuses to credit what is essentially a lawyer's mistake as a forfeiture of constitutional rights. I persist in the belief that the interests of Sykes and the State of Florida are best rationalized by adherence to this test, and by declining to react to inadvertent defaults through the creation of an "airtight system of forfeitures." II What are the interests that Sykes can assert in preserving the availability of federal collateral relief in the face of his inadvertent state procedural default? Two are paramount. As is true with any federal habeas applicant, Sykes seeks access to the federal court for the determination of the validity of his federal constitutional claim. Since at least it has been recognized that the "fair effect [of] the habeas corpus jurisdiction as enacted by Congress" entitles a state prisoner to such federal While some of my Brethren may feel uncomfortable with this congressional choice of policy, see, e. g., the Legislative Branch nonetheless remains entirely free to determine that the constitutional rights of an individual subject to state custody, like those of the civil rights *106 plaintiff suing under 2 U.S. C. 1983, are best preserved by "interpos[ing] the federal courts between the States and the people, as guardians of the people's federal rights" With respect to federal habeas corpus jurisdiction, Congress explicitly chose to effectuate the federal court's primary responsibility for preserving federal rights and privileges by authorizing the litigation of constitutional claims and defenses in a district court after the State vindicates its own interest through trial of the substantive criminal offense in the state courts.[7] This, of course, was not the only course that Congress might have followed: As an alternative, it might well have decided entirely to circumvent all state procedure through the expansion of existing federal removal statutes such as 28 U.S. C. 12 (a) (1) and 13, thereby authorizing the pretrial transfer of all state criminal cases to the federal courts whenever federal defenses or claims are in issue.[8] But liberal post-trial federal review is the redress *107 that Congress ultimately chose to allow and the consequences of a state procedural default should be evaluated in conformance with this policy choice. Certainly, we can all agree that once a state court has assumed jurisdiction of a criminal case, the integrity of its own process is a matter of legitimate concern. The Fay bypass test, by seeking to discover intentional abuses of the rules of the state forum, is, I believe, compatible with this state institutional interest. See Part III, infra. But whether Fay was correct in penalizing a litigant solely for his intentional forfeitures properly must be read in light of Congress' desired norm of widened post-trial access to the federal courts. If the standard adopted today is later construed to require that the simple mistakes of attorneys are to be treated as binding forfeitures, it would serve to subordinate the fundamental rights contained in our constitutional charter to inadvertent defaults of rules promulgated by state agencies, and would essentially leave it to the States, through the enactment of procedure and the certification of the competence of local attorneys, to determine whether a habeas applicant will be permitted the access to the federal forum that is guaranteed him by Congress.[9] *108 Thus, I remain concerned that undue deference to local procedure can only serve to undermine the ready access to a federal court to which a state defendant otherwise is entitled. But federal review is not the full measure of Sykes' interest, for there is another of even greater immediacy: assuring that his constitutional claims can be addressed to some court. For the obvious consequence of barring Sykes from the federal courthouse is to insulate Florida's alleged constitutional violation from any and all judicial review because of a lawyer's mistake. From the standpoint of the habeas petitioner, it is a harsh rule indeed that denies him "any review at all where the state has granted none," —particularly when he would have enjoyed both state and federal consideration had his attorney not erred. Fay's answer to Sykes' predicament, measuring the existence and extent of his procedural waiver by the Zerbst standard is, I submit, a realistic one. The Fifth Amendment assures that no person "shall be compelled in any criminal case to be a witness against himself" A defendant like Sykes can forgo this protection in two ways: He may decide to waive his substantive self-incrimination right at the point that he gives an inculpatory statement to the police authorities, or he and his attorney may choose not to challenge the admissibility of an incriminating statement when such a challenge would be effective under state trial procedure. See With few exceptions in the past 0 years, e. g., this Court has required that the substantive waiver, to be valid, must be a knowing and intelligent one. *109 See, e. g., ; ; Escobedo v. 378 U.S. 90 n. 1 (196); 355 U.S. 18, ; 19-150 (199); (192). It has long been established that such is the case for the waiver of the protections of the Miranda rule. See 38 U.S., at 75; at 20. Fay simply evaluates the procedural waiver of Sykes' Fifth Amendment rights by the same standard. From the standpoint of the habeas petitioner this symmetry is readily understandable. To him, the inevitable consequence of either type of forfeiture—be it substantive or procedural—is that the protection of the Fifth Amendment is lost and his own words are introduced at trial to the prejudice of his defense. The defendant's vital interest in preserving his Fifth Amendment privilege entitles him to informed and intelligent consideration of any decision leading to its forfeiture. It may be, of course, that the State's countervailing institutional interests are more compelling in the case of eliciting a procedural default, thereby justifying a relaxation of the Zerbst standard. I discuss this possibility in greater detail in Part III, infra. It is sufficient for present purposes, however, that there is no reason for believing that this necessarily is true. That the State legitimately desires to preserve an orderly and efficient judicial process is undeniable. But similar interests of efficiency and the like also can be identified with respect to other state institutions, such as its law enforcement agencies. Yet, as was only recently reconfirmed, we would not permit and have not permitted the state police to enhance the orderliness and efficiency of their law enforcement activities by embarking on a campaign of acquiring inadvertent waivers of important constitutional rights. at 01-06; see generally 25 U. S., at 58-59, n. 2 *110 A procedural default should be treated accordingly. Indeed, a recent development in the law of habeas corpus suggests that adherence to the deliberate-bypass test may be more easily justified today than it was when Fay was decided. It also suggests that the "prejudice" prong of the Court's new test may prove to be a redundancy. Last Term the Court ruled that alleged violations of the Fourth Amendment in most circumstances no longer will be cognizable in habeas corpus. While, for me, the principle that generated this conclusion was not readily apparent, I expressed my concern that the Stone decision contains the seeds for the exclusion from collateral review of a variety of constitutional rights that my Brethren somehow deem to be unimportant—perhaps those that they are able to conclude are not "guilt-related." See If this trail is to be followed, it would be quite unthinkable that an unintentional procedural default should be allowed to stand in the way of vindication of constitutional rights bearing upon the guilt or innocence of a defendant. Indeed, if as has been argued, a key to decision in this area turns upon a comparison of the importance of the constitutional right at stake with the state procedural rule, Sandalow, and the Adequate State Ground: Proposals for a Revised Doctrine, then the Court's threshold effort to identify those rights of sufficient importance to be litigated collaterally should largely predetermine the outcome of this balance. In sum, I believe that Fay's commitment to enforcing intentional but not inadvertent procedural defaults offers a realistic measure of protection for the habeas corpus petitioner seeking federal review of federal claims that were not litigated before the State. The threatened creation of a more "airtight system of forfeitures" would effectively deprive habeas petitioners of the opportunity for litigating *111 their constitutional claims before any forum and would disparage the paramount importance of constitutional rights in our system of government. Such a restriction of habeas corpus jurisdiction should be countenanced, I submit, only if it fairly can be concluded that Fay's focus on knowing and voluntary forfeitures unduly interferes with the legitimate interests of state courts or institutions. The majority offers no suggestion that actual experience has shown that Fay's bypass test can be criticized on this score. And, as I now hope to demonstrate, any such criticism would be unfounded. III A regime of federal habeas corpus jurisdiction that permits the reopening of state procedural defaults does not invalidate any state procedural rule as such;[10] Florida's courts remain entirely free to enforce their own rules as they choose, and to deny any and all state rights and remedies to a defendant who fails to comply with applicable state procedure. The relevant inquiry is whether more is required—specifically, whether the fulfillment of important interests of the State necessitates that federal courts be called upon to impose additional sanctions for inadvertent noncompliance with state procedural requirements such as the contemporaneous-objection rule involved here. *112 Florida, of course, can point to a variety of legitimate interests in seeking allegiance to its reasonable procedural requirements, the contemporaneous-objection rule included. See 379 U. S., at 8. As Fay recognized, a trial, like any organized activity, must conform to coherent process, and "there must be sanctions for the flouting of such procedure." 372 U.S., at 31. The strict enforcement of procedural defaults, therefore, may be seen as a means of deterring any tendency on the part of the defense to slight the state forum, to deny state judges their due opportunity for playing a meaningful role in the evolving task of constitutional adjudication, or to mock the needed finality of criminal trials. All of these interests are referred to by the Court in various forms.[11] The question remains, however, whether any of these policies or interests are efficiently and fairly served by enforcing both intentional and inadvertent defaults pursuant to the identical stringent standard. I remain convinced that when one pierces the surface justifications for a harsher rule posited by the Court, no standard stricter than Fay's deliberate-bypass test is realistically defensible. *113 Punishing a lawyer's unintentional errors by closing the federal courthouse door to his client is both a senseless and misdirected method of deterring the slighting of state rules. It is senseless because unplanned and unintentional action of any kind generally is not subject to deterrence; and, to the extent that it is hoped that a threatened sanction addressed to the defense will induce greater care and caution on the part of trial lawyers, thereby forestalling negligent conduct or error, the potential loss of all valuable state remedies would be sufficient to this end.[12] And it is a misdirected sanction because even if the penalization of incompetence or carelessness will encourage more thorough legal training and trial preparation, the habeas applicant, as opposed to his lawyer, hardly is the proper recipient of such a penalty. Especially with fundamental constitutional rights *11 at stake, no fictional relationship of principal-agent or the like can justify holding the criminal defendant accountable for the naked errors of his attorney.[13] This is especially true when so many indigent defendants are without any realistic choice in selecting who ultimately represents them at trial.[1] Indeed, if responsibility for error must be apportioned between the parties, it is the State, through its attorney's admissions and certification policies, that is more fairly held to blame for the fact that practicing lawyers too often are ill-prepared or ill-equipped to act carefully and knowledgeably when faced with decisions governed by state procedural requirements. *115 Hence, while I can well agree that the proper functioning of our system of criminal justice, both federal and state, necessarily places heavy reliance on the professionalism and judgment of trial attorneys, I cannot accept a system that ascribes the absolute forfeiture of an individual's constitutional claims to situations where his lawyer manifestly exercises no professional judgment at all—where carelessness, mistake, or ignorance is the explanation for a procedural default. Of course, it is regrettable that certain errors that might have been cured earlier had trial counsel acted expeditiously must be corrected collaterally and belatedly. I can understand the Court's wistfully wishing for the day when the trial was the sole, binding and final "event" of the adversarial process—although I hesitate to agree that in the eyes of the criminal defendant it has ever ceased being the "main" one, ante, at 90. But it should be plain that in the real world, the interest in finality is repeatedly compromised in numerous ways that arise with far greater frequency than do procedural defaults. The federal criminal system, to take one example, expressly disapproves of interlocutory review in the generality of cases even though such a policy would foster finality by permitting the authoritative resolution of all legal and constitutional issues prior to the convening of the "main event." See generally 31 U.S. 651 Instead, it relies on the belated correction of error, through appeal and collateral review, to ensure the fairness and legitimacy of the criminal sanction. Indeed, the very existence of the well-established right collaterally to reopen issues previously litigated before the state courts, represents a congressional policy choice that is inconsistent with notions of strict finality—and probably more so than authorizing the litigation of issues that, due to inadvertence, were never addressed to any court. Ultimately, all of these limitations on the finality of criminal convictions emerge from the tension between justice *116 and efficiency in a judicial system that hopes to remain true to its principles and ideals. Reasonable people may disagree on how best to resolve these tensions. But the solution that today's decision risks embracing seems to me the most unfair of all: the denial of any judicial consideration of the constitutional claims of a criminal defendant because of errors made by his attorney which lie outside the power of the habeas petitioner to prevent or deter and for which, under no view of morality or ethics, can he be held responsible. In short, I believe that the demands of our criminal justice system warrant visiting the mistakes of a trial attorney on the head of a habeas corpus applicant only when we are convinced that the lawyer actually exercised his expertise and judgment in his client's service, and with his client's knowing and intelligent participation where possible. This, of course, is the precise system of habeas review established by IV Perhaps the primary virtue of Fay is that the bypass test at least yields a coherent yardstick for federal district courts in rationalizing their power of collateral See n. In contrast, although some four years have passed since its introduction in the only thing clear about the Court's "cause"-and-"prejudice" standard is that it exhibits the notable tendency of keeping prisoners in jail without addressing their constitutional complaints. Hence, as of today, all we know of the "cause" standard[15] is its requirement that habeas applicants bear an undefined burden of explanation for the failure to obey the state rule, ante, at 91. Left unresolved is whether a habeas petitioner like Sykes can adequately discharge this burden by *117 offering the commonplace and truthful explanation for his default: attorney ignorance or error beyond the client's control. The "prejudice" inquiry, meanwhile, appears to bear a strong resemblance to harmless-error doctrine. Compare ante, at 91, with 2 I disagree with the Court's appraisal of the harmlessness of the admission of respondent's confession, but if this is what is meant by prejudice, respondent's constitutional contentions could be as quickly and easily disposed of in this regard by permitting federal courts to reach the merits of his complaint. In the absence of a persuasive alternative formulation to the bypass test, I would simply affirm the judgment of the Court of Appeals and allow Sykes his day in court on the ground that the failure of timely objection in this instance was not a tactical or deliberate decision but stemmed from a lawyer's error that should not be permitted to bind his client. One final consideration deserves mention. Although the standards recently have been relaxed in various jurisdictions,[16] it is accurate to assert that most courts, this one included,[17] traditionally have resisted any realistic inquiry into the competency of trial counsel. There is nothing unreasonable, *118 however, in adhering to the proposition that it is the responsibility of a trial lawyer who takes on the defense of another to be aware of his client's basic legal rights and of the legitimate rules of the forum in which he practices his profession.[18] If he should unreasonably permit such rules to bar the assertion of the colorable constitutional claims of his client, then his conduct may well fall below the level of competence that can fairly be expected of him.[19] For almost 0 years it has been established that inadequacy of counsel undercuts the very competence and jurisdiction of the trial court and is always open to collateral[20] Obviously, as a practical matter, a trial counsel cannot procedurally waive his own inadequacy. If the scope of habeas jurisdiction previously governed by is to be redefined so as to enforce the errors and neglect of lawyers with unnecessary and unjust rigor, the time may come when conscientious and fairminded federal and state courts, in adhering to the teaching of will have to reconsider whether they can continue to indulge the comfortable fiction that all lawyers are skilled or even competent craftsmen in representing the fundamental rights of their clients.

Justice Stevens

majority

Hardin v. Straub

https://www.courtlistener.com/opinion/112265/hardin-v-straub/

https://www.courtlistener.com/api/rest/v3/clusters/112265/

1988-092

This case presents the question whether a federal court applying a state statute of limitations to an inmate's federal civil rights action should give effect to the State's provision tolling the limitations period for prisoners. Petitioner is incarcerated in a Michigan state prison. In 1986 he filed a pro se complaint pursuant to 42 U.S. C. § 1983, alleging that for approximately 180 days in 1980 and 1981 he had been held in solitary confinement in violation of his federal constitutional rights.[1] The District Court sua sponte dismissed the complaint because it had been filed after the expiration of Michigan's 3-year statutory limitations period for personal injury actions. The Court of Appeals affirmed. 836 F.2d 549 (CA6 1987). Following its 3-day-old decision in Higley v. Michigan Department of Corrections, 835 F.2d 623 (CA6 1987), the court refused to apply a Michigan statute that suspends limitations periods for persons under a legal disability until one year after the disability has been removed. Because the holding appeared to conflict with our decision in Board of Regents, University of New York v. Tomanio, 446 U.S. 478 (1980), we granted certiorari.[2] 488 U.S. 887 (1988). We now reverse. *538 In enacting 42 U.S. C. § 1988 Congress determined that gaps in federal civil rights acts should be filled by state law, as long as that law is not inconsistent with federal law.[3] See Burnett v. Grattan, 468 U.S. 42, 47-48 (1984). Because no federal statute of limitations governs, federal courts routinely measure the timeliness of federal civil rights suits by state law. Id., at 49; Chardon v. Fumero Soto, 462 U.S. 650, 655-656 (1983); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 464 (1975). This tradition of borrowing analogous limitations statutes, cf. O'Sullivan v. Felix, 233 U.S. 318 (1914), is based on a congressional decision to defer to "the State's judgment on the proper balance between the policies of repose and the substantive policies of enforcement embodied in the state cause of action." Wilson v. Garcia, *539 471 U.S. 261, 271 (1985).[4] "In virtually all statutes of limitations the chronological length of the limitation period is interrelated with provisions regarding tolling, revival, and questions of application." Johnson, supra, at 464. Courts thus should not unravel state limitations rules unless their full application would defeat the goals of the federal statute at issue. See, e. g., Wilson, supra, at 269; Chardon, supra, at 657. These principles were invoked in Board of Regents, University of New York v. Tomanio, supra, to review a contention that a § 1983 action was barred by New York's 3-year limitations statute. The District Court and the Court of Appeals had rejected the defense by relying on a "federal tolling rule" not contained among the tolling provisions the state legislature had codified with its limitations periods. Id., at 482, 486. This Court reversed. Limitations periods in § 1983 suits are to be determined by reference to the appropriate "state statute of limitations and the coordinate tolling rules"; New York's legislative choices in this regard were therefore "binding rules of law." Id., at 484. Since the State's rules did not defeat either § 1983's chief goals of compensation and deterrence[5] or its subsidiary goals of uniformity and federalism, *540 the Court held that Tomanio's suit was time barred. Id., at 488-492. It is undisputed that the limitations period applicable to this case is three years, as established in Michigan's statute governing personal injury actions.[6] See Owens v. Okure, 488 U.S. 235 (1989); Wilson v. Garcia, supra. Since 1846, however, the Michigan Legislature has enacted provisions tolling the onset of limitations periods for prisoners and others suffering from legal disabilities.[7] The contemporary counterpart provides: "[I]f the person first entitled to make an entry or bring an action is under 18 years of age, insane, or imprisoned at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run." Mich. Comp. Laws Ann. § 600.5851(1) (1987).[8] *541 Having passed this statute in 1961,[9] the Michigan Legislature revised it in 1972 without altering its effect on prisoners' lawsuits. A legislative committee recognized: " `[E]ven prisoners can bring civil actions, though they may not be allowed to be personally present, so it is not as necessary to provide long periods after the removal of the disability in which to sue as it was in the past when these disabilities were considerably more real. Nevertheless, it was considered better to allow a short period after the termination of the disability in which the person under the disability could bring an action.' " Hawkins v. Justin, 109 Mich. App. 743, 748, 311 N.W.2d 465, 467 (1981) (per curiam), quoting committee comment following Mich. Comp. Laws Ann. § 600.5851, p. 914 (1968). Likewise, 1986 amendments to the provision did not affect its applicability to prison inmates. See historical note following Mich. Comp. Laws Ann. § 600.5851, p. 540 (1987). In Hawkins v. Justin, supra, the Michigan Court of Appeals employed § 600.5851 to toll a state-law libel action by a plaintiff who was incarcerated in a state correctional institution. "[T]he purpose of the statute is to provide prisoners with additional time to assert their legal rights," the state court concluded, "and this purpose could reasonably be based upon the fact that prisoners have restricted access to the judicial system due to their confinement." Id., at 748-749, 311 N.W.2d, at 467. *542 The Court of Appeals for the Sixth Circuit nonetheless refused to apply the tolling provision to inmates' § 1983 suits in this case and in Higley v. Michigan Department of Corrections, 835 F.2d 623 (1987). Although it recognized in Higley that it was "obligated to apply state tolling statutes to § 1983 actions, as long as the result is not inconsistent with federal law or policy," id., at 624, the court held that "application of a lengthy tolling period is clearly counterproductive to sound federal policy in attempting to deal with § 1983 claims as promptly as practicable," id., at 626-627.[10] Tolling is neither inconsistent with nor required by § 1983's goal of compensating persons whose constitutional rights have been violated, the court stated. Its result thus turned on two other interests, which it discussed in tandem: the settled § 1983 policy of deterring officials' unconstitutional behavior and a novel "rehabilitative function [of] providing a `safety valve' for prisoner grievances."[11]Id., at 626. Concluding that quick disposition *543 of § 1983 suits advances these latter policies, the court held that Michigan's tolling law is inconsistent with federal law and declined to apply it. We do not agree with the Court of Appeals. A State's decision to toll the statute of limitations during the inmate's disability does not frustrate § 1983's compensation goal. Rather, it enhances the inmate's ability to bring suit and recover damages for injuries.[12] Nor does the State's decision to toll its statute of limitations hinder § 1983's deterrence interest. In the event an official's misconduct is ongoing, the plaintiff will have an interest in enjoining it; thus, the time during which the official will unknowingly violate the Constitution may well be short. The State also may have decided that if the official knows an act is unconstitutional, the risk that he or she might be haled into court indefinitely is more likely to check misbehavior than the knowledge that he or she might escape a challenge to that conduct within a brief period of time. The Court of Appeals may have overlooked this point in Higley because of its unfortunate intermeshing of § 1983's deterrence function with a dubious "rehabilitative function."[13] *544 As the Sixth Circuit pointed out, ibid., many prisoners are willing and able to file § 1983 suits while in custody. Thus, a State reasonably could decide that there is no need to enact a tolling statute applicable to such suits. Alternatively, a State reasonably might conclude that some inmates may be loathe to bring suit against adversaries to whose daily supervision and control they remain subject, or that inmates who do file may not have a fair opportunity to establish the validity of their allegations while they are confined. The Michigan tolling statute reflects a legislative decision to lessen any such difficulties by extending the time in which prisoners may seek recovery for constitutional injuries. Such a statute is consistent with § 1983's remedial purpose.[14] 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 presents the question whether a federal court applying a state statute of limitations to an inmate's federal civil rights action should give effect to the State's provision tolling the limitations period for prisoners. Petitioner is incarcerated in a Michigan state prison. In 1986 he filed a pro se complaint pursuant to 42 U.S. C. 1983, alleging that for approximately 180 days in 1980 and he had been held in solitary confinement in violation of his federal constitutional rights.[1] The District Court sua sponte dismissed the complaint because it had been filed after the expiration of Michigan's 3-year statutory limitations period for personal injury actions. The Court of Appeals affirmed. Following its 3-day-old decision in the court refused to apply a Michigan statute that suspends limitations periods for persons under a legal disability until one year after the disability has been removed. Because the holding appeared to conflict with our decision in Board of Regents, University of New we granted certiorari.[2] We now reverse. *538 In enacting 42 U.S. C. 1988 Congress determined that gaps in federal civil rights acts should be filled by state law, as long as that law is not inconsistent with federal law.[3] See Because no federal statute of limitations governs, federal courts routinely measure the timeliness of federal civil rights suits by state law. ; ; This tradition of borrowing analogous limitations statutes, cf. is based on a congressional decision to defer to "the State's judgment on the proper balance between the policies of repose and the substantive policies of enforcement embodied in the state cause of action."[4] "In virtually all statutes of limitations the chronological length of the limitation period is interrelated with provisions regarding tolling, revival, and questions of application." at Courts thus should not unravel state limitations rules unless their full application would defeat the goals of the federal statute at issue. See, e. g., ; These principles were invoked in Board of Regents, University of New to review a contention that a 1983 action was barred by New York's 3-year limitations statute. The District Court and the Court of Appeals had rejected the defense by relying on a "federal tolling rule" not contained among the tolling provisions the state legislature had codified with its limitations periods. This Court reversed. Limitations periods in 1983 suits are to be determined by reference to the appropriate "state statute of limitations and the coordinate tolling rules"; New York's legislative choices in this regard were therefore "binding rules of law." Since the State's rules did not defeat either 1983's chief goals of compensation and deterrence[5] or its subsidiary goals of uniformity and federalism, *540 the Court held that 's suit was time barred. It is undisputed that the limitations period applicable to this case is three years, as established in Michigan's statute governing personal injury actions.[6] See ; v. Since 1846, however, the Michigan Legislature has enacted provisions tolling the onset of limitations periods for prisoners and others suffering from legal disabilities.[7] The contemporary counterpart provides: "[I]f the person first entitled to make an entry or bring an action is under 18 years of age, insane, or imprisoned at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run." Mich. Comp. Laws Ann. 600.5851(1)[8] *541 Having passed this statute in 1961,[9] the Michigan Legislature revised it in 1972 without altering its effect on prisoners' lawsuits. A legislative committee recognized: " `[E]ven prisoners can bring civil actions, though they may not be allowed to be personally present, so it is not as necessary to provide long periods after the removal of the disability in which to sue as it was in the past when these disabilities were considerably more real. Nevertheless, it was considered better to allow a short period after the termination of the disability in which the person under the disability could bring an action.' " quoting committee comment following Mich. Comp. Laws Ann. 600.5851, p. 914 (1968). Likewise, 1986 amendments to the provision did not affect its applicability to prison inmates. See historical note following Mich. Comp. Laws Ann. 600.5851, p. 540 In the Michigan Court of Appeals employed 600.5851 to toll a state-law libel action by a plaintiff who was incarcerated in a state correctional institution. "[T]he purpose of the statute is to provide prisoners with additional time to assert their legal rights," the state court concluded, "and this purpose could reasonably be based upon the fact that prisoners have restricted access to the judicial system due to their confinement." at -749, 311 N.W.2d, at *542 The Court of Appeals for the Sixth Circuit nonetheless refused to apply the tolling provision to inmates' 1983 suits in this case and in Although it recognized in Higley that it was "obligated to apply state tolling statutes to 1983 actions, as long as the result is not inconsistent with federal law or policy," the court held that "application of a lengthy tolling period is clearly counterproductive to sound federal policy in attempting to deal with 1983 claims as promptly as practicable,"[10] Tolling is neither inconsistent with nor required by 1983's goal of compensating persons whose constitutional rights have been violated, the court stated. Its result thus turned on two other interests, which it discussed in tandem: the settled 1983 policy of deterring officials' unconstitutional behavior and a novel "rehabilitative function [of] providing a `safety valve' for prisoner grievances."[11] at 626. Concluding that quick disposition *543 of 1983 suits advances these latter policies, the court held that Michigan's tolling law is inconsistent with federal law and declined to apply it. We do not agree with the Court of Appeals. A State's decision to toll the statute of limitations during the inmate's disability does not frustrate 1983's compensation goal. Rather, it enhances the inmate's ability to bring suit and recover damages for injuries.[12] Nor does the State's decision to toll its statute of limitations hinder 1983's deterrence interest. In the event an official's misconduct is ongoing, the plaintiff will have an interest in enjoining it; thus, the time during which the official will unknowingly violate the Constitution may well be short. The State also may have decided that if the official knows an act is unconstitutional, the risk that he or she might be haled into court indefinitely is more likely to check misbehavior than the knowledge that he or she might escape a challenge to that conduct within a brief period of time. The Court of Appeals may have overlooked this point in Higley because of its unfortunate intermeshing of 1983's deterrence function with a dubious "rehabilitative function."[13] *544 As the Sixth Circuit pointed out, ib many prisoners are willing and able to file 1983 suits while in custody. Thus, a State reasonably could decide that there is no need to enact a tolling statute applicable to such suits. Alternatively, a State reasonably might conclude that some inmates may be loathe to bring suit against adversaries to whose daily supervision and control they remain subject, or that inmates who do file may not have a fair opportunity to establish the validity of their allegations while they are confined. The Michigan tolling statute reflects a legislative decision to lessen any such difficulties by extending the time in which prisoners may seek recovery for constitutional injuries. Such a statute is consistent with 1983's remedial purpose.[14] 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.

per_curiam

per_curiam

Bazemore v. Friday

https://www.courtlistener.com/opinion/111746/bazemore-v-friday/

https://www.courtlistener.com/api/rest/v3/clusters/111746/

1985-152

These cases present several issues arising out of petitioners' action against respondents for alleged racial discrimination in employment and provision of services by the North Carolina Agricultural Extension Service (Extension Service). The District Court declined to certify various proposed classes and, after a lengthy trial, entered judgment for respondents in all respects, finding that petitioners had not carried their burden of demonstrating that respondents had engaged in a pattern or practice of racial discrimination. The District Court also ruled against each of the individual plaintiffs' discrimination claims. The Court of Appeals affirmed. 751 F.2d 662 (CA4 1984). We hold, for the reasons stated in the concurring opinion of JUSTICE BRENNAN, that the Court of Appeals erred in holding that under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S. C. § 2000e et seq., the Extension Service had no duty to eradicate *387 salary disparities between white and black workers that had their origin prior to the date Title VII was made applicable to public employers;[1] that the Court of Appeals erred in disregarding petitioners' statistical analysis because it reflected pre-Title VII salary disparities, and in holding that petitioners' regressions were unacceptable as evidence of discrimination; that the Court of Appeals erred in ignoring evidence presented by petitioners in addition to their multiple regression analyses; that, on remand, the Court of Appeals should examine all of the evidence in the record relating to salary disparities under the clearly-erroneous standard; that the reasons given by the Court of Appeals for refusing to certify a class of black employees of the Extension Service do not support a decision not to certify such a class; and that the Court of Appeals was correct in refusing to certify a class of defendant counties.[2] We further hold, for the reasons stated in the opinion of JUSTICE WHITE, that neither the Constitution nor the applicable Department of Agriculture regulations require more than what the District Court and *388 the Court of Appeals found the Extension Service has done in this case to disestablish segregation in its 4-H and Extension Homemaker Clubs. Accordingly, the judgment of the Court of Appeals is affirmed in part and vacated in part, and the cases are remanded for further proceedings consistent with this opinion.[3] It is so ordered. JUSTICE BRENNAN, joined by all other Members of the Court, concurring in part. I A The purpose of North Carolina's agricultural extension program, administered through the North Carolina Agricultural Extension Service (Extension Service), is to aid in the dissemination of "useful and practical information on subjects *389 relating to agriculture and home economics." App. to Pet. for Cert. in No. 85-93, p. 7a (hereinafter Pet. App.). The Extension Service is a division of the School of Agriculture and Life Sciences at North Carolina State University (NCSU). It is headed by a Director who exercises authority over District Extension Chairmen responsible for administering all Extension Service programs within the State's six Extension Service districts. The District Extension Chairmen, in turn, supervise the 100 County Extension Chairmen who are responsible for developing and coordinating all Extension Service activities within their respective counties. The County Extension Chairmen also report to their respective Board of County Commissioners (Board), a unit of local government, on extension programs and on matters relating to budgeting and personnel. The Extension Service operates in four major areas: home economics, agriculture, 4-H and youth, and community resource development. In both the home economics and 4-H areas, one of the Extension Service's methods entails the establishment of clubs to educate the club members in home economics and other useful and practical skills. The agricultural program educates and encourages farmers to adopt scientific methods and to adjust to changing economic circumstances. The community resource development program emphasizes group action through citizen groups and organizations. Each of these programs is implemented by local agents who are selected for employment jointly by the Extension Service and the county Boards. Agents are divided into three ranks: full agent, associate agent, and assistant agent. "While the three ranks of agents perform essentially the same types of tasks, when an agent is promoted his responsibilities increase and a higher level of performance is expected of him." Id., at 17a. The salaries of all workers are determined jointly by the Extension Service and the Boards. Id., at 33a; CA App. *390 223; DX 78, CA App. 1684.[1] The federal, state, and county governments all contribute to these salaries. The Boards and the Extension Service determine jointly the proportionate share of salaries to be paid by the State and by the county. Moreover, all county extension hirings and firings are decided " `jointly between the North Carolina Agricultural Extension Service and the Board of County Commissioners.' " Pet. App. 24a (quoting Memorandum of Understanding, DX 78). The Extension Service has overall responsibility for establishing qualifications for employment in the Service and for screening applicants before recommending qualified applicants to the county commissioners for appointment to vacant or new positions. The Extension Service also prepares and submits an annual budget request to the Board for the county's share of funds for salaries. Each Board reviews the budget requests from the Extension Service each year and confers with and advises the District and County Extension Chairman concerning Extension Service programs. The Board furnishes the county's share of salaries for extension personnel. In addition, it provides office space and equipment, utilities, telephone, demonstration materials, etc. Prior to August 1, 1965, the Extension Service was divided into two branches: a white branch and a "Negro branch." Only the "Negro branch" had a formal racial designation. The "Negro branch" was composed entirely of black personnel and served only black farmers, homemakers, and youth. The white branch employed no blacks, but did on occasion serve blacks. On August 1, 1965, in response to the Civil Rights Act of 1964, the State merged the two branches of the *391 Extension Service into a single organization. However, as the District Court subsequently found, "[the] unification and integration of the Extension Service did not result immediately in the elimination of some disparities which had existed between the salaries of white personnel and black personnel. . . ." Id., at 31a. B The private petitioners include employees of the Extension Service, recipients of its services, members of Extension Homemaker Clubs, and parents of 4-H Club youths. Complaint 12. They brought this action in 1971 alleging racial discrimination in employment and in the provision of services on the part of the Extension Service in violation of the First, Fifth, and Fourteenth Amendments to the Constitution, 42 U.S. C. §§ 1981, 1983 and 2000d, and 7 U.S. C. § 341 et seq. The defendants, respondents here, were William C. Friday, President of NCSU, and various officials associated with the University and its School of Agriculture. In addition, County Commissioners from Alamance, Edgecomb, and Mecklenburg Counties were also named as defendants. On April 7, 1972, the United States intervened under § 902 of Title IX and §§ 601 and 602 of Title VI of the Civil Rights Act of 1964, 42 U.S. C. §§ 2000h-2, 2000d, and 2000d-1. The United States subsequently amended its complaint in intervention to include allegations that defendants had also violated §§ 703 and 706 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. §§ 2000e-2 and 2000e-5. The United States' complaint essentially tracked the claims made by the private petitioners. The private petitioners were permitted on the eve of trial to amend their complaint to add a claim under Title VII as well. On two occasions prior to trial the District Court was asked, but declined, to certify the action as a class action. *392 Near the close of trial the plaintiffs again requested the court to certify four classes of plaintiffs and one class of defendants.[2] However, the District Court once again declined to do so, and this decision was subsequently upheld by the Court of Appeals. On the merits, the trial court explored allegations of racial discrimination in virtually every aspect of the Extension Service's employment practices and provision of services.[3] The District Court ruled in favor of respondents in all respects. On most issues it concluded that petitioners *393 had failed to carry their burden of proof. As a general proposition, the District Court was of the view that the Extension Service had conducted itself in a nondiscriminatory manner since it became subject to Title VII and since the merger of the black and white branches in 1965. Both the private petitioners and the United States limited their appeals to the claims that the District Court erred in considering the evidence before it regarding salaries and promotions to County Chairmen, and in concluding that the Extension Service had not discriminated against blacks with respect to salaries and promotions to County Chairmen. The United States also claimed that the system used to determine merit pay increases violated Title VII. The private petitioners also appealed the rejection of their claim that respondents were unlawfully providing services and materials to segregated 4-H and Extension Homemaker Clubs, and the District Court's refusal to certify the case as a class action. The Court of Appeals affirmed the District Court in all respects. 751 F.2d 662 (CA4 1984). We granted certiorari, 474 U.S. 978 (1985).[4] *394 II The first issue we must decide is whether the Court of Appeals erred in upholding the District Court's finding that petitioners had not proved by a preponderance of the evidence that respondents had discriminated against black Extension Service employees in violation of Title VII by paying them less than whites employed in the same positions. The Court of Appeals reasoned that the Extension Service was under no obligation to eliminate any salary disparity between blacks and whites that had its origin prior to 1972 when Title VII became applicable to public employers such as the Extension Service.[5] It also reasoned that factors, other than those included in petitioners' multiple regression analyses, affected salary, and that therefore those regression analyses were incapable of sustaining a finding in favor of petitioners. A Both the Court of Appeals and the District Court found that before the black and white Extension Service branches were merged in 1965, the Extension Service maintained two separate, racially segregated branches and paid black employees less than white employees. Pet. App. 120a; 751 F.2d, at 666. The Court of Appeals also acknowledged that after the merger of the Extension Service, "[s]ome preexisting salary disparities continued to linger on," and that these disparities continued after Title VII became applicable to the Extension Service in March 1972 and after this suit was filed. Ibid. Indeed, the Court of Appeals noted that "the Extension Service admits that, while it had made some adjustments to try to get rid of the salary disparity resulting *395 on account of pre-Act discrimination, it has not made all the adjustments necessary to get rid of all such disparity." Id., at 672. See also Brief for Respondents 32 ("[E]fforts were made to reduce the average differences but due to the county by county salary differences and finding [sic] structure 1971 [sic], the averages were not eliminated"). The court interpreted petitioners' claim on appeal to be that "the pre-Act discriminatory difference in salaries should have been affirmatively eliminated but has not." 751 F.2d, at 670. Relying on our cases in Hazelwood School District v. United States, 433 U.S. 299 (1977), and United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), it concluded, "[w]e do not think this is the law." 751 F.2d, at 670. The error of the Court of Appeals with respect to salary disparities created prior to 1972 and perpetuated thereafter is too obvious to warrant extended discussion: that the Extension Service discriminated with respect to salaries prior to the time it was covered by Title VII does not excuse perpetuating that discrimination after the Extension Service became covered by Title VII. To hold otherwise would have the effect of exempting from liability those employers who were historically the greatest offenders of the rights of blacks. A pattern or practice that would have constituted a violation of Title VII, but for the fact that the statute had not yet become effective, became a violation upon Title VII's effective date, and to the extent an employer continued to engage in that act or practice, it is liable under that statute. While recovery may not be permitted for pre-1972 acts of discrimination, to the extent that this discrimination was perpetuated after 1972, liability may be imposed. Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior *396 to the effective date of Title VII. The Court of Appeals plainly erred in holding that the pre-Act discriminatory difference in salaries did not have to be eliminated.[6] *397 The Court of Appeals' conclusion that pre-Act salary discrimination did not have to be eliminated undermines the rest of its analysis of the District Court opinion. Having rejected the effect of pre-Act discrimination, the court considered solely whether the Extension Service discriminated with respect to the application of quartile rankings which, according to the Court of Appeals, were "the only aspect of salary computation in which the Extension Service exercised any discretion." 751 F.2d, at 674.[7] Because, as we have explained, the Extension Service was under an obligation to eradicate salary disparities based on race that began prior to the effective date of Title VII,[8] the Court of Appeals erred in concentrating its analysis solely on the issue whether there was racial discrimination in the ranking system. B We now turn to the issue whether the Court of Appeals erred in upholding the District Court's refusal to accept the petitioners' expert statistical evidence as proof of discrimination *398 by a preponderance of the evidence. In a case alleging that a defendant has engaged in a pattern and practice of discrimination under § 707(a) of the Civil Rights Act of 1964, 42 U.S. C. § 2000e-6(a), plaintiffs must "establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure — the regular rather than the unusual practice." Teamsters v. United States, 431 U.S. 324, 336 (1977). Further, our decision in United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983), although not decided in the context of a pattern-and-practice case, makes clear that if the defendants have not succeeded in having a case dismissed on the ground that plaintiffs have failed to establish a prima facie case, and have responded to the plaintiffs' proof by offering evidence of their own, the factfinder then must decide whether the plaintiffs have demonstrated a pattern or practice of discrimination by a preponderance of the evidence. This is because the only issue to be decided at that point is whether the plaintiffs have actually proved discrimination. Id., at 715. This determination is subject to the clearly-erroneous standard on appellate review. See Anderson v. Bessemer City, 470 U.S. 564 (1985); Pullman-Standard v. Swint, 456 U.S. 273 (1982). At trial, petitioners relied heavily on multiple regression analyses designed to demonstrate that blacks were paid less than similarly situated whites. The United States' expert prepared multiple regression analyses relating to salaries for the years 1974, 1975, and 1981. Certain of these regressions used four independent variables — race, education, tenure, and job title. Petitioners selected these variables based on discovery testimony by an Extension Service official that four factors were determinative of salary: education, tenure, job title, and job performance. GX 159, pp. 90,96. In addition, regressions done by the Extension Service itself for 1971 included the variables race, sex, education, and experience; and another in 1974 used the variables race, education, *399 and tenure to check for disparities between the salaries of blacks and whites. GX 214; Tr. 3915-3918; CA App. 1681; Tr. 3920. The regressions purported to demonstrate that in 1974 the average black employee earned $331 less per year than a white employee with the same job title, education, and tenure, GX 123; CA App. 1601; Tr. 364-365, and that in 1975 the disparity was $395, GX 123; CA App. 1589; Tr.377.[9] The regression for 1981 showed a smaller disparity which lacked statistical significance. The Court of Appeals stated: "[The] district court refused to accept plaintiffs' expert testimony as proof of discrimination by a preponderance of the evidence because the plaintiffs' expert had not included a number of variable factors the court considered relevant, among them being the across the board and percentage pay increases which varied from county to county. The district court was, of course, correct in this analysis." 751 F.2d, at 672. The Court of Appeals thought the District Court correct for essentially two reasons: First, the Court of Appeals rejected petitioners' regression analysis because it "contained salary figures which reflect the effect of pre-Act discrimination, a consideration not actionable under Title VII . . . ." Ibid. (footnote omitted). Second, the court believed that "[a]n appropriate regression analysis of salary should . . . include all measurable variables thought to have an effect on salary level." Ibid. In particular, the court found that the failure to consider county-to-county differences in salary increases was significant. It concluded, noting: "[B]oth experts omitted from their respective analysis variables which ought to be reasonably viewed as determinants of salary. As a result, the regression analysis presented here must be *400 considered unacceptable as evidence of discrimination." Ibid. The Court of Appeals' treatment of the statistical evidence in this case was erroneous in important respects. 1 The Court of Appeals erred in stating that petitioners' regression analyses were "unacceptable as evidence of discrimination," because they did not include "all measurable variables thought to have an effect on salary level." The court's view of the evidentiary value of the regression analyses was plainly incorrect. While the omission of variables from a regression analysis may render the analysis less probative than it otherwise might be, it can hardly be said, absent some other infirmity, that an analysis which accounts for the major factors "must be considered unacceptable as evidence of discrimination." Ibid. Normally, failure to include variables will affect the analysis' probativeness, not its admissibility.[10] Importantly, it is clear that a regression analysis that includes less than "all measurable variables" may serve to prove a plaintiff's case. A plaintiff in a Title VII suit need not prove discrimination with scientific certainty; rather, his or her burden is to prove discrimination by a preponderance of the evidence. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981). Whether, in fact, such a regression analysis does carry the plaintiffs' ultimate burden will depend in a given case on the factual context of each case in light of all the evidence presented by both the plaintiff and the defendant. However, as long as the court may fairly conclude, in light of all the evidence, that it is more likely *401 than not that impermissible discrimination exists, the plaintiff is entitled to prevail. 2 In this case the Court of Appeals failed utterly to examine the regression analyses in light of all the evidence in the record. Looked at in its entirety, petitioners offered an impressive array of evidence to support their contention that the Extension Service engaged in a pattern or practice of discrimination with respect to salaries. In addition to their own regression analyses described above, petitioners offered regressions done by the Extension Service for 1971 and 1974 that showed results similar to those revealed by petitioners' regressions. Tr. 3917; CA App. 1681. Petitioners also claim support from multiple regressions presented by respondents at trial for the year 1975. Using the same model that petitioners had used, and similar variables, respondents' expert obtained substantially the same result for 1975, a statistically significant racial effect of $384. CA App. 1716. Indeed, respondents also included in their analysis, "quartile rank" as an independent variable, and this increased the racial effect to $475.[11] Petitioners also presented evidence of pre-Act salary discrimination, and of respondents' ineffectual attempts to eradicate it. For example, petitioners submitted evidence, and the District Court found, that blacks were paid less than whites in comparable positions prior to the merger of the black and white services in 1965. Pet. App. 120a. Moreover, in 1971, respondents acknowledged that substantial salary *402 differences between blacks and whites existed.[12] In addition, evidence was offered to show that the efforts by the Extension Service to equalize those salaries in 1971 were insufficient to accomplish the goal. Tr. 242-246; GX 98. As we made clear in Hazelwood School District v. United States, 433 U. S., at 309-310, n. 15 "[p]roof that an employer engaged in racial discrimination prior to the effective date of Title VII might in some circumstances support the inference that such discrimination continued, particularly where relevant aspects of the decisionmaking process had undergone little change."[13] Further, petitioners presented evidence to rebut respondents' contention that county-to-county variations in contributions to salary explain the established disparity between black and white salaries. The United States presented evidence, which it claims respondents did not rebut, establishing that black employees were not located disproportionately in the counties that contributed only a small amount to Extension Service salaries. GX 216; see also CA App. 189. Absent a disproportionate concentration of blacks in such counties, it is difficult, if not impossible, to understand how the fact that some counties contribute less to salaries than others could explain disparities between black and white salaries. *403 In addition, the United States presented an exhibit based on 1973 data for 23 counties showing 29 black employees who were earning less than whites in the same county who had comparable or lower positions and tenure. GX 102. Finally, and there was some overlap here with evidence used to discredit the county-to-county variation theory, petitioners presented evidence consisting of individual comparisons between salaries of blacks and whites similarly situated. GX 102, DX 48. Witness testimony, claimed by petitioners to be unrebutted, also confirmed the continued existence of such disparities. CA App. 190; Tr. 2010-2012, 2685, 2825-2826. Setting out the range of persuasive evidence offered by petitioners demonstrates the error of the Court of Appeals in focusing solely on the characteristics of the regression analysis. Although we think that consideration of the evidence makes a strong case for finding the District Court's conclusion clearly erroneous,[14] we leave that task to the Court of *404 Appeals on remand which must make such a determination based on the "entire evidence" in the record. United States v. United States Gypsum Co., 333 U.S. 364 (1948).[15] III The private petitioners complain that the District Court and Court of Appeals erred in failing to certify this case as a class action. They seek the certification of three distinct classes: (1) all black employees of the Extension Service on or after November 18, 1971; (2) all current black members and potential black members of the 4-H and Extension Homemaker *405 Clubs on or after November 18, 1971;[16] and as a defendant (3) all County Commissioners in North Carolina who held that position on or after November 18, 1971. 751 F.2d, at 667. The Court of Appeals upheld the District Court's denial of class certification. A With respect to the class of black employees, the Court of Appeals held that due to the fact that salaries are made up of money from several distinct sources, the Federal Government, the State, and the counties, the "claim of a potential plaintiff against one county will not be typical of the claim of another potential plaintiff against a different county." Id., at 668.[17] It applied the same reasoning to the employees' charge of discrimination in the hiring of County Chairmen. Ibid. Yet the claims here were not asserted solely against the counties; they were asserted also against the Extension Service. And, as against the Extension Service, at least, it is clear that the claims of the named plaintiffs were "typical" *406 of other black employees who may have been paid less or denied promotion to chairman. Although it seems likely that the other requirements of Federal Rule of Civil Procedure 23 were met by this class, neither court below expressly considered the issue and we therefore leave that determination to the Court of Appeals on remand.[18] B The Court of Appeals also upheld the District Court's decision not to certify a class of County Commissioner defendants because there "was simply no evidence of any standardized practice among the one hundred separate counties in the state to deprive anyone of any rights solely because of race." Pet. App. 47a-48a. The Court of Appeals was of the view that "to have a proper class of defendants in a case such as this there must be either a statewide rule or practice so that relief is available if the rule or practice is invalid, or the adjudication with respect to a member of a defendant class must as a practical matter be dispositive of the interests of the other members of the class as provided in FRCP 23(b)(1)(B)." 751 F.2d, at 670. We agree with the Court of Appeals that certification of a defendant class under Rule 23(b)(1)(B) in this case would have been improper. Whether an individual county acted intentionally with the Extension Service in setting salaries or in selecting County Chairmen in a discriminatory manner, is an issue that once decided with respect to a *407 particular county could not "be dispositive of the interests of the other members of the class." The private petitioners have suggested no theory to support any different result.

These cases present several issues arising out of petitioners' action against respondents for alleged racial discrimination in employment and provision of services by the North Carolina Agricultural Extension Service (Extension Service). The District Court declined to certify various proposed classes and, after a lengthy trial, entered judgment for respondents in all respects, finding that petitioners had not carried their burden of demonstrating that respondents had engaged in a pattern or practice of racial discrimination. The District Court also ruled against each of the individual plaintiffs' discrimination claims. The Court of Appeals affirmed. We hold, for the reasons stated in the concurring opinion of JUSTICE BRENNAN, that the Court of Appeals erred in holding that under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. 2000e et seq., the Extension Service had no duty to eradicate *387 salary disparities between white and black workers that had their origin prior to the date Title VII was made applicable to public employers;[1] that the Court of Appeals erred in disregarding petitioners' statistical analysis because it reflected pre-Title VII salary disparities, and in holding that petitioners' regressions were unacceptable as evidence of discrimination; that the Court of Appeals erred in ignoring evidence presented by petitioners in addition to their multiple regression analyses; that, on remand, the Court of Appeals should examine all of the evidence in the record relating to salary disparities under the clearly-erroneous standard; that the reasons given by the Court of Appeals for refusing to certify a class of black employees of the Extension Service do not support a decision not to certify such a class; and that the Court of Appeals was correct in refusing to certify a class of defendant counties.[2] We further hold, for the reasons stated in the opinion of JUSTICE WHITE, that neither the Constitution nor the applicable Department of Agriculture regulations require more than what the District Court and *388 the Court of Appeals found the Extension Service has done in this case to disestablish segregation in its 4-H and Extension Homemaker Clubs. Accordingly, the judgment of the Court of Appeals is affirmed in part and vacated in part, and the cases are remanded for further proceedings consistent with this opinion.[3] It is so ordered. JUSTICE BRENNAN, joined by all other Members of the Court, concurring in part. I A The purpose of North Carolina's agricultural extension program, administered through the North Carolina Agricultural Extension Service (Extension Service), is to aid in the dissemination of "useful and practical information on subjects *389 relating to agriculture and home economics." App. to Pet. for Cert. in No. 85-93, p. 7a (hereinafter Pet. App.). The Extension Service is a division of the School of Agriculture and Life Sciences at North Carolina State University (NCSU). It is headed by a Director who exercises authority over District Extension Chairmen responsible for administering all Extension Service programs within the State's six Extension Service districts. The District Extension Chairmen, in turn, supervise the 100 County Extension Chairmen who are responsible for developing and coordinating all Extension Service activities within their respective counties. The County Extension Chairmen also report to their respective Board of County Commissioners (Board), a unit of local government, on extension programs and on matters relating to budgeting and personnel. The Extension Service operates in four major areas: home economics, agriculture, 4-H and youth, and community resource development. In both the home economics and 4-H areas, one of the Extension Service's methods entails the establishment of clubs to educate the club members in home economics and other useful and practical skills. The agricultural program educates and encourages farmers to adopt scientific methods and to adjust to changing economic circumstances. The community resource development program emphasizes group action through citizen groups and organizations. Each of these programs is implemented by local agents who are selected for employment jointly by the Extension Service and the county Boards. Agents are divided into three ranks: full agent, associate agent, and assistant agent. "While the three ranks of agents perform essentially the same types of tasks, when an agent is promoted his responsibilities increase and a higher level of performance is expected of him." at 17a. The salaries of all workers are determined jointly by the Extension Service and the Boards. at 33a; CA App. *390 223; DX 78, CA App. 1684.[1] The federal, state, and county governments all contribute to these salaries. The Boards and the Extension Service determine jointly the proportionate share of salaries to be paid by the State and by the county. Moreover, all county extension hirings and firings are decided " `jointly between the North Carolina Agricultural Extension Service and the Board of County Commissioners.' " Pet. App. 24a (quoting Memorandum of Understanding, DX 78). The Extension Service has overall responsibility for establishing qualifications for employment in the Service and for screening applicants before recommending qualified applicants to the county commissioners for appointment to vacant or new positions. The Extension Service also prepares and submits an annual budget request to the Board for the county's share of funds for salaries. Each Board reviews the budget requests from the Extension Service each year and confers with and advises the District and County Extension Chairman concerning Extension Service programs. The Board furnishes the county's share of salaries for extension personnel. In addition, it provides office space and equipment, utilities, telephone, demonstration materials, etc. Prior to August 1, 1965, the Extension Service was divided into two branches: a white branch and a "Negro branch." Only the "Negro branch" had a formal racial designation. The "Negro branch" was composed entirely of black personnel and served only black farmers, homemakers, and youth. The white branch employed no blacks, but did on occasion serve blacks. On August 1, 1965, in response to the Civil Rights Act of 1964, the State merged the two branches of the *391 Extension Service into a single organization. However, as the District Court subsequently found, "[the] unification and integration of the Extension Service did not result immediately in the elimination of some disparities which had existed between the salaries of white personnel and black personnel." at 31a. B The private petitioners include employees of the Extension Service, recipients of its services, members of Extension Homemaker Clubs, and parents of 4-H Club youths. Complaint 12. They brought this action in 1971 alleging racial discrimination in employment and in the provision of services on the part of the Extension Service in violation of the First, Fifth, and Fourteenth Amendments to the Constitution, 42 U.S. C. 1981, 1983 and 2000d, and 7 U.S. C. 341 et seq. The defendants, respondents here, were William C. Friday, President of NCSU, and various officials associated with the University and its School of Agriculture. In addition, County Commissioners from Alamance, Edgecomb, and Mecklenburg Counties were also named as defendants. On April 7, 1972, the United intervened under 902 of Title IX and 601 and 602 of Title VI of the Civil Rights Act of 1964, 42 U.S. C. 2000h-2, 2000d, and 2000d-1. The United subsequently amended its complaint in intervention to include allegations that defendants had also violated 703 and 706 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. 2000e-2 and 2000e-5. The United ' complaint essentially tracked the claims made by the private petitioners. The private petitioners were permitted on the eve of trial to amend their complaint to add a claim under Title VII as well. On two occasions prior to trial the District Court was asked, but declined, to certify the action as a class action. *392 Near the close of trial the plaintiffs again requested the court to certify four classes of plaintiffs and one class of defendants.[2] However, the District Court once again declined to do so, and this decision was subsequently upheld by the Court of Appeals. On the merits, the trial court explored allegations of racial discrimination in virtually every aspect of the Extension Service's employment practices and provision of services.[3] The District Court ruled in favor of respondents in all respects. On most issues it concluded that petitioners *393 had failed to carry their burden of proof. As a general proposition, the District Court was of the view that the Extension Service had conducted itself in a nondiscriminatory manner since it became subject to Title VII and since the merger of the black and white branches in 1965. Both the private petitioners and the United limited their appeals to the claims that the District Court erred in considering the evidence before it regarding salaries and promotions to County Chairmen, and in concluding that the Extension Service had not discriminated against blacks with respect to salaries and promotions to County Chairmen. The United also claimed that the system used to determine merit pay increases violated Title VII. The private petitioners also appealed the rejection of their claim that respondents were unlawfully providing services and materials to segregated 4-H and Extension Homemaker Clubs, and the District Court's refusal to certify the case as a class action. The Court of Appeals affirmed the District Court in all respects. We granted certiorari,[4] *394 II The first issue we must decide is whether the Court of Appeals erred in upholding the District Court's finding that petitioners had not proved by a preponderance of the evidence that respondents had discriminated against black Extension Service employees in violation of Title VII by paying them less than whites employed in the same positions. The Court of Appeals reasoned that the Extension Service was under no obligation to eliminate any salary disparity between blacks and whites that had its origin prior to 1972 when Title VII became applicable to public employers such as the Extension Service.[5] It also reasoned that factors, other than those included in petitioners' multiple regression analyses, affected salary, and that therefore those regression analyses were incapable of sustaining a finding in favor of petitioners. A Both the Court of Appeals and the District Court found that before the black and white Extension Service branches were merged in 1965, the Extension Service maintained two separate, racially segregated branches and paid black employees less than white employees. Pet. App. 120a; The Court of Appeals also acknowledged that after the merger of the Extension Service, "[s]ome preexisting salary disparities continued to linger on," and that these disparities continued after Title VII became applicable to the Extension Service in March 1972 and after this suit was filed. Indeed, the Court of Appeals noted that "the Extension Service admits that, while it had made some adjustments to try to get rid of the salary disparity resulting *395 on account of pre-Act discrimination, it has not made all the adjustments necessary to get rid of all such disparity." See also Brief for Respondents 32 ("[E]fforts were made to reduce the average differences but due to the county by county salary differences and finding [sic] structure 1971 [sic], the averages were not eliminated"). The court interpreted petitioners' claim on appeal to be that "the pre-Act discriminatory difference in salaries should have been affirmatively eliminated but has not." Relying on our cases in Hazelwood School and United Air Lines, it concluded, "[w]e do not think this is the law." The error of the Court of Appeals with respect to salary disparities created prior to 1972 and perpetuated thereafter is too obvious to warrant extended discussion: that the Extension Service discriminated with respect to salaries prior to the time it was covered by Title VII does not excuse perpetuating that discrimination after the Extension Service became covered by Title VII. To hold otherwise would have the effect of exempting from liability those employers who were historically the greatest offenders of the rights of blacks. A pattern or practice that would have constituted a violation of Title VII, but for the fact that the statute had not yet become effective, became a violation upon Title VII's effective date, and to the extent an employer continued to engage in that act or practice, it is liable under that statute. While recovery may not be permitted for pre-1972 acts of discrimination, to the extent that this discrimination was perpetuated after 1972, liability may be imposed. Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior *396 to the effective date of Title VII. The Court of Appeals plainly erred in holding that the pre-Act discriminatory difference in salaries did not have to be eliminated.[6] *397 The Court of Appeals' conclusion that pre-Act salary discrimination did not have to be eliminated undermines the rest of its analysis of the District Court opinion. Having rejected the effect of pre-Act discrimination, the court considered solely whether the Extension Service discriminated with respect to the application of quartile rankings which, according to the Court of Appeals, were "the only aspect of salary computation in which the Extension Service exercised any discretion."[7] Because, as we have explained, the Extension Service was under an obligation to eradicate salary disparities based on race that began prior to the effective date of Title VII,[8] the Court of Appeals erred in concentrating its analysis solely on the issue whether there was racial discrimination in the ranking system. B We now turn to the issue whether the Court of Appeals erred in upholding the District Court's refusal to accept the petitioners' expert statistical evidence as proof of discrimination *398 by a preponderance of the evidence. In a case alleging that a defendant has engaged in a pattern and practice of discrimination under 707(a) of the Civil Rights Act of 1964, 42 U.S. C. 2000e-6(a), plaintiffs must "establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure — the regular rather than the unusual practice." Further, our decision in United Postal Service Board of although not decided in the context of a pattern-and-practice case, makes clear that if the defendants have not succeeded in having a case dismissed on the ground that plaintiffs have failed to establish a prima facie case, and have responded to the plaintiffs' proof by offering evidence of their own, the factfinder then must decide whether the plaintiffs have demonstrated a pattern or practice of discrimination by a preponderance of the evidence. This is because the only issue to be decided at that point is whether the plaintiffs have actually proved discrimination. This determination is subject to the clearly-erroneous standard on appellate review. See ; At trial, petitioners relied heavily on multiple regression analyses designed to demonstrate that blacks were paid less than similarly situated whites. The United ' expert prepared multiple regression analyses relating to salaries for the years 1974, 1975, and 1981. Certain of these regressions used four independent variables — race, education, tenure, and job title. Petitioners selected these variables based on discovery testimony by an Extension Service official that four factors were determinative of salary: education, tenure, job title, and job performance. GX 159, pp. 90,96. In addition, regressions done by the Extension Service itself for 1971 included the variables race, sex, education, and experience; and another in 1974 used the variables race, education, *399 and tenure to check for disparities between the salaries of blacks and whites. GX 214; Tr. 3915-3918; CA App. 1681; Tr. 3920. The regressions purported to demonstrate that in 1974 the average black employee earned $331 less per year than a white employee with the same job title, education, and tenure, GX 123; CA App. 1601; Tr. 364-365, and that in 1975 the disparity was $395, GX 123; CA App. 1589; Tr.377.[9] The regression for 1981 showed a smaller disparity which lacked statistical significance. The Court of Appeals stated: "[The] district court refused to accept plaintiffs' expert testimony as proof of discrimination by a preponderance of the evidence because the plaintiffs' expert had not included a number of variable factors the court considered relevant, among them being the across the board and percentage pay increases which varied from county to county. The district court was, of course, correct in this analysis." 751 F.2d, The Court of Appeals thought the District Court correct for essentially two reasons: First, the Court of Appeals rejected petitioners' regression analysis because it "contained salary figures which reflect the effect of pre-Act discrimination, a consideration not actionable under Title VII" Second, the court believed that "[a]n appropriate regression analysis of salary should include all measurable variables thought to have an effect on salary level." In particular, the court found that the failure to consider county-to-county differences in salary increases was significant. It concluded, noting: "[B]oth experts omitted from their respective analysis variables which ought to be reasonably viewed as determinants of salary. As a result, the regression analysis presented here must be *400 considered unacceptable as evidence of discrimination." The Court of Appeals' treatment of the statistical evidence in this case was erroneous in important respects. 1 The Court of Appeals erred in stating that petitioners' regression analyses were "unacceptable as evidence of discrimination," because they did not include "all measurable variables thought to have an effect on salary level." The court's view of the evidentiary value of the regression analyses was plainly incorrect. While the omission of variables from a regression analysis may render the analysis less probative than it otherwise might be, it can hardly be said, absent some other infirmity, that an analysis which accounts for the major factors "must be considered unacceptable as evidence of discrimination." Normally, failure to include variables will affect the analysis' probativeness, not its admissibility.[10] Importantly, it is clear that a regression analysis that includes less than "all measurable variables" may serve to prove a plaintiff's case. A plaintiff in a Title VII suit need not prove discrimination with scientific certainty; rather, his or her burden is to prove discrimination by a preponderance of the evidence. Texas Dept. of Community Whether, in fact, such a regression analysis does carry the plaintiffs' ultimate burden will depend in a given case on the factual context of each case in light of all the evidence presented by both the plaintiff and the defendant. However, as long as the court may fairly conclude, in light of all the evidence, that it is more likely *401 than not that impermissible discrimination exists, the plaintiff is entitled to prevail. 2 In this case the Court of Appeals failed utterly to examine the regression analyses in light of all the evidence in the record. Looked at in its entirety, petitioners offered an impressive array of evidence to support their contention that the Extension Service engaged in a pattern or practice of discrimination with respect to salaries. In addition to their own regression analyses described above, petitioners offered regressions done by the Extension Service for 1971 and 1974 that showed results similar to those revealed by petitioners' regressions. Tr. 3917; CA App. 1681. Petitioners also claim support from multiple regressions presented by respondents at trial for the year 1975. Using the same model that petitioners had used, and similar variables, respondents' expert obtained substantially the same result for 1975, a statistically significant racial effect of $384. CA App. 1716. Indeed, respondents also included in their analysis, "quartile rank" as an independent variable, and this increased the racial effect to $475.[11] Petitioners also presented evidence of pre-Act salary discrimination, and of respondents' ineffectual attempts to eradicate it. For example, petitioners submitted evidence, and the District Court found, that blacks were paid less than whites in comparable positions prior to the merger of the black and white services in 1965. Pet. App. 120a. Moreover, in 1971, respondents acknowledged that substantial salary *402 differences between blacks and whites existed.[12] In addition, evidence was offered to show that the efforts by the Extension Service to equalize those salaries in 1971 were insufficient to accomplish the goal. Tr. 242-246; GX 98. As we made clear in Hazelwood School -310, n. 15 "[p]roof that an employer engaged in racial discrimination prior to the effective date of Title VII might in some circumstances support the inference that such discrimination continued, particularly where relevant aspects of the decisionmaking process had undergone little change."[13] Further, petitioners presented evidence to rebut respondents' contention that county-to-county variations in contributions to salary explain the established disparity between black and white salaries. The United presented evidence, which it claims respondents did not rebut, establishing that black employees were not located disproportionately in the counties that contributed only a small amount to Extension Service salaries. GX 216; see also CA App. 189. Absent a disproportionate concentration of blacks in such counties, it is difficult, if not impossible, to understand how the fact that some counties contribute less to salaries than others could explain disparities between black and white salaries. *403 In addition, the United presented an exhibit based on 1973 data for 23 counties showing 29 black employees who were earning less than whites in the same county who had comparable or lower positions and tenure. GX 102. Finally, and there was some overlap here with evidence used to discredit the county-to-county variation theory, petitioners presented evidence consisting of individual comparisons between salaries of blacks and whites similarly situated. GX 102, DX 48. Witness testimony, claimed by petitioners to be unrebutted, also confirmed the continued existence of such disparities. CA App. 190; Tr. 2010-2012, 2685, 2825-2826. Setting out the range of persuasive evidence offered by petitioners demonstrates the error of the Court of Appeals in focusing solely on the characteristics of the regression analysis. Although we think that consideration of the evidence makes a strong case for finding the District Court's conclusion clearly erroneous,[14] we leave that task to the Court of *404 Appeals on remand which must make such a determination based on the "entire evidence" in the record. United v. United Gypsum Co.,[15] III The private petitioners complain that the District Court and Court of Appeals erred in failing to certify this case as a class action. They seek the certification of three distinct classes: (1) all black employees of the Extension Service on or after November 18, 1971; (2) all current black members and potential black members of the 4-H and Extension Homemaker *405 Clubs on or after November 18, 1971;[16] and as a defendant (3) all County Commissioners in North Carolina who held that position on or after November 18, 1971. The Court of Appeals upheld the District Court's denial of class certification. A With respect to the class of black employees, the Court of Appeals held that due to the fact that salaries are made up of money from several distinct sources, the Federal Government, the State, and the counties, the "claim of a potential plaintiff against one county will not be typical of the claim of another potential plaintiff against a different county."[17] It applied the same reasoning to the employees' charge of discrimination in the hiring of County Chairmen. Yet the claims here were not asserted solely against the counties; they were asserted also against the Extension Service. And, as against the Extension Service, at least, it is clear that the claims of the named plaintiffs were "typical" *406 of other black employees who may have been paid less or denied promotion to chairman. Although it seems likely that the other requirements of Federal Rule of Civil Procedure 23 were met by this class, neither court below expressly considered the issue and we therefore leave that determination to the Court of Appeals on remand.[18] B The Court of Appeals also upheld the District Court's decision not to certify a class of County Commissioner defendants because there "was simply no evidence of any standardized practice among the one hundred separate counties in the state to deprive anyone of any rights solely because of race." Pet. App. 47a-48a. The Court of Appeals was of the view that "to have a proper class of defendants in a case such as this there must be either a statewide rule or practice so that relief is available if the rule or practice is invalid, or the adjudication with respect to a member of a defendant class must as a practical matter be dispositive of the interests of the other members of the class as provided in FRCP 23(b)(1)(B)." We agree with the Court of Appeals that certification of a defendant class under Rule 23(b)(1)(B) in this case would have been improper. Whether an individual county acted intentionally with the Extension Service in setting salaries or in selecting County Chairmen in a discriminatory manner, is an issue that once decided with respect to a *407 particular county could not "be dispositive of the interests of the other members of the class." The private petitioners have suggested no theory to support any different result.

Justice Powell

concurring

Ralston v. Robinson

https://www.courtlistener.com/opinion/110585/ralston-v-robinson/

https://www.courtlistener.com/api/rest/v3/clusters/110585/

1981-012

The only question presented in this case is whether an offender, the respondent, serving a sentence under the Federal Youth Corrections Act (YCA), 18 U.S. C. § 5005 et seq., and thereafter sentenced to a consecutive term of imprisonment as an adult, must nevertheless be separated from other adult offenders for the remainder of his sentence under that Act. I agree with the Court that the answer to this question must be in the negative. I write separately because it seems to me that the Court's opinion, in addressing broadly the authority of the Director of the Bureau of Prisons (the Director), may be read as unnecessarily curtailing his authority and discretion to act in other cases. It was a District Court that imposed the consecutive adult term on respondent, but it was the Director who made the decision to treat respondent as an adult prisoner no longer entitled to be segregated from adult offenders. I agree with the Court as to the authority of the District Court to impose the consecutive adult term of imprisonment. I confine this concurrence to the issue of authority of the Director. Respondent pleaded guilty to second-degree murder in 1974. The court sentenced him to 10 years of custody under the YCA. In 1975 respondent was convicted of assaulting a *222 federal guard with a dangerous weapon. He was sentenced to a consecutive 10-year term. The District Court found "that the [respondent] will not benefit any further under the provisions of the Youth Offenders Act and decline[d] to sentence under said act." After it received a report from the Bureau of Prisons, however, the court took two additional actions. It reduced respondent's sentence to five and one-half years, and it recommended — but did not order — that respondent "be transferred from [the] Federal Youth Center. . . to a facility providing greater security." In 1977 respondent again was convicted of assaulting a federal guard. He again was given consecutive adult sentencing. Two courts thus certified that respondent had shown an incorrigibility and capacity for violence that warrants adult treatment. In my view, certainly under these circumstances, the Director had the authority to treat the respondent as an adult offender. The YCA directs that youth offenders are to "undergo treatment in institutions of maximum security, medium security, or minimum security types . . . ." 18 U.S. C. § 5011. " `[T]reatment' means corrective and preventive guidance and training designed to protect the public by correcting the antisocial tendencies of youth offenders. . . ." § 5006(f). The Director, inter alia, may "order the committed youth offender confined and afforded treatment under such conditions as he believes best designed for the protection of the public." § 5015(a)(3) (emphasis added). "The Director may transfer at any time a committed youth offender from one agency or institution to any other agency or institution." § 5015(b) (emphasis added). "Insofar as practical, . . . youth offenders shall be segregated from other offenders . . . ." § 5011 (emphasis added). Thus, the express language of YCA vests broad discretion in the Director. It contains no mandatory directions that youth segregation must continue indefinitely no matter how clearly appropriate adult treatment may be. The statutory emphasis instead is on flexibility and individualized treatment. *223 See 18 U.S. C. §§ 5005, 5014, 5016, 5017, 5018, and 5020. The YCA does require youth offenders to be separated from adult offenders, but this command is qualified by the phrase "[i]nsofar as practical." We need not in this case consider the limits on the discretion thus conferred. This is an easy case in view of respondent's convictions as an adult offender and the findings of the federal courts. In these circumstances the Director plainly had the authority — indeed the duty — to transfer respondent from the Federal Youth Center to a "facility providing greater security." We properly defer to the Director's judgment that continued segregation from adult offenders is no longer "practical" under such circumstances. Even in the absence of subsequent felony convictions, there could be occasions when, because of a youth offender's incorrigibility and threat to the safety of others, it would be highly impractical to continue his segregation in a youth center. As we are not confronted with such a situation in this case, I would limit our decision to the record before us and defer to another day a general discussion of the Director's authority.

The only question presented in this case is whether an offender, the respondent, serving a sentence under the Federal Youth Corrections Act (YCA), 18 U.S. C. 5005 et seq., and thereafter sentenced to a consecutive term of imprisonment as an adult, must nevertheless be separated from other adult offenders for the remainder of his sentence under that Act. I agree with the Court that the answer to this question must be in the negative. I write separately because it seems to me that the Court's opinion, in addressing broadly the authority of the Director of the Bureau of Prisons (the Director), may be read as unnecessarily curtailing his authority and discretion to act in other cases. It was a District Court that imposed the consecutive adult term on respondent, but it was the Director who made the decision to treat respondent as an adult prisoner no longer entitled to be segregated from adult offenders. I agree with the Court as to the authority of the District Court to impose the consecutive adult term of imprisonment. I confine this concurrence to the issue of authority of the Director. Respondent pleaded guilty to second-degree murder in 1974. The court sentenced him to 10 years of custody under the YCA. In 1975 respondent was convicted of assaulting a *222 federal guard with a dangerous weapon. He was sentenced to a consecutive 10-year term. The District Court found "that the [respondent] will not benefit any further under the provisions of the Youth Offenders Act and decline[d] to sentence under said act." After it received a report from the Bureau of Prisons, however, the court took two additional actions. It reduced respondent's sentence to five and one-half years, and it recommended — but did not order — that respondent "be transferred from [the] Federal Youth Center. to a facility providing greater security." In 1977 respondent again was convicted of assaulting a federal guard. He again was given consecutive adult sentencing. Two courts thus certified that respondent had shown an incorrigibility and capacity for violence that warrants adult treatment. In my view, certainly under these circumstances, the Director had the authority to treat the respondent as an adult offender. The YCA directs that youth offenders are to "undergo treatment in institutions of maximum security, medium security, or minimum security types" 18 U.S. C. 5011. " `[T]reatment' means corrective and preventive guidance and training designed to protect the public by correcting the antisocial tendencies of youth offenders." 5006(f). The Director, inter alia, may "order the committed youth offender confined and afforded treatment under such conditions as he believes best designed for the protection of the public." 5015(a)(3) (emphasis added). "The Director may transfer at any time a committed youth offender from one agency or institution to any other agency or institution." 5015(b) (emphasis added). "Insofar as practical, youth offenders shall be segregated from other offenders" 5011 (emphasis added). Thus, the express language of YCA vests broad discretion in the Director. It contains no mandatory directions that youth segregation must continue indefinitely no matter how clearly appropriate adult treatment may be. The statutory emphasis instead is on flexibility and individualized treatment. *223 See 18 U.S. C. 5005, 5014, 5016, 5017, 5018, and 5020. The YCA does require youth offenders to be separated from adult offenders, but this command is qualified by the phrase "[i]nsofar as practical." We need not in this case consider the limits on the discretion thus conferred. This is an easy case in view of respondent's convictions as an adult offender and the findings of the federal courts. In these circumstances the Director plainly had the authority — indeed the duty — to transfer respondent from the Federal Youth Center to a "facility providing greater security." We properly defer to the Director's judgment that continued segregation from adult offenders is no longer "practical" under such circumstances. Even in the absence of subsequent felony convictions, there could be occasions when, because of a youth offender's incorrigibility and threat to the safety of others, it would be highly impractical to continue his segregation in a youth center. As we are not confronted with such a situation in this case, I would limit our decision to the record before us and defer to another day a general discussion of the Director's authority.

per_curiam

per_curiam

Davis v. Georgia

https://www.courtlistener.com/opinion/109564/davis-v-georgia/

https://www.courtlistener.com/api/rest/v3/clusters/109564/

1976-019

The petitioner in this case was convicted of murder and sentenced to death after trial by a jury selected in violation of the standards enunciated in Witherspoon v. Illinois, 391 U.S. 510 (1968), and applied in Boulden v. Holman, 394 U.S. 478 (1969), and Maxwell v. Bishop, 398 U.S. 262 (1970). The Witherspoon case held that "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 conscientious or religious scruples against its infliction." 391 U.S., at 522. The Supreme Court of Georgia found that one prospective juror had been excluded in violation of the Witherspoon standard. The court nevertheless affirmed the conviction and death sentence, reasoning that the erroneous exclusion of one death-scrupled juror did not deny the petitioner a jury representing a cross section of the community since other jurors sharing that attitude were not excused for cause: "The rationale of Witherspoon and its progeny is not violated where merely one of a qualified class or group is excluded where it is shown, as here, that others of such group were qualified to serve. This record is completely void of any *123 evidence of a systematic and intentional exclusion of a qualified group of jurors so as to deny the appellant a jury of veniremen representing a cross section of the community." 236 Ga. 804, 809-810, 225 S.E.2d 241, 244-245. That, however, is not the test established in Witherspoon, and it is not the test that this Court has applied in subsequent cases where a death penalty was imposed after the improper exclusion of one member of the venire. See Wigglesworth v. Ohio, 403 U.S. 947 (1971), rev'g 18 Ohio St. 2d 171, 248 N.E.2d 607 (1969); Harris v. Texas, 403 U.S. 947 (1971), rev'g 457 S.W.2d 903 (Tex. Crim. App. 1970); Adams v. Washington, 403 U.S. 947 (1971), rev'g 76 Wash. 2d 650, 458 P.2d 558 (1969). Unless a venireman is "irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings," 391 U.S., at 522 n. 21, he cannot be excluded; if a venireman is improperly excluded even though not so committed, any subsequently imposed death penalty cannot stand. Accordingly, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR.

The petitioner in this case was convicted of murder and sentenced to death after trial by a jury selected in violation of the standards enunciated in and applied in and The Witherspoon case held that "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 conscientious or religious scruples against its infliction." The Supreme Court of Georgia found that one prospective juror had been excluded in violation of the Witherspoon standard. The court nevertheless affirmed the conviction and death sentence, reasoning that the erroneous exclusion of one death-scrupled juror did not deny the petitioner a jury representing a cross section of the community since other jurors sharing that attitude were not excused for cause: "The rationale of Witherspoon and its progeny is not violated where merely one of a qualified class or group is excluded where it is shown, as here, that others of such group were qualified to serve. This record is completely void of any *123 evidence of a systematic and intentional exclusion of a qualified group of jurors so as to deny the appellant a jury of veniremen representing a cross section of the community." That, however, is not the test established in Witherspoon, and it is not the test that this Court has applied in subsequent cases where a death penalty was imposed after the improper exclusion of one member of the venire. See rev'g ; rev'g ; rev'g Unless a venireman is "irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings," n. 21, he cannot be excluded; if a venireman is improperly excluded even though not so committed, any subsequently imposed death penalty cannot stand. Accordingly, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR.

Justice Thomas

majority

FCC v. Beach Communications, Inc.

https://www.courtlistener.com/opinion/112870/fcc-v-beach-communications-inc/

https://www.courtlistener.com/api/rest/v3/clusters/112870/

1992-082

In providing for the regulation of cable television facilities, Congress has drawn a distinction between facilities that serve separately owned and managed buildings and those that serve one or more buildings under common ownership or management. Cable facilities in the latter category are exempt from regulation as long as they provide services without using public rights-of-way. The question before us is whether there is any conceivable rational basis justifying this distinction for purposes of the Due Process Clause of the Fifth Amendment. I The Cable Communications Policy Act of 1984 (Cable Act), 98 Stat. 2779, amended the Communications Act of 1934, 47 U.S. C. § 151 et seq., to establish a national framework for regulating cable television. One objective of the Cable Act was to set out "franchise procedures and standards which encourage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the local community." § 601(2), 47 U.S. C. § 521(2). To that end, Congress provided for the franchising of cable systems by local governmental authorities, § 621(a), 47 U.S. C. § 541(a), and prohibited any person from operating a cable system without a franchise, subject to certain exceptions, § 621(b), 47 U.S. C. § 541(b). Section 602(7) of the Communications Act, as amended, 47 U.S. C. A. § 522(7) (Supp. 1993), determines the reach of the franchise requirement *310 by defining the operative term "cable system."[1] A cable system means any facility designed to provide video programming to multiple subscribers through "closed transmission paths," but does not include, inter alia, "a facility that serves only subscribers in 1 or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities us[e] any public right-of-way." § 602(7)(B), 47 U.S. C. § 522(7)(B) (1988 ed., Supp. V). In part, this provision tracks a regulatory "private cable" exemption previously promulgated by the Federal Communications Commission (FCC or Commission) pursuant to preexisting authority under the Communications Act. See 47 CFR § 76.5(a) (1984) (exempting from the definition of "cable television system" "any such facility that serves or will serve only subscribers in one or more multiple unit dwellings under common ownership, control, or management"). The earlier regulatory exemption derived in turn from the Commission's first set of cable rules, published in 1965. See Rules re Microwave-Served CATV, 38 F. C. C. 683, 741 (1965) (exempting from the definition of "community antenna television system" "any such facility which serves only the residents of one or more apartment dwellings under common ownership, control, or management, and commercial establishments located on the premises of such an apartment house"). The Cable Act narrowed the terms of the regulatory exemption by further excluding from the exemption any closed transmission facilities that use public rights-of-way. *311 This case arises out of an FCC proceeding clarifying the agency's interpretation of the term "cable system" as it is used in the Cable Act. See In re Definition of a Cable Television System, 5 F. C. C. Rcd. 7638 (1990). In this proceeding, the Commission addressed the application of the exemption codified in § 602(7)(B) to satellite master antenna television (SMATV) facilities. Unlike a traditional cable television system, which delivers video programming to a large community of subscribers through coaxial cables laid under city streets or along utility lines, an SMATV system typically receives a signal from a satellite through a small satellite dish located on a rooftop and then retransmits the signal by wire to units within a building or complex of buildings. See 5 F. C. C. Rcd., at 7639. The Commission ruled that an SMATV system that serves multiple buildings via a network of interconnected physical transmission lines is a cable system, unless it falls within the § 602(7)(B) exemption. See id., at 7639-7640. Consistent with the plain terms of the statutory exemption, the Commission concluded that such an SMATV system is subject to the franchise requirement if its transmission lines interconnect separately owned and managed buildings or if its lines use or cross any public right-of-way. See id., at 7641-7642.[2] Respondents Beach Communications, Inc., Maxtel Limited Partnership, Pacific Cablevision, and Western Cable Communications, Inc.—SMATV operators that would be subject to franchising under the Cable Act as construed by the Commission—petitioned the Court of Appeals for review. The *312 Court of Appeals rejected respondents' statutory challenge to the Commission's interpretation, but a majority of the court found merit in the claim that § 602(7) violates the implied equal protection guarantee of the Due Process Clause. 294 U. S. App. D. C. 377, 959 F.2d 975 (1992). In the absence of what it termed "the predominant rationale for local franchising" (use of public rights-of-way), the court saw no rational basis "[o]n the record," and was "unable to imagine" any conceivable basis, for distinguishing between those facilities exempted by the statute and those SMATV cable systems that link separately owned and managed buildings. Id., at 389, 959 F.2d, at 987. The court remanded the record and directed the FCC to provide "additional `legislative facts' " to justify the distinction. Ibid.[3] A report subsequently filed by the Commission failed to satisfy the Court of Appeals. The Commission stated that it was "unaware of any desirable policy or other considerations . . . that would support the challenged distinctions," other than those offered by a concurring member of the court. App. to Pet. for Cert. 50a. The concurrence had believed it sufficient that Congress could have reasoned that SMATV systems serving separately owned buildings are more similar to traditional cable systems than are facilities serving commonly owned buildings, in terms of the problems presented for consumers and the potential for regulatory benefits. See 294 U. S. App. D. C., at 392, 959 F.2d, at 990 (Mikva, C. J., concurring in part and concurring in judgment). In a second opinion, the majority found this rationale to be *313 "a naked intuition, unsupported by conceivable facts or policies," 296 U. S. App. D. C. 141, 143, 965 F.2d 1103, 1105 (1992), and held that "the Cable Act violates the equal protection component of the Fifth Amendment, insofar as it imposes a discriminatory franchising requirement," id., at 142, 965 F.2d, at 1104.[4] The court declared the franchise requirement void to the extent it covers respondents and similarly situated SMATV operators. Id., at 144, 965 F.2d, at 1106.[5] Because the Court of Appeals held an Act of Congress unconstitutional, we granted certiorari. 506 U.S. 997 (1992). We now reverse. II Whether embodied in the Fourteenth Amendment or inferred from the Fifth, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. See Sullivan v. Stroop, 496 U.S. 478, 485 (1990); Bowen v. Gilliard, 483 U.S. 587, 600-603 (1987); United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174-179 (1980); Dandridge v. Williams, 397 U.S. 471, 484-485 (1970). Where there are "plausible reasons" for *314 Congress' action, "our inquiry is at an end." United States Railroad Retirement Bd. v. Fritz, supra, at 179. This standard of review is a paradigm of judicial restraint. "The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted." Vance v. Bradley, 440 U.S. 93, 97 (1979) (footnote omitted).[6] On rational-basis review, a classification in a statute such as the Cable Act comes to us bearing a strong presumption of validity, see Lyng v. Automobile Workers, 485 U.S. 360, *315 370 (1988), and those attacking the rationality of the legislative classification have the burden "to negative every conceivable basis which might support it," Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973) (internal quotation marks omitted). See also Hodel v. Indiana, 452 U.S. 314, 331-332 (1981). Moreover, because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. United States Railroad Retirement Bd. v. Fritz, supra, at 179. See Flemming v. Nestor, 363 U.S. 603, 612 (1960). Thus, the absence of "`legislative facts' " explaining the distinction "[o]n the record," 294 U. S. App. D. C., at 389, 959 F.2d, at 987, has no significance in rational-basis analysis. See Nordlinger v. Hahn, 505 U.S. 1, 15 (1992) (equal protection "does not demand for purposes of rational-basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification"). In other words, a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. See Vance v. Bradley, supra, at 111. See also Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981). "`Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.' " Lehnhausen, supra, at 365 (quoting Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 510 (1937)). These restraints on judicial review have added force "where the legislature must necessarily engage in a process of line-drawing." United States Railroad Retirement Bd. v. Fritz, 449 U. S., at 179. Defining the class of persons subject to a regulatory requirement—much like classifying governmental beneficiaries—"inevitably requires that some persons who have an almost equally strong claim to favored treatment *316 be placed on different sides of the line, and the fact [that] the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration." Ibid. (internal quotation marks and citation omitted). The distinction at issue here represents such a line: By excluding from the definition of "cable system" those facilities that serve commonly owned or managed buildings without using public rights-of-way, § 602(7)(B) delineates the bounds of the regulatory field. Such scope-of-coverage provisions are unavoidable components of most economic or social legislation. In establishing the franchise requirement, Congress had to draw the line somewhere; it had to choose which facilities to franchise. This necessity renders the precise coordinates of the resulting legislative judgment virtually unreviewable, since the legislature must be allowed leeway to approach a perceived problem incrementally. See, e. g., Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955): "The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others. The prohibition of the Equal Protection Clause goes no further than the invidious discrimination." Id., at 489 (citations omitted).[7] *317 Applying these principles, we conclude that the commonownership distinction is constitutional. There are at least two possible bases for the distinction; either one suffices. First, Congress borrowed § 602(7)(B) from pre-Cable Act regulations, and although the existence of a prior administrative scheme is certainly not necessary to the rationality of the statute, it is plausible that Congress also adopted the FCC's earlier rationale. Under that rationale, common ownership was thought to be indicative of those systems for which the costs of regulation would outweigh the benefits to consumers. Because the number of subscribers was a similar indicator, the Commission also exempted cable facilities that served fewer than 50 subscribers. See 47 CFR § 76.5(a) (1984). In explaining both exemptions, the Commission stated: "[N]ot all [systems] can be subject to effective regulation with the resources available nor is regulation necessarily needed in every instance. A sensible regulatory program requires that a division between the regulated and unregulated be made in a manner which best conserves regulatory energies and allows the most cost effective use of available resources. In attempting to make this division, we have focused on subscriber numbers as well as the multiple unit dwelling indicia on the theory that the very small are inefficient to regulate and can safely be ignored in terms of their potential for impact on broadcast service to the public and on multiple unit dwelling facilities on the theory that this effectively establishes certain maximum size limitations." In re Definition of a Cable Television System, 67 F. C. C. 2d 716, 726 (1978). *318 This regulatory-efficiency model, originally suggested by Chief Judge Mikva in his concurring opinion, provides a conceivable basis for the common-ownership exemption. A legislator might rationally assume that systems serving only commonly owned or managed buildings without crossing public rights-of-way would typically be limited in size or would share some other attribute affecting their impact on the welfare of cable viewers such that regulators could "safely ignor[e]" these systems. Respondents argue that Congress did not intend common ownership to be a surrogate for small size, since Congress simultaneously rejected the FCC's 50-subscriber exemption by omitting it from the Cable Act. Brief for Respondents 22. Whether the posited reason for the challenged distinction actually motivated Congress is "constitutionally irrelevant," United States Railroad Retirement Bd. v. Fritz, supra, at 179 (internal quotation marks omitted), and, in any event, the FCC's explanation indicates that both common ownership and number of subscribers were considered indicia of "very small" cable systems. Respondents also contend that an SMATV operator could increase his subscription base and still qualify for the exemption simply by installing a separate satellite dish on each building served. Brief for Respondents 42. The additional cost of multiple dishes and associated transmission equipment, however, would impose an independent constraint on system size. Furthermore, small size is only one plausible ownershiprelated factor contributing to consumer welfare. Subscriber influence is another. Where an SMATV system serves a complex of buildings under common ownership or management, individual subscribers could conceivably have greater bargaining power vis-à-vis the cable operator (even if the number of dwelling units were large), since all the subscribers could negotiate with one voice through the common owner or manager. Such an owner might have substantial leverage, because he could withhold permission to operate *319 the SMATV system on his property. He would also have an incentive to guard the interests of his tenants. Thus, there could be less need to establish regulatory safeguards for subscribers in commonly owned complexes. Respondents acknowledge such possibilities, see id., at 44, and we certainly cannot say that these assumptions would be irrational.[8] There is a second conceivable basis for the statutory distinction. Suppose competing SMATV operators wish to sell video programming to subscribers in a group of contiguous buildings, such as a single city block, which can be interconnected by wire without crossing a public right-of-way. If all the buildings belong to one owner or are commonly managed, that owner or manager could freely negotiate a deal for all subscribers on a competitive basis. But if the buildings are separately owned and managed, the first SMATV operator who gains a foothold by signing a contract and installing a satellite dish and associated transmission equipment on one of the buildings would enjoy a powerful cost advantage in competing for the remaining subscribers: He could connect *320 additional buildings for the cost of a few feet of cable, whereas any competitor would have to recover the cost of his own satellite headend facility. Thus, the first operator could charge rates well above his cost and still undercut the competition. This potential for effective monopoly power might theoretically justify regulating the latter class of SMATV systems and not the former. III The Court of Appeals quite evidently believed that the crossing or use of a public right-of-way is the only conceivable basis upon which Congress could rationally require local franchising of SMATV systems. See 296 U. S. App. D. C., at 143, 965 F.2d, at 1105; 294 U. S. App. D. C., at 389, 959 F.2d, at 987. As we have indicated, however, there are plausible rationales unrelated to the use of public rights-of-way for regulating cable facilities serving separately owned and managed buildings. The assumptions underlying these rationales may be erroneous, but the very fact that they are "arguable" is sufficient, on rational-basis review, to "immuniz[e]" the congressional choice from constitutional challenge. Vance v. Bradley, 440 U. S., at 112. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. Justice Stevens, concurring in the judgment.

In providing for the regulation of cable television facilities, Congress has drawn a distinction between facilities that serve separately owned and managed buildings and those that serve one or more buildings under common ownership or management. Cable facilities in the latter category are exempt from regulation as long as they provide services without using public rights-of-way. The question before us is whether there is any conceivable rational basis justifying this distinction for purposes of the Due Process Clause of the Fifth Amendment. I The Cable Communications Policy Act of 1984 (Cable Act), amended the Communications Act of 1934, 47 U.S. C. 1 et seq., to establish a national framework for regulating cable television. One objective of the Cable Act was to set out "franchise procedures and standards which encourage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the local community." 601(2), 47 U.S. C. 521(2). To that end, Congress provided for the franchising of cable systems by local governmental authorities, 621(a), 47 U.S. C. 541(a), and prohibited any person from operating a cable system without a franchise, subject to certain exceptions, 621(b), 47 U.S. C. 541(b). Section 602(7) of the Communications Act, as amended, 47 U.S. C. A. 522(7) (Supp. 1993), determines the reach of the franchise requirement *310 by defining the operative term "cable system."[1] A cable system means any facility designed to provide video programming to multiple subscribers through "closed transmission paths," but does not include, inter alia, "a facility that serves only subscribers in 1 or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities us[e] any public right-of-way." 602(7)(B), 47 U.S. C. 522(7)(B) (1988 ed., Supp. V). In part, this provision tracks a regulatory "private cable" exemption previously promulgated by the Federal Communications Commission (FCC or Commission) pursuant to preexisting authority under the Communications Act. See 47 CFR 76.5(a) (1984) The earlier regulatory exemption derived in turn from the Commission's first set of cable rules, published in 1965. See Rules re Microwave-Served CATV, 38 F. C. C. 683, 741 (1965) (exempting from the definition of "community antenna television system" "any such facility which serves only the residents of one or more apartment dwellings under common ownership, control, or management, and commercial establishments located on the premises of such an apartment house"). The Cable Act narrowed the terms of the regulatory exemption by further excluding from the exemption any closed transmission facilities that use public rights-of-way. *311 This case arises out of an FCC proceeding clarifying the agency's interpretation of the term "cable system" as it is used in the Cable Act. See In re Definition of a Cable Television System, 5 F. C. C. Rcd. 7638 In this proceeding, the Commission addressed the application of the exemption codified in 602(7)(B) to satellite master antenna television (SMATV) facilities. Unlike a traditional cable television system, which delivers video programming to a large community of subscribers through coaxial cables laid under city streets or along utility lines, an SMATV system typically receives a signal from a satellite through a small satellite dish located on a rooftop and then retransmits the signal by wire to units within a building or complex of buildings. See 5 F. C. C. Rcd., at 7639. The Commission ruled that an SMATV system that serves multiple buildings via a network of interconnected physical transmission lines is a cable system, unless it falls within the 602(7)(B) exemption. See Consistent with the plain terms of the statutory exemption, the Commission concluded that such an SMATV system is subject to the franchise requirement if its transmission lines interconnect separately owned and managed buildings or if its lines use or cross any public right-of-way. See[2] Respondents Beach Communications, Inc., Maxtel Limited Partnership, Pacific Cablevision, and Western Cable Communications, Inc.—SMATV operators that would be subject to franchising under the Cable Act as construed by the Commission—petitioned the Court of Appeals for review. The *312 Court of Appeals rejected respondents' statutory challenge to the Commission's interpretation, but a majority of the court found merit in the claim that 602(7) violates the implied equal protection guarantee of the Due Process Clause. 294 U. S. App. D. C. 377, In the absence of what it termed "the predominant rationale for local franchising" (use of public rights-of-way), the court saw no rational basis "[o]n the record," and was "unable to imagine" any conceivable basis, for distinguishing between those facilities exempted by the statute and those SMATV cable systems that link separately owned and managed buildings. The court remanded the record and directed the FCC to provide "additional `legislative facts' " to justify the distinction. [3] A report subsequently filed by the Commission failed to satisfy the Court of Appeals. The Commission stated that it was "unaware of any desirable policy or other considerations that would support the challenged distinctions," other than those offered by a concurring member of the court. App. to Pet. for Cert. 50a. The concurrence had believed it sufficient that Congress could have reasoned that SMATV systems serving separately owned buildings are more similar to traditional cable systems than are facilities serving commonly owned buildings, in terms of the problems presented for consumers and the potential for regulatory benefits. See 294 U. S. App. D. C., at In a second opinion, the majority found this rationale to be *313 "a naked intuition, unsupported by conceivable facts or policies," 296 U. S. App. D. C. 141, and held that "the Cable Act violates the equal protection component of the Fifth Amendment, insofar as it imposes a discriminatory franchising requirement,"[4] The court declared the franchise requirement void to the extent it covers respondents and similarly situated SMATV operators.[5] Because the Court of Appeals held an Act of Congress unconstitutional, we granted certiorari. We now reverse. II Whether embodied in the Fourteenth Amendment or inferred from the Fifth, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. See ; ; United States Railroad Retirement ; 484- Where there are "plausible reasons" for *314 Congress' action, "our inquiry is at an end." United States Railroad Retirement This standard of review is a paradigm of judicial restraint. "The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted."[6] On rational-basis review, a classification in a statute such as the Cable Act comes to us bearing a strong presumption of validity, see U.S. 360, and those attacking the rationality of the legislative classification have the burden "to negative every conceivable basis which might support it," (13) See also Moreover, because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. United States Railroad Retirement See Thus, the absence of "`legislative facts' " explaining the distinction "[o]n the record," 294 U. S. App. D. C., has no significance in rational-basis analysis. See In other words, a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. See See also "`Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.' " ). These restraints on judicial review have added force "where the legislature must necessarily engage in a process of line-drawing." United States Railroad Retirement 449 U. S., Defining the class of persons subject to a regulatory requirement—much like classifying governmental beneficiaries—"inevitably requires that some persons who have an almost equally strong claim to favored treatment *316 be placed on different sides of the line, and the fact [that] the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration." The distinction at issue here represents such a line: By excluding from the definition of "cable system" those facilities that serve commonly owned or managed buildings without using public rights-of-way, 602(7)(B) delineates the bounds of the regulatory field. Such scope-of-coverage provisions are unavoidable components of most economic or social legislation. In establishing the franchise requirement, Congress had to draw the line somewhere; it had to choose which facilities to franchise. This necessity renders the precise coordinates of the resulting legislative judgment virtually unreviewable, since the legislature must be allowed leeway to approach a perceived problem incrementally. See, e. g., : "The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others. The prohibition of the Equal Protection Clause goes no further than the invidious discrimination."[7] *317 Applying these principles, we conclude that the commonownership distinction is constitutional. There are at least two possible bases for the distinction; either one suffices. First, Congress borrowed 602(7)(B) from pre-Cable Act regulations, and although the existence of a prior administrative scheme is certainly not necessary to the rationality of the statute, it is plausible that Congress also adopted the FCC's earlier rationale. Under that rationale, common ownership was thought to be indicative of those systems for which the costs of regulation would outweigh the benefits to consumers. Because the number of subscribers was a similar indicator, the Commission also exempted cable facilities that served fewer than 50 subscribers. See 47 CFR 76.5(a) (1984). In explaining both exemptions, the Commission stated: "[N]ot all [systems] can be subject to effective regulation with the resources available nor is regulation necessarily needed in every instance. A sensible regulatory program requires that a division between the regulated and unregulated be made in a manner which best conserves regulatory energies and allows the most cost effective use of available resources. In attempting to make this division, we have focused on subscriber numbers as well as the multiple unit dwelling indicia on the theory that the very small are inefficient to regulate and can safely be ignored in terms of their potential for impact on broadcast service to the public and on multiple unit dwelling facilities on the theory that this effectively establishes certain maximum size limitations." In re Definition of a Cable Television System, 67 F. C. C. 2d 716, 726 (18). *318 This regulatory-efficiency model, originally suggested by Chief Judge Mikva in his concurring opinion, provides a conceivable basis for the common-ownership exemption. A legislator might rationally assume that systems serving only commonly owned or managed buildings without crossing public rights-of-way would typically be limited in size or would share some other attribute affecting their impact on the welfare of cable viewers such that regulators could "safely ignor[e]" these systems. Respondents argue that Congress did not intend common ownership to be a surrogate for small size, since Congress simultaneously rejected the FCC's 50-subscriber exemption by omitting it from the Cable Act. Brief for Respondents 22. Whether the posited reason for the challenged distinction actually motivated Congress is "constitutionally irrelevant," United States Railroad Retirement and, in any event, the FCC's explanation indicates that both common ownership and number of subscribers were considered indicia of "very small" cable systems. Respondents also contend that an SMATV operator could increase his subscription base and still qualify for the exemption simply by installing a separate satellite dish on each building served. Brief for Respondents 42. The additional cost of multiple dishes and associated transmission equipment, however, would impose an independent constraint on system size. Furthermore, small size is only one plausible ownershiprelated factor contributing to consumer welfare. Subscriber influence is another. Where an SMATV system serves a complex of buildings under common ownership or management, individual subscribers could conceivably have greater bargaining power vis-à-vis the cable operator (even if the number of dwelling units were large), since all the subscribers could negotiate with one voice through the common owner or manager. Such an owner might have substantial leverage, because he could withhold permission to operate *319 the SMATV system on his property. He would also have an incentive to guard the interests of his tenants. Thus, there could be less need to establish regulatory safeguards for subscribers in commonly owned complexes. Respondents acknowledge such possibilities, see and we certainly cannot say that these assumptions would be irrational.[8] There is a second conceivable basis for the statutory distinction. Suppose competing SMATV operators wish to sell video programming to subscribers in a group of contiguous buildings, such as a single city block, which can be interconnected by wire without crossing a public right-of-way. If all the buildings belong to one owner or are commonly managed, that owner or manager could freely negotiate a deal for all subscribers on a competitive basis. But if the buildings are separately owned and managed, the first SMATV operator who gains a foothold by signing a contract and installing a satellite dish and associated transmission equipment on one of the buildings would enjoy a powerful cost advantage in competing for the remaining subscribers: He could connect *320 additional buildings for the cost of a few feet of cable, whereas any competitor would have to recover the cost of his own satellite headend facility. Thus, the first operator could charge rates well above his cost and still undercut the competition. This potential for effective monopoly power might theoretically justify regulating the latter class of SMATV systems and not the former. III The Court of Appeals quite evidently believed that the crossing or use of a public right-of-way is the only conceivable basis upon which Congress could rationally require local franchising of SMATV systems. See 296 U. S. App. D. C., at 965 F.2d, at ; 294 U. S. App. D. C., As we have indicated, however, there are plausible rationales unrelated to the use of public rights-of-way for regulating cable facilities serving separately owned and managed buildings. The assumptions underlying these rationales may be erroneous, but the very fact that they are "arguable" is sufficient, on rational-basis review, to "immuniz[e]" the congressional choice from constitutional challenge. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. Justice Stevens, concurring in the judgment.

Justice Marshall

second_dissenting

Couch v. United States

https://www.courtlistener.com/opinion/108650/couch-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/108650/

1972-029

I cannot agree with the majority that the Constitution permits the Government to enforce the summons issued in this case. The opinion of the Court fails to articulate the basis of its result in a way that addresses the range of constitutional concerns involved.[1] The majority seems to create a bright-line rule that no constitutional right of petitioner is violated by enforcing a summons of papers not in her possession. Like MR. JUSTICE BRENNAN, I could not accept such a rule. However, the majority blurs the line by suggesting that temporary relinquishment of possession presents a different case, see ante, at 333. The Court expressly disclaims the proposition that possession alone is determinative of the availability of constitutional protection for petitioner's papers. Ante, at 336 and 333 n. 16. But neither the opinion of the Court nor the concurring opinion of MR. JUSTICE BRENNAN supplies a clearly articulated constitutional basis for the rule adopted. If the considerations that underline the Court's expressed concerns are stated explicitly, I think it is clear that the Court has failed to apply correctly the standards which *345 it appears to find relevant.[2] I agree, of course, that possession does not define the limits of the protection that the Constitution affords to private papers, and add these comments to indicate how I would treat claims like petitioner's. A. I begin with Boyd v. United States, 116 U.S. 616 (1886), whose continuing vitality is indicated by the majority's effort to distinguish it. That was a suit for the forfeiture of 35 cases of plate glass alleged to have been illegally imported. In the course of the forfeiture proceeding, the Government introduced into evidence an invoice of a prior shipment. The defendants objected on the ground that the use of the invoice violated their rights under the Fourth and Fifth Amendments, because the invoice was a private paper secured by a subpoena. This Court found a violation of both amendments. One might interpret Boyd as holding that the Fifth Amendment prohibits the use of private papers in a criminal proceeding over the author's objection. The words of the Fifth Amendment surely can be read in that way. The use of the papers over objection "compel [s the author] in [a] criminal case to be a witness against himself." The compulsion occurs when the paper is introduced over objection, not when the paper is written or subpoenaed. *346 But that interpretation has not been adopted by this Court. See, e. g., Perlman v. United States, 247 U.S. 7 (1918); Johnson v. United States, 228 U.S. 457 (1913). And in some possible cases, consistent application of that interpretation of Boyd might lead to results at odds with common sense.[3] Another interpretation of Boyd has been accepted by this Court and by the leading commentators. See, e. g., Curcio v. United States, 354 U.S. 118, 125 (1957); 8 J. Wigmore, Evidence § 2264 (McNaughton rev. 1961); C. McCormick, Evidence §§ 126-127 (2d ed. 1972). When a party produces potentially incriminating evidence in response to a summons or subpoena, he implicitly testifies that the evidence he brings forth is in fact the evidence demanded. "The custodian's act of producing books or records in response to a subpoena duces tecum *347 is itself a representation that the documents produced are those demanded by the subpoena. Requiring the custodian to identify or authenticate the documents for admission in evidence merely makes explicit what is implicit in the production itself." Curcio v. United States, 354 U. S., at 125. The potential for incrimination inherent in the act of production is illustrated by this case. The summons here called for the production of "[a]ll books . . . pertaining to the tax liability of" petitioner. Had the summons been directed to her, she would have implicitly testified, on producing some papers, that these were "all" the records sought. The Internal Revenue agents believed that she may have understated her income. Their belief might have been confirmed on examining all of her records, but not on examining only some of them. The records could then be used in a subsequent criminal prosecution for underreporting her income. If she produced only some of her books, though, she would be liable for contempt of the order. The Fifth Amendment was designed to prevent the Government from placing potential defendants in such a position. Cf. Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964). These considerations operate only against the person in possession of the papers, as the majority correctly points out. In this case, the accountant to whom the summons was directed made no claim that turning over the records he has might incriminate him, for example, by exposing him to the charge that he had perjured himself in representing that the return prepared for petitioner was correct to the best of his knowledge and belief, 26 U.S. C. § 6065, or that he had knowingly aided in the preparation of a false return, 26 U.S. C. § 7206 (2). Nor could he be held to have represented more than that he had produced all the records in his possession. *348 However, the accepted interpretation of Boyd has an odd sound to it. Boyd emphasized that the invoice there was a private paper written by the defendants. Yet the accepted interpretation of the case makes the authorship and contents of the paper largely irrelevant. What is incriminating about the production of a document in response to an order is not its contents, as one might have thought, but the implicit authentication that the document is the one named in the order.[4] If that is the only way rationally to interpret Boyd, it might make sense to do so.[5] But it makes better sense to devise a rationale that focuses on the obvious concern of the case, the desire of the author of documents to keep them private. B. This Court also held in Boyd that the Fourth Amendment was violated. Indeed, much of the opinion is devoted to a discussion of Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (1765), a landmark in the development of the prohibition against unreasonable searches and seizures. Here, too, the doctrinal basis of the holding is unclear, in part because the Court *349 correctly perceived that "[i]n this regard the Fourth and Fifth Amendments run almost into each other." 116 U.S., at 630. Boyd suggested that the Fourth Amendment prohibited the seizure of "mere evidence." 116 U.S., at 623-624. See Gouled v. United States, 255 U.S. 298 (1921). Searches for mere evidence were unreasonable even if such searches were sure to produce evidence leading to a conviction. The precise contours of the "mere evidence" rule were shaped by concepts of property law which we now see as outmoded. See Warden v. Hayden, 387 U.S. 294, 303-307 (1967). But those concepts attempted to define, however imprecisely, a sphere of personal privacy that the Government could not enter over objection. See, e. g., Gouled v. United States, supra, at 304. And when this Court repudiated the "mere evidence" rule, it suggested that Fourth Amendment limitations might be devised precisely in terms of the interest in privacy, prohibiting the seizure of "items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure." Warden v. Hayden, 387 U. S., at 303. Cf. Stanford v. Texas, 379 U.S. 476, 485 (1965). The Fourth and Fifth Amendments do not speak to totally unrelated concerns. Cf. Griswold v. Connecticut, 381 U.S. 479, 484-485 (1965); Murphy v. Waterfront Comm'n, 378 U. S., at 55. Both involve aspects of a person's right to develop for himself a sphere of personal privacy. Where the Amendments "run almost into each other," I would prohibit the Government from entering.[6] The problem, as I see it, is to develop criteria *350 for determining whether evidence sought by the Government lies within the sphere of activities that petitioner attempted to keep private. Cf. Katz v. United States, 389 U.S. 347, 351-352 (1967). The first criterion, as Hayden suggests, is the nature of the evidence. Diaries and personal letters that record only their author's personal thoughts lie at the heart of our sense of privacy. In contrast, I see no bar in the Fourth or Fifth Amendment to the seizure of a letter from one conspirator to another directing the recipient to take steps that further the conspiracy. Business records like those sought in this case lie between those cases. We are not so outraged by the intrusion on privacy that accompanies the seizure of these records as we are by the seizure of a diary, yet the records could not easily be called "instrumentalities" of tax evasion, particularly if they are accurate. Second, we must consider the ordinary operations of the person to whom the records are given. A transfer to a lawyer is protected, not simply because there is a recognized attorney-client privilege, but also because the ordinary expectation is that the lawyer will not further publicize what he has been given. Again in contrast, a transfer to a trustee in bankruptcy or to a clerk of a court does not usually carry with it such expectations. That is how I would justify Johnson and Perlman. Here, too, the transfer in this case lies between the extremes. It would be relevant to a decision about the expectation of privacy that an accountant-client privilege *351 existed under local law, but not determinative. Petitioner disclaimed reliance on such a privilege. Tr. of Oral Arg. 7. But I would think that, privileged or not, a disclosure to an accountant is rather close to disclosure to an attorney. Third, the purposes for which the records were transferred is an element of an informed judgment about the author's interest in the privacy of the papers. That a transfer is compelled by practical considerations if the author is to claim benefits available under the law, seems to me quite important. If petitioner had sought to take advantage of some complicated provision of the tax laws, and needed the help of an accountant to do so, I would be quite reluctant to hold that the transfer of her records was a surrender of the privacy of the papers. But cf. Johnson v. United States, 228 U.S. 457 (1913). As I understand it, the majority's exception for temporary relinquishment of possession, and several of MR. JUSTICE BRENNAN'S exceptions, recognize the importance of this criterion. Finally, we must take into account the steps that the author took to insure the privacy of the records. Cf. In re Harris, 221 U.S. 274, 280 (1911). Placing them in a safe deposit box is different from letting them remain for many years with an accountant. It is not impossible that petitioner had indeed abandoned her claim to privacy in the papers sought by summons in this case. But the District Court and the Court of Appeals applied a rather rigid test which made possession alone conclusive. Those courts have more experience than we do with the ordinary practices of taxpayers, accountants, and Internal Revenue agents. They are therefore better able, in the first instance, to apply the criteria I believe are relevant, in light of their understanding of the ordinary practices in such cases. I would vacate the judgment and remand the case to the District Court for consideration of those criteria.

I caot agree with the majority that the Costitutio permits the Govermet to eforce the summos issued i this case. The opiio of the Court fails to articulate the basis of its result i a way that addresses the rage of costitutioal cocers ivolved.[1] The majority seems to create a bright-lie rule that o costitutioal right of petitioer is violated by eforcig a summos of papers ot i her possessio. Like MR. JUSTICE BRENNAN, I could ot accept such a rule. However, the majority blurs the lie by suggestig that temporary reliquishmet of possessio presets a differet case, see ate, at 333. The Court expressly disclaims the propositio that possessio aloe is determiative of the availability of costitutioal protectio for petitioer's papers. Ate, at 336 ad 333 16. But either the opiio of the Court or the cocurrig opiio of MR. JUSTICE BRENNAN supplies a clearly articulated costitutioal basis for the rule adopted. If the cosideratios that uderlie the Court's expressed cocers are stated explicitly, I thik it is clear that the Court has failed to apply correctly the stadards which *345 it appears to fid relevat.[2] I agree, of course, that possessio does ot defie the limits of the protectio that the Costitutio affords to private papers, ad add these commets to idicate how I would treat claims like petitioer's. A. I begi with whose cotiuig vitality is idicated by the majority's effort to distiguish it. That was a suit for the forfeiture of 35 cases of plate glass alleged to have bee illegally imported. I the course of the forfeiture proceedig, the Govermet itroduced ito evidece a ivoice of a prior shipmet. The defedats objected o the groud that the use of the ivoice violated their rights uder the Fourth ad Fifth Amedmets, because the ivoice was a private paper secured by a subpoea. This Court foud a violatio of both amedmets. Oe might iterpret Boyd as holdig that the Fifth Amedmet prohibits the use of private papers i a crimial proceedig over the author's objectio. The words of the Fifth Amedmet surely ca be read i that way. The use of the papers over objectio "compel [s the author] i [a] crimial case to be a witess agaist himself." The compulsio occurs whe the paper is itroduced over objectio, ot whe the paper is writte or subpoeaed. *346 But that iterpretatio has ot bee adopted by this Court. See, e. g., ; Ad i some possible cases, cosistet applicatio of that iterpretatio of Boyd might lead to results at odds with commo sese.[3] Aother iterpretatio of Boyd has bee accepted by this Court ad by the leadig commetators. See, e. g., ; 8 J. Wigmore, Evidece 2264 (McNaughto rev. 1961); C. McCormick, Evidece 126-127 (2d ed. 1972). Whe a party produces potetially icrimiatig evidece i respose to a summos or subpoea, he implicitly testifies that the evidece he brigs forth is i fact the evidece demaded. "The custodia's act of producig books or records i respose to a subpoea duces tecum *347 is itself a represetatio that the documets produced are those demaded by the subpoea. Requirig the custodia to idetify or autheticate the documets for admissio i evidece merely makes explicit what is implicit i the productio itself." 354 U. S., at The potetial for icrimiatio iheret i the act of productio is illustrated by this case. The summos here called for the productio of "[a]ll books pertaiig to the tax liability of" petitioer. Had the summos bee directed to her, she would have implicitly testified, o producig some papers, that these were "all" the records sought. The Iteral Reveue agets believed that she may have uderstated her icome. Their belief might have bee cofirmed o examiig all of her records, but ot o examiig oly some of them. The records could the be used i a subsequet crimial prosecutio for uderreportig her icome. If she produced oly some of her books, though, she would be liable for cotempt of the order. The Fifth Amedmet was desiged to prevet the Govermet from placig potetial defedats i such a positio. Cf. These cosideratios operate oly agaist the perso i possessio of the papers, as the majority correctly poits out. I this case, the accoutat to whom the summos was directed made o claim that turig over the records he has might icrimiate him, for example, by exposig him to the charge that he had perjured himself i represetig that the retur prepared for petitioer was correct to the best of his kowledge ad belief, 26 U.S. C. 6065, or that he had kowigly aided i the preparatio of a false retur, 26 U.S. C. 7206 (2). Nor could he be held to have represeted more tha that he had produced all the records i his possessio. *348 However, the accepted iterpretatio of Boyd has a odd soud to it. Boyd emphasized that the ivoice there was a private paper writte by the defedats. Yet the accepted iterpretatio of the case makes the authorship ad cotets of the paper largely irrelevat. What is icrimiatig about the productio of a documet i respose to a order is ot its cotets, as oe might have thought, but the implicit autheticatio that the documet is the oe amed i the order.[4] If that is the oly way ratioally to iterpret Boyd, it might make sese to do so.[5] But it makes better sese to devise a ratioale that focuses o the obvious cocer of the case, the desire of the author of documets to keep them private. B. This Court also held i Boyd that the Fourth Amedmet was violated. Ideed, much of the opiio is devoted to a discussio of Etick v. Carrigto, 19 How. St. Tr. 1029, 95 Eg. Rep. 807 (1765), a ladmark i the developmet of the prohibitio agaist ureasoable searches ad seizures. Here, too, the doctrial basis of the holdig is uclear, i part because the Court *349 correctly perceived that "[i] this regard the Fourth ad Fifth Amedmets ru almost ito each other." Boyd suggested that the Fourth Amedmet prohibited the seizure of "mere evidece." -624. See Gouled v. Uited 2 U.S. 298 Searches for mere evidece were ureasoable eve if such searches were sure to produce evidece leadig to a covictio. The precise cotours of the "mere evidece" rule were shaped by cocepts of property law which we ow see as outmoded. See But those cocepts attempted to defie, however imprecisely, a sphere of persoal privacy that the Govermet could ot eter over objectio. See, e. g., Gouled v. Uited Ad whe this Court repudiated the "mere evidece" rule, it suggested that Fourth Amedmet limitatios might be devised precisely i terms of the iterest i privacy, prohibitig the seizure of "items of evidetial value whose very ature precludes them from beig the object of a reasoable search ad seizure." Cf. The Fourth ad Fifth Amedmets do ot speak to totally urelated cocers. Cf. 484- ; 378 U. S., at Both ivolve aspects of a perso's right to develop for himself a sphere of persoal privacy. Where the Amedmets "ru almost ito each other," I would prohibit the Govermet from eterig.[6] The problem, as I see it, is to develop criteria *350 for determiig whether evidece sought by the Govermet lies withi the sphere of activities that petitioer attempted to keep private. Cf. Katz v. Uited The first criterio, as suggests, is the ature of the evidece. Diaries ad persoal letters that record oly their author's persoal thoughts lie at the heart of our sese of privacy. I cotrast, I see o bar i the Fourth or Fifth Amedmet to the seizure of a letter from oe cospirator to aother directig the recipiet to take steps that further the cospiracy. Busiess records like those sought i this case lie betwee those cases. We are ot so outraged by the itrusio o privacy that accompaies the seizure of these records as we are by the seizure of a diary, yet the records could ot easily be called "istrumetalities" of tax evasio, particularly if they are accurate. Secod, we must cosider the ordiary operatios of the perso to whom the records are give. A trasfer to a lawyer is protected, ot simply because there is a recogized attorey-cliet privilege, but also because the ordiary expectatio is that the lawyer will ot further publicize what he has bee give. Agai i cotrast, a trasfer to a trustee i bakruptcy or to a clerk of a court does ot usually carry with it such expectatios. That is how I would justify Johso ad Perlma. Here, too, the trasfer i this case lies betwee the extremes. It would be relevat to a decisio about the expectatio of privacy that a accoutat-cliet privilege *351 existed uder local law, but ot determiative. Petitioer disclaimed reliace o such a privilege. Tr. of Oral Arg. 7. But I would thik that, privileged or ot, a disclosure to a accoutat is rather close to disclosure to a attorey. Third, the purposes for which the records were trasferred is a elemet of a iformed judgmet about the author's iterest i the privacy of the papers. That a trasfer is compelled by practical cosideratios if the author is to claim beefits available uder the law, seems to me quite importat. If petitioer had sought to take advatage of some complicated provisio of the tax laws, ad eeded the help of a accoutat to do so, I would be quite reluctat to hold that the trasfer of her records was a surreder of the privacy of the papers. But cf. As I uderstad it, the majority's exceptio for temporary reliquishmet of possessio, ad several of MR. JUSTICE BRENNAN'S exceptios, recogize the importace of this criterio. Fially, we must take ito accout the steps that the author took to isure the privacy of the records. Cf. I re Harris, Placig them i a safe deposit box is differet from lettig them remai for may years with a accoutat. It is ot impossible that petitioer had ideed abadoed her claim to privacy i the papers sought by summos i this case. But the District Court ad the Court of Appeals applied a rather rigid test which made possessio aloe coclusive. Those courts have more experiece tha we do with the ordiary practices of taxpayers, accoutats, ad Iteral Reveue agets. They are therefore better able, i the first istace, to apply the criteria I believe are relevat, i light of their uderstadig of the ordiary practices i such cases. I would vacate the judgmet ad remad the case to the District Court for cosideratio of those criteria.

Justice Scalia

majority

Hewitt v. Helms

https://www.courtlistener.com/opinion/111929/hewitt-v-helms/

https://www.courtlistener.com/api/rest/v3/clusters/111929/

1986-135

This case presents the peculiar-sounding question whether a party who litigates to judgment and loses on all of his claims can nonetheless be a "prevailing party" for purposes of an award of attorney's fees. Following a prison riot at the Pennsylvania State Correctional Institution at Huntingdon, inmate Aaron Helms was placed in administrative segregation, a form of restrictive custody, pending an investigation into his possible involvement in the disturbance. More than seven weeks later, a prison hearing committee, relying solely on an officer's report of the testimony of an undisclosed informant, found Helms guilty of misconduct for striking a corrections officer during the riot. Helms was sentenced to six months of disciplinary restrictive confinement. While still incarcerated, Helms brought suit under 42 U.S. C. § 1983 against a number of prison officials, alleging that the lack of a prompt hearing on his misconduct charges and his conviction for misconduct on the basis of uncorroborated hearsay testimony violated his rights to due process. The prison officials asserted qualified immunity from suit and contested the constitutional claims on the merits. Before any decision was rendered, Helms was released from prison on parole. Nearly six months after Helms' release, the District Court rendered summary judgment against him on his constitutional *758 claims without passing on the defendants' assertions of immunity. The Court of Appeals for the Third Circuit reversed, finding that "Helms was denied due process unless he was afforded a hearing, within a reasonable time of his initial [segregative] confinement, to determine whether he represented the type of `risk' warranting administrative detention," Helms v. Hewitt, 655 F.2d 487, 500 (1981) (Helms I), and that he "suffered a denial of due process by being convicted on a misconduct charge when the only evidence offered against him was a hearsay recital, by the charging officer, of an uncorroborated report of an unidentified informant." Id., at 502. The District Court was instructed to enter summary judgment for Helms on the latter claim unless the defendants could establish an immunity defense. Before the proceedings on remand could take place, we granted certiorari to determine whether Helms' administrative segregation violated the Due Process Clause. We concluded that the prison's informal, nonadversarial procedures for determining the need for restrictive custody provided all the process that is due when prisoners are removed from the general prison population. Hewitt v. Helms, 459 U.S. 460 (1983). Certiorari was not sought on, and we did not decide, the question whether Helms' misconduct conviction violated his constitutional rights. When the case was returned to the Court of Appeals, it therefore reaffirmed its instruction to the District Court to enter judgment for Helms on this claim unless the defendants established a defense of official immunity. Helms v. Hewitt, 712 F.2d 48 (1983) (Helms II). In the District Court, Helms pursued only his claims for damages. The District Court granted summary judgment for all the defendants on the basis of qualified immunity, because the constitutional right at issue was not "clearly established," Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), at the time of Helms' misconduct hearing. See App. 22a-47a. Helms appealed, seeking both damages and expungement of his misconduct conviction. The defendants argued to the *759 Court of Appeals that all claims for injunctive and declaratory relief had been waived by the failure to pursue them in the District Court, and in any event were moot because Helms was no longer in prison. While that appeal was pending, the Pennsylvania Bureau of Corrections revised its regulations to include for the first time procedures for the use of confidential-source information in inmate disciplinary proceedings. See BC-ADM 801 Administrative Directive: Inmate Disciplinary Procedures § V(F) (1984), App. 101a-102a (Directive 801). The District Court's decision was affirmed without opinion. Helms v. Hewitt, 745 F.2d 46 (1984) (Helms III). Helms then sought attorney's fees under 42 U.S. C. § 1988, which provides in relevant part: "In any action or proceeding to enforce a provision of [§ 1983], 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." The District Court denied the claim on the ground that Helms was not a "prevailing party": the defendants' official immunity precluded a damages award, Helms' release from prison made his claims for injunctive relief moot, and he could not claim that his suit was a "catalyst" for the amendment of Directive 801 because he neither sought nor benefited from that action. App. to Pet. for Cert. 27a-39a. The Court of Appeals reversed, concluding that its prior holding that Helms' constitutional rights were violated was "a form of judicial relief which serves to affirm the plaintiff's assertion that the defendants' actions were unconstitutional and which will serve as a standard of conduct to guide prison officials in the future." 780 F.2d 367, 370 (1986) (Helms IV). The court also directed the District Court to reconsider whether Helms' suit was a "catalyst" for the amendment of Directive 801. We granted certiorari. 476 U.S. 1181 (1986). In order to be eligible for attorney's fees under § 1988, a litigant must be a "prevailing party." Whatever the outer boundaries of that term may be, Helms does not fit within *760 them. Respect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail. See Hanrahan v. Hampton, 446 U.S. 754, 757 (1980). Helms obtained no relief. Because of the defendants' official immunity he received no damages award. No injunction or declaratory judgment was entered in his favor. Nor did Helms obtain relief without benefit of a formal judgment — for example, through a consent decree or settlement. See Maher v. Gagne, 448 U.S. 122, 129 (1980). The most that he obtained was an interlocutory ruling that his complaint should not have been dismissed for failure to state a constitutional claim. That is not the stuff of which legal victories are made. Cf. Hanrahan, supra, at 758-759. The Court of Appeals treated its 1981 holding that Helms' misconduct conviction was unconstitutional as "a form of judicial relief" — presumably (since nothing else is even conceivable) a form of declaratory judgment. It was not that. Helms I explicitly left it to the District Court "to determine the appropriateness and availability of the requested relief," 655 F.2d, at 503; the Court of Appeals granted no relief of its own, declaratory or otherwise. The petitioners contend that the court in fact could not have granted declaratory or injunctive relief at that point, since all of Helms' nonmonetary claims were moot as a result of his release from prison. Even if that is not correct, and Helms' interest in expungement of the misconduct conviction from his prison record was enough to keep those claims alive, the fact is that Helms' counsel never took the steps necessary to have a declaratory judgment or expungement order properly entered. Consequently, Helms received no judicial relief. It is settled law, of course, that relief need not be judicially decreed in order to justify a fee award under § 1988. A lawsuit sometimes produces voluntary action by the defendant that affords the plaintiff all or some of the relief he sought through a judgment — e. g., a monetary settlement or a *761 change in conduct that redresses the plaintiff's grievances. When that occurs, the plaintiff is deemed to have prevailed despite the absence of a formal judgment in his favor. See Maher, supra, at 129. The Court of Appeals held, and Helms argues here, that the statement of law in Helms I that Helms' disciplinary proceeding was unconstitutional is a "vindication of . . . rights," Brief for Respondent 19, that is at least the equivalent of declaratory relief, just as a monetary settlement is the informal equivalent of relief by way of damages. To suggest such an equivalency is to lose sight of the nature of the judicial process. In all civil litigation, the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces — the payment of damages, or some specific performance, or the termination of some conduct. Redress is sought through the court, but from the defendant. This is no less true of a declaratory judgment suit than of any other action. The real value of the judicial pronouncement — what makes it a proper judicial resolution of a "case or controversy" rather than an advisory opinion — is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff. The "equivalency" doctrine is simply an acknowledgment of the primacy of the redress over the means by which it is obtained. If the defendant, under the pressure of the lawsuit, pays over a money claim before the judicial judgment is pronounced, the plaintiff has "prevailed" in his suit, because he has obtained the substance of what he sought. Likewise in a declaratory judgment action: if the defendant, under pressure of the lawsuit, alters his conduct (or threatened conduct) towards the plaintiff that was the basis for the suit, the plaintiff will have prevailed. That is the proper equivalent of a judicial judgment which would produce the same effect; a judicial statement that does not affect the relationship between the plaintiff and the defendant is not an equivalent. As a consequence of the present lawsuit, Helms obtained nothing *762 from the defendants. The only "relief" he received was the moral satisfaction of knowing that a federal court concluded that his rights had been violated. The same moral satisfaction presumably results from any favorable statement of law in an otherwise unfavorable opinion. There would be no conceivable claim that the plaintiff had "prevailed," for instance, if the District Court in this case had first decided the question of immunity, and the Court of Appeals affirmed in a published opinion which said: "The defendants are immune from suit for damages, and the claim for expungement is either moot or has been waived, but if not for that we would reverse because Helms' constitutional rights were violated." That is in essence what happened here, except that the Court of Appeals expressed its view on the constitutional rights before, rather than after, it had become apparent that the issue was irrelevant to the case. There is no warrant for having status as a "prevailing party" depend upon the essentially arbitrary order in which district courts or courts of appeals choose to address issues. Besides the incompatibility in principle, there is a very practical objection to equating statements of law (even legal holdings en route to a final judgment for the defendant) with declaratory judgments: The equation deprives the defendant of valid defenses to a declaratory judgment to which he is entitled. Imagine that following Helms I, Helms' counsel, armed with the holding that his client's constitutional rights had been violated, pressed the District Court for entry of a declaratory judgment. The defendants would then have had the opportunity to contest its entry not only on the ground that the case was moot but also on equitable grounds. The fact that a court can enter a declaratory judgment does not mean that it should. See 28 U.S. C. § 2201 (a court "may declare the rights and other legal relations of any interested party seeking such declaration") (emphasis added); Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 112 (1962); Eccles v. Peoples Bank of Lakewood, 333 U.S. 426, *763 431 (1948). If, for example, Helms I had unambiguously involved only a claim for damages, the requested declaratory judgment would not definitively "settle the controversy between the parties," 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2759, p. 648 (2d ed. 1983), because immunity might still preclude liability. See generally E. Borchard, Declaratory Judgments 299 (2d ed. 1941). If the only effect of a declaratory judgment in those circumstances would be to provide a possible predicate for a fee award against defendants who may ultimately be found immune, and thus to undermine the doctrine of official immunity, it is conceivable that the court might take that into account in deciding whether to enter a judgment. The same considerations may not enter into the decision whether to include statements of law in opinions — or if they do, the court's decision is not appealable in the same manner as its entry of a declaratory judgment. We conclude that a favorable judicial statement of law in the course of litigation that results in judgment against the plaintiff does not suffice to render him a "prevailing party." Any other result strains both the statutory language and common sense. The Court of Appeals held in the alternative, and Helms argues in the alternative here, that a hearing is needed to determine whether Helms' lawsuit prompted the Pennsylvania Bureau of Corrections to amend its regulations in 1984 to provide standards for the use of informant testimony at disciplinary hearings. We need not decide the circumstances, if any, under which this "catalyst" theory could justify a fee award under § 1988, because even if Helms can demonstrate a clear causal link between his lawsuit and the State's amendment of its regulations, and can "prevail" by having the State take action that his complaint did not in terms request, he did not and could not get redress from promulgation of the informant-testimony regulations. When Directive 801 was amended, Helms had long since been released from prison. *764 Although he has subsequently been returned to prison, and is presumably now benefiting from the new procedures (to the extent that they influence prison administration even when not directly being applied), that fortuity can hardly render him, retroactively, a "prevailing party" in this lawsuit, even though he was not such when the final judgment was entered. For the reasons stated, the judgment of the court of appeals is Reversed.

This case presents the peculiar-sounding question whether a party who litigates to judgment and loses on all of his claims can nonetheless be a "prevailing party" for purposes of an award of attorney's fees. Following a prison riot at the Pennsylvania State Correctional Institution at Huntingdon, inmate Aaron Helms was placed in administrative segregation, a form of restrictive custody, pending an investigation into his possible involvement in the disturbance. More than seven weeks later, a prison hearing committee, relying solely on an officer's report of the testimony of an undisclosed informant, found Helms guilty of misconduct for striking a corrections officer during the riot. Helms was sentenced to six months of disciplinary restrictive confinement. While still incarcerated, Helms brought suit under 42 U.S. C. against a number of prison officials, alleging that the lack of a prompt hearing on his misconduct charges and his conviction for misconduct on the basis of uncorroborated hearsay testimony violated his rights to due process. The prison officials asserted qualified immunity from suit and contested the constitutional claims on the merits. Before any decision was rendered, Helms was released from prison on parole. Nearly six months after Helms' release, the District Court rendered summary judgment against him on his constitutional *758 claims without passing on the defendants' assertions of immunity. The Court of Appeals for the Third Circuit reversed, finding that "Helms was denied due process unless he was afforded a hearing, within a reasonable time of his initial [segregative] confinement, to determine whether he represented the type of `risk' warranting administrative detention," and that he "suffered a denial of due process by being convicted on a misconduct charge when the only evidence offered against him was a hearsay recital, by the charging officer, of an uncorroborated report of an unidentified informant." The District Court was instructed to enter summary judgment for Helms on the latter claim unless the defendants could establish an immunity defense. Before the proceedings on remand could take place, we granted certiorari to determine whether Helms' administrative segregation violated the Due Process Clause. We concluded that the prison's informal, nonadversarial procedures for determining the need for restrictive custody provided all the process that is due when prisoners are removed from the general prison population. Certiorari was not sought on, and we did not decide, the question whether Helms' misconduct conviction violated his constitutional rights. When the case was returned to the Court of Appeals, it therefore reaffirmed its instruction to the District Court to enter judgment for Helms on this claim unless the defendants established a defense of official immunity. In the District Court, Helms pursued only his claims for damages. The District Court granted summary judgment for all the defendants on the basis of qualified immunity, because the constitutional right at issue was not "clearly established," at the time of Helms' misconduct hearing. See App. 22a-47a. Helms appealed, seeking both damages and expungement of his misconduct conviction. The defendants argued to the *759 Court of Appeals that all claims for injunctive and declaratory relief had been waived by the failure to pursue them in the District Court, and in any event were moot because Helms was no longer in prison. While that appeal was pending, the Pennsylvania Bureau of Corrections revised its regulations to include for the first time procedures for the use of confidential-source information in inmate disciplinary proceedings. See BC-ADM 801 Administrative Directive: Inmate Disciplinary Procedures V(F) App. 101a-102a (Directive 801). The District Court's decision was affirmed without opinion. Helms then sought attorney's fees under 42 U.S. C. 1988, which provides in relevant part: "In any action or proceeding to enforce a provision of [ ], 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." The District Court denied the claim on the ground that Helms was not a "prevailing party": the defendants' official immunity precluded a damages award, Helms' release from prison made his claims for injunctive relief moot, and he could not claim that his suit was a "catalyst" for the amendment of Directive 801 because he neither sought nor benefited from that action. App. to Pet. for Cert. 27a-39a. The Court of Appeals reversed, concluding that its prior holding that Helms' constitutional rights were violated was "a form of judicial relief which serves to affirm the plaintiff's assertion that the defendants' actions were unconstitutional and which will serve as a standard of conduct to guide prison officials in the future." The court also directed the District Court to reconsider whether Helms' suit was a "catalyst" for the amendment of Directive 801. We granted certiorari. In order to be eligible for attorney's fees under 1988, a litigant must be a "prevailing party." Whatever the outer boundaries of that term may be, Helms does not fit within *760 them. Respect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail. See Helms obtained no relief. Because of the defendants' official immunity he received no damages award. No injunction or declaratory judgment was entered in his favor. Nor did Helms obtain relief without benefit of a formal judgment — for example, through a consent decree or settlement. See The most that he obtained was an interlocutory ruling that his complaint should not have been dismissed for failure to state a constitutional claim. That is not the stuff of which legal victories are made. Cf. The Court of Appeals treated its holding that Helms' misconduct conviction was unconstitutional as "a form of judicial relief" — presumably (since nothing else is even conceivable) a form of declaratory judgment. It was not that. Helms I explicitly left it to the District Court "to determine the appropriateness and availability of the requested relief," ; the Court of Appeals granted no relief of its own, declaratory or otherwise. The petitioners contend that the court in fact could not have granted declaratory or injunctive relief at that point, since all of Helms' nonmonetary claims were moot as a result of his release from prison. Even if that is not correct, and Helms' interest in expungement of the misconduct conviction from his prison record was enough to keep those claims alive, the fact is that Helms' counsel never took the steps necessary to have a declaratory judgment or expungement order properly entered. Consequently, Helms received no judicial relief. It is settled law, of course, that relief need not be judicially decreed in order to justify a fee award under 1988. A lawsuit sometimes produces voluntary action by the defendant that affords the plaintiff all or some of the relief he sought through a judgment — e. g., a monetary settlement or a *761 change in conduct that redresses the plaintiff's grievances. When that occurs, the plaintiff is deemed to have prevailed despite the absence of a formal judgment in his favor. See at The Court of Appeals held, and Helms argues here, that the statement of law in Helms I that Helms' disciplinary proceeding was unconstitutional is a "vindication of rights," Brief for Respondent 19, that is at least the equivalent of declaratory relief, just as a monetary settlement is the informal equivalent of relief by way of damages. To suggest such an equivalency is to lose sight of the nature of the judicial process. In all civil litigation, the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces — the payment of damages, or some specific performance, or the termination of some conduct. Redress is sought through the court, but from the defendant. This is no less true of a declaratory judgment suit than of any other action. The real value of the judicial pronouncement — what makes it a proper judicial resolution of a "case or controversy" rather than an advisory opinion — is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff. The "equivalency" doctrine is simply an acknowledgment of the primacy of the redress over the means by which it is obtained. If the defendant, under the pressure of the lawsuit, pays over a money claim before the judicial judgment is pronounced, the plaintiff has "prevailed" in his suit, because he has obtained the substance of what he sought. Likewise in a declaratory judgment action: if the defendant, under pressure of the lawsuit, alters his conduct (or threatened conduct) towards the plaintiff that was the basis for the suit, the plaintiff will have prevailed. That is the proper equivalent of a judicial judgment which would produce the same effect; a judicial statement that does not affect the relationship between the plaintiff and the defendant is not an equivalent. As a consequence of the present lawsuit, Helms obtained nothing *762 from the defendants. The only "relief" he received was the moral satisfaction of knowing that a federal court concluded that his rights had been violated. The same moral satisfaction presumably results from any favorable statement of law in an otherwise unfavorable opinion. There would be no conceivable claim that the plaintiff had "prevailed," for instance, if the District Court in this case had first decided the question of immunity, and the Court of Appeals affirmed in a published opinion which said: "The defendants are immune from suit for damages, and the claim for expungement is either moot or has been waived, but if not for that we would reverse because Helms' constitutional rights were violated." That is in essence what happened here, except that the Court of Appeals expressed its view on the constitutional rights before, rather than after, it had become apparent that the issue was irrelevant to the case. There is no warrant for having status as a "prevailing party" depend upon the essentially arbitrary order in which district courts or courts of appeals choose to address issues. Besides the incompatibility in principle, there is a very practical objection to equating statements of law (even legal holdings en route to a final judgment for the defendant) with declaratory judgments: The equation deprives the defendant of valid defenses to a declaratory judgment to which he is entitled. Imagine that following Helms I, Helms' counsel, armed with the holding that his client's constitutional rights had been violated, pressed the District Court for entry of a declaratory judgment. The defendants would then have had the opportunity to contest its entry not only on the ground that the case was moot but also on equitable grounds. The fact that a court can enter a declaratory judgment does not mean that it should. See 28 U.S. C. 2201 (a court "may declare the rights and other legal relations of any interested party seeking such declaration") (emphasis added); Public Affairs Associates, ; If, for example, Helms I had unambiguously involved only a claim for damages, the requested declaratory judgment would not definitively "settle the controversy between the parties," 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 2759, p. 648 because immunity might still preclude liability. See generally E. Borchard, Declaratory Judgments 299 (2d ed. 1941). If the only effect of a declaratory judgment in those circumstances would be to provide a possible predicate for a fee award against defendants who may ultimately be found immune, and thus to undermine the doctrine of official immunity, it is conceivable that the court might take that into account in deciding whether to enter a judgment. The same considerations may not enter into the decision whether to include statements of law in opinions — or if they do, the court's decision is not appealable in the same manner as its entry of a declaratory judgment. We conclude that a favorable judicial statement of law in the course of litigation that results in judgment against the plaintiff does not suffice to render him a "prevailing party." Any other result strains both the statutory language and common sense. The Court of Appeals held in the alternative, and Helms argues in the alternative here, that a hearing is needed to determine whether Helms' lawsuit prompted the Pennsylvania Bureau of Corrections to amend its regulations in to provide standards for the use of informant testimony at disciplinary hearings. We need not decide the circumstances, if any, under which this "catalyst" theory could justify a fee award under 1988, because even if Helms can demonstrate a clear causal link between his lawsuit and the State's amendment of its regulations, and can "prevail" by having the State take action that his complaint did not in terms request, he did not and could not get redress from promulgation of the informant-testimony regulations. When Directive 801 was amended, Helms had long since been released from prison. *764 Although he has subsequently been returned to prison, and is presumably now benefiting from the new procedures (to the extent that they influence prison administration even when not directly being applied), that fortuity can hardly render him, retroactively, a "prevailing party" in this lawsuit, even though he was not such when the final judgment was entered. For the reasons stated, the judgment of the court of appeals is Reversed.