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Holywell Corp. v. Smith

https://www.courtlistener.com/opinion/112695/holywell-corp-v-smith/

https://www.courtlistener.com/api/rest/v3/clusters/112695/

1991-034

These cases require us to decide whether a trustee appointed to liquidate and distribute property as part of a Chapter 11 bankruptcy plan must file income tax returns and pay income tax under the Internal Revenue Code. I Miami Center Limited Partnership borrowed money from the Bank of New York (Bank) to develop "Miami Center," a hotel and office building complex in Miami, Florida. In August 1984, after it defaulted on the loan, MCLP and four affiliated debtors—Holywell Corporation, Chopin Associates, Miami Center Corporation, and Theodore B. Gould—each filed Chapter 11 bankruptcy petitions. The Bankruptcy Court consolidated the five cases. Prior to confirmation of a Chapter 11 plan, the debtors represented their own bankruptcy estates as debtors in possession. See 11 U.S. C. § 1101(1). The estates of Gould and Holywell contained two principal assets: equity in Miami Center and cash proceeds from the postbankruptcy sale of certain real estate in Washington, D. C., known as the Washington Properties. In August 1985, the Bank and other creditors approved a "Consolidated Plan of Reorganization." The plan required the debtors to give up their interests in Miami Center and the proceeds from the sale of the Washington Properties, but otherwise permitted them to remain in business. Part V of the plan provided: "1. A Trust is hereby declared and established on behalf of the Debtors . . . and an individual to be appointed by the Court . . . is designated as Trustee of all property of the estates of the Debtors . . . , including but not limited to, Miami Center [and] the Washington Proceeds. . . , to hold, liquidate, and distribute such Trust Property according to the terms of this Plan. The Trust shall be known as the `Miami Center Liquidating Trust.' *51 "2. . . . [A]ll right,title and interest of the Debtors in and to the Trust Property, including Miami Center, shall vest in the Trustee, without further act or deed by the Debtors . . . ."App. 41. The plan required the trustee to liquidate and distribute all of the trust property to the creditors of the various bankruptcy estates. It empowered the trustee to "[m]anage, operate, improve, and protect the Trust Property"; to "[r]elease, convey, or assign any right, title or interest in or about the Trust Property"; and to perform other, similar actions. Id., at 42. The plan said nothing about whether the trustee had to file income tax returns or pay any income tax due. The United States did not object to its confirmation. The plan took effect on October 10, 1985. The trustee appointed by the court, respondent Fred Stanton Smith, immediately sold Miami Center to the Bank in consideration for cash and cancellation of the Bank's claim. The trustee then distributed these and other assets to third-party creditors. Holywell Corporation filed a tax return for the fiscal year ending July 31, 1985. The income for this fiscal year included capital gains earned in the sale of the Washington Properties. Holywell asked the trustee to pay the taxes owed. Neither the corporate debtors nor the trustee filed federal income tax returns for any fiscal year ending after July 31, 1985. The income for these years included the capital gains earned in the sale of Miami Center and interest earned by reinvesting the proceeds. In December 1987, the trustee sought a declaratory judgment from the Bankruptcy Court that he had no duty to file income tax returns or pay income tax under the federal income tax laws. The United States and the debtors opposed the action. The Bankruptcy Court declared that the trustee did not have to make any federal tax returns or pay any taxes. 85 B.R. 898 (SD Fla. 1988). The District Court, in an unreported opinion, and the Court of Appeals, 911 F.2d 1539 (CA11 1990), both affirmed. The United States, in No. *52 90-1484, and the debtors, in No. 90-1361, each petitioned this Court for a writ of certiorari. We granted review. 500 U.S. 941 (1991). II The Internal Revenue Code ties the duty to pay federal income taxes to the duty to make an income tax return. See 26 U.S. C. § 6151(a) ("[W]hen a return of a tax is required. . . the person required to make such return shall .. . pay such tax"). We conclude in this case that the trustee must pay the tax due on the income attributable to the corporate debtors' property because § 6012(b)(3) requires him to make a return as the "assignee" of the "property . . . of a corporation." We further hold that the trustee must pay the tax due on the income attributable to the individual debtor's property because § 6012(b)(4) requires him to make a return as the "fiduciary" of a "trust." Finally, we decide that the United States did not excuse the trustee from these duties by failing to object to the plan. A We first consider the trustee's duties with respect to the corporate debtors. Section 6012(b)(3) provides: "(3) Receivers, trustees and assignees for corporations "In a case where a receiver, trustee in a case under title 11 of the United States Code, or assignee, by order of a court of competent jurisdiction, by operation of law or otherwise, has possession of or holds title to all or substantially all the property or business of a corporation, whether or not such property or business is being operated, such receiver, trustee, or assignee shall make the return of income for such corporation in the same manner and form as corporations are required to make such returns." The parties disagree about whether the trustee in this case is a "receiver," a "trustee in a case under title 11 of *53 the United States Code [i. e., the Bankruptcy Code]," or an "assignee." We hold that the trustee is an "assignee" of the corporate debtors under § 6012(b)(3). Because the parties do not argue that the trustee's duties would differ under another characterization, we decline to consider whether the trustee would qualify as a receiver or bankruptcy trustee. The plan, as noted above, transferred the corporate debtors' estates to respondent Smith as trustee for the Miami Center Liquidating Trust. The respondents do not dispute that the trustee meets the usual definition of the word "assignee" in both ordinary and legal usage. See Webster's Third New International Dictionary 132 (1986) (defining an "assignee" as "one to whom a right or property is legally transferred"); Black's Law Dictionary 118-119 (6th ed. 1990) (defining an "assignee" as "[a] person to whom an assignment is made" and an "assignment" as "[t]he act of transferring to another all or part of one's property, interest, or rights"); cf. 26 CFR § 301.6036-1(a)(3) (1991) (defining an "assignee for the benefit of . . . creditors" as any person who takes possession of and liquidates property of a debtor for distribution to creditors). They argue, however, that courts have applied § 6012(b)(3) only in situations in which a person winds up the business of a dissolving corporation, see, e. g., First Nat. Bank of Greeley, Colo. v. United States, 86 F.2d 938, 942 (CA10 1936), or a person stands in the place of management in operating the day-to-day business of a distressed corporation, see, e. g., Louisville Property Co. v. Commissioner, 140 F.2d 547, 548 (CA6 1944). They conclude that § 6012(b)(3) cannot apply to the trustee in this case because he did neither. We find this argument unpersuasive. Nothing in § 6012(b)(3) suggests that the word "assignee" is limited in the manner proposed by the respondents. The statute does not make dissolution necessary; it applies whether the corporation transfers "all" or "substantially all" of its property. It does not require the assignee to manage the corporation's business after the transfer of property; it *54 expressly requires the assignee to make a return "whether or not [the assigned] property or business is being operated." Ibid. We therefore conclude that § 6012(b)(3) applies to the trustee in this case. As the assignee of "all" or "substantially all" of the property of the corporate debtors, the trustee must file the returns that the corporate debtors would have filed had the plan not assigned their property to the trustee. B We next consider the trustee's duties with respect to the individual debtor, Theodore B. Gould. The parties agree that § 6012(b)(3) does not require the trustee to file a return as the "assignee" of Gould's estate because the section applies only to the assignee of the property of a corporation. Section § 6012(b)(4), however, provides: "(4) Returns of estates and trusts "Returns of an estate, a trust, or an estate of an individual under chapter 7 or 11 of title 11 of the United States Code shall be made by the fiduciary thereof." The United States argues that the trustee must file under § 6012(b)(4) as the fiduciary of Gould's Chapter 11 "estate." The debtors join the United States' argument and also contend in the alternative that the trustee must file under the section as the fiduciary of a "trust." The respondents insist that the trustee is not acting as the fiduciary of either a bankruptcy estate or a trust within the meaning of § 6012(b)(4). Accordingly, they assert, the section does not require the trustee to file a return on behalf of Gould. We agree with the debtors that the trustee must file a return because he is the fiduciary of a trust of an individual. The parties agree that Gould originally served as the fiduciary of his own bankruptcy estate when he became debtor in possession. See 11 U.S. C. § 1107(a). At confirmation, according to the United States, the bankruptcy plan substituted the trustee for Gould but did not alter the bankruptcy *55 estate. In other words, the United States argues, the trustee took Gould's place as the fiduciary of "an estate of an individual under chapter . . . 11." The United States points out that the Bankruptcy Code explicitly provides that a fiduciary may hold and administer property of the estate after confirmation of the plan, see 11 U.S. C. § 1123(b)(3), and that nothing prohibits the substitution of a third-party trustee for the debtor in possession. The United States, therefore, maintains that the trustee must file a return under § 6012(b)(4). Whether or not the Bankruptcy Code permits a plan to place a new fiduciary in charge of an estate after confirmation, as the United States contends, we do not believe that a mere substitution occurred in this case. The plan, as quoted above, "declared and established" the new Miami Center Liquidating Trust. It then vested all of the assets of Gould's estate to respondent Smith as trustee. The plan did not simply substitute the trustee for Gould as the fiduciary of the estate. Rather, it created a separate and distinct trust holding the property of the estate and gave the trustee control of this property. The Bankruptcy Code expressly permits this arrangement. See § 1123(a)(5)(B) (authorizing a plan to transfer "all or any part of the property of the estate to one or more entities, whether organized before or after the confirmation of such plan"). The trustee, therefore, is not acting as the fiduciary of Gould's bankruptcy estate. The trustee, nonetheless, must make a return. Section 6012(b)(4), as the debtors assert, applies to the fiduciary of a trust as well as the fiduciary of a bankruptcy estate. We see no way for the respondents to deny that the Miami Center Liquidating Trust is a "trust" and that respondent Smith is its "fiduciary." A Treasury Regulation states: "Certain organizations which are commonly known as liquidating trusts are treated as trusts for purposes of the Internal Revenue Code. An organization will be considered a liquidating trust if it is organized for the *56 primary purpose of liquidating and distributing the assets transferred to it, and if its activities are all reasonably necessary to, and consistent with, the accomplishment of that purpose." 26 CFR § 301.7701-4(d) (1991). The Miami Center Liquidating Trust clearly fits this description. The plan not only describes the entity as a trust, but also created it for the express purpose of liquidating Gould's estate and distributing it to creditors. Respondent Smith, moreover, acted as the fiduciary of this trust. The Internal Revenue Code defines "fiduciary" as a "guardian, trustee, executor, administrator, receiver, conservator, or any person acting in any fiduciary capacity for any person." 26 U.S. C. § 7701(a)(6). A Treasury Regulation further specifies: "`Fiduciary' is a term which applies to persons who occupy positions of peculiar confidence toward others, such as trustees, executors, and administrators. A fiduciary is a person who holds in trust an estate to which another has the beneficial title or in which another has a beneficial interest, or receives and controls income of another, as in the case of receivers." 26 CFR § 301.7701-6 (1991). The bankruptcy plan, as noted above, assigned the property of Gould's estate to the trustee and gave him powers consistent with this definition. Smith therefore acted as the fiduciary of a trust within the meaning of § 6012(b)(4). The respondents raise two principal objections to this conclusion. First, they argue that Gould must pay the Miami Center Liquidating Trust's income taxes under the so-called "grantor trust" rules in the Internal Revenue Code. See 26 U.S. C. §§ 671-677. They note, in particular, that Treasury Regulation § 1.677(a)—1(d) specifies that "a grantor is, in general, treated as the owner of a portion of a trust whose income *57 is . . .applied in discharge of a legal obligation of the grantor." 26 CFR § 1.667(a)—1(d) (1991). They assert that Gould is the grantor of the liquidating trust and that, under this regulation, he owns the trust's income and must pay taxes on it. To support this position, the respondents cite In re Sonner, 53 B.R. 859 (ED Va. 1985), which applied the grantor trust provisions to a postconfirmation liquidating trust. While we express no opinion on the results in Sonner, the facts are distinguishable. In Sonner, the property of the bankruptcy estate by the terms of the plan appears to have revested in the debtor upon confirmation. The debtor pursuant to a plan then placed some of this property in a trust created to pay his creditors. Under these circumstances, the Bankruptcy Court concluded, the debtor had created a grantor trust under Treasury Regulation § 1.677(a)—1(d). See Sonner, supra, at 860, 864. In this case, however, the property of Gould's bankruptcy estate did not revest in Gould. The plan, instead, placed all of the estate's property directly in the Miami Center Liquidating Trust. Gould himself did not contribute anything to the trust, and we thus fail to see how the respondents can characterize him as the grantor. Second, the respondents argue that the trustee did not act as a fiduciary because he had almost no discretion in performing his duties under the plan. They assert that the trustee merely acted as a "disbursing agent" who distributed liquidated funds to the creditors. As the dissenting judge noted below, labels and characterizations cannot alter the trustee's status for the purpose of the tax law. 911 F.2d, at 1547. Because the liquidating trust is a trust under the Internal Revenue Code and because respondent Smith's duties under the plan satisfy the description of a fiduciary in *58 the regulations, the restrictions on the trustee's discretion do not remove him from coverage under § 6012(b)(4).[*] C The respondents finally assert that the trustee may ignore the duties imposed by §§ 6012 and 6151 because the Chapter 11 plan does not require him to pay taxes. They note that § 1141(a) of the Bankruptcy Code states that "the provisions of a confirmed plan bind . . . any creditor" whether or not the creditor has accepted the plan. They conclude that § 1141(a) precludes the United States, as a creditor, from seeking payment of any taxes. They add that the United States should have objected to the plan if it had wanted a different result. We disagree. The United States is not seeking from the trustee any taxes that became due prior to his appointment. See Reply Brief for United States 13, n. 16. It simply asserts that the trustee, after his appointment, must make tax returns under § 6012(b) in the same manner as the assignee of the property of any corporation or the trustee of any trust. No tax liability becomes due under § 6151 until the time required for making those returns. See Hartman v. Lauchli, 238 F.2d 881, 887 (CA8 1956); Pan American Van Lines v. United States, 607 F.2d 1299, 1301 (CA9 1979). Even if § 1141(a) binds creditors of the corporate and individual debtors with respect to claims that arose before confirmation, we do not see how it can bind the United States or any other creditor with respect to postconfirmation claims. Cf. 11 U.S. C. § 101(10) *59 (1988 ed., Supp. II) (defining "creditor" as used in § 1141(a) as an entity with various kinds of preconfirmation claims). For these reasons, the judgment of the Court of Appeals is Reversed.

These cases require us to decide whether a trustee appointed to liquidate and distribute property as part of a Chapter 11 bankruptcy plan must file income tax returns and pay income tax under the Internal Revenue Code. I Miami Center Limited Partnership borrowed money from the Bank of New York (Bank) to develop "Miami Center," a hotel and office building complex in Miami, Florida. In August 1984, after it defaulted on the loan, MCLP and four affiliated debtors—Holywell Corporation, Chopin Associates, Miami Center Corporation, and Theodore B. Gould—each filed Chapter 11 bankruptcy petitions. The Bankruptcy Court consolidated the five cases. Prior to confirmation of a Chapter 11 plan, the debtors represented their own bankruptcy estates as debtors in possession. See 11 U.S. C. 1101(1). The estates of Gould and Holywell contained two principal assets: equity in Miami Center and cash proceeds from the postbankruptcy sale of certain real estate in Washington, D. C., known as the Washington Properties. In August the Bank and other creditors approved a "Consolidated Plan of Reorganization." The plan required the debtors to give up their interests in Miami Center and the proceeds from the sale of the Washington Properties, but otherwise permitted them to remain in business. Part V of the plan provided: "1. A Trust is hereby declared and established on behalf of the Debtors and an individual to be appointed by the Court is designated as Trustee of all property of the estates of the Debtors including but not limited to, Miami Center [and] the Washington Proceeds. to hold, liquidate, and distribute such Trust Property according to the terms of this Plan. The Trust shall be known as the `Miami Center Liquidating Trust.' *51 "2. [A]ll right,title and interest of the Debtors in and to the Trust Property, including Miami Center, shall vest in the Trustee, without further act or deed by the Debtors"App. 41. The plan required the trustee to liquidate and distribute all of the trust property to the creditors of the various bankruptcy estates. It empowered the trustee to "[m]anage, operate, improve, and protect the Trust Property"; to "[r]elease, convey, or assign any right, title or interest in or about the Trust Property"; and to perform other, similar actions. The plan said nothing about whether the trustee had to file income tax returns or pay any income tax due. The United States did not object to its confirmation. The plan took effect on October 10, The trustee appointed by the court, respondent Fred Stanton Smith, immediately sold Miami Center to the Bank in consideration for cash and cancellation of the Bank's claim. The trustee then distributed these and other assets to third-party creditors. Holywell Corporation filed a tax return for the fiscal year ending July 31, The income for this fiscal year included capital gains earned in the sale of the Washington Properties. Holywell asked the trustee to pay the taxes owed. Neither the corporate debtors nor the trustee filed federal income tax returns for any fiscal year ending after July 31, The income for these years included the capital gains earned in the sale of Miami Center and interest earned by reinvesting the proceeds. In December 1987, the trustee sought a declaratory judgment from the Bankruptcy Court that he had no duty to file income tax returns or pay income tax under the federal income tax laws. The United States and the debtors opposed the action. The Bankruptcy Court declared that the trustee did not have to make any federal tax returns or pay any taxes. The District Court, in an unreported opinion, and the Court of Appeals, both affirmed. The United States, in No. *52 90-1484, and the debtors, in No. 90-1361, each petitioned this Court for a writ of certiorari. We granted review. II The Internal Revenue Code ties the duty to pay federal income taxes to the duty to make an income tax return. See 26 U.S. C. 6151(a) ("[W]hen a return of a tax is required. the person required to make such return shall pay such tax"). We conclude in this case that the trustee must pay the tax due on the income attributable to the corporate debtors' property because 6012(b)(3) requires him to make a return as the "assignee" of the "property of a corporation." We further hold that the trustee must pay the tax due on the income attributable to the individual debtor's property because 6012(b)(4) requires him to make a return as the "fiduciary" of a "trust." Finally, we decide that the United States did not excuse the trustee from these duties by failing to object to the plan. A We first consider the trustee's duties with respect to the corporate debtors. Section 6012(b)(3) provides: "(3) Receivers, trustees and assignees for corporations "In a case where a receiver, trustee in a case under title 11 of the United States Code, or assignee, by order of a court of competent jurisdiction, by operation of law or otherwise, has possession of or holds title to all or substantially all the property or business of a corporation, whether or not such property or business is being operated, such receiver, trustee, or assignee shall make the return of income for such corporation in the same manner and form as corporations are required to make such returns." The parties disagree about whether the trustee in this case is a "receiver," a "trustee in a case under title 11 of *53 the United States Code [i. e., the Bankruptcy Code]," or an "assignee." We hold that the trustee is an "assignee" of the corporate debtors under 6012(b)(3). Because the parties do not argue that the trustee's duties would differ under another characterization, we decline to consider whether the trustee would qualify as a receiver or bankruptcy trustee. The plan, as noted above, transferred the corporate debtors' estates to respondent Smith as trustee for the Miami Center Liquidating Trust. The respondents do not dispute that the trustee meets the usual definition of the word "assignee" in both ordinary and legal usage. See Webster's Third New International Dictionary 132 (1986) (defining an "assignee" as "one to whom a right or property is legally transferred"); Black's Law Dictionary 118-119 (defining an "assignee" as "[a] person to whom an assignment is made" and an "assignment" as "[t]he act of transferring to another all or part of one's property, interest, or rights"); cf. 26 CFR 301.6036-1(a)(3) They argue, however, that courts have applied 6012(b)(3) only in situations in which a person winds up the business of a dissolving corporation, see, e. g., First Nat. Bank of Greeley, or a person stands in the place of management in operating the day-to-day business of a distressed corporation, see, e. g., Louisville Property They conclude that 6012(b)(3) cannot apply to the trustee in this case because he did neither. We find this argument unpersuasive. Nothing in 6012(b)(3) suggests that the word "assignee" is limited in the manner proposed by the respondents. The statute does not make dissolution necessary; it applies whether the corporation transfers "all" or "substantially all" of its property. It does not require the assignee to manage the corporation's business after the transfer of property; it *54 expressly requires the assignee to make a return "whether or not [the assigned] property or business is being operated." We therefore conclude that 6012(b)(3) applies to the trustee in this case. As the assignee of "all" or "substantially all" of the property of the corporate debtors, the trustee must file the returns that the corporate debtors would have filed had the plan not assigned their property to the trustee. B We next consider the trustee's duties with respect to the individual debtor, Theodore B. Gould. The parties agree that 6012(b)(3) does not require the trustee to file a return as the "assignee" of Gould's estate because the section applies only to the assignee of the property of a corporation. Section 6012(b)(4), however, provides: "(4) Returns of estates and trusts "Returns of an estate, a trust, or an estate of an individual under chapter 7 or 11 of title 11 of the United States Code shall be made by the fiduciary thereof." The United States argues that the trustee must file under 6012(b)(4) as the fiduciary of Gould's Chapter 11 "estate." The debtors join the United States' argument and also contend in the alternative that the trustee must file under the section as the fiduciary of a "trust." The respondents insist that the trustee is not acting as the fiduciary of either a bankruptcy estate or a trust within the meaning of 6012(b)(4). Accordingly, they assert, the section does not require the trustee to file a return on behalf of Gould. We agree with the debtors that the trustee must file a return because he is the fiduciary of a trust of an individual. The parties agree that Gould originally served as the fiduciary of his own bankruptcy estate when he became debtor in possession. See 11 U.S. C. 1107(a). At confirmation, according to the United States, the bankruptcy plan substituted the trustee for Gould but did not alter the bankruptcy *55 estate. In other words, the United States argues, the trustee took Gould's place as the fiduciary of "an estate of an individual under chapter 11." The United States points out that the Bankruptcy Code explicitly provides that a fiduciary may hold and administer property of the estate after confirmation of the plan, see 11 U.S. C. 1123(b)(3), and that nothing prohibits the substitution of a third-party trustee for the debtor in possession. The United States, therefore, maintains that the trustee must file a return under 6012(b)(4). Whether or not the Bankruptcy Code permits a plan to place a new fiduciary in charge of an estate after confirmation, as the United States contends, we do not believe that a mere substitution occurred in this case. The plan, as quoted above, "declared and established" the new Miami Center Liquidating Trust. It then vested all of the assets of Gould's estate to respondent Smith as trustee. The plan did not simply substitute the trustee for Gould as the fiduciary of the estate. Rather, it created a separate and distinct trust holding the property of the estate and gave the trustee control of this property. The Bankruptcy Code expressly permits this arrangement. See 1123(a)(5)(B) (authorizing a plan to transfer "all or any part of the property of the estate to one or more entities, whether organized before or after the confirmation of such plan"). The trustee, therefore, is not acting as the fiduciary of Gould's bankruptcy estate. The trustee, nonetheless, must make a return. Section 6012(b)(4), as the debtors assert, applies to the fiduciary of a trust as well as the fiduciary of a bankruptcy estate. We see no way for the respondents to deny that the Miami Center Liquidating Trust is a "trust" and that respondent Smith is its "fiduciary." A Treasury Regulation states: "Certain organizations which are commonly known as liquidating trusts are treated as trusts for purposes of the Internal Revenue Code. An organization will be considered a liquidating trust if it is organized for the *56 primary purpose of liquidating and distributing the assets transferred to it, and if its activities are all reasonably necessary to, and consistent with, the accomplishment of that purpose." 26 CFR 301.7701-4(d) The Miami Center Liquidating Trust clearly fits this description. The plan not only describes the entity as a trust, but also created it for the express purpose of liquidating Gould's estate and distributing it to creditors. Respondent Smith, moreover, acted as the fiduciary of this trust. The Internal Revenue Code defines "fiduciary" as a "guardian, trustee, executor, administrator, receiver, conservator, or any person acting in any fiduciary capacity for any person." 26 U.S. C. 7701(a)(6). A Treasury Regulation further specifies: "`Fiduciary' is a term which applies to persons who occupy positions of peculiar confidence toward others, such as trustees, executors, and administrators. A fiduciary is a person who holds in trust an estate to which another has the beneficial title or in which another has a beneficial interest, or receives and controls income of another, as in the case of receivers." 26 CFR 301.7701-6 The bankruptcy plan, as noted above, assigned the property of Gould's estate to the trustee and gave him powers consistent with this definition. Smith therefore acted as the fiduciary of a trust within the meaning of 6012(b)(4). The respondents raise two principal objections to this conclusion. First, they argue that Gould must pay the Miami Center Liquidating Trust's income taxes under the so-called "grantor trust" rules in the Internal Revenue Code. See 26 U.S. C. 671-677. They note, in particular, that Treasury Regulation 1.677(a)—1(d) specifies that "a grantor is, in general, treated as the owner of a portion of a trust whose income *57 isapplied in discharge of a legal obligation of the grantor." 26 CFR 1.667(a)—1(d) They assert that Gould is the grantor of the liquidating trust and that, under this regulation, he owns the trust's income and must pay taxes on it. To support this position, the respondents cite In re which applied the grantor trust provisions to a postconfirmation liquidating trust. While we express no opinion on the results in the facts are distinguishable. In the property of the bankruptcy estate by the terms of the plan appears to have revested in the debtor upon confirmation. The debtor pursuant to a plan then placed some of this property in a trust created to pay his creditors. Under these circumstances, the Bankruptcy Court concluded, the debtor had created a grantor trust under Treasury Regulation 1.677(a)—1(d). See In this case, however, the property of Gould's bankruptcy estate did not revest in Gould. The plan, instead, placed all of the estate's property directly in the Miami Center Liquidating Trust. Gould himself did not contribute anything to the trust, and we thus fail to see how the respondents can characterize him as the grantor. Second, the respondents argue that the trustee did not act as a fiduciary because he had almost no discretion in performing his duties under the plan. They assert that the trustee merely acted as a "disbursing agent" who distributed liquidated funds to the creditors. As the dissenting judge noted below, labels and characterizations cannot alter the trustee's status for the purpose of the tax law. Because the liquidating trust is a trust under the Internal Revenue Code and because respondent Smith's duties under the plan satisfy the description of a fiduciary in *58 the regulations, the restrictions on the trustee's discretion do not remove him from coverage under 6012(b)(4).[*] C The respondents finally assert that the trustee may ignore the duties imposed by 6012 and 6151 because the Chapter 11 plan does not require him to pay taxes. They note that 1141(a) of the Bankruptcy Code states that "the provisions of a confirmed plan bind any creditor" whether or not the creditor has accepted the plan. They conclude that 1141(a) precludes the United States, as a creditor, from seeking payment of any taxes. They add that the United States should have objected to the plan if it had wanted a different result. We disagree. The United States is not seeking from the trustee any taxes that became due prior to his appointment. See Reply Brief for United States 13, n. 16. It simply asserts that the trustee, after his appointment, must make tax returns under 6012(b) in the same manner as the assignee of the property of any corporation or the trustee of any trust. No tax liability becomes due under 6151 until the time required for making those returns. See ; Pan American Van Even if 1141(a) binds creditors of the corporate and individual debtors with respect to claims that arose before confirmation, we do not see how it can bind the United States or any other creditor with respect to postconfirmation claims. Cf. 11 U.S. C. 101(10) *59 ( ed., Supp. II) (defining "creditor" as used in 1141(a) as an entity with various kinds of preconfirmation claims). For these reasons, the judgment of the Court of Appeals is Reversed.

Justice Stevens

majority

NAACP v. Claiborne Hardware Co.

https://www.courtlistener.com/opinion/110798/naacp-v-claiborne-hardware-co/

https://www.courtlistener.com/api/rest/v3/clusters/110798/

1981-175

The term "concerted action" encompasses unlawful conspiracies and constitutionally protected assemblies. The "looseness and pliability" of legal doctrine applicable to concerted action led Justice Jackson to note that certain joint activities have a "chameleon-like" character.[1] The boycott of white merchants in Claiborne County, Miss., that gave rise to this litigation had such a character; it included elements of criminality and elements of majesty. Evidence that fear of reprisals caused some black citizens to withhold their patronage from respondents' businesses convinced the Supreme Court of Mississippi that the entire boycott was unlawful and that each of the 92 petitioners was liable for all of its economic consequences. Evidence that persuasive rhetoric, determination to remedy past injustices, and a host of voluntary decisions by free citizens were the critical *889 factors in the boycott's success presents us with the question whether the state court's judgment is consistent with the Constitution of the United States. I In March 1966, black citizens of Port Gibson, Miss., and other areas of Claiborne County presented white elected officials with a list of particularized demands for racial equality and integration.[2] The complainants did not receive a satisfactory response and, at a local National Association for the Advancement of Colored People (NAACP) meeting at the First Baptist Church, several hundred black persons voted to place a boycott on white merchants in the area. On October 31, 1969, several of the merchants filed suit in state court to recover losses caused by the boycott and to enjoin future boycott activity. We recount first the course of that litigation and then consider in more detail the events that gave rise to the merchants' claim for damages. A The complaint was filed in the Chancery Court of Hinds County by 17 white merchants.[3] The merchants named two corporations and 146 individuals as defendants: the NAACP, a New York membership corporation; Mississippi Action for Progress (MAP), a Mississippi corporation that implemented *890 the federal "Head Start" program; Aaron Henry, the President of the Mississippi State Conference of the NAACP; Charles Evers, the Field Secretary of the NAACP in Mississippi; and 144 other individuals who had participated in the boycott.[4] The complaint sought injunctive relief and an attachment of property, as well as damages. Although it alleged that the plaintiffs were suffering irreparable injury from an ongoing conspiracy, no preliminary relief was sought. Trial began before a chancellor in equity on June 11, 1973.[5] The court heard the testimony of 144 witnesses during an 8-month trial. In August 1976, the chancellor issued an opinion and decree finding that "an overwhelming preponderance of the evidence" established the joint and several liability of *891 130 of the defendants on three separate conspiracy theories.[6] First, the court held that the defendants were liable for the tort of malicious interference with the plaintiffs' businesses, which did not necessarily require the presence of a conspiracy.[7] Second, the chancellor found a violation of a state *892 statutory prohibition against secondary boycotts, on the theory that the defendants' primary dispute was with the governing authorities of Port Gibson and Claiborne County and not with the white merchants at whom the boycott was directed.[8] Third, the court found a violation of Mississippi's antitrust statute, on the ground that the boycott had diverted black patronage from the white merchants to black merchants and to other merchants located out of Claiborne County and thus had unreasonably limited competition between black and white merchants that had traditionally existed.[9] The chancellor specifically rejected the defendants' claim that their conduct was protected by the First Amendment.[10] *893 Five of the merchants offered no evidence of business losses. The chancellor found that the remaining 12 had suffered lost business earnings and lost goodwill during a 7-year period from 1966 to 1972 amounting to $944,699. That amount, plus statutory antitrust penalties of $6,000 and a $300,000 award of attorney's fees, produced a final judgment of $1,250,699, plus interest from the date of judgment and costs. As noted, the chancellor found all but 18 of the original 148 defendants jointly and severally liable for the entire judgment. The court justified imposing full liability on the national organization of the NAACP on the ground that it had failed to "repudiate" the actions of Charles Evers, its Field Secretary in Mississippi. In addition to imposing damages liability, the chancellor entered a broad permanent injunction. He permanently enjoined petitioners from stationing "store watchers" at the respondents' business premises; from "persuading" any person to withhold his patronage from respondents; from "using demeaning and obscene language to or about any person" because that person continued to patronize the respondents; from "picketing or patroling" the premises of any of the respondents; and from using violence against any person or inflicting damage to any real or personal property.[11] *894 In December 1980, the Mississippi Supreme Court reversed significant portions of the trial court's judgment. 393 So. 2d 1290. It held that the secondary boycott statute was inapplicable because it had not been enacted until "the boycott had been in operation for upward of two years."[12] The court declined to rely on the restraint of trade statute, noting that the "United States Supreme Court has seen fit to hold boycotts to achieve political ends are not a violation of the Sherman Act, 15 U.S. C. § 1 (1970), after which our statute is patterned."[13] Thus, the court rejected two theories of liability that were consistent with a totally voluntary and nonviolent withholding of patronage from the white merchants. The Mississippi Supreme Court upheld the imposition of liability, however, on the basis of the chancellor's common-law tort theory. After reviewing the chancellor's recitation of the facts, the court quoted the following finding made by the trial court: "In carrying out the agreement and design, certain of the defendants, acting for all others, engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers. Intimidation, threats, social ostracism, vilification, and traduction were some of the devices used by the defendants to achieve the desired results. Most effective, also, was the stationing of guards (`enforcers,' `deacons,' or `black hats') in the vicinity of white-owned businesses. Unquestionably, the evidence shows that the volition of many black persons was overcome out of sheer fear, and they were forced and compelled against their personal wills to withhold their trade and business intercourse *895 from the complainants." App. to Pet. for Cert. 39b (quoted 393 So. 2d, at 1300). On the basis of this finding, the court concluded that the entire boycott was unlawful. "If any of these factors—force, violence, or threats—is present, then the boycott is illegal regardless of whether it is primary, secondary, economical, political, social or other."[14] In a brief passage, the court rejected petitioners' reliance on the First Amendment: "The agreed use of illegal force, violence, and threats against the peace to achieve a goal makes the present state of facts a conspiracy. We know of no instance, and our attention has been drawn to no decision, wherein it has been adjudicated that free speech guaranteed by the First Amendment includes in its protection the right to commit crime." Id., at 1301. The theory of the Mississippi Supreme Court, then, was that petitioners had agreed to use force, violence, and "threats" to effectuate the boycott.[15] To the trial court, such a finding had not been necessary.[16] Although the Mississippi Supreme Court affirmed the chancellor's basic finding of liability, the court held that respondents *896 "did not establish their case" with respect to 38 of the defendants.[17] The court found that MAP was a victim, rather than a willing participant, in the conspiracy and dismissed —without further explanation — 37 individual defendants for lack of proof. Finally, the court ruled that certain damages had been improperly awarded and that other damages had been inadequately proved. The court remanded for further proceedings on the computation of damages.[18] We granted a petition for certiorari. 454 U.S. 1030. At oral argument, a question arose concerning the factual basis for the judgment of the Mississippi Supreme Court. As noted, that court affirmed petitioners' liability for damages on the ground that each of the petitioners had agreed to effectuate the boycott through force, violence, and threats. Such a finding was not necessary to the trial court's imposition of liability and neither state court had identified the evidence actually linking the petitioners to such an agreement. In response to a request from this Court, respondents filed a supplemental brief "specifying the acts committed by each of the petitioners giving rise to liability for damages." Supplemental Brief for Respondents 1. That brief helpfully places the petitioners in different categories; we accept respondents' framework for analysis and identify these classes as a preface to our review of the relevant incidents that occurred during the 7-year period for which damages were assessed.[19] *897 First, respondents contend that liability is justified by evidence of participation in the "management" of the boycott.[20] Respondents identify two groups of persons who may be found liable as "managers": 79 individuals who regularly attended Tuesday night meetings of the NAACP at the First Baptist Church; and 11 persons who took "leadership roles" at those meetings.[21] Second, respondents contend that liability is justified by evidence that an individual acted as a boycott "enforcer."[22] In this category, respondents identify 22 persons as members of the "Black Hats" — a special group organized during the boycott—and 19 individuals who were simply "store watchers." Third, respondents argue that those petitioners "who themselves engaged in violent acts or who threatened violence have provided the best possible evidence that they wanted the boycott to succeed by coercion whenever it could not succeed by persuasion." Id., at 10. They identify 16 individuals *898 for whom there is direct evidence of participation in what respondents characterize as violent acts or threats of violence. Fourth, respondents contend that Charles Evers may be held liable because he "threatened violence on a number of occasions against boycott breakers." Id., at 13. Like the chancellor, respondents would impose liability on the national NAACP because Evers "was acting in his capacity as Field Secretary of the NAACP when he committed these tortious and constitutionally unprotected acts." Ibid. Finally, respondents state that they are "unable to determine on what record evidence the state courts relied in finding liability on the part of seven of the petitioners." Id., at 16. With these allegations of wrongdoing in mind, we turn to consider the factual events that gave rise to this controversy. B The chancellor held petitioners liable for all of respondents' lost earnings during a 7-year period from 1966 to December 31, 1972. We first review chronologically the principal events that occurred during that period, describe some features of the boycott that are not in dispute, and then identify the most significant evidence of violent activity. In late 1965 or early 1966, Charles Evers, the Field Secretary of the NAACP, helped organize the Claiborne County Branch of the NAACP. The pastor of the First Baptist Church, James Dorsey, was elected president of the Branch; regular meetings were conducted each Tuesday evening at the church. At about the same time, a group of black citizens formed a Human Relations Committee and presented a petition for redress of grievances to civic and business leaders of the white community. In response, a biracial committee—including five of the petitioners and several of the respondents—was organized and held a series of unproductive meetings. The black members of the committee then prepared a further petition entitled "Demands for Racial Justice." This petition *899 was presented for approval at the local NAACP meeting conducted on the first Tuesday evening in March. As described by the chancellor, "the approximately 500 people present voted their approval unanimously."[23] On March 14, 1966, the petition was presented to public officials of Port Gibson and Claiborne County. The petition included 19 specific demands. It called for the desegregation of all public schools and public facilities, the hiring of black policemen, public improvements in black residential areas, selection of blacks for jury duty, integration of bus stations so that blacks could use all facilities, and an end to verbal abuse by law enforcement officers. It stated that "Negroes are not to be addressed by terms as `boy,' `girl,' `shine,' `uncle,' or any other offensive term, but as `Mr.,' `Mrs.,' or `Miss,' as is the case with other citizens."[24] As described by the chancellor, the purpose of the demands "was to gain equal rights and opportunities for Negro citizens."[25] The petition further provided that black leaders hoped it would not be necessary to resort to the "selective buying campaigns" that had been used in other communities.[26] On March 23, two demands that had been omitted *900 from the original petition were added, one of which provided: "All stores must employ Negro clerks and cashiers."[27] This supplemental petition stated that a response was expected by April 1. A favorable response was not received. On April 1, 1966, the Claiborne County NAACP conducted another meeting at the First Baptist Church. As described by the chancellor: "Several hundred black people attended the meeting, and the purpose was to decide what action should be taken relative to the twenty-one demands. Speeches were made by Evers and others, and a vote was taken. It was the unanimous vote of those present, without dissent, to place a boycott on the white merchants of Port Gibson and Claiborne County." App. to Pet. for Cert. 15b. The boycott was underway.[28] In September 1966, Mississippi Action for Progress, Inc. (MAP), was organized to develop community action programs in 20 counties of Mississippi. One of MAP's programs— known as Head Start—involved the use of federal funds to provide food for young children. Originally, food purchases in Claiborne County were made alternately from white-owned and black-owned stores, but in February 1967 the directors *901 of MAP authorized their Claiborne County representatives to purchase food only from black-owned stores. Since MAP bought substantial quantities of food, the consequences of this decision were significant. A large portion of the trial was devoted to the question whether MAP participated in the boycott voluntarily and—under the chancellor's theories of liability—could be held liable for the resulting damages. The chancellor found MAP a willing participant, noting that "during the course of the trial, the only Head Start cooks called to the witness stand testified that they refused to go into white-owned stores to purchase groceries for the children in the program for the reason that they were in favor of the boycott and wanted to honor it."[29] Several events occurred during the boycott that had a strong effect on boycott activity. On February 1, 1967, Port Gibson employed its first black policeman. During that month, the boycott was lifted on a number of merchants. On April 4, 1968, Dr. Martin Luther King, Jr., was assassinated in Memphis. The chancellor found that this tragic event had a depressing effect on the black community and, as a result, the boycott "tightened."[30] *902 One event that occurred during the boycott is of particular significance. On April 18, 1969, a young black man named Roosevelt Jackson was shot and killed during an encounter with two Port Gibson police officers.[31] Large crowds immediately gathered, first at the hospital and later at the church. Tension in the community neared a breaking point. The local police requested reinforcements from the State Highway Patrol and sporadic acts of violence ensued. The Mayor and Board of Aldermen placed a dawn-to-dusk curfew into effect. On April 19, Charles Evers spoke to a group assembled at the First Baptist Church and led a march to the courthouse where he demanded the discharge of the entire Port Gibson Police Force. When this demand was refused, the boycott was reimposed on all white merchants. One of Evers' speeches on this date was recorded by the police. In that speech—significant portions of which are reproduced in an Appendix to this opinion—Evers stated that boycott violators would be "disciplined" by their own people and warned that the Sheriff could not sleep with boycott violators at night. On April 20, Aaron Henry came to Port Gibson, spoke to a large gathering, urged moderation, and joined local leaders in a protest march and a telegram sent to the Attorney General of the United States. On April 21, Evers gave another speech to several hundred people, in which he again called for a discharge of the police force and for a total boycott of all white-owned businesses in Claiborne County. Although this speech was not recorded, the chancellor found that Evers stated: "If we catch any of you going in any of them racist stores, we're gonna break your damn neck."[32] As noted, this lawsuit was filed in October 1969. No significant events concerning the boycott occurred after that *903 time. The chancellor identified no incident of violence that occurred after the suit was brought. He did identify, however, several significant incidents of boycott-related violence that occurred some years earlier. Before describing that evidence, it is appropriate to note that certain practices generally used to encourage support for the boycott were uniformly peaceful and orderly. The few marches associated with the boycott were carefully controlled by black leaders. Pickets used to advertise the boycott were often small children. The police made no arrests—and no complaints are recorded—in connection with the picketing and occasional demonstrations supporting the boycott. Such activity was fairly irregular, occurred primarily on weekends, and apparently was largely discontinued around the time the lawsuit was filed.[33] One form of "discipline" of black persons who violated the boycott appears to have been employed with some regularity. Individuals stood outside of boycotted stores and identified those who traded with the merchants. Some of these "store watchers" were members of a group known as the "Black Hats" or the "Deacons."[34] The names of persons who violated *904 the boycott were read at meetings of the Claiborne County NAACP and published in a mimeographed paper entitled the "Black Times." As stated by the chancellor, those persons "were branded as traitors to the black cause, called demeaning names, and socially ostracized for merely trading with whites."[35] The chancellor also concluded that a quite different form of discipline had been used against certain violators of the boycott. He specifically identified 10 incidents that "strikingly" revealed the "atmosphere of fear that prevailed among blacks from 1966 until 1970."[36] The testimony concerning four incidents convincingly demonstrates that they occurred because the victims were ignoring the boycott. In two cases, shots were fired at a house; in a third, a brick was thrown through a windshield; in the fourth, a flower garden was damaged. None of these four victims, however, ceased trading with white merchants.[37] *905 The evidence concerning four other incidents is less clear, but again it indicates that an unlawful form of discipline was applied to certain boycott violators. In April 1966, a black couple named Cox asked for a police escort to go into a white-owned dry cleaner and, a week later, shots were fired into their home. In another incident, an NAACP member took a bottle of whiskey from a black man who had purchased it in a white-owned store. The third incident involved a fight between a commercial fisherman who did not observe the boycott and four men who "grabbed me and beat me up and took a gun off me."[38] In a fourth incident, described only in hearsay testimony, a group of young blacks apparently pulled down the overalls of an elderly brick mason known as "Preacher White" and spanked him for not observing the boycott.[39] Two other incidents discussed by the chancellor are of less certain siguificance. Jasper Coleman testified that he participated *906 in an all-night poker game at a friend's house on Christmas Eve 1966. The following morning he discovered that all four tires of his pickup truck had been slashed with a knife. Coleman testified that he did not participate in the boycott but was never threatened for refusing to do so. Record 13791. Finally, Willie Myles testified that he and his wife received a threatening phone call and that a boy on a barge told him that he would be whipped for buying his gas at the wrong place. Five of these incidents occurred in 1966. The other five are not dated. The chancellor thus did not find that any act of violence occurred after 1966.[40] In particular, he made no reference to any act of violence or threat of violence—with the exception, of course, of Charles Evers' speeches—after the shootings of Martin Luther King, Jr., in 1968 or Roosevelt Jackson in 1969. The chancellor did not find that any of the incidents of violence was discussed at the Tuesday evening meetings of the NAACP.[41] II This Court's jurisdiction to review the judgment of the Mississippi Supreme Court is, of course, limited to the federal *907 questions necessarily decided by that court.[42] We consider first whether petitioners' activities are protected in any respect by the Federal Constitution and, if they are, what effect such protection has on a lawsuit of this nature. A The boycott of white merchants at issue in this case took many forms. The boycott was launched at a meeting of a local branch of the NAACP attended by several hundred persons. Its acknowledged purpose was to secure compliance by both civic and business leaders with a lengthy list of demands for equality and racial justice. The boycott was supported by speeches and nonviolent picketing. Participants repeatedly encouraged others to join in its cause. Each of these elements of the boycott is a form of speech or conduct that is ordinarily entitled to protection under the First and Fourteenth Amendments.[43] The black citizens named as defendants in this action banded together and collectively expressed their dissatisfaction with a social structure that had denied them rights to equal treatment and respect. As we so recently acknowledged in Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 294, "the practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process." We recognized that "by collective effort individuals can make their views known, when, individually, their voices would be faint *908 or lost." Ibid. In emphasizing "the importance of freedom of association in guaranteeing the right of people to make their voices heard on public issues," id., at 295, we noted the words of Justice Harlan, writing for the Court in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460: "Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly." THE CHIEF JUSTICE stated for the Court in Citizens Against Rent Control: "There are, of course, some activities, legal if engaged in by one, yet illegal if performed in concert with others, but political expression is not one of them." 454 U.S., at 296. The right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected. In De Jonge v. Oregon, 299 U.S. 353, the Court unanimously held that an individual could not be penalized simply for assisting in the conduct of an otherwise lawful meeting held under the auspices of the Communist Party, an organization that advocated "criminal syndicalism." After reviewing the rights of citizens "to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances," id., at 364, Chief Justice Hughes, writing for the Court, stated: "It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices *909 under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge." Id., at 365. Of course, the petitioners in this case did more than assemble peaceably and discuss among themselves their grievances against governmental and business policy. Other elements of the boycott, however, also involved activities ordinarily safeguarded by the First Amendment. In Thornhill v. Alabama, 310 U.S. 88, the Court held that peaceful picketing was entitled to constitutional protection, even though, in that case, the purpose of the picketing "was concededly to advise customers and prospective customers of the relationship existing between the employer and its employees and thereby to induce such customers not to patronize the employer." Id., at 99. Cf. Chauffeurs v. Newell, 356 U.S. 341. In Edwards v. South Carolina, 372 U.S. 229, we held that a peaceful march and demonstration was protected by the rights of free speech, free assembly, and freedom to petition for a redress of grievances. Speech itself also was used to further the aims of the boycott. Nonparticipants repeatedly were urged to join the common cause, both through public address and through personal solicitation. These elements of the boycott involve speech in its most direct form. In addition, names of boycott violators were read aloud at meetings at the First Baptist Church and published in a local black newspaper. Petitioners admittedly sought to persuade others to join the boycott *910 through social pressure and the "threat" of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action. As Justice Rutledge, in describing the protection afforded by the First Amendment, explained: "It extends to more than abstract discussion, unrelated to action. The First Amendment is a charter for government, not for an institution of learning. `Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts." Thomas v. Collins, 323 U.S. 516, 537. In Organization for a Better Austin v. Keefe, 402 U.S. 415, the Court considered the validity of a prior restraint on speech that invaded the "privacy" of the respondent. Petitioner, a racially integrated community organization, charged that respondent, a real estate broker, had engaged in tactics known as "blockbusting" or "panic peddling."[44] Petitioner asked respondent to sign an agreement that he would not solicit property in their community. When he refused, petitioner distributed leaflets near respondent's home that were critical of his business practices.[45] A state court enjoined petitioner from distributing the leaflets; an appellate court affirmed on the ground that the alleged activities were coercive and intimidating, rather than informative, and therefore not entitled to First Amendment protection. Id., at 418. This Court reversed. THE CHIEF JUSTICE explained: "This Court has often recognized that the activity of peaceful pamphleteering is a form of communication protected *911 by the First Amendment. E. g., Martin v. City of Struthers, 319 U.S. 141 (1943); Schneider v. State, 308 U.S. 147 (1939); Lovell v. Griffin, 303 U.S. 444 (1938). In sustaining the injunction, however, the Appellate Court was apparently of the view that petitioners' purpose in distributing their literature was not to inform the public, but to `force' respondent to sign a no-solicitation agreement. The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent's conduct by their activities; this is not fundamentally different from the function of a newspaper. See Schneider v. State, supra; Thornhill v. Alabama, 310 U.S. 88 (1940). Petitioners were engaged openly and vigorously in making the public aware of respondent's real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability." Id., at 419. In dissolving the prior restraint, the Court recognized that "offensive" and "coercive" speech was nevertheless protected by the First Amendment.[46] In sum, the boycott clearly involved constitutionally protected activity. The established elements of speech, assembly, association, and petition, "though not identical, are inseparable." Thomas v. Collins, supra, at 530. Through exercise of these First Amendment rights, petitioners sought to bring about political, social, and economic change. *912 Through speech, assembly, and petition—rather than through riot or revolution—petitioners sought to change a social order that had consistently treated them as second-class citizens. The presence of protected activity, however, does not end the relevant constitutional inquiry. Governmental regulation that has an incidental effect on First Amendment freedoms may be justified in certain narrowly defined instances. See United States v. O'Brien, 391 U.S. 367.[47] A nonviolent and totally voluntary boycott may have a disruptive effect on local economic conditions. This Court has recognized the strong governmental interest in certain forms of economic regulation, even though such regulation may have an incidental effect on rights of speech and association. See Giboney v. Empire Storage & Ice Co., 336 U.S. 490; NLRB v. Retail Store Employees, 447 U.S. 607. The right of business entities to "associate" to suppress competition may be curtailed. National Society of Professional Engineers v. United States, 435 U.S. 679. Unfair trade practices may be restricted. Secondary boycotts and picketing by labor unions may be prohibited, as part of "Congress' striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife." NLRB v. Retail Store Employees, supra, at 617-618 (BLACKMUN, J., concurring in part). See Longshoremen v. Allied International, Inc., 456 U.S. 212, 222-223, and n. 20. *913 While States have broad power to regulate economic activity, we do not find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case. This Court has recognized that expression on public issues "has always rested on the highest rung of the hierarchy of First Amendment values." Carey v. Brown, 447 U.S. 455, 467. "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74-75. There is a "profound national commitment" to the principle that "debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 270. In Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, the Court considered whether the Sherman Act prohibited a publicity campaign waged by railroads against the trucking industry that was designed to foster the adoption of laws destructive of the trucking business, to create an atmosphere of distaste for truckers among the general public, and to impair the relationships existing between truckers and their customers. Noting that the "right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms," the Court held that the Sherman Act did not proscribe the publicity campaign. Id., at 137-138. The Court stated that it could not see how an intent to influence legislation to destroy the truckers as competitors "could transform conduct otherwise lawful into a violation of the Sherman Act." Id., at 138-139. Noting that the right of the people to petition their representatives in government "cannot properly be made to depend on their intent in doing so," the Court held that "at least insofar as the railroads' campaign was directed toward obtaining governmental action, its legality was not at all affected by any anticompetitive purpose it may have had." Id., at 139-140. This conclusion was not changed by the fact that the railroads' anticompetitive purpose produced an anticompetitive *914 effect; the Court rejected the truckers' Sherman Act claim despite the fact that "the truckers sustained some direct injury as an incidental effect of the railroads' campaign to influence governmental action." Id., at 143. It is not disputed that a major purpose of the boycott in this case was to influence governmental action. Like the railroads in Noerr, the petitioners certainly foresaw—and directly intended—that the merchants would sustain economic injury as a result of their campaign. Unlike the railroads in that case, however, the purpose of petitioners' campaign was not to destroy legitimate competition. Petitioners sought to vindicate rights of equality and of freedom that lie at the heart of the Fourteenth Amendment itself. The right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself.[48] In upholding an injunction against the state supersedeas bonding requirement in this case, Judge Ainsworth of the Court of Appeals for the Fifth Circuit cogently stated: "At the heart of the Chancery Court's opinion lies the belief that the mere organization of the boycott and every activity undertaken in support thereof could be subject to judicial prohibition under state law. This *915 view accords insufficient weight to the First Amendment's protection of political speech and association. There is no suggestion that the NAACP, MAP or the individual defendants were in competition with the white businesses or that the boycott arose from parochial economic interests. On the contrary, the boycott grew out of a racial dispute with the white merchants and city government of Port Gibson and all of the picketing, speeches, and other communication associated with the boycott were directed to the elimination of racial discrimination in the town. This differentiates this case from a boycott organized for economic ends, for speech to protest racial discrimination is essential political speech lying at the core of the First Amendment." Henry v. First National Bank of Clarksdale, 595 F.2d 291, 303 (1979) (footnote omitted). We hold that the nonviolent elements of petitioners' activities are entitled to the protection of the First Amendment.[49] B The Mississippi Supreme Court did not sustain the chancellor's imposition of liability on a theory that state law prohibited a nonviolent, politically motivated boycott. The fact that such activity is constitutionally protected, however, imposes a special obligation on this Court to examine critically the basis on which liability was imposed.[50] In particular, we *916 consider here the effect of our holding that much of petitioners' conduct was constitutionally protected on the ability of the State to impose liability for elements of the boycott that were not so protected.[51] The First Amendment does not protect violence. "Certainly violence has no sanctuary in the First Amendment, and the use of weapons, gunpowder, and gasoline may not constitutionally masquerade under the guise of `advocacy.'" Samuels v. Mackell, 401 U.S. 66, 75 (Douglas, J., concurring). Although the extent and significance of the violence in this case are vigorously disputed by the parties, there is no question that acts of violence occurred. No federal rule of law restricts a State from imposing tort liability for business losses that are caused by violence and by threats of violence. When such conduct occurs in the context of constitutionally protected activity, however, "precision of regulation" is demanded. NAACP v. Button, 371 U.S. 415, 438.[52] Specifically, the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to *917 damages liability and on the persons who may be held accountable for those damages. In Mine Workers v. Gibbs, 383 U.S. 715, the Court considered a case in many respects similar to the one before us. The case grew out of the rivalry between the United Mine Workers (UMW) and the Southern Labor Union (SLU) over representation of workers in the southern Appalachian coal fields. A coal company laid off 100 miners of UMW's Local 5881 when it closed one of its mines. That same year, a subsidiary of the coal company hired Gibbs as mine superintendent to attempt to open a new mine on nearby property through use of members of the SLU. Gibbs also received a contract to haul the mine's coal to the nearest railroad loading point. When he attempted to open the mine, however, he was met by armed members of Local 5881 who threatened Gibbs and beat an SLU organizer. These incidents occurred on August 15 and 16. Thereafter, there was no further violence at the mine site and UMW members maintained a peaceful picket line for nine months. No attempts to open the mine were made during that period. Gibbs lost his job as superintendent and never began performance of the haulage contract. Claiming to have suffered losses as a result of the union's concerted plan against him, Gibbs filed suit in federal court against the international UMW. He alleged an unlawful secondary boycott under the federal labor laws and, as a pendent state-law claim, "an unlawful conspiracy and an unlawful boycott aimed at him ... to maliciously, wantonly and willfully interfere with his contract of employment and with his contract of haulage." Id., at 720. The federal claim was dismissed on the ground that the dispute was "primary" and therefore not cognizable under the federal prohibition of secondary labor boycotts. Damages were awarded against the UMW, however, on the state claim of interference with an employment relationship. This Court reversed. The Court found that the pleadings, arguments of counsel, and jury instructions had not adequately *918 defined the compass within which damages could be awarded under state law. The Court noted that it had "consistently recognized the right of States to deal with violence and threats of violence appearing in labor disputes" and had sustained "a variety of remedial measures against the contention that state law was pre-empted by the passage of federal labor legislation." Id., at 729. To accommodate federal labor policy, however, the Court in Gibbs held: "the permissible scope of state remedies in this area is strictly confined to the direct consequences of such [violent] conduct, and does not include consequences resulting from associated peaceful picketing or other union activity." Ibid. The Court noted that in Construction Workers v. Laburnum Construction Corp., 347 U.S. 656, damages were restricted to those directly and proximately caused by wrongful conduct chargeable to the defendants. "`Thus there [was] nothing in the measure of damages to indicate that state power was exerted to compensate for anything more than the direct consequences of the violent conduct.'" 383 U.S., at 730 (quoting San Diego Building Trades Council v. Garmon, 359 U.S. 236, 249, n. 6). The careful limitation on damages liability imposed in Gibbs resulted from the need to accommodate state law with federal labor policy. That limitation is no less applicable, however, to the important First Amendment interests at issue in this case. Petitioners withheld their patronage from the white establishment of Claiborne County to challenge a political and economic system that had denied them the basic rights of dignity and equality that this country had fought a Civil War to secure. While the State legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity. Only those losses proximately caused by unlawful conduct may be recovered. The First Amendment similarly restricts the ability of the State to impose liability on an individual solely because of his *919 association with another. In Scales v. United States, 367 U.S. 203, 229, the Court noted that a "blanket prohibition of association with a group having both legal and illegal aims" would present "a real danger that legitimate political expression or association would be impaired." The Court suggested that to punish association with such a group, there must be "clear proof that a defendant `specifically intend[s] to accomplish [the aims of the organization] by resort to violence.'" Ibid. (quoting Noto v. United States, 367 U.S. 290, 299).[53] Moreover, in Noto v. United States the Court emphasized that this intent must be judged "according to the strictest law,"[54] for "otherwise there is a danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share." Id., at 299-300. In Healy v. James, 408 U.S. 169, the Court applied these principles in a noncriminal context. In that case the Court held that a student group could not be denied recognition at a state-supported college merely because of its affiliation with a national organization associated with disruptive and violent campus activity. It noted that "the Court has consistently disapproved governmental action imposing criminal sanctions or denying rights and privileges solely because of a citizen's association with an unpopular organization." Id., at 185-186. The Court stated that "it has been established that `guilt by association alone, without [establishing] that an individual's association poses the threat feared by the Goverument,' is an impermissible basis upon which to deny First Amendment rights." Id., at 186 (quoting United States v. Robel, 389 U.S. 258, 265). "The government has the burden *920 of establishing a knowing affiliation with an organization possessing unlawful aims and goals, and a specific intent to further those illegal aims." 408 U.S., at 186 (footnote omitted).[55] The principles announced in Scales, Noto, and Healy are relevant to this case. Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.[56] "In this sensitive field, the State may not employ `means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' Shelton v. Tucker, 364 U.S. 479, 488 (1960)." Carroll v. Princess Anne, 393 U.S. 175, 183-184. III The chancellor awarded respondents damages for all business losses that were sustained during a 7-year period beginning in 1966 and ending December 31, 1972.[57] With the exception *921 of Aaron Henry, all defendants were held jointly and severally liable for these losses. The chancellor's findings were consistent with his view that voluntary participation in the boycott was a sufficient basis on which to impose liability. The Mississippi Supreme Court properly rejected that theory; it nevertheless held that petitioners were liable for all damages "resulting from the boycott."[58] In light of the principles set forth above, it is evident that such a damages award may not be sustained in this case. The opinion of the Mississippi Supreme Court itself demonstrates that all business losses were not proximately caused by the violence and threats of violence found to be present. The court stated that "coercion, intimidation, and threats" formed "part of the boycott activity" and "contributed to its almost complete success."[59] The court broadly asserted—without differentiation—that "`[i]ntimidation, threats, social ostracism, vilification, and traduction'" were devices used by the defendants to effectuate the boycott.[60] The court repeated the chancellor's finding that "the volition of many black persons was overcome out of sheer fear."[61] These findings are inconsistent with the court's imposition of all damages "resulting from the boycott." To the extent that the court's judgment rests on the ground that "many" black citizens were "intimidated" by "threats" of "social ostracism, vilification, and traduction," it is flatly inconsistent with the First Amendment. The ambiguous findings of the Mississippi Supreme Court are inadequate to assure the "precision of regulation" demanded by that constitutional provision. *922 The record in this case demonstrates that all of respondents' losses were not proximately caused by violence or threats of violence. As respondents themselves stated at page 12 of their brief in the Mississippi Supreme Court: "Most of the witnesses testified that they voluntarily went along with the NAACP and their fellow black citizens in honoring and observing the boycott because they wanted the boycott." This assessment is amply supported by the record.[62] It is indeed inconceivable that a boycott launched by the unanimous vote of several hundred persons succeeded solely through fear and intimidation. Moreover, the fact that the boycott "intensified" following the shootings of Martin Luther King, Jr., and Roosevelt Jackson demonstrates that factors other than force and violence (by the petitioners) figured *923 prominently in the boycott's success. The chancellor made no finding that any act of violence occurred after 1966. While the timing of the acts of violence was not important to the chancellor's imposition of liability, it is a critical factor under the narrower rationale of the Mississippi Supreme Court. That court has completely failed to demonstrate that business losses suffered in 1972—three years after this lawsuit was filed—were proximately caused by the isolated acts of violence found in 1966.[63] It is impossible to conclude that state power has not been exerted to compensate respondents for the direct consequences of nonviolent, constitutionally protected activity. This case is not like Milk Wagon Drivers v. Meadowmoor Dairies, Inc., 312 U.S. 287, in which the Court held that the presence of violence justified an injunction against both violent and nonviolent activity.[64] The violent conduct present in that case was pervasive.[65] The Court in Meadownoor stated that "utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force." Id., at 293. The Court emphasized, however: *924 "Still it is of prime importance that no constitutional freedom, least of all the guarantees of the Bill of Rights, be defeated by insubstantial findings of fact screening reality. That is why this Court has the ultimate power to search the records in the state courts where a claim of constitutionality is effectively made. And so the right of free speech cannot be denied by drawing from a trivial rough incident or a moment of animal exuberance the conclusion that otherwise peaceful picketing has the taint of force." Ibid. Such "insubstantial findings" were not present in Meadowmoor. But in this case, the Mississippi Supreme Court has relied on isolated acts of violence during a limited period to uphold respondents' recovery of all business losses sustained over a 7-year span. No losses are attributed to the voluntary participation of individuals determined to secure "justice and equal opportunity."[66] The court's judgment "screens reality" and cannot stand.[67] Respondents' supplemental brief also demonstrates that on the present record no judgment may be sustained against most of the petitioners. Regular attendance and participation at the Tuesday meetings of the Claiborne County Branch of the NAACP is an insufficient predicate on which to impose liability. The chancellor's findings do not suggest that any illegal conduct was authorized, ratified, or even discussed at any of the meetings. The Sheriff testified that he was kept *925 informed of what transpired at the meetings; he made no reference to any discussion of unlawful activity.[68] To impose liability for presence at weekly meetings of the NAACP would—ironically—not even constitute "guilt by association," since there is no evidence that the association possessed unlawful aims. Rather, liability could only be imposed on a "guilt for association" theory. Neither is permissible under the First Amendment.[69] Respondents also argue that liability may be imposed on individuals who were either "store watchers" or members of the "Black Hats." There is nothing unlawful in standing outside a store and recording names. Similarly, there is nothing unlawful in wearing black hats, although such apparel may cause apprehension in others. As established above, mere association with either group—absent a specific intent to further an unlawful aim embraced by that group—is *926 an insufficient predicate for liability. At the same time, the evidence does support the conclusion that some members of each of these groups engaged in violence or threats of violence. Unquestionably, these individuals may be held responsible for the injuries that they caused; a judgment tailored to the consequences of their unlawful conduct may be sustained. Respondents have sought separately to justify the judgment entered against Charles Evers and the national NAACP, As set forth by the chancellor, Evers was specially connected with the boycott in four respects. First, Evers signed the March 23 supplemental demand letter and unquestionably played the primary leadership role in the organization of the boycott. Second, Evers participated in negotiations with MAP and successfully convinced MAP to abandon its practice of purchasing food alternately from white-owned and black-owned stores. Third, he apparently presided at the April 1, 1966, meeting at which the vote to begin the boycott was taken; he delivered a speech to the large audience that was gathered on that occasion. See n. 28, supra. Fourth, Evers delivered the speeches on April 19 and 21, 1969, which we have discussed previously. See supra, at 902; Appendix to this opinion. For the reasons set forth above, liability may not be imposed on Evers for his presence at NAACP meetings or his active participation in the boycott itself. To the extent that Evers caused respondents to suffer business losses through his organization of the boycott, his emotional and persuasive appeals for unity in the joint effort, or his "threats" of vilification or social ostracism, Evers' conduct is constitutionally protected and beyond the reach of a damages award. Respondents point to Evers' speeches, however, as justification for the chancellor's damages award. Since respondents would impose liability on the basis of a public address—which predominantly contained highly charged political rhetoric *927 lying at the core of the First Amendment—we approach this suggested basis of liability with extreme care. There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats. While many of the comments in Evers' speeches might have contemplated "discipline" in the permissible form of social ostracism, it cannot be denied that references to the possibility that necks would be broken and to the fact that the Sheriff could not sleep with boycott violators at night implicitly conveyed a sterner message. In the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence whether or not improper discipline was specifically intended. It is clear that "fighting words"—those that provoke immediate violence—are not protected by the First Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568, 572. Similarly, words that create an immediate panic are not entitled to constitutional protection. Schenck v. United States, 249 U.S. 47.[70] This Court has made clear, however, that mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment. In Brandenburg v. Ohio, 395 U.S. 444, we reversed the conviction of a Ku Klux Klan leader for threatening "revengeance" if the "suppression" of the white race continued; we relied on *928 "the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Id., at 447. See Noto v. United States, 367 U. S., at 297-298 ("the mere abstract teaching ... of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action"). See also Whitney v. California, 274 U.S. 357, 372 (Brandeis, J., concurring). The emotionally charged rhetoric of Charles Evers' speeches did not transcend the bounds of protected speech set forth in Brandenburg. The lengthy addresses generally contained an impassioned plea for black citizens to unify, to support and respect each other, and to realize the political and economic power available to them. In the course of those pleas, strong language was used. If that language had been followed by acts of violence, a substantial question would be presented whether Evers could be held liable for the consequences of that unlawful conduct. In this case, however—with the possible exception of the Cox incident— the acts of violence identified in 1966 occurred weeks or months after the April 1, 1966, speech; the chancellor made no finding of any violence after the challenged 1969 speech. Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. To rule otherwise would ignore the "profound national commitment" that "debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U. S., at 270.[71] *929 For these reasons, we conclude that Evers' addresses did not exceed the bounds of protected speech. If there were other evidence of his authorization of wrongful conduct, the references to discipline in the speeches could be used to corroborate that evidence. But any such theory fails for the simple reason that there is no evidence—apart from the speeches themselves—that Evers authorized, ratified, or directly threatened acts of violence.[72] The chancellor's findings are not sufficient to establish that Evers had a duty to "repudiate" the acts of violence that occurred.[73] The findings are constitutionally inadequate to support the damages judgment against him. The liability of the NAACP derived solely from the liability of Charles Evers.[74] The chancellor found: "The national NAACP was well-advised of Evers' actions, and it had the option of repudiating his acts or ratifying them. It never repudiated those acts, and therefore, it is deemed by this Court to have affirmed them." App. to Pet. for Cert. 42b-43b. *930 Of course, to the extent that Charles Evers' acts are insufficient to impose liability upon him, they may not be used to impose liability on his principal. On the present record, however, the judgment against the NAACP could not stand in any event. The associational rights of the NAACP and its members have been recognized repeatedly by this Court.[75] The NAACP—like any other organization—of course may be held responsible for the acts of its agents throughout the country that are undertaken within the scope of their actual or apparent authority.[76] Cf. American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556. Moreover, the NAACP may be found liable for other conduct of which it had knowledge and specifically ratified. The chancellor made no finding that Charles Evers or any other NAACP member had either actual or apparent authority to commit acts of violence or to threaten violent conduct. The evidence in the record suggests the contrary. Aaron Henry, President of the Mississippi State Conference of the NAACP and a member of the Board of Directors of the national organization, testified that the statements attributed to Evers were directly contrary to NAACP policy. Record 4930.[77] Similarly, there is no evidence that the NAACP ratified—or *931 even had specific knowledge of—any of the acts of violence or threats of discipline associated with the boycott. Henry testified that the NAACP never authorized, and never considered taking, any official action with respect to the boycott. Id., at 4896. The NAACP supplied no financial aid to the boycott. Id., at 4940. The chancellor made no finding that the national organization was involved in any way in the boycott.[78] To impose liability without a finding that the NAACP authorized—either actually or apparently—or ratified unlawful conduct would impermissibly burden the rights of political association that are protected by the First Amendment. As Justice Douglas noted in NAACP v. Overstreet, 384 U.S. 118, dissenting from a dismissal of a writ of certiorari found to have been improvidently granted: "To equate the liability of the national organization with that of the Branch in the absence of any proof that the national authorized or ratified the misconduct in question could ultimately destroy it. The rights of political association are fragile enough without adding the *932 additional threat of destruction by lawsuit. We have not been slow to recognize that the protection of the First Amendment bars subtle as well as obvious devices by which political association might be stifled. See Bates v. Little Rock, 361 U.S. 516, 523. Thus we have held that forced disclosure of one's political associations is, at least in the absence of a compelling state interest, inconsistent with the First Amendment's guaranty of associational privacy. E. g., DeGregory v. New Hampshire, 383 U.S. 825; Gibson v. Florida Legislative Comm., 372 U.S. 539, 543-546; Shelton v. Tucker, 364 U.S. 479; N. A. A. C. P. v. Alabama, 357 U.S. 449, 462-463. Recognizing that guilt by association is a philosophy alien to the traditions of a free society (see Schware v. Board of Bar Examiners, 353 U.S. 232, 245-246, and the First Amendment itself, we have held that civil or criminal disabilities may not be imposed on one who joins an organization which has among its purposes the violent overthrow of the Government, unless the individual joins knowing of the organization's illegal purposes (Wieman v. Updegraff, 344 U.S. 183) and with the specific intention to further those purposes. See Elfbrandt v. Russell, [384 U. S., at] 11; Aptheker v. Secretary of State, 378 U.S. 500." Id., at 122. The chancellor's findings are not adequate to support the judgment against the NAACP. IV In litigation of this kind the stakes are high. Concerted action is a powerful weapon. History teaches that special dangers are associated with conspiratorial activity.[79] And *933 yet one of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means.[80] At times the difference between lawful and unlawful collective action may be identified easily by reference to its purpose. In this case, however, petitioners' ultimate objectives were unquestionably legitimate. The charge of illegality— like the claim of constitutional protection—derives from the means employed by the participants to achieve those goals. The use of speeches, marches, and threats of social ostracism cannot provide the basis for a damages award. But violent conduct is beyond the pale of constitutional protection. The taint of violence colored the conduct of some of the petitioners. They, of course, may be held liable for the consequences of their violent deeds. The burden of demonstrating that it colored the entire collective effort, however, is not satisfied by evidence that violence occurred or even that violence contributed to the success of the boycott. A massive and prolonged effort to change the social, political, and economic structure of a local environment cannot be characterized as a violent conspiracy simply by reference to the ephemeral consequences of relatively few violent acts. Such a characterization must be supported by findings that adequately disclose the evidentiary basis for concluding that specific parties agreed to use unlawful means, that carefully *934 identify the impact of such unlawful conduct, and that recognize the importance of avoiding the imposition of punishment for constitutionally protected activity. The burden of demonstrating that fear rather than protected conduct was the dominant force in the movement is heavy. A court must be wary of a claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless freestanding trees. The findings of the chancellor, framed largely in the light of two legal theories rejected by the Mississippi Supreme Court, are constitutionally insufficient to support the judgment that all petitioners are liable for all losses resulting from the boycott. The judgment is reversed. The case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE REHNQUIST concurs in the result. JUSTICE MARSHALL took no part in the consideration or decision of this case. APPENDIX TO OPINION OF THE COURT Portions of speech delivered by Charles Evers on April 19, 1969 (Record 1092-1108): "Thank you very much. We want our white friends here to know what we tell them happens to be so. Thank you for having the courage to walk down those streets with us. We thank you for letting our white brethren know that guns and bullets ain't gonna stop us. (No) (No) We thank you for letting our white brothers know that Port Gibson ain't none of their town. (Amen) (Applause) That Port Gibson is all of our town. (Applause) That black folks, red folks, Chinese and Japanese alike (Yeah) (That's right.), that we are going to have our share. (Yeah, we are.) . . . . . *935 "We are going to beat you because we know you can't trick us no more. (yea) You are not going to be able to fool us by getting somebody to give us a drink of whiskey no more. (Applause) You ain't gonna be able to fool us by somebody giving us a few dollars no more. (Applause) We are gonna take your money and drink with you and then we're gonna (Applause) vote against you. Then we are going to elect a sheriff in this county and a sheriff that is responsible, that won't have to run and grab the telephone and call up the blood-thirsty highway patrol when he gets ready (Yeah) to come in and beat innocent folks down to the ground for no cause. (That's right) (Applause) (Boo) We are going to elect a sheriff that can call his deputies and represent black leaders in the community and stop whatever problem there is. (Yeah) (That's right.) "Then we are going to do more than that. The white merchants of this town are so wrapped up in the power structure here, since you love your Police Department so well, since you support them so well (Yeah), we are going to let them buy your dirty clothes and your filthy, rotten groceries. "Oh, no, white folks, we ain't going to shoot you with no bullet. (That's right.) We are going to shoot you with our ballots and with our bucks. (Yea) (That's right.) We are going to take away from you the thing that you have had over us all these years. (Yeah) Political power and economic power. While you kill our brothers and our sisters and rape our wives and our friends. (Yeah) You're guilty. You're guilty because you don't care a thing about anybody. (Yes.) And when you go and let a big, black burly nigger like you get on the police force (Yea) go down and grab another black brother's arm and hold it while a white racist stole him from us, and he's a liar if he says he didn't hold him. . . . . . "We mean what we are saying. We are not playing. (Right) We better not even think one of us is black. You better not even be caught near one of these stores. (Applause) *936 "We don't want you caught in Piggly-Wiggly. You remember how he grinned at us four years ago? (Yeah) You know how when he took office he grinned at us? (Yeah) He ain't hired nobody yet. (That's right) (No) And you know old Jitney Jungle down there with those funny letters down on the end? (That's right) (Applause) He haven't hired nobody in there yet. (No) Do you know poor ole M & M or whatever it stands for, mud and mush, I guess. (Applause) They're out here on the highway and they haven't hired none of us yet. "Do you know Ellis who had a part-time boy all his life? He ain't hired nobody, is he, yet? (No) Then we got ole Stampley, and ninety-nine and three-fourths of his sales are black folks business. He got the nerve to tell me he ain't gonna put no nigger ringing his cash register. I got news for you, Brother Stampley. You can ring it your damn self. (Extra loud applause.) I want some of you fat cats after this meeting who wants three of our young boys who ain't a'scar'd of white folks (Applause) (Me) and we want you that's willing to follow the rules now to go down by Brother Stampley's and serve notice on him with our placards that we ain't coming no more. "Then we are going to tell all the young men that drive Piggly-Wiggly trucks now (Yeah) (Be careful, Son.) because the soul brothers and the spirit is watching you. (Extra loud applause.) "All right, Brother Wolf, you're next. (Applause) We got a couple of 'em to come down by Brother Wolf's. We mean business, white folks. We ain't gonna shoot you all, we are going to hit you where it hurts most. (In the pocket-book) (Applause) In the pocketbook and in the ballot box. (Applause) We may as well tell our friends at Alcorn to stay away from up here. (Yea) Now, you say, `What's wrong with you niggers?' I'll tell you what is wrong with us niggers; We are tired of you white folks, you racists and you bigots mistreating us. (Yeah) We are tired of paying you to *937 deny us the right to even exist. (Tell 'em about it.) And we ain't coming back, white folks. (We ain't.) "You all put a curfew on us at eight o'clock tonight. We are going to do you better than that. We are going to leave at one-thirty. (Loud applause) We are going to leave at one-thirty and we ain't coming back, white folks. . . . . . "We are going to have Brother McCay; we are going to have our newly elected mayor who we elected, we are going to have him around here, too. Come on back, my dear friend. He say, `Naw, brother, we ain't coming.' `Have you got rid of all those bigots you got on your police force?' `No.' `Have you hired Negroes in all them stores?' `No.' `Well, we ain't coming back.' (Right) That's all we gonna do. You know, what they don't realize is you put on this curfew, that is all we needed. Let me just give them some instructions. We are going to buy gas only from the Negro-owned service stations. We agreed on it, remember? Now, don't back upon your agreement. (Yea) I don't care how many Negroes working on it, that's too bad. We are going only to Negro-owned service stations. And we are going only—the only time you will see us around on this street, now listen good, you are going to Lee's Grocery and other stores on this end. Is that clear? (Yeah) (Applause) "We don't want to go to none of them drugstores. They get us confused. Now, who am I going to get my medicine from? Let us know in time and we will be glad to furnish a car free to carry you anywhere you have to go to get a prescription filled. You can't beat this. (No) It won't cost you a dime. You go to any of the local black businessmen and tell them you have got to go to Vicksburg to get your stuff. And then if they don't carry you, let us know. We'll take care of them later. (Applause) Now, you know, we have got a little song that says, `This is your thing, do what you want to do.' (Applause) This is our thing, let's do what we want to do with it. Let's make sure now—if you be disobedient *938 now you are going to be in trouble. Remember that, now, listen. Listen good. They are going to start saying, `You know what, Evers is down there with his goon squad, . . .' Now, we know Claiborne County,—`with his goon squad harassing poor ole niggers.' "Well, good white folks you have been harassing us all our lives. (Applause) And if we decided to harass you that's our business. (That's right) They are our children and we are going to discipline them the way we want to. Now, be sure you get all this right on all these tape recorders. Whatever I say on this trip I will say it in Jackson. (Amen) (Glory) And I will say it in Washington and New York. White folks ain't gonna never control us no more. (Applause) . . . . . "Now, my dear friends, the white folks have got the message. I hope you have got the message and tell every one of our black brothers until all these people are gone, you voted on this in the church, don't let me down, and don't let yourself down. We agreed in the church that we would vacate this town until they have met those requests, the white folks don't demand nothing out of us. All right, white folks, we are just saying until you decide when you want to do these little things we beg of you, we are not coming back. (No way) "None of us better not be caught up here. (Yea) I don't care how old you are, I don't care how sick you are, I don't care how crazy you are, you better not be caught on these streets shopping in these stores until these demands are met. (Applause) "Now, let's get together. Are you for this or against it? (Applause) (For it.) Remember you voted this. We intend to enforce it. You needn't go calling the chief of police, he can't help you none. You needn't go calling the sheriff, he can't help you none. (That's right.) He ain't going to offer *939 to sleep with none of us men, I can tell you that. (Applause) Let's don't break our little rules that you agreed upon here. . . . . . "Let's go to the funeral of our young son whenever the funeral is. I don't want you to come with hate because that is not going to solve our problems. (No hate.) We don't want you to hate the white folks here in Port Gibson. That is not going to solve it. If you hate what they have done, I hate to get personal, I hate what they did so much to Medgar, (I know.) I ain't going to ever stop hating them for that. But I am going to chase them in the way what I know is right and just. I am not going to lay out in the bushes and shoot no white folks. That's wrong. I am not gonna go out here and bomb none of them's home. (No) That's not right. But I am going to do everything in my power to take away all the power, political power, legal power that they possess anywhere I live. We are going to compete against them. When we blacks learn to support and respect each other, then and not until then, will white folks respect us. (Applause) "Now, you know I trust white folks and I mean every word I say. But it comes a time when we got to make up in our mind individually, are we going to make those persons worthwhile. We done talked and raised all kind of sand all day here, now, what is really going to prove it, are we going to live up to what we have said? (Applause) Now if there is any one of us breaks what we agreed upon, you are just as guilty as that little trigger-happy, blood-thirsty rascal. (Tell 'em about it.) . . . . . "I go all over this country, and I ought not to tell you white folks this, and I tell other white folks that some day we are going to get together in Mississippi, black and white, and work out our problems. And we are ready to start whenever you are. If you are ready to start, we are. We ain't *940 going to let you push us, not one inch. (That's right.) If you come on beating us, we are going to fight back. (Right) We got our understanding. We are all God's children. The same man that brought you all here brought us. You could have been black just like we are. We could have been white and baldheaded just like you are. (Laughter) (Inaudible) We are going to work hard at this, Dan. We are going to be organized this time. We ain't going to be bought off and talked off. We are going to elect the county sheriff here this next time that don't need the highway patrol. Now, you see, Dan had a good chance to set himself up right, but he goofed it. He goofed. (Yeah) He blew it. (Laughter) Don't forget that, heah. (Right) It brings back memories like you know you remember things we do. "Now, if you don't think it is necessary, we don't have to go back to the church. If you want to go back there, we can. I want you to make sure here that we are going to leave this town to our white brothers and we ain't coming back no more until all our requests have been met. Is that the common consent of all of you here? (Applause) (Let's go back to the church.) All right. Are we willing to make sure that everyone of us will be sure that none of the rest of our black brothers violate our ... (Yea) We are all saying it now. Let's not say it now so much on my part. You know, I'm just sort of leading, you know, how these lawyers are, leading our folks on to say what has to be said. And that's the case. Let's make us a white town. We would like for you to start it. Be courteous now. Don't mistreat nobody. Tell them, in a nice forceful way, the curfew is going to be on until they do what we ask them."

The term "concerted action" encompasses unlawful conspiracies and constitutionally protected assemblies. The "looseness and pliability" of legal doctrine applicable to concerted action led Justice Jackson to note that certain joint activities have a "chameleon-like" character.[1] The boycott of white merchants in Claiborne County, Miss., that gave rise to this litigation had such a character; it included elements of criminality and elements of majesty. Evidence that fear of reprisals caused some black citizens to withhold their patronage from respondents' businesses convinced the Supreme Court of Mississippi that the entire boycott was unlawful and that each of the 92 petitioners was liable for all of its economic consequences. Evidence that persuasive rhetoric, determination to remedy past injustices, and a host of voluntary decisions by free citizens were the critical *889 factors in the boycott's success presents us with the question whether the state court's judgment is consistent with the Constitution of the United s. I In March 1966, black citizens of Port Gibson, Miss., and other areas of Claiborne County presented white elected officials with a list of particularized demands for racial equality and integration.[2] The complainants did not receive a satisfactory response and, at a local National Association for the Advancement of Colored People (NAACP) meeting at the First Baptist Church, several hundred black persons voted to place a boycott on white merchants in the area. On October 31, 1969, several of the merchants filed suit in state court to recover losses caused by the boycott and to enjoin future boycott activity. We recount first the course of that litigation and then consider in more detail the events that gave rise to the merchants' claim for damages. A The complaint was filed in the Chancery Court of Hinds County by 17 white merchants.[3] The merchants named two corporations and 146 individuals as defendants: the NAACP, a New York membership corporation; Mississippi Action for Progress (MAP), a Mississippi corporation that implemented *890 the federal "Head Start" program; Aaron Henry, the President of the Mississippi Conference of the NAACP; Charles Evers, the Field Secretary of the NAACP in Mississippi; and 144 other individuals who had participated in the boycott.[4] The complaint sought injunctive relief and an attachment of property, as well as damages. Although it alleged that the plaintiffs were suffering irreparable injury from an ongoing conspiracy, no preliminary relief was sought. Trial began before a chancellor in equity on June 11, 1973.[5] The court heard the testimony of 144 witnesses during an 8-month trial. In August 1976, the chancellor issued an opinion and decree finding that "an overwhelming preponderance of the evidence" established the joint and several liability of *891 130 of the defendants on three separate conspiracy theories.[6] First, the court held that the defendants were liable for the tort of malicious interference with the plaintiffs' businesses, which did not necessarily require the presence of a conspiracy.[7] Second, the chancellor found a violation of a state *892 statutory prohibition against secondary boycotts, on the theory that the defendants' primary dispute was with the governing authorities of Port Gibson and Claiborne County and not with the white merchants at whom the boycott was directed.[8] Third, the court found a violation of Mississippi's antitrust statute, on the ground that the boycott had diverted black patronage from the white merchants to black merchants and to other merchants located out of Claiborne County and thus had unreasonably limited competition between black and white merchants that had traditionally existed.[9] The chancellor specifically rejected the defendants' claim that their conduct was protected by the First Amendment.[10] *893 Five of the merchants offered no evidence of business losses. The chancellor found that the remaining 12 had suffered lost business earnings and lost goodwill during a 7-year period from 1966 to 1972 amounting to $944,699. That amount, plus statutory antitrust penalties of $6,000 and a $300,000 award of attorney's fees, produced a final judgment of $1,250,699, plus interest from the date of judgment and costs. As noted, the chancellor found all but 18 of the original 148 defendants jointly and severally liable for the entire judgment. The court justified imposing full liability on the national organization of the NAACP on the ground that it had failed to "repudiate" the actions of Charles Evers, its Field Secretary in Mississippi. In addition to imposing damages liability, the chancellor entered a broad permanent injunction. He permanently enjoined petitioners from stationing "store watchers" at the respondents' business premises; from "persuading" any person to withhold his patronage from respondents; from "using demeaning and obscene language to or about any person" because that person continued to patronize the respondents; from "picketing or patroling" the premises of any of the respondents; and from using violence against any person or inflicting damage to any real or personal property.[11] *894 In December 1980, the Mississippi Supreme Court reversed significant portions of the trial court's judgment. It held that the secondary boycott statute was inapplicable because it had not been enacted until "the boycott had been in operation for upward of two years."[12] The court declined to rely on the restraint of trade statute, noting that the "United s Supreme Court has seen fit to hold boycotts to achieve political ends are not a violation of the Sherman Act, 15 U.S. C. 1 (1970), after which our statute is patterned."[13] Thus, the court rejected two theories of liability that were consistent with a totally voluntary and nonviolent withholding of patronage from the white merchants. The Mississippi Supreme Court upheld the imposition of liability, however, on the basis of the chancellor's common-law tort theory. After reviewing the chancellor's recitation of the facts, the court quoted the following finding made by the trial court: "In carrying out the agreement and design, certain of the defendants, acting for all others, engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers. Intimidation, threats, social ostracism, vilification, and traduction were some of the devices used by the defendants to achieve the desired results. Most effective, also, was the stationing of guards (`enforcers,' `deacons,' or `black hats') in the vicinity of white-owned businesses. Unquestionably, the evidence shows that the volition of many black persons was overcome out of sheer fear, and they were forced and compelled against their personal wills to withhold their trade and business intercourse *895 from the complainants." App. to Pet. for Cert. (quoted ). On the basis of this finding, the court concluded that the entire boycott was unlawful. "If any of these factors—force, violence, or threats—is present, then the boycott is illegal regardless of whether it is primary, secondary, economical, political, social or other."[14] In a brief passage, the court rejected petitioners' reliance on the First Amendment: "The agreed use of illegal force, violence, and threats against the peace to achieve a goal makes the present state of facts a conspiracy. We know of no instance, and our attention has been drawn to no decision, wherein it has been adjudicated that free speech guaranteed by the First Amendment includes in its protection the right to commit crime." The theory of the Mississippi Supreme Court, then, was that petitioners had agreed to use force, violence, and "threats" to effectuate the boycott.[15] To the trial court, such a finding had not been necessary.[16] Although the Mississippi Supreme Court affirmed the chancellor's basic finding of liability, the court held that respondents *896 "did not establish their case" with respect to 38 of the defendants.[17] The court found that MAP was a victim, rather than a willing participant, in the conspiracy and dismissed —without further explanation — 37 individual defendants for lack of proof. Finally, the court ruled that certain damages had been improperly awarded and that other damages had been inadequately proved. The court remanded for further proceedings on the computation of damages.[18] We granted a petition for certiorari. At oral argument, a question arose concerning the factual basis for the judgment of the Mississippi Supreme Court. As noted, that court affirmed petitioners' liability for damages on the ground that each of the petitioners had agreed to effectuate the boycott through force, violence, and threats. Such a finding was not necessary to the trial court's imposition of liability and neither state court had identified the evidence actually linking the petitioners to such an agreement. In response to a request from this Court, respondents filed a supplemental brief "specifying the acts committed by each of the petitioners giving rise to liability for damages." Supplemental Brief for Respondents 1. That brief helpfully places the petitioners in different categories; we accept respondents' framework for analysis and identify these classes as a preface to our review of the relevant incidents that occurred during the 7-year period for which damages were assessed.[19] *897 First, respondents contend that liability is justified by evidence of participation in the "management" of the boycott.[20] Respondents identify two groups of persons who may be found liable as "managers": 79 individuals who regularly attended Tuesday night meetings of the NAACP at the First Baptist Church; and 11 persons who took "leadership roles" at those meetings.[21] Second, respondents contend that liability is justified by evidence that an individual acted as a boycott "enforcer."[22] In this category, respondents identify 22 persons as members of the "Black Hats" — a special group organized during the boycott—and 19 individuals who were simply "store watchers." Third, respondents argue that those petitioners "who themselves engaged in violent acts or who threatened violence have provided the best possible evidence that they wanted the boycott to succeed by coercion whenever it could not succeed by persuasion." They identify 16 individuals *898 for whom there is direct evidence of participation in what respondents characterize as violent acts or threats of violence. Fourth, respondents contend that Charles Evers may be held liable because he "threatened violence on a number of occasions against boycott breakers." Like the chancellor, respondents would impose liability on the national NAACP because Evers "was acting in his capacity as Field Secretary of the NAACP when he committed these tortious and constitutionally unprotected acts." Finally, respondents state that they are "unable to determine on what record evidence the state courts relied in finding liability on the part of seven of the petitioners." With these allegations of wrongdoing in mind, we turn to consider the factual events that gave rise to this controversy. B The chancellor held petitioners liable for all of respondents' lost earnings during a 7-year period from 1966 to December 31, 1972. We first review chronologically the principal events that occurred during that period, describe some features of the boycott that are not in dispute, and then identify the most significant evidence of violent activity. In late 1965 or early 1966, Charles Evers, the Field Secretary of the NAACP, helped organize the Claiborne County Branch of the NAACP. The pastor of the First Baptist Church, James Dorsey, was elected president of the Branch; regular meetings were conducted each Tuesday evening at the church. At about the same time, a group of black citizens formed a Human Relations Committee and presented a petition for redress of grievances to civic and business leaders of the white community. In response, a biracial committee—including five of the petitioners and several of the respondents—was organized and held a series of unproductive meetings. The black members of the committee then prepared a further petition entitled "Demands for Racial Justice." This petition *899 was presented for approval at the local NAACP meeting conducted on the first Tuesday evening in March. As described by the chancellor, "the approximately 500 people present voted their approval unanimously."[23] On March 14, 1966, the petition was presented to public officials of Port Gibson and Claiborne County. The petition included 19 specific demands. It called for the desegregation of all public schools and public facilities, the hiring of black policemen, public improvements in black residential areas, selection of blacks for jury duty, integration of bus stations so that blacks could use all facilities, and an end to verbal abuse by law enforcement officers. It stated that "Negroes are not to be addressed by terms as `boy,' `girl,' `shine,' `uncle,' or any other offensive term, but as `Mr.,' `Mrs.,' or `Miss,' as is the case with other citizens."[24] As described by the chancellor, the purpose of the demands "was to gain equal rights and opportunities for Negro citizens."[25] The petition further provided that black leaders hoped it would not be necessary to resort to the "selective buying campaigns" that had been used in other communities.[26] On March 23, two demands that had been omitted *900 from the original petition were added, one of which provided: "All stores must employ Negro clerks and cashiers."[27] This supplemental petition stated that a response was expected by April 1. A favorable response was not received. On April 1, 1966, the Claiborne County NAACP conducted another meeting at the First Baptist Church. As described by the chancellor: "Several hundred black people attended the meeting, and the purpose was to decide what action should be taken relative to the twenty-one demands. Speeches were made by Evers and others, and a vote was taken. It was the unanimous vote of those present, without dissent, to place a boycott on the white merchants of Port Gibson and Claiborne County." App. to Pet. for Cert. 15b. The boycott was underway.[] In September 1966, Mississippi Action for Progress, Inc. (MAP), was organized to develop community action programs in 20 counties of Mississippi. One of MAP's programs— known as Head Start—involved the use of federal funds to provide food for young children. Originally, food purchases in Claiborne County were made alternately from white-owned and black-owned stores, but in February 1967 the directors *901 of MAP authorized their Claiborne County representatives to purchase food only from black-owned stores. Since MAP bought substantial quantities of food, the consequences of this decision were significant. A large portion of the trial was devoted to the question whether MAP participated in the boycott voluntarily and—under the chancellor's theories of liability—could be held liable for the resulting damages. The chancellor found MAP a willing participant, noting that "during the course of the trial, the only Head Start cooks called to the witness stand testified that they refused to go into white-owned stores to purchase groceries for the children in the program for the reason that they were in favor of the boycott and wanted to honor it."[29] Several events occurred during the boycott that had a strong effect on boycott activity. On February 1, 1967, Port Gibson employed its first black policeman. During that month, the boycott was lifted on a number of merchants. On April 4, 1968, Dr. Martin Luther King, Jr., was assassinated in Memphis. The chancellor found that this tragic event had a depressing effect on the black community and, as a result, the boycott "tightened."[30] *902 One event that occurred during the boycott is of particular significance. On April 18, 1969, a young black man named Roosevelt Jackson was shot and killed during an encounter with two Port Gibson police officers.[31] Large crowds immediately gathered, first at the hospital and later at the church. Tension in the community neared a breaking point. The local police requested reinforcements from the Highway Patrol and sporadic acts of violence ensued. The Mayor and Board of Aldermen placed a dawn-to-dusk curfew into effect. On April 19, Charles Evers spoke to a group assembled at the First Baptist Church and led a march to the courthouse where he demanded the discharge of the entire Port Gibson Police Force. When this demand was refused, the boycott was reimposed on all white merchants. One of Evers' speeches on this date was recorded by the police. In that speech—significant portions of which are reproduced in an Appendix to this opinion—Evers stated that boycott violators would be "disciplined" by their own people and warned that the Sheriff could not sleep with boycott violators at night. On April 20, Aaron Henry came to Port Gibson, spoke to a large gathering, urged moderation, and joined local leaders in a protest march and a telegram sent to the Attorney General of the United s. On April 21, Evers gave another speech to several hundred people, in which he again called for a discharge of the police force and for a total boycott of all white-owned businesses in Claiborne County. Although this speech was not recorded, the chancellor found that Evers stated: "If we catch any of you going in any of them racist stores, we're gonna break your damn neck."[32] As noted, this lawsuit was filed in October 1969. No significant events concerning the boycott occurred after that *903 time. The chancellor identified no incident of violence that occurred after the suit was brought. He did identify, however, several significant incidents of boycott-related violence that occurred some years earlier. Before describing that evidence, it is appropriate to note that certain practices generally used to encourage support for the boycott were uniformly peaceful and orderly. The few marches associated with the boycott were carefully controlled by black leaders. Pickets used to advertise the boycott were often small children. The police made no arrests—and no complaints are recorded—in connection with the picketing and occasional demonstrations supporting the boycott. Such activity was fairly irregular, occurred primarily on weekends, and apparently was largely discontinued around the time the lawsuit was filed.[33] One form of "discipline" of black persons who violated the boycott appears to have been employed with some regularity. Individuals stood outside of boycotted stores and identified those who traded with the merchants. Some of these "store watchers" were members of a group known as the "Black Hats" or the "Deacons."[34] The names of persons who violated *904 the boycott were read at meetings of the Claiborne County NAACP and published in a mimeographed paper entitled the "Black Times." As stated by the chancellor, those persons "were branded as traitors to the black cause, called demeaning names, and socially ostracized for merely trading with whites."[35] The chancellor also concluded that a quite different form of discipline had been used against certain violators of the boycott. He specifically identified 10 incidents that "strikingly" revealed the "atmosphere of fear that prevailed among blacks from 1966 until 1970."[36] The testimony concerning four incidents convincingly demonstrates that they occurred because the victims were ignoring the boycott. In two cases, shots were fired at a house; in a third, a brick was thrown through a windshield; in the fourth, a flower garden was damaged. None of these four victims, however, ceased trading with white merchants.[37] *905 The evidence concerning four other incidents is less clear, but again it indicates that an unlawful form of discipline was applied to certain boycott violators. In April 1966, a black couple named Cox asked for a police escort to go into a white-owned dry cleaner and, a week later, shots were fired into their home. In another incident, an NAACP member took a bottle of whiskey from a black man who had purchased it in a white-owned store. The third incident involved a fight between a commercial fisherman who did not observe the boycott and four men who "grabbed me and beat me up and took a gun off me."[38] In a fourth incident, described only in hearsay testimony, a group of young blacks apparently pulled down the overalls of an elderly brick mason known as "Preacher White" and spanked him for not observing the boycott.[39] Two other incidents discussed by the chancellor are of less certain siguificance. Jasper Coleman testified that he participated *906 in an all-night poker game at a friend's house on Christmas Eve 1966. The following morning he discovered that all four tires of his pickup truck had been slashed with a knife. Coleman testified that he did not participate in the boycott but was never threatened for refusing to do so. Record 13791. Finally, Willie Myles testified that he and his wife received a threatening phone call and that a boy on a barge told him that he would be whipped for buying his gas at the wrong place. Five of these incidents occurred in 1966. The other five are not dated. The chancellor thus did not find that any act of violence occurred after 1966.[40] In particular, he made no reference to any act of violence or threat of violence—with the exception, of course, of Charles Evers' speeches—after the shootings of Martin Luther King, Jr., in 1968 or Roosevelt Jackson in 1969. The chancellor did not find that any of the incidents of violence was discussed at the Tuesday evening meetings of the NAACP.[41] II This Court's jurisdiction to review the judgment of the Mississippi Supreme Court is, of course, limited to the federal *907 questions necessarily decided by that court.[42] We consider first whether petitioners' activities are protected in any respect by the Federal Constitution and, if they are, what effect such protection has on a lawsuit of this nature. A The boycott of white merchants at issue in this case took many forms. The boycott was launched at a meeting of a local branch of the NAACP attended by several hundred persons. Its acknowledged purpose was to secure compliance by both civic and business leaders with a lengthy list of demands for equality and racial justice. The boycott was supported by speeches and nonviolent picketing. Participants repeatedly encouraged others to join in its cause. Each of these elements of the boycott is a form of speech or conduct that is ordinarily entitled to protection under the First and Fourteenth Amendments.[43] The black citizens named as defendants in this action banded together and collectively expressed their dissatisfaction with a social structure that had denied them rights to equal treatment and respect. As we so recently acknowledged in Citizens Against Rent Control/Coalition for Fair "the practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process." We recognized that "by collective effort individuals can make their views known, when, individually, their voices would be faint *908 or lost." In emphasizing "the importance of freedom of association in guaranteeing the right of people to make their voices heard on public issues," we noted the words of Justice Harlan, writing for the Court in 460: "Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly." THE CHIEF JUSTICE stated for the Court in Citizens Against Rent Control: "There are, of course, some activities, legal if engaged in by one, yet illegal if performed in concert with others, but political expression is not one of them." The right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected. In De the Court unanimously held that an individual could not be penalized simply for assisting in the conduct of an otherwise lawful meeting held under the auspices of the Communist Party, an organization that advocated "criminal syndicalism." After reviewing the rights of citizens "to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances," Chief Justice Hughes, writing for the Court, stated: "It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices *909 under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter when the instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge." Of course, the petitioners in this case did more than assemble peaceably and discuss among themselves their grievances against governmental and business policy. Other elements of the boycott, however, also involved activities ordinarily safeguarded by the First Amendment. In the Court held that peaceful picketing was entitled to constitutional protection, even though, in that case, the purpose of the picketing "was concededly to advise customers and prospective customers of the relationship existing between the employer and its employees and thereby to induce such customers not to patronize the employer." Cf. In we held that a peaceful march and demonstration was protected by the rights of free speech, free assembly, and freedom to petition for a redress of grievances. Speech itself also was used to further the aims of the boycott. Nonparticipants repeatedly were urged to join the common cause, both through public address and through personal solicitation. These elements of the boycott involve speech in its most direct form. In addition, names of boycott violators were read aloud at meetings at the First Baptist Church and published in a local black newspaper. Petitioners admittedly sought to persuade others to join the boycott *910 through social pressure and the "threat" of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action. As Justice Rutledge, in describing the protection afforded by the First Amendment, explained: "It extends to more than abstract discussion, unrelated to action. The First Amendment is a charter for government, not for an institution of learning. `Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts." In Organization for a Better the Court considered the validity of a prior restraint on speech that invaded the "privacy" of the respondent. Petitioner, a racially integrated community organization, charged that respondent, a real estate broker, had engaged in tactics known as "blockbusting" or "panic peddling."[44] Petitioner asked respondent to sign an agreement that he would not solicit property in their community. When he refused, petitioner distributed leaflets near respondent's home that were critical of his business practices.[45] A state court enjoined petitioner from distributing the leaflets; an appellate court affirmed on the ground that the alleged activities were coercive and intimidating, rather than informative, and therefore not entitled to First Amendment protection. This Court reversed. THE CHIEF JUSTICE explained: "This Court has often recognized that the activity of peaceful pamphleteering is a form of communication protected *911 by the First Amendment. E. g., ; ; In sustaining the injunction, however, the Appellate Court was apparently of the view that petitioners' purpose in distributing their literature was not to inform the public, but to `force' respondent to sign a no-solicitation agreement. The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent's conduct by their activities; this is not fundamentally different from the function of a newspaper. See Petitioners were engaged openly and vigorously in making the public aware of respondent's real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability." In dissolving the prior restraint, the Court recognized that "offensive" and "coercive" speech was nevertheless protected by the First Amendment.[46] In sum, the boycott clearly involved constitutionally protected activity. The established elements of speech, assembly, association, and petition, "though not identical, are inseparable." Through exercise of these First Amendment rights, petitioners sought to bring about political, social, and economic change. *912 Through speech, assembly, and petition—rather than through riot or revolution—petitioners sought to change a social order that had consistently treated them as second-class citizens. The presence of protected activity, however, does not end the relevant constitutional inquiry. Governmental regulation that has an incidental effect on First Amendment freedoms may be justified in certain narrowly defined instances. See United s v. O'Brien,[47] A nonviolent and totally voluntary boycott may have a disruptive effect on local economic conditions. This Court has recognized the strong governmental interest in certain forms of economic regulation, even though such regulation may have an incidental effect on rights of speech and association. See ; The right of business entities to "associate" to suppress competition may be curtailed. National Society of Professional Engineers v. United s, Unfair trade practices may be restricted. Secondary boycotts and picketing by labor unions may be prohibited, as part of "Congress' striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife." See and n. 20. *913 While s have broad power to regulate economic activity, we do not find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case. This Court has recognized that expression on public issues "has always rested on the highest rung of the hierarchy of First Amendment values." "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." There is a "profound national commitment" to the principle that "debate on public issues should be uninhibited, robust, and wide-open." New York Times In Eastern Railroad Presidents the Court considered whether the Sherman Act prohibited a publicity campaign waged by railroads against the trucking industry that was designed to foster the adoption of laws destructive of the trucking business, to create an atmosphere of distaste for truckers among the general public, and to impair the relationships existing between truckers and their customers. Noting that the "right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms," the Court held that the Sherman Act did not proscribe the publicity campaign. 7-138. The Court stated that it could not see how an intent to influence legislation to destroy the truckers as competitors "could transform conduct otherwise lawful into a violation of the Sherman Act." 8-139. Noting that the right of the people to petition their representatives in government "cannot properly be made to depend on their intent in doing so," the Court held that "at least insofar as the railroads' campaign was directed toward obtaining governmental action, its legality was not at all affected by any anticompetitive purpose it may have had." 9-140. This conclusion was not changed by the fact that the railroads' anticompetitive purpose produced an anticompetitive *914 effect; the Court rejected the truckers' Sherman Act claim despite the fact that "the truckers sustained some direct injury as an incidental effect of the railroads' campaign to influence governmental action." It is not disputed that a major purpose of the boycott in this case was to influence governmental action. Like the railroads in Noerr, the petitioners certainly foresaw—and directly intended—that the merchants would sustain economic injury as a result of their campaign. Unlike the railroads in that case, however, the purpose of petitioners' campaign was not to destroy legitimate competition. Petitioners sought to vindicate rights of equality and of freedom that lie at the heart of the Fourteenth Amendment itself. The right of the s to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself.[48] In upholding an injunction against the state supersedeas bonding requirement in this case, Judge Ainsworth of the Court of Appeals for the Fifth Circuit cogently stated: "At the heart of the Chancery Court's opinion lies the belief that the mere organization of the boycott and every activity undertaken in support thereof could be subject to judicial prohibition under state law. This *915 view accords insufficient weight to the First Amendment's protection of political speech and association. There is no suggestion that the NAACP, MAP or the individual defendants were in competition with the white businesses or that the boycott arose from parochial economic interests. On the contrary, the boycott grew out of a racial dispute with the white merchants and city government of Port Gibson and all of the picketing, speeches, and other communication associated with the boycott were directed to the elimination of racial discrimination in the town. This differentiates this case from a boycott organized for economic ends, for speech to protest racial discrimination is essential political speech lying at the core of the First Amendment." We hold that the nonviolent elements of petitioners' activities are entitled to the protection of the First Amendment.[49] B The Mississippi Supreme Court did not sustain the chancellor's imposition of liability on a theory that state law prohibited a nonviolent, politically motivated boycott. The fact that such activity is constitutionally protected, however, imposes a special obligation on this Court to examine critically the basis on which liability was imposed.[50] In particular, we *916 consider here the effect of our holding that much of petitioners' conduct was constitutionally protected on the ability of the to impose liability for elements of the boycott that were not so protected.[51] The First Amendment does not protect violence. "Certainly violence has no sanctuary in the First Amendment, and the use of weapons, gunpowder, and gasoline may not constitutionally masquerade under the guise of `advocacy.'" (Douglas, J., concurring). Although the extent and significance of the violence in this case are vigorously disputed by the parties, there is no question that acts of violence occurred. No federal rule of law restricts a from imposing tort liability for business losses that are caused by violence and by threats of violence. When such conduct occurs in the context of constitutionally protected activity, however, "precision of regulation" is demanded.[52] Specifically, the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to *917 damages liability and on the persons who may be held accountable for those damages. In Mine the Court considered a case in many respects similar to the one before us. The case grew out of the rivalry between the United Mine Workers (UMW) and the Southern Labor Union (SLU) over representation of workers in the southern Appalachian coal fields. A coal company laid off 100 miners of UMW's Local 5881 when it closed one of its mines. That same year, a subsidiary of the coal company hired Gibbs as mine superintendent to attempt to open a new mine on nearby property through use of members of the SLU. Gibbs also received a contract to haul the mine's coal to the nearest railroad loading point. When he attempted to open the mine, however, he was met by armed members of Local 5881 who threatened Gibbs and beat an SLU organizer. These incidents occurred on August 15 and 16. Thereafter, there was no further violence at the mine site and UMW members maintained a peaceful picket line for nine months. No attempts to open the mine were made during that period. Gibbs lost his job as superintendent and never began performance of the haulage contract. Claiming to have suffered losses as a result of the union's concerted plan against him, Gibbs filed suit in federal court against the international UMW. He alleged an unlawful secondary boycott under the federal labor laws and, as a pendent state-law claim, "an unlawful conspiracy and an unlawful boycott aimed at him to maliciously, wantonly and willfully interfere with his contract of employment and with his contract of haulage." The federal claim was dismissed on the ground that the dispute was "primary" and therefore not cognizable under the federal prohibition of secondary labor boycotts. Damages were awarded against the UMW, however, on the state claim of interference with an employment relationship. This Court reversed. The Court found that the pleadings, arguments of counsel, and jury instructions had not adequately *918 defined the compass within which damages could be awarded under state law. The Court noted that it had "consistently recognized the right of s to deal with violence and threats of violence appearing in labor disputes" and had sustained "a variety of remedial measures against the contention that state law was pre-empted by the passage of federal labor legislation." To accommodate federal labor policy, however, the Court in Gibbs held: "the permissible scope of state remedies in this area is strictly confined to the direct consequences of such [violent] conduct, and does not include consequences resulting from associated peaceful picketing or other union activity." The Court noted that in Construction damages were restricted to those directly and proximately caused by wrongful conduct chargeable to the defendants. "`Thus there [was] nothing in the measure of damages to indicate that state power was exerted to compensate for anything more than the direct consequences of the violent conduct.'" (quoting San Diego Building Trades ). The careful limitation on damages liability imposed in Gibbs resulted from the need to accommodate state law with federal labor policy. That limitation is no less applicable, however, to the important First Amendment interests at issue in this case. Petitioners withheld their patronage from the white establishment of Claiborne County to challenge a political and economic system that had denied them the basic rights of dignity and equality that this country had fought a Civil War to secure. While the legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity. Only those losses proximately caused by unlawful conduct may be recovered. The First Amendment similarly restricts the ability of the to impose liability on an individual solely because of his *919 association with another. In Scales v. United s, the Court noted that a "blanket prohibition of association with a group having both legal and illegal aims" would present "a real danger that legitimate political expression or association would be impaired." The Court suggested that to punish association with such a group, there must be "clear proof that a defendant `specifically intend[s] to accomplish [the aims of the organization] by resort to violence.'" (quoting Noto v. United s, ).[53] Moreover, in Noto v. United s the Court emphasized that this intent must be judged "according to the strictest law,"[54] for "otherwise there is a danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share." at -300. In the Court applied these principles in a noncriminal context. In that case the Court held that a student group could not be denied recognition at a state-supported college merely because of its affiliation with a national organization associated with disruptive and violent campus activity. It noted that "the Court has consistently disapproved governmental action imposing criminal sanctions or denying rights and privileges solely because of a citizen's association with an unpopular organization." The Court stated that "it has been established that `guilt by association alone, without [establishing] that an individual's association poses the threat feared by the Goverument,' is an impermissible basis upon which to deny First Amendment rights." (quoting United s v. Robel, ). "The government has the burden *920 of establishing a knowing affiliation with an organization possessing unlawful aims and goals, and a specific intent to further those illegal aims." 408 U.S.,[55] The principles announced in Scales, Noto, and Healy are relevant to this case. Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.[56] "In this sensitive field, the may not employ `means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.'" 393 U.S. 1, III The chancellor awarded respondents damages for all business losses that were sustained during a 7-year period beginning in 1966 and ending December 31, 1972.[57] With the exception *921 of Aaron Henry, all defendants were held jointly and severally liable for these losses. The chancellor's findings were consistent with his view that voluntary participation in the boycott was a sufficient basis on which to impose liability. The Mississippi Supreme Court properly rejected that theory; it nevertheless held that petitioners were liable for all damages "resulting from the boycott."[58] In light of the principles set forth above, it is evident that such a damages award may not be sustained in this case. The opinion of the Mississippi Supreme Court itself demonstrates that all business losses were not proximately caused by the violence and threats of violence found to be present. The court stated that "coercion, intimidation, and threats" formed "part of the boycott activity" and "contributed to its almost complete success."[59] The court broadly asserted—without differentiation—that "`[i]ntimidation, threats, social ostracism, vilification, and traduction'" were devices used by the defendants to effectuate the boycott.[60] The court repeated the chancellor's finding that "the volition of many black persons was overcome out of sheer fear."[61] These findings are inconsistent with the court's imposition of all damages "resulting from the boycott." To the extent that the court's judgment rests on the ground that "many" black citizens were "intimidated" by "threats" of "social ostracism, vilification, and traduction," it is flatly inconsistent with the First Amendment. The ambiguous findings of the Mississippi Supreme Court are inadequate to assure the "precision of regulation" demanded by that constitutional provision. *922 The record in this case demonstrates that all of respondents' losses were not proximately caused by violence or threats of violence. As respondents themselves stated at page 12 of their brief in the Mississippi Supreme Court: "Most of the witnesses testified that they voluntarily went along with the NAACP and their fellow black citizens in honoring and observing the boycott because they wanted the boycott." This assessment is amply supported by the record.[62] It is indeed inconceivable that a boycott launched by the unanimous vote of several hundred persons succeeded solely through fear and intimidation. Moreover, the fact that the boycott "intensified" following the shootings of Martin Luther King, Jr., and Roosevelt Jackson demonstrates that factors other than force and violence (by the petitioners) figured *923 prominently in the boycott's success. The chancellor made no finding that any act of violence occurred after 1966. While the timing of the acts of violence was not important to the chancellor's imposition of liability, it is a critical factor under the narrower rationale of the Mississippi Supreme Court. That court has completely failed to demonstrate that business losses suffered in 1972—three years after this lawsuit was filed—were proximately caused by the isolated acts of violence found in 1966.[63] It is impossible to conclude that state power has not been exerted to compensate respondents for the direct consequences of nonviolent, constitutionally protected activity. This case is not like Milk Wagon in which the Court held that the presence of violence justified an injunction against both violent and nonviolent activity.[64] The violent conduct present in that case was pervasive.[65] The Court in Meadownoor stated that "utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force." The Court emphasized, however: *924 "Still it is of prime importance that no constitutional freedom, least of all the guarantees of the Bill of Rights, be defeated by insubstantial findings of fact screening reality. That is why this Court has the ultimate power to search the records in the state courts where a claim of constitutionality is effectively made. And so the right of free speech cannot be denied by drawing from a trivial rough incident or a moment of animal exuberance the conclusion that otherwise peaceful picketing has the taint of force." Such "insubstantial findings" were not present in Meadowmoor. But in this case, the Mississippi Supreme Court has relied on isolated acts of violence during a limited period to uphold respondents' recovery of all business losses sustained over a 7-year span. No losses are attributed to the voluntary participation of individuals determined to secure "justice and equal opportunity."[66] The court's judgment "screens reality" and cannot stand.[67] Respondents' supplemental brief also demonstrates that on the present record no judgment may be sustained against most of the petitioners. Regular attendance and participation at the Tuesday meetings of the Claiborne County Branch of the NAACP is an insufficient predicate on which to impose liability. The chancellor's findings do not suggest that any illegal conduct was authorized, ratified, or even discussed at any of the meetings. The Sheriff testified that he was kept *925 informed of what transpired at the meetings; he made no reference to any discussion of unlawful activity.[68] To impose liability for presence at weekly meetings of the NAACP would—ironically—not even constitute "guilt by association," since there is no evidence that the association possessed unlawful aims. Rather, liability could only be imposed on a "guilt for association" theory. Neither is permissible under the First Amendment.[69] Respondents also argue that liability may be imposed on individuals who were either "store watchers" or members of the "Black Hats." There is nothing unlawful in standing outside a store and recording names. Similarly, there is nothing unlawful in wearing black hats, although such apparel may cause apprehension in others. As established above, mere association with either group—absent a specific intent to further an unlawful aim embraced by that group—is *926 an insufficient predicate for liability. At the same time, the evidence does support the conclusion that some members of each of these groups engaged in violence or threats of violence. Unquestionably, these individuals may be held responsible for the injuries that they caused; a judgment tailored to the consequences of their unlawful conduct may be sustained. Respondents have sought separately to justify the judgment entered against Charles Evers and the national NAACP, As set forth by the chancellor, Evers was specially connected with the boycott in four respects. First, Evers signed the March 23 supplemental demand letter and unquestionably played the primary leadership role in the organization of the boycott. Second, Evers participated in negotiations with MAP and successfully convinced MAP to abandon its practice of purchasing food alternately from white-owned and black-owned stores. Third, he apparently presided at the April 1, 1966, meeting at which the vote to begin the boycott was taken; he delivered a speech to the large audience that was gathered on that occasion. See n. Fourth, Evers delivered the speeches on April 19 and 21, 1969, which we have discussed previously. See ; Appendix to this opinion. For the reasons set forth above, liability may not be imposed on Evers for his presence at NAACP meetings or his active participation in the boycott itself. To the extent that Evers caused respondents to suffer business losses through his organization of the boycott, his emotional and persuasive appeals for unity in the joint effort, or his "threats" of vilification or social ostracism, Evers' conduct is constitutionally protected and beyond the reach of a damages award. Respondents point to Evers' speeches, however, as justification for the chancellor's damages award. Since respondents would impose liability on the basis of a public address—which predominantly contained highly charged political rhetoric *927 lying at the core of the First Amendment—we approach this suggested basis of liability with extreme care. There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats. While many of the comments in Evers' speeches might have contemplated "discipline" in the permissible form of social ostracism, it cannot be denied that references to the possibility that necks would be broken and to the fact that the Sheriff could not sleep with boycott violators at night implicitly conveyed a sterner message. In the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence whether or not improper discipline was specifically intended. It is clear that "fighting words"—those that provoke immediate violence—are not protected by the First Amendment. Similarly, words that create an immediate panic are not entitled to constitutional protection. Schenck v. United s,[70] This Court has made clear, however, that mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment. In we reversed the conviction of a Ku Klux Klan leader for threatening "revengeance" if the "suppression" of the white race continued; we relied on *9 "the principle that the constitutional guarantees of free speech and free press do not permit a to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." See Noto v. United s, -298 See also (Brandeis, J., concurring). The emotionally charged rhetoric of Charles Evers' speeches did not transcend the bounds of protected speech set forth in Brandenburg. The lengthy addresses generally contained an impassioned plea for black citizens to unify, to support and respect each other, and to realize the political and economic power available to them. In the course of those pleas, strong language was used. If that language had been followed by acts of violence, a substantial question would be presented whether Evers could be held liable for the consequences of that unlawful conduct. In this case, however—with the possible exception of the Cox incident— the acts of violence identified in 1966 occurred weeks or months after the April 1, 1966, speech; the chancellor made no finding of any violence after the challenged 1969 speech. Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. To rule otherwise would ignore the "profound national commitment" that "debate on public issues should be uninhibited, robust, and wide-open." New York Times 376 U. S., at[71] *929 For these reasons, we conclude that Evers' addresses did not exceed the bounds of protected speech. If there were other evidence of his authorization of wrongful conduct, the references to discipline in the speeches could be used to corroborate that evidence. But any such theory fails for the simple reason that there is no evidence—apart from the speeches themselves—that Evers authorized, ratified, or directly threatened acts of violence.[72] The chancellor's findings are not sufficient to establish that Evers had a duty to "repudiate" the acts of violence that occurred.[73] The findings are constitutionally inadequate to support the damages judgment against him. The liability of the NAACP derived solely from the liability of Charles Evers.[74] The chancellor found: "The national NAACP was well-advised of Evers' actions, and it had the option of repudiating his acts or ratifying them. It never repudiated those acts, and therefore, it is deemed by this Court to have affirmed them." App. to Pet. for Cert. 42b-43b. *930 Of course, to the extent that Charles Evers' acts are insufficient to impose liability upon him, they may not be used to impose liability on his principal. On the present record, however, the judgment against the NAACP could not stand in any event. The associational rights of the NAACP and its members have been recognized repeatedly by this Court.[] The NAACP—like any other organization—of course may be held responsible for the acts of its agents throughout the country that are undertaken within the scope of their actual or apparent authority.[76] Cf. American Society of Mechanical Engineers, Moreover, the NAACP may be found liable for other conduct of which it had knowledge and specifically ratified. The chancellor made no finding that Charles Evers or any other NAACP member had either actual or apparent authority to commit acts of violence or to threaten violent conduct. The evidence in the record suggests the contrary. Aaron Henry, President of the Mississippi Conference of the NAACP and a member of the Board of Directors of the national organization, testified that the statements attributed to Evers were directly contrary to NAACP policy. Record 4930.[77] Similarly, there is no evidence that the NAACP ratified—or *931 even had specific knowledge of—any of the acts of violence or threats of discipline associated with the boycott. Henry testified that the NAACP never authorized, and never considered taking, any official action with respect to the boycott. The NAACP supplied no financial aid to the boycott. The chancellor made no finding that the national organization was involved in any way in the boycott.[78] To impose liability without a finding that the NAACP authorized—either actually or apparently—or ratified unlawful conduct would impermissibly burden the rights of political association that are protected by the First Amendment. As Justice Douglas noted in dissenting from a dismissal of a writ of certiorari found to have been improvidently granted: "To equate the liability of the national organization with that of the Branch in the absence of any proof that the national authorized or ratified the misconduct in question could ultimately destroy it. The rights of political association are fragile enough without adding the *932 additional threat of destruction by lawsuit. We have not been slow to recognize that the protection of the First Amendment bars subtle as well as obvious devices by which political association might be stifled. See Thus we have held that forced disclosure of one's political associations is, at least in the absence of a compelling state interest, inconsistent with the First Amendment's guaranty of associational privacy. E. g., ; U.S. 539, ; ; N. A. A. C. Recognizing that guilt by association is a philosophy alien to the traditions of a free society (see and the First Amendment itself, we have held that civil or criminal disabilities may not be imposed on one who joins an organization which has among its purposes the violent overthrow of the Government, unless the individual joins knowing of the organization's illegal purposes ) and with the specific intention to further those purposes. See Elfbrandt v. Russell, [384 U. S., at] 11; Aptheker v. Secretary of" The chancellor's findings are not adequate to support the judgment against the NAACP. IV In litigation of this kind the stakes are high. Concerted action is a powerful weapon. History teaches that special dangers are associated with conspiratorial activity.[79] And *933 yet one of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means.[80] At times the difference between lawful and unlawful collective action may be identified easily by reference to its purpose. In this case, however, petitioners' ultimate objectives were unquestionably legitimate. The charge of illegality— like the claim of constitutional protection—derives from the means employed by the participants to achieve those goals. The use of speeches, marches, and threats of social ostracism cannot provide the basis for a damages award. But violent conduct is beyond the pale of constitutional protection. The taint of violence colored the conduct of some of the petitioners. They, of course, may be held liable for the consequences of their violent deeds. The burden of demonstrating that it colored the entire collective effort, however, is not satisfied by evidence that violence occurred or even that violence contributed to the success of the boycott. A massive and prolonged effort to change the social, political, and economic structure of a local environment cannot be characterized as a violent conspiracy simply by reference to the ephemeral consequences of relatively few violent acts. Such a characterization must be supported by findings that adequately disclose the evidentiary basis for concluding that specific parties agreed to use unlawful means, that carefully *934 identify the impact of such unlawful conduct, and that recognize the importance of avoiding the imposition of punishment for constitutionally protected activity. The burden of demonstrating that fear rather than protected conduct was the dominant force in the movement is heavy. A court must be wary of a claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless freestanding trees. The findings of the chancellor, framed largely in the light of two legal theories rejected by the Mississippi Supreme Court, are constitutionally insufficient to support the judgment that all petitioners are liable for all losses resulting from the boycott. The judgment is reversed. The case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE REHNQUIST concurs in the result. JUSTICE MARSHALL took no part in the consideration or decision of this case. APPENDIX TO OPINION OF THE COURT Portions of speech delivered by Charles Evers on April 19, 1969 (Record 1092-1108): "Thank you very much. We want our white friends here to know what we tell them happens to be so. Thank you for having the courage to walk down those streets with us. We thank you for letting our white brethren know that guns and bullets ain't gonna stop us. (No) (No) We thank you for letting our white brothers know that Port Gibson ain't none of their town. (Amen) (Applause) That Port Gibson is all of our town. (Applause) That black folks, red folks, Chinese and Japanese alike (Yeah) (That's right.), that we are going to have our share. (Yeah, we are.) *935 "We are going to beat you because we know you can't trick us no more. (yea) You are not going to be able to fool us by getting somebody to give us a drink of whiskey no more. (Applause) You ain't gonna be able to fool us by somebody giving us a few dollars no more. (Applause) We are gonna take your money and drink with you and then we're gonna (Applause) vote against you. Then we are going to elect a sheriff in this county and a sheriff that is responsible, that won't have to run and grab the telephone and call up the blood-thirsty highway patrol when he gets ready (Yeah) to come in and beat innocent folks down to the ground for no cause. (That's right) (Applause) (Boo) We are going to elect a sheriff that can call his deputies and represent black leaders in the community and stop whatever problem there is. (Yeah) (That's right.) "Then we are going to do more than that. The white merchants of this town are so wrapped up in the power structure here, since you love your Police Department so well, since you support them so well (Yeah), we are going to let them buy your dirty clothes and your filthy, rotten groceries. "Oh, no, white folks, we ain't going to shoot you with no bullet. (That's right.) We are going to shoot you with our ballots and with our bucks. (Yea) (That's right.) We are going to take away from you the thing that you have had over us all these years. (Yeah) Political power and economic power. While you kill our brothers and our sisters and rape our wives and our friends. (Yeah) You're guilty. You're guilty because you don't care a thing about anybody. (Yes.) And when you go and let a big, black burly nigger like you get on the police force (Yea) go down and grab another black brother's arm and hold it while a white racist stole him from us, and he's a liar if he says he didn't hold him. "We mean what we are saying. We are not playing. (Right) We better not even think one of us is black. You better not even be caught near one of these stores. (Applause) *936 "We don't want you caught in Piggly-Wiggly. You remember how he grinned at us four years ago? (Yeah) You know how when he took office he grinned at us? (Yeah) He ain't hired nobody yet. (That's right) (No) And you know old Jitney Jungle down there with those funny letters down on the end? (That's right) (Applause) He haven't hired nobody in there yet. (No) Do you know poor ole M & M or whatever it stands for, mud and mush, I guess. (Applause) They're out here on the highway and they haven't hired none of us yet. "Do you know Ellis who had a part-time boy all his life? He ain't hired nobody, is he, yet? (No) Then we got ole Stampley, and ninety-nine and three-fourths of his sales are black folks business. He got the nerve to tell me he ain't gonna put no nigger ringing his cash register. I got news for you, Brother Stampley. You can ring it your damn self. (Extra loud applause.) I want some of you fat cats after this meeting who wants three of our young boys who ain't a'scar'd of white folks (Applause) (Me) and we want you that's willing to follow the rules now to go down by Brother Stampley's and serve notice on him with our placards that we ain't coming no more. "Then we are going to tell all the young men that drive Piggly-Wiggly trucks now (Yeah) (Be careful, Son.) because the soul brothers and the spirit is watching you. (Extra loud applause.) "All right, Brother Wolf, you're next. (Applause) We got a couple of 'em to come down by Brother Wolf's. We mean business, white folks. We ain't gonna shoot you all, we are going to hit you where it hurts most. (In the pocket-book) (Applause) In the pocketbook and in the ballot box. (Applause) We may as well tell our friends at Alcorn to stay away from up here. (Yea) Now, you say, `What's wrong with you niggers?' I'll tell you what is wrong with us niggers; We are tired of you white folks, you racists and you bigots mistreating us. (Yeah) We are tired of paying you to *937 deny us the right to even exist. (Tell 'em about it.) And we ain't coming back, white folks. (We ain't.) "You all put a curfew on us at eight o'clock tonight. We are going to do you better than that. We are going to leave at one-thirty. (Loud applause) We are going to leave at one-thirty and we ain't coming back, white folks. "We are going to have Brother McCay; we are going to have our newly elected mayor who we elected, we are going to have him around here, too. Come on back, my dear friend. He say, `Naw, brother, we ain't coming.' `Have you got rid of all those bigots you got on your police force?' `No.' `Have you hired Negroes in all them stores?' `No.' `Well, we ain't coming back.' (Right) That's all we gonna do. You know, what they don't realize is you put on this curfew, that is all we needed. Let me just give them some instructions. We are going to buy gas only from the Negro-owned service stations. We agreed on it, remember? Now, don't back upon your agreement. (Yea) I don't care how many Negroes working on it, that's too bad. We are going only to Negro-owned service stations. And we are going only—the only time you will see us around on this street, now listen good, you are going to Lee's Grocery and other stores on this end. Is that clear? (Yeah) (Applause) "We don't want to go to none of them drugstores. They get us confused. Now, who am I going to get my medicine from? Let us know in time and we will be glad to furnish a car free to carry you anywhere you have to go to get a prescription filled. You can't beat this. (No) It won't cost you a dime. You go to any of the local black businessmen and tell them you have got to go to Vicksburg to get your stuff. And then if they don't carry you, let us know. We'll take care of them later. (Applause) Now, you know, we have got a little song that says, `This is your thing, do what you want to do.' (Applause) This is our thing, let's do what we want to do with it. Let's make sure now—if you be disobedient *938 now you are going to be in trouble. Remember that, now, listen. Listen good. They are going to start saying, `You know what, Evers is down there with his goon squad,' Now, we know Claiborne County,—`with his goon squad harassing poor ole niggers.' "Well, good white folks you have been harassing us all our lives. (Applause) And if we decided to harass you that's our business. (That's right) They are our children and we are going to discipline them the way we want to. Now, be sure you get all this right on all these tape recorders. Whatever I say on this trip I will say it in Jackson. (Amen) (Glory) And I will say it in Washington and New York. White folks ain't gonna never control us no more. (Applause) "Now, my dear friends, the white folks have got the message. I hope you have got the message and tell every one of our black brothers until all these people are gone, you voted on this in the church, don't let me down, and don't let yourself down. We agreed in the church that we would vacate this town until they have met those requests, the white folks don't demand nothing out of us. All right, white folks, we are just saying until you decide when you want to do these little things we beg of you, we are not coming back. (No way) "None of us better not be caught up here. (Yea) I don't care how old you are, I don't care how sick you are, I don't care how crazy you are, you better not be caught on these streets shopping in these stores until these demands are met. (Applause) "Now, let's get together. Are you for this or against it? (Applause) (For it.) Remember you voted this. We intend to enforce it. You needn't go calling the chief of police, he can't help you none. You needn't go calling the sheriff, he can't help you none. (That's right.) He ain't going to offer *939 to sleep with none of us men, I can tell you that. (Applause) Let's don't break our little rules that you agreed upon here. "Let's go to the funeral of our young son whenever the funeral is. I don't want you to come with hate because that is not going to solve our problems. (No hate.) We don't want you to hate the white folks here in Port Gibson. That is not going to solve it. If you hate what they have done, I hate to get personal, I hate what they did so much to Medgar, (I know.) I ain't going to ever stop hating them for that. But I am going to chase them in the way what I know is right and just. I am not going to lay out in the bushes and shoot no white folks. That's wrong. I am not gonna go out here and bomb none of them's home. (No) That's not right. But I am going to do everything in my power to take away all the power, political power, legal power that they possess anywhere I live. We are going to compete against them. When we blacks learn to support and respect each other, then and not until then, will white folks respect us. (Applause) "Now, you know I trust white folks and I mean every word I say. But it comes a time when we got to make up in our mind individually, are we going to make those persons worthwhile. We done talked and raised all kind of sand all day here, now, what is really going to prove it, are we going to live up to what we have said? (Applause) Now if there is any one of us breaks what we agreed upon, you are just as guilty as that little trigger-happy, blood-thirsty rascal. (Tell 'em about it.) "I go all over this country, and I ought not to tell you white folks this, and I tell other white folks that some day we are going to get together in Mississippi, black and white, and work out our problems. And we are ready to start whenever you are. If you are ready to start, we are. We ain't *940 going to let you push us, not one inch. (That's right.) If you come on beating us, we are going to fight back. (Right) We got our understanding. We are all God's children. The same man that brought you all here brought us. You could have been black just like we are. We could have been white and baldheaded just like you are. (Laughter) (Inaudible) We are going to work hard at this, Dan. We are going to be organized this time. We ain't going to be bought off and talked off. We are going to elect the county sheriff here this next time that don't need the highway patrol. Now, you see, Dan had a good chance to set himself up right, but he goofed it. He goofed. (Yeah) He blew it. (Laughter) Don't forget that, heah. (Right) It brings back memories like you know you remember things we do. "Now, if you don't think it is necessary, we don't have to go back to the church. If you want to go back there, we can. I want you to make sure here that we are going to leave this town to our white brothers and we ain't coming back no more until all our requests have been met. Is that the common consent of all of you here? (Applause) (Let's go back to the church.) All right. Are we willing to make sure that everyone of us will be sure that none of the rest of our black brothers violate our (Yea) We are all saying it now. Let's not say it now so much on my part. You know, I'm just sort of leading, you know, how these lawyers are, leading our folks on to say what has to be said. And that's the case. Let's make us a white town. We would like for you to start it. Be courteous now. Don't mistreat nobody. Tell them, in a nice forceful way, the curfew is going to be on until they do what we ask them."

Justice Scalia

majority

Alabama v. North Carolina

https://www.courtlistener.com/opinion/147530/alabama-v-north-carolina/

https://www.courtlistener.com/api/rest/v3/clusters/147530/

2009-060

In this case, which arises under our original jurisdiction, U. S. Const., Art. III, §2, cl. 2; 28 U.S. C. §1251(a), we consider nine exceptions submitted by the parties to two reports filed by the Special Master. I In 1986, Congress granted its consent under the Com­ pact Clause, U. S. Const., Art. I, §10, cl. 3, to seven inter­ state compacts providing for the creation of regional facili­ ties to dispose of low-level radioactive waste. Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act, 99 Stat. 1859. One of those compacts was the South­ east Interstate Low-Level Radioactive Waste Management Compact (Compact), entered into by Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia. Id., at 1871–1880. That Com­ pact established an “instrument and framework for a cooperative effort” to develop new facilities for the long­ 2 ALABAMA v. NORTH CAROLINA Opinion of the Court term disposal of low-level radioactive waste generated within the region. Art. 1, id., at 1872. The Compact was to be administered by a Southeast Interstate Low-Level Radioactive Waste Management Commission (Commis­ sion), composed of two voting members from each party State. Art. 4(A), id., at 1874. A pre-existing facility in Barnwell, South Carolina was to serve as the initial facility for regional generators to dispose of their low-level radioactive waste. Art. 2(10), id., at 1873. That facility was scheduled to close as the re­ gional-disposal facility for the Compact by the end of 1992, ibid., and so the Compact required the Commission to develop “procedures and criteria for identifying . . . a host [S]tate for the development of a second regional disposal facility,” and to “seek to ensure that such facility is li­ censed and ready to operate as soon as required but in no event later than 1991,” Art. 4(E)(6), id., at 1875. The Compact authorized the Commission to “designate” a party State as a host State for the facility. Art. 4(E)(7), ibid. In September 1986, the Commission designated North Carolina as the host for the second facility. North Caro­ lina therefore became obligated to “take appropriate steps to ensure that an application for a license to construct and operate a [low-level radioactive waste storage facility] is filed with and issued by the appropriate authority.” Art. 5(C), id., at 1877. In 1987, North Carolina’s General Assembly created the North Carolina Low-Level Radioac­ tive Waste Management Authority (Authority) to fulfill the State’s obligation. N. C. Gen. Stat. §104G (1987), 1987 N. C. Sess. Laws ch. 850. Although “[t]he Commission is not responsible for any costs associated with,” among other things, “the creation of any facility,” Art. 4(K)(1), 99 Stat. 1876, North Carolina asked the Commission for financial assistance with build­ ing and licensing costs. The Commission responded by Cite as: 560 U. S. ____ (2010) 3 Opinion of the Court adopting a resolution, which declared it was both “appro­ priate and necessary” for the Commission “to provide financial assistance” to North Carolina. App. 63. To that end, the Commission created a “Host States Assistance Fund” to help North Carolina with the “financial costs and burdens” of “preliminary planning, the administrative preparation, and other pre-operational” activities. Id., at 64. The estimate in 1989 was that it would cost approxi­ mately $21 million and take two years to obtain a license for North Carolina’s regional-disposal facility. That proved to be wildly optimistic. By 1990, the cost estimate had ballooned to $45.8 million, and the estimated date for obtaining a license now extended far into 1993. At the beginning of 1994 there still was no license, and the esti­ mated cost had grown to $87.1 million. By end of 1994 the estimate was $112.5 million, and issuance of a license was not anticipated until 1997. And by December 1996 the estimated cost had increased by another $27 million and the projected date to receive a license had become August 2000. North Carolina’s own appropriations—approximately $27 million from Fiscal Year 1988 through Fiscal Year (FY) 1995—did not cover the costs of the licensing phase. But during the same time period, the Commission pro­ vided North Carolina with approximately $67 million. The funds came from surcharges and access fees collected for that purpose from generators disposing of low-level radioactive waste at the pre-existing Barnwell facility. Id., at 71–74, 145. In July 1995, however, South Carolina withdrew from the Compact, thereby depriving the Commission of contin­ ued revenues from the Barnwell facility. In 1996, the Commission accordingly informed North Carolina that it would no longer be able to provide financial support for licensing activities. The Governor of North Carolina 4 ALABAMA v. NORTH CAROLINA Opinion of the Court responded that the State was not prepared to assume a greater portion of the project’s costs, and would not be able to proceed without continued Commission funding. Shortly thereafter the Commission adopted a resolution declaring that it was willing and able to provide additional funds, but calling on North Carolina to work with it to develop long-term funding sources for the facility. From FY 1996 through FY 1998, the Commission provided North Carolina approximately an additional $12.27 mil­ lion in financial assistance. North Carolina, for its part, continued to provide its own funds toward licensing activi­ ties—another $6 million during the same time period. In August 1997, the Commission notified North Caro­ lina that absent a plan for funding the remaining steps of the licensing phase, it would not disburse additional funds to North Carolina after November 30, 1997. North Caro­ lina responded that it would not be able to continue with­ out additional guarantees of external funding. On Decem­ ber 1, 1997, the parties having failed to agree upon a long­ term financing plan, the Commission ceased financial assistance to North Carolina. By then it had provided almost $80 million. On December 19, 1997, North Carolina informed the Commission it would commence an orderly shutdown of its licensing project, and since that date has taken no further steps toward obtaining a license for the facility. But it did continue to fund the Authority for several more years, in the hope that the project would resume upon the restora­ tion of external financial assistance. North Carolina maintained the proposed facility site, preserved the work it had completed to date, and retained the Authority’s books and records. It also participated in discussions with the Commission, generators of low-level radioactive waste, and other stakeholders regarding options to resolve the financing shortfall. From FY 1988 through FY 2000, North Carolina had expended almost $34 million toward Cite as: 560 U. S. ____ (2010) 5 Opinion of the Court obtaining a license. In June 1999, after attempts to resolve the funding impasse had failed, Florida and Tennessee filed with the Commission a complaint for sanctions against North Carolina. It alleged that North Carolina had failed to fulfill its obligations under the Compact, and requested (among other things) return of the almost $80 million paid to North Carolina by the Commission, plus interest, as well as damages and attorney’s fees. The next month, North Carolina withdrew from the Compact by enacting a law repealing its status as a party State, see 1999 N. C. Sess. Laws ch. 357, as required by Article 7(G) of the Compact. More than four months later, in December 1999, the Commission held a sanctions hearing. North Carolina did not participate. After the hearing, the Commission con­ cluded that North Carolina had failed to fulfill its obliga­ tions under the Compact. It adopted a resolution demand­ ing that North Carolina repay approximately $80 million, plus interest, to the Commission; pay an additional $10 million penalty to compensate the Commission for the loss of future revenue (surcharges and access fees) it would have received had a facility been completed in North Carolina; and pay the Commission’s attorney’s fees. North Carolina did not comply. In July 2000, seeking to enforce its sanctions resolution, the Commission moved for leave to file a bill of complaint under our original jurisdiction. Southeast Interstate Low- Level Radioactive Waste Management Commission v. North Carolina, No. 131, Orig. North Carolina opposed the motion on the grounds that the Commission could not invoke this Court’s original jurisdiction, and we invited the Solicitor General to express the views of the United States. 531 U.S. 942 (2000). The Solicitor General filed a brief urging denial of the Commission’s motion on the grounds that the Commission’s bill of complaint did not 6 ALABAMA v. NORTH CAROLINA Opinion of the Court fall within our exclusive original jurisdiction over “contro­ versies between two or more States.” §1251(a). We denied the Commission’s motion. 533 U.S. 926 (2001). In June 2002, the States of Alabama, Florida, Tennes­ see, and Virginia, joined by the Commission (collectively Plaintiffs), moved for leave to file a bill of complaint against North Carolina. North Carolina opposed the motion, and we again sought the views of the Solicitor General. 537 U.S. 806 (2002). The United States urged that we grant Plaintiffs’ motion, which we did. 539 U.S. 925 (2003). The bill of complaint contains five counts: violation of the party States’ rights under the Compact (Count I); breach of contract (Count II); unjust enrichment (Count III), promissory estoppel (Count IV); and money had and received (Count V). Plaintiffs’ prayer for relief requests a declaration that North Carolina is subject to sanctions and that the Commission’s sanctions resolution is valid and enforceable, as well as the award of damages, costs, and other relief. We assigned the case to a Special Master, 540 U.S. 1014 (2003), who has conducted proceedings and now has filed two reports. The Master’s Preliminary Report ad­ dressed three motions filed by the parties. He recom­ mended denying without prejudice North Carolina’s mo­ tion to dismiss the Commission’s claims against North Carolina on the grounds of sovereign immunity. Prelimi­ nary Report 4–14. He recommended denying Plaintiffs’ motion for summary judgment on Count I, which sought enforcement of the Commission’s sanctions resolution. Id., at 14–33. He recommended granting North Carolina’s cross-motion to dismiss Count I and other portions of the bill of complaint that sought enforcement of the sanctions resolution. Id., at 33–34. And he recommended denying North Carolina’s motion to dismiss the claims in Counts II–V. Id., at 34–43. After the Special Master issued his Preliminary Report, Cite as: 560 U. S. ____ (2010) 7 Opinion of the Court the parties engaged in partial discovery and subsequently filed cross-motions for summary judgment. The Special Master’s Second Report recommended denying Plaintiffs’ motion for summary judgment on Count II, Second Report 8–35, and granting North Carolina’s motion for summary judgment on Count II, id., at 35–40. Finally, he recom­ mended denying North Carolina’s motion for summary judgment on Plaintiffs’ remaining claims in Counts III–V. Id., at 41–45. II Plaintiffs present a total of seven exceptions to the Special Master’s two reports. We address them in turn. A Their first exception challenges the Special Master’s conclusion that the Commission lacked authority to im­ pose monetary sanctions upon North Carolina. The terms of the Compact determine that question. Article 4(E) of the Compact sets forth the Commission’s “duties and powers.” Among its powers are the authority “[t]o revoke the membership of a party [S]tate that will­ fully creates barriers to the siting of a needed regional facility,” Art. 4(E)(7), 99 Stat. 1875, and the authority “[t]o revoke the membership of a party [S]tate in accordance with Article 7(f),” Art. 4(E)(11), ibid. Conspicuously ab­ sent from Article 4, however, is any mention of the author­ ity to impose monetary sanctions. Plaintiffs contend that authority may be found elsewhere—in the first paragraph of Article 7(F), which provides in relevant part: “Any party [S]tate which fails to comply with the provisions of this compact or to fulfill the obligations incurred by becoming a party [S]tate to this compact may be subject to sanctions by the Commission, in­ cluding suspension of its rights under this compact and revocation of its status as a party [S]tate.” Id., at 8 ALABAMA v. NORTH CAROLINA Opinion of the Court 1879. The sanctions expressly identified in Article 7(F)— “suspension” of rights and “revocation” of party-state status—flow directly from the Commission’s power in Articles 4(E)(7) and (11) to revoke a party State’s member­ ship. That can fairly be understood to include the lesser power to suspend a party State’s rights. There is no simi­ lar grounding in Article 4(E) of authority to impose mone­ tary sanctions, and the absence is significant. According to Plaintiffs, however, the word “sanctions” in Article 7(F) naturally “includ[es]” monetary sanctions. Since the Compact contains no definition of “sanctions,” we give the word its ordinary meaning. A “sanction” (in the sense the word is used here) is “[t]he detriment loss of reward, or other coercive intervention, annexed to a viola­ tion of a law as a means of enforcing the law.” Webster’s New International Dictionary 2211 (2d ed. 1957) (herein­ after Webster’s Second); see Black’s Law Dictionary 1458 (9th ed. 2009) (“A penalty or coercive measure that results from failure to comply with a law, rule, or order”). A monetary penalty is assuredly one kind of “sanction.” See generally Department of Energy v. Ohio, 503 U.S. 607, 621 (1992). But there are many others, ranging from the withholding of benefits, or the imposition of a nonmone­ tary obligation, to capital punishment. The Compact surely does not authorize the Commission to impose all of them. Ultimately, context dictates precisely which “sanctions” are authorized under Article 7(F), and nothing in the Compact suggests that these include monetary measures. The only two “sanctions” specifically identified as being included within Article 7(F) are “suspension” of a State’s rights under the Compact and “revocation” of its status as a party State. These are arguably merely examples, and may not exhaust the universe of sanctions the Commission Cite as: 560 U. S. ____ (2010) 9 Opinion of the Court can impose. But they do establish “illustrative applica­ tion[s] of the general principle,” Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941), which underlies the kinds of sanctions the Commission can impose. It is significant that both these specifically authorized sanctions are prospective and nonmonetary in nature. Moreover, Article 3 of the Compact provides: “The rights granted to the party [S]tates by this compact are addi­ tional to the rights enjoyed by sovereign states, and noth­ ing in this compact shall be construed to infringe upon, limit, or abridge those rights.” 99 Stat. 1873. Construing Article 7(F) to authorize monetary sanctions would violate this provision, since the primeval sovereign right is im­ munity from levies against the government fisc. See, e.g., Alden v. Maine, 527 U.S. 706, 750–751 (1999). Finally, a comparison of the Compact’s terms with those of “[o]ther interstate compacts, approved by Congress contemporaneously,” Texas v. New Mexico, 462 U.S. 554, 565 (1983), confirms that Article 7(F) does not authorize monetary sanctions. At the same time Congress consented to this Compact, it consented to three other interstate compacts that expressly authorize their commissions to impose monetary sanctions against the parties to the compacts. See Northeast Interstate Low-Level Radioac­ tive Waste Management Compact, Art. IV(i)(14), 99 Stat. 1915 (hereinafter Northeast Compact); Central Midwest Interstate Low-Level Radioactive Waste Compact, Art. VIII(f), 99 Stat. 1891 (hereinafter Central Midwest Com­ pact); Central Interstate Low-Level Radioactive Waste Compact, Art. VII(e), 99 Stat. 1870 (hereinafter Central Compact). The Compact “clearly lacks the features of these other compacts, and we are not free to rewrite it” to empower the Commission to impose monetary sanctions. Texas v. New Mexico, 462 U.S., at 565. 10 ALABAMA v. NORTH CAROLINA Opinion of the Court B Because the Compact does not authorize the Commis­ sion to impose monetary sanctions, Plaintiffs’ second exception—that North Carolina could not avoid monetary sanctions by withdrawing from the Compact—is moot. The third exception also pertains to the Commission’s sanctions resolution: that North Carolina forfeited its right to object to a monetary penalty by failing to partici­ pate at the sanctions hearing. Plaintiffs have failed to argue this exception. They have merely noted that North Carolina refused to participate at the sanctions hearing, and have cited no law in support of the proposition that this was a forfeit. We deem the exception abandoned. It was wisely abandoned, because it is meritless. North Carolina opposed the sanctions resolution and denied that the Commission had jurisdiction to impose sanctions against it. C Plaintiffs next take exception to the Special Master’s recommendation that no binding effect or even deference be accorded to the Commission’s conclusion that North Carolina violated Article 5(C) of the Compact. We are bound by the Commission’s conclusion of breach only if there is “an explicit provision or other clear indicatio[n]” in the Compact making the Commission the “sole arbiter of disputes” regarding a party State’s compliance with the Compact. Id., at 569–570. Plaintiffs assert there is such a provision, the second sentence of Article 7(C), which states: “The Commission is the judge of the qualifications of the party [S]tates and of its members and of their com­ pliance with the conditions and requirements of this com­ pact and the laws of the party [S]tates relating to the enactment of this compact.” 99 Stat. 1879. Plaintiffs greatly overread this provision. The limited nature of the authority to “judge” that it confers upon the Cite as: 560 U. S. ____ (2010) 11 Opinion of the Court Commission is clear from its context. The first sentence of Article 7(C) states that an eligible State “shall be de­ clared” a party State “upon enactment of this compact into law by the [S]tate and upon [the] payment of” a $25,000 fee, as “required by Article 4(H)(1).” Ibid. The second sentence makes the Commission the “judge” of four mat­ ters, all of which concern status as a party State or Com mission member. First, the Commission is the judge of the “qualifications” of a State to become a party State (the qualifications set forth in Article 7(A) for the initial party States and in Article 7(B) for States that subsequently petition to join). Second, the Commission is the judge of the qualifications of the members of the Commission, which are specified in Article 4(A). Third, the Commission is the judge of a party State’s compliance with the “condi­ tions” and “requirements” of the Compact. The former term is an obvious reference to Article 7(B): “The Commis­ sion may establish such conditions as it deems necessary and appropriate to be met by a [S]tate wishing . . . to become a party [S]tate to this [C]ompact.” Id., at 1878. The accompanying term “requirements” also refers to Article 7’s prescriptions for prospective party States, such as paying the “fees required” under Article 7(C), id., at 1879, and obtaining, as Article 7(B) requires, a two-thirds vote of the Commission in favor of admission. Finally, the Commission is the judge of the “laws of the party [S]tates relating to the enactment of this compact.” Art. 7(C), ibid. Again, that concerns status as a party State, which re­ quires that the State “enac[t] . . . this compact into law,” ibid. The Commission is the “judge” of only these specific matters. This is not to say the Commission lacks authority to interpret the Compact or to say whether a party State has violated its terms. That is of course implicit in its power to sanction under Article 7(F). But because “the express terms of the [Southeast] Compact do not constitute the 12 ALABAMA v. NORTH CAROLINA Opinion of the Court Commission as the sole arbiter” regarding North Caro­ lina’s compliance with its obligations under the Compact, Texas v. New Mexico, 462 U.S., at 569, we are not bound to follow the Commission’s findings. Plaintiffs argue that we nonetheless owe deference to the Commission’s conclusion. But unless the text of an interstate compact directs otherwise, we do not review the actions of a compact commission “on the deferential model of judicial review of administrative action by a federal agency.” Id., at 566–567. The terms of this Compact do not establish that “this suit may be maintained only as one for judicial review of the Commission’s” determination of breach. Id., at 567. Accordingly, we do not apply ad­ ministrative-law standards of review, but exercise our independent judgment as to both fact and law in executing our role as the “exclusive” arbiter of controversies between the States, §1251(a). D Plaintiffs’ next two exceptions are to the Special Mas­ ter’s recommendations to deny their motion for summary judgment on their breach-of-contract claims, and to grant North Carolina’s motion for summary judgment on those claims. In resolving motions for summary judgment in cases within our original jurisdiction, we are not techni­ cally bound by the Federal Rules of Civil Procedure, but we use Rule 56 as a guide. This Court’s Rule 17.2; Ne braska v. Wyoming, 507 U.S. 584, 590 (1993). Hence, summary judgment is appropriate where there “is no genuine issue as to any material fact” and the moving party is “entitled to a judgment as a matter of law.” Fed. Rule Civ. Proc. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Cite as: 560 U. S. ____ (2010) 13 Opinion of the Court 1 Plaintiffs claim North Carolina breached the Compact in December 1997, when (as it admits) it ceased all efforts toward obtaining a license. At that point, in their view, North Carolina was no longer “tak[ing] appropriate steps to ensure that an application for a license to construct and operate a [low-level radioactive waste storage facility] is filed with and issued by the appropriate authority,” Art. 5(C), 99 Stat. 1877. North Carolina says that once the Commission ceased providing financial assistance on December 1, and once it became clear there was insuffi­ cient funding to complete the licensing phase, there were no more “appropriate” steps to take. The Special Master concluded that the phrase “appropriate steps” in Article 5(C) was ambiguous, and that the parties’ course of per­ formance established that North Carolina was not re­ quired to take steps toward obtaining a license once it was made to bear the remaining financial burden of the licens­ ing phase. Second Report 10–24, 35–36. Plaintiffs take exception to that conclusion. Article 5(C) does not require North Carolina to take any and all steps to license a regional-disposal facility; only those that are “appropriate.” Plaintiffs contend that this requires North Carolina to take the steps set forth in the regulations of the Nuclear Regulatory Commission govern­ ing the filing and disposition of applications for licenses to operate radioactive waste disposal facilities, 10 CFR pt. 61 (1997). Those regulations set forth some, but certainly not all, of the “steps” the State would have to take to obtain a license. But Article 5(C) does not incorporate the regula­ tions by reference, much less describe them as the appro priate steps. We could accept Plaintiffs’ contention if “appropriate” meant “necessary” (the steps set forth in the regulation are assuredly necessary to obtaining a license). But it does not. Whether a particular step is “appropriate”— 14 ALABAMA v. NORTH CAROLINA Opinion of the Court “[s]pecially suitable; fit; proper,” Webster’s Second 133— could depend upon many factors other than its mere in­ dispensability to obtaining a license. It would not be appropriate, for example, to take a step whose cost greatly exceeded whatever benefits the license would confer, or if it was highly uncertain the license would ever issue. In determining whether, in terminating its efforts to obtain a license, North Carolina failed to take what the parties considered “appropriate” steps, the parties’ course of performance under the Compact is highly significant. See, e.g., New Jersey v. New York, 523 U.S. 767, 830–831 (1998) (SCALIA, J., dissenting); Restatement (Second) of Contracts §§202(4), 203 (1979) (hereinafter Restatement). That firmly establishes that North Carolina was not ex­ pected to go it alone—to proceed with the very expensive licensing process without any external financial assis­ tance. The history of the Compact consists entirely of shared financial burdens. From the beginning, North Carolina made clear that it required financial assistance to do the extensive work required for obtaining a license. The Commission promptly declared it was “appropriate and necessary” to assist North Carolina with the costs. App. 63. It provided the vast majority of funding for li­ censing-related activities—$80 million, compared to North Carolina’s $34 million. The Commission repeatedly noted the necessity (and propriety) of providing financial assis­ tance to North Carolina, and reiterated its dedication to sharing the substantial financial burdens of the licensing phase. See, e.g., id., at 63, 71, 145. There is nothing to support the proposition that the other States had an obli­ gation under the Compact to share the licensing costs through the Commission; but we doubt that they did so out of love for the Tarheel State. They did it, we think, because that was their understanding of how the Compact was supposed to work. One must take the Commission at its word, that it was “appropriate” to share the cost— Cite as: 560 U. S. ____ (2010) 15 Opinion of the Court which suggests that it would not have been appropriate to make North Carolina proceed on its own. Nor was North Carolina required after December 19, 1997, to continue to expend its own funds at the same level it had previously (which Plaintiffs concede had satis­ fied North Carolina’s obligation to take “appropriate steps”). Once the Commission refused to provide any further financial assistance, North Carolina would have had to assume an unlimited financial commitment to cover all remaining licensing costs. Even if it maintained its prior rate of appropriations going forward, it would not have come close to covering the at least $34 million needed for the last steps of the licensing phase. And since the income from the South Carolina facility had been termi­ nated, there was no apparent prospect of funding for the construction phase (expected to cost at least $75 million). In connection with its August 1997 refusal to provide further assistance, the Commission itself had said, “[I]t will be imprudent to continue to deplete Commission resources for this purpose if a source of funds is not estab­ lished soon for the ultimate completion of the project.” Id., at 306, 307; Joint Supp. Fact Brief App. 36, 37. And in March 1998, the Commission “strongly” reiterated that “it would be imprudent to spend additional funds for licens­ ing activities if funds will not be available to complete the project.” Id., at 59. What was imprudent for the Commis­ sion would surely have been imprudent (and hence inap­ propriate) for North Carolina as well. The State would have wasted millions of its taxpayers’ dollars on what seemed to be a futile effort. JUSTICE BREYER would uphold Plaintiffs’ challenge on this point. He believes that the Compact obligated North Carolina to fund and complete the licensing and construc­ tion of a nuclear waste facility. Post, at 2, 4–6 (opinion concurring in part and dissenting in part). In fact, how­ ever, North Carolina was not even contractually required 16 ALABAMA v. NORTH CAROLINA Opinion of the Court to “secur[e] a license,” post, at 2, but only to take “appro­ priate steps” to obtain one, Art. 5(C), 99 Stat. 1877. And nothing in the terms of the Compact required North Caro­ lina either to provide “adequate funding” for or to “beg[i]n construction” on a regional facility, post, at 2. Other con­ temporaneously enacted interstate compacts expressly provide that the host State is “responsible for the timely development” of a regional facility, Central Midwest Com­ pact, Art. VI(f), 99 Stat. 1887; Midwest Compact, Art. VI(e), id., at 1898, or “shall . . . [c]ause a regional facility to be developed on a timely basis,” Rocky Mountain Low-Level Radioactive Waste Compact, Art. III(d)(i), id., at 1903–1904. But the compact here before us has no such provision, and the contrast is telling.1 Texas v. New Mex ico, 462 U.S., at 565. Moreover, the Commission’s state­ ments described in the preceding paragraph, that it would be imprudent to commit additional resources “ ‘if a source of funds is not established soon for the ultimate comple­ tion of the project,’ ” or “ ‘if funds will not be available to complete the project,’ ” surely suggest that North Carolina is not committed to the funding by contract. JUSTICE BREYER asserts, post, at 4–5, that the rotating­ —————— 1 The Compact provides only that the host State is “responsible for the availability . . . of their regional facilities in accordance with” Article 5(B). Art. 3(C), 99 Stat. 1873–1874. The latter section makes clear that responsibility for “availability” does not mean that the host State will fund construction of the facility, but that it will keep it open and not impose unreasonable restrictions on its use. JUSTICE BREYER is correct that the Compact says the Commission is not “responsible” for the costs of “the creation” of a regional facility. Art. 4(K)(1), id., at 1876. But what is important here is that it does not say that the host State is responsible—which (if it were true) would almost certainly have been joined with saying who was not responsible. What JUSTICE BREYER overlooks is the possibility that no one is responsible, and the licensing and construction of the facility is meant to depend upon voluntary funding by interested parties, such as the party States, the Commission, and low-level radioactive waste generators. Cite as: 560 U. S. ____ (2010) 17 Opinion of the Court host requirement in the Compact, see Art. 5(A), 99 Stat. 1873, necessarily implies that North Carolina is solely responsible for the licensing and construction costs of its facility. But all that requirement entails is that a party State “shall not be designated” as a host State for a second time before “each [other] party [S]tate” has taken a turn. Ibid. It can perfectly well envision that the States will take turns in bearing the lead responsibility for getting the facility licensed, supervising its construction, and operating the facility on its soil. In fact, that is just what its text suggests, since it describes the responsibility that is to be rotated as the host State’s “obligation . . . to have a regional facility operated within its borders.” Ibid. Not to construct it, or pay for its construction, but to “have [it] operated within its borders.” As noted above, other con­ temporaneously enacted compacts do spell out the obliga­ tion of the host State to construct the facility. Still others at least provide that the host State will recoup its costs through disposal fees—which arguably suggests that the host State is to bear the costs. See, e.g., Central Compact, Art. III(d), 99 Stat. 1865; Northeast Compact, Art. III(c)(2), id., at 1913. The compact before us here does not even contain that arguable suggestion. What it comes down to, then, is JUSTICE BREYER’s intui­ tion that the whole point of the Compact was that each designated host State would bear the up-front costs of licensing and construction, but would eventually recoup those costs through its regional monopoly on the disposal of low-level radioactive waste. Post, at 5–6. He can cite no provision in the Compact which reflects such an under­ standing, and the behavior of the parties contradicts it.2 It —————— 2 The course-of-dealing evidence that JUSTICE BREYER identifies, post, at 6–7, is not probative. The Commission’s statements that it is not legally responsible for costs and that at some point Commission funds will no longer be available, and North Carolina’s assurances that it will keep its commitments and honor its obligations, are perfectly compati­ 18 ALABAMA v. NORTH CAROLINA Opinion of the Court would, moreover, have been a foolish understanding, since the regional monopoly to recoup construction costs would not be a monopoly if South Carolina withdrew and contin­ ued to operate its facility—which is exactly what hap­ pened in 1995.3 Even leaving aside the principle, dis­ cussed infra, at 21, that implied obligations are not to be read into interstate compacts, JUSTICE BREYER’s intuition fails to reflect the reality of what was implied. 2 Plaintiffs take exception to the Special Master’s rejec­ tion of their alternative argument that North Carolina repudiated the Compact when it announced it would not take further steps toward obtaining a license. They argue that North Carolina’s announcement that it was shutting down the project constituted a refusal to tender any fur­ ther performance under the contract. Plaintiffs’ repudiation theory fails for the same reasons their breach theory fails. A repudiation occurs when an obligor either informs an obligee “that the obligor will —————— ble with the proposition that North Carolina did not have to provide all funding for licensing the facility, and that it would be “inappropriate” to proceed toward obtaining a license for a facility that would never be needed or built. 3 South Carolina’s withdrawal from the Compact not only “could” affect North Carolina’s ability to recoup its facility costs, as JUSTICE BREYER grudgingly concedes, post, at 5; it unquestionably would. With a regional competitor in the Barnwell facility and declining demand for waste disposal facilities due to technological and other factors, App. 261, 263–264, North Carolina would receive significantly lower reve­ nues from its facility, id., at 261–262, 265. The document attached to a 1996 letter from North Carolina to the Commission trumpeting “$600 million in cost savings” that would come from a new facility, post, at 5, proves precisely the opposite of what JUSTICE BREYER thinks. The cost savings were to accrue “to all generators” of waste, App. 266 (emphasis added)—that is, those who would use North Carolina’s facility. Those savings would come, of course, from lower costs for waste disposal, which means that North Carolina would be charging lower rates than the Barnwell facility (and thus receiving lower revenues). Cite as: 560 U. S. ____ (2010) 19 Opinion of the Court commit a breach that would of itself give the obligee a claim for damages for total breach,” Restatement §250(a), or performs “a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach,” id., §250(b). Neither event occurred here. North Carolina never informed the Commission (or any party State) that it would not fulfill its Article 5(C) obliga­ tion to take appropriate steps toward obtaining a license. Rather, it refused to take further steps that were not appropriate. Nor did North Carolina take an affirmative act that rendered it unable to perform. To the contrary, it continued to fund the Authority for almost two years; it maintained the records of the Authority; and it preserved the work completed to date while waiting for alternative funding sources that would enable resumption of the project. Plaintiffs further argue that a repudiation was effected by North Carolina’s refusal to take further steps toward licensing “except on conditions which go beyond” the terms of the Compact, Restatement §250, Comment b (internal quotation marks omitted)—i.e., the provision of external-financial assistance. But, as we have discussed, external-financial assistance was contemplated by the Compact. E Plaintiffs’ final exception is to the Special Master’s recommendation to deny their motion for summary judg­ ment, and to grant North Carolina’s cross-motion for summary judgment, on their claim that North Carolina violated the implied duty of good faith and fair dealing when it withdrew from the Compact in July 1999. Plain­ tiffs concede that North Carolina could withdraw from the Compact, but contend it could not do so in “bad faith.” And, they assert, its withdrawal after accepting $80 mil­ lion from the Commission, and with monetary sanctions pending against it, was the epitome of bad faith. 20 ALABAMA v. NORTH CAROLINA Opinion of the Court We have never held that an interstate compact approved by Congress includes an implied duty of good faith and fair dealing. Of course “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement.” Restatement §205. But an interstate compact is not just a contract; it is a federal statute enacted by Congress. If courts were authorized to add a fairness requirement to the implementation of federal statutes, judges would be potent lawmakers in­ deed. We do not—we cannot—add provisions to a federal statute. See, e.g., Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254 (1992). And in that regard a statute which is a valid interstate compact is no different. Texas v. New Mexico, 462 U.S., at 564, 565. We are especially reluctant to read absent terms into an interstate compact given the federalism and separation-of-powers concerns that would arise were we to rewrite an agreement among sovereign States, to which the political branches consented. As we have said before, we will not “ ‘order relief inconsistent with [the] express terms’ ” of a compact, “no matter what the equities of the circumstances might otherwise invite.” New Jersey v. New York, 523 U.S., at 811 (quoting Texas v. New Mexico, supra, at 564). The Compact imposes no limitation on North Carolina’s exercise of its statutory right to withdraw. Under Article 7(G), which governed North Carolina’s withdrawal,4 “any party [S]tate may withdraw from the compact by enacting a law repealing the compact.” 99 Stat. 1879. There is no restriction upon a party State’s enactment of such a law, —————— 4 After North Carolina was designated as a host State, the Compact was amended to add Article 7(H), which restricted the ability of a party State to withdraw to within 30 days after a second regional-disposal facility opened. Southeast Interstate Low-Level Radioactive Waste Compact Amendments Consent Act of 1989, Pub. L. 101–171, §2, 103 Stat. 1289. That provision did not apply when North Carolina with­ drew, because its facility had not been opened. Cite as: 560 U. S. ____ (2010) 21 Opinion of the Court and nothing in the Compact suggests the parties under­ stood there were “certain purposes for which the expressly conferred power . . . could not be employed.” Tymshare, Inc. v. Covell, 727 F.2d 1145, 1153 (CADC 1984) (opinion for the court by Scalia, J.). Moreover, Article 3 ensures that no such restrictions may be implied, since it provides that the Compact shall not be “construed to infringe upon, limit or abridge” the sovereign rights of a party State. A comparison of the Compact with other, contemporane­ ously enacted, compacts confirms there is no such limita­ tion on North Carolina’s right to withdraw. See Texas v. New Mexico, supra, at 565. In contrast to the Compact, several other compacts concerning the creation of regional facilities for the disposal of low-level radioactive waste contain express good-faith limitations upon a State’s exercise of its rights. See, e.g., Central Compact, Art. III(f), 99 Stat. 1865; Central Midwest Compact, Art. V(a), id., at 1886; Midwest Interstate Low-Level Radioactive Waste Management Compact, Art. V(a), id., at 1897. III North Carolina submits two exceptions—one to the Special Master’s Second Report and one to his Preliminary Report. A North Carolina takes exception to the recommendation of the Second Report to deny without prejudice its motion for summary judgment on the merits of Plaintiffs’ equita­ ble claims in Counts III–V. North Carolina’s motion was based on the ground that, as a matter of law, its obliga­ tions are governed entirely by the Compact. The Special Master recommended denying the motion without preju­ dice, because the claims in Counts III–V “requir[e] further briefing and argument, and possibly further discovery.” 22 ALABAMA v. NORTH CAROLINA Opinion of the Court Second Report 41. A threshold question for all claims in those Counts, for example, is whether they “belong to the Commission, the Plaintiff States, or both.” Ibid. Perhaps the States can bring them in their capacity as parens patriae, but as the Special Master noted “the parties have not adequately briefed this issue, and its resolution in this case is unclear.” Id., at 42–43. We think it was reasonable for the Special Master to defer ruling. We granted the Special Master discretion to “direct subsequent proceedings” and “to submit such re­ ports as he may deem appropriate.” 540 U.S., at 1014. He could have deferred filing any report until full factual discovery had been completed and all of the legal issues, many of which are novel and challenging, had been fully briefed, considered, and decided. Instead, he concluded that our immediate resolution of Counts I and II would facilitate the efficient disposition of the case; and in agree­ ing to hear exceptions to his Preliminary Report and Second Report we implicitly agreed. His deferral of ruling on the merits of Counts III–V is part and parcel of the same case management, and we find no reason to upset it. B North Carolina takes exception to the Special Master’s recommendation in his Preliminary Report to deny with­ out prejudice its motion to dismiss the Commission’s claims on the ground that they are barred by the Eleventh Amendment to the Constitution and by structural princi­ ples of state sovereign immunity. The Special Master assumed for the sake of argument that a State possesses sovereign immunity against a claim brought by an entity, like the Commission, created by an interstate compact,5 —————— 5 We have held that an entity created through a valid exercise of the Interstate Compact Clause is not entitled to immunity from suit under the Eleventh Amendment, see Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30 (1994), but we have not decided whether such Cite as: 560 U. S. ____ (2010) 23 Opinion of the Court Preliminary Report 5. But he recommended denying North Carolina’s motion to dismiss “at this point in the proceedings.” Ibid. The Special Master relied upon our decision in Arizona v. California, 460 U.S. 605 (1983), which held that the Eleventh Amendment did not bar the participation of several Indian Tribes in an original action concerning the allocation of rights to the waters of the Colorado River. The United States had already intervened, in its capacity as trustee for several Indian Tribes; but the Tribes moved to intervene as well, and the States opposed. We granted the Tribes’ motion, stating that the States do not enjoy sovereign immunity against the United States, and “[t]he Tribes do not seek to bring new claims or issues against the States, but only ask leave to participate in an adjudi­ cation of their vital water rights that was commenced by the United States.” Id., at 614. Thus, “our judicial power over the controversy is not enlarged by granting leave to intervene, and the States’ sovereign immunity protected by the Eleventh Amendment is not compromised.” Ibid. Relying on this holding, the Special Master held that sovereign immunity does not bar the Commission’s suit, so long as the Commission asserts the same claims and seeks the same relief as the other plaintiffs. Whether that is so, he said, “cannot be resolved without further factual and legal development[s],” Preliminary Report 6, and so North Carolina is free to renew its motion at a later point, id., at 13–14. See Second Report 45–48. Assuming (as the Special Master did) that the Commis­ sion’s claims against North Carolina implicate sovereign immunity, we agree with his disposition. North Carolina contends that making application of the Constitution’s waiver of sovereign immunity turn upon whether a nonsovereign party seeks to expand the relief sought is —————— an entity’s suit against a State is barred by sovereign immunity. 24 ALABAMA v. NORTH CAROLINA Opinion of the Court inconsistent with our decisions construing state sovereign immunity as a “personal privilege.” College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 675 (1999) (internal quotation marks omitted); see also Alden, 527 U.S., at 758. But nothing in those cases suggests that Arizona v. California has been implic­ itly overruled.6 See Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000). Neither of them arose under our original jurisdiction, and neither cited Arizona v. California or discussed—at all—the sovereign immunity issue that case addressed. That sovereign immunity is a personal privilege of the States says noth­ ing about whether that privilege “is not compromised,” Arizona v. California, supra, at 614, by an additional, nonsovereign plaintiff’s bringing an entirely overlapping claim for relief that burdens the State with no additional defense or liability.7 North Carolina contends that Arizona v. California cannot apply to the Commission’s claims, because the Commission does not—indeed, cannot—assert the same claims or seek the same relief as the plaintiff States. We disagree. In the bill of complaint, the States and the Commission assert the same claims and request the same relief. Bill of Complaint ¶¶62–86 and Prayer for Relief. Their claim for restitution of $80 million cannot, given the —————— 6 North Carolina has not asked us to overrule Arizona v. California, 460 U.S. 605 (1983). We decline to do so on our own motion and without argument. We therefore do not address the merits of THE CHIEF JUSTICE’s dissent. 7 North Carolina also asserts that our decisions in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984), and County of Oneida v. Oneida Indian Nation of N. Y., 470 U.S. 226 (1985), under­ mine Arizona v. California, supra, at 614. They do not. In neither case were there entirely overlapping claims for relief between sovereign and nonsovereign plaintiffs. See Pennhurst, supra, at 103, n. 12. Indeed, in County of Oneida there was no sovereign plaintiff. Cite as: 560 U. S. ____ (2010) 25 Opinion of the Court other allegations of the complaint, be thought to be $80 million payable to each of the four plaintiff States and the Commission. North Carolina argues, however, that summary judg­ ment in its favor is appropriate because it is clear that the Commission, and not the plaintiff States, provided $80 million to North Carolina—wherefore, as a matter of law, only the Commission can claim entitlement to $80 million, either as a measure of damages for breach of the Compact under Counts I and II of the bill of complaint, see Re­ statement §370, Comment a, and §373, or under the un­ just enrichment, promissory estoppel, and money-had-and­ received theories of recovery in Counts III, IV, and V, see, e.g., Restatement of Restitution §1, Comment a (1936). And, it contends, a stand-alone suit by the Commission is barred by sovereign immunity. With regard to Counts I and II, at least, we disagree. The Commission’s claims under those Compact-related Counts are wholly derivative of the States’ claims. See Arizona v. California, supra, at 614. The Commission is “a legal entity separate and distinct from” the States that are parties to the Compact. Art. 4(M)(1), 99 Stat. 1877. Since it is not a party it has neither a contractual right to performance by the party States nor enforceable statutory rights under Article 5 of the Compact, see Bennett v. Spear, 520 U.S. 154, 162–163 (1997). The Compact does, however, authorize the Commission to “act or appear on behalf of any party [S]tate or [S]tates . . . as an intervenor or party in interest before . . . any court of law,” Art. 4(E)(10), 99 Stat. 1875, and it is obviously in this capacity that the Commission seeks to vindicate the plaintiff States’ statutory and contractual rights in Counts I and II. Its Count I and Count II claims therefore rise or fall with the claims of the States. While the Commission may not bring them in a stand-alone action under this Court’s original jurisdiction, see §1251(a), it may assert them in 26 ALABAMA v. NORTH CAROLINA Opinion of the Court this Court alongside the plaintiff States, see Arizona v. California, 460 U.S., at 614. The summary judgment disallowing the underlying claims on their merits renders the sovereign immunity question with regard to any relief the Commission alone might have on those claims moot. Counts III–V, which do not rely upon the Compact, stand on a different footing. As to them, while the Com­ mission again seemingly makes the same claims and seeks the same relief as the States, it is conceivable that as a matter of law the Commission’s claims are not identical. The Commission can claim restitution as the party that paid the money to North Carolina; the other plaintiffs cannot claim it on that basis. Whether this means that the claims are not identical for Arizona v. California pur­ poses, and that the Commission’s Counts III–V claims must be dismissed on sovereign immunity grounds, is a question that the Special Master declined to resolve until the merits issues were further clarified. We have ap­ proved his deferral of those issues, and we likewise ap­ prove his deferral of the related sovereign immunity issue. * * * We overrule the exceptions of Plaintiffs and North Carolina to the Special Master’s Reports, and we adopt the recommendations of the Special Master. We grant North Carolina’s motion to dismiss Count I. We grant North Carolina’s motion for summary judgment on Count II. We deny Plaintiffs’ motions for judgment on Counts I and II. And we deny without prejudice North Carolina’s motion to dismiss the Commission’s claims on the grounds of sover­ eign immunity and its motion for summary judgment on Counts III–V. It is so ordered. Cite as: 560 U. S. ____ (2010) 1 Opinion of KENNEDY, J. SUPREME COURT OF THE UNITED STATES _________________ No. 132, Orig. _________________ STATE OF ALABAMA, STATE OF FLORIDA, STATE OF TENNESSEE, COMMONWEALTH OF VIRGINIA, AND SOUTHEAST INTERSTATE LOW-LEVEL RADIO- ACTIVE WASTE MANAGEMENT COMMISSION, PLAINTIFFS v. STATE OF NORTH CAROLINA ON EXCEPTIONS TO THE PRELIMINARY AND SECOND REPORTS OF THE SPECIAL MASTER [June 1, 2010] JUSTICE KENNEDY, with whom JUSTICE SOTOMAYOR joins, concurring in part and concurring in the judgment.

In this case, which arises under our original jurisdiction, U. S. Const., Art. III, cl. 2; 28 U.S. C. we consider nine exceptions submitted by the parties to two reports filed by the Special Master. I In 1986, Congress granted its consent under the Com­ pact Clause, U. S. Const., Art. I, cl. 3, to seven inter­ state compacts providing for the creation of regional facili­ ties to dispose of low-level radioactive waste. Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act, One of those compacts was the South­ east Interstate Low-Level Radioactive Waste Management Compact (Compact), entered into by Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia. at 71–80. That Com­ pact established an “instrument and framework for a cooperative effort” to develop new facilities for the long­ 2 ALABAMA v. NORTH CAROLINA Opinion of the Court term disposal of low-level radioactive waste generated within the region. Art. 1, The Compact was to be administered by a Southeast Interstate Low-Level Radioactive Waste Management Commission (Commis­ sion), composed of two voting members from each party State. Art. 4(A), A pre-existing facility in Barnwell, South Carolina was to serve as the initial facility for regional generators to dispose of their low-level radioactive waste. Art. 2(10), at 73. That facility was scheduled to close as the re­ gional-disposal facility for the Compact by the end of 1992, ib and so the Compact required the Commission to develop “procedures and criteria for identifying a host [S]tate for the development of a second regional disposal facility,” and to “seek to ensure that such facility is li­ censed and ready to operate as soon as required but in no event later than 1991,” Art. 4(E)(6), The Compact authorized the Commission to “designate” a party State as a host State for the facility. Art. 4(E)(7), In September 1986, the Commission designated North Carolina as the host for the second facility. North Caro­ lina therefore became obligated to “take appropriate steps to ensure that an application for a license to construct and operate a [low-level radioactive waste storage facility] is filed with and issued by the appropriate authority.” Art. 5(C), In 1987, North Carolina’s General Assembly created the North Carolina Low-Level Radioac­ tive Waste Management Authority (Authority) to fulfill the State’s obligation. N. C. Gen. Stat. (1987), 1987 N. C. Sess. Laws ch. 850. Although “[t]he Commission is not responsible for any costs associated with,” among other things, “the creation of any facility,” Art. 4(K)(1), North Carolina asked the Commission for financial assistance with build­ ing and licensing costs. The Commission responded by Cite as: 560 U. S. (2010) 3 Opinion of the Court adopting a resolution, which declared it was both “appro­ priate and necessary” for the Commission “to provide financial assistance” to North Carolina. App. 63. To that end, the Commission created a “Host States Assistance Fund” to help North Carolina with the “financial costs and burdens” of “preliminary planning, the administrative preparation, and other pre-operational” activities. at 64. The estimate in 1989 was that it would cost approxi­ mately $21 million and take two years to obtain a license for North Carolina’s regional-disposal facility. That proved to be wildly optimistic. By 1990, the cost estimate had ballooned to $45.8 million, and the estimated date for obtaining a license now extended far into 1993. At the beginning of 1994 there still was no license, and the esti­ mated cost had grown to $87.1 million. By end of 1994 the estimate was $112.5 million, and issuance of a license was not anticipated until 1997. And by December 1996 the estimated cost had increased by another $27 million and the projected date to receive a license had become August 2000. North Carolina’s own appropriations—approximately $27 million from Fiscal Year 1988 through Fiscal Year (FY) 1995—did not cover the costs of the licensing phase. But during the same time period, the Commission pro­ vided North Carolina with approximately $67 million. The funds came from surcharges and access fees collected for that purpose from generators disposing of low-level radioactive waste at the pre-existing Barnwell facility. at 71–74, 145. In July 1995, however, South Carolina withdrew from the Compact, thereby depriving the Commission of contin­ ued revenues from the Barnwell facility. In 1996, the Commission accordingly informed North Carolina that it would no longer be able to provide financial support for licensing activities. The Governor of North Carolina 4 ALABAMA v. NORTH CAROLINA Opinion of the Court responded that the State was not prepared to assume a greater portion of the project’s costs, and would not be able to proceed without continued Commission funding. Shortly thereafter the Commission adopted a resolution declaring that it was willing and able to provide additional funds, but calling on North Carolina to work with it to develop long-term funding sources for the facility. From FY 1996 through FY 1998, the Commission provided North Carolina approximately an additional $12.27 mil­ lion in financial assistance. North Carolina, for its part, continued to provide its own funds toward licensing activi­ ties—another $6 million during the same time period. In August 1997, the Commission notified North Caro­ lina that absent a plan for funding the remaining steps of the licensing phase, it would not disburse additional funds to North Carolina after November 30, 1997. North Caro­ lina responded that it would not be able to continue with­ out additional guarantees of external funding. On Decem­ ber 1, 1997, the parties having failed to agree upon a long­ term financing plan, the Commission ceased financial assistance to North Carolina. By then it had provided almost $80 million. On December 19, 1997, North Carolina informed the Commission it would commence an orderly shutdown of its licensing project, and since that date has taken no further steps toward obtaining a license for the facility. But it did continue to fund the Authority for several more years, in the hope that the project would resume upon the restora­ tion of external financial assistance. North Carolina maintained the proposed facility site, preserved the work it had completed to date, and retained the Authority’s books and records. It also participated in discussions with the Commission, generators of low-level radioactive waste, and other stakeholders regarding options to resolve the financing shortfall. From FY 1988 through FY 2000, North Carolina had expended almost $34 million toward Cite as: 560 U. S. (2010) 5 Opinion of the Court obtaining a license. In June 1999, after attempts to resolve the funding impasse had failed, Florida and Tennessee filed with the Commission a complaint for sanctions against North Carolina. It alleged that North Carolina had failed to fulfill its obligations under the Compact, and requested (among other things) return of the almost $80 million paid to North Carolina by the Commission, plus interest, as well as damages and attorney’s fees. The next month, North Carolina withdrew from the Compact by enacting a law repealing its status as a party State, see 1999 N. C. Sess. Laws ch. 357, as required by Article 7(G) of the Compact. More than four months later, in December 1999, the Commission held a sanctions hearing. North Carolina did not participate. After the hearing, the Commission con­ cluded that North Carolina had failed to fulfill its obliga­ tions under the Compact. It adopted a resolution demand­ ing that North Carolina repay approximately $80 million, plus interest, to the Commission; pay an additional $10 million penalty to compensate the Commission for the loss of future revenue (surcharges and access fees) it would have received had a facility been completed in North Carolina; and pay the Commission’s attorney’s fees. North Carolina did not comply. In July 2000, seeking to enforce its sanctions resolution, the Commission moved for leave to file a bill of complaint under our original jurisdiction. Southeast Interstate Low- Level Radioactive Waste Management Commission v. North Carolina, No. 131, Orig. North Carolina opposed the motion on the grounds that the Commission could not invoke this Court’s original jurisdiction, and we invited the Solicitor General to express the views of the United States. The Solicitor General filed a brief urging denial of the Commission’s motion on the grounds that the Commission’s bill of complaint did not 6 ALABAMA v. NORTH CAROLINA Opinion of the Court fall within our exclusive original jurisdiction over “contro­ versies between two or more States.” We denied the Commission’s motion. In June 2002, the States of Alabama, Florida, Tennes­ see, and Virginia, joined by the Commission (collectively Plaintiffs), moved for leave to file a bill of complaint against North Carolina. North Carolina opposed the motion, and we again sought the views of the Solicitor General. The United States urged that we grant Plaintiffs’ motion, which we did. 539 U.S. 925 (2003). The bill of complaint contains five counts: violation of the party States’ rights under the Compact (Count I); breach of contract (Count II); unjust enrichment (Count III), promissory estoppel (Count IV); and money had and received (Count V). Plaintiffs’ prayer for relief requests a declaration that North Carolina is subject to sanctions and that the Commission’s sanctions resolution is valid and enforceable, as well as the award of damages, costs, and other relief. We assigned the case to a Special Master, 540 U.S. 1014 (2003), who has conducted proceedings and now has filed two reports. The Master’s Preliminary Report ad­ dressed three motions filed by the parties. He recom­ mended denying without prejudice North Carolina’s mo­ tion to dismiss the Commission’s claims against North Carolina on the grounds of sovereign immunity. Prelimi­ nary Report 4–14. He recommended denying Plaintiffs’ motion for summary judgment on Count I, which sought enforcement of the Commission’s sanctions resolution. at 14–33. He recommended granting North Carolina’s cross-motion to dismiss Count I and other portions of the bill of complaint that sought enforcement of the sanctions resolution. at 33–34. And he recommended denying North Carolina’s motion to dismiss the claims in Counts II–V. at 34–43. After the Special Master issued his Preliminary Report, Cite as: 560 U. S. (2010) 7 Opinion of the Court the parties engaged in partial discovery and subsequently filed cross-motions for summary judgment. The Special Master’s Second Report recommended denying Plaintiffs’ motion for summary judgment on Count II, Second Report 8–35, and granting North Carolina’s motion for summary judgment on Count II, at 35–40. Finally, he recom­ mended denying North Carolina’s motion for summary judgment on Plaintiffs’ remaining claims in Counts III–V. at 41–45. II Plaintiffs present a total of seven exceptions to the Special Master’s two reports. We address them in turn. A Their first exception challenges the Special Master’s conclusion that the Commission lacked authority to im­ pose monetary sanctions upon North Carolina. The terms of the Compact determine that question. Article 4(E) of the Compact sets forth the Commission’s “duties and powers.” Among its powers are the authority “[t]o revoke the membership of a party [S]tate that will­ fully creates barriers to the siting of a needed regional facility,” Art. 4(E)(7), and the authority “[t]o revoke the membership of a party [S]tate in accordance with Article 7(f),” Art. 4(E)(11), Conspicuously ab­ sent from Article 4, however, is any mention of the author­ ity to impose monetary sanctions. Plaintiffs contend that authority may be found elsewhere—in the first paragraph of Article 7(F), which provides in relevant part: “Any party [S]tate which fails to comply with the provisions of this compact or to fulfill the obligations incurred by becoming a party [S]tate to this compact may be subject to sanctions by the Commission, in­ cluding suspension of its rights under this compact and revocation of its status as a party [S]tate.” at 8 ALABAMA v. NORTH CAROLINA Opinion of the Court 79. The sanctions expressly identified in Article 7(F)— “suspension” of rights and “revocation” of party-state status—flow directly from the Commission’s power in Articles 4(E)(7) and (11) to revoke a party State’s member­ ship. That can fairly be understood to include the lesser power to suspend a party State’s rights. There is no simi­ lar grounding in Article 4(E) of authority to impose mone­ tary sanctions, and the absence is significant. According to Plaintiffs, however, the word “sanctions” in Article 7(F) naturally “includ[es]” monetary sanctions. Since the Compact contains no definition of “sanctions,” we give the word its ordinary meaning. A “sanction” (in the sense the word is used here) is “[t]he detriment loss of reward, or other coercive intervention, annexed to a viola­ tion of a law as a means of enforcing the law.” Webster’s New International Dictionary 2211 (2d ed. 1957) (herein­ after Webster’s Second); see Black’s Law Dictionary 1458 (9th ed. 2009) (“A penalty or coercive measure that results from failure to comply with a law, rule, or order”). A monetary penalty is assuredly one kind of “sanction.” See generally Department of 621 (1992). But there are many others, ranging from the withholding of benefits, or the imposition of a nonmone­ tary obligation, to capital punishment. The Compact surely does not authorize the Commission to impose all of them. Ultimately, context dictates precisely which “sanctions” are authorized under Article 7(F), and nothing in the Compact suggests that these include monetary measures. The only two “sanctions” specifically identified as being included within Article 7(F) are “suspension” of a State’s rights under the Compact and “revocation” of its status as a party State. These are arguably merely examples, and may not exhaust the universe of sanctions the Commission Cite as: 560 U. S. (2010) 9 Opinion of the Court can impose. But they do establish “illustrative applica­ tion[s] of the general principle,” Federal Land Bank of St. which underlies the kinds of sanctions the Commission can impose. It is significant that both these specifically authorized sanctions are prospective and nonmonetary in nature. Moreover, Article 3 of the Compact provides: “The rights granted to the party [S]tates by this compact are addi­ tional to the rights enjoyed by sovereign states, and noth­ ing in this compact shall be construed to infringe upon, limit, or abridge those rights.” Construing Article 7(F) to authorize monetary sanctions would violate this provision, since the primeval sovereign right is im­ munity from levies against the government fisc. See, e.g., Finally, a comparison of the Compact’s terms with those of “[o]ther interstate compacts, approved by Congress contemporaneously,” 565 confirms that Article 7(F) does not authorize monetary sanctions. At the same time Congress consented to this Compact, it consented to three other interstate compacts that expressly authorize their commissions to impose monetary sanctions against the parties to the compacts. See Northeast Interstate Low-Level Radioac­ tive Waste Management Compact, Art. IV(i)(14), 99 Stat. 1915 (hereinafter Northeast Compact); Central Midwest Interstate Low-Level Radioactive Waste Compact, Art. VIII(f), (hereinafter Central Midwest Com­ pact); Central Interstate Low-Level Radioactive Waste Compact, Art. VII(e), (hereinafter Central Compact). The Compact “clearly lacks the features of these other compacts, and we are not free to rewrite it” to empower the Commission to impose monetary sanctions. 10 ALABAMA v. NORTH CAROLINA Opinion of the Court B Because the Compact does not authorize the Commis­ sion to impose monetary sanctions, Plaintiffs’ second exception—that North Carolina could not avoid monetary sanctions by withdrawing from the Compact—is moot. The third exception also pertains to the Commission’s sanctions resolution: that North Carolina forfeited its right to object to a monetary penalty by failing to partici­ pate at the sanctions hearing. Plaintiffs have failed to argue this exception. They have merely noted that North Carolina refused to participate at the sanctions hearing, and have cited no law in support of the proposition that this was a forfeit. We deem the exception abandoned. It was wisely abandoned, because it is meritless. North Carolina opposed the sanctions resolution and denied that the Commission had jurisdiction to impose sanctions against it. C Plaintiffs next take exception to the Special Master’s recommendation that no binding effect or even deference be accorded to the Commission’s conclusion that North Carolina violated Article 5(C) of the Compact. We are bound by the Commission’s conclusion of breach only if there is “an explicit provision or other clear indicatio[n]” in the Compact making the Commission the “sole arbiter of disputes” regarding a party State’s compliance with the Compact. at 569–570. Plaintiffs assert there is such a provision, the second sentence of Article 7(C), which states: “The Commission is the judge of the qualifications of the party [S]tates and of its members and of their com­ pliance with the conditions and requirements of this com­ pact and the laws of the party [S]tates relating to the enactment of this compact.” Plaintiffs greatly overread this provision. The limited nature of the authority to “judge” that it confers upon the Cite as: 560 U. S. (2010) 11 Opinion of the Court Commission is clear from its context. The first sentence of Article 7(C) states that an eligible State “shall be de­ clared” a party State “upon enactment of this compact into law by the [S]tate and upon [the] payment of” a $25,000 fee, as “required by Article 4(H)(1).” The second sentence makes the Commission the “judge” of four mat­ ters, all of which concern status as a party State or Com mission member. First, the Commission is the judge of the “qualifications” of a State to become a party State (the qualifications set forth in Article 7(A) for the initial party States and in Article 7(B) for States that subsequently petition to join). Second, the Commission is the judge of the qualifications of the members of the Commission, which are specified in Article 4(A). Third, the Commission is the judge of a party State’s compliance with the “condi­ tions” and “requirements” of the Compact. The former term is an obvious reference to Article 7(B): “The Commis­ sion may establish such conditions as it deems necessary and appropriate to be met by a [S]tate wishing to become a party [S]tate to this [C]ompact.” The accompanying term “requirements” also refers to Article 7’s prescriptions for prospective party States, such as paying the “fees required” under Article 7(C), at 79, and obtaining, as Article 7(B) requires, a two-thirds vote of the Commission in favor of admission. Finally, the Commission is the judge of the “laws of the party [S]tates relating to the enactment of this compact.” Art. 7(C), Again, that concerns status as a party State, which re­ quires that the State “enac[t] this compact into law,” The Commission is the “judge” of only these specific matters. This is not to say the Commission lacks authority to interpret the Compact or to say whether a party State has violated its terms. That is of course implicit in its power to sanction under Article 7(F). But because “the express terms of the [Southeast] Compact do not constitute the 12 ALABAMA v. NORTH CAROLINA Opinion of the Court Commission as the sole arbiter” regarding North Caro­ lina’s compliance with its obligations under the Compact, we are not bound to follow the Commission’s findings. Plaintiffs argue that we nonetheless owe deference to the Commission’s conclusion. But unless the text of an interstate compact directs otherwise, we do not review the actions of a compact commission “on the deferential model of judicial review of administrative action by a federal agency.” at 566–567. The terms of this Compact do not establish that “this suit may be maintained only as one for judicial review of the Commission’s” determination of breach. Accordingly, we do not apply ad­ ministrative-law standards of review, but exercise our independent judgment as to both fact and law in executing our role as the “exclusive” arbiter of controversies between the States, D Plaintiffs’ next two exceptions are to the Special Mas­ ter’s recommendations to deny their motion for summary judgment on their breach-of-contract claims, and to grant North Carolina’s motion for summary judgment on those claims. In resolving motions for summary judgment in cases within our original jurisdiction, we are not techni­ cally bound by the Federal Rules of Civil Procedure, but we use Rule 56 as a guide. This Court’s Rule 17.2; Ne Hence, summary judgment is appropriate where there “is no genuine issue as to any material fact” and the moving party is “entitled to a judgment as a matter of law.” Fed. Rule Civ. Proc. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Cite as: 560 U. S. (2010) 13 Opinion of the Court 1 Plaintiffs claim North Carolina breached the Compact in December 1997, when (as it admits) it ceased all efforts toward obtaining a license. At that point, in their view, North Carolina was no longer “tak[ing] appropriate steps to ensure that an application for a license to construct and operate a [low-level radioactive waste storage facility] is filed with and issued by the appropriate authority,” Art. 5(C), North Carolina says that once the Commission ceased providing financial assistance on December 1, and once it became clear there was insuffi­ cient funding to complete the licensing phase, there were no more “appropriate” steps to take. The Special Master concluded that the phrase “appropriate steps” in Article 5(C) was ambiguous, and that the parties’ course of per­ formance established that North Carolina was not re­ quired to take steps toward obtaining a license once it was made to bear the remaining financial burden of the licens­ ing phase. Second Report 10–24, 35–36. Plaintiffs take exception to that conclusion. Article 5(C) does not require North Carolina to take any and all steps to license a regional-disposal facility; only those that are “appropriate.” Plaintiffs contend that this requires North Carolina to take the steps set forth in the regulations of the Nuclear Regulatory Commission govern­ ing the filing and disposition of applications for licenses to operate radioactive waste disposal facilities, 10 CFR pt. 61 Those regulations set forth some, but certainly not all, of the “steps” the State would have to take to obtain a license. But Article 5(C) does not incorporate the regula­ tions by reference, much less describe them as the appro priate steps. We could accept Plaintiffs’ contention if “appropriate” meant “necessary” (the steps set forth in the regulation are assuredly necessary to obtaining a license). But it does not. Whether a particular step is “appropriate”— 14 ALABAMA v. NORTH CAROLINA Opinion of the Court “[s]pecially suitable; fit; proper,” Webster’s Second 133— could depend upon many factors other than its mere in­ dispensability to obtaining a license. It would not be appropriate, for example, to take a step whose cost greatly exceeded whatever benefits the license would confer, or if it was highly uncertain the license would ever issue. In determining whether, in terminating its efforts to obtain a license, North Carolina failed to take what the parties considered “appropriate” steps, the parties’ course of performance under the Compact is highly significant. See, e.g., New 830–831 (1998) (SCALIA, J., dissenting); Restatement (Second) of Contracts 203 (1979) (hereinafter Restatement). That firmly establishes that North Carolina was not ex­ pected to go it alone—to proceed with the very expensive licensing process without any external financial assis­ tance. The history of the Compact consists entirely of shared financial burdens. From the beginning, North Carolina made clear that it required financial assistance to do the extensive work required for obtaining a license. The Commission promptly declared it was “appropriate and necessary” to assist North Carolina with the costs. App. 63. It provided the vast majority of funding for li­ censing-related activities—$80 million, compared to North Carolina’s $34 million. The Commission repeatedly noted the necessity (and propriety) of providing financial assis­ tance to North Carolina, and reiterated its dedication to sharing the substantial financial burdens of the licensing phase. See, e.g., There is nothing to support the proposition that the other States had an obli­ gation under the Compact to share the licensing costs through the Commission; but we doubt that they did so out of love for the Tarheel State. They did it, we think, because that was their understanding of how the Compact was supposed to work. One must take the Commission at its word, that it was “appropriate” to share the cost— Cite as: 560 U. S. (2010) 15 Opinion of the Court which suggests that it would not have been appropriate to make North Carolina proceed on its own. Nor was North Carolina required after December 19, 1997, to continue to expend its own funds at the same level it had previously (which Plaintiffs concede had satis­ fied North Carolina’s obligation to take “appropriate steps”). Once the Commission refused to provide any further financial assistance, North Carolina would have had to assume an unlimited financial commitment to cover all remaining licensing costs. Even if it maintained its prior rate of appropriations going forward, it would not have come close to covering the at least $34 million needed for the last steps of the licensing phase. And since the income from the South Carolina facility had been termi­ nated, there was no apparent prospect of funding for the construction phase (expected to cost at least $75 million). In connection with its August 1997 refusal to provide further assistance, the Commission itself had said, “[I]t will be imprudent to continue to deplete Commission resources for this purpose if a source of funds is not estab­ lished soon for the ultimate completion of the project.” at 306, 307; Joint Supp. Fact Brief App. 36, 37. And in March 1998, the Commission “strongly” reiterated that “it would be imprudent to spend additional funds for licens­ ing activities if funds will not be available to complete the project.” What was imprudent for the Commis­ sion would surely have been imprudent (and hence inap­ propriate) for North Carolina as well. The State would have wasted millions of its taxpayers’ dollars on what seemed to be a futile effort. JUSTICE BREYER would uphold Plaintiffs’ challenge on this point. He believes that the Compact obligated North Carolina to fund and complete the licensing and construc­ tion of a nuclear waste facility. Post, at 2, 4–6 (opinion concurring in part and dissenting in part). In fact, how­ ever, North Carolina was not even contractually required 16 ALABAMA v. NORTH CAROLINA Opinion of the Court to “secur[e] a license,” post, at 2, but only to take “appro­ priate steps” to obtain one, Art. 5(C), And nothing in the terms of the Compact required North Caro­ lina either to provide “adequate funding” for or to “beg[i]n construction” on a regional facility, post, at 2. Other con­ temporaneously enacted interstate compacts expressly provide that the host State is “responsible for the timely development” of a regional facility, Central Midwest Com­ pact, Art. VI(f), ; Midwest Compact, Art. VI(e), or “shall [c]ause a regional facility to be developed on a timely basis,” Rocky Mountain Low-Level Radioactive Waste Compact, Art. III(d)(i), at 1903–1904. But the compact here before us has no such provision, and the contrast is telling.1 Texas v. New Mex Moreover, the Commission’s state­ ments described in the preceding paragraph, that it would be imprudent to commit additional resources “ ‘if a source of funds is not established soon for the ultimate comple­ tion of the project,’ ” or “ ‘if funds will not be available to complete the project,’ ” surely suggest that North Carolina is not committed to the funding by contract. JUSTICE BREYER asserts, post, at 4–5, that the rotating­ —————— 1 The Compact provides only that the host State is “responsible for the availability of their regional facilities in accordance with” Article 5(B). Art. 3(C), –74. The latter section makes clear that responsibility for “availability” does not mean that the host State will fund construction of the facility, but that it will keep it open and not impose unreasonable restrictions on its use. JUSTICE BREYER is correct that the Compact says the Commission is not “responsible” for the costs of “the creation” of a regional facility. Art. 4(K)(1), at 76. But what is important here is that it does not say that the host State is responsible—which (if it were true) would almost certainly have been joined with saying who was not responsible. What JUSTICE BREYER overlooks is the possibility that no one is responsible, and the licensing and construction of the facility is meant to depend upon voluntary funding by interested parties, such as the party States, the Commission, and low-level radioactive waste generators. Cite as: 560 U. S. (2010) 17 Opinion of the Court host requirement in the Compact, see Art. 5(A), 99 Stat. 73, necessarily implies that North Carolina is solely responsible for the licensing and construction costs of its facility. But all that requirement entails is that a party State “shall not be designated” as a host State for a second time before “each [other] party [S]tate” has taken a turn. It can perfectly well envision that the States will take turns in bearing the lead responsibility for getting the facility licensed, supervising its construction, and operating the facility on its soil. In fact, that is just what its text suggests, since it describes the responsibility that is to be rotated as the host State’s “obligation to have a regional facility operated within its borders.” Not to construct it, or pay for its construction, but to “have [it] operated within its borders.” As noted above, other con­ temporaneously enacted compacts do spell out the obliga­ tion of the host State to construct the facility. Still others at least provide that the host State will recoup its costs through disposal fees—which arguably suggests that the host State is to bear the costs. See, e.g., Central Compact, Art. III(d), ; Northeast Compact, Art. III(c)(2), The compact before us here does not even contain that arguable suggestion. What it comes down to, then, is JUSTICE BREYER’s intui­ tion that the whole point of the Compact was that each designated host State would bear the up-front costs of licensing and construction, but would eventually recoup those costs through its regional monopoly on the disposal of low-level radioactive waste. Post, at 5–6. He can cite no provision in the Compact which reflects such an under­ standing, and the behavior of the parties contradicts it.2 It —————— 2 The course-of-dealing evidence that JUSTICE BREYER identifies, post, at 6–7, is not probative. The Commission’s statements that it is not legally responsible for costs and that at some point Commission funds will no longer be available, and North Carolina’s assurances that it will keep its commitments and honor its obligations, are perfectly compati­ ALABAMA v. NORTH CAROLINA Opinion of the Court would, moreover, have been a foolish understanding, since the regional monopoly to recoup construction costs would not be a monopoly if South Carolina withdrew and contin­ ued to operate its facility—which is exactly what hap­ pened in 1995.3 Even leaving aside the principle, dis­ cussed infra, at 21, that implied obligations are not to be read into interstate compacts, JUSTICE BREYER’s intuition fails to reflect the reality of what was implied. 2 Plaintiffs take exception to the Special Master’s rejec­ tion of their alternative argument that North Carolina repudiated the Compact when it announced it would not take further steps toward obtaining a license. They argue that North Carolina’s announcement that it was shutting down the project constituted a refusal to tender any fur­ ther performance under the contract. Plaintiffs’ repudiation theory fails for the same reasons their breach theory fails. A repudiation occurs when an obligor either informs an obligee “that the obligor will —————— ble with the proposition that North Carolina did not have to provide all funding for licensing the facility, and that it would be “inappropriate” to proceed toward obtaining a license for a facility that would never be needed or built. 3 South Carolina’s withdrawal from the Compact not only “could” affect North Carolina’s ability to recoup its facility costs, as JUSTICE BREYER grudgingly concedes, post, at 5; it unquestionably would. With a regional competitor in the Barnwell facility and declining demand for waste disposal facilities due to technological and other factors, App. 261, 263–264, North Carolina would receive significantly lower reve­ nues from its facility, at 261–262, 265. The document attached to a 1996 letter from North Carolina to the Commission trumpeting “$600 million in cost savings” that would come from a new facility, post, at 5, proves precisely the opposite of what JUSTICE BREYER thinks. The cost savings were to accrue “to all generators” of waste, App. 266 (emphasis added)—that is, those who would use North Carolina’s facility. Those savings would come, of course, from lower costs for waste disposal, which means that North Carolina would be charging lower rates than the Barnwell facility (and thus receiving lower revenues). Cite as: 560 U. S. (2010) 19 Opinion of the Court commit a breach that would of itself give the obligee a claim for damages for total breach,” Restatement or performs “a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach,” Neither event occurred here. North Carolina never informed the Commission (or any party State) that it would not fulfill its Article 5(C) obliga­ tion to take appropriate steps toward obtaining a license. Rather, it refused to take further steps that were not appropriate. Nor did North Carolina take an affirmative act that rendered it unable to perform. To the contrary, it continued to fund the Authority for almost two years; it maintained the records of the Authority; and it preserved the work completed to date while waiting for alternative funding sources that would enable resumption of the project. Plaintiffs further argue that a repudiation was effected by North Carolina’s refusal to take further steps toward licensing “except on conditions which go beyond” the terms of the Compact, Restatement Comment b (internal quotation marks omitted)—i.e., the provision of external-financial assistance. But, as we have discussed, external-financial assistance was contemplated by the Compact. E Plaintiffs’ final exception is to the Special Master’s recommendation to deny their motion for summary judg­ ment, and to grant North Carolina’s cross-motion for summary judgment, on their claim that North Carolina violated the implied duty of good faith and fair dealing when it withdrew from the Compact in July 1999. Plain­ tiffs concede that North Carolina could withdraw from the Compact, but contend it could not do so in “bad faith.” And, they assert, its withdrawal after accepting $80 mil­ lion from the Commission, and with monetary sanctions pending against it, was the epitome of bad faith. 20 ALABAMA v. NORTH CAROLINA Opinion of the Court We have never held that an interstate compact approved by Congress includes an implied duty of good faith and fair dealing. Of course “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement.” Restatement But an interstate compact is not just a contract; it is a federal statute enacted by Congress. If courts were authorized to add a fairness requirement to the implementation of federal statutes, judges would be potent lawmakers in­ deed. We do not—we cannot—add provisions to a federal statute. See, e.g., Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254 (1992). And in that regard a statute which is a valid interstate compact is no different. Texas v. New 565. We are especially reluctant to read absent terms into an interstate compact given the federalism and separation-of-powers concerns that would arise were we to rewrite an agreement among sovereign States, to which the political branches consented. As we have said before, we will not “ ‘order relief inconsistent with [the] express terms’ ” of a compact, “no matter what the equities of the circumstances might otherwise invite.” New (quoting Texas v. New ). The Compact imposes no limitation on North Carolina’s exercise of its statutory right to withdraw. Under Article 7(G), which governed North Carolina’s withdrawal,4 “any party [S]tate may withdraw from the compact by enacting a law repealing the compact.” There is no restriction upon a party State’s enactment of such a law, —————— 4 After North Carolina was designated as a host State, the Compact was amended to add Article 7(H), which restricted the ability of a party State to withdraw to within 30 days after a second regional-disposal facility opened. Southeast Interstate Low-Level Radioactive Waste Compact Amendments Consent Act of 1989, Pub. L. 101–171, 103 Stat. 1289. That provision did not apply when North Carolina with­ drew, because its facility had not been opened. Cite as: 560 U. S. (2010) 21 Opinion of the Court and nothing in the Compact suggests the parties under­ stood there were “certain purposes for which the expressly conferred power could not be employed.” Tymshare, (opinion for the court by Scalia, J.). Moreover, Article 3 ensures that no such restrictions may be implied, since it provides that the Compact shall not be “construed to infringe upon, limit or abridge” the sovereign rights of a party State. A comparison of the Compact with other, contemporane­ ously enacted, compacts confirms there is no such limita­ tion on North Carolina’s right to withdraw. See Texas v. New In contrast to the Compact, several other compacts concerning the creation of regional facilities for the disposal of low-level radioactive waste contain express good-faith limitations upon a State’s exercise of its rights. See, e.g., Central Compact, Art. III(f), ; Central Midwest Compact, Art. V(a), ; Midwest Interstate Low-Level Radioactive Waste Management Compact, Art. V(a), at 97. III North Carolina submits two exceptions—one to the Special Master’s Second Report and one to his Preliminary Report. A North Carolina takes exception to the recommendation of the Second Report to deny without prejudice its motion for summary judgment on the merits of Plaintiffs’ equita­ ble claims in Counts III–V. North Carolina’s motion was based on the ground that, as a matter of law, its obliga­ tions are governed entirely by the Compact. The Special Master recommended denying the motion without preju­ dice, because the claims in Counts III–V “requir[e] further briefing and argument, and possibly further discovery.” 22 ALABAMA v. NORTH CAROLINA Opinion of the Court Second Report 41. A threshold question for all claims in those Counts, for example, is whether they “belong to the Commission, the Plaintiff States, or both.” Perhaps the States can bring them in their capacity as parens patriae, but as the Special Master noted “the parties have not adequately briefed this issue, and its resolution in this case is unclear.” at 42–43. We think it was reasonable for the Special Master to defer ruling. We granted the Special Master discretion to “direct subsequent proceedings” and “to submit such re­ ports as he may deem appropriate.” He could have deferred filing any report until full factual discovery had been completed and all of the legal issues, many of which are novel and challenging, had been fully briefed, considered, and decided. Instead, he concluded that our immediate resolution of Counts I and II would facilitate the efficient disposition of the case; and in agree­ ing to hear exceptions to his Preliminary Report and Second Report we implicitly agreed. His deferral of ruling on the merits of Counts III–V is part and parcel of the same case management, and we find no reason to upset it. B North Carolina takes exception to the Special Master’s recommendation in his Preliminary Report to deny with­ out prejudice its motion to dismiss the Commission’s claims on the ground that they are barred by the Eleventh Amendment to the Constitution and by structural princi­ ples of state sovereign immunity. The Special Master assumed for the sake of argument that a State possesses sovereign immunity against a claim brought by an entity, like the Commission, created by an interstate compact,5 —————— 5 We have held that an entity created through a valid exercise of the Interstate Compact Clause is not entitled to immunity from suit under the Eleventh Amendment, see but we have not decided whether such Cite as: 560 U. S. (2010) 23 Opinion of the Court Preliminary Report 5. But he recommended denying North Carolina’s motion to dismiss “at this point in the proceedings.” The Special Master relied upon our decision in Arizona v. which held that the Eleventh Amendment did not bar the participation of several Indian Tribes in an original action concerning the allocation of rights to the waters of the Colorado River. The United States had already intervened, in its capacity as trustee for several Indian Tribes; but the Tribes moved to intervene as well, and the States opposed. We granted the Tribes’ motion, stating that the States do not enjoy sovereign immunity against the United States, and “[t]he Tribes do not seek to bring new claims or issues against the States, but only ask leave to participate in an adjudi­ cation of their vital water rights that was commenced by the United States.” Thus, “our judicial power over the controversy is not enlarged by granting leave to intervene, and the States’ sovereign immunity protected by the Eleventh Amendment is not compromised.” Relying on this holding, the Special Master held that sovereign immunity does not bar the Commission’s suit, so long as the Commission asserts the same claims and seeks the same relief as the other plaintiffs. Whether that is so, he said, “cannot be resolved without further factual and legal development[s],” Preliminary Report 6, and so North Carolina is free to renew its motion at a later point, at 13–14. See Second Report 45–48. Assuming (as the Special Master did) that the Commis­ sion’s claims against North Carolina implicate sovereign immunity, we agree with his disposition. North Carolina contends that making application of the Constitution’s waiver of sovereign immunity turn upon whether a nonsovereign party seeks to expand the relief sought is —————— an entity’s suit against a State is barred by sovereign immunity. 24 ALABAMA v. NORTH CAROLINA Opinion of the Court inconsistent with our decisions construing state sovereign immunity as a “personal privilege.” College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 675 (internal quotation marks omitted); see also But nothing in those cases suggests that has been implic­ itly overruled.6 See Neither of them arose under our original jurisdiction, and neither cited or discussed—at all—the sovereign immunity issue that case addressed. That sovereign immunity is a personal privilege of the States says noth­ ing about whether that privilege “is not compromised,” by an additional, nonsovereign plaintiff’s bringing an entirely overlapping claim for relief that burdens the State with no additional defense or liability.7 North Carolina contends that cannot apply to the Commission’s claims, because the Commission does not—indeed, cannot—assert the same claims or seek the same relief as the plaintiff States. We disagree. In the bill of complaint, the States and the Commission assert the same claims and request the same relief. Bill of Complaint ¶¶62–86 and Prayer for Relief. Their claim for restitution of $80 million cannot, given the —————— 6 North Carolina has not asked us to overrule We decline to do so on our own motion and without argument. We therefore do not address the merits of THE CHIEF JUSTICE’s dissent. 7 North Carolina also asserts that our decisions in State School and and County of under­ mine They do not. In neither case were there entirely overlapping claims for relief between sovereign and nonsovereign plaintiffs. See Indeed, in County of Oneida there was no sovereign plaintiff. Cite as: 560 U. S. (2010) 25 Opinion of the Court other allegations of the complaint, be thought to be $80 million payable to each of the four plaintiff States and the Commission. North Carolina argues, however, that summary judg­ ment in its favor is appropriate because it is clear that the Commission, and not the plaintiff States, provided $80 million to North Carolina—wherefore, as a matter of law, only the Commission can claim entitlement to $80 million, either as a measure of damages for breach of the Compact under Counts I and II of the bill of complaint, see Re­ statement Comment a, and or under the un­ just enrichment, promissory estoppel, and money-had-and­ received theories of recovery in Counts III, IV, and V, see, e.g., Restatement of Restitution Comment a (1936). And, it contends, a stand-alone suit by the Commission is barred by sovereign immunity. With regard to Counts I and II, at least, we disagree. The Commission’s claims under those Compact-related Counts are wholly derivative of the States’ claims. See The Commission is “a legal entity separate and distinct from” the States that are parties to the Compact. Art. 4(M)(1), Since it is not a party it has neither a contractual right to performance by the party States nor enforceable statutory rights under Article 5 of the Compact, see Bennett v. Spear, The Compact does, however, authorize the Commission to “act or appear on behalf of any party [S]tate or [S]tates as an intervenor or party in interest before any court of law,” Art. 4(E)(10), and it is obviously in this capacity that the Commission seeks to vindicate the plaintiff States’ statutory and contractual rights in Counts I and II. Its Count I and Count II claims therefore rise or fall with the claims of the States. While the Commission may not bring them in a stand-alone action under this Court’s original jurisdiction, see it may assert them in 26 ALABAMA v. NORTH CAROLINA Opinion of the Court this Court alongside the plaintiff States, see Arizona v. 460 U.S., The summary judgment disallowing the underlying claims on their merits renders the sovereign immunity question with regard to any relief the Commission alone might have on those claims moot. Counts III–V, which do not rely upon the Compact, stand on a different footing. As to them, while the Com­ mission again seemingly makes the same claims and seeks the same relief as the States, it is conceivable that as a matter of law the Commission’s claims are not identical. The Commission can claim restitution as the party that paid the money to North Carolina; the other plaintiffs cannot claim it on that basis. Whether this means that the claims are not identical for pur­ poses, and that the Commission’s Counts III–V claims must be dismissed on sovereign immunity grounds, is a question that the Special Master declined to resolve until the merits issues were further clarified. We have ap­ proved his deferral of those issues, and we likewise ap­ prove his deferral of the related sovereign immunity issue. * * * We overrule the exceptions of Plaintiffs and North Carolina to the Special Master’s Reports, and we adopt the recommendations of the Special Master. We grant North Carolina’s motion to dismiss Count I. We grant North Carolina’s motion for summary judgment on Count II. We deny Plaintiffs’ motions for judgment on Counts I and II. And we deny without prejudice North Carolina’s motion to dismiss the Commission’s claims on the grounds of sover­ eign immunity and its motion for summary judgment on Counts III–V. It is so ordered. Cite as: 560 U. S. (2010) 1 Opinion of KENNEDY, J. SUPREME COURT OF THE UNITED STATES No. 132, Orig. STATE OF ALABAMA, STATE OF FLORIDA, STATE OF TENNESSEE, COMMONWEALTH OF VIRGINIA, AND SOUTHEAST INTERSTATE LOW-LEVEL RADIO- ACTIVE WASTE MANAGEMENT COMMISSION, PLAINTIFFS v. STATE OF NORTH CAROLINA ON EXCEPTIONS TO THE PRELIMINARY AND SECOND REPORTS OF THE SPECIAL MASTER [June 1, 2010] JUSTICE KENNEDY, with whom JUSTICE SOTOMAYOR joins, concurring in part and concurring in the judgment.

Justice Marshall

second_dissenting

Maggio v. Fulford

https://www.courtlistener.com/opinion/110954/maggio-v-fulford/

https://www.courtlistener.com/api/rest/v3/clusters/110954/

1982-116

I dissent. The Court is simply wrong in assuming that 28 U.S. C. § 2254(d) applies to the question whether there is "a sufficient doubt of [the defendant's] competence to stand trial to require further inquiry on the question." Drope v. Missouri, 420 U.S. 162, 180 (1975). Our decisions clearly establish that whether a competence hearing should have been held is a mixed question of law and fact which is subject to full federal review. Id., at 174-175, 179-181; Pate v. Robinson, 383 U.S. 375, 385-386 (1966). Even if the Court were correct in assuming that 28 U.S. C. § 2254(d)(8) applies, there would be no justification for the Court's summary disposition of this case. This Court's Rules *121 governing petitions for certiorari were designed to help elicit the information necessary to decide whether review by certiorari is warranted. They were not designed to permit a decision on the merits on the basis of the certiorari papers. In particular, Rule 22.2 states that "a brief in opposition shall be as short as possible." In compliance with this Rule the indigent respondent filed a mimeographed brief in opposition of seven pages, a substantial portion of which is devoted to the argument that the petition presents no question worthy of review by this Court — an argument that might well have been expected to prevail given the traditional learning that this Court "is not, and never has been, primarily concerned with the correction of errors in lower court decisions."[1] Only a few paragraphs of the brief in opposition discuss the record.[2] If the Court is to decide whether the record supports the trial court's conclusion that no competence hearing was necessary, it should at least afford the parties a chance to brief that issue. This could be done by merely issuing an order (1) noting that the case will be disposed of without oral argument and (2) permitting both sides to file briefs on the merits. I do not think this is asking too much.

I dissent. The Court is simply wrong in assuming that 28 U.S. C. 2254(d) applies to the question whether there is "a sufficient doubt of [the defendant's] competence to stand trial to require further inquiry on the question." Our decisions clearly establish that whether a competence hearing should have been held is a mixed question of law and fact which is subject to full federal review. ; Even if the Court were correct in assuming that 28 U.S. C. 2254(d)(8) applies, there would be no justification for the Court's summary disposition of this case. This Court's Rules *121 governing petitions for certiorari were designed to help elicit the information necessary to decide whether review by certiorari is warranted. They were not designed to permit a decision on the merits on the basis of the certiorari papers. In particular, Rule 22.2 states that "a brief in opposition shall be as short as possible." In compliance with this Rule the indigent respondent filed a mimeographed brief in opposition of seven pages, a substantial portion of which is devoted to the argument that the petition presents no question worthy of review by this Court — an argument that might well have been expected to prevail given the traditional learning that this Court "is not, and never has been, primarily concerned with the correction of errors in lower court decisions."[1] Only a few paragraphs of the brief in opposition discuss the record.[2] If the Court is to decide whether the record supports the trial court's conclusion that no competence hearing was necessary, it should at least afford the parties a chance to brief that issue. This could be done by merely issuing an order (1) noting that the case will be disposed of without oral argument and (2) permitting both sides to file briefs on the merits. I do not think this is asking too much.

Justice Marshall

majority

Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.

https://www.courtlistener.com/opinion/110516/hodel-v-virginia-surface-mining-reclamation-assn-inc/

https://www.courtlistener.com/api/rest/v3/clusters/110516/

1980-112

These cases arise out of a pre-enforcement challenge to the constitutionality of the Surface Mining Control and Reclamation Act of 1977 (Surface Mining Act or Act), 91 Stat. 447, 30 U.S. C. § 1201 et seq. (1976 ed., Supp. III). The United States District Court for the Western District of Virginia declared several central provisions of the Act unconstitutional and permanently enjoined their enforcement. 483 F. Supp. 425 (1980). In these appeals, we consider whether Congress, in adopting the Act, exceeded its powers under the Commerce Clause of the Constitution,[1] or transgressed affirmative limitations on the exercise of that power contained in the Fifth and Tenth Amendments. We conclude that in the context of a facial challenge, the Surface Mining Act does not suffer from any of these alleged constitutional defects, and we uphold the Act as constitutional. I A The Surface Mining Act is a comprehensive statute designed to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations." § 102 (a), 30 U.S. C. § 1202 (a) (1976 ed., Supp. III). Title II of the Act, 30 U.S. C. § 1211 (1976 ed., Supp. III), creates the Office of Surface Mining Reclamation and Enforcement (OSM), within the Department of the Interior, and the Secretary of the Interior (Secretary) acting through OSM, is charged with primary responsibility for administering *269 and implementing the Act by promulgating regulations and enforcing its provisions. § 201 (c), 30 U.S. C. § 1211 (c) (1976 ed., Supp. III). The principal regulatory and enforcement provisions are contained in Title V of the Act, 91 Stat. 467-514, 30 U.S. C. §§ 1251-1279 (1976 ed., Supp. III). Section 501, 30 U.S. C. § 1251 (1976 ed., Supp. III), establishes a two-stage program for the regulation of surface coal mining: an initial, or interim regulatory phase, and a subsequent, permanent phase. The interim program mandates immediate promulgation and federal enforcement of some of the Act's environmental protection performance standards, complemented by continuing state regulation. Under the permanent phase, a regulatory program is to be adopted for each State, mandating compliance with the full panoply of federal performance standards, with enforcement responsibility lying with either the State or Federal Government. Section 501 (a) directs the Secretary to promulgate regulations establishing an interim regulatory program during which mine operators will be required to comply with some of the Act's performance standards, as specified by § 502 (c), 30 U.S. C. § 1252 (c) (1976 ed., Supp. III). Included among those selected standards are requirements governing: (a) restoration of land after mining to its prior condition; (b) restoration of land to its approximate original contour; (c) segregation and preservation of topsoil; (d) minimization of disturbance to the hydrologic balance; (e) construction of coal mine waste piles used as dams and embankments; (f) revegetation of mined areas; and (g) spoil disposal. § 515 (b), 30 U.S. C. § 1265 (b) (1976 ed., Supp. III).[2] The interim *270 regulations were published on December 13, 1977, see 42 Fed. Reg. 62639,[3] and they are currently in effect in most States, including Virginia.[4] The Secretary is responsible for enforcing the interim regulatory program. § 502 (e), 30 U.S. C. § 1252 (e) (1976 ed., Supp. III). A federal enforcement and inspection program is to be established for each State, and is to remain in effect until a permanent regulatory program is implemented in the State. States may issue permits for surface mining operations during the interim phase, but operations authorized by such permits must comply with the federal interim performance standards. § 502 (b), 30 U.S. C. § 1252 (b) (1976 ed., Supp. III). States may also pursue their own regulatory and inspection programs during the interim phase, and they may *271 assist the Secretary in enforcing the interim standards.[5] The States are not, however, required to enforce the interim regulatory standards and, until the permanent phase of the program, the Secretary may not cede the Federal Government's independent enforcement role to States that wish to conduct their own regulatory programs. Section 501 (b), 30 U.S. C. § 1251 (b) (1976 ed., Supp. III), directs the Secretary to promulgate regulations establishing a permanent regulatory program incorporating all the Act's performance standards. The Secretary published the permanent regulations on March 13, 1979, see 44 Fed. Reg. 14902, but these regulations do not become effective in a particular State until either a permanent state program, submitted and approved in accordance with § 503 of the Act, or a permanent federal program for the State, adopted in accordance with § 504, is implemented. Under § 503, any State wishing to assume permanent regulatory authority over the surface coal mining operations on "non-Federal lands"[6] within its borders must submit a proposed permanent program to the Secretary for his approval. The proposed program must demonstrate that the state legislature has enacted laws implementing the environmental protection standards established by the Act and accompanying regulations, and that the State has the administrative and technical ability to enforce these standards. 30 U.S. C. § 1253 (1976 ed., Supp. III). The Secretary must approve or disapprove each such proposed program in accordance with time schedules and procedures established by §§ 503 (b), (c), *272 30 U.S. C. §§ 1253 (b), (c) (1976 ed., Supp. III).[7] In addition, the Secretary must develop and implement a federal permanent program for each State that fails to submit or enforce a satisfactory state program. § 504, 30 U.S. C. § 1254 (1976 ed., Supp. III). In such situations, the Secretary constitutes the regulatory authority administering the Act within that State and continues as such unless and until a "state program" is approved. No later than eight months after adoption of either a state-run or federally administered permanent regulatory program for a State, all surface coal mining and reclamation operations on "non-Federal lands" within that State must obtain a new permit issued in accordance with the applicable regulatory program. § 506 (a), 30 U.S. C. § 1256 (a) (1976 ed., Supp. III). *273 B On October 23, 1978, the Virginia Surface Mining and Reclamation Association, Inc., an association of coal producers engaged in surface coal mining operations in Virginia, 63 of its member coal companies, and 4 individual landowners filed suit in Federal District Court seeking declaratory and injunctive relief against various provisions of the Act. The Commonwealth of Virginia and the town of Wise, Va., intervened as plaintiffs.[8] Plaintiffs' challenge was primarily directed at Title V's performance standards.[9] Because the permanent regulatory program was not scheduled to become effective until June 3, 1980, plaintiffs' challenge was directed at the sections of the Act establishing the interim regulatory program. Plaintiffs alleged that these provisions violate the Commerce Clause, the equal protection and due process guarantees of the Due Process Clause of the Fifth Amendment,[10] the Tenth Amendment,[11] and the Just Compensation Clause of the Fifth Amendment.[12] The District Court held a 13-day trial on plaintiffs' request for a permanent injunction. The court subsequently *274 issued an order and opinion declaring several central provisions of the Act unconstitutional. 483 F. Supp. 425 (1980). The court rejected plaintiffs' Commerce Clause, equal protection, and substantive due process challenges to the Act. The court held, however, that the Act "operates to `displace the States' freedom to structure integral operations in areas of traditional functions,'. . . and, therefore, is in contravention of the Tenth Amendment." Id., at 435, quoting National League of Cities v. Usery, 426 U.S. 833, 852 (1976). The court also ruled that various provisions of the Act effect an uncompensated taking of private property in violation of the Just Compensation Clause of the Fifth Amendment. Finally, the court agreed with plaintiffs' due process challenges to some of the Act's enforcement provisions. The court permanently enjoined the Secretary from enforcing various provisions of the Act.[13] In No. 79-1538, the Secretary appeals from that portion of the District Court's judgment declaring various sections of the Act unconstitutional and permanently enjoining their enforcement. In No. 79-1596, plaintiffs cross-appeal from the District Court's rejection of their Commerce Clause challenge to the Act.[14] Because of the importance of the issues raised, we noted probable jurisdiction of both appeals,[15] 449 U. S. *275 817 (1980), and consolidated the two cases.[16] For convenience, we shall usually refer to plaintiffs as "appellees." II On cross-appeal, appellees argue that the District Court erred in rejecting their challenge to the Act as beyond the scope of congressional power under the Commerce Clause. They insist that the Act's principal goal is regulating the use of private lands within the borders of the States and not, as the District Court found, regulating the interstate commerce effects of surface coal mining. Consequently, appellees contend that the ultimate issue presented is "whether land as such is subject to regulation under the Commerce Clause, i. e. whether land can be regarded as `in commerce.'" Brief for Virginia Surface Mining & Reclamation Association, Inc., et al. 12 (emphasis in original). In urging us to answer "no" to this question, appellees emphasize that the Court has recognized that land-use regulation is within the inherent police powers of the States and their political subdivisions,[17] and *276 argue that Congress may regulate land use only insofar as the Property Clause[18] grants it control over federal lands. We do not accept either appellees' framing of the question or the answer they would have us supply. The task of a court that is asked to determine whether a particular exercise of congressional power is valid under the Commerce Clause is relatively narrow. The court must defer to a congressional finding that a regulated activity affects interstate commerce, if there is any rational basis for such a finding. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 303-304 (1964). This established, the only remaining question for judicial inquiry is whether "the means chosen by [Congress] must be reasonably adapted to the end permitted by the Constitution." Heart of Atlanta Motel, Inc. v. United States, supra, at 262. See United States v. Darby, 312 U.S. 100, 121 (1941); Katzenbach v. McClung, 379 U. S., at 304. The judicial task is at an end once the court determines that Congress acted rationally in adopting a particular regulatory scheme. Ibid. Judicial review in this area is influenced above all by the fact that the Commerce Clause is a grant of plenary authority to Congress. See National League of Cities v. Usery, supra, at 840; Cleveland v. United States, 329 U.S. 14, 19 (1946); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937). This power is "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." Gibbons v. Ogden, 9 Wheat. 1, 196 (1824). Moreover, this Court has made clear that the commerce power extends not only to "the use of channels of interstate or foreign commerce" and *277 to "protection of the instrumentalities of interstate commerce . . . or persons or things in commerce," but also to "activities affecting commerce." Perez v. United States, 402 U.S. 146, 150 (1971). As we explained in Fry v. United States, 421, U. S. 542, 547 (1975), "[e]ven activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations." See National League of Cities v. Usery, 426 U. S., at 840; Heart of Atlanta Motel, Inc. v. United States, supra, at 255; Wickard v. Filburn, 317 U.S. 111, 127-128 (1942); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942); United States v. Darby, supra, at 120-121. Thus, when Congress has determined that an activity affects interstate commerce, the courts need inquire only whether the finding is rational. Here, the District Court properly deferred to Congress' express findings, set out in the Act itself, about the effects of surface coal mining on interstate commerce. Section 101 (c), 30 U.S. C. § 1201 (c) (1976 ed., Supp. III), recites the congressional finding that "many surface mining operations result in disturbances of surface areas that burden and adversely affect commerce and the public welfare by destroying or diminishing the utility of land for commercial, industrial, residential, recreational, agricultural, and forestry purposes, by causing erosion and landslides, by contributing to floods, by polluting the water, by destroying fish and wildlife habitats, by impairing natural beauty, by damaging the property of citizens, by creating hazards dangerous to life and property by degrading the quality of life in local communities, and by counteracting governmental programs and efforts to conserve soil, water, and other natural resources." The legislative record provides ample support for these statutory findings. The Surface Mining Act became law *278 only after six years of the most thorough legislative consideration.[19] Committees of both Houses of Congress held extended hearings during which vast amounts of testimony and *279 documentary evidence about the effects of surface mining on our Nation's environment and economy were brought to Congress' attention. Both Committees made detailed findings about these effects and the urgent need for federal legislation to address the problem. The Senate Report explained that "[s]urface coal mining activities have imposed large social costs on the public . . . in many areas of the country in the form of unreclaimed lands, water pollution, erosion, floods, slope failures, loss of fish and wildlife resources, and a decline in natural beauty." S. Rep. No. 95-128, p. 50 (1977). See id., at 50-54. Similarly, the House Committee documented the adverse effects of surface coal mining on interstate commerce as including: "`Acid drainage which has ruined an estimated 11,000 miles of streams; the loss of prime hardwood forest and the destruction of wildlife habitat by strip mining; the degrading of productive farmland; recurrent *280 landslides; siltation and sedimentation of river systems. . . .'" H. R. Rep. No. 95-218, p. 58 (1977), quoting H. R. Rep. No. 94-1445, p. 19 (1976). And in discussing how surface coal mining affects water resources and in turn interstate commerce, the House Committee explained: "The most widespread damages . . . are environmental in nature. Water users and developers incur significant economic and financial losses as well. "Reduced recreational values, fishkills, reductions in normal waste assimilation capacity, impaired water supplies, metals and masonry corrosion and deterioration, increased flood frequencies and flood damages, reductions in designed water storage capacities at impoundments, and higher operating costs for commercial waterway users are some of the most obvious economic effects that stem from mining-related pollution and sedimentation." H. R. Rep. No. 95-218, at 59. See id., at 96-122. The Committees also explained that inadequacies in existing state laws and the need for uniform minimum nationwide standards made federal regulations imperative. See S. Rep. No. 95-128, at 49; H. R. Rep. No. 95-218, at 58. In light of the evidence available to Congress and the detailed consideration that the legislation received, we cannot say that Congress did not have a rational basis for concluding that surface coal mining has substantial effects on interstate commerce. Appellees do not, in general, dispute the validity of the congressional findings.[20] Rather, appellees' contention is that *281 the "rational basis" test should not apply in this case because the Act regulates land use, a local activity not affecting interstate commerce. But even assuming that appellees correctly characterize the land use regulated by the Act as a "local" activity, their argument is unpersuasive. The denomination of an activity as a "local" or "intrastate" activity does not resolve the question whether Congress may regulate it under the Commerce Clause. As previously noted, the commerce power "extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce." United States v. Wrightwood Dairy Co., 315 U. S., at 119. See Fry v. United States, 421 U. S., at 547; NLRB v. Jones & Laughlin Steel Corp., 301 U. S., at 37. This Court has long held that Congress may regulate the conditions under which goods shipped in interstate commerce are produced where the "local" activity of producing these goods itself affects interstate commerce. See, e. g., United States v. Darby, 312 U.S. 100 (1941); Wickard v. Filburn, 317 U.S. 111 (1942); NLRB v. Jones & Laughlin Steel Corp., supra; Kirschbaum Co. v. Walling, 316 U.S. 517 (1942). Cf. Katzenbach v. McClung, 379 U.S. 294 (1964). Appellees do not dispute that coal is a commodity that moves in interstate commerce. Here, Congress rationally determined that regulation of surface coal mining is necessary to protect interstate commerce from adverse effects that may result from that activity. This congressional finding is sufficient to sustain the Act as a valid exercise of Congress' power under the Commerce Clause. Moreover, the Act responds to a congressional finding that nationwide "surface mining and reclamation standards are essential in order to insure that competition in interstate commerce among sellers of coal produced in different States will not be used to undermine the ability of the several States *282 to improve and maintain adequate standards on coal mining operations within their borders." 30 U.S. C. § 1201 (g) (1976 ed., Supp. III). The prevention of this sort of destructive interstate competition is a traditional role for congressional action under the Commerce Clause. In United States v. Darby, supra, the Court used a similar rationale to sustain the imposition of federal minimum wage and maximum hour regulations on a manufacturer of goods shipped in interstate commerce. The Court explained that the statute implemented Congress' view that "interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the states from and to which the commerce flows." Id., at 115. The same rationale applies here to support the conclusion that the Surface Mining Act is within the authority granted to Congress by the Commerce Clause. Finally, we agree with the lower federal courts that have uniformly found the power conferred by the Commerce Clause broad enough to permit congressional regulation of activities causing air or water pollution, or other environmental hazards that may have effects in more than one State.[21] Appellees do not dispute that the environmental and other problems that the Act attempts to control can properly be addressed through Commerce Clause legislation. In these circumstances, it is difficult to find any remaining foundation *283 for appellees' argument that, because it regulates a particular land use, the Surface Mining Act is beyond congressional Commerce Clause authority. Accordingly, we turn to the question whether the means selected by Congress were reasonable and appropriate. Appellees' essential challenge to the means selected by the Act is that they are redundant or unnecessary. Appellees contend that a variety of federal statutes such as the Clean Air Act, 42 U.S. C. § 7401 et seq. (1976 ed., Supp. III), the Flood Control Acts, 33 U.S. C. § 701 et seq. (1976 ed., Supp. III), and the Clean Water Act, 33 U.S. C. § 1251 et seq. (1976 ed., Supp. III), adequately address the federal interest in controlling the environmental effects of surface coal mining without need to resort to the land-use regulation scheme of the Surface Mining Act. The short answer to this argument is that the effectiveness of existing laws in dealing with a problem identified by Congress is ordinarily a matter committed to legislative judgment. Congress considered the effectiveness of existing legislation and concluded that additional measures were necessary to deal with the interstate commerce effects of surface coal mining. See H. R. Rep. No. 95-218, at 58-60; S. Rep. No. 95-128, at 59-63. And we agree with the court below that the Act's regulatory scheme is reasonably related to the goals Congress sought to accomplish. The Act's restrictions on the practices of mine operators all serve to control the environmental and other adverse effects of surface coal mining. In sum, we conclude that the District Court properly rejected appellees' Commerce Clause challenge to the Act. We therefore turn to the court's ruling that the Act contravenes affirmative constitutional limitations on congressional exercise of the commerce power. III The District Court invalidated §§ 515 (d) and (e) of the Act, which prescribe performance standards for surface coal *284 mining on "steep slopes,"[22] on the ground that they violate a constitutional limitation on the commerce power imposed by the Tenth Amendment. These provisions require "steep-slope" operators: (i) to reclaim the mined area by completely covering the highwall and returning the site to its "approximate original contour";[23] (ii) to refrain from dumping spoil material on the downslope below the bench or mining cut; and (iii) to refrain from disturbing land above the highwall unless permitted to do so by the regulatory authority. § 515 (d), 30 U.S. C. § 1265 (d) (1976 ed., Supp. III). Under § 515 (e), a "steep-slope" operator may obtain a variance from the approximate-original-contour requirement by showing that it will allow a postreclamation use that is "deemed to constitute an equal or better economic or public use" than would otherwise be possible. 30 U.S. C. § 1265 (e) (3) (A) (1976 ed., Supp. III).[24] The District Court's ruling relied heavily on our decision in National League of Cities v. Usery, 426 U.S. 833 (1976). The District Court viewed the central issue as whether the Act governs the activities of private individuals, or whether it instead regulates the governmental decisions of the States. And although the court acknowledged that the Act "ultimately affects the coal mine operator." 483 F. Supp., at 432, it concluded that the Act contravenes the Tenth Amendment *285 because it interferes with the States' "traditional governmental function" of regulating land use. Id., at 435. The court held that, as applied to Virginia, the Act's steep-slope provisions impermissibly constrict the State's ability to make "essential decisions."[25] The court found the Act accomplishes this result "through forced relinquishment of state control of land use planning; through loss of state control of its economy; and through economic harm, from expenditure of state funds to implement the act and from destruction of the taxing power of certain counties, cities, and towns." Id., at 435.[26] The court therefore permanently enjoined enforcement of §§ 515 (d) and (e).[27] *286 The District Court's reliance on National League of Cities requires a careful review of the actual basis and import of our decision in that case. There, we considered a constitutional challenge to the 1974 amendments to the Fair Labor Standards Act which had extended federal minimum wage and maximum hour regulations to most state and local government employees. Because it was conceded that the challenged regulations were "undoubtedly within the scope of the Commerce Clause," 426 U.S., at 841, the only question presented was whether that particular exercise of the commerce power "encounter[ed] a . . . constitutional barrier because [the regulations] applied directly to the States and subdivisions of States as employers." Ibid. We began by drawing a sharp distinction between congressional regulation of private persons and businesses "necessarily subject to the dual sovereignty of the government of the Nation and of the State in which they reside," id., at 845, and federal regulation "directed, not to private citizens, but to the States as States," ibid. As to the former, we found no Tenth Amendment impediment to congressional action. Instead, we reaffirmed our consistent rule: "Congressional power over areas of private endeavor, even when its exercise may pre-empt express state-law determinations contrary to the result that has commended itself to the collective wisdom of Congress, has been held to be limited only by the requirement that `the means chosen by [Congress] must be reasonably adapted to the end permitted by the Constitution.' Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 262 (1964)." Id., at 840. The Court noted, however, that "the States as States stand on a quite different footing from an individual or corporation when challenging the exercise of Congress' power to regulate commerce." Id., at 854. It indicated that when Congress attempts to directly regulate the States as States the Tenth *287 Amendment requires recognition that "there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner." Id., at 845. The Court held that the power to set the wages and work hours of state employees was "an undoubted attribute of state sovereignty." Ibid. And because it further found that the challenged regulations would "displace the States' freedom to structure integral operations in areas of traditional governmental functions," id., at 852, the Court concluded that Congress could not, consistently with the Tenth Amendment, "abrogate the States' otherwise plenary authority to make [these decisions]." Id., at 846.[28] It should be apparent from this discussion that in order to succeed, a claim that congressional commerce power legislation is invalid under the reasoning of National League of Cities must satisfy each of three requirements. First, there must be a showing that the challenged statute regulates the "States as States." Id., at 854. Second, the federal regulation *288 must address matters that are indisputably "attribute[s] of state sovereignty." Id., at 845. And third, it must be apparent that the States' compliance with the federal law would directly impair their ability "to structure integral operations in areas of traditional governmental functions." Id., at 852.[29] When the Surface Mining Act is examined in light of these principles, it is clear that appellees' Tenth Amendment challenge must fail because the first of the three requirements is not satisfied. The District Court's holding to the contrary rests on an unwarranted extension of the decision in National League of Cities. As the District Court itself acknowledged, the steep-slope provisions of the Surface Mining Act govern only the activities of coal mine operators who are private individuals and businesses. Moreover, the States are not compelled to enforce the steep-slope standards, to expend any state funds, or to participate in the federal regulatory program in any manner whatsoever. If a State does not wish to submit a proposed permanent program that complies with the Act and implementing regulations, the full regulatory burden will be borne by the Federal Government. Thus, there can be no suggestion that the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program. Cf. Maryland v. EPA, 530 F.2d 215, 224-228 (CA4 1975), vacated and remanded sub nom. EPA v. Brown, 431 U.S. 99 (1977); District of Columbia v. Train, 172 U. S. App. D. C. 311, 330-334, 521 F.2d 971, 990-994 (1975), vacated and remanded sub nom. EPA v. Brown, 431 U.S. 99 (1977); Brown v. EPA, 521 F. *289 2d 827, 837-842 (CA9 1975), vacated and remanded, 431 U.S. 99 (1977). The most that can be said is that the Surface Mining Act establishes a program of cooperative federalism that allows the States, within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own particular needs. See In re Permanent Surface Mining Regulation Litigation, 199 U. S. App. D. C. 225, 226, 617 F.2d 807, 808 (1980). In this respect, the Act resembles a number of other federal statutes that have survived Tenth Amendment challenges in the lower federal courts.[30] Appellees argue, however, that the threat of federal usurpation of their regulatory roles coerces the States into enforcing the Surface Mining Act. Appellees also contend that the Act directly regulates the States as States because it establishes mandatory minimum federal standards. In essence, appellees urge us to join the District Court in looking beyond the activities actually regulated by the Act to its conceivable effects on the States' freedom to make decisions in areas of "integral governmental functions." And appellees emphasize, as did the court below, that the Act interferes with the States' ability to exercise their police powers by regulating land use. Appellees' claims accurately characterize the Act insofar as it prescribes federal minimum standards governing surface coal mining, which a State may either implement itself or else yield to a federally administered regulatory program. To object to this scheme, however, appellees must assume that the Tenth Amendment limits congressional power to *290 pre-empt or displace state regulation of private activities affecting interstate commerce. This assumption is incorrect. A wealth of precedent attests to congressional authority to displace or pre-empt state laws regulating private activity affecting interstate commerce when these laws conflict with federal law. See, e. g., Jones v. Rath Packing Co., 430 U.S. 519, 525-526 (1977); Perez v. Campbell, 402 U.S. 637, 649-650 (1971); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141-143 (1963); Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U.S. 767, 772-776 (1947); Hines v. Davidowitz, 312 U.S. 52, 67-68 (1941). Moreover, it is clear that the Commerce Clause empowers Congress to prohibit all—and not just inconsistent—state regulation of such activities. See, e. g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973); Campbell v. Hussey, 368 U.S. 297 (1961); Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947); Transit Comm'n v. United States, 289 U.S. 121 (1933). Although such congressional enactments obviously curtail or prohibit the States' prerogatives to make legislative choices respecting subjects the States may consider important, the Supremacy Clause permits no other result. See Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317-319 (1981); Sanitary District v. United States, 266 U.S. 405, 425-426 (1925); The Minnesota Rate Cases, 230 U.S. 352, 399 (1913); Gibbons v. Ogden, 9 Wheat., at 211. As the Court long ago stated: "It is elementary and well settled that there can be no divided authority over interstate commerce, and that the acts of Congress on that subject are supreme and exclusive." Missouri Pacific R. Co. v. Stroud, 267 U.S. 404, 408 (1925). Thus, Congress could constitutionally have enacted a statute prohibiting any state regulation of surface coal mining. We fail to see why the Surface Mining Act should become constitutionally suspect simply because Congress chose to allow the States a regulatory role. Contrary to the assumption by both the District Court and appellees, nothing in *291 National League of Cities suggests that the Tenth Amendment shields the States from pre-emptive federal regulation of private activities affecting interstate commerce. To the contrary, National League of Cities explicitly reaffirmed the teaching of earlier cases that Congress may, in regulating private activities pursuant to the commerce power, "pre-empt express state-law determinations contrary to the result which has commended itself to the collective wisdom of Congress. . . ." 426 U.S., at 840. The only limitation on congressional authority in this regard is the requirement that the means selected be reasonably related to the goal of regulating interstate commerce. Ibid. We have already indicated that the Act satisfies this test.[31] This conclusion applies regardless of whether the federal legislation displaces laws enacted under the States' "police powers." The Court long ago rejected the suggestion that Congress invades areas reserved to the States by the Tenth Amendment simply because it exercises its authority under the Commerce Clause in a manner that displaces the States' exercise of their police powers. See Hoke v. United States, 227 U.S. 308, 320-323 (1913); Athanasaw v. United States, 227 U.S. 326 (1913); Cleveland v. United States, 329 U. S., at 19; United States v. Darby, 312 U. S., at 113-114; United States v. Wrightwood Dairy Co., 315 U. S., at 119. Cf. United States v. Carolene Products Co., 304 U.S. 144, 147 (1938) ("it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states");[32] accord, FPC v. Natural Gas Pipeline Co., 315 *292 U. S. 575, 582 (1942); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 (1919); Seven Cases v. United States, 239 U.S. 510, 514 (1916). This Court has upheld as constitutional any number of federal statutes enacted under the commerce power that pre-empt particular exercises of state police power. See, e. g., United States v. Walsh, 331 U.S. 432 (1947) (upholding Federal Food, Drug, and Cosmetic Act, 21 U.S. C. §§ 301-392); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding National Labor Relations Act, 29 U.S. C. §§ 151-168); United States v. Darby, supra (upholding Fair Labor Standards Act, 29 U.S. C. §§ 201-219). It would therefore be a radical departure from long-established precedent for this Court to hold that the Tenth Amendment prohibits Congress from displacing state police power laws regulating private activity. Nothing in National League of Cities compels or even hints at such a departure.[33] *293 In sum, appellees' Tenth Amendment challenge to the Surface Mining Act must fail because here, in contrast to the situation in National League of Cities, the statute at issue regulates only "individual businesses necessarily subject to the dual sovereignty of the government of the Nation and the State in which they reside." National League of Cities v. Usery, 426 U. S., at 845.[34] Accordingly, we turn to the District Court's ruling that the Act contravenes other constitutional limits on congressional action. IV The District Court held that two of the Act's provisions violate the Just Compensation Clause of the Fifth Amendment. First, the court found that the steep-slope provisions discussed above effect an uncompensated taking of private property by requiring operators to perform the "economically and physically impossible" task of restoring steep-slope surface mines to their approximate original contour. 483 F. Supp., at 437.[35] The court further held that, even if steep-slope surface mines could be restored to their approximate original contour, the value of the mined land after such restoration would have "been diminished to practically nothing." *294 Ibid. Second, the court found that § 522 of the Act effects an unconstitutional taking because it expressly prohibits mining in certain locations and "clearly prevent[s] a person from mining his own land or having it mined." Id., at 441.[36] Relying on this Court's decision in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), the District Court held that both of these provisions are unconstitutional because they "depriv[e] [coal mine operators] of any use of [their] land, not only the most profitable . . . ." 483 F. Supp., at 441. We conclude that the District Court's ruling on the "taking" issue suffers from a fatal deficiency: neither appellees nor the court identified any property in which appellees have an interest that has allegedly been taken by operation of the Act. By proceeding in this fashion, the court below ignored this Court's oft-repeated admonition that the constitutionality of statutes ought not be decided except in an actual *295 factual setting that makes such a decision necessary. See Socialist Labor Party v. Gilligan, 406 U.S. 583, 588 (1972); Rescue Army v. Municipal Court, 331 U.S. 549, 568-575, 584 (1947); Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945). Adherence to this rule is particularly important in cases raising allegations of an unconstitutional taking of private property. Just last Term, we reaffirmed that "this Court has generally `been unable to develop any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.' Rather, it has examined the `taking' question by engaging in essentially ad hoc, factual inquiries that have identified several factors—such as the economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the government action—that have particular significance." Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979) (citations omitted). These "ad hoc, factual inquires" must be conducted with respect to specific property, and the particular estimates of economic impact and ultimate valuation relevant in the unique circumstances. Because appellees' taking claim arose in the context of a facial challenge, it presented no concrete controversy concerning either application of the Act to particular surface mining operations or its effect on specific parcels of land. Thus, the only issue properly before the District Court and, in turn, this Court, is whether the "mere enactment" of the Surface Mining Act constitutes a taking. See Agins v. Tiburon, 447 U.S. 255, 260 (1980). The test to be applied in considering this facial challenge is fairly straightforward. A *296 statue regulating the uses that can be made of property effects a taking if it "denies an owner economically viable use of his land . . . ." Agins v. Tiburon, supra, at 260. See Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978). The Surface Mining Act easily survives scrutiny under this test. First, the Act does not, on its face, prevent beneficial use of coal-bearing lands. Except for the proscription of mining near certain locations by § 522 (e), the Act does not categorically prohibit surface coal mining; it merely regulates the conditions under which such operations may be conducted.[37] The Act does not purport to regulate alternative uses to which coal-bearing lands may be put.[38] Thus, in the posture in *297 which these cases come before us, there is no reason to suppose that "mere enactment" of the Surface Mining Act has deprived appellees of economically viable use of their property. Moreover, appellees cannot at this juncture legitimately raise complaints in this Court about the manner in which the challenged provisions of the Act have been or will be applied in specific circumstances, or about their effect on particular coal mining operations. There is no indication in the record that appellees have availed themselves of the opportunities provided by the Act to obtain administrative relief by requesting either a variance from the approximate-original-contour requirement of § 515 (d) or a waiver from the surface mining restrictions in § 522 (e). If appellees were to seek administrative relief under these procedures, a mutually acceptable solution might well be reached with regard to individual properties, thereby obviating any need to address the constitutional questions.[39] The potential for such administrative solutions confirms the conclusion that the taking issue decided by the District Court simply is not ripe for judicial resolution.[40] *298 V A The District Court next ruled that the Act contravenes the Fifth Amendment because a number of its enforcement provisions offend the Amendment's Due Process Clause. One such provision is § 521 (a) (2), 30 U.S. C. § 1271 (a) (2) (1976 ed., Supp. III), which instructs the Secretary immediately to order total or partial cessation of a surface mining operation whenever he determines, on the basis of a federal inspection, that the operation is in violation of the Act or a permit condition required by the Act and that the operation "creates an immediate danger to the health or safety of the public, or is causing, or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources . . . ."[41] A mine operator aggrieved by an immediate cessation order issued under § 521 (a) (2) or by a cessation order issued after a notice of violation and expiration of an abatement period under § 521 (a) (3) may immediately request temporary relief from the Secretary, and the Secretary must respond to the request within five days of its receipt. § 525 (c), 30 U.S. C. § 1275 (1976 ed., Supp. III). Section 526 (c) of the Act, 30 U.S. C. § 1276 (c) (1976 ed., Supp. III), authorizes judicial review of a decision by the Secretary denying temporary relief. In addition, cessation orders are subject to informal administrative review under § 521 (a) (5), and formal administrative review, including an adjudicatory hearing, under § 525 (b), 30 U.S. C. § 1275 (b) (1976 ed., Supp. *299 III).[42] The Secretary's decision in the formal review proceeding is subject to judicial review pursuant to § 526 (a) (2), 30 U.S. C. § 1276 (a) (2) (1976 ed., Supp. III). The District Court held that § 521 (a) (2)'s authorization of immediate cessation orders violates the Fifth Amendment because the statute does not provide sufficiently objective criteria for summary administrative action. In this regard, the court relied on its finding that OSM inspectors had issued against a particular company three immediate cessation orders which were later overturned on appeal, and that the company involved had suffered significant losses. The court enjoined the Secretary from issuing any immediate cessation orders "until such time as Congress makes provisions to correct the use of subjective criteria by OSM inspectors." 483 F. Supp., at 448.[43] In addition, the court ruled that even if the Act is amended to correct this problem, the 5-day response period prescribed by the Act does not meet the requirements of due process. Instead, the court held that the Secretary must respond within 24 hours to a mine operator's request for temporary relief from an immediate cessation order. We find both aspects of the District Court's reasoning unpersuasive. Our cases have indicated that due process ordinarily requires an opportunity for "some kind of hearing" prior to the deprivation of a significant property interest. See Parratt v. Taylor, 451 U.S. 527, 540 (1981); Boddie v. Connecticut, 401 U.S. 371, 379 (1971). The Court has often acknowledged *300 however, that summary administrative action may be justified in emergency situations. See, e. g., Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 677-680 (1974); Boddie v. Connecticut, supra, at 378-379; Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599-600 (1950); Fahey v. Mallonee, 332 U.S. 245, 253-254 (1947); Yakus v. United States, 321 U.S. 414, 442-443 (1944); Bowles v. Willingham, 321 U.S. 503, 519-520 (1944); Phillips v. Commissioner, 283 U.S. 589, 595-599 (1931); North American Cold Storage Co. v. Chicago, 211 U.S. 306, 315-321 (1908). The question then, is whether the issuance of immediate cessation orders under § 521 (a) falls under this emergency situation exception to the normal rule that due process requires a hearing prior to deprivation of a property right. We believe that it does. The immediate cessation order provisions reflect Congress' concern about the devastating damage that may result from mining disasters.[44] They represent an attempt to reach an accommodation between the legitimate desire of mining companies to be heard before submitting to administrative regulation and the governmental interest in protecting the public health and safety and the environment from imminent danger. Protection of the health and safety of the public is a paramount governmental interest which justifies summary administrative action. Indeed, deprivation of property to protect the public health and safety is "[o]ne of the oldest examples" of permissible summary action. Ewing v. Mytinger & Casselberry, Inc., supra, at 599. See Mackey v. *301 Montrym, 443 U.S. 1, 17-18 (1979); id., at 21, n. 1, 25 (STEWART, J., dissenting); North American Cold Storage Co. v. Chicago, supra, at 315-316. Moreover, the administrative action provided through immediate cessation orders responds to situations in which swift action is necessary to protect the public health and safety. This is precisely the type of emergency situation in which this Court has found summary administrative action justified. See Ewing v. Mytinger & Casselberry, Inc., supra; North American Cold Storage Co. v. Chicago, supra. Rather than taking issue with any of these principles, the District Court held that the Act does not establish sufficiently objective criteria governing the issuance of summary cessation orders. We disagree. In our judgment, the criteria established by the Act and the Secretary's implementing regulations are specific enough to control governmental action and reduce the risk of erroneous deprivation. Section 701 (8) of the Act, 30 U.S. C. § 1291 (8) (1976 ed., Supp. III), defines the threat of "imminent danger to the health and safety of the public" as the existence of a condition or practice which could "[r]easonably be expected to cause substantial physical harm to persons outside the permit area before such condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same conditions or practices giving rise to the peril, would not expose himself or herself to the danger during the time necessary for abatement."[45] *302 If anything, these standards are more specific than the criteria in other statutes authorizing summary administrative action that have been upheld against due process challenges. See, e. g., Ewing v. Mytinger & Casselberry, Inc., supra, at 595-596 ("`dangerous to health . . . or would be in a material respect misleading to the injury or damage of the purchaser or consumer'"); Fahey v. Mallonee, supra, at 250-251, n. 1 ("is unsafe or unfit to manage a Federal savings and loan association" or "[i]s in imminent danger of becoming impaired"); Air East, Inc. v. National Transportation Safety Board, 512 F.2d 1227, 1232 (CA3) ("`emergency requiring immediate action . . . in respect to air safety in commerce' "), cert. denied, 423 U.S. 863 (1975). The fact that OSM inspectors have issued immediate cessation orders that were later overturned on administrative appeal does not undermine the adequacy of the Act's criteria but instead demonstrates the efficacy of the review procedures. The relevant inquiry is not whether a cessation order should have been issued in a particular case, but whether the statutory procedure itself is incapable of affording due process. Yakus v. United States, 321 U. S., at 434-435. The possibility of administrative error inheres in any regulatory program; statutory programs authorizing emergency administrative action prior to a hearing are no exception.[46] As we *303 explained in Ewing v. Mytinger & Casselberry, Inc., 339 U. S., at 599: "Discretion of any official action may be abused. Yet it is not a requirement of due process that there be judicial inquiry before discretion can be exercised. It is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination." Here, mine operators are afforded prompt and adequate postdeprivation administrative hearings and an opportunity for judicial review. We are satisfied that the Act's immediate cessation order provisions comport with the requirements of due process. We also conclude that the District Court erred in reducing the statutorily prescribed time period for the Secretary's response to requests for temporary relief. In the first place, the 5-day period is a statutory maximum and there is no indication in the record that the Secretary has not responded or will not respond in less than five days. Second, appellees have not demonstrated that they have been adversely affected by the 5-day response period in a particular case or that it is generally unreasonable. In addition, no evidence was introduced to show that a shorter reply period is administratively feasible. In these circumstances, there simply is no basis for the District Court's decision to substitute a judicial policy preference for the scheme adopted by Congress. Cf. Vermont Yankee Nuclear Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978). Accordingly, we turn to the District Court's holding that other sections of the Act violate the Fifth Amendment's Due Process Clause. B The District Court ruled that the Act's civil penalty provisions do not comport with the requirements of due process. Under these provisions, the Secretary is to notify the recipient of a notice of violation or a cessation order of the proposed *304 amount of any civil penalty that is to be assessed against it. § 518 (c), 30 U.S. C. § 1268 (c) (1976 ed., Supp. III). Section 518 (c) further states that, if the operator "wishes to contest either the amount of the penalty or the fact of the violation," it must "forward the proposed amount to the Secretary for placement in an escrow account."[47] Once the escrow requirement is met, the operator receives a full adjudicatory hearing before an administrative law judge, with a right of appeal to an administrative board and judicial review of the final decision. See 30 U.S. C. § 1276 (a) (2) (1976 ed., Supp. III). If, after administrative or judicial review, it is determined that no violation occurred or that the view, it is determined that no violation occurred or that the amount of the proposed penalty should be reduced, the appropriate amount must promptly be refunded to the operator with interest. 30 U.S. C. § 1268 (c) (1976 ed., Supp. III). In challenging the Act's civil penalty provisions appellees did not allege that they, or any one of them, have had civil penalties assessed against them. Moreover, the District Court did not find, as it did in ruling on the immediate cessation order provisions, that any of appellee coal mine operators have been affected or harmed by any of the statutory procedures for the assessment and collection of fines. Thus, the record in these cases belies any suggestion that there is a concrete case or controversy concerning the operation of these provisions. In these circumstances, we must conclude that appellees' challenge is premature, and that it was improper for the court below to render a decision on this claim. VI Our examination of appellees' constitutional challenges to the Surface Mining Act persuades us that the Act is not *305 vulnerable to their pre-enforcement challenge. Accordingly, we affirm the judgment of the District Court upholding the Act against appellees' Commerce Clause attack (No. 79-1596), and we reverse the judgment below insofar as it held various provisions of the Act unconstitutional (No. 79-1538). The cases are remanded to the District Court with instructions to dissolve the injunction issued against the Secretary, and for further proceedings consistent with this opinion. So ordered. THE CHIEF JUSTICE, concurring.[*] I agree largely with what JUSTICE REHNQUIST has said about the "fictions" concerning delegation, and the gradual case-by-case expansion of the reach of the Commerce Clause. I agree fully with his view that we often seem to forget the doctrine that laws enacted by Congress under the Commerce Clause must be based on a substantial effect on interstate commerce. However, I join the Court's opinions in these cases and in No. 80-231 because in them the Court acknowledges and reaffirms that doctrine. See, e. g., ante, at 280.

These cases arise out of a pre-enforcement challenge to the constitutionality of the Surface Mining Control and Reclamation Act of 77 (Surface Mining Act or Act), 30 U.S. C. 1201 et seq. (76 ed., Supp. III). The United District Court for the Western District of Virginia declared several central provisions of the Act unconstitutional and permanently enjoined their enforcement. In these appeals, we consider whether Congress, in adopting the Act, exceeded its powers under the Commerce Clause of the Constitution,[1] or transgressed affirmative limitations on the exercise of that power contained in the Fifth and Tenth Amendments. We conclude that in the context of a facial challenge, the Surface Mining Act does not suffer from any of these alleged constitutional defects, and we uphold the Act as constitutional. I A The Surface Mining Act is a comprehensive statute designed to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations." 102 (a), 30 U.S. C. 1202 (a) (76 ed., Supp. III). Title II of the Act, 30 U.S. C. 1 (76 ed., Supp. III), creates the Office of Surface Mining Reclamation and Enforcement (OSM), within the Department of the Interior, and the Secretary of the Interior (Secretary) acting through OSM, is charged with primary responsibility for administering *269 and implementing the Act by promulgating regulations and enforcing its provisions. 201 (c), 30 U.S. C. 1 (c) (76 ed., Supp. III). The principal regulatory and enforcement provisions are contained in Title V of the Act, -, 30 U.S. C. 1251-1279 (76 ed., Supp. III). Section 501, 30 U.S. C. 1251 (76 ed., Supp. III), establishes a two-stage program for the regulation of surface coal mining: an initial, or interim regulatory phase, and a subsequent, permanent phase. The interim program mandates immediate promulgation and federal enforcement of some of the Act's environmental protection performance standards, complemented by continuing state regulation. Under the permanent phase, a regulatory program is to be adopted for each State, mandating compliance with the full panoply of federal performance standards, with enforcement responsibility lying with either the State or Federal Government. Section 501 (a) directs the Secretary to promulgate regulations establishing an interim regulatory program during which mine operators will be required to comply with some of the Act's performance standards, as specified by 502 (c), 30 U.S. C. 1252 (c) (76 ed., Supp. III). Included among those selected standards are requirements governing: (a) restoration of land after mining to its prior condition; (b) restoration of land to its approximate original contour; (c) segregation and preservation of topsoil; (d) minimization of disturbance to the hydrologic balance; (e) construction of coal mine waste piles used as dams and embankments; (f) revegetation of mined areas; and (g) spoil disposal. 515 (b), 30 U.S. C. 1265 (b) (76 ed., Supp. III).[2] The interim *270 regulations were published on December 13, 77, see[3] and they are currently in effect in most including Virginia.[4] The Secretary is responsible for enforcing the interim regulatory program. 502 (e), 30 U.S. C. 1252 (e) (76 ed., Supp. III). A federal enforcement and inspection program is to be established for each State, and is to remain in effect until a permanent regulatory program is implemented in the State. may issue permits for surface mining operations during the interim phase, but operations authorized by such permits must comply with the federal interim performance standards. 502 (b), 30 U.S. C. 1252 (b) (76 ed., Supp. III). may also pursue their own regulatory and inspection programs during the interim phase, and they may *271 assist the Secretary in enforcing the interim standards.[5] The are not, however, required to enforce the interim regulatory standards and, until the permanent phase of the program, the Secretary may not cede the Federal Government's independent enforcement role to that wish to conduct their own regulatory programs. Section 501 (b), 30 U.S. C. 1251 (b) (76 ed., Supp. III), directs the Secretary to promulgate regulations establishing a permanent regulatory program incorporating all the Act's performance standards. The Secretary published the permanent regulations on March 13, 79, see but these regulations do not become effective in a particular State until either a permanent state program, submitted and approved in accordance with 503 of the Act, or a permanent federal program for the State, adopted in accordance with 504, is implemented. Under 503, any State wishing to assume permanent regulatory authority over the surface coal mining operations on "non-Federal lands"[6] within its borders must submit a proposed permanent program to the Secretary for his approval. The proposed program must demonstrate that the state legislature has enacted laws implementing the environmental protection standards established by the Act and accompanying regulations, and that the State has the administrative and technical ability to enforce these standards. 30 U.S. C. 1253 (76 ed., Supp. III). The Secretary must approve or disapprove each such proposed program in accordance with time schedules and procedures established by 503 (b), (c), *272 30 U.S. C. 1253 (b), (c) (76 ed., Supp. III).[7] In addition, the Secretary must develop and implement a federal permanent program for each State that fails to submit or enforce a satisfactory state program. 504, 30 U.S. C. 1254 (76 ed., Supp. III). In such situations, the Secretary constitutes the regulatory authority administering the Act within that State and continues as such unless and until a "state program" is approved. No later than eight months after adoption of either a state-run or federally administered permanent regulatory program for a State, all surface coal mining and reclamation operations on "non-Federal lands" within that State must obtain a new permit issued in accordance with the applicable regulatory program. 506 (a), 30 U.S. C. 1256 (a) (76 ed., Supp. III). *273 B On October 23, 78, the Virginia Surface Mining and Reclamation Association, an association of coal producers engaged in surface coal mining operations in Virginia, 63 of its member coal companies, and 4 individual landowners filed suit in Federal District Court seeking declaratory and injunctive relief against various provisions of the Act. The Commonwealth of Virginia and the town of Wise, Va., intervened as plaintiffs.[8] Plaintiffs' challenge was primarily directed at Title V's performance standards.[9] Because the permanent regulatory program was not scheduled to become effective until June 3, plaintiffs' challenge was directed at the sections of the Act establishing the interim regulatory program. Plaintiffs alleged that these provisions violate the Commerce Clause, the equal protection and due process guarantees of the Due Process Clause of the Fifth Amendment,[10] the Tenth Amendment,[11] and the Just Compensation Clause of the Fifth Amendment.[12] The District Court held a 13-day trial on plaintiffs' request for a permanent injunction. The court subsequently *274 issued an order and opinion declaring several central provisions of the Act unconstitutional. The court rejected plaintiffs' Commerce Clause, equal protection, and substantive due process challenges to the Act. The court held, however, that the Act "operates to `displace the ' freedom to structure integral operations in areas of traditional functions,'. and, therefore, is in contravention of the Tenth Amendment." quoting National League of The court also ruled that various provisions of the Act effect an uncompensated taking of private property in violation of the Just Compensation Clause of the Fifth Amendment. Finally, the court agreed with plaintiffs' due process challenges to some of the Act's enforcement provisions. The court permanently enjoined the Secretary from enforcing various provisions of the Act.[13] In No. 79-1538, the Secretary appeals from that portion of the District Court's judgment declaring various sections of the Act unconstitutional and permanently enjoining their enforcement. In No. 79-1596, plaintiffs cross-appeal from the District Court's rejection of their Commerce Clause challenge to the Act.[14] Because of the importance of the issues raised, we noted probable jurisdiction of both appeals,[15] 449 U. S. *275 817 and consolidated the two cases.[16] For convenience, we shall usually refer to plaintiffs as "appellees." II On cross-appeal, appellees argue that the District Court erred in rejecting their challenge to the Act as beyond the scope of congressional power under the Commerce Clause. They insist that the Act's principal goal is regulating the use of private lands within the borders of the and not, as the District Court found, regulating the interstate commerce effects of surface coal mining. Consequently, appellees contend that the ultimate issue presented is "whether land as such is subject to regulation under the Commerce Clause, i. e. whether land can be regarded as `in commerce.'" Brief for Virginia Surface Mining & Reclamation Association, et al. 12 (emphasis in original). In urging us to answer "no" to this question, appellees emphasize that the Court has recognized that land-use regulation is within the inherent police powers of the and their political subdivisions,[17] and *276 argue that Congress may regulate land use only insofar as the Property Clause[18] grants it control over federal lands. We do not accept either appellees' framing of the question or the answer they would have us supply. The task of a court that is asked to determine whether a particular exercise of congressional power is valid under the Commerce Clause is relatively narrow. The court must defer to a congressional finding that a regulated activity affects interstate commerce, if there is any rational basis for such a finding. Heart of Atlanta Motel, ; This established, the only remaining question for judicial inquiry is whether "the means chosen by [Congress] must be reasonably adapted to the end permitted by the Constitution." Heart of Atlanta Motel, See United v. ; The judicial task is at an end once the court determines that Congress acted rationally in adopting a particular regulatory scheme. Judicial review in this area is influenced above all by the fact that the Commerce Clause is a grant of plenary authority to Congress. See National League of ; Cleveland v. United ; (). This power is "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." 6 Moreover, this Court has made clear that the commerce power extends not only to "the use of channels of interstate or foreign commerce" and *277 to "protection of the instrumentalities of interstate commerce or persons or things in commerce," but also to "activities affecting commerce." Perez v. United (71). As we explained in Fry v. United 421, U. S. 542, 547 (75), "[e]ven activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the or with foreign nations." See National League of 426 U. S., ; Heart of Atlanta Motel, ; (42); United v. Wrightwood Dairy 1 (42); United v. at 120-. Thus, when Congress has determined that an activity affects interstate commerce, the courts need inquire only whether the finding is rational. Here, the District Court properly deferred to Congress' express findings, set out in the Act itself, about the effects of surface coal mining on interstate commerce. Section 101 (c), 30 U.S. C. 1201 (c) (76 ed., Supp. III), recites the congressional finding that "many surface mining operations result in disturbances of surface areas that burden and adversely affect commerce and the public welfare by destroying or diminishing the utility of land for commercial, industrial, residential, recreational, agricultural, and forestry purposes, by causing erosion and landslides, by contributing to floods, by polluting the water, by destroying fish and wildlife habitats, by impairing natural beauty, by damaging the property of citizens, by creating hazards dangerous to life and property by degrading the quality of life in local communities, and by counteracting governmental programs and efforts to conserve soil, water, and other natural resources." The legislative record provides ample support for these statutory findings. The Surface Mining Act became law *278 only after six years of the most thorough legislative consideration.[] Committees of both Houses of Congress held extended hearings during which vast amounts of testimony and *279 documentary evidence about the effects of surface mining on our Nation's environment and economy were brought to Congress' attention. Both Committees made detailed findings about these effects and the urgent need for federal legislation to address the problem. The Senate Report explained that "[s]urface coal mining activities have imposed large social costs on the public in many areas of the country in the form of unreclaimed lands, water pollution, erosion, floods, slope failures, loss of fish and wildlife resources, and a decline in natural beauty." S. Rep. No. 95-128, p. 50 (77). See Similarly, the House Committee documented the adverse effects of surface coal mining on interstate commerce as including: "`Acid drainage which has ruined an estimated 11,000 miles of streams; the loss of prime hardwood forest and the destruction of wildlife habitat by strip mining; the degrading of productive farmland; recurrent *280 landslides; siltation and sedimentation of river systems.'" H. R. Rep. No. 95-218, p. 58 (77), quoting H. R. Rep. No. 94-1445, p. And in discussing how surface coal mining affects water resources and in turn interstate commerce, the House Committee explained: "The most widespread damages are environmental in nature. Water users and developers incur significant economic and financial losses as well. "Reduced recreational values, fishkills, reductions in normal waste assimilation capacity, impaired water supplies, metals and masonry corrosion and deterioration, increased flood frequencies and flood damages, reductions in designed water storage capacities at impoundments, and higher operating costs for commercial waterway users are some of the most obvious economic effects that stem from mining-related pollution and sedimentation." H. R. Rep. No. 95-218, at 59. See The Committees also explained that inadequacies in existing state laws and the need for uniform minimum nationwide standards made federal regulations imperative. See S. Rep. No. 95-128, at 49; H. R. Rep. No. 95-218, at 58. In light of the evidence available to Congress and the detailed consideration that the legislation received, we cannot say that Congress did not have a rational basis for concluding that surface coal mining has substantial effects on interstate commerce. Appellees do not, in general, dispute the validity of the congressional findings.[20] Rather, appellees' contention is that *281 the "rational basis" test should not apply in this case because the Act regulates land use, a local activity not affecting interstate commerce. But even assuming that appellees correctly characterize the land use regulated by the Act as a "local" activity, their argument is unpersuasive. The denomination of an activity as a "local" or "intrastate" activity does not resolve the question whether Congress may regulate it under the Commerce Clause. As previously noted, the commerce power "extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce." United v. Wrightwood Dairy 315 U. S., at 1. See Fry v. United ; 301 U. S., at This Court has long held that Congress may regulate the conditions under which goods shipped in interstate commerce are produced where the "local" activity of producing these goods itself affects interstate commerce. See, e. g., United v. ; (42); Kirschbaum v. Walling, (42). Cf. Appellees do not dispute that coal is a commodity that moves in interstate commerce. Here, Congress rationally determined that regulation of surface coal mining is necessary to protect interstate commerce from adverse effects that may result from that activity. This congressional finding is sufficient to sustain the Act as a valid exercise of Congress' power under the Commerce Clause. Moreover, the Act responds to a congressional finding that nationwide "surface mining and reclamation standards are essential in order to insure that competition in interstate commerce among sellers of coal produced in different will not be used to undermine the ability of the several *282 to improve and maintain adequate standards on coal mining operations within their borders." 30 U.S. C. 1201 (g) (76 ed., Supp. III). The prevention of this sort of destructive interstate competition is a traditional role for congressional action under the Commerce Clause. In United v. the Court used a similar rationale to sustain the imposition of federal minimum wage and maximum hour regulations on a manufacturer of goods shipped in interstate commerce. The Court explained that the statute implemented Congress' view that "interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the states from and to which the commerce flows." The same rationale applies here to support the conclusion that the Surface Mining Act is within the authority granted to Congress by the Commerce Clause. Finally, we agree with the lower federal courts that have uniformly found the power conferred by the Commerce Clause broad enough to permit congressional regulation of activities causing air or water pollution, or other environmental hazards that may have effects in more than one State.[21] Appellees do not dispute that the environmental and other problems that the Act attempts to control can properly be addressed through Commerce Clause legislation. In these circumstances, it is difficult to find any remaining foundation *283 for appellees' argument that, because it regulates a particular land use, the Surface Mining Act is beyond congressional Commerce Clause authority. Accordingly, we turn to the question whether the means selected by Congress were reasonable and appropriate. Appellees' essential challenge to the means selected by the Act is that they are redundant or unnecessary. Appellees contend that a variety of federal statutes such as the Clean Air Act, 42 U.S. C. 7401 et seq. (76 ed., Supp. III), the Flood Control Acts, 33 U.S. C. 701 et seq. (76 ed., Supp. III), and the Clean Water Act, 33 U.S. C. 1251 et seq. (76 ed., Supp. III), adequately address the federal interest in controlling the environmental effects of surface coal mining without need to resort to the land-use regulation scheme of the Surface Mining Act. The short answer to this argument is that the effectiveness of existing laws in dealing with a problem identified by Congress is ordinarily a matter committed to legislative judgment. Congress considered the effectiveness of existing legislation and concluded that additional measures were necessary to deal with the interstate commerce effects of surface coal mining. See H. R. Rep. No. 95-218, at 58-60; S. Rep. No. 95-128, at 59-63. And we agree with the court below that the Act's regulatory scheme is reasonably related to the goals Congress sought to accomplish. The Act's restrictions on the practices of mine operators all serve to control the environmental and other adverse effects of surface coal mining. In sum, we conclude that the District Court properly rejected appellees' Commerce Clause challenge to the Act. We therefore turn to the court's ruling that the Act contravenes affirmative constitutional limitations on congressional exercise of the commerce power. III The District Court invalidated 515 (d) and (e) of the Act, which prescribe performance standards for surface coal *284 mining on "steep slopes,"[22] on the ground that they violate a constitutional limitation on the commerce power imposed by the Tenth Amendment. These provisions require "steep-slope" operators: (i) to reclaim the mined area by completely covering the highwall and returning the site to its "approximate original contour";[23] (ii) to refrain from dumping spoil material on the downslope below the bench or mining cut; and (iii) to refrain from disturbing land above the highwall unless permitted to do so by the regulatory authority. 515 (d), 30 U.S. C. 1265 (d) (76 ed., Supp. III). Under 515 (e), a "steep-slope" operator may obtain a variance from the approximate-original-contour requirement by showing that it will allow a postreclamation use that is "deemed to constitute an equal or better economic or public use" than would otherwise be possible. 30 U.S. C. 1265 (e) (3) (A) (76 ed., Supp. III).[24] The District Court's ruling relied heavily on our decision in National League of The District Court viewed the central issue as whether the Act governs the activities of private individuals, or whether it instead regulates the governmental decisions of the And although the court acknowledged that the Act "ultimately affects the coal mine operator." it concluded that the Act contravenes the Tenth Amendment *285 because it interferes with the ' "traditional governmental function" of regulating land use. The court held that, as applied to Virginia, the Act's steep-slope provisions impermissibly constrict the State's ability to make "essential decisions."[25] The court found the Act accomplishes this result "through forced relinquishment of state control of land use planning; through loss of state control of its economy; and through economic harm, from expenditure of state funds to implement the act and from destruction of the taxing power of certain counties, cities, and towns."[26] The court therefore permanently enjoined enforcement of 515 (d) and (e).[27] *286 The District Court's reliance on National League of Cities requires a careful review of the actual basis and import of our decision in that case. There, we considered a constitutional challenge to the 74 amendments to the Fair Labor Standards Act which had extended federal minimum wage and maximum hour regulations to most state and local government employees. Because it was conceded that the challenged regulations were "undoubtedly within the scope of the Commerce Clause," the only question presented was whether that particular exercise of the commerce power "encounter[ed] a constitutional barrier because [the regulations] applied directly to the and subdivisions of as employers." We began by drawing a sharp distinction between congressional regulation of private persons and businesses "necessarily subject to the dual sovereignty of the government of the Nation and of the State in which they reside," and federal regulation "directed, not to private citizens, but to the as" As to the former, we found no Tenth Amendment impediment to congressional action. Instead, we reaffirmed our consistent rule: "Congressional power over areas of private endeavor, even when its exercise may pre-empt express state-law determinations contrary to the result that has commended itself to the collective wisdom of Congress, has been held to be limited only by the requirement that `the means chosen by [Congress] must be reasonably adapted to the end permitted by the Constitution.' Heart of Atlanta Motel," The Court noted, however, that "the as stand on a quite different footing from an individual or corporation when challenging the exercise of Congress' power to regulate commerce." It indicated that when Congress attempts to directly regulate the as the Tenth *287 Amendment requires recognition that "there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner." The Court held that the power to set the wages and work hours of state employees was "an undoubted attribute of state sovereignty." And because it further found that the challenged regulations would "displace the ' freedom to structure integral operations in areas of traditional governmental functions," at the Court concluded that Congress could not, consistently with the Tenth Amendment, "abrogate the ' otherwise plenary authority to make [these decisions]."[28] It should be apparent from this discussion that in order to succeed, a claim that congressional commerce power legislation is invalid under the reasoning of National League of Cities must satisfy each of three requirements. First, there must be a showing that the challenged statute regulates the " as" Second, the federal regulation *288 must address matters that are indisputably "attribute[s] of state sovereignty." And third, it must be apparent that the ' compliance with the federal law would directly impair their ability "to structure integral operations in areas of traditional governmental functions." at[29] When the Surface Mining Act is examined in light of these principles, it is clear that appellees' Tenth Amendment challenge must fail because the first of the three requirements is not satisfied. The District Court's holding to the contrary rests on an unwarranted extension of the decision in National League of Cities. As the District Court itself acknowledged, the steep-slope provisions of the Surface Mining Act govern only the activities of coal mine operators who are private individuals and businesses. Moreover, the are not compelled to enforce the steep-slope standards, to expend any state funds, or to participate in the federal regulatory program in any manner whatsoever. If a State does not wish to submit a proposed permanent program that complies with the Act and implementing regulations, the full regulatory burden will be borne by the Federal Government. Thus, there can be no suggestion that the Act commandeers the legislative processes of the by directly compelling them to enact and enforce a federal regulatory program. Cf. (CA4 75), vacated and remanded sub nom. (77); District of (75), vacated and remanded sub nom. (77); Brown v. EPA, 521 F. *289 2d 827, 8-842 (CA9 75), vacated and remanded, (77). The most that can be said is that the Surface Mining Act establishes a program of cooperative federalism that allows the within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own particular needs. See In re Permanent Surface Mining Regulation Litigation, 9 U. S. App. D. C. 225, 226, In this respect, the Act resembles a number of other federal statutes that have survived Tenth Amendment challenges in the lower federal courts.[30] Appellees argue, however, that the threat of federal usurpation of their regulatory roles coerces the into enforcing the Surface Mining Act. Appellees also contend that the Act directly regulates the as because it establishes mandatory minimum federal standards. In essence, appellees urge us to join the District Court in looking beyond the activities actually regulated by the Act to its conceivable effects on the ' freedom to make decisions in areas of "integral governmental functions." And appellees emphasize, as did the court below, that the Act interferes with the ' ability to exercise their police powers by regulating land use. Appellees' claims accurately characterize the Act insofar as it prescribes federal minimum standards governing surface coal mining, which a State may either implement itself or else yield to a federally administered regulatory program. To object to this scheme, however, appellees must assume that the Tenth Amendment limits congressional power to *290 pre-empt or displace state regulation of private activities affecting interstate commerce. This assumption is incorrect. A wealth of precedent attests to congressional authority to displace or pre-empt state laws regulating private activity affecting interstate commerce when these laws conflict with federal law. See, e. g., Jones v. Rath Packing 430 U.S. 5, (77); 402 U.S. 6, (71); Florida Lime & Avocado Growers, 3 U.S. 132, (63); Bethlehem Steel v. New York State Labor Relations Bd., (47); Moreover, it is clear that the Commerce Clause empowers Congress to prohibit all—and not just inconsistent—state regulation of such activities. See, e. g., City of (73); (61); Rice v. Santa Fe Elevator (47); Transit Comm'n v. United 289 U.S. (33). Although such congressional enactments obviously curtail or prohibit the ' prerogatives to make legislative choices respecting subjects the may consider important, the Supremacy Clause permits no other result. See & North Western Transp. v. Kalo Brick & Tile 317-3 (81); Sanitary District v. United (25); The Minnesota Rate Cases, (13); As the Court long ago stated: "It is elementary and well settled that there can be no divided authority over interstate commerce, and that the acts of Congress on that subject are supreme and exclusive." Missouri Pacific R. v. Stroud, (25). Thus, Congress could constitutionally have enacted a statute prohibiting any state regulation of surface coal mining. We fail to see why the Surface Mining Act should become constitutionally suspect simply because Congress chose to allow the a regulatory role. Contrary to the assumption by both the District Court and appellees, nothing in *291 National League of Cities suggests that the Tenth Amendment shields the from pre-emptive federal regulation of private activities affecting interstate commerce. To the contrary, National League of Cities explicitly reaffirmed the teaching of earlier cases that Congress may, in regulating private activities pursuant to the commerce power, "pre-empt express state-law determinations contrary to the result which has commended itself to the collective wisdom of Congress." 426 U.S., The only limitation on congressional authority in this regard is the requirement that the means selected be reasonably related to the goal of regulating interstate commerce. We have already indicated that the Act satisfies this test.[31] This conclusion applies regardless of whether the federal legislation displaces laws enacted under the ' "police powers." The Court long ago rejected the suggestion that Congress invades areas reserved to the by the Tenth Amendment simply because it exercises its authority under the Commerce Clause in a manner that displaces the ' exercise of their police powers. See Hoke v. United (13); Athanasaw v. United (13); Cleveland v. United 329 U. S., at ; United v. -114; United v. Wrightwood Dairy 315 U. S., at 1. Cf. United v. Carolene Products (38) ;[32] accord, FPC v. Natural Gas Pipeline 315 *, (42); Hamilton v. Kentucky Distilleries & Warehouse (); Seven Cases v. United (16). This Court has upheld as constitutional any number of federal statutes enacted under the commerce power that pre-empt particular exercises of state police power. See, e. g., United v. Walsh, (47) (upholding Federal Food, Drug, and Cosmetic Act, 21 U.S. C. 301-392); () (upholding National Labor Relations Act, 29 U.S. C. 151-168); United v. (upholding Fair Labor Standards Act, 29 U.S. C. 201-2). It would therefore be a radical departure from long-established precedent for this Court to hold that the Tenth Amendment prohibits Congress from displacing state police power laws regulating private activity. Nothing in National League of Cities compels or even hints at such a departure.[33] *293 In sum, appellees' Tenth Amendment challenge to the Surface Mining Act must fail because here, in contrast to the situation in National League of Cities, the statute at issue regulates only "individual businesses necessarily subject to the dual sovereignty of the government of the Nation and the State in which they reside." National League of 426 U. S.,[34] Accordingly, we turn to the District Court's ruling that the Act contravenes other constitutional limits on congressional action. IV The District Court held that two of the Act's provisions violate the Just Compensation Clause of the Fifth Amendment. First, the court found that the steep-slope provisions discussed above effect an uncompensated taking of private property by requiring operators to perform the "economically and physically impossible" task of restoring steep-slope surface mines to their approximate original contour. 483 F. Supp., at 4.[35] The court further held that, even if steep-slope surface mines could be restored to their approximate original contour, the value of the mined land after such restoration would have "been diminished to practically nothing." *294 Second, the court found that 522 of the Act effects an unconstitutional taking because it expressly prohibits mining in certain locations and "clearly prevent[s] a person from mining his own land or having it mined."[36] Relying on this Court's decision in Pennsylvania Coal v. Mahon, (22), the District Court held that both of these provisions are unconstitutional because they "depriv[e] [coal mine operators] of any use of [their] land, not only the most profitable" 483 F. Supp., We conclude that the District Court's ruling on the "taking" issue suffers from a fatal deficiency: neither appellees nor the court identified any property in which appellees have an interest that has allegedly been taken by operation of the Act. By proceeding in this fashion, the court below ignored this Court's oft-repeated admonition that the constitutionality of statutes ought not be decided except in an actual *295 factual setting that makes such a decision necessary. See Socialist Labor (72); Rescue (47); Alabama State Federation of (45). Adherence to this rule is particularly important in cases raising allegations of an unconstitutional taking of private property. Just last Term, we reaffirmed that "this Court has generally `been unable to develop any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.' Rather, it has examined the `taking' question by engaging in essentially ad hoc, factual inquiries that have identified several factors—such as the economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the government action—that have particular significance." Kaiser Aetna v. United (79) These "ad hoc, factual inquires" must be conducted with respect to specific property, and the particular estimates of economic impact and ultimate valuation relevant in the unique circumstances. Because appellees' taking claim arose in the context of a facial challenge, it presented no concrete controversy concerning either application of the Act to particular surface mining operations or its effect on specific parcels of land. Thus, the only issue properly before the District Court and, in turn, this Court, is whether the "mere enactment" of the Surface Mining Act constitutes a taking. See The test to be applied in considering this facial challenge is fairly straightforward. A *296 statue regulating the uses that can be made of property effects a taking if it "denies an owner economically viable use of his land" at See Penn Central Transp. v. New York City, (78). The Surface Mining Act easily survives scrutiny under this test. First, the Act does not, on its face, prevent beneficial use of coal-bearing lands. Except for the proscription of mining near certain locations by 522 (e), the Act does not categorically prohibit surface coal mining; it merely regulates the conditions under which such operations may be conducted.[] The Act does not purport to regulate alternative uses to which coal-bearing lands may be put.[38] Thus, in the posture in *297 which these cases come before us, there is no reason to suppose that "mere enactment" of the Surface Mining Act has deprived appellees of economically viable use of their property. Moreover, appellees cannot at this juncture legitimately raise complaints in this Court about the manner in which the challenged provisions of the Act have been or will be applied in specific circumstances, or about their effect on particular coal mining operations. There is no indication in the record that appellees have availed themselves of the opportunities provided by the Act to obtain administrative relief by requesting either a variance from the approximate-original-contour requirement of 515 (d) or a waiver from the surface mining restrictions in 522 (e). If appellees were to seek administrative relief under these procedures, a mutually acceptable solution might well be reached with regard to individual properties, thereby obviating any need to address the constitutional questions.[39] The potential for such administrative solutions confirms the conclusion that the taking issue decided by the District Court simply is not ripe for judicial resolution.[40] *298 V A The District Court next ruled that the Act contravenes the Fifth Amendment because a number of its enforcement provisions offend the Amendment's Due Process Clause. One such provision is 521 (a) (2), 30 U.S. C. 1271 (a) (2) (76 ed., Supp. III), which instructs the Secretary immediately to order total or partial cessation of a surface mining operation whenever he determines, on the basis of a federal inspection, that the operation is in violation of the Act or a permit condition required by the Act and that the operation "creates an immediate danger to the health or safety of the public, or is causing, or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources"[41] A mine operator aggrieved by an immediate cessation order issued under 521 (a) (2) or by a cessation order issued after a notice of violation and expiration of an abatement period under 521 (a) (3) may immediately request temporary relief from the Secretary, and the Secretary must respond to the request within five days of its receipt. 525 (c), 30 U.S. C. 1275 (76 ed., Supp. III). Section 526 (c) of the Act, 30 U.S. C. 1276 (c) (76 ed., Supp. III), authorizes judicial review of a decision by the Secretary denying temporary relief. In addition, cessation orders are subject to informal administrative review under 521 (a) (5), and formal administrative review, including an adjudicatory hearing, under 525 (b), 30 U.S. C. 1275 (b) (76 ed., Supp. *299 III).[42] The Secretary's decision in the formal review proceeding is subject to judicial review pursuant to 526 (a) (2), 30 U.S. C. 1276 (a) (2) (76 ed., Supp. III). The District Court held that 521 (a) (2)'s authorization of immediate cessation orders violates the Fifth Amendment because the statute does not provide sufficiently objective criteria for summary administrative action. In this regard, the court relied on its finding that OSM inspectors had issued against a particular company three immediate cessation orders which were later overturned on appeal, and that the company involved had suffered significant losses. The court enjoined the Secretary from issuing any immediate cessation orders "until such time as Congress makes provisions to correct the use of subjective criteria by OSM inspectors."[43] In addition, the court ruled that even if the Act is amended to correct this problem, the 5-day response period prescribed by the Act does not meet the requirements of due process. Instead, the court held that the Secretary must respond within 24 hours to a mine operator's request for temporary relief from an immediate cessation order. We find both aspects of the District Court's reasoning unpersuasive. Our cases have indicated that due process ordinarily requires an opportunity for "some kind of hearing" prior to the deprivation of a significant property interest. See (81); 401 U.S. 1, 9 (71). The Court has often acknowledged *300 however, that summary administrative action may be justified in emergency situations. See, e. g., Calero-Toledo v. Pearson Yacht Leasing (74); at 8-9; (50); (47); Yakus v. United (44); 5-520 (44); (31); North American Cold Storage v. (08). The question then, is whether the issuance of immediate cessation orders under 521 (a) falls under this emergency situation exception to the normal rule that due process requires a hearing prior to deprivation of a property right. We believe that it does. The immediate cessation order provisions reflect Congress' concern about the devastating damage that may result from mining disasters.[44] They represent an attempt to reach an accommodation between the legitimate desire of mining companies to be heard before submitting to administrative regulation and the governmental interest in protecting the public health and safety and the environment from imminent danger. Protection of the health and safety of the public is a paramount governmental interest which justifies summary administrative action. Indeed, deprivation of property to protect the public health and safety is "[o]ne of the oldest examples" of permissible summary action. See (79); ; North American Cold Storage v. Moreover, the administrative action provided through immediate cessation orders responds to situations in which swift action is necessary to protect the public health and safety. This is precisely the type of emergency situation in which this Court has found summary administrative action justified. See North American Cold Storage v. Rather than taking issue with any of these principles, the District Court held that the Act does not establish sufficiently objective criteria governing the issuance of summary cessation orders. We disagree. In our judgment, the criteria established by the Act and the Secretary's implementing regulations are specific enough to control governmental action and reduce the risk of erroneous deprivation. Section 701 (8) of the Act, 30 U.S. C. 1291 (8) (76 ed., Supp. III), defines the threat of "imminent danger to the health and safety of the public" as the existence of a condition or practice which could "[r]easonably be expected to cause substantial physical harm to persons outside the permit area before such condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same conditions or practices giving rise to the peril, would not expose himself or herself to the danger during the time necessary for abatement."[45] *302 If anything, these standards are more specific than the criteria in other statutes authorizing summary administrative action that have been upheld against due process challenges. See, e. g., ; ; Air East, v. National Transportation Safety Board, (CA3) ("`emergency requiring immediate action in respect to air safety in commerce' "), cert. denied, (75). The fact that OSM inspectors have issued immediate cessation orders that were later overturned on administrative appeal does not undermine the adequacy of the Act's criteria but instead demonstrates the efficacy of the review procedures. The relevant inquiry is not whether a cessation order should have been issued in a particular case, but whether the statutory procedure itself is incapable of affording due process. Yakus v. United -435. The possibility of administrative error inheres in any regulatory program; statutory programs authorizing emergency administrative action prior to a hearing are no exception.[46] As we *303 explained in 339 U. S., : "Discretion of any official action may be abused. Yet it is not a requirement of due process that there be judicial inquiry before discretion can be exercised. It is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination." Here, mine operators are afforded prompt and adequate postdeprivation administrative hearings and an opportunity for judicial review. We are satisfied that the Act's immediate cessation order provisions comport with the requirements of due process. We also conclude that the District Court erred in reducing the statutorily prescribed time period for the Secretary's response to requests for temporary relief. In the first place, the 5-day period is a statutory maximum and there is no indication in the record that the Secretary has not responded or will not respond in less than five days. Second, appellees have not demonstrated that they have been adversely affected by the 5-day response period in a particular case or that it is generally unreasonable. In addition, no evidence was introduced to show that a shorter reply period is administratively feasible. In these circumstances, there simply is no basis for the District Court's decision to substitute a judicial policy preference for the scheme adopted by Congress. Cf. Vermont Yankee Nuclear v. Natural Resources Defense Council, 435 U.S. 5 (78). Accordingly, we turn to the District Court's holding that other sections of the Act violate the Fifth Amendment's Due Process Clause. B The District Court ruled that the Act's civil penalty provisions do not comport with the requirements of due process. Under these provisions, the Secretary is to notify the recipient of a notice of violation or a cessation order of the proposed *304 amount of any civil penalty that is to be assessed against it. 518 (c), 30 U.S. C. 1268 (c) (76 ed., Supp. III). Section 518 (c) further states that, if the operator "wishes to contest either the amount of the penalty or the fact of the violation," it must "forward the proposed amount to the Secretary for placement in an escrow account."[47] Once the escrow requirement is met, the operator receives a full adjudicatory hearing before an administrative law judge, with a right of appeal to an administrative board and judicial review of the final decision. See 30 U.S. C. 1276 (a) (2) (76 ed., Supp. III). If, after administrative or judicial review, it is determined that no violation occurred or that the view, it is determined that no violation occurred or that the amount of the proposed penalty should be reduced, the appropriate amount must promptly be refunded to the operator with interest. 30 U.S. C. 1268 (c) (76 ed., Supp. III). In challenging the Act's civil penalty provisions appellees did not allege that they, or any one of them, have had civil penalties assessed against them. Moreover, the District Court did not find, as it did in ruling on the immediate cessation order provisions, that any of appellee coal mine operators have been affected or harmed by any of the statutory procedures for the assessment and collection of fines. Thus, the record in these cases belies any suggestion that there is a concrete case or controversy concerning the operation of these provisions. In these circumstances, we must conclude that appellees' challenge is premature, and that it was improper for the court below to render a decision on this claim. VI Our examination of appellees' constitutional challenges to the Surface Mining Act persuades us that the Act is not *305 vulnerable to their pre-enforcement challenge. Accordingly, we affirm the judgment of the District Court upholding the Act against appellees' Commerce Clause attack (No. 79-1596), and we reverse the judgment below insofar as it held various provisions of the Act unconstitutional (No. 79-1538). The cases are remanded to the District Court with instructions to dissolve the injunction issued against the Secretary, and for further proceedings consistent with this opinion. So ordered. THE CHIEF JUSTICE, concurring.[*] I agree largely with what JUSTICE REHNQUIST has said about the "fictions" concerning delegation, and the gradual case-by-case expansion of the reach of the Commerce Clause. I agree fully with his view that we often seem to forget the doctrine that laws enacted by Congress under the Commerce Clause must be based on a substantial effect on interstate commerce. However, I join the Court's opinions in these cases and in No. 80-231 because in them the Court acknowledges and reaffirms that doctrine. See, e. g., ante, at 280.

Justice Kennedy

majority

Dole Food Co. v. Patrickson

https://www.courtlistener.com/opinion/127913/dole-food-co-v-patrickson/

https://www.courtlistener.com/api/rest/v3/clusters/127913/

2002-044

Foreign states may invoke certain rights and immunities in litigation under the Foreign Sovereign Immunities Act of *471 1976 (FSIA or Act), Pub. L. 94-583, 90 Stat. 2891. Some of the Act's provisions also may be invoked by a corporate entity that is an "instrumentality" of a foreign state as defined by the Act. Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 611 (1992); Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 488 (1983). The corporate entities in this action claim instrumentality status to invoke the Act's provisions allowing removal of state-court actions to federal court. As the action comes to us, it presents two questions. The first is whether a corporate subsidiary can claim instrumentality status where the foreign state does not own a majority of its shares but does own a majority of the shares of a corporate parent one or more tiers above the subsidiary. The second question is whether a corporation's instrumentality status is defined as of the time an alleged tort or other actionable wrong occurred or, on the other hand, at the time suit is filed. We granted certiorari, 536 U.S. 956 (2002). I The underlying action was filed in a state court in Hawaii in 1997 against Dole Food Company and other companies (Dole petitioners). Plaintiffs in the action were a group of farm workers from Costa Rica, Ecuador, Guatemala, and Panama who alleged injury from exposure to dibromochloropropane, a chemical used as an agricultural pesticide in their home countries. The Dole petitioners impleaded petitioners Dead Sea Bromine Co., Ltd., and Bromine Compounds, Ltd. (collectively, the Dead Sea Companies). The merits of the suit are not before us. The Dole petitioners removed the action to the United States District Court for the District of Hawaii under 28 U.S. C. § 1441(a), arguing that the federal common law of foreign relations provided federal-question jurisdiction under § 1331. The District Court agreed there was federal subject-matter jurisdiction under the federal common law of *472 foreign relations but, nevertheless, dismissed the case on grounds of forum non conveniens. The Dead Sea Companies removed under a separate theory. They claimed to be instrumentalities of a foreign state as defined by the FSIA, entitling them to removal under § 1441(d). The District Court held that the Dead Sea Companies are not instrumentalities of a foreign state for purposes of the FSIA and are not entitled to removal on that basis. Civ. No. 97-01516HG (D. Haw., Sept. 9, 1998), App. to Pet. for Cert. in No. 01-594, p. 79a. The Court of Appeals reversed. Addressing the ground relied on by the Dole petitioners, it held removal could not rest on the federal common law of foreign relations. 251 F.3d 795, 800 (CA9 2001). In this Court the Dole petitioners did not seek review of that portion of the Court of Appeals' ruling, and we do not address it. Accordingly, the writ of certiorari in No. 01-593 is dismissed. The Court of Appeals also reversed the order allowing removal at the instance of the Dead Sea Companies, who alleged they were instrumentalities of the State of Israel. The Court of Appeals noted, but declined to answer, the question whether status as an instrumentality of a foreign state is assessed at the time of the alleged wrongdoing or at the time suit is filed. It went on to hold that the Dead Sea Companies, even at the earlier date, were not instrumentalities of Israel because they did not meet the Act's definition of instrumentality. In order to prevail here, the Dead Sea Companies must show both that instrumentality status is determined as of the time the alleged tort occurred and that they can claim instrumentality status even though they were but subsidiaries of a parent owned by the State of Israel. We address each question in turn. In No. 01-594, the case in which the Dead Sea Companies are petitioners, we now affirm. *473 II A Title 28 U.S. C. § 1441(d) governs removal of actions against foreign states. It provides that "[a]ny civil action brought in a State court against a foreign state as defined in [28 U.S. C. § 1603(a)] may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending." See also § 1330 (governing original jurisdiction). Section 1603(a), part of the FSIA, defines "foreign state" to include an "agency or instrumentality of a foreign state." "[A]gency or instrumentality of a foreign state" is defined, in turn, as: "[A]ny entity — "(1) which is a separate legal person, corporate or otherwise, and "(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and "(3) which is neither a citizen of a State of the United States ... nor created under the laws of any third country." § 1603(b). B The Court of Appeals resolved the question of the FSIA's applicability by holding that a subsidiary of an instrumentality is not itself entitled to instrumentality status. Its holding was correct. The State of Israel did not have direct ownership of shares in either of the Dead Sea Companies at any time pertinent to this suit. Rather, these companies were, at various times, separated from the State of Israel by one or more intermediate corporate tiers. For example, from 1984-1985, Israel wholly owned a company called Israeli Chemicals, Ltd.; which owned a majority of shares in another company called *474 Dead Sea Works, Ltd.; which owned a majority of shares in Dead Sea Bromine Co., Ltd.; which owned a majority of shares in Bromine Compounds, Ltd. The Dead Sea Companies, as indirect subsidiaries of the State of Israel, were not instrumentalities of Israel under the FSIA at any time. Those companies cannot come within the statutory language which grants status as an instrumentality of a foreign state to an entity a "majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof." § 1603(b)(2). We hold that only direct ownership of a majority of shares by the foreign state satisfies the statutory requirement. Section 1603(b)(2) speaks of ownership. The Dead Sea Companies urge us to ignore corporate formalities and use the colloquial sense of that term. They ask whether, in common parlance, Israel would be said to own the Dead Sea Companies. We reject this analysis. In issues of corporate law structure often matters. It is evident from the Act's text that Congress was aware of settled principles of corporate law and legislated within that context. The language of § 1603(b)(2) refers to ownership of "shares," showing that Congress intended statutory coverage to turn on formal corporate ownership. Likewise, § 1603(b)(1), another component of the definition of instrumentality, refers to a "separate legal person, corporate or otherwise." In light of these indicia that Congress had corporate formalities in mind, we assess whether Israel owned shares in the Dead Sea Companies as a matter of corporate law, irrespective of whether Israel could be said to have owned the Dead Sea Companies in everyday parlance. A basic tenet of American corporate law is that the corporation and its shareholders are distinct entities. See, e. g., First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 625 (1983) ("Separate legal personality has been described as `an almost indispensable aspect of the public corporation'"); Burnet v. Clark, 287 U.S. 410, 415 *475 (1932) ("A corporation and its stockholders are generally to be treated as separate entities"). An individual shareholder, by virtue of his ownership of shares, does not own the corporation's assets and, as a result, does not own subsidiary corporations in which the corporation holds an interest. See 1 W. Fletcher, Cyclopedia of the Law of Private Corporations § 31 (rev. ed. 1999). A corporate parent which owns the shares of a subsidiary does not, for that reason alone, own or have legal title to the assets of the subsidiary; and, it follows with even greater force, the parent does not own or have legal title to the subsidiaries of the subsidiary. See id., § 31, at 514 ("The properties of two corporations are distinct, though the same shareholders own or control both. A holding corporation does not own the subsidiary's property"). The fact that the shareholder is a foreign state does not change the analysis. See First Nat. City Bank, supra, at 626-627 ("[G]overnment instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such"). Applying these principles, it follows that Israel did not own a majority of shares in the Dead Sea Companies. The State of Israel owned a majority of shares, at various times, in companies one or more corporate tiers above the Dead Sea Companies, but at no time did Israel own a majority of shares in the Dead Sea Companies. Those companies were subsidiaries of other corporations. The veil separating corporations and their shareholders may be pierced in some circumstances, and the Dead Sea Companies essentially urge us to interpret the FSIA as piercing the veil in all cases. The doctrine of piercing the corporate veil, however, is the rare exception, applied in the case of fraud or certain other exceptional circumstances, see, e. g., Burnet, supra, at 415; Fletcher, supra, §§ 41 to 41.20, and usually determined on a case-by-case basis. The Dead Sea Companies have referred us to no authority for extending the doctrine so far that, as a categorical matter, all subsidiaries *476 are deemed to be the same as the parent corporation. The text of the FSIA gives no indication that Congress intended us to depart from the general rules regarding corporate formalities. Where Congress intends to refer to ownership in other than the formal sense, it knows how to do so. Various federal statutes refer to "direct and indirect ownership." See, e.g., 5 U.S. C. § 8477(a)(4)(G)(iii) (referring to an interest "owned directly or indirectly"); 12 U.S. C. § 84(c)(5) (referring to "any corporation wholly owned directly or indirectly by the United States"); 15 U.S. C. § 79b(a)(8)(A) (referring to securities "which are directly or indirectly owned, controlled, or held with power to vote"); § 1802(3) ("The term `newspaper owner' means any person who owns or controls directly, or indirectly through separate or subsidiary corporations, one or more newspaper publications"). The absence of this language in 28 U.S. C. § 1603(b) instructs us that Congress did not intend to disregard structural ownership rules. The FSIA's definition of instrumentality refers to a foreign state's majority ownership of "shares or other ownership interest." § 1603(b)(2). The Dead Sea Companies would have us read "other ownership interest" to include a state's "interest" in its instrumentality's subsidiary. The better reading of the text, in our view, does not support this argument. The words "other ownership interest," when following the word "shares," should be interpreted to refer to a type of interest other than ownership of stock. The statute had to be written for the contingency of ownership forms in other countries, or even in this country, that depart from conventional corporate structures. The statutory phrase "other ownership interest" is best understood to accomplish this objective. Reading the term to refer to a state's interest in entities lower on the corporate ladder would make the specific reference to "shares" redundant. Absent a statutory text or structure that requires us to depart from normal rules of construction, we should not construe the statute in *477 a manner that is strained and, at the same time, would render a statutory term superfluous. See Mertens v. Hewitt Associates, 508 U.S. 248, 258 (1993) ("We will not read the statute to render the modifier superfluous"); United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992) (declining to adopt a construction that would violate the "settled rule that a statute must, if possible, be construed in such fashion that every word has some operative effect"). The Dead Sea Companies say that the State of Israel exercised considerable control over their operations, notwithstanding Israel's indirect relationship to those companies. They appear to think that, in determining instrumentality status under the Act, control may be substituted for an ownership interest. Control and ownership, however, are distinct concepts. See, e. g., United States v. Bestfoods, 524 U.S. 51, 64-65 (1998) (distinguishing between "operation" and "ownership" of a subsidiary's assets for purposes of Comprehensive Environmental Response, Compensation, and Liability Act of 1980 liability). The terms of § 1603(b)(2) are explicit and straightforward. Majority ownership by a foreign state, not control, is the benchmark of instrumentality status. We need not delve into Israeli law or examine the extent of Israel's involvement in the Dead Sea Companies' operations. Even if Israel exerted the control the Dead Sea Companies describe, that would not give Israel a "majority of [the companies'] shares or other ownership interest." The statutory language will not support a control test that mandates inquiry in every case into the past details of a foreign nation's relation to a corporate entity in which it does not own a majority of the shares. The better rule is the one supported by the statutory text and elementary principles of corporate law. A corporation is an instrumentality of a foreign state under the FSIA only if the foreign state itself owns a majority of the corporation's shares. *478 We now turn to the second question before us, which provides an alternative reason for affirming the Court of Appeals. See Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949). C To be entitled to removal under § 1441(d), the Dead Sea Companies must show that they are entities "a majority of whose shares or other ownership interest is owned by a foreign state." § 1603(b)(2). We think the plain text of this provision, because it is expressed in the present tense, requires that instrumentality status be determined at the time suit is filed. Construing § 1603(b) so that the present tense has real significance is consistent with the "longstanding principle that `the jurisdiction of the Court depends upon the state of things at the time of the action brought.'" Keene Corp. v. United States, 508 U.S. 200, 207 (1993) (quoting Mollan v. Torrance, 9 Wheat. 537, 539 (1824)). It is well settled, for example, that federal-diversity jurisdiction depends on the citizenship of the parties at the time suit is filed. See, e. g., Anderson v. Watt, 138 U.S. 694, 702-703 (1891) ("And the [jurisdictional] inquiry is determined by the condition of the parties at the commencement of the suit"); see also Minneapolis & St. Louis R. Co. v. Peoria & Pekin Union R. Co., 270 U.S. 580, 586 (1926) ("The jurisdiction of the lower court depends upon the state of things existing at the time the suit was brought"). The Dead Sea Companies do not dispute that the time suit is filed is determinative under § 1332(a)(4), which provides for suits between "a foreign state, defined in section 1603(a) ..., as plaintiff and citizens of a State or of different States." It would be anomalous to read § 1441(d)'s words, "foreign state as defined in section 1603(a)," differently. The Dead Sea Companies urge us to administer the FSIA like other status-based immunities, such as the qualified immunity accorded a state actor, that are based on the status *479 of an officer at the time of the conduct giving rise to the suit. We think its comparison is inapt. Our cases applying those immunities do not involve the interpretation of a statute. See, e. g., Spalding v. Vilas, 161 U.S. 483, 493-499 (1896) (basing a decision regarding official immunity on common law and considerations of "convenience and public policy"); Scheuer v. Rhodes, 416 U.S. 232, 239-242 (1974). The reason for the official immunities in those cases does not apply here. The immunities for government officers prevent the threat of suit from "crippl[ing] the proper and effective administration of public affairs." Spalding, supra, at 498 (discussing immunity for executive officers); see also Pierson v. Ray, 386 U.S. 547, 554 (1967) (judicial immunity serves the public interest in judges who are "at liberty to exercise their functions with independence and without fear of consequences" (internal quotation marks omitted)). Foreign sovereign immunity, by contrast, is not meant to avoid chilling foreign states or their instrumentalities in the conduct of their business but to give foreign states and their instrumentalities some protection from the inconvenience of suit as a gesture of comity between the United States and other sovereigns. Verlinden, 461 U. S., at 486. For the same reason, the Dead Sea Companies' reliance on Nixon v. Fitzgerald, 457 U.S. 731 (1982), is unavailing. There, we recognized that the President was immune from liability for official actions taken during his time in office, even against a suit filed when he was no longer serving in that capacity. The immunity served the same function that the other official immunities serve. See id., at 751 ("Because of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government"). As noted above, immunity under the FSIA does not serve the same purpose. The immunity recognized in Nixon was also based on a further rationale, one not applicable here: the constitutional *480 separation of powers. See id., at 749 ("We consider this immunity a functionally mandated incident of the President's unique office, rooted in the constitutional tradition of the separation of powers and supported by our history"). That rationale is not implicated by the statutory immunity Congress created for actions such as the one before us. Any relationship recognized under the FSIA between the Dead Sea Companies and Israel had been severed before suit was commenced. As a result, the Dead Sea Companies would not be entitled to instrumentality status even if their theory that instrumentality status could be conferred on a subsidiary were accepted. * * * For these reasons, we hold first that a foreign state must itself own a majority of the shares of a corporation if the corporation is to be deemed an instrumentality of the state under the provisions of the FSIA; and we hold second that instrumentality status is determined at the time of the filing of the complaint. The judgment of the Court of Appeals in No. 01-594 is affirmed, and the writ of certiorari in No. 01-593 is dismissed. It is so ordered. JUSTICE BREYER, with whom JUSTICE O'CONNOR joins, concurring in part and dissenting in part. I join Parts I, II-A, and II-C, and dissent only from Part II-B, of the Court's opinion. Unlike the majority, I believe that the statutory phrase "other ownership interest ... owned by a foreign state," 28 U.S. C. § 1603(b)(2), covers a Foreign Nation's legal interest in a Corporate Subsidiary, where that interest consists of the Foreign Nation's ownership of a Corporate Parent that owns the shares of the Subsidiary. *481 The Foreign Sovereign Immunities Act of 1976 (FSIA) sets forth legal criteria for determining when a "foreign state," 28 U.S. C. § 1603(a), can assert a defense of sovereign immunity. The FSIA also specifies that a "foreign state" defendant may ask a federal court to make the relevant sovereign immunity determination. § 1441(d). And the FSIA allows certain foreign-state commercial entities not entitled to sovereign immunity to have the merits of a case heard in federal court. §§ 1330(a), 1441(d), 1605(a)(2). These last-mentioned entities, entitled to invoke federal-court jurisdiction, include corporations that fall within the FSIA's definition of an "agency or instrumentality of a foreign state," §§ 1603(a), (b). The corporate defendants here, subsidiaries of a foreign parent corporation, fall within that definition if "a majority of [their] shares or other ownership interest is owned by" a foreign nation. § 1603(b)(2) (emphasis added). The relevant foreign nation does not directly own a majority of the corporate subsidiaries' shares. But (simplifying the facts) it does own a corporate parent, which, in turn, owns the corporate subsidiaries' shares. See ante, at 473-474. Does this type of majority-ownership interest count as an example of what the statute calls an "other ownership interest"? The Court says no, holding that the text of the FSIA requires that "only direct ownership of a majority of shares by the foreign state satisfies the statutory requirement." Ante, at 474 (emphasis added). I disagree. The statute's language, standing alone, cannot answer the question. That is because the words "own" and "ownership" — neither of which is defined in the FSIA — are not technical terms or terms of art but common terms, the precise legal meaning of which depends upon the statutory context in which they appear. See J. Cribbet & C. Johnson, Principles of the Law of Property 16 (3d ed. 1989) ("Anglo-American law has not made much use of the term ownership in a technical sense"); Black's Law Dictionary 1049, 1105 (6th *482 ed. 1990) ("The term [`owner'] is ... a nomen generalissimum" — a "term of the most general meaning" or "of the most general kind" — "and its meaning is to be gathered from the connection in which it is used, and from the subject-matter to which it is applied"). See also Williams v. Taylor, 529 U.S. 420, 431 (2000) ("We give the words of a statute their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import" (internal quotation marks omitted; emphasis added)). Thus, this Court has held that "shipowne[r]" can include a corporate shareholder even though, technically speaking, the corporation, not the shareholder, owns the ship. Flink v. Paladini, 279 U.S. 59, 62-63 (1929) (emphasis added). Moreover, this Court has held that a trademark can be "owned by" a parent corporation even though, technically speaking, a subsidiary corporation, not the parent, registered and thus owned the mark. K mart Corp. v. Cartier, Inc., 486 U.S. 281, 292 (1988) (opinion of KENNEDY, J.) (emphasis added) (noting "the inability to discern" which "entit[y] ... can be said to `own' the ... trademark if ... the domestic subsidiary is wholly owned by its foreign parent"); id., at 318 (SCALIA, J., concurring in part and dissenting in part) ("It may be reasonable for some purposes to say that a trademark nominally owned by a domestic subsidiary is `owned by' its foreign parent corporation"); id., at 319 ("A parent corporation may or may not be said to `own' the assets owned by its subsidiary"). Similarly, here the words "other ownership interest" might, or might not, refer to the kind of majority-ownership interest that arises when one owns the shares of a parent that, in turn, owns a subsidiary. If a shareholder in Company A is an "owner" of Company A's ship, as in Flink, then why should the shareholder not be an "owner" of Company A's subsidiary? If Company A's trademark can be said to be "owned by" its shareholder, as in K mart, then why should Company A's subsidiary not be said *483 to be "owned by" its shareholder? And, at the very least, can we not say that the shareholder has an "ownership interest" in the subsidiary? Neither do the various linguistic indicia to which the majority points help resolve the question. As the majority points out, the statute's use of the word "shares" leans in favor of reading "ownership" as incorporating formal, technical American legal requirements. Ante, at 474-475. But any resulting suggestion of formal technical limitation is neatly counterbalanced by the fact that the "statute had to be written for the contingency of ownership forms in other countries, or even in this country, that depart from conventional corporate structures." Ante, at 476. And given this latter necessity, there is no reason to read the phrase "shares or other" as if those words meant to exclude from the scope of "other" any kind of mixed, say, debt/equity, ownership arrangement that might involve shares only in part. The majority's further claim that Congress' use of the word "ownership" means "only direct ownership," ante, at 474 (emphasis added), or formal ownership, founders upon Flink, supra, and K mart, supra, as well as upon several statutes that demonstrate that Congress felt it necessary explicitly to use the word "direct" (a word missing in the FSIA) in order to achieve that result. See, e. g., 20 U.S. C. § 1087-3(a) ("common shares ... directly owned by a Holding Company" (emphasis added)); 26 U.S. C. § 165(g)(3)(A) (requiring that "the taxpayer owns directly stock" in a corporation (emphasis added)); § 851(c)(3)(A) (stock "owned directly by one or more of the other corporations" (emphasis added)). Were the Court's logic correct, see ante, at 476-477, the word "direct" in these statutes would be redundant. The majority's "veil piercing" argument, ante, at 475-476, is beside the point. So is the majority's reiteration of the separateness of a corporation and its shareholders, ante, at 474-475, a formal separateness that this statute explicitly sets aside. See 28 U.S. C. §§ 1603(a), (b) (acknowledging the *484 separateness of a corporate entity but nevertheless deliberately conferring the "foreign state" status of the shareholder upon the corporation itself); H. R. Rep. No. 94-1487, p. 15 (1976) (same). See also Working Group of the American Bar Association, Reforming the Foreign Sovereign Immunities Act, 40 Colum. J. Transnat'l L. 489, 517-518 (2002) (hereinafter ABA Working Group) (FSIA rejects the "separate-entity" rule that courts had often applied to deny immunity to state-owned corporations). Statutory interpretation is not a game of blind man's bluff. Judges are free to consider statutory language in light of a statute's basic purposes. And here, as in Flink, supra, and K mart, supra, an examination of those purposes sheds considerable light. The statute itself makes clear that it seeks: (1) to provide a foreign-state defendant in a legal action the right to have its claim of a sovereign immunity bar decided by the "courts of the United States," i. e., the federal courts, 28 U.S. C. § 1604; see § 1441(d); and (2) to make certain that the merits of unbarred claims against foreign states, say, states engaging in commercial activities, see § 1605(a)(2), will be decided "in the same manner" as similar claims against "a private individual," § 1606; but (3) to guarantee a foreign state defending an unbarred claim certain protections, including a prohibition of punitive damages, the right to removal to federal court, a trial before a judge, and other procedural rights (related to service of process, venue, attachment, and execution of judgments). §§ 1330, 1391(f), 1441(d), 1606, 1608-1611. See Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 497 (1983) ("Congress deliberately sought to channel cases against foreign sovereigns away from the state courts and into federal courts"); H. R. Rep. No. 94-1487, at 32 ("giv[ing] foreign states clear authority to remove to a Federal forum actions brought against them in the State courts" in light of "the potential sensitivity of actions against foreign states and the importance of developing a uniform body of law in this area"); id., at 13 ("Such *485 broad jurisdiction in the Federal courts should be conducive to uniformity in decision, which is desirable since a disparate treatment of cases involving foreign governments may have adverse foreign relations consequences"). Most important for present purposes, the statute seeks to guarantee these protections to the foreign nation not only when it acts directly in its own name but also when it acts through separate legal entities, including corporations and other "organ[s]." 28 U.S. C. § 1603(b). Given these purposes, what might lead Congress to grant protection to a Foreign Nation acting through a Corporate Parent but deny the same protection to the Foreign Nation acting through, for example, a wholly owned Corporate Subsidiary? The answer to this question is: In terms of the statute's purposes, nothing at all would lead Congress to make such a distinction. As far as this statute is concerned, decisions about how to incorporate, how to structure corporate entities, or whether to act through a single corporate layer or through several corporate layers are matters purely of form, not of substance. Cf. H. R. Rep. No. 94-1487, at 15 (agencies or instrumentalities "could assume a variety of forms"); First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 625 (1983) (noting that "developing countries" often "establish separate juridical entities ... to make large-scale national investments"). The need for federal-court determination of a sovereign immunity claim is no less important where subsidiaries are involved. The need for procedural protections is no less compelling. The risk of adverse foreign policy consequences is no less great. See ABA Working Group 523 ("The strength of a foreign state's sovereign interests ... does not necessarily dissipate when it employs more complicated legal structures resembling those used by modern private businesses"); Dellapenna, Refining the Foreign Sovereign Immunities Act, 9 Willamette J. Int'l L. & Disp. Resol. 57, 92-93 (2001). See also A. Kumar, The State *486 Holding Company: Issues and Options 3 (World Bank Discussion Paper No. 187, 1992) ("The existence of state holding companies, in many variants, is widespread"). That is why I doubt the majority's claim that its reading of the text of the FSIA is "[t]he better reading," ante, at 476, leading to "[t]he better rule," ante, at 477. The majority's rule is not better for a foreign nation, say, Mexico or Honduras, which may use "a tiered corporate structure to manage and control important areas of national interest, such as natural resources," ABA Working Group 523, and, as a result, will find its ability to use the federal courts to adjudicate matters of national importance and "potential sensitivity" restricted, H. R. Rep. No. 94-1487, at 32. Congress is most unlikely to characterize as "better" a rule tied to legal formalities that undercuts its basic jurisdictional objectives. And working lawyers will now have to factor into complex corporate restructuring equations (determining, say, whether to use an intermediate holding company when merging or disaggregating even wholly owned government corporations) a risk that the government might lose its previously available access to federal court. Given these consequences, from what perspective can the Court's unnecessarily technical reading of this part of the statute produce a "better rule"? To hold, as the Court does today, that for purposes of the FSIA "other ownership interest" does not include the interest that a Foreign Nation has in a tiered Corporate Subsidiary "would be not merely to depart from the primary rule that words are to be taken in their ordinary sense, but to narrow the operation of the statute to an extent that would seriously imperil the accomplishment of its purpose." Danciger v. Cooley, 248 U.S. 319, 326 (1919). I believe that the Court should decide this issue just as it decided Flink. There, the Court unanimously determined that, in light of "[t]he policy of the statutes" in question, a corporate shareholder was an "owner" of a ship, which, technically *487 speaking, belonged to the corporation. 279 U.S., at 62-63. Justice Holmes wrote, in his opinion for the Court: "For th[e] purpose [of these statutes] no rational distinction can be taken between several persons owning shares in a vessel [here, a subsidiary] directly and making the same division by putting the title in a corporation and distributing the corporate stock. The policy of the statutes must extend equally to both.... We are of [the] opinion that the words of the acts must be taken in a broad and popular sense in order not to defeat the manifest intent. This is not to ignore the distinction between a corporation and its members, a distinction that cannot be overlooked even in extreme cases ..., but to interpret an untechnical word [`owner'] in the liberal way in which we believe it to have been used ...." Ibid. No more need be said.

Foreign states may invoke certain rights and immunities in litigation under the Foreign Sovereign Immunities Act of *471 1976 (FSIA or Act), Stat. 2891. Some of the Act's provisions also may be invoked by a corporate entity that is an "instrumentality" of a foreign state as defined by the Act. Republic of ; B. V. v. Central of Nigeria, The corporate entities in this action claim instrumentality status to invoke the Act's provisions allowing removal of state-court actions to federal court. As the action comes to us, it presents two questions. The first is whether a corporate subsidiary can claim instrumentality status where the foreign state does not own a majority of its shares but does own a majority of the shares of a corporate parent one or more tiers above the subsidiary. The second question is whether a corporation's instrumentality status is defined as of the time an alleged tort or other actionable wrong occurred or, on the other hand, at the time suit is filed. We granted certiorari, I The underlying action was filed in a state court in Hawaii in 1997 against Dole Food Company and other companies (Dole petitioners). Plaintiffs in the action were a group of farm workers from Costa Rica, Ecuador, Guatemala, and Panama who alleged injury from exposure to dibromochloropropane, a chemical used as an agricultural pesticide in their home countries. The Dole petitioners impleaded petitioners Dead Sea Bromine Co., Ltd., and Bromine Compounds, Ltd. (collectively, the Dead Sea Companies). The merits of the suit are not before us. The Dole petitioners removed the action to the United States District Court for the District of Hawaii under 28 U.S. C. 1441(a), arguing that the federal common law of foreign relations provided federal-question jurisdiction under 1331. The District Court agreed there was federal subject-matter jurisdiction under the federal common law of *472 foreign relations but, nevertheless, dismissed the case on grounds of forum non conveniens. The Dead Sea Companies removed under a separate theory. They claimed to be instrumentalities of a foreign state as defined by the FSIA, entitling them to removal under 1441(d). The District Court held that the Dead Sea Companies are not instrumentalities of a foreign state for purposes of the FSIA and are not entitled to removal on that basis. Civ. No. 97-01516HG App. to Pet. for Cert. in No. 01-594, p. 79a. The Court of Appeals reversed. Addressing the ground relied on by the Dole petitioners, it held removal could not rest on the federal common law of foreign relations. In this Court the Dole petitioners did not seek review of that portion of the Court of Appeals' ruling, and we do not address it. Accordingly, the writ of certiorari in No. 01-593 is dismissed. The Court of Appeals also reversed the order allowing removal at the instance of the Dead Sea Companies, who alleged they were instrumentalities of the State of Israel. The Court of Appeals noted, but declined to answer, the question whether status as an instrumentality of a foreign state is assessed at the time of the alleged wrongdoing or at the time suit is filed. It went on to hold that the Dead Sea Companies, even at the earlier date, were not instrumentalities of Israel because they did not meet the Act's definition of instrumentality. In order to prevail here, the Dead Sea Companies must show both that instrumentality status is determined as of the time the alleged tort occurred and that they can claim instrumentality status even though they were but subsidiaries of a parent owned by the State of Israel. We address each question in turn. In No. 01-594, the case in which the Dead Sea Companies are petitioners, we now affirm. *473 II A Title 28 U.S. C. 1441(d) governs removal of actions against foreign states. It provides that "[a]ny civil action brought in a State court against a foreign state as defined in [28 U.S. C. 1603(a)] may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending." See also 1330 (governing original jurisdiction). Section 1603(a), part of the FSIA, defines "foreign state" to include an "agency or instrumentality of a foreign state." "[A]gency or instrumentality of a foreign state" is defined, in turn, as: "[A]ny entity — "(1) which is a separate legal person, corporate or otherwise, and "(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and "(3) which is neither a citizen of a State of the United States nor created under the laws of any third country." 1603(b). B The Court of Appeals resolved the question of the FSIA's applicability by holding that a subsidiary of an instrumentality is not itself entitled to instrumentality status. Its holding was correct. The State of Israel did not have direct ownership of shares in either of the Dead Sea Companies at any time pertinent to this suit. Rather, these companies were, at various times, separated from the State of Israel by one or more intermediate corporate tiers. For example, from 1984-1985, Israel wholly owned a company called Israeli Chemicals, Ltd.; which owned a majority of shares in another company called *474 Dead Sea Works, Ltd.; which owned a majority of shares in Dead Sea Bromine Co., Ltd.; which owned a majority of shares in Bromine Compounds, Ltd. The Dead Sea Companies, as indirect subsidiaries of the State of Israel, were not instrumentalities of Israel under the FSIA at any time. Those companies cannot come within the statutory language which grants status as an instrumentality of a foreign state to an entity a "majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof." 1603(b)(2). We hold that only direct ownership of a majority of shares by the foreign state satisfies the statutory requirement. Section 1603(b)(2) speaks of ownership. The Dead Sea Companies urge us to ignore corporate formalities and use the colloquial sense of that term. They ask whether, in common parlance, Israel would be said to own the Dead Sea Companies. We reject this analysis. In issues of corporate law structure often matters. It is evident from the Act's text that Congress was aware of settled principles of corporate law and legislated within that context. The language of 1603(b)(2) refers to ownership of "shares," showing that Congress intended statutory coverage to turn on formal corporate ownership. Likewise, 1603(b)(1), another component of the definition of instrumentality, refers to a "separate legal person, corporate or otherwise." In light of these indicia that Congress had corporate formalities in mind, we assess whether Israel owned shares in the Dead Sea Companies as a matter of corporate law, irrespective of whether Israel could be said to have owned the Dead Sea Companies in everyday parlance. A basic tenet of American corporate law is that the corporation and its shareholders are distinct entities. See, e. g., First Nat. City 462 U.S. ; An individual shareholder, by virtue of his ownership of shares, does not own the corporation's assets and, as a result, does not own subsidiary corporations in which the corporation holds an interest. See 1 W. Cyclopedia of the Law of Private Corporations 31 (rev. ed. 1999). A corporate parent which owns the shares of a subsidiary does not, for that reason alone, own or have legal title to the assets of the subsidiary; and, it follows with even greater force, the parent does not own or have legal title to the subsidiaries of the subsidiary. See 31, at 514 ("The properties of two corporations are distinct, though the same shareholders own or control both. A holding corporation does not own the subsidiary's property"). The fact that the shareholder is a foreign state does not change the analysis. See First Nat. City Applying these principles, it follows that Israel did not own a majority of shares in the Dead Sea Companies. The State of Israel owned a majority of shares, at various times, in companies one or more corporate tiers above the Dead Sea Companies, but at no time did Israel own a majority of shares in the Dead Sea Companies. Those companies were subsidiaries of other corporations. The veil separating corporations and their shareholders may be pierced in some circumstances, and the Dead Sea Companies essentially urge us to interpret the FSIA as piercing the veil in all cases. The doctrine of piercing the corporate veil, however, is the rare exception, applied in the case of fraud or certain other exceptional circumstances, see, e. g., ; 41 to 41.20, and usually determined on a case-by-case basis. The Dead Sea Companies have referred us to no authority for extending the doctrine so far that, as a categorical matter, all subsidiaries *476 are deemed to be the same as the parent The text of the FSIA gives no indication that Congress intended us to depart from the general rules regarding corporate formalities. Where Congress intends to refer to ownership in other than the formal sense, it knows how to do so. Various federal statutes refer to "direct and indirect ownership." See, e.g., 5 U.S. C. 8477(a)(4)(G)(iii) (referring to an interest "owned directly or indirectly"); 12 U.S. C. 84(c)(5) (referring to "any corporation wholly owned directly or indirectly by the United States"); 15 U.S. C. 79b(a)(8)(A) (referring to securities "which are directly or indirectly owned, controlled, or held with power to vote"); 1802(3) ("The term `newspaper owner' means any person who owns or controls directly, or indirectly through separate or subsidiary corporations, one or more newspaper publications"). The absence of this language in 28 U.S. C. 1603(b) instructs us that Congress did not intend to disregard structural ownership rules. The FSIA's definition of instrumentality refers to a foreign state's majority ownership of "shares or other ownership interest." 1603(b)(2). The Dead Sea Companies would have us read "other ownership interest" to include a state's "interest" in its instrumentality's subsidiary. The better reading of the text, in our view, does not support this argument. The words "other ownership interest," when following the word "shares," should be interpreted to refer to a type of interest other than ownership of stock. The statute had to be written for the contingency of ownership forms in other countries, or even in this country, that depart from conventional corporate structures. The statutory phrase "other ownership interest" is best understood to accomplish this objective. Reading the term to refer to a state's interest in entities lower on the corporate ladder would make the specific reference to "shares" redundant. Absent a statutory text or structure that requires us to depart from normal rules of construction, we should not construe the statute in *477 a manner that is strained and, at the same time, would render a statutory term superfluous. See ; United The Dead Sea Companies say that the State of Israel exercised considerable control over their operations, notwithstanding Israel's indirect relationship to those companies. They appear to think that, in determining instrumentality status under the Act, control may be substituted for an ownership interest. Control and ownership, however, are distinct concepts. See, e. g., United The terms of 1603(b)(2) are explicit and straightforward. Majority ownership by a foreign state, not control, is the benchmark of instrumentality status. We need not delve into Israeli law or examine the extent of Israel's involvement in the Dead Sea Companies' operations. Even if Israel exerted the control the Dead Sea Companies describe, that would not give Israel a "majority of [the companies'] shares or other ownership interest." The statutory language will not support a control test that mandates inquiry in every case into the past details of a foreign nation's relation to a corporate entity in which it does not own a majority of the shares. The better rule is the one supported by the statutory text and elementary principles of corporate law. A corporation is an instrumentality of a foreign state under the FSIA only if the foreign state itself owns a majority of the corporation's shares. *478 We now turn to the second question before us, which provides an alternative reason for affirming the Court of Appeals. See C To be entitled to removal under 1441(d), the Dead Sea Companies must show that they are entities "a majority of whose shares or other ownership interest is owned by a foreign state." 1603(b)(2). We think the plain text of this provision, because it is expressed in the present tense, requires that instrumentality status be determined at the time suit is filed. Construing 1603(b) so that the present tense has real significance is consistent with the "longstanding principle that `the jurisdiction of the Court depends upon the state of things at the time of the action brought.'" Keene ). It is well settled, for example, that federal-diversity jurisdiction depends on the citizenship of the parties at the time suit is filed. See, e. g., ; see also Minneapolis & St. Louis R. The Dead Sea Companies do not dispute that the time suit is filed is determinative under 1332(a)(4), which provides for suits between "a foreign state, defined in section 1603(a), as plaintiff and citizens of a State or of different States." It would be anomalous to read 1441(d)'s words, "foreign state as defined in section 1603(a)," differently. The Dead Sea Companies urge us to administer the FSIA like other status-based immunities, such as the qualified immunity accorded a state actor, that are based on the status *479 of an officer at the time of the conduct giving rise to the suit. We think its comparison is inapt. Our cases applying those immunities do not involve the interpretation of a statute. See, e. g., ; The reason for the official immunities in those cases does not apply here. The immunities for government officers prevent the threat of suit from "crippl[ing] the proper and effective administration of public affairs." ; see also Foreign sovereign immunity, by contrast, is not meant to avoid chilling foreign states or their instrumentalities in the conduct of their business but to give foreign states and their instrumentalities some protection from the inconvenience of suit as a gesture of comity between the United States and other sovereigns. For the same reason, the Dead Sea Companies' reliance on is unavailing. There, we recognized that the President was immune from liability for official actions taken during his time in office, even against a suit filed when he was no longer serving in that capacity. The immunity served the same function that the other official immunities serve. See As noted above, immunity under the FSIA does not serve the same purpose. The immunity recognized in Nixon was also based on a further rationale, one not applicable here: the constitutional *480 separation of powers. See That rationale is not implicated by the statutory immunity Congress created for actions such as the one before us. Any relationship recognized under the FSIA between the Dead Sea Companies and Israel had been severed before suit was commenced. As a result, the Dead Sea Companies would not be entitled to instrumentality status even if their theory that instrumentality status could be conferred on a subsidiary were accepted. * * * For these reasons, we hold first that a foreign state must itself own a majority of the shares of a corporation if the corporation is to be deemed an instrumentality of the state under the provisions of the FSIA; and we hold second that instrumentality status is determined at the time of the filing of the complaint. The judgment of the Court of Appeals in No. 01-594 is affirmed, and the writ of certiorari in No. 01-593 is dismissed. It is so ordered. JUSTICE BREYER, with whom JUSTICE O'CONNOR joins, concurring in part and dissenting in part. I join Parts I, II-A, and II-C, and dissent only from Part II-B, of the Court's opinion. Unlike the majority, I believe that the statutory phrase "other ownership interest owned by a foreign state," 28 U.S. C. 1603(b)(2), covers a Foreign Nation's legal interest in a Corporate Subsidiary, where that interest consists of the Foreign Nation's ownership of a Corporate Parent that owns the shares of the Subsidiary. *481 The Foreign Sovereign Immunities Act of 1976 (FSIA) sets forth legal criteria for determining when a "foreign state," 28 U.S. C. 1603(a), can assert a defense of sovereign immunity. The FSIA also specifies that a "foreign state" defendant may ask a federal court to make the relevant sovereign immunity determination. 1441(d). And the FSIA allows certain foreign-state commercial entities not entitled to sovereign immunity to have the merits of a case heard in federal court. 1330(a), 1441(d), 1605(a)(2). These last-mentioned entities, entitled to invoke federal-court jurisdiction, include corporations that fall within the FSIA's definition of an "agency or instrumentality of a foreign state," 1603(a), (b). The corporate defendants here, subsidiaries of a foreign parent corporation, fall within that definition if "a majority of [their] shares or other ownership interest is owned by" a foreign nation. 1603(b)(2) The relevant foreign nation does not directly own a majority of the corporate subsidiaries' shares. But (simplifying the facts) it does own a corporate parent, which, in turn, owns the corporate subsidiaries' shares. See ante, at 473-474. Does this type of majority-ownership interest count as an example of what the statute calls an "other ownership interest"? The Court says no, holding that the text of the FSIA requires that "only direct ownership of a majority of shares by the foreign state satisfies the statutory requirement." Ante, at 474 I disagree. The statute's language, standing alone, cannot answer the question. That is because the words "own" and "ownership" — neither of which is defined in the FSIA — are not technical terms or terms of art but common terms, the precise legal meaning of which depends upon the statutory context in which they appear. See J. Cribbet & C. Johnson, Principles of the Law of Property 16 (3d ed. 1989) ("Anglo-American law has not made much use of the term ownership in a technical sense"); Black's Law Dictionary 1049, 1105 (6th *482 ed. 1990) ("The term [`owner'] is a nomen generalissimum" — a "term of the most general meaning" or "of the most general kind" — "and its meaning is to be gathered from the connection in which it is used, and from the subject-matter to which it is applied"). See also Thus, this Court has held that "shipowne[r]" can include a corporate shareholder even though, technically speaking, the corporation, not the shareholder, owns the ship. Moreover, this Court has held that a trademark can be "owned by" a parent corporation even though, technically speaking, a subsidiary corporation, not the parent, registered and thus owned the mark. K (noting "the inability to discern" which "entit[y] can be said to `own' the trademark if the domestic subsidiary is wholly owned by its foreign parent"); ("It may be reasonable for some purposes to say that a trademark nominally owned by a domestic subsidiary is `owned by' its foreign parent corporation"); Similarly, here the words "other ownership interest" might, or might not, refer to the kind of majority-ownership interest that arises when one owns the shares of a parent that, in turn, owns a subsidiary. If a shareholder in Company A is an "owner" of Company A's ship, as in then why should the shareholder not be an "owner" of Company A's subsidiary? If Company A's trademark can be said to be "owned by" its shareholder, as in K then why should Company A's subsidiary not be said *483 to be "owned by" its shareholder? And, at the very least, can we not say that the shareholder has an "ownership interest" in the subsidiary? Neither do the various linguistic indicia to which the majority points help resolve the question. As the majority points out, the statute's use of the word "shares" leans in favor of reading "ownership" as incorporating formal, technical American legal requirements. Ante, at 474-475. But any resulting suggestion of formal technical limitation is neatly counterbalanced by the fact that the "statute had to be written for the contingency of ownership forms in other countries, or even in this country, that depart from conventional corporate structures." Ante, at 476. And given this latter necessity, there is no reason to read the phrase "shares or other" as if those words meant to exclude from the scope of "other" any kind of mixed, say, debt/equity, ownership arrangement that might involve shares only in part. The majority's further claim that Congress' use of the word "ownership" means "only direct ownership," ante, at 474 or formal ownership, founders upon and K as well as upon several statutes that demonstrate that Congress felt it necessary explicitly to use the word "direct" (a word missing in the FSIA) in order to achieve that result. See, e. g., 20 U.S. C. 1087-3(a) ("common shares directly owned by a Holding Company" ); 26 U.S. C. 165(g)(3)(A) (requiring that "the taxpayer owns directly stock" in a corporation ); 851(c)(3)(A) (stock "owned directly by one or more of the other corporations" ). Were the Court's logic correct, see ante, at 476-477, the word "direct" in these statutes would be redundant. The majority's "veil piercing" argument, ante, at 475-476, is beside the point. So is the majority's reiteration of the separateness of a corporation and its shareholders, ante, at 474-475, a formal separateness that this statute explicitly sets aside. See 28 U.S. C. 1603(a), (b) (acknowledging the *484 separateness of a corporate entity but nevertheless deliberately conferring the "foreign state" status of the shareholder upon the corporation itself); H. R. Rep. No. 94-1487, p. 15 (1976) (same). See also Working Group of the American Bar Association, Reforming the Foreign Sovereign Immunities Act, (FSIA rejects the "separate-entity" rule that courts had often applied to deny immunity to state-owned corporations). Statutory interpretation is not a game of blind man's bluff. Judges are free to consider statutory language in light of a statute's basic purposes. And here, as in and K an examination of those purposes sheds considerable light. The statute itself makes clear that it seeks: (1) to provide a foreign-state defendant in a legal action the right to have its claim of a sovereign immunity bar decided by the "courts of the United States," i. e., the federal courts, 28 U.S. C. 1604; see 1441(d); and (2) to make certain that the merits of unbarred claims against foreign states, say, states engaging in commercial activities, see 1605(a)(2), will be decided "in the same manner" as similar claims against "a private individual," 1606; but (3) to guarantee a foreign state defending an unbarred claim certain protections, including a prohibition of punitive damages, the right to removal to federal court, a trial before a judge, and other procedural rights (related to service of process, venue, attachment, and execution of judgments). 1330, 1391(f), 1441(d), 1606, 1608-1. See B. V. v. Central of Nigeria, ; H. R. Rep. No. 94-1487, at 32 ("giv[ing] foreign states clear authority to remove to a Federal forum actions brought against them in the State courts" in light of "the potential sensitivity of actions against foreign states and the importance of developing a uniform body of law in this area"); Most important for present purposes, the statute seeks to guarantee these protections to the foreign nation not only when it acts directly in its own name but also when it acts through separate legal entities, including corporations and other "organ[s]." 28 U.S. C. 1603(b). Given these purposes, what might lead Congress to grant protection to a Foreign Nation acting through a Corporate Parent but deny the same protection to the Foreign Nation acting through, for example, a wholly owned Corporate Subsidiary? The answer to this question is: In terms of the statute's purposes, nothing at all would lead Congress to make such a distinction. As far as this statute is concerned, decisions about how to incorporate, how to structure corporate entities, or whether to act through a single corporate layer or through several corporate layers are matters purely of form, not of substance. Cf. H. R. Rep. No. 94-1487, at 15 (agencies or instrumentalities "could assume a variety of forms"); First Nat. City 462 U.S. The need for federal-court determination of a sovereign immunity claim is no less important where subsidiaries are involved. The need for procedural protections is no less compelling. The risk of adverse foreign policy consequences is no less great. See ABA Working Group 523 ("The strength of a foreign state's sovereign interests does not necessarily dissipate when it employs more complicated legal structures resembling those used by modern private businesses"); Dellapenna, Refining the Foreign Sovereign Immunities Act, 9 Willamette J. Int'l L. & Disp. Resol. 57, 92-93 See also A. Kumar, The State *486 Holding Company: Issues and Options 3 ("The existence of state holding companies, in many variants, is widespread"). That is why I doubt the majority's claim that its reading of the text of the FSIA is "[t]he better reading," ante, at 476, leading to "[t]he better rule," ante, at 477. The majority's rule is not better for a foreign nation, say, Mexico or Honduras, which may use "a tiered corporate structure to manage and control important areas of national interest, such as natural resources," ABA Working Group 523, and, as a result, will find its ability to use the federal courts to adjudicate matters of national importance and "potential sensitivity" restricted, H. R. Rep. No. 94-1487, at 32. Congress is most unlikely to characterize as "better" a rule tied to legal formalities that undercuts its basic jurisdictional objectives. And working lawyers will now have to factor into complex corporate restructuring equations (determining, say, whether to use an intermediate holding company when merging or disaggregating even wholly owned government corporations) a risk that the government might lose its previously available access to federal court. Given these consequences, from what perspective can the Court's unnecessarily technical reading of this part of the statute produce a "better rule"? To hold, as the Court does today, that for purposes of the FSIA "other ownership interest" does not include the interest that a Foreign Nation has in a tiered Corporate Subsidiary "would be not merely to depart from the primary rule that words are to be taken in their ordinary sense, but to narrow the operation of the statute to an extent that would seriously imperil the accomplishment of its purpose." I believe that the Court should decide this issue just as it decided There, the Court unanimously determined that, in light of "[t]he policy of the statutes" in question, a corporate shareholder was an "owner" of a ship, which, technically *487 speaking, belonged to the 279 U.S., at Justice Holmes wrote, in his opinion for the Court: "For th[e] purpose [of these statutes] no rational distinction can be taken between several persons owning shares in a vessel [here, a subsidiary] directly and making the same division by putting the title in a corporation and distributing the corporate stock. The policy of the statutes must extend equally to both. We are of [the] opinion that the words of the acts must be taken in a broad and popular sense in order not to defeat the manifest intent. This is not to ignore the distinction between a corporation and its members, a distinction that cannot be overlooked even in extreme cases, but to interpret an untechnical word [`owner'] in the liberal way in which we believe it to have been used" No more need be said.

Justice Black

dissenting

Zuber v. Allen

https://www.courtlistener.com/opinion/108014/zuber-v-allen/

https://www.courtlistener.com/api/rest/v3/clusters/108014/

1969-016

The central question in this cause is whether a provision in the Secretary of Agriculture's Boston milk market regulation which provides that farmers close to Boston *198 will receive a higher price for their milk than farmers farther away is valid under the Agricultural Marketing Agreement Act of 1937, as amended, 50 Stat. 246, 7 U.S. C. § 601 et seq. (1964 ed. and Supp. IV). The majority concludes that this higher payment can be sustained only if it represents "compensation for rendering an economic service," ante, at 188, and then holds that since the Secretary has not provided such an economic justification for this payment, it is invalid. The effect of affirming the judgment below is that challenged payments which have been placed in a special fund since June 1967 and now amount to over $8,000,000 will be distributed to all farmers selling milk in the Boston market instead of only those located near Boston. This represents a drastic change in the distribution of the income from the sale of milk since only the nearby farmers have received these additional payments for at least 30 years. My study of the legislative history convinces me beyond any doubt that this result is wrong and in direct conflict with the intent of Congress as expressed in the Agricultural Marketing Agreement Act and its predecessors. In my opinion Congress intended to permit the Secretary to regulate the milk industry in accordance with the practices that had developed in that industry prior to the first federal regulation in 1933 and did not intend to eliminate the economic advantages that specific groups had enjoyed in the past. Since it is clear beyond a doubt that farmers near Boston received more for their milk than did other farmers prior to federal regulation, I would reverse the judgment below and hold this provision of the Boston milk order valid. In order to understand the purpose of the 1937 Act, it is necessary to go back to the 1920's at a time prior to any federal regulation. As the majority correctly points out, the economics of the milk industry at that *199 time often led to destructive competition and chaos. Milk producers therefore formed cooperatives for their own protection and sold milk on a collective basis. All the parties in this case agree, and the record conclusively shows, that under the cooperatives at that time farmers close to marketing centers received more for their milk than did farmers farther away. This higher price resulted from many factors, including the greater proportion of milk from nearby farms that was used for fluid purposes, the possibility that those farmers would compete with handlers by selling directly to customers, smaller seasonal variation in the volume of milk produced, and higher costs—such as taxes and land values— incurred in farming close to the cities.[1] As long as economic conditions remained generally stable, the cooperatives succeeded in protecting all farmers from the dangers of overproduction and excessive competition. Then the depression set in and milk farmers, like so many other Americans, were unable to maintain stable prices by self-regulation. Congress reacted to this situation by passing the Agricultural Adjustment Act of 1933 (A. A. A.), 48 Stat. 31, under which the Secretary of Agriculture was given broad powers to regulate the farm economy through licensing. Id., § 8 (3), 48 Stat. 35. Very few details or standards describing the Secretary's powers were provided in the 1933 Act, and there was no attention given to specific problems of *200 nearby farmers in the milk industry. Under the provisions of that Act the Secretary issued a license for the Boston market in 1933 and this first license included provisions that effectively maintained the historical price advantage of producers close to Boston.[2] In 1935 bills were introduced in Congress to amend the A. A. A.[3] and hearings were held on those bills in February and March of that year.[4] In May 1935 this Court held in Schechter Poultry Corp. v. United States, 295 U.S. 495, that provisions of the National Industrial Recovery Act, 48 Stat. 195, were unconstitutional, in part because that Act delegated powers to an administrative agency without providing adequate standards and guidelines. The congressional committees considering the amendments immediately recognized that the Schechter decision cast considerable doubt on the validity of the A. A. A. and they therefore reported out a completely amended bill which set forth detailed descriptions of the powers and standards that the Secretary was to employ.[5] As reported and passed by Congress, that bill contained specific provisions concerning the milk industry, and it is those provisions that are involved in the present case.[6] The committee reports accompanying that bill make it abundantly clear that a primary purpose *201 of the bill was to "eliminate questions of improper delegation of legislative authority raised by the decision in Schechter . . . ."[7] There is no indication that when Congress passed those amendments it intended to cut back on or limit the authority the Secretary had actually exercised in regulating milk under the 1933 Act, but rather the purpose was to avoid judicial invalidation resulting from the absence of constitutionally sufficient standards. History and the legislative record make it quite clear that Congress in 1935 was concerned, not about limiting an excessively aggressive Secretary, but about overcoming the limitations imposed by a Court that was frustrating the congressional purpose by holding laws unconstitutional. Pursuant to the 1935 Act, the Secretary issued a new order in 1936 for the Boston market which, like the 1933 order, contained provisions for additional payments to nearby farmers. In issuing this order he explicitly relied on the historical, economic factors which justified these additional payments. (J. A. 224.) The effectiveness of the 1935 amendments was also jeopardized by court decisions,[8] and Congress again acted by passing a new law, the Agricultural Marketing Agreement Act of 1937, 50 Stat. 246. This statute re-enacted the milk marketing provisions of the 1935 Act in substantially the same form and further provided that all market orders issued under that Act were "expressly ratified, legalized, and confirmed." 50 Stat. 249. Proceeding under the new Act the Secretary reinstated the 1936 Boston order including the additional *202 payments to farmers located nearer the city, and that order and the 1937 Act have remained in substantially the same form until this time. With this general historical picture in mind, it is easier to answer the central legal question in this case which is whether the 1937 Act authorizes the Secretary of Agriculture to provide that nearby farmers will receive more for their milk than farmers farther away. The Act provides that the Secretary shall establish by order certain basic prices for milk delivered by producers and allows him to adjust that basic price to reflect "volume, market, and production differentials customarily applied by the handlers subject to such order . . . ." 7 U.S. C. § 608c (5) (B), cl. (a) (1964 ed., Supp. IV).[9] The Secretary here argues that the payment of additional sums to farmers close to Boston is an authorized "market differential." The argument cannot be settled simply on the basis of the statutory language since there is no definition of the term "market." However the legislative history makes it clear beyond any doubt that this provision was designed to allow the Secretary broad leeway in regulating the milk industry in accordance with prior practices and differentials in the unregulated market. The committee reports in both Houses said that the milk order provisions in the Act were designed to "follow the methods employed by cooperative associations of producers prior to the enactment of the Agricultural Adjustment Act and the provisions of *203 licenses issued pursuant to the present section 8 (3) of the Agricultural Adjustment Act."[10] The only discussion of these provisions during the congressional floor debates fully supports this statement. Senator Copeland, a former commissioner of health in New York City and a man well acquainted with the milk industry in New England, asked Senator Murphy, the floor manager for the bill, about the possibility that farmers near the cities would receive the same price for milk as farmers farther away. Senator Murphy's initial answer indicated this would be so, but when Senator Copeland pressed the inquiry further, stating that not all factors had been considered, Senator Murphy indicated that the provisions for specific differentials "adopt the present practice of business."[11] To me that reply indicates that nearby differentials would be permissible, if they were part of the business practice—as they were. The majority diminishes the importance of this discussion by saying that it represents the views of only two men, not those of the committee, but anyone acquainted with the realities of the United States Senate knows that the remarks of the floor manager are taken by other Senators as reflecting the views of the committee itself. This history makes it clear that Congress did not intend to limit the authorized differentials to any specific payments, but rather intended to permit the Secretary to employ whatever practices, consistent with the history of the unregulated *204 market, he found necessary to achieve stability in the milk industry. Applying these considerations it becomes plain that the additional payments to nearby farmers are authorized as a "differential customarily applied." Nearby farmers had always obtained a higher price for their milk than farmers farther away and the Secretary's regulations in 1933 and 1936 reflected this historical fact. Reinstatement of the nearby differentials after passage of the 1937 Act merely continued this prior administrative practice, based on the earlier economic realities, of paying more for milk produced on farms close to Boston. Had Congress intended to eliminate this feature of the prior practice, it would have been easy to say so, but there is absolutely nothing in the statute or in the legislative history that demonstrates a desire to alter the advantage nearby farmers had always enjoyed. My conclusion that this differential is authorized is buttressed by the actions of Congress and the Secretary since 1937. There has always been a healthy controversy among farmers about this differential, and extensive hearings in 1963 brought forth strong arguments against continuing it. (J. A. 360-599.) Yet Congress, even though it amended the statute in 1965, 79 Stat. 1187, still has not in any way indicated that the nearby differential was unauthorized by the 1937 Act or that it should be eliminated at this time. Similarly the Secretary has continually reviewed this provision and refused to eliminate it, the most recent time being 1964. (J. A. 346, 349.) Since Congress, in my view, intended in 1933, 1935, and 1937 to authorize payments like the nearby differential and since it has not altered this authorization in the past 32 years, I cannot agree that this Court should or properly can eliminate the payment, ostensibly through a process of statutory interpretation. *205 This interpretation is not based on a theory of legislative silence as the majority seems to imply. To me the legislative history speaks clearly in saying that Congress intended the Secretary to regulate the industry in accordance with prior practices, and the statutory language, statements in committee reports, and floor debates do not "illumine two different roads," ante, at 185. I see only one path that is marked by the legislative record, and the only silence I perceive is the striking absence of any statements in the statute or the legislative history that support the majority's interpretation. My conclusion that the location differential is authorized by the Act finds support in other judicial decisions. In United States v. Rock Royal Co-op., 307 U.S. 533 (1939), certain milk handlers made a broadside attack on the New York order issued under the 1937 Act. This Court rejected that challenge. One part of the argument was that the nearby differential provision of that order was invalid. This Court noted that "[t]he Act authorizes such an arrangement," citing the provision for market differentials customarily applied. Id., at 567. Although that provision was promulgated under § 8c (5) (A) of the Act, the identical language supporting that conclusion is found in § 8c (5) (B), and it is that latter section which is involved in the present case. The majority attempts to distinguish that case by noting that it was a suit brought by the Government against handlers, but it is difficult to see what difference that makes. It does not matter who sues, if the Court decides an issue of statutory interpretation that decision should remain the same even if the litigants change.[12] *206 The nearby differential of the Boston order involved here was also approved by the First Circuit in Green Valley Creamery v. United States, 108 F.2d 342 (1939). The majority's dismissal of that case on the conclusion the handlers did not have standing to raise this issue is irrelevant. The First Circuit there found the differential valid and then stated that "[f]urthermore" the handlers lacked standing. Id., at 346. It does not matter to me whether the decision on the validity of the location differential is classified as dictum or a holding. The point remains that the First Circuit considered these payments and found them expressly provided for by the language of § 8c (5) (B). Ibid. The majority disagrees with the interpretation of the statute set forth above and instead finds that the foundation of the portion of 1937 Act involved here was to provide uniform prices to all producers, with adjustments to that uniform price only as "compensation for rendering an economic service." Ante, at 188. This interpretation, as I understand it, would require the Secretary to disregard the historical price advantage nearby producers had in the sale of their milk, and to consider only whether there is a present economic justification for particular payments. I respectfully submit that this interpretation cannot be supported by the language of the Act considered as a whole or by the relevant expressions of congressional intent found in the legislative history. The theory of this Act adopted by the majority is clearly not that of Congress, but one created by the Court itself. The conclusion that each of the differentials specified in the Act represents only "compensation for rendering an economic service" finds no support whatsoever in the language of the Act or the legislative history. None of the adjustments described in the Act is defined in terms of any "economic service." The majority does not refer *207 to any legislative history that indicates such a definition was intended. It may well be possible for an analyst to fit the language of the Act, the committee reports, and the floor debates into a coherent pattern of economic services, but had Congress desired to require this as a touchstone for the authorized differentials, it would have been easy for it to have said so. Congress did not choose to do so in 1933, 1935, or 1937, and it has not done so in the intervening 32 years. Moreover, if there is any pattern into which all the differentials clearly fit that is fully supported by express legislative history, it is the clear pattern of allowing the Secretary to incorporate provisions reflecting the customary practices of the milk industry itself.[13] Even if the majority's statutory interpretation were correct, I do not understand why it would lead to the conclusion that the judgment below should be affirmed and the challenged payments distributed at this time to all farmers. Until this Court's decision the Secretary had *208 no reason to know that he had to justify the provisions of this order as "compensation for rendering an economic service," and his failure to have provided such a defense does not necessarily mean it is unavailable. Indeed the Court apparently would approve this same provision were the Secretary to issue it again, but only if it were then accompanied by an economic study that this Court—composed of lawyers, not economic or agricultural experts—finds acceptable. If such a justification is present, the differential is in fact lawful at this time, and it would not seem to matter that the Secretary has not yet incanted the proper magic words. I do not see what harm would follow if this Court were simply to vacate the judgment below, remand the cases to the Secretary for appropriate study, and continue to place the payments in the special fund pending ultimate resolution of the controversy. If the Secretary cannot make the proper economic justification, the only result would be to postpone the day when the accumulating funds, which now amount to over $8,000,000, would be distributed. If, on the other hand, he is able to show that these payments compensate for an economic service, then the Court would not have unnecessarily given the accumulated millions to farmers who are not legally entitled to receive them. My conviction that the Act was designed to permit the Secretary to include adjustments that reflected the prior practice of the milk industry does not mean that he can act with unlimited abandon and approve a payment simply because historically it was provided for prior to federal regulation. The statute requires that the Secretary issue orders which "will tend to effectuate the declared policy of [the Act] . . . ." 7 U.S. C. § 608c (4). Those policies are specifically set forth, 7 U.S. C. § 602, and in general provide that orders should establish and maintain orderly marketing conditions *209 and parity prices for milk producers. In his latest promulgation of the Boston order the Secretary specifically refused to eliminate the nearby differentials (J. A. 349-357) and found that the order "will tend to effectuate the declared policy of the Act." 29 Fed. Reg. 12236. That finding cannot be disturbed, nor the nearby differential invalidated, unless it is shown that the order is not supported by substantial evidence in the administrative record considered in its entirety. Cf. Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). In this action the Court of Appeals did not make a specific finding on the substantiality of the evidence, and the respondents argue that it is insubstantial, but a review of the entire record in light of the appropriate legal standards indicates that the nearby differential in the Boston order is fully supported by substantial evidence. In reaching this conclusion, it must be remembered that the Secretary is required to find only two things. First, that the proposed provision represents a payment customarily applied in the milk market, and second, that inclusion of the proposed provision will further the policies of the Act. The first of these questions is essentially a factual one, and there is no real argument in this action that the Secretary was wrong in finding as a matter of historical fact that nearby farmers received additional payments which are reflected in the location differential. The respondents do not really deny the historical existence of this higher price, but rather attack its legality under the Act. The Court of Appeals, moreover, specifically recognized the historical fact that such differentials existed, but accepted the respondents' argument that they were illegal. 131 U. S. App. D. C., at 112-114, 118, 402 F.2d, at 663-665, 669. An independent review of the record confirms the conclusion that such differentials had been customary in the market. It is thus easy to conclude that the factual finding *210 required by the Act has been supported by substantial evidence in the administrative record. The second required finding, that the provision will further the policies of the Act, is a mixed question of fact and administrative policy. The Secretary has held extensive hearings in the past on the provisions of the Boston milk order (J. A. 233-247, 257-302, 305-330, 360-651), and he has repeatedly found that the nearby location differential furthers the policies of the Act. Since this is essentially a question of administrative discretion and will be set aside only on a strong showing by the parties that the finding is without support in the basic facts on which the Secretary has relied, it is proper to say on this record that this second finding is adequately supported. Nothing in the respondents' arguments indicates that the nearby differential does not further the policies of the Act, but rather they argue only that elimination of the differential would better serve those policies. But this question is one for the Secretary, not for the parties or for this Court, to decide. What is involved here is simply a question of interpreting and following the will of Congress. Over 30 years ago Congress decided that milk producers needed governmental assistance in stabilizing their income, but it also decided that this stabilization should be accomplished with a minimal amount of change in the industry's prior practices. Congress therefore authorized the Secretary of Agriculture to regulate the industry and left most of the details to him. For over 30 years he has used his authority to regulate the Boston milk market, and has consistently found it desirable to provide higher prices for milk produced on farms close to Boston. It may well be that this decision is not the best or the most economically sound one that he could make in light of changed economic conditions in 1969, but that decision is one Congress has committed to the Secretary alone. In my view *211 this Court and the Court of Appeals in this litigation effectively substitute their will for the will of Congress and their views of economics and wise administration for those of the Secretary whom Congress selected to carry out its will. The Court indicates that its decision will avoid a "windfall." Ante, at 197. In fact the Court itself creates a windfall of over $8,000,000 which is siphoned out of the pockets of farmers close to Boston and bestowed like a Christmas present on those farther away. This the Court does contrary to the informed judgment of the Secretary who, faithful to the Act, has declared for years that distant farmers are not eligible for such a bonus. I am unable to agree that this is a proper function for the Court to perform and I therefore dissent.

The central question in this cause is whether a provision in the Secretary of Agriculture's Boston milk market regulation which provides that farmers close to Boston *198 will receive a higher price for their milk than farmers farther away is valid under the Agricultural Marketing Agreement Act of 1937, as amended, 7 U.S. C. 601 et seq. (1964 ed. and Supp. IV). The majority concludes that this higher payment can be sustained only if it represents "compensation for rendering an economic service," ante, at 188, and then holds that since the Secretary has not provided such an economic justification for this payment, it is invalid. The effect of affirming the judgment below is that challenged payments which have been placed in a special fund since June 1967 and now amount to over $8,000,000 will be distributed to all farmers selling milk in the Boston market instead of only those located near Boston. This represents a drastic change in the distribution of the income from the sale of milk since only the nearby farmers have received these additional payments for at least 30 years. My study of the legislative history convinces me beyond any doubt that this result is wrong and in direct conflict with the intent of Congress as expressed in the Agricultural Marketing Agreement Act and its predecessors. In my opinion Congress intended to permit the Secretary to regulate the milk industry in accordance with the practices that had developed in that industry prior to the first federal regulation in 1933 and did not intend to eliminate the economic advantages that specific groups had enjoyed in the past. Since it is clear beyond a doubt that farmers near Boston received more for their milk than did other farmers prior to federal regulation, I would reverse the judgment below and hold this provision of the Boston milk order valid. In order to understand the purpose of the 1937 Act, it is necessary to go back to the 1920's at a time prior to any federal regulation. As the majority correctly points out, the economics of the milk industry at that *199 time often led to destructive competition and chaos. Milk producers therefore formed cooperatives for their own protection and sold milk on a collective basis. All the parties in this case agree, and the record conclusively shows, that under the cooperatives at that time farmers close to marketing centers received more for their milk than did farmers farther away. This higher price resulted from many factors, including the greater proportion of milk from nearby farms that was used for fluid purposes, the possibility that those farmers would compete with handlers by selling directly to customers, smaller seasonal variation in the volume of milk produced, and higher costs—such as taxes and land values— incurred in farming close to the cities.[1] As long as economic conditions remained generally stable, the cooperatives succeeded in protecting all farmers from the dangers of overproduction and excessive competition. Then the depression set in and milk farmers, like so many other Americans, were unable to maintain stable prices by self-regulation. Congress reacted to this situation by passing the Agricultural Adjustment Act of 1933 (A. A. A.), under which the Secretary of Agriculture was given broad powers to regulate the farm economy through licensing. 8 (3), Very few details or standards describing the Secretary's powers were provided in the 1933 Act, and there was no attention given to specific problems of *200 nearby farmers in the milk industry. Under the provisions of that Act the Secretary issued a license for the Boston market in 1933 and this first license included provisions that effectively maintained the historical price advantage of producers close to Boston.[2] In 1935 bills were introduced in Congress to amend the A. A. A.[3] and hearings were held on those bills in February and March of that year.[4] In May 1935 this Court held in Schechter Poultry that provisions of the National Industrial Recovery Act, were unconstitutional, in part because that Act delegated powers to an administrative agency without providing adequate standards and guidelines. The congressional committees considering the amendments immediately recognized that the Schechter decision cast considerable doubt on the validity of the A. A. A. and they therefore reported out a completely amended bill which set forth detailed descriptions of the powers and standards that the Secretary was to employ.[5] As reported and passed by Congress, that bill contained specific provisions concerning the milk industry, and it is those provisions that are involved in the present case.[6] The committee reports accompanying that bill make it abundantly clear that a primary purpose *201 of the bill was to "eliminate questions of improper delegation of legislative authority raised by the decision in Schechter"[7] There is no indication that when Congress passed those amendments it intended to cut back on or limit the authority the Secretary had actually exercised in regulating milk under the 1933 Act, but rather the purpose was to avoid judicial invalidation resulting from the absence of constitutionally sufficient standards. History and the legislative record make it quite clear that Congress in 1935 was concerned, not about limiting an excessively aggressive Secretary, but about overcoming the limitations imposed by a Court that was frustrating the congressional purpose by holding laws unconstitutional. Pursuant to the 1935 Act, the Secretary issued a new order in 1936 for the Boston market which, like the 1933 order, contained provisions for additional payments to nearby farmers. In issuing this order he explicitly relied on the historical, economic factors which justified these additional payments. (J. A. 224.) The effectiveness of the 1935 amendments was also jeopardized by court decisions,[8] and Congress again acted by passing a new law, the Agricultural Marketing Agreement Act of 1937, This statute re-enacted the milk marketing provisions of the 1935 Act in substantially the same form and further provided that all market orders issued under that Act were "expressly ratified, legalized, and confirmed." Proceeding under the new Act the Secretary reinstated the 1936 Boston order including the additional *202 payments to farmers located nearer the city, and that order and the 1937 Act have remained in substantially the same form until this time. With this general historical picture in mind, it is easier to answer the central legal question in this case which is whether the 1937 Act authorizes the Secretary of Agriculture to provide that nearby farmers will receive more for their milk than farmers farther away. The Act provides that the Secretary shall establish by order certain basic prices for milk delivered by producers and allows him to adjust that basic price to reflect "volume, market, and production differentials customarily applied by the handlers subject to such order" 7 U.S. C. 608c (5) (B), cl. (a) (1964 ed., Supp. IV).[9] The Secretary here argues that the payment of additional sums to farmers close to Boston is an authorized "market differential." The argument cannot be settled simply on the basis of the statutory language since there is no definition of the term "market." However the legislative history makes it clear beyond any doubt that this provision was designed to allow the Secretary broad leeway in regulating the milk industry in accordance with prior practices and differentials in the unregulated market. The committee reports in both Houses said that the milk order provisions in the Act were designed to "follow the methods employed by cooperative associations of producers prior to the enactment of the Agricultural Adjustment Act and the provisions of *203 licenses issued pursuant to the present section 8 (3) of the Agricultural Adjustment Act."[10] The only discussion of these provisions during the congressional floor debates fully supports this statement. Senator Copeland, a former commissioner of health in New York City and a man well acquainted with the milk industry in New England, asked Senator Murphy, the floor manager for the bill, about the possibility that farmers near the cities would receive the same price for milk as farmers farther away. Senator Murphy's initial answer indicated this would be so, but when Senator Copeland pressed the inquiry further, stating that not all factors had been considered, Senator Murphy indicated that the provisions for specific differentials "adopt the present practice of business."[11] To me that reply indicates that nearby differentials would be permissible, if they were part of the business practice—as they were. The majority diminishes the importance of this discussion by saying that it represents the views of only two men, not those of the committee, but anyone acquainted with the realities of the United States Senate knows that the remarks of the floor manager are taken by other Senators as reflecting the views of the committee itself. This history makes it clear that Congress did not intend to limit the authorized differentials to any specific payments, but rather intended to permit the Secretary to employ whatever practices, consistent with the history of the unregulated *204 market, he found necessary to achieve stability in the milk industry. Applying these considerations it becomes plain that the additional payments to nearby farmers are authorized as a "differential customarily applied." Nearby farmers had always obtained a higher price for their milk than farmers farther away and the Secretary's regulations in 1933 and 1936 reflected this historical fact. Reinstatement of the nearby differentials after passage of the 1937 Act merely continued this prior administrative practice, based on the earlier economic realities, of paying more for milk produced on farms close to Boston. Had Congress intended to eliminate this feature of the prior practice, it would have been easy to say so, but there is absolutely nothing in the statute or in the legislative history that demonstrates a desire to alter the advantage nearby farmers had always enjoyed. My conclusion that this differential is authorized is buttressed by the actions of Congress and the Secretary since 1937. There has always been a healthy controversy among farmers about this differential, and extensive hearings in 1963 brought forth strong arguments against continuing it. (J. A. 360-599.) Yet Congress, even though it amended the statute in 1965, still has not in any way indicated that the nearby differential was unauthorized by the 1937 Act or that it should be eliminated at this time. Similarly the Secretary has continually reviewed this provision and refused to eliminate it, the most recent time being 1964. (J. A. 346, 349.) Since Congress, in my view, intended in 1933, 1935, and 1937 to authorize payments like the nearby differential and since it has not altered this authorization in the past 32 years, I cannot agree that this Court should or properly can eliminate the payment, ostensibly through a process of statutory interpretation. *205 This interpretation is not based on a theory of legislative silence as the majority seems to imply. To me the legislative history speaks clearly in saying that Congress intended the Secretary to regulate the industry in accordance with prior practices, and the statutory language, statements in committee reports, and floor debates do not "illumine two different roads," ante, at 185. I see only one path that is marked by the legislative record, and the only silence I perceive is the striking absence of any statements in the statute or the legislative history that support the majority's interpretation. My conclusion that the location differential is authorized by the Act finds support in other judicial decisions. In United certain milk handlers made a broadside attack on the New York order issued under the 1937 Act. This Court rejected that challenge. One part of the argument was that the nearby differential provision of that order was invalid. This Court noted that "[t]he Act authorizes such an arrangement," citing the provision for market differentials customarily applied. Although that provision was promulgated under 8c (5) (A) of the Act, the identical language supporting that conclusion is found in 8c (5) (B), and it is that latter section which is involved in the present case. The majority attempts to distinguish that case by noting that it was a suit brought by the Government against handlers, but it is difficult to see what difference that makes. It does not matter who sues, if the Court decides an issue of statutory interpretation that decision should remain the same even if the litigants change.[12] *206 The nearby differential of the Boston order involved here was also approved by the First Circuit in Green Valley The majority's dismissal of that case on the conclusion the handlers did not have standing to raise this issue is irrelevant. The First Circuit there found the differential valid and then stated that "[f]urthermore" the handlers lacked standing. It does not matter to me whether the decision on the validity of the location differential is classified as dictum or a holding. The point remains that the First Circuit considered these payments and found them expressly provided for by the language of 8c (5) (B). The majority disagrees with the interpretation of the statute set forth above and instead finds that the foundation of the portion of 1937 Act involved here was to provide uniform prices to all producers, with adjustments to that uniform price only as "compensation for rendering an economic service." Ante, at 188. This interpretation, as I understand it, would require the Secretary to disregard the historical price advantage nearby producers had in the sale of their milk, and to consider only whether there is a present economic justification for particular payments. I respectfully submit that this interpretation cannot be supported by the language of the Act considered as a whole or by the relevant expressions of congressional intent found in the legislative history. The theory of this Act adopted by the majority is clearly not that of Congress, but one created by the Court itself. The conclusion that each of the differentials specified in the Act represents only "compensation for rendering an economic service" finds no support whatsoever in the language of the Act or the legislative history. None of the adjustments described in the Act is defined in terms of any "economic service." The majority does not refer *207 to any legislative history that indicates such a definition was intended. It may well be possible for an analyst to fit the language of the Act, the committee reports, and the floor debates into a coherent pattern of economic services, but had Congress desired to require this as a touchstone for the authorized differentials, it would have been easy for it to have said so. Congress did not choose to do so in 1933, 1935, or 1937, and it has not done so in the intervening 32 years. Moreover, if there is any pattern into which all the differentials clearly fit that is fully supported by express legislative history, it is the clear pattern of allowing the Secretary to incorporate provisions reflecting the customary practices of the milk industry itself.[13] Even if the majority's statutory interpretation were correct, I do not understand why it would lead to the conclusion that the judgment below should be affirmed and the challenged payments distributed at this time to all farmers. Until this Court's decision the Secretary had *208 no reason to know that he had to justify the provisions of this order as "compensation for rendering an economic service," and his failure to have provided such a defense does not necessarily mean it is unavailable. Indeed the Court apparently would approve this same provision were the Secretary to issue it again, but only if it were then accompanied by an economic study that this Court—composed of lawyers, not economic or agricultural experts—finds acceptable. If such a justification is present, the differential is in fact lawful at this time, and it would not seem to matter that the Secretary has not yet incanted the proper magic words. I do not see what harm would follow if this Court were simply to vacate the judgment below, remand the cases to the Secretary for appropriate study, and continue to place the payments in the special fund pending ultimate resolution of the controversy. If the Secretary cannot make the proper economic justification, the only result would be to postpone the day when the accumulating funds, which now amount to over $8,000,000, would be distributed. If, on the other hand, he is able to show that these payments compensate for an economic service, then the Court would not have unnecessarily given the accumulated millions to farmers who are not legally entitled to receive them. My conviction that the Act was designed to permit the Secretary to include adjustments that reflected the prior practice of the milk industry does not mean that he can act with unlimited abandon and approve a payment simply because historically it was provided for prior to federal regulation. The statute requires that the Secretary issue orders which "will tend to effectuate the declared policy of [the Act]" 7 U.S. C. 608c (4). Those policies are specifically set forth, 7 U.S. C. 602, and in general provide that orders should establish and maintain orderly marketing conditions *209 and parity prices for milk producers. In his latest promulgation of the Boston order the Secretary specifically refused to eliminate the nearby differentials (J. A. 349-357) and found that the order "will tend to effectuate the declared policy of the Act." That finding cannot be disturbed, nor the nearby differential invalidated, unless it is shown that the order is not supported by substantial evidence in the administrative record considered in its entirety. Cf. Universal Camera In this action the Court of Appeals did not make a specific finding on the substantiality of the evidence, and the respondents argue that it is insubstantial, but a review of the entire record in light of the appropriate legal standards indicates that the nearby differential in the Boston order is fully supported by substantial evidence. In reaching this conclusion, it must be remembered that the Secretary is required to find only two things. First, that the proposed provision represents a payment customarily applied in the milk market, and second, that inclusion of the proposed provision will further the policies of the Act. The first of these questions is essentially a factual one, and there is no real argument in this action that the Secretary was wrong in finding as a matter of historical fact that nearby farmers received additional payments which are reflected in the location differential. The respondents do not really deny the historical existence of this higher price, but rather attack its legality under the Act. The Court of Appeals, moreover, specifically recognized the historical fact that such differentials existed, but accepted the respondents' argument that they were illegal. 131 U. S. App. D. C., at 112-114, -665, 669. An independent review of the record confirms the conclusion that such differentials had been customary in the market. It is thus easy to conclude that the factual finding *210 required by the Act has been supported by substantial evidence in the administrative record. The second required finding, that the provision will further the policies of the Act, is a mixed question of fact and administrative policy. The Secretary has held extensive hearings in the past on the provisions of the Boston milk order (J. A. 233-247, 257-302, 305-330, 360-651), and he has repeatedly found that the nearby location differential furthers the policies of the Act. Since this is essentially a question of administrative discretion and will be set aside only on a strong showing by the parties that the finding is without support in the basic facts on which the Secretary has relied, it is proper to say on this record that this second finding is adequately supported. Nothing in the respondents' arguments indicates that the nearby differential does not further the policies of the Act, but rather they argue only that elimination of the differential would better serve those policies. But this question is one for the Secretary, not for the parties or for this Court, to decide. What is involved here is simply a question of interpreting and following the will of Congress. Over 30 years ago Congress decided that milk producers needed governmental assistance in stabilizing their income, but it also decided that this stabilization should be accomplished with a minimal amount of change in the industry's prior practices. Congress therefore authorized the Secretary of Agriculture to regulate the industry and left most of the details to him. For over 30 years he has used his authority to regulate the Boston milk market, and has consistently found it desirable to provide higher prices for milk produced on farms close to Boston. It may well be that this decision is not the best or the most economically sound one that he could make in light of changed economic conditions in 1969, but that decision is one Congress has committed to the Secretary alone. In my view *211 this Court and the Court of Appeals in this litigation effectively substitute their will for the will of Congress and their views of economics and wise administration for those of the Secretary whom Congress selected to carry out its will. The Court indicates that its decision will avoid a "windfall." Ante, at 197. In fact the Court itself creates a windfall of over $8,000,000 which is siphoned out of the pockets of farmers close to Boston and bestowed like a Christmas present on those farther away. This the Court does contrary to the informed judgment of the Secretary who, faithful to the Act, has declared for years that distant farmers are not eligible for such a bonus. I am unable to agree that this is a proper function for the Court to perform and I therefore dissent.

Justice Burger

majority

Hutchinson v. Proxmire

https://www.courtlistener.com/opinion/110131/hutchinson-v-proxmire/

https://www.courtlistener.com/api/rest/v3/clusters/110131/

1978-143

We granted certiorari, 439 U.S. 1066 (1979), to resolve three issues: (1) Whether a Member of Congress is protected by the Speech or Debate Clause of the Constitution, Art. I, § 6, against suits for allegedly defamatory statements made by the Member in press releases and newsletters; (2) whether petitioner Hutchinson is either a "public figure" or a "public official," thereby making applicable the "actual malice" standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964); and (3) whether respondents were entitled to summary judgment. *114 Ronald Hutchinson, a research behavioral scientist, sued respondents, William Proxmire, a United States Senator, and his legislative assistant, Morton Schwartz, for defamation arising out of Proxmire's giving what he called his "Golden Fleece" award. The "award" went to federal agencies that had sponsored Hutchinson's research. Hutchinson alleged that in making the award and publicizing it nationwide, respondents had libeled him, damaging him in his professional and academic standing, and had interfered with his contractual relations. The District Court granted summary judgment for respondents and the Court of Appeals affirmed. We reverse and remand to the Court of Appeals for further proceedings consistent with this opinion. I Respondent Proxmire is a United States Senator from Wisconsin. In March 1975, he initiated the "Golden Fleece of the Month Award" to publicize what he perceived to be the most egregious examples of wasteful governmental spending. The second such award, in April 1975, went to the National Science Foundation, the National Aeronautics and Space Administration, and the Office of Naval Research, for spending almost half a million dollars during the preceding seven years to fund Hutchinson's research.[1] At the time of the award, Hutchinson was director of research at the Kalamazoo State Mental Hospital. Before that he had held a similar position at the Ft. Custer State Home. Both the hospital and the home are operated by the Michigan State Department of Mental Health; he was therefore a state employee in both positions. During most of the period in question he was also an adjunct professor at Western Michigan University. When the research department at Kalamazoo *115 State Mental Hospital was closed in June 1975, Hutchinson became research director of the Foundation for Behavioral Research, a nonprofit organization. The research funding was transferred from the hospital to the foundation. The bulk of Hutchinson's research was devoted to the study of emotional behavior. In particular, he sought an objective measure of aggression, concentrating upon the behavior patterns of certain animals, such as the clenching of jaws when they were exposed to various aggravating stressful stimuli.[2] The National Aeronautics and Space Agency and the Navy were interested in the potential of this research for resolving problems associated with confining humans in close quarters for extended periods of time in space and undersea exploration. The Golden Fleece Award to the agencies that had sponsored Hutchinson's research was based upon research done for Proxmire by Schwartz. While seeking evidence of wasteful governmental spending, Schwartz read copies of reports that Hutchinson had prepared under grants from NASA. Those reports revealed that Hutchinson had received grants from the Office of Naval Research, the National Science Foundation, and the Michigan State Department of Mental Health. Schwartz also learned that other federal agencies had funded Hutchinson's research. After contacting a number of federal and state agencies, Schwartz helped to prepare a speech for Proxmire to present in the Senate on April 18, 1975; the text was then incorporated into an advance press release, with only *116 the addition of introductory and concluding sentences. Copies were sent to a mailing list of 275 members of the news media throughout the United States and abroad. Schwartz telephoned Hutchinson before releasing the speech to tell him of the award; Hutchinson protested that the release contained an inaccurate and incomplete summary of his research. Schwartz replied that he thought the summary was fair. In the speech, Proxmire described the federal grants for Hutchinson's research, concluding with the following comment:[3] "The funding of this nonsense makes me almost angry enough to scream and kick or even clench my jaw. It seems to me it is outrageous. "Dr. Hutchinson's studies should make the taxpayers as well as his monkeys grind their teeth. In fact, the good doctor has made a fortune from his monkeys and in the process made a monkey out of the American taxpayer. "It is time for the Federal Government to get out of this `monkey business.' In view of the transparent worthlessness of Hutchinson's study of jaw-grinding and biting by angry or hard-drinking monkeys, it is time we put a stop to the bite Hutchinson and the bureaucrats who fund him have been taking of the taxpayer." 121 Cong. Rec. 10803 (1975). *117 In May 1975, Proxmire referred to his Golden Fleece Awards in a newsletter sent to about 100,000 people whose names were on a mailing list that included constituents in Wisconsin as well as persons in other states. The newsletter repeated the essence of the speech and the press release. Later in 1975, Proxmire appeared on a television interview program where he referred to Hutchinson's research, though he did not mention Hutchinson by name.[4] The final reference to the research came in a newsletter in February 1976. In that letter, Proxmire summarized his Golden Fleece Awards of 1975. The letter did not mention Hutchinson's name, but it did report: "— The NSF, the Space Agency, and the Office of Naval Research won the `Golden Fleece' for spending jointly $500,000 to determine why monkeys clench their jaws. ..... "All the studies on why monkeys clench their jaws were dropped. No more monkey business." App. 168-171. After the award was announced, Schwartz, acting on behalf of Proxmire, contacted a number of the federal agencies that had sponsored the research. In his deposition he stated that he did not attempt to dissuade them from continuing to fund the research but merely discussed the subject.[5] Hutchinson, by contrast, contends that these calls were intended to persuade the agencies to terminate his grants and contracts. *118 II On April 16, 1976, Hutchinson filed this suit in United States District Court in Wisconsin.[6] In Count I he alleges that as a result of the actions of Proxmire and Schwartz he has "suffered a loss of respect in his profession, has suffered injury to his feelings, has been humiliated, held up to public scorn, suffered extreme mental anguish and physical illness and pain to his person. Further, he has suffered a loss of income and ability to earn income in the future." Count II alleges that the respondents' conduct has interfered with Hutchinson's contractual relationships with supporters of his research. He later amended the complaint to add an allegation that his rights of privacy and peace and tranquility have been infringed. Respondents moved for a change of venue and for summary judgment. In their motion for summary judgment they asserted that all of their acts and utterances were protected by the Speech or Debate Clause. In addition, they asserted that their criticism of the spending of public funds was privileged under the Free Speech Clause of the First Amendment. They argued that Hutchinson was both a public figure and a public official, and therefore would be obliged to prove the existence of "actual malice." Respondents contended that the facts of this case would not support a finding of actual malice. Without ruling on venue, the District Court granted respondents' motion for summary judgment. 431 F. Supp. 1311 (WD Wis. 1977). In so ruling, the District Court relied on both grounds urged by respondents. It reasoned that the Speech or Debate Clause afforded absolute immunity for respondents' activities in investigating the funding of Hutchinson's research, for Proxmire's speech in the Senate, and for the press release covering the speech. The court concluded that the investigations and the speech were clearly within the *119 ambit of the Clause. The press release was said to be protected because it fell within the "informing function" of Congress. To support its conclusion, the District Court relied upon cases interpreting the franking privilege granted to Members by statute. See 39 U.S. C. § 3210. Although the District Court referred to the "informing function" of Congress and to the franking privilege, it did not base its conclusion concerning the press release on those analogies. Instead, the District Court held that the "press release, in a constitutional sense, was no different than would have been a television or radio broadcast of his speech from the Senate floor."[7] 431 F. Supp., at 1325. That the District Court did not rely upon the "informing function" is clear from its implicit holding that the newsletters were not protected. The District Court then turned to the First Amendment to explain the grant of summary judgment on the claims arising from the newsletters and interviews. It concluded that Hutchinson was a public figure for purposes of determining respondents' liability: "Given Dr. Hutchinson's long involvement with publicly-funded research, his active solicitation of federal and state grants, the local press coverage of his research, and the public interest in the expenditure of public funds on the precise activities in which he voluntarily participated, the court concludes that he is a public figure for the purpose of this suit. As he acknowledged in his deposition, `Certainly, any expenditure of public funds is a matter of public interest.'" Id., at 1327.[8] *120 Having reached that conclusion, the District Court relied upon the depositions, affidavits, and pleadings before it to evaluate Hutchinson's claim that respondents had acted with "actual malice." The District Court found that there was no genuine issue of material fact on that issue. It held that neither a failure to investigate nor unfair editing and summarizing could establish "actual malice." It also held that there was nothing in the affidavits or depositions of either Proxmire or Schwartz to indicate that they ever entertained any doubt about the truth of their statements. Relying upon cases from other courts, the District Court said that in determining whether a plaintiff had made an adequate showing of "actual malice," summary judgment might well be the rule rather than the exception. Id., at 1330.[9] Finally, the District Court concluded: "But even if for the purpose of this suit it is found that Dr. Hutchinson is a private person so that First Amendment protections do not extend to [respondents], relevant state law dictates the grant of summary judgment." Ibid. The District Court held that the controlling state law was either that of Michigan or that of the District of Columbia. Without deciding which law would govern under Wisconsin's choice-of-law principles, the District Court concluded that Hutchinson would not be able to recover in either jurisdiction. The Court of Appeals affirmed, holding that the Speech or Debate Clause protected the statements made in the press release *121 and in the newsletters. 579 F.2d 1027 (CA7 1978). It interpreted Doe v. McMillan, 412 U.S. 306 (1973), as recognizing a limited protection for the "informing function" of Congress and concluded that distribution of both the press release and the newsletters did not exceed what was required for legislative purposes. 579 F.2d, at 1033. The followup telephone calls and the statements made by Proxmire on television and radio were not protected by the Speech or Debate Clause; they were, however, held by the Court of Appeals to be protected by the First Amendment.[10] It reached that conclusion after first finding that, based on the affidavits and pleadings of record, Hutchinson was a "public figure." Id., at 1034-1035. The court then examined the record to determine whether there had been a showing by Hutchinson of "actual malice." It agreed with the District Court "that, upon this record, there is no question that [respondents] did not have knowledge of the actual or probable `falsity' of their statements." Id., at 1035. The Court of Appeals also rejected Hutchinson's argument that the District Court had erred in granting summary judgment on the claimed wrongs other than defamation—interference with *122 contractual relations, intentional infliction of emotional anguish, and invasion of privacy: "We view these additional allegations of harm as merely the results of the statements made by the defendants. If the alleged defamatory falsehoods themselves are privileged, it would defeat the privilege to allow recovery for the specified damages which they cause." Id., at 1036 (footnote omitted).[11] The Court of Appeals did not review the District Court's holding that state law also justified summary judgment for respondents. III The petition for certiorari raises three questions. One involves the scope of the Speech or Debate Clause; another involves First Amendment claims; a third concerns the appropriateness of summary judgment, embracing both a constitutional issue and a state-law issue. The constitutional issue arose from the District Court's view that solicitude for the First Amendment required a more hospitable judicial attitude toward granting summary judgment in a libel case. See n. 9, supra. The state-law issue arose because the District Court concluded that, as a matter of local law, Hutchinson could not recover. Our practice is to avoid reaching constitutional questions if a dispositive nonconstitutional ground is available. See, e.g., Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 193 (1909). Were we to follow that course here we would remand to the Court of Appeals to review the state-law question which it did not consider. If the District Court correctly decided the state-law question, resolution of the First Amendment issue would be unnecessary. We conclude, however, that special considerations in this case mandate that we first resolve the constitutional questions. *123 The purpose of the Speech or Debate Clause is to protect Members of Congress "not only from the consequences of litigation's results but also from the burden of defending themselves." Dombrowski v. Eastland, 387 U.S. 82, 85 (1967). See also Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503 (1975). If the respondents have immunity under the Clause, no other questions need be considered for they may "not be questioned in any other Place." Ordinarily, consideration of the constitutional issue would end with resolution of the Speech or Debate Clause question. We would then remand for the Court of Appeals to consider the issue of state law. Here, however, there is an indication that the Court of Appeals would not affirm the state-law holding. We surmise this because, in explaining its conclusion that the press release and the newsletters were protected by the Speech or Debate Clause, the Court of Appeals stated: "[T]he statements in the press release intimating that Dr. Hutchinson had made a personal fortune and that the research was `perhaps duplicative' may be defamatory false-hoods." 579 F.2d, at 1035 n. 15. In light of that surmise, what we said in Wolston v. Reader's Digest Assn., Inc., post, at 161 n. 2, is also appropriate here: "We assume that the Court of Appeals is as familiar as we are with the general principle that dispositive issues of statutory and local law are to be treated before reaching constitutional issues. . . . We interpret the footnote to the Court of Appeals opinion in this case, where jurisdiction is based upon diversity of citizenship, to indicate its view that . . . the appeal could not be decided without reaching the constitutional question." In light of the necessity to do so, we therefore reach the First Amendment issue as well as the Speech or Debate Clause question. IV In support of the Court of Appeals holding that newsletters and press releases are protected by the Speech or Debate Clause, respondents rely upon both historical precedent and *124 present-day congressional practices. They contend that impetus for the Speech or Debate Clause privilege in our Constitution came from the history of parliamentary efforts to protect the right of members to criticize the spending of the Crown and from the prosecution of a Speaker of the House of Commons for publication of a report outside of Parliament. Respondents also contend that in the modern day very little speech or debate occurs on the floor of either House; from this they argue that press releases and newsletters are necessary for Members of Congress to communicate with other Members. For example, in his deposition Proxmire testified: "I have found in 19 years in the Senate that very often a statement on the floor of the Senate or something that appears in the Congressional Record misses the attention of most members of the Senate, and virtually all members of the House, because they don't read the Congressional Record. If they are handed a news release, or something, that is going to call it to their attention . . . ." App. 220. Respondents also argue that an essential part of the duties of a Member of Congress is to inform constituents, as well as other Members, of the issues being considered. The Speech or Debate Clause has been directly passed on by this Court relatively few times in 190 years. Eastland v. United States Servicemen's Fund, supra; Doe v. McMillan, 412 U.S. 306 (1973); Gravel v. United States, 408 U.S. 606 (1972); United States v. Brewster, 408 U.S. 501 (1972); Dombrowski v. Eastland, supra; United States v. Johnson, 383 U.S. 169 (1966); Kilbourn v. Thompson, 103 U.S. 168 (1881). Literal reading of the Clause would, of course, confine its protection narrowly to a "Speech or Debate in either House." But the Court has given the Clause a practical rather than a strictly literal reading which would limit the protection to utterances made within the four walls of either Chamber. Thus, we have held that committee hearings are protected, even if held outside the Chambers; committee reports are also protected. *125 Doe v. McMillan, supra; Gravel v. United States, supra, Cf. Coffin v. Coffin, 4 Mass. *1, *27-*28 (1808). The gloss going beyond a strictly literal reading of the Clause has not, however, departed from the objective of protecting only legislative activities. In Thomas Jefferson's view: "[The privilege] is restrained to things done in the House in a Parliamentary course . . . . For [the Member] is not to have privilege contra morem parliamentarium, to exceed the bounds and limits of his place and duty." T. Jefferson, A Manual of Parliamentary Practice 20 (1854), reprinted in The Complete Jefferson 704 (S. Padover ed. 1943). One of the draftsmen of the Constitution, James Wilson, expressed a similar thought in lectures delivered between 1790 and 1792 while he was a Justice of this Court. He rejected Blackstone's statement, 1 W. Blackstone, Commentaries *164, that Parliament's privileges were preserved by keeping them indefinite: "Very different is the case with regard to the legislature of the United States . . . . The great maxims, upon which our law of parliament is founded, are defined and ascertained in our constitutions. The arcana of privilege, and the arcana of prerogative, are equally unknown to our system of jurisprudence." 2 J. Wilson, Works 35 (J. Andrews ed. 1896).[12] In this respect, Wilson was underscoring the very purpose of our Constitution—inter alia, to provide written definitions of the powers, privileges, and immunities granted rather than rely on evolving constitutional concepts identified from diverse sources as in English law. Like thoughts were expressed *126 by Joseph Story, writing in the first edition of his Commentaries on the Constitution in 1833: "But this privilege is strictly confined to things done in the course of parliamentary proceedings, and does not cover things done beyond the place and limits of duty." Id., § 863, at 329. Cf. Coffin v. Coffin, supra, at *34. In United States v. Brewster, supra, we acknowledged the historical roots of the Clause going back to the long struggle between the English House of Commons and the Tudor and Stuart monarchs when both criminal and civil processes were employed by Crown authority to intimidate legislators. Yet we cautioned that the Clause. "must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government rather than the English parliamentary system. . . . [T]heir Parliament is the supreme authority, not a coordinate branch. Our speech or debate privilege was designed to preserve legislative independence, not supremacy." 408 U.S., at 508. Nearly a century ago, in Kilbourn v. Thompson, supra, at 204, this Court held that the Clause extended "to things generally done in a session of the House by one of its members in relation to the business before it." (Emphasis added.) More recently we expressed a similar definition of the scope of the Clause: "Legislative acts are not all-encompassing. The hear of the Clause is speech or debate in either House. Inso far as the Clause is construed to reach other matters, the must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the *127 Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but `only when necessary to prevent indirect impairment of such deliberations.'" Gravel v. United States, 408 U. S., at 625 (quoting United States v. Doe, 455 F.2d 753, 760 (CA1 1972)) (emphasis added). Cf. Doe v. McMillan, 412 U. S., at 313-314, 317; United States v. Brewster, 408 U. S., at 512, 515-516, 517-518; Long v. Ansell, 293 U.S. 76, 82 (1934). Whatever imprecision there may be in the term "legislative activities," it is clear that nothing in history or in the explicit language of the Clause suggests any intention to create an absolute privilege from liability or suit for defamatory statements made outside the Chamber. In Brewster, supra, at 507, we observed: "The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators." Claims under the Clause going beyond what is needed to protect legislative independence are to be closely scrutinized. In Brewster we took note of this: "The authors of our Constitution were well aware of the history of both the need for the privilege and the abuses that could flow from too sweeping safeguards. In order to preserve other values, they wrote the privilege so that it tolerates and protects behavior on the part of Members not tolerated and protected when done by other citizens, but the shield does not extend beyond what is necessary to preserve the integrity of the legislative process." 408 U. S., at 517 (emphasis added). Indeed, the precedents abundantly support the conclusion that a Member may be held liable for republishing defamatory *128 statements originally made in either House. We perceive no basis for departing from that long-established rule. Mr. Justice Story in his Commentaries, for example, explained that there was no immunity for republication of a speech first delivered in Congress: "Therefore, although a speech delivered in the house of commons is privileged, and the member cannot be questioned respecting it elsewhere; yet, if he publishes his speech, and it contains libellous matter, he is liable to an action and prosecution therefor, as in common cases of libel. And the same principles seem applicable to the privilege of debate and speech in congress. No man ought to have a right to defame others under colour of a performance of the duties of his office. And if he does so in the actual discharge of his duties in congress, that furnishes no reason, why he should be enabled through the medium of the press to destroy the reputation, and invade the repose of other citizens. It is neither within the scope of his duty, nor in furtherance of public rights, or public policy. Every citizen has as good a right to be protected by the laws from malignant scandal, and false charges, and defamatory imputations, as a member of congress has to utter them in his seat."[13] 2 J. Story, Commentaries *129 on the Constitution § 863, p. 329 (1833) (emphasis added). See also L. Cushing, Elements of the Law and Practice of Legislative Assemblies in the United States of America ¶ 604, p. 244 (1st ed. reprint 1971). Story summarized the state of the common law at the time the Constitution was drafted, recalling that Parliament had by then succeeded in its struggle to secure freedom of debate. But the privilege did not extend to republication of libelous remarks even though first made in Parliament. Thus, in King v. Lord Abingdon, 1 Esp. 225, 170 Eng. Rep. 337 (N.P. 1794), Lord Chief Justice Kenyon rejected Lord Abingdon's argument that parliamentary privilege protected him from suit for republication of a speech first made in the House of Lords: "[A]s to the words in question, had they been spoken in the House of Lords, and confined to its walls, [the] Court would have had no jurisdiction to call his Lordship before them, to answer for them as an offence; but . . . in the present case, the offence was the publication under his authority and sanction, and at his expense: . . . a member of Parliament had certainly a right to publish his speech, but that speech should not be made the vehicle of slander against any individual; if it was, it was a libel . . . ." Id., at 228, 170 Eng. Rep., at 338. A similar result was reached in King v. Creevey, 1 M. & S. 273, 105 Eng. Rep. 102 (K. B. 1813). *130 In Gravel v. United States, 408 U. S., at 622-626, we recognized that the doctrine denying immunity for republication had been accepted in the United States: "[P]rivate publication by Senator Gravel . . . was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence." Id., at 625. We reaffirmed that principle in Doe v. McMillan, 412 U. S., at 314-315: "A Member of Congress may not with impunity publish a libel from the speaker's stand in his home district, and clearly the Speech or Debate Clause would not protect such an act even though the libel was read from an official committee report. The reason is that republishing a libel under such circumstances is not an essential part of the legislative process and is not part of that deliberative process `by which Members participate in committee and House proceedings.'" (Footnote omitted; quoting from Gravel v. United States, supra, at 625.)[14] We reach a similar conclusion here. A speech by Proxmire in the Senate would be wholly immune and would be available to other Members of Congress and the public in the Congressional Record. But neither the newsletters nor the press release was "essential to the deliberations of the Senate" and neither was part of the deliberative process. Respondents, however, argue that newsletters and press releases are essential to the functioning of the Senate; without *131 them, they assert, a Senator cannot have a significant impact on the other Senators. We may assume that a Member's published statements exert some influence on other votes in the Congress and therefore have a relationship to the legislative and deliberative process. But in Brewster, 408 U. S., at 512, we rejected respondents' expansive reading of the Clause: "It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include . . . preparing so-called `news letters' to constituents, news releases, and speeches delivered outside the Congress." There we went on to note that United States v. Johnson, 383 U.S. 169 (1966), had carefully distinguished between what is only "related to the due functioning of the legislative process," and what constitutes the legislative process entitled to immunity under the Clause: "In stating that those things [Johnson's attempts to influence the Department of Justice] `in no wise related to the due functioning of the legislative process' were not covered by the privilege, the Court did not in any sense imply as a corollary that everything that `related' to the office of a Member was shielded by the Clause. Quite the contrary, in Johnson we held, citing Kilbourn v. Thompson, supra, that only acts generally done in the course of the process of enacting legislation were protected. ..... "In no case has this Court ever treated the Clause as protecting all conduct relating to the legislative process. ..... ". . . In its narrowest scope, the Clause is a very large, albeit essential, grant of privilege. It has enabled reckless men to slander [by speech or debate] and even destroy *132 others with impunity, but that was the conscious choice of the Framers." 408 U.S., at 513-516. (Emphasis in original.) We are unable to discern any "conscious choice" to grant immunity for defamatory statements scattered far and wide by mail, press, and the electronic media. Respondents also argue that newsletters and press releases are privileged as part of the "informing function" of Congress. Advocates of a broad reading of the "informing function" sometimes tend to confuse two uses of the term "informing." In one sense, Congress informs itself collectively by way of hearings of its committees. It was in that sense that Woodrow Wilson used "informing" in a statement quoted by respondents. In reality, Wilson's statement related to congressional efforts to learn of the activities of the Executive Branch and administrative agencies; he did not include wideranging inquiries by individual Members on subjects of their choice. Moreover, Wilson's statement itself clearly implies a distinction between the informing function and the legislative function: "Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. . . . [T]he only really self-governing people is that people which discusses and interrogates its administration." W. Wilson, Congressional Government 303 (1885). It is in this narrower Wilsonian sense that this Court has employed "informing" in previous cases holding that congressional *133 efforts to inform itself through committee hearings are part of the legislative function. The other sense of the term, and the one relied upon by respondents, perceives it to be the duty of Members to tell the public about their activities. Valuable and desirable as it may be in broad terms, the transmittal of such information by individual Members in order to inform the public and other Members is not a part of the legislative function or the deliberations that make up the legislative process.[15] As a result, transmittal of such information by press releases and newsletters is not protected by the Speech or Debate Clause. Doe v. McMillan, 412 U.S. 306 (1973), is not to the contrary. It dealt only with reports from congressional committees, and held that Members of Congress could not be held liable for voting to publish a report. Voting and preparing committee reports are the individual and collective expressions of opinion within the legislative process. As such, they are protected by the Speech or Debate Clause. Newsletters and press releases, by contrast, are primarily means of informing those outside the legislative forum; they represent the views and will of a single Member. It does not disparage either their value or their importance to hold that they are not entitled to the protection of the Speech or Debate Clause. V Since New York Times Co. v. Sullivan, 376 U.S. 254 (1964),[16] this Court has sought to define the accommodation *134 required to assure the vigorous debate on the public issues that the First Amendment was designed to protect while at the same time affording protection to the reputations of individuals. E. g., Time, Inc. v. Firestone, 424 U.S. 448 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971); St. Amant v. Thompson, 390 U.S. 727 (1968); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); Rosenblatt v. Baer, 383 U.S. 75 (1966). In Gertz v. Robert Welch, Inc., the Court offered a general definition of "public figures": "For the most part those who attain this status [of public figure] have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment." 418 U.S., at 345. It is not contended that Hutchinson attained such prominence that he is a public figure for all purposes. Instead, respondents have argued that the District Court and the Court of Appeals were correct in holding that Hutchinson is a public figure for the limited purpose of comment on his receipt of federal funds for research projects. That conclusion was based upon two factors: first, Hutchinson's successful application for federal funds and the reports in local newspapers of the federal grants; second, Hutchinson's access to the media, as demonstrated by the fact that some newspapers and wire services reported his response to the announcement of the Golden Fleece Award. Neither of those factors demonstrates *135 that Hutchinson was a public figure prior to the controversy engendered by the Golden Fleece Award; his access, such as it was, came after the alleged libel. On this record, Hutchinson's activities and public profile are much like those of countless members of his profession. His published writings reach a relatively small category of professionals concerned with research in human behavior. To the extent the subject of his published writings became a matter of controversy, it was a consequence of the Golden Fleece Award. Clearly, those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. See Wolston v. Reader's Digest Assn., Inc., post, at 167-168. Hutchinson did not thrust himself or his views into public controversy to influence others. Respondents have not identified such a particular controversy; at most, they point to concern about general public expenditures. But that concern is shared by most and relates to most public expenditures; it is not sufficient to make Hutchinson a public figure. If it were, everyone who received or benefited from the myriad public grants for research could be classified as a public figure—a conclusion that our previous opinions have rejected. The "use of such subject-matter classifications to determine the extent of constitutional protection afforded defamatory falsehoods may too often result in an improper balance between the competing interests in this area." Time, Inc. v. Firestone, supra, at 456. Moreover, Hutchinson at no time assumed any role of public prominence in the broad question of concern about expenditures. Neither his applications for federal grants nor his publications in professional journals can be said to have invited that degree of public attention and comment on his receipt of federal grants essential to meet the public figure level. The petitioner in Gertz v. Robert Welch, Inc., had published books and articles on legal issues; he had been *136 active in local community affairs. Nevertheless, the Court concluded that his activities did not make him a public figure. Finally, we cannot agree that Hutchinson had such access to the media that he should be classified as a public figure. Hutchinson's access was limited to responding to the announcement of the Golden Fleece Award. He did not have the regular and continuing access to the media that is one of the accouterments of having become a public figure. We therefore reverse the judgment of the Court of Appeals and remand the case to the Court of Appeals for further proceedings consistent with this opinion. Reversed and remanded. MR. JUSTICE STEWART joins in all but footnote 10 of the Court's opinion. He cannot agree that the question whether a communication by a Congressman or a member of his staff with a federal agency is entitled to Speech or Debate Clause immunity depends upon whether the communication is defamatory. Because telephone calls to federal agency officials are a routine and essential part of the congressional oversight function, he believes such activity is protected by the Speech or Debate Clause. MR.

We granted certiorari, to resolve three issues: (1) Whether a Member of Congress is protected by the Speech or Debate Clause of the Constitution, Art. I, 6, against suits for allegedly defamatory statements made by the Member in press releases and newsletters; (2) whether petitioner Hutchinson is either a "public figure" or a "public official," thereby making applicable the "actual malice" standard of New York Times ; and (3) whether respondents were entitled to summary judgment. *114 Ronald Hutchinson, a research behavioral scientist, sued respondents, William Proxmire, a United Senator, and his legislative assistant, Morton Schwartz, for defamation arising out of Proxmire's giving what he called his "Golden Fleece" award. The "award" went to federal agencies that had sponsored Hutchinson's research. Hutchinson alleged that in making the award and publicizing it nationwide, respondents had libeled him, damaging him in his professional and academic standing, and had interfered with his contractual relations. The District Court granted summary judgment for respondents and the Court of Appeals affirmed. We reverse and remand to the Court of Appeals for further proceedings consistent with this opinion. I Respondent Proxmire is a United Senator from Wisconsin. In March 175, he initiated the "Golden Fleece of the Month Award" to publicize what he perceived to be the most egregious examples of wasteful governmental spending. The second such award, in April 175, went to the National Science Foundation, the National Aeronautics and Space Administration, and the Office of Naval Research, for spending almost half a million dollars during the preceding seven years to fund Hutchinson's research.[1] At the time of the award, Hutchinson was director of research at the Kalamazoo State Mental Hospital. Before that he had held a similar position at the Ft. Custer State Home. Both the hospital and the home are operated by the Michigan State Department of Mental Health; he was therefore a state employee in both positions. During most of the period in question he was also an adjunct professor at Western Michigan University. When the research department at Kalamazoo *115 State Mental Hospital was closed in June 175, Hutchinson became research director of the Foundation for Behavioral Research, a nonprofit organization. The research funding was transferred from the hospital to the foundation. The bulk of Hutchinson's research was devoted to the study of emotional behavior. In particular, he sought an objective measure of aggression, concentrating upon the behavior patterns of certain animals, such as the clenching of jaws when they were exposed to various aggravating stressful stimuli.[2] The National Aeronautics and Space Agency and the Navy were interested in the potential of this research for resolving problems associated with confining humans in close quarters for extended periods of time in space and undersea exploration. The Golden Fleece Award to the agencies that had sponsored Hutchinson's research was based upon research done for Proxmire by Schwartz. While seeking evidence of wasteful governmental spending, Schwartz read copies of reports that Hutchinson had prepared under grants from NASA. Those reports revealed that Hutchinson had received grants from the Office of Naval Research, the National Science Foundation, and the Michigan State Department of Mental Health. Schwartz also learned that other federal agencies had funded Hutchinson's research. After contacting a number of federal and state agencies, Schwartz helped to prepare a speech for Proxmire to present in the Senate on April 18, 175; the text was then incorporated into an advance press release, with only *116 the addition of introductory and concluding sentences. Copies were sent to a mailing list of 275 members of the news media throughout the United and abroad. Schwartz telephoned Hutchinson before releasing the speech to tell him of the award; Hutchinson protested that the release contained an inaccurate and incomplete summary of his research. Schwartz replied that he thought the summary was fair. In the speech, Proxmire described the federal grants for Hutchinson's research, concluding with the following comment:[3] "The funding of this nonsense makes me almost angry enough to scream and kick or even clench my jaw. It seems to me it is outrageous. "Dr. Hutchinson's studies should make the taxpayers as well as his monkeys grind their teeth. In fact, the good doctor has made a fortune from his monkeys and in the process made a monkey out of the American taxpayer. "It is time for the Federal Government to get out of this `monkey business.' In view of the transparent worthlessness of Hutchinson's study of jaw-grinding and biting by angry or hard-drinking monkeys, it is time we put a stop to the bite Hutchinson and the bureaucrats who fund him have been taking of the taxpayer." 121 Cong. Rec. 10803 (175). *117 In May 175, Proxmire referred to his Golden Fleece Awards in a newsletter sent to about 100,000 people whose names were on a mailing list that included constituents in Wisconsin as well as persons in other states. The newsletter repeated the essence of the speech and the press release. Later in 175, Proxmire appeared on a television interview program where he referred to Hutchinson's research, though he did not mention Hutchinson by name.[4] The final reference to the research came in a newsletter in February 176. In that letter, Proxmire summarized his Golden Fleece Awards of 175. The letter did not mention Hutchinson's name, but it did report: "— The NSF, the Space Agency, and the Office of Naval Research won the `Golden Fleece' for spending jointly $500,000 to determine why monkeys clench their jaws. "All the studies on why monkeys clench their jaws were dropped. No more monkey business." App. 168-171. After the award was announced, Schwartz, acting on behalf of Proxmire, contacted a number of the federal agencies that had sponsored the research. In his deposition he stated that he did not attempt to dissuade them from continuing to fund the research but merely discussed the subject.[5] Hutchinson, by contrast, contends that these calls were intended to persuade the agencies to terminate his grants and contracts. *118 II On April 16, 176, Hutchinson filed this suit in United District Court in Wisconsin.[6] In Count I he alleges that as a result of the actions of Proxmire and Schwartz he has "suffered a loss of respect in his profession, has suffered injury to his feelings, has been humiliated, held up to public scorn, suffered extreme mental anguish and physical illness and pain to his person. Further, he has suffered a loss of income and ability to earn income in the future." Count II alleges that the respondents' conduct has interfered with Hutchinson's contractual relationships with supporters of his research. He later amended the complaint to add an allegation that his rights of privacy and peace and tranquility have been infringed. Respondents moved for a change of venue and for summary judgment. In their motion for summary judgment they asserted that all of their acts and utterances were protected by the Speech or Debate Clause. In addition, they asserted that their criticism of the spending of public funds was privileged under the Free Speech Clause of the First Amendment. They argued that Hutchinson was both a public figure and a public official, and therefore would be obliged to prove the existence of "actual malice." Respondents contended that the facts of this case would not support a finding of actual malice. Without ruling on venue, the District Court granted respondents' motion for summary judgment. In so ruling, the District Court relied on both grounds urged by respondents. It reasoned that the Speech or Debate Clause afforded absolute immunity for respondents' activities in investigating the funding of Hutchinson's research, for Proxmire's speech in the Senate, and for the press release covering the speech. The court concluded that the investigations and the speech were clearly within the *11 ambit of the Clause. The press release was said to be protected because it fell within the "informing function" of Congress. To support its conclusion, the District Court relied upon cases interpreting the franking privilege granted to Members by statute. See 3 U.S. C. 3210. Although the District Court referred to the "informing function" of Congress and to the franking privilege, it did not base its conclusion concerning the press release on those analogies. Instead, the District Court held that the "press release, in a constitutional sense, was no different than would have been a television or radio broadcast of his speech from the Senate floor."[7] That the District Court did not rely upon the "informing function" is clear from its implicit holding that the newsletters were not protected. The District Court then turned to the First Amendment to explain the grant of summary judgment on the claims arising from the newsletters and interviews. It concluded that Hutchinson was a public figure for purposes of determining respondents' liability: "Given Dr. Hutchinson's long involvement with publicly-funded research, his active solicitation of federal and state grants, the local press coverage of his research, and the public interest in the expenditure of public funds on the precise activities in which he voluntarily participated, the court concludes that he is a public figure for the purpose of this suit. As he acknowledged in his deposition, `Certainly, any expenditure of public funds is a matter of public interest.'"[8] *120 Having reached that conclusion, the District Court relied upon the depositions, affidavits, and pleadings before it to evaluate Hutchinson's claim that respondents had acted with "actual malice." The District Court found that there was no genuine issue of material fact on that issue. It held that neither a failure to investigate nor unfair editing and summarizing could establish "actual malice." It also held that there was nothing in the affidavits or depositions of either Proxmire or Schwartz to indicate that they ever entertained any doubt about the truth of their statements. Relying upon cases from other courts, the District Court said that in determining whether a plaintiff had made an adequate showing of "actual malice," summary judgment might well be the rule rather than the exception.[] Finally, the District Court concluded: "But even if for the purpose of this suit it is found that Dr. Hutchinson is a private person so that First Amendment protections do not extend to [respondents], relevant state law dictates the grant of summary judgment." The District Court held that the controlling state law was either that of Michigan or that of the District of Columbia. Without deciding which law would govern under Wisconsin's choice-of-law principles, the District Court concluded that Hutchinson would not be able to recover in either jurisdiction. The Court of Appeals affirmed, holding that the Speech or Debate Clause protected the statements made in the press release *121 and in the newsletters. It interpreted as recognizing a limited protection for the "informing function" of Congress and concluded that distribution of both the press release and the newsletters did not exceed what was required for legislative The followup telephone calls and the statements made by Proxmire on television and radio were not protected by the Speech or Debate Clause; they were, however, held by the Court of Appeals to be protected by the First Amendment.[10] It reached that conclusion after first finding that, based on the affidavits and pleadings of record, Hutchinson was a "public figure." The court then examined the record to determine whether there had been a showing by Hutchinson of "actual malice." It agreed with the District Court "that, upon this record, there is no question that [respondents] did not have knowledge of the actual or probable `falsity' of their statements." The Court of Appeals also rejected Hutchinson's argument that the District Court had erred in granting summary judgment on the claimed wrongs other than defamation—interference with *122 contractual relations, intentional infliction of emotional anguish, and invasion of privacy: "We view these additional allegations of harm as merely the results of the statements made by the defendants. If the alleged defamatory falsehoods themselves are privileged, it would defeat the privilege to allow recovery for the specified damages which they cause."[11] The Court of Appeals did not review the District Court's holding that state law also justified summary judgment for respondents. III The petition for certiorari raises three questions. One involves the scope of the Speech or Debate Clause; another involves First Amendment claims; a third concerns the appropriateness of summary judgment, embracing both a constitutional issue and a state-law issue. The constitutional issue arose from the District Court's view that solicitude for the First Amendment required a more hospitable judicial attitude toward granting summary judgment in a libel case. See n. The state-law issue arose because the District Court concluded that, as a matter of local law, Hutchinson could not recover. Our practice is to avoid reaching constitutional questions if a dispositive nonconstitutional ground is available. See, e.g., 13 (10). Were we to follow that course here we would remand to the Court of Appeals to review the state-law question which it did not consider. If the District Court correctly decided the state-law question, resolution of the First Amendment issue would be unnecessary. We conclude, however, that special considerations in this case mandate that we first resolve the constitutional questions. *123 The purpose of the Speech or Debate Clause is to protect Members of Congress "not only from the consequences of litigation's results but also from the burden of defending themselves." (167). See also 421 U.S. 41, (175). If the respondents have immunity under the Clause, no other questions need be considered for they may "not be questioned in any other Place." Ordinarily, consideration of the constitutional issue would end with resolution of the Speech or Debate Clause question. We would then remand for the Court of Appeals to consider the issue of state law. Here, however, there is an indication that the Court of Appeals would not affirm the state-law holding. We surmise this because, in explaining its conclusion that the press release and the newsletters were protected by the Speech or Debate Clause, the Court of Appeals stated: "[T]he statements in the press release intimating that Dr. Hutchinson had made a personal fortune and that the research was `perhaps duplicative' may be defamatory false-hoods." 57 F.2d, n. 15. In light of that surmise, what we said in Wolston v. Reader's Digest Assn., Inc., post, at 161 n. 2, is also appropriate here: "We assume that the Court of Appeals is as familiar as we are with the general principle that dispositive issues of statutory and local law are to be treated before reaching constitutional issues. We interpret the footnote to the Court of Appeals opinion in this case, where jurisdiction is based upon diversity of citizenship, to indicate its view that the appeal could not be decided without reaching the constitutional question." In light of the necessity to do so, we therefore reach the First Amendment issue as well as the Speech or Debate Clause question. IV In support of the Court of Appeals holding that newsletters and press releases are protected by the Speech or Debate Clause, respondents rely upon both historical precedent and *124 present-day congressional practices. They contend that impetus for the Speech or Debate Clause privilege in our Constitution came from the history of parliamentary efforts to protect the right of members to criticize the spending of the Crown and from the prosecution of a Speaker of the House of Commons for publication of a report outside of Parliament. Respondents also contend that in the modern day very little speech or debate occurs on the floor of either House; from this they argue that press releases and newsletters are necessary for Members of Congress to communicate with other Members. For example, in his deposition Proxmire testified: "I have found in 1 years in the Senate that very often a statement on the floor of the Senate or something that appears in the Congressional Record misses the attention of most members of the Senate, and virtually all members of the House, because they don't read the Congressional Record. If they are handed a news release, or something, that is going to call it to their attention" App. 220. Respondents also argue that an essential part of the duties of a Member of Congress is to inform constituents, as well as other Members, of the issues being considered. The Speech or Debate Clause has been directly passed on by this Court relatively few times in 10 years. ; (172); United (172); United 383 U.S. 16 (166); Literal reading of the Clause would, of course, confine its protection narrowly to a "Speech or Debate in either House." But the Court has given the Clause a practical rather than a strictly literal reading which would limit the protection to utterances made within the four walls of either Chamber. Thus, we have held that committee hearings are protected, even if held outside the Chambers; committee reports are also protected. *125 Cf. v. 4 Mass. *1, *27-*28 (1808). The gloss going beyond a strictly literal reading of the Clause has not, however, departed from the objective of protecting only legislative activities. In Thomas Jefferson's view: "[The privilege] is restrained to things done in the House in a Parliamentary course For [the Member] is not to have privilege contra morem parliamentarium, to exceed the bounds and limits of his place and duty." T. Jefferson, A Manual of Parliamentary Practice 20 (14), reprinted in The Complete Jefferson 704 (S. Padover ed. 143). One of the draftsmen of the Constitution, James Wilson, expressed a similar thought in lectures delivered between 170 and 172 while he was a Justice of this Court. He rejected Blackstone's statement, 1 W. Blackstone, Commentaries *164, that Parliament's privileges were preserved by keeping them indefinite: "Very different is the case with regard to the legislature of the United The great maxims, upon which our law of parliament is founded, are defined and ascertained in our constitutions. The arcana of privilege, and the arcana of prerogative, are equally unknown to our system of jurisprudence." 2 J. Wilson, Works 35 (J. Andrews ed. 186).[12] In this respect, Wilson was underscoring the very purpose of our Constitution—inter alia, to provide written definitions of the powers, privileges, and immunities granted rather than rely on evolving constitutional concepts identified from diverse sources as in English law. Like thoughts were expressed *126 by Joseph Story, writing in the first edition of his Commentaries on the Constitution in 1833: "But this privilege is strictly confined to things done in the course of parliamentary proceedings, and does not cover things done beyond the place and limits of duty." 863, at 32. Cf. v. In United we acknowledged the historical roots of the Clause going back to the long struggle between the English House of Commons and the Tudor and Stuart monarchs when both criminal and civil processes were employed by Crown authority to intimidate legislators. Yet we cautioned that the Clause. "must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government rather than the English parliamentary system. [T]heir Parliament is the supreme authority, not a coordinate branch. Our speech or debate privilege was designed to preserve legislative independence, not supremacy." Nearly a century ago, in this Court held that the Clause extended "to things generally done in a session of the House by one of its members in relation to the business before it." (Emphasis added.) More recently we expressed a similar definition of the scope of the Clause: "Legislative acts are not all-encompassing. The hear of the Clause is speech or debate in either House. Inso far as the Clause is construed to reach other matters, the must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the *127 Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but `only when necessary to prevent indirect impairment of such deliberations.'" (quoting United v. Doe, (CA1 172)) Cf. -314, 317; United 515-516, 517-518; 23 U.S. 76, (134). Whatever imprecision there may be in the term "legislative activities," it is clear that nothing in history or in the explicit language of the Clause suggests any intention to create an absolute privilege from liability or suit for defamatory statements made outside the Chamber. In we observed: "The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators." Claims under the Clause going beyond what is needed to protect legislative independence are to be closely scrutinized. In we took note of this: "The authors of our Constitution were well aware of the history of both the need for the privilege and the abuses that could flow from too sweeping safeguards. In order to preserve other values, they wrote the privilege so that it tolerates and protects behavior on the part of Members not tolerated and protected when done by other citizens, but the shield does not extend beyond what is necessary to preserve the integrity of the legislative process." Indeed, the precedents abundantly support the conclusion that a Member may be held liable for republishing defamatory *128 statements originally made in either House. We perceive no basis for departing from that long-established rule. Mr. Justice Story in his Commentaries, for example, explained that there was no immunity for republication of a speech first delivered in Congress: "Therefore, although a speech delivered in the house of commons is privileged, and the member cannot be questioned respecting it elsewhere; yet, if he publishes his speech, and it contains libellous matter, he is liable to an action and prosecution therefor, as in common cases of libel. And the same principles seem applicable to the privilege of debate and speech in congress. No man ought to have a right to defame others under colour of a performance of the duties of his office. And if he does so in the actual discharge of his duties in congress, that furnishes no reason, why he should be enabled through the medium of the press to destroy the reputation, and invade the repose of other citizens. It is neither within the scope of his duty, nor in furtherance of public rights, or public policy. Every citizen has as good a right to be protected by the laws from malignant scandal, and false charges, and defamatory imputations, as a member of congress has to utter them in his seat."[13] 2 J. Story, Commentaries *12 on the Constitution 863, p. 32 (1833) See also L. Cushing, Elements of the Law and Practice of Legislative Assemblies in the United of America ¶ 604, p. 244 (1st ed. reprint 171). Story summarized the state of the common law at the time the Constitution was drafted, recalling that Parliament had by then succeeded in its struggle to secure freedom of debate. But the privilege did not extend to republication of libelous remarks even though first made in Parliament. Thus, in King v. Lord Abingdon, 1 Esp. 225, 170 Eng. Rep. 337 (N.P. 174), Lord Chief Justice Kenyon rejected Lord Abingdon's argument that parliamentary privilege protected him from suit for republication of a speech first made in the House of Lords: "[A]s to the words in question, had they been spoken in the House of Lords, and confined to its walls, [the] Court would have had no jurisdiction to call his Lordship before them, to answer for them as an offence; but in the present case, the offence was the publication under his authority and sanction, and at his expense: a member of Parliament had certainly a right to publish his speech, but that speech should not be made the vehicle of slander against any individual; if it was, it was a libel" 170 Eng. Rep., at 338. A similar result was reached in King v. Creevey, 1 M. & S. 273, 105 Eng. Rep. 102 (K. B. 1813). *130 In -626, we recognized that the doctrine denying immunity for republication had been accepted in the United : "[P]rivate publication by Senator Gravel was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence." We reaffirmed that principle in -315: "A Member of Congress may not with impunity publish a libel from the speaker's stand in his home district, and clearly the Speech or Debate Clause would not protect such an act even though the libel was read from an official committee report. The reason is that republishing a libel under such circumstances is not an essential part of the legislative process and is not part of that deliberative process `by which Members participate in committee and House proceedings.'" (Footnote omitted; quoting from)[14] We reach a similar conclusion here. A speech by Proxmire in the Senate would be wholly immune and would be available to other Members of Congress and the public in the Congressional Record. But neither the newsletters nor the press release was "essential to the deliberations of the Senate" and neither was part of the deliberative process. Respondents, however, argue that newsletters and press releases are essential to the functioning of the Senate; without *131 them, they assert, a Senator cannot have a significant impact on the other Senators. We may assume that a Member's published statements exert some influence on other votes in the Congress and therefore have a relationship to the legislative and deliberative process. But in we rejected respondents' expansive reading of the Clause: "It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include preparing so-called `news letters' to constituents, news releases, and speeches delivered outside the Congress." There we went on to note that United 383 U.S. 16 (166), had carefully distinguished between what is only "related to the due functioning of the legislative process," and what constitutes the legislative process entitled to immunity under the Clause: "In stating that those things [Johnson's attempts to influence the Department of Justice] `in no wise related to the due functioning of the legislative process' were not covered by the privilege, the Court did not in any sense imply as a corollary that everything that `related' to the office of a Member was shielded by the Clause. Quite the contrary, in Johnson we held, citing that only acts generally done in the course of the process of enacting legislation were protected. "In no case has this Court ever treated the Clause as protecting all conduct relating to the legislative process. ". In its narrowest scope, the Clause is a very large, albeit essential, grant of privilege. It has enabled reckless men to slander [by speech or debate] and even destroy *132 others with impunity, but that was the conscious choice of the Framers." -516. (Emphasis in original.) We are unable to discern any "conscious choice" to grant immunity for defamatory statements scattered far and wide by mail, press, and the electronic media. Respondents also argue that newsletters and press releases are privileged as part of the "informing function" of Congress. Advocates of a broad reading of the "informing function" sometimes tend to confuse two uses of the term "informing." In one sense, Congress informs itself collectively by way of hearings of its committees. It was in that sense that Woodrow Wilson used "informing" in a statement quoted by respondents. In reality, Wilson's statement related to congressional efforts to learn of the activities of the Executive Branch and administrative agencies; he did not include wideranging inquiries by individual Members on subjects of their choice. Moreover, Wilson's statement itself clearly implies a distinction between the informing function and the legislative function: "Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. [T]he only really self-governing people is that people which discusses and interrogates its administration." W. Wilson, Congressional Government 303 (18). It is in this narrower Wilsonian sense that this Court has employed "informing" in previous cases holding that congressional *133 efforts to inform itself through committee hearings are part of the legislative function. The other sense of the term, and the one relied upon by respondents, perceives it to be the duty of Members to tell the public about their activities. Valuable and desirable as it may be in broad terms, the transmittal of such information by individual Members in order to inform the public and other Members is not a part of the legislative function or the deliberations that make up the legislative process.[15] As a result, transmittal of such information by press releases and newsletters is not protected by the Speech or Debate Clause. is not to the contrary. It dealt only with reports from congressional committees, and held that Members of Congress could not be held liable for voting to publish a report. Voting and preparing committee reports are the individual and collective expressions of opinion within the legislative process. As such, they are protected by the Speech or Debate Clause. Newsletters and press releases, by contrast, are primarily means of informing those outside the legislative forum; they represent the views and will of a single Member. It does not disparage either their value or their importance to hold that they are not entitled to the protection of the Speech or Debate Clause. V Since New York Times[16] this Court has sought to define the accommodation *134 required to assure the vigorous debate on the public issues that the First Amendment was designed to protect while at the same time affording protection to the reputations of individuals. E. g., Time, (176); (174); 403 U.S. 2 (171); St. 30 (168); Curtis Publishing (167); (166). In the Court offered a general definition of "public figures": "For the most part those who attain this status [of public figure] have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment." It is not contended that Hutchinson attained such prominence that he is a public figure for all Instead, respondents have argued that the District Court and the Court of Appeals were correct in holding that Hutchinson is a public figure for the limited purpose of comment on his receipt of federal funds for research projects. That conclusion was based upon two factors: first, Hutchinson's successful application for federal funds and the reports in local newspapers of the federal grants; second, Hutchinson's access to the media, as demonstrated by the fact that some newspapers and wire services reported his response to the announcement of the Golden Fleece Award. Neither of those factors demonstrates *135 that Hutchinson was a public figure prior to the controversy engendered by the Golden Fleece Award; his access, such as it was, came after the alleged libel. On this record, Hutchinson's activities and public profile are much like those of countless members of his profession. His published writings reach a relatively small category of professionals concerned with research in human behavior. To the extent the subject of his published writings became a matter of controversy, it was a consequence of the Golden Fleece Award. Clearly, those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. See Wolston v. Reader's Digest Assn., Inc., post, at 167-168. Hutchinson did not thrust himself or his views into public controversy to influence others. Respondents have not identified such a particular controversy; at most, they point to concern about general public expenditures. But that concern is shared by most and relates to most public expenditures; it is not sufficient to make Hutchinson a public figure. If it were, everyone who received or benefited from the myriad public grants for research could be classified as a public figure—a conclusion that our previous opinions have rejected. The "use of such subject-matter classifications to determine the extent of constitutional protection afforded defamatory falsehoods may too often result in an improper balance between the competing interests in this area." Time, Moreover, Hutchinson at no time assumed any role of public prominence in the broad question of concern about expenditures. Neither his applications for federal grants nor his publications in professional journals can be said to have invited that degree of public attention and comment on his receipt of federal grants essential to meet the public figure level. The petitioner in had published books and articles on legal issues; he had been *136 active in local community affairs. Nevertheless, the Court concluded that his activities did not make him a public figure. Finally, we cannot agree that Hutchinson had such access to the media that he should be classified as a public figure. Hutchinson's access was limited to responding to the announcement of the Golden Fleece Award. He did not have the regular and continuing access to the media that is one of the accouterments of having become a public figure. We therefore reverse the judgment of the Court of Appeals and remand the case to the Court of Appeals for further proceedings consistent with this opinion. Reversed and remanded. MR. JUSTICE STEWART joins in all but footnote 10 of the Court's opinion. He cannot agree that the question whether a communication by a Congressman or a member of his staff with a federal agency is entitled to Speech or Debate Clause immunity depends upon whether the communication is defamatory. Because telephone calls to federal agency officials are a routine and essential part of the congressional oversight function, he believes such activity is protected by the Speech or Debate Clause. MR.

Justice Stevens

majority

Samantar v. Yousuf

https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/

https://www.courtlistener.com/api/rest/v3/clusters/147531/

2009-059

From 1980 to 1986 petitioner Mohamed Ali Samantar was the First Vice President and Minister of Defense of Somalia, and from 1987 to 1990 he served as its Prime Minister. Respondents are natives of Somalia who allege that they, or members of their families, were the victims of torture and extrajudicial killings during those years. They seek damages from petitioner based on his alleged au thorization of those acts. The narrow question we must decide is whether the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), 28 U.S. C. §§1330, 1602 et seq., pro vides petitioner with immunity from suit based on actions taken in his official capacity. We hold that the FSIA does not govern the determination of petitioner’s immunity from suit. I Respondents are members of the Isaaq clan, which included well-educated and prosperous Somalis who were subjected to systematic persecution during the 1980’s by the military regime then governing Somalia. They allege that petitioner exercised command and control over mem 2 SAMANTAR v. YOUSUF Opinion of the Court bers of the Somali military forces who tortured, killed, or arbitrarily detained them or members of their families; that petitioner knew or should have known of the abuses perpetrated by his subordinates; and that he aided and abetted the commission of these abuses.1 Respondents’ complaint sought damages from petitioner pursuant to the Torture Victim Protection Act of 1991, 106 Stat. 73, note following 28 U.S. C. §1350, and the Alien Tort Statute, 28 U.S. C. §1350. Petitioner, who was in charge of Somalia’s armed forces before its military regime collapsed, fled Somalia in 1991 and is now a resident of Virginia. The United States has not recognized any entity as the gov ernment of Somalia since the fall of the military regime. See Brief for United States as Amicus Curiae 4. Respondents filed their complaint in November 2004, and petitioner promptly moved to dismiss. The District Court stayed the proceedings to give the State Depart ment an opportunity to provide a statement of interest regarding petitioner’s claim of sovereign immunity. Each month during the ensuing two years, petitioner advised the court that the State Department had the matter “ ‘still under consideration.’ ” No. 1:04cv1360 (ED Va., Aug. 1, 2007), App. to Pet. for Cert. 44a. In 2007, having received no response from the State Department, the District Court reinstated the case on its active docket. The court con cluded that it did not have subject-matter jurisdiction and granted petitioner’s motion to dismiss. The District Court’s decision rested squarely on the —————— 1 Although we do not set out respondents’ allegations in detail, the District Court’s written opinion contains a comprehensive summary, describing not only the abuses respondents suffered but also the his torical context in which the abuses occurred, as well as some of the attempts to establish a stable government in Somalia in recent years. See No. 1:04cv1360 (ED Va., Aug. 1, 2007), App. to Pet. for Cert. 31a– 43a. Cite as: 560 U. S. ____ (2010) 3 Opinion of the Court FSIA.2 The FSIA provides that a “foreign state shall be immune from the jurisdiction” of both federal and state courts except as provided in the Act, 28 U.S. C. §1604, and the District Court noted that none of the parties had argued that any exception was applicable, App. to Pet. for Cert. 46a–47a. Although characterizing the statute as silent on its applicability to the officials of a foreign state, the District Court followed appellate decisions holding that a foreign state’s sovereign immunity under the Act extends to “ ‘an individual acting in his official capacity on behalf of a foreign state,’ ” but not to “ ‘an official who acts beyond the scope of his authority.’ ” Id., at 47a (quoting Velasco v. Government of Indonesia, 370 F.3d 392, 398, 399 (CA4 2004)). The court rejected respondents’ argu ment that petitioner was necessarily acting beyond the scope of his authority because he allegedly violated inter national law.3 The Court of Appeals reversed, rejecting the District Court’s ruling that the FSIA governs petitioner’s immu nity from suit. It acknowledged “the majority view” —————— 2 Petitioner argued that, in addition to his immunity under the FSIA, the complaint should be dismissed on a number of other grounds, which the District Court did not reach. See id., at 45a, n. 11. 3 Because we hold that the FSIA does not govern whether an individ ual foreign official enjoys immunity from suit, we need not reach respondents’ argument that an official is not immune under the FSIA for acts of torture and extrajudicial killing. See Brief for Respondents 51–53. We note that in determining petitioner had not acted beyond the scope of his authority, the District Court afforded great weight to letters from the Somali Transitional Federal Government (TFG) to the State Department, App. to Pet. for Cert. 55a, in which the TFG sup ported petitioner’s claim of immunity and stated “the actions attributed to [petitioner] in the lawsuit . . . would have been taken by [petitioner] in his official capacities,” App. 104. Although the District Court de scribed the TFG as “recognized by the United States as the governing body in Somalia,” App. to Pet. for Cert. 54a, the United States does not recognize the TFG (or any other entity) as the government of Somalia, see Brief for United States as Amicus Curiae 5. 4 SAMANTAR v. YOUSUF Opinion of the Court among the Circuits that “the FSIA applies to individual officials of a foreign state.” 552 F.3d 371, 378 (CA4 2009).4 It disagreed with that view, however, and con cluded, “based on the language and structure of the stat ute, that the FSIA does not apply to individual foreign government agents like [petitioner].” Id., at 381.5 Having found that the FSIA does not govern whether petitioner enjoys immunity from suit, the Court of Appeals re manded the case for further proceedings, including a determination of whether petitioner is entitled to immu nity under the common law. Id., at 383–384. We granted certiorari. 557 U. S. ___ (2009). II The doctrine of foreign sovereign immunity developed as a matter of common law long before the FSIA was enacted in 1976. In Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983), we explained that in Schooner Exchange v. McFaddon, 7 Cranch 116 (1812), “Chief Jus tice Marshall concluded that . . . the United States had impliedly waived jurisdiction over certain activities of —————— 4 Compare 552 F.3d, at 381 (holding the FSIA does not govern the immunity of individual foreign officials), and Enahoro v. Abubakar, 408 F.3d 877, 881–882 (CA7 2005) (same), with Chuidian v. Philippine Nat. Bank, 912 F.2d 1095, 1103 (CA9 1990) (concluding that a suit against an individual official for acts committed in his official capacity must be analyzed under the FSIA), In re Terrorist Attacks on September 11, 2001, 538 F.3d 71, 83 (CA2 2008) (same), Keller v. Central Bank of Nigeria, 277 F.3d 811, 815 (CA6 2002) (same), Byrd v. Corporacion Forestal y Industrial de Olancho S. A., 182 F.3d 380, 388 (CA5 1999) (same), and El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 671 (CADC 1996) (same). 5 As an alternative basis for its decision, the Court of Appeals held that even if a current official is covered by the FSIA, a former official is not. See 552 F.3d, at 381–383. Because we agree with the Court of Appeals on its broader ground that individual officials are not covered by the FSIA, petitioner’s status as a former official is irrelevant to our analysis. Cite as: 560 U. S. ____ (2010) 5 Opinion of the Court foreign sovereigns.” The Court’s specific holding in Schoo ner Exchange was that a federal court lacked jurisdiction over “a national armed vessel . . . of the emperor of France,” id., at 146, but the opinion was interpreted as extending virtually absolute immunity to foreign sover eigns as “a matter of grace and comity,” Verlinden, 461 U.S., at 486. Following Schooner Exchange, a two-step procedure developed for resolving a foreign state’s claim of sovereign immunity, typically asserted on behalf of seized vessels. See, e.g., Republic of Mexico v. Hoffman, 324 U.S. 30, 34– 36 (1945); Ex parte Peru, 318 U.S. 578, 587–589 (1943); Compania Espanola de Navegacion Maritima, S. A. v. The Navemar, 303 U.S. 68, 74–75 (1938). Under that proce dure, the diplomatic representative of the sovereign could request a “suggestion of immunity” from the State De partment. Ex parte Peru, 318 U.S., at 581. If the request was granted, the district court surrendered its jurisdic tion. Id., at 588; see also Hoffman, 324 U.S., at 34. But “in the absence of recognition of the immunity by the Department of State,” a district court “had authority to decide for itself whether all the requisites for such immu nity existed.” Ex parte Peru, 318 U.S., at 587; see also Compania Espanola, 303 U.S., at 75 (approving judicial inquiry into sovereign immunity when the “Department of State . . . declined to act”); Heaney v. Government of Spain, 445 F.2d 501, 503, and n. 2 (CA2 1971) (evaluating sov ereign immunity when the State Department had not responded to a request for its views). In making that decision, a district court inquired “whether the ground of immunity is one which it is the established policy of the [State Department] to recognize.” Hoffman, 324 U.S., at 36. Although cases involving individual foreign officials as defendants were rare, the same two-step procedure was typically followed when a foreign official asserted immu nity. See, e.g., Heaney, 445 F.2d, at 504–505; Waltier v. 6 SAMANTAR v. YOUSUF Opinion of the Court Thomson, 189 F. Supp. 319 (SDNY 1960).6 Prior to 1952, the State Department followed a general practice of requesting immunity in all actions against friendly sovereigns, but in that year the Department announced its adoption of the “restrictive” theory of sover eign immunity. Verlinden, 461 U.S., at 486–487; see also Letter from Jack B. Tate, Acting Legal Adviser, Depart ment of State, to Acting Attorney General Philip B. Perlman (May 19, 1952), reprinted in 26 Dept. State Bull. 984–985 (1952). Under this theory, “immunity is confined to suits involving the foreign sovereign’s public acts, and does not extend to cases arising out of a foreign state’s strictly commercial acts.” Verlinden, 461 U.S., at 487. This change threw “immunity determinations into some disarray,” because “political considerations sometimes led the Department to file ‘suggestions of immunity in cases where immunity would not have been available under the restrictive theory.’ ” Republic of Austria v. Altmann, 541 U.S. 677, 690 (2004) (quoting Verlinden, 461 U.S., at 487). Congress responded to the inconsistent application of sovereign immunity by enacting the FSIA in 1976. Altmann, 541 U.S., at 690–691; see also Verlinden, 461 U.S., at 487–488. Section 1602 describes the Act’s two primary purposes: (1) to endorse and codify the restrictive theory of sovereign immunity, and (2) to transfer primary responsibility for deciding “claims of foreign states to immunity” from the State Department to the courts.7 —————— 6 Diplomatic and consular officers could also claim the “specialized immunities” accorded those officials, Restatement (Second) of Foreign Relations Law of the United States §66, Comment b (1964–1965) (hereinafter Restatement), and officials qualifying as the “head of state” could claim immunity on that basis, see Schooner Exchange v. McFad don, 7 Cranch 116, 137 (1812) (describing “the exemption of the person of the sovereign” from “a jurisdiction incompatible with his dignity”). 7 The full text of §1602, entitled “Findings and declaration of pur Cite as: 560 U. S. ____ (2010) 7 Opinion of the Court After the enactment of the FSIA, the Act—and not the pre-existing common law—indisputably governs the de termination of whether a foreign state is entitled to sover eign immunity. What we must now decide is whether the Act also covers the immunity claims of foreign officials. We begin with the statute’s text and then consider petitioner’s reliance on its history and purpose. III The FSIA provides that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States” except as provided in the Act. §1604. Thus, if a defendant is a “foreign state” within the meaning of the Act, then the defendant is immune from jurisdiction unless one of the exceptions in the Act applies. See §§1605–1607 (enumerating exceptions). The Act, if it applies, is the “sole basis for obtaining jurisdiction over a foreign state in federal court.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989). The question we face in this case is whether an individual sued for conduct undertaken in his official capacity is a “foreign state” within the meaning of the Act. The Act defines “foreign state” in §1603 as follows: “(a) A ‘foreign state’ . . . includes a political subdivi —————— pose,” reads as follows: “The Congress finds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.” 8 SAMANTAR v. YOUSUF Opinion of the Court sion of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b). “(b) An ‘agency or instrumentality of a foreign state’ means any entity— “(1) which is a separate legal person, corporate or otherwise, and “(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and “(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title, nor created under the laws of any third country.” The term “foreign state” on its face indicates a body politic that governs a particular territory. See, e.g., Re statement §4 (defining “state” as “an entity that has a defined territory and population under the control of a government and that engages in foreign relations”). In §1603(a), however, the Act establishes that “foreign state” has a broader meaning, by mandating the inclusion of the state’s political subdivisions, agencies, and instrumentali ties. Then, in §1603(b), the Act specifically delimits what counts as an agency or instrumentality. Petitioner argues that either “foreign state,” §1603(a), or “agency or instru mentality,” §1603(b), could be read to include a foreign official. Although we agree that petitioner’s interpretation is literally possible, our analysis of the entire statutory text persuades us that petitioner’s reading is not the meaning that Congress enacted. We turn first to the term “agency or instrumentality of a foreign state,” §1603(b). It is true that an individual official could be an “agency or instrumentality,” if that term is given the meaning of “any thing or person through which action is accomplished,” In re Terrorist Attacks on Cite as: 560 U. S. ____ (2010) 9 Opinion of the Court Sept. 11, 2001, 538 F.3d 71, 83 (CA2 2008). But Congress has specifically defined “agency or instrumentality” in the FSIA, and all of the textual clues in that definition cut against such a broad construction. First, the statute specifies that “ ‘agency or instrumen tality . . .’ means any entity” matching three specified characteristics, §1603(b) (emphasis added), and “entity” typically refers to an organization, rather than an individ ual. See, e.g., Black’s Law Dictionary 612 (9th ed. 2009). Furthermore, several of the required characteristics apply awkwardly, if at all, to individuals. The phrase “separate legal person, corporate or otherwise,” §1603(b)(1), could conceivably refer to a natural person, solely by virtue of the word “person.” But the phrase “separate legal person” typically refers to the legal fiction that allows an entity to hold personhood separate from the natural persons who are its shareholders or officers. Cf. First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 625 (1983) (“Separate legal personality has been described as ‘an almost indispensable aspect of the public corpora tion’ ”). It is similarly awkward to refer to a person as an “organ” of the foreign state. See §1603(b)(2). And the third part of the definition could not be applied at all to a natural person. A natural person cannot be a citizen of a State “as defined in section 1332(c) and (e),” §1603(b)(3), because those subsections refer to the citizenship of corpo rations and estates. Nor can a natural person be “created under the laws of any third country.” Ibid.8 Thus, the —————— 8 Petitioner points out that §1603(b)(3) describes only which defen dants cannot be agencies or instrumentalities. He suggests that it therefore tells us nothing about which defendants can be covered by that term. Brief for Petitioner 46. Even if so, reading §1603(b) as petitioner suggests would leave us with the odd result that a corpora tion that is the citizen of a state is excluded from the definition under §1603(b)(3), and thus not immune, whereas a natural person who is the citizen of a state is not excluded, and thus retains his immunity. 10 SAMANTAR v. YOUSUF Opinion of the Court terms Congress chose simply do not evidence the intent to include individual officials within the meaning of “agency or instrumentality.”9 Cf. Dole Food Co. v. Patrickson, 538 U.S. 468, 474 (2003) (describing §1603(b) as containing “indicia that Congress had corporate formalities in mind”). Petitioner proposes a second textual route to including an official within the meaning of “foreign state.” He ar gues that the definition of “foreign state” in §1603(a) sets out a nonexhaustive list that “includes” political subdivi sions and agencies or instrumentalities but is not so lim ited. See Brief for Petitioner 22–23. It is true that use of the word “include” can signal that the list that follows is meant to be illustrative rather than exhaustive.10 And, to —————— 9 Nor does anything in the legislative history suggest that Congress intended the term “agency or instrumentality” to include individuals. On the contrary, the legislative history, like the statute, speaks in terms of entities. See, e.g., H. R. Rep. No. 94–1487, p. 15 (1976) (here inafter H. R. Rep.) (“The first criterion, that the entity be a separate legal person, is intended to include a corporation, association, founda tion, or any other entity which, under the law of the foreign state where it was created, can sue or be sued in its own name”). JUSTICE SCALIA may well be correct that it is not strictly necessary to confirm our reading of the statutory text by consulting the legislative history, see post, at 1–2 (opinion concurring in judgment). But as the Court explained some years ago in an opinion authored by Justice White: “As for the propriety of using legislative history at all, common sense suggests that inquiry benefits from reviewing additional information rather than ignoring it. As Chief Justice Marshall put it, ‘[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived.’ United States v. Fisher, 2 Cranch 358, 386 (1805). Legislative history materials are not generally so misleading that jurists should never employ them in a good-faith effort to discern legislative intent. Our precedents demonstrate that the Court’s practice of utilizing legislative history reaches well into its past. See, e.g., Wallace v. Parker, 6 Pet. 680, 687–690 (1832). We suspect that the practice will likewise reach well into the future.” Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 611–612, n. 4 (1991) (altera tion in original). 10 See 2A N. Singer & J. Singer, Sutherland Statutory Construction Cite as: 560 U. S. ____ (2010) 11 Opinion of the Court be sure, there are fewer textual clues within §1603(a) than within §1603(b) from which to interpret Congress’ silence regarding foreign officials. But even if the list in §1603(a) is merely illustrative, it still suggests that “foreign state” does not encompass officials, because the types of defen dants listed are all entities. See Russell Motor Car Co. v. United States, 261 U.S. 514, 519 (1923) (“[A] word may be known by the company it keeps”). Moreover, elsewhere in the FSIA Congress expressly mentioned officials when it wished to count their acts as equivalent to those of the foreign state, which suggests that officials are not included within the unadorned term “foreign state.” Cf. Kimbrough v. United States, 552 U.S. 85, 103 (2007) (“Drawing meaning from silence is particu larly inappropriate . . . [when] Congress has shown that it knows how to [address an issue] in express terms”). For example, Congress provided an exception from the general grant of immunity for cases in which “money damages are sought against a foreign state” for an injury in the United States “caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office.” §1605(a)(5) (emphasis added). The same reference to officials is made in a similar, later enacted exception. See 28 U.S. C. A. §1605A(a)(1) (Supp. 2009) (eliminating immunity for suits “in which money damages are sought against a foreign state” for certain acts “engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency”); see also §1605A(c) (creating a cause of action against the “foreign state” and “any official, employee, or —————— §47.7, p. 305 (7th ed. 2007) (“[T]he word ‘includes’ is usually a term of enlargement, and not of limitation” (some internal quotation marks omitted)). 12 SAMANTAR v. YOUSUF Opinion of the Court agent” thereof).11 If the term “foreign state” by definition includes an individual acting within the scope of his office, the phrase “or of any official or employee . . .” in 28 U.S. C. §1605(a)(5) would be unnecessary. See Dole Food Co., 538 U.S., at 476–477 (“[W]e should not construe the statute in a manner that is strained and, at the same time, would render a statutory term superfluous”). Other provisions of the statute also point away from reading “foreign state” to include foreign officials. Con gress made no express mention of service of process on individuals in §1608(a), which governs service upon a foreign state or political subdivision. Although some of the methods listed could be used to serve individuals—for example, by delivery “in accordance with an applicable international convention,” §1608(a)(2)—the methods specified are at best very roundabout ways of serving an individual official. Furthermore, Congress made specific remedial choices for different types of defendants. See §1606 (allowing punitive damages for an agency or in strumentality but not for a foreign state); §1610 (affording a plaintiff greater rights to attach the property of an agency or instrumentality as compared to the property of a foreign state). By adopting petitioner’s reading of “foreign state,” we would subject claims against officials to the more limited remedies available in suits against states, —————— 11 Petitioner argues that §1605A abrogates immunity for certain acts by individual officials, which would be superfluous if the officials were not otherwise immune. See Brief for Petitioner 41–43. But the import of §1605A is precisely the opposite. First, §1605A(a)(1) eliminates the immunity of the state for certain acts of its officers; it says a “foreign state shall not be immune” in a suit “in which money damages are sought against a foreign state.” As it does not expressly refer to the immunity of individual officers, it adds nothing to petitioner’s argu ment. Second, the creation of a cause of action against both the “for eign state” and “any official, employee, or agent” thereof, §1605A(c), reinforces the idea that “foreign state” does not by definition include foreign officials. Cite as: 560 U. S. ____ (2010) 13 Opinion of the Court without so much as a whisper from Congress on the sub ject. (And if we were instead to adopt petitioner’s other textual argument, we would subject those claims to the different, more expansive, remedial scheme for agencies). The Act’s careful calibration of remedies among the listed types of defendants suggests that Congress did not mean to cover other types of defendants never mentioned in the text. In sum, “[w]e do not . . . construe statutory phrases in isolation; we read statutes as a whole.” United States v. Morton, 467 U.S. 822, 828 (1984). Reading the FSIA as a whole, there is nothing to suggest we should read “foreign state” in §1603(a) to include an official acting on behalf of the foreign state, and much to indicate that this meaning was not what Congress enacted.12 The text does not ex pressly foreclose petitioner’s reading, but it supports the view of respondents and the United States that the Act does not address an official’s claim to immunity. IV Petitioner argues that the FSIA is best read to cover his claim to immunity because of its history and purpose. As discussed at the outset, one of the primary purposes of the FSIA was to codify the restrictive theory of sovereign immunity, which Congress recognized as consistent with extant international law. See §1602. We have observed —————— 12 Nor is it the case that the FSIA’s “legislative history does not even hint of an intent to exclude individual officials,” Chuidian, 912 F.2d, at 1101. The legislative history makes clear that Congress did not intend the FSIA to address position-based individual immunities such as diplomatic and consular immunity. H. R. Rep., at 12 (“The bill is not intended . . . . to affect either diplomatic or consular immunity”). It also suggests that general “official immunity” is something separate from the subject of the bill. See id., at 23 (“The bill does not attempt to deal with questions of discovery. . . . [I]f a plaintiff sought to depose a diplomat in the United States or a high-ranking official of a foreign government, diplomatic and official immunity would apply”). 14 SAMANTAR v. YOUSUF Opinion of the Court that a related purpose was “codification of international law at the time of the FSIA’s enactment,” Permanent Mission of India to United Nations v. City of New York, 551 U.S. 193, 199 (2007), and have examined the relevant common law and international practice when interpreting the Act, id., at 200–201. Because of this relationship between the Act and the common law that it codified, petitioner argues that we should construe the FSIA con sistently with the common law regarding individual im munity, which—in petitioner’s view—was coextensive with the law of state immunity and always immunized a for eign official for acts taken on behalf of the foreign state. Even reading the Act in light of Congress’ purpose of codifying state sovereign immunity, however, we do not think that the Act codified the common law with respect to the immunity of individual officials. The canon of construction that statutes should be inter preted consistently with the common law helps us inter pret a statute that clearly covers a field formerly governed by the common law.13 But the canon does not help us to decide the antecedent question whether, when a statute’s coverage is ambiguous, Congress intended the statute to govern a particular field—in this case, whether Congress intended the FSIA to supersede the common law of official immunity.14 —————— 13 Congress “is understood to legislate against a background of com mon-law . . . principles,” Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U.S. 104, 108 (1991), and when a statute covers an issue previ ously governed by the common law, we interpret the statute with the presumption that Congress intended to retain the substance of the common law. See Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952) (“Statutes which invade the common law . . . are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident”). 14 We find similarly inapposite petitioner’s invocation of the canon that a statute should be interpreted in compliance with international law, see Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804), Cite as: 560 U. S. ____ (2010) 15 Opinion of the Court Petitioner argues that because state and official immu nities are coextensive, Congress must have codified official immunity when it codified state immunity. See Brief for Petitioner 26–30. But the relationship between a state’s immunity and an official’s immunity is more complicated than petitioner suggests, although we need not and do not resolve the dispute among the parties as to the precise scope of an official’s immunity at common law. The very authority to which petitioner points us, and which we have previously found instructive, see, e.g., Permanent Mission, 551 U.S., at 200, states that the immunity of individual officials is subject to a caveat not applicable to any of the other entities or persons15 to which the foreign state’s immunity extends. The Restatement provides that the “immunity of a foreign state . . . extends to . . . any other public minister, official, or agent of the state with respect to acts performed in his official capacity if the effect of exercising jurisdiction would be to enforce a rule of law against the state.” Restatement §66 (emphasis added).16 —————— and his argument that foreign relations and the reciprocal protection of United States officials abroad would be undermined if we do not adopt his reading of the Act. Because we are not deciding that the FSIA bars petitioner’s immunity but rather that the Act does not address the question, we need not determine whether declining to afford immunity to petitioner would be consistent with international law. 15 The Restatement does not apply this caveat to the head of state, head of government, or foreign minister. See Restatement §66. Whether petitioner may be entitled to head of state immunity, or any other immunity, under the common law is a question we leave open for remand. See 552 F.3d 371, 383 (CA4 2009). We express no view on whether Restatement §66 correctly sets out the scope of the common law immunity applicable to current or former foreign officials. 16 Respondents contend that this caveat refers to “the compulsive effect of the judgment on the state,” Brief for Respondents 42, but petitioner disputes that meaning, Reply Brief for Petitioner 17–18. We need not resolve their dispute, as it is enough for present purposes that the Restatement indicates a foreign official’s immunity may turn upon a requirement not applicable to any other type of defendant. 16 SAMANTAR v. YOUSUF Opinion of the Court And historically, the Government sometimes suggested immunity under the common law for individual officials even when the foreign state did not qualify. See, e.g., Greenspan v. Crosbie, No. 74 Civ. 4734 (GLG), 1976 WL 841 (SDNY, Nov. 23, 1976). There is therefore little rea son to presume that when Congress set out to codify state immunity, it must also have, sub silentio, intended to codify official immunity. Petitioner urges that a suit against an official must always be equivalent to a suit against the state because acts taken by a state official on behalf of a state are acts of the state. See Brief for Petitioner 26. We have recog nized, in the context of the act of state doctrine, that an official’s acts can be considered the acts of the foreign state, and that “the courts of one country will not sit in judgment” of those acts when done within the territory of the foreign state. See Underhill v. Hernandez, 168 U.S. 250, 252, 254 (1897). Although the act of state doctrine is distinct from immunity, and instead “provides foreign states with a substantive defense on the merits,” Altmann, 541 U.S., at 700, we do not doubt that in some circum stances the immunity of the foreign state extends to an individual for acts taken in his official capacity. But it does not follow from this premise that Congress intended to codify that immunity in the FSIA. It hardly furthers Congress’ purpose of “clarifying the rules that judges should apply in resolving sovereign immunity claims,” id., at 699, to lump individual officials in with foreign states without so much as a word spelling out how and when individual officials are covered.17 —————— 17 The courts of appeals have had to develop, in the complete absence of any statutory text, rules governing when an official is entitled to immunity under the FSIA. For example, Courts of Appeals have applied the rule that foreign sovereign immunity extends to an individ ual official “for acts committed in his official capacity” but not to “an official who acts beyond the scope of his authority.” Chuidian, 912 Cite as: 560 U. S. ____ (2010) 17 Opinion of the Court Petitioner would have a stronger case if there were any indication that Congress’ intent to enact a comprehensive solution for suits against states extended to suits against individual officials. But to the extent Congress contem plated the Act’s effect upon officials at all, the evidence points in the opposite direction. As we have already men tioned, the legislative history points toward an intent to leave official immunity outside the scope of the Act. See n. 12, supra. And although questions of official immunity did arise in the pre-FSIA period, they were few and far between.18 The immunity of officials simply was not the particular problem to which Congress was responding when it enacted the FSIA. The FSIA was adopted, rather, to address “a modern world where foreign state enter prises are every day participants in commercial activities,” and to assure litigants that decisions regarding claims against states and their enterprises “are made on purely legal grounds.” H. R. Rep., at 7. We have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in de terminations regarding individual official immunity.19 —————— F. 2d, at 1103, 1106. That may be correct as a matter of common-law principles, but it does not derive from any clarification or codification by Congress. Furthermore, if Congress intended the FSIA to reach individuals, one would expect the Act to have addressed whether former officials are covered, an issue it settled with respect to instrumentali ties, see Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003) (“[I]nstrumentality status [must] be determined at the time suit is filed”). 18 A study that attempted to gather all of the State Department deci sions related to sovereign immunity from the adoption of the restrictive theory in 1952 to the enactment of the FSIA reveals only four decisions related to official immunity, and two related to head of state immunity, out of a total of 110 decisions. Sovereign Immunity Decisions of the Dept. of State, May 1952 to Jan. 1977 (M. Sandler, D. Vagts, & B. Ristau eds.), in Digest of U. S. Practice in Int’l Law 1020, 1080 (1977) (hereinafter Digest). 19 The FSIA was introduced in accordance with the recommendation 18 SAMANTAR v. YOUSUF Opinion of the Court Finally, our reading of the FSIA will not “in effect make the statute optional,” as some Courts of Appeals have feared, by allowing litigants through “artful pleading . . . to take advantage of the Act’s provisions or, alternatively, choose to proceed under the old common law,” Chuidian v. Philippine Nat. Bank, 912 F.2d 1095, 1102 (CA9 1990). Even if a suit is not governed by the Act, it may still be barred by foreign sovereign immunity under the common law. And not every suit can successfully be pleaded against an individual official alone.20 Even when a plain tiff names only a foreign official, it may be the case that the foreign state itself, its political subdivision, or an agency or instrumentality is a required party, because —————— of the State Department. H. R. Rep., at 6. The Department sought and supported the elimination of its role with respect to claims against foreign states and their agencies or instrumentalities. See Hearings on H. R. 11315 before the Subcommittee on Administrative Law and Governmental Relations of the House of Representatives Committee on the Judiciary, 94th Cong., 2d Sess., 34 (1976) (testimony of Monroe Leigh, Legal Adviser, Dept. of State) (“[I]t is our judgment . . . that the advantages of having a judicial determination greatly outweigh the advantage of being able to intervene in a lawsuit”). But the Depart ment has from the time of the FSIA’s enactment understood the Act to leave intact the Department’s role in official immunity cases. See Digest 1020 (“These decisions [of the Department regarding the immu nity of officials] may be of some future significance, because the Foreign Sovereign Immunities Act does not deal with the immunity of individ ual officials, but only that of foreign states and their political subdivi sions, agencies and instrumentalities”). 20 Furthermore, a plaintiff seeking to sue a foreign official will not be able to rely on the Act’s service of process and jurisdictional provisions. Thus, a plaintiff will have to establish that the district court has personal jurisdiction over an official without the benefit of the FSIA provision that makes personal jurisdiction over a foreign state auto matic when an exception to immunity applies and service of process has been accomplished in accordance with 28 U.S. C. §1608. See §1330(b) (“Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsec tion (a),” i.e., claims for which the foreign state is not entitled to immu nity, “where service has been made under section 1608 of this title”). Cite as: 560 U. S. ____ (2010) 19 Opinion of the Court that party has “an interest relating to the subject of the action” and “disposing of the action in the person’s absence may . . . as a practical matter impair or impede the per son’s ability to protect the interest.” Fed. Rule Civ. Proc. 19(a)(1)(B). If this is the case, and the entity is immune from suit under the FSIA, the district court may have to dismiss the suit, regardless of whether the official is im mune or not under the common law. See Republic of Philippines v. Pimentel, 553 U.S. 851, 867 (2008) (“[W]here sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign”). Or it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest. Cf. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in inter est is the entity” (citation omitted)). We are thus not persuaded that our construction of the statute’s text should be affected by the risk that plaintiffs may use artful pleading to attempt to select between application of the FSIA or the common law. And we think this case, in which respondents have sued petitioner in his personal capacity and seek damages from his own pockets, is properly governed by the common law because it is not a claim against a foreign state as the Act defines that term. Although Congress clearly intended to supersede the common-law regime for claims against foreign states, we find nothing in the statute’s origin or aims to indicate that Congress similarly wanted to codify the law of foreign official immunity. 20 SAMANTAR v. YOUSUF Opinion of the Court V Our review of the text, purpose, and history of the FSIA leads us to the conclusion that the Court of Appeals cor rectly held the FSIA does not govern petitioner’s claim of immunity. The Act therefore did not deprive the District Court of subject-matter jurisdiction. We emphasize, how ever, the narrowness of our holding. Whether petitioner may be entitled to immunity under the common law, and whether he may have other valid defenses to the grave charges against him, are matters to be addressed in the first instance by the District Court on remand. The judg ment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 560 U. S. ____ (2010) 1 ALITO, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 08–1555 _________________ MOHAMED ALI SAMANTAR, PETITIONER v. BASHE ABDI YOUSUF ET AL.

From 1980 to 1986 petitioner Mohamed Ali Samantar was the First Vice President and Minister of Defense of Somalia, and from 1987 to he served as its Prime Minister. Respondents are natives of Somalia who allege that they, or members of their families, were the victims of torture and extrajudicial killings during those years. They seek damages from petitioner based on his alleged au thorization of those acts. The narrow question we must decide is whether the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), 28 U.S. C. 1602 et seq., pro vides petitioner with immunity from suit based on actions taken in his official capacity. We hold that the FSIA does not govern the determination of petitioner’s immunity from suit. I Respondents are members of the Isaaq clan, which included well-educated and prosperous Somalis who were subjected to systematic persecution during the 1980’s by the military regime then governing Somalia. They allege that petitioner exercised command and control over mem 2 SAMANTAR v. YOUSUF Opinion of the Court bers of the Somali military forces who tortured, killed, or arbitrarily detained them or members of their families; that petitioner knew or should have known of the abuses perpetrated by his subordinates; and that he aided and abetted the commission of these abuses.1 Respondents’ complaint sought damages from petitioner pursuant to the Torture Victim Protection Act of 1, note following 28 U.S. C. and the Alien Tort Statute, 28 U.S. C. Petitioner, who was in charge of Somalia’s armed forces before its military regime collapsed, fled Somalia in 1 and is now a resident of Virginia. The United States has not recognized any entity as the gov ernment of Somalia since the fall of the military regime. See Brief for United States as Amicus Curiae 4. Respondents filed their complaint in November 2004, and petitioner promptly moved to dismiss. The District Court stayed the proceedings to give the State Depart ment an opportunity to provide a statement of interest regarding petitioner’s claim of sovereign immunity. Each month during the ensuing two years, petitioner advised the court that the State Department had the matter “ ‘still under consideration.’ ” No. 1:04cv1360 App. to Pet. for Cert. 44a. In 2007, having received no response from the State Department, the District Court reinstated the case on its active docket. The court con cluded that it did not have subject-matter jurisdiction and granted petitioner’s motion to dismiss. The District Court’s decision rested squarely on the —————— 1 Although we do not set out respondents’ allegations in detail, the District Court’s written opinion contains a comprehensive summary, describing not only the abuses respondents suffered but also the his torical context in which the abuses occurred, as well as some of the attempts to establish a stable government in Somalia in recent years. See No. 1:04cv1360 App. to Pet. for Cert. 31a– 43a. Cite as: 560 U. S. (2010) 3 Opinion of the Court FSIA.2 The FSIA provides that a “foreign state shall be immune from the jurisdiction” of both federal and state courts except as provided in the Act, 28 U.S. C. and the District Court noted that none of the parties had argued that any exception was applicable, App. to Pet. for Cert. 46a–47a. Although characterizing the statute as silent on its applicability to the officials of a foreign state, the District Court followed appellate decisions holding that a foreign state’s sovereign immunity under the Act extends to “ ‘an individual acting in his official capacity on behalf of a foreign state,’ ” but not to “ ‘an official who acts beyond the scope of his authority.’ ” at 47a (quoting 399 (CA4 2004)). The court rejected respondents’ argu ment that petitioner was necessarily acting beyond the scope of his authority because he allegedly violated inter national law.3 The Court of Appeals reversed, rejecting the District Court’s ruling that the FSIA governs petitioner’s immu nity from suit. It acknowledged “the majority view” —————— 2 Petitioner argued that, in addition to his immunity under the FSIA, the complaint should be dismissed on a number of other grounds, which the District Court did not reach. See at 45a, n. 11. 3 Because we hold that the FSIA does not govern whether an individ ual foreign official enjoys immunity from suit, we need not reach respondents’ argument that an official is not immune under the FSIA for acts of torture and extrajudicial killing. See Brief for Respondents 51–53. We note that in determining petitioner had not acted beyond the scope of his authority, the District Court afforded great weight to letters from the Somali Transitional Federal Government (TFG) to the State Department, App. to Pet. for Cert. 55a, in which the TFG sup ported petitioner’s claim of immunity and stated “the actions attributed to [petitioner] in the lawsuit would have been taken by [petitioner] in his official capacities,” App. 104. Although the District Court de scribed the TFG as “recognized by the United States as the governing body in Somalia,” App. to Pet. for Cert. 54a, the United States does not recognize the TFG (or any other entity) as the government of Somalia, see Brief for United States as Amicus Curiae 5. 4 SAMANTAR v. YOUSUF Opinion of the Court among the Circuits that “the FSIA applies to individual officials of a foreign state.”4 It disagreed with that view, however, and con cluded, “based on the language and structure of the stat ute, that the FSIA does not apply to individual foreign government agents like [petitioner].”5 Having found that the FSIA does not govern whether petitioner enjoys immunity from suit, the Court of Appeals re manded the case for further proceedings, including a determination of whether petitioner is entitled to immu nity under the common law. at 3–384. We granted certiorari. 557 U. S. II The doctrine of foreign sovereign immunity developed as a matter of common law long before the FSIA was enacted in 1976. In B. V. v. Central Bank of Nigeria, we explained that in Schooner “Chief Jus tice Marshall concluded that the United States had impliedly waived jurisdiction over certain activities of —————— 4 552 F.3d, (holding the FSIA does not govern the immunity of individual foreign officials), and Enahoro v. Abubakar, 408 F.3d 877, 881–882 (CA7 2005) with (concluding that a suit against an individual official for acts committed in his official capacity must be analyzed under the FSIA), In re Terrorist Attacks on September 11, 2001, and (CADC 6) 5 As an alternative basis for its decision, the Court of Appeals held that even if a current official is covered by the FSIA, a former official is not. See 552 F.3d, –3. Because we agree with the Court of Appeals on its broader ground that individual officials are not covered by the FSIA, petitioner’s status as a former official is irrelevant to our analysis. Cite as: 560 U. S. (2010) 5 Opinion of the Court foreign sovereigns.” The Court’s specific holding in Schoo ner Exchange was that a federal court lacked jurisdiction over “a national armed vessel of the emperor of France,” but the opinion was interpreted as extending virtually absolute immunity to foreign sover eigns as “a matter of grace and comity,” 461 U.S., at Following Schooner Exchange, a two-step procedure developed for resolving a foreign state’s claim of sovereign immunity, typically asserted on behalf of seized vessels. See, e.g., Republic of 34– 36 (1945); Ex parte ; Compania de Navegacion Maritima, S. Under that proce dure, the diplomatic representative of the sovereign could request a “suggestion of immunity” from the State De partment. Ex parte If the request was granted, the district court surrendered its jurisdic tion. ; see also But “in the absence of recognition of the immunity by the Department of State,” a district court “had authority to decide for itself whether all the requisites for such immu nity existed.” Ex parte ; see also Compania (approving judicial inquiry into sovereign immunity when the “Department of State declined to act”); (evaluating sov ereign immunity when the State Department had not responded to a request for its views). In making that decision, a district court inquired “whether the ground of immunity is one which it is the established policy of the [State Department] to recognize.” 324 U.S., at 36. Although cases involving individual foreign officials as defendants were rare, the same two-step procedure was typically followed when a foreign official asserted immu nity. See, e.g., –505; Waltier v. 66 Prior to 1952, the State Department followed a general practice of requesting immunity in all actions against friendly sovereigns, but in that year the Department announced its adoption of the “restrictive” theory of sover eign immunity. 461 U.S., at –487; see also Letter from Jack B. Tate, Acting Legal Adviser, Depart ment of State, to Acting Attorney General Philip B. Perlman reprinted in 26 Dept. State Bull. 984–985 Under this theory, “immunity is confined to suits involving the foreign sovereign’s public acts, and does not extend to cases arising out of a foreign state’s strictly commercial acts.” This change threw “immunity determinations into some disarray,” because “political considerations sometimes led the Department to file ‘suggestions of immunity in cases where immunity would not have been available under the restrictive theory.’ ” Republic of Austria v. 541 U.S. 677, 690 (2004) (quoting 461 U.S., at 487). Congress responded to the inconsistent application of sovereign immunity by enacting the FSIA in 1976. –691; see also 461 U.S., at 487–488. Section 1602 describes the Act’s two primary purposes: (1) to endorse and codify the restrictive theory of sovereign immunity, and (2) to transfer primary responsibility for deciding “claims of foreign states to immunity” from the State Department to the courts.7 —————— 6 Diplomatic and consular officers could also claim the “specialized immunities” accorded those officials, Restatement (Second) of Foreign Relations Law of the United States Comment b (1964–1965) (hereinafter Restatement), and officials qualifying as the “head of state” could claim immunity on that basis, see Schooner (describing “the exemption of the person of the sovereign” from “a jurisdiction incompatible with his dignity”). 7 The full text of entitled “Findings and declaration of pur Cite as: 560 U. S. (2010) 7 Opinion of the Court After the enactment of the FSIA, the Act—and not the pre-existing common law—indisputably governs the de termination of whether a foreign state is entitled to sover eign immunity. What we must now decide is whether the Act also covers the immunity claims of foreign officials. We begin with the statute’s text and then consider petitioner’s reliance on its history and purpose. III The FSIA provides that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States” except as provided in the Act. Thus, if a defendant is a “foreign state” within the meaning of the Act, then the defendant is immune from jurisdiction unless one of the exceptions in the Act applies. See (enumerating exceptions). The Act, if it applies, is the “sole basis for obtaining jurisdiction over a foreign state in federal court.” Argentine Republic v. Amerada Hess Shipping Corp., The question we face in this case is whether an individual sued for conduct undertaken in his official capacity is a “foreign state” within the meaning of the Act. The Act defines “foreign state” in as follows: “(a) A ‘foreign state’ includes a political subdivi —————— pose,” reads as follows: “The Congress finds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.” 8 SAMANTAR v. YOUSUF Opinion of the Court sion of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b). “(b) An ‘agency or instrumentality of a foreign state’ means any entity— “(1) which is a separate legal person, corporate or otherwise, and “(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and “(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title, nor created under the laws of any third country.” The term “foreign state” on its face indicates a body politic that governs a particular territory. See, e.g., Re statement (defining “state” as “an entity that has a defined territory and population under the control of a government and that engages in foreign relations”). In (a), however, the Act establishes that “foreign state” has a broader meaning, by mandating the inclusion of the state’s political subdivisions, agencies, and instrumentali ties. Then, in (b), the Act specifically delimits what counts as an agency or instrumentality. Petitioner argues that either “foreign state,” (a), or “agency or instru mentality,” (b), could be read to include a foreign official. Although we agree that petitioner’s interpretation is literally possible, our analysis of the entire statutory text persuades us that petitioner’s reading is not the meaning that Congress enacted. We turn first to the term “agency or instrumentality of a foreign state,” (b). It is true that an individual official could be an “agency or instrumentality,” if that term is given the meaning of “any thing or person through which action is accomplished,” In re Terrorist Attacks on Cite as: 560 U. S. (2010) 9 Opinion of the Court Sept. 11, 2001, But Congress has specifically defined “agency or instrumentality” in the FSIA, and all of the textual clues in that definition cut against such a broad construction. First, the statute specifies that “ ‘agency or instrumen tality’ means any entity” matching three specified characteristics, (b) (emphasis added), and “entity” typically refers to an organization, rather than an individ ual. See, e.g., Black’s Law Dictionary 6 Furthermore, several of the required characteristics apply awkwardly, if at all, to individuals. The phrase “separate legal person, corporate or otherwise,” (b)(1), could conceivably refer to a natural person, solely by virtue of the word “person.” But the phrase “separate legal person” typically refers to the legal fiction that allows an entity to hold personhood separate from the natural persons who are its shareholders or officers. Cf. First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 625 (“Separate legal personality has been described as ‘an almost indispensable aspect of the public corpora tion’ ”). It is similarly awkward to refer to a person as an “organ” of the foreign state. See (b)(2). And the third part of the definition could not be applied at all to a natural person. A natural person cannot be a citizen of a State “as defined in section 1332(c) and (e),” (b)(3), because those subsections refer to the citizenship of corpo rations and estates. Nor can a natural person be “created under the laws of any third country.” Ibid.8 Thus, the —————— 8 Petitioner points out that (b)(3) describes only which defen dants cannot be agencies or instrumentalities. He suggests that it therefore tells us nothing about which defendants can be covered by that term. Brief for Petitioner 46. Even if so, reading (b) as petitioner suggests would leave us with the odd result that a corpora tion that is the citizen of a state is excluded from the definition under (b)(3), and thus not immune, whereas a natural person who is the citizen of a state is not excluded, and thus retains his immunity. 10 SAMANTAR v. YOUSUF Opinion of the Court terms Congress chose simply do not evidence the intent to include individual officials within the meaning of “agency or instrumentality.”9 Cf. Dole Food v. Patrickson, 538 U.S. 468, 474 (describing (b) as containing “indicia that Congress had corporate formalities in mind”). Petitioner proposes a second textual route to including an official within the meaning of “foreign state.” He ar gues that the definition of “foreign state” in (a) sets out a nonexhaustive list that “includes” political subdivi sions and agencies or instrumentalities but is not so lim ited. See Brief for Petitioner 22–23. It is true that use of the word “include” can signal that the list that follows is meant to be illustrative rather than exhaustive.10 And, to —————— 9 Nor does anything in the legislative history suggest that Congress intended the term “agency or instrumentality” to include individuals. On the contrary, the legislative history, like the statute, speaks in terms of entities. See, e.g., H. R. Rep. No. 94–1487, p. 15 (1976) (here inafter H. R. Rep.) (“The first criterion, that the entity be a separate legal person, is intended to include a corporation, association, founda tion, or any other entity which, under the law of the foreign state where it was created, can sue or be sued in its own name”). JUSTICE SCALIA may well be correct that it is not strictly necessary to confirm our reading of the statutory text by consulting the legislative history, see post, at 1–2 (opinion concurring in judgment). But as the Court explained some years ago in an opinion authored by Justice White: “As for the propriety of using legislative history at all, common sense suggests that inquiry benefits from reviewing additional information rather than ignoring it. As Chief Justice Marshall put it, ‘[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived.’ United States v. Fisher, 2 Cranch 358, 386 (1805). Legislative history materials are not generally so misleading that jurists should never employ them in a good-faith effort to discern legislative intent. Our precedents demonstrate that the Court’s practice of utilizing legislative history reaches well into its past. See, e.g., (). We suspect that the practice will likewise reach well into the future.” Wisconsin Public (altera tion in original). 10 See 2A N. Singer & J. Singer, Sutherland Statutory Construction Cite as: 560 U. S. (2010) 11 Opinion of the Court be sure, there are fewer textual clues within (a) than within (b) from which to interpret Congress’ silence regarding foreign officials. But even if the list in (a) is merely illustrative, it still suggests that “foreign state” does not encompass officials, because the types of defen dants listed are all entities. See Russell Motor Car v. United States, (“[A] word may be known by the company it keeps”). Moreover, elsewhere in the FSIA Congress expressly mentioned officials when it wished to count their acts as equivalent to those of the foreign state, which suggests that officials are not included within the unadorned term “foreign state.” Cf. Kimbrough v. United States, 552 U.S. 85, 103 (“Drawing meaning from silence is particu larly inappropriate [when] Congress has shown that it knows how to [address an issue] in express terms”). For example, Congress provided an exception from the general grant of immunity for cases in which “money damages are sought against a foreign state” for an injury in the United States “caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office.” (emphasis added). The same reference to officials is made in a similar, later enacted exception. See 28 U.S. C. A. (eliminating immunity for suits “in which money damages are sought against a foreign state” for certain acts “engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency”); see also (“[T]he word ‘includes’ is usually a term of enlargement, and not of limitation” (some internal quotation marks omitted)). SAMANTAR v. YOUSUF Opinion of the Court agent” thereof).11 If the term “foreign state” by definition includes an individual acting within the scope of his office, the phrase “or of any official or employee” in 28 U.S. C. would be unnecessary. See Dole Food –477 (“[W]e should not construe the statute in a manner that is strained and, at the same time, would render a statutory term superfluous”). Other provisions of the statute also point away from reading “foreign state” to include foreign officials. Con gress made no express mention of service of process on individuals in which governs service upon a foreign state or political subdivision. Although some of the methods listed could be used to serve individuals—for example, by delivery “in accordance with an applicable international convention,” methods specified are at best very roundabout ways of serving an individual official. Furthermore, Congress made specific remedial choices for different types of defendants. See (allowing punitive damages for an agency or in strumentality but not for a foreign state); (affording a plaintiff greater rights to attach the property of an agency or instrumentality as compared to the property of a foreign state). By adopting petitioner’s reading of “foreign state,” we would subject claims against officials to the more limited remedies available in suits against states, —————— 11 Petitioner argues that abrogates immunity for certain acts by individual officials, which would be superfluous if the officials were not otherwise immune. See Brief for Petitioner 41–43. But the import of is precisely the opposite. First, eliminates the immunity of the state for certain acts of its officers; it says a “foreign state shall not be immune” in a suit “in which money damages are sought against a foreign state.” As it does not expressly refer to the immunity of individual officers, it adds nothing to petitioner’s argu ment. Second, the creation of a cause of action against both the “for eign state” and “any official, employee, or agent” thereof, reinforces the idea that “foreign state” does not by definition include foreign officials. Cite as: 560 U. S. (2010) 13 Opinion of the Court without so much as a whisper from Congress on the sub ject. (And if we were instead to adopt petitioner’s other textual argument, we would subject those claims to the different, more expansive, remedial scheme for agencies). The Act’s careful calibration of remedies among the listed types of defendants suggests that Congress did not mean to cover other types of defendants never mentioned in the text. In sum, “[w]e do not construe statutory phrases in isolation; we read statutes as a whole.” United States v. Morton, Reading the FSIA as a whole, there is nothing to suggest we should read “foreign state” in (a) to include an official acting on behalf of the foreign state, and much to indicate that this meaning was not what Congress enacted. The text does not ex pressly foreclose petitioner’s reading, but it supports the view of respondents and the United States that the Act does not address an official’s claim to immunity. IV Petitioner argues that the FSIA is best read to cover his claim to immunity because of its history and purpose. As discussed at the outset, one of the primary purposes of the FSIA was to codify the restrictive theory of sovereign immunity, which Congress recognized as consistent with extant international law. See We have observed —————— Nor is it the case that the FSIA’s “legislative history does not even hint of an intent to exclude individual officials,” Chuidian, 9 F.2d, at 1101. The legislative history makes clear that Congress did not intend the FSIA to address position-based individual immunities such as diplomatic and consular immunity. H. R. Rep., at (“The bill is not intended to affect either diplomatic or consular immunity”). It also suggests that general “official immunity” is something separate from the subject of the bill. See (“The bill does not attempt to deal with questions of discovery. [I]f a plaintiff sought to depose a diplomat in the United States or a high-ranking official of a foreign government, diplomatic and official immunity would apply”). 14 SAMANTAR v. YOUSUF Opinion of the Court that a related purpose was “codification of international law at the time of the FSIA’s enactment,” Permanent Mission of India to United and have examined the relevant common law and international practice when interpreting the Act, at 200–201. Because of this relationship between the Act and the common law that it codified, petitioner argues that we should construe the FSIA con sistently with the common law regarding individual im munity, which—in petitioner’s view—was coextensive with the law of state immunity and always immunized a for eign official for acts taken on behalf of the foreign state. Even reading the Act in light of Congress’ purpose of codifying state sovereign immunity, however, we do not think that the Act codified the common law with respect to the immunity of individual officials. The canon of construction that statutes should be inter preted consistently with the common law helps us inter pret a statute that clearly covers a field formerly governed by the common law.13 But the canon does not help us to decide the antecedent question whether, when a statute’s coverage is ambiguous, Congress intended the statute to govern a particular field—in this case, whether Congress intended the FSIA to supersede the common law of official immunity.14 —————— 13 Congress “is understood to legislate against a background of com mon-law principles,” Astoria Fed. Sav. & Loan and when a statute covers an issue previ ously governed by the common law, we interpret the statute with the presumption that Congress intended to retain the substance of the common law. See Isbrandtsen v. Johnson, 7 (“Statutes which invade the common law are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident”). 14 We find similarly inapposite petitioner’s invocation of the canon that a statute should be interpreted in compliance with international law, see Cite as: 560 U. S. (2010) 15 Opinion of the Court Petitioner argues that because state and official immu nities are coextensive, Congress must have codified official immunity when it codified state immunity. See Brief for Petitioner 26–30. But the relationship between a state’s immunity and an official’s immunity is more complicated than petitioner suggests, although we need not and do not resolve the dispute among the parties as to the precise scope of an official’s immunity at common law. The very authority to which petitioner points us, and which we have previously found instructive, see, e.g., Permanent Mission, states that the immunity of individual officials is subject to a caveat not applicable to any of the other entities or persons15 to which the foreign state’s immunity extends. The Restatement provides that the “immunity of a foreign state extends to any other public minister, official, or agent of the state with respect to acts performed in his official capacity if the effect of exercising jurisdiction would be to enforce a rule of law against the state.” Restatement (emphasis added).16 —————— and his argument that foreign relations and the reciprocal protection of United States officials abroad would be undermined if we do not adopt his reading of the Act. Because we are not deciding that the FSIA bars petitioner’s immunity but rather that the Act does not address the question, we need not determine whether declining to afford immunity to petitioner would be consistent with international law. 15 The Restatement does not apply this caveat to the head of state, head of government, or foreign minister. See Restatement Whether petitioner may be entitled to head of state immunity, or any other immunity, under the common law is a question we leave open for remand. See 3 We express no view on whether Restatement correctly sets out the scope of the common law immunity applicable to current or former foreign officials. 16 Respondents contend that this caveat refers to “the compulsive effect of the judgment on the state,” Brief for Respondents 42, but petitioner disputes that meaning, Reply Brief for Petitioner 17–18. We need not resolve their dispute, as it is enough for present purposes that the Restatement indicates a foreign official’s immunity may turn upon a requirement not applicable to any other type of defendant. 16 SAMANTAR v. YOUSUF Opinion of the Court And historically, the Government sometimes suggested immunity under the common law for individual officials even when the foreign state did not qualify. See, e.g., Greenspan v. Crosbie, No. 74 Civ. 4734 (GLG), 1976 WL 841 (SDNY, Nov. 23, 1976). There is therefore little rea son to presume that when Congress set out to codify state immunity, it must also have, sub silentio, intended to codify official immunity. Petitioner urges that a suit against an official must always be equivalent to a suit against the state because acts taken by a state official on behalf of a state are acts of the state. See Brief for Petitioner 26. We have recog nized, in the context of the act of state doctrine, that an official’s acts can be considered the acts of the foreign state, and that “the courts of one country will not sit in judgment” of those acts when done within the territory of the foreign state. See Underhill v. Hernandez, 168 U.S. 250, 252, 254 (1897). Although the act of state doctrine is distinct from immunity, and instead “provides foreign states with a substantive defense on the merits,” we do not doubt that in some circum stances the immunity of the foreign state extends to an individual for acts taken in his official capacity. But it does not follow from this premise that Congress intended to codify that immunity in the FSIA. It hardly furthers Congress’ purpose of “clarifying the rules that judges should apply in resolving sovereign immunity claims,” at 699, to lump individual officials in with foreign states without so much as a word spelling out how and when individual officials are covered.17 —————— 17 The courts of appeals have had to develop, in the complete absence of any statutory text, rules governing when an official is entitled to immunity under the FSIA. For example, Courts of Appeals have applied the rule that foreign sovereign immunity extends to an individ ual official “for acts committed in his official capacity” but not to “an official who acts beyond the scope of his authority.” Chuidian, 9 Cite as: 560 U. S. (2010) 17 Opinion of the Court Petitioner would have a stronger case if there were any indication that Congress’ intent to enact a comprehensive solution for suits against states extended to suits against individual officials. But to the extent Congress contem plated the Act’s effect upon officials at all, the evidence points in the opposite direction. As we have already men tioned, the legislative history points toward an intent to leave official immunity outside the scope of the Act. See n. And although questions of official immunity did arise in the pre-FSIA period, they were few and far between.18 The immunity of officials simply was not the particular problem to which Congress was responding when it enacted the FSIA. The FSIA was adopted, rather, to address “a modern world where foreign state enter prises are every day participants in commercial activities,” and to assure litigants that decisions regarding claims against states and their enterprises “are made on purely legal grounds.” H. R. Rep., at 7. We have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in de terminations regarding individual official immunity.19 —————— F. 2d, at 1106. That may be correct as a matter of common-law principles, but it does not derive from any clarification or codification by Congress. Furthermore, if Congress intended the FSIA to reach individuals, one would expect the Act to have addressed whether former officials are covered, an issue it settled with respect to instrumentali ties, see Dole Food v. Patrickson, (“[I]nstrumentality status [must] be determined at the time suit is filed”). 18 A study that attempted to gather all of the State Department deci sions related to sovereign immunity from the adoption of the restrictive theory in 1952 to the enactment of the FSIA reveals only four decisions related to official immunity, and two related to head of state immunity, out of a total of 110 decisions. Sovereign Immunity Decisions of the Dept. of State, May 1952 to Jan. 1977 (M. Sandler, D. Vagts, & B. Ristau eds.), in Digest of U. S. Practice in Int’l Law 1020, 0 (1977) (hereinafter Digest). 19 The FSIA was introduced in accordance with the recommendation 18 SAMANTAR v. YOUSUF Opinion of the Court Finally, our reading of the FSIA will not “in effect make the statute optional,” as some Courts of Appeals have feared, by allowing litigants through “artful pleading to take advantage of the Act’s provisions or, alternatively, choose to proceed under the old common law,” Chuidian v. Philippine Nat. Bank, Even if a suit is not governed by the Act, it may still be barred by foreign sovereign immunity under the common law. And not every suit can successfully be pleaded against an individual official alone.20 Even when a plain tiff names only a foreign official, it may be the case that the foreign state itself, its political subdivision, or an agency or instrumentality is a required party, because —————— of the State Department. H. R. Rep., at 6. The Department sought and supported the elimination of its role with respect to claims against foreign states and their agencies or instrumentalities. See Hearings on H. R. 11315 before the Subcommittee on Administrative Law and Governmental Relations of the House of Representatives Committee on the Judiciary, 94th Cong., 2d Sess., 34 (1976) (testimony of Monroe Leigh, Legal Adviser, Dept. of State) (“[I]t is our judgment that the advantages of having a judicial determination greatly outweigh the advantage of being able to intervene in a lawsuit”). But the Depart ment has from the time of the FSIA’s enactment understood the Act to leave intact the Department’s role in official immunity cases. See Digest 1020 (“These decisions [of the Department regarding the immu nity of officials] may be of some future significance, because the Foreign Sovereign Immunities Act does not deal with the immunity of individ ual officials, but only that of foreign states and their political subdivi sions, agencies and instrumentalities”). 20 Furthermore, a plaintiff seeking to sue a foreign official will not be able to rely on the Act’s service of process and jurisdictional provisions. Thus, a plaintiff will have to establish that the district court has personal jurisdiction over an official without the benefit of the FSIA provision that makes personal jurisdiction over a foreign state auto matic when an exception to immunity applies and service of process has been accomplished in accordance with 28 U.S. C. See (“Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsec tion (a),” i.e., claims for which the foreign state is not entitled to immu nity, “where service has been made under section 1608 of this title”). Cite as: 560 U. S. (2010) 19 Opinion of the Court that party has “an interest relating to the subject of the action” and “disposing of the action in the person’s absence may as a practical matter impair or impede the per son’s ability to protect the interest.” Fed. Rule Civ. Proc. 19(a)(1)(B). If this is the case, and the entity is immune from suit under the FSIA, the district court may have to dismiss the suit, regardless of whether the official is im mune or not under the common law. See Republic of (“[W]here sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign”). Or it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest. Cf. (“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in inter est is the entity” (citation omitted)). We are thus not persuaded that our construction of the statute’s text should be affected by the risk that plaintiffs may use artful pleading to attempt to select between application of the FSIA or the common law. And we think this case, in which respondents have sued petitioner in his personal capacity and seek damages from his own pockets, is properly governed by the common law because it is not a claim against a foreign state as the Act defines that term. Although Congress clearly intended to supersede the common-law regime for claims against foreign states, we find nothing in the statute’s origin or aims to indicate that Congress similarly wanted to codify the law of foreign official immunity. 20 SAMANTAR v. YOUSUF Opinion of the Court V Our review of the text, purpose, and history of the FSIA leads us to the conclusion that the Court of Appeals cor rectly held the FSIA does not govern petitioner’s claim of immunity. The Act therefore did not deprive the District Court of subject-matter jurisdiction. We emphasize, how ever, the narrowness of our holding. Whether petitioner may be entitled to immunity under the common law, and whether he may have other valid defenses to the grave charges against him, are matters to be addressed in the first instance by the District Court on remand. The judg ment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 560 U. S. (2010) 1 ALITO, J., concurring SUPREME COURT OF THE UNITED STATES No. 08–1555 MOHAMED ALI SAMANTAR, PETITIONER v. BASHE ABDI YOUSUF ET AL.

Justice Ginsburg

majority

Marshall v. Marshall

https://www.courtlistener.com/opinion/145660/marshall-v-marshall/

https://www.courtlistener.com/api/rest/v3/clusters/145660/

2005-051

In Cohens v. Virginia, Chief Justice Marshall famously cautioned: "It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. . . . We have no more right to decline the exercise of jurisdiction which is given, than to *299 usurp that which is not given." 6 Wheat. 264, 404 (1821). Among longstanding limitations on federal jurisdiction otherwise properly exercised are the so-called "domestic relations" and "probate" exceptions. Neither is compelled by the text of the Constitution or federal statute. Both are judicially created doctrines stemming in large measure from misty understandings of English legal history. See, e. g., Atwood, Domestic Relations Cases in Federal Court: Toward a Principled Exercise of Jurisdiction, 35 Hastings L. J. 571, 584-588 (1984); Spindel v. Spindel, 283 F. Supp. 797, 802 (EDNY 1968) (collecting cases and commentary revealing vulnerability of historical explanation for domestic relations exception); Winkler, The Probate Jurisdiction of the Federal Courts, 14 Probate L. J. 77, 125-126, and n. 256 (1997) (describing historical explanation for probate exception as "an exercise in mythography"). In the years following Marshall's 1821 pronouncement, courts have sometimes lost sight of his admonition and have rendered decisions expansively interpreting the two exceptions. In Ankenbrandt v. Richards, 504 U.S. 689 (1992), this Court reined in the "domestic relations exception." Earlier, in Markham v. Allen, 326 U.S. 490 (1946), the Court endeavored similarly to curtail the "probate exception." Nevertheless, the Ninth Circuit in the instant case read the probate exception broadly to exclude from the federal courts' adjudicatory authority "not only direct challenges to a will or trust, but also questions which would ordinarily be decided by a probate court in determining the validity of the decedent's estate planning instrument." 392 F.3d 1118, 1133 (2004). The Court of Appeals further held that a State's vesting of exclusive jurisdiction over probate matters in a special court strips federal courts of jurisdiction to entertain any "probate related matter," including claims respecting "tax liability, debt, gift, [or] tort." Id., at 1136. We hold that the Ninth Circuit had no warrant from Congress, *300 or from decisions of this Court, for its sweeping extension of the probate exception. I Petitioner, Vickie Lynn Marshall (Vickie), also known as Anna Nicole Smith, is the surviving widow of J. Howard Marshall II (J. Howard). Vickie and J. Howard met in October 1991. After a courtship lasting more than two years, they were married on June 27, 1994. J. Howard died on August 4, 1995. Although he lavished gifts and significant sums of money on Vickie during their courtship and marriage, J. Howard did not include anything for Vickie in his will. According to Vickie, J. Howard intended to provide for her financial security through a gift in the form of a "catchall" trust. Respondent, E. Pierce Marshall (Pierce), one of J. Howard's sons, was the ultimate beneficiary of J. Howard's estate plan, which consisted of a living trust and a "pourover" will. Under the terms of the will, all of J. Howard's assets not already included in the trust were to be transferred to the trust upon his death. Competing claims regarding J. Howard's fortune ignited proceedings in both state and federal courts. In January 1996, while J. Howard's estate was subject to ongoing proceedings in Probate Court in Harris County, Texas, Vickie filed for bankruptcy under Chapter 11 of the Bankruptcy Code, 11 U.S. C. § 1101 et seq., in the United States Bankruptcy Court for the Central District of California. See 275 B.R. 5, 8 (CD Cal. 2002). In June 1996, Pierce filed a proof of claim in the federal bankruptcy proceeding, id., at 9; see 11 U.S. C. § 501, alleging that Vickie had defamed him when, shortly after J. Howard's death, lawyers representing Vickie told members of the press that Pierce had engaged in forgery, fraud, and overreaching to gain control of his father's assets, 275 B.R., at 9. Pierce sought a declaration that *301 the debt he asserted in that claim was not dischargeable in bankruptcy. Ibid.[1] Vickie answered, asserting truth as a defense. She also filed counterclaims, among them a claim that Pierce had tortiously interfered with a gift she expected. Ibid.; see App. 23-25. Vickie alleged that Pierce prevented the transfer of his father's intended gift to her by, among other things: effectively imprisoning J. Howard against his wishes; surrounding him with hired guards for the purpose of preventing personal contact between him and Vickie; making misrepresentations to J. Howard; and transferring property against J. Howard's expressed wishes. Id., at 24. Vickie's tortious interference counterclaim turned her objection to Pierce's claim into an adversary proceeding. Id., at 39; see Fed. Rule Bkrtcy. Proc. 3007. In that proceeding, the Bankruptcy Court granted summary judgment in favor of Vickie on Pierce's claim and, after a trial on the merits, entered judgment for Vickie on her tortious interference counterclaim. See 253 B.R. 550, 558-559 (2000). The Bankruptcy Court also held that both Vickie's objection to Pierce's claim and Vickie's counterclaim qualified as "core proceedings" under 28 U.S. C. § 157, which meant that the court had authority to enter a final judgment disposing of those claims. See 257 B.R. 35, 39-40 (2000). The court awarded Vickie compensatory damages of more than $449 million—less whatever she recovered in the ongoing probate action in Texas—as well as $25 million in punitive damages. Id., at 40. Pierce filed a post-trial motion to dismiss for lack of subject-matter jurisdiction, asserting that Vickie's tortious interference claim could be tried only in the Texas probate proceedings. Id., at 36. The Bankruptcy Court held that *302 "the `probate exception' argument was waived" because it was not timely raised. Id., at 39. Relying on this Court's decision in Markham, the court observed that a federal court has jurisdiction to "adjudicate rights in probate property, so long as its final judgment does not undertake to interfere with the state court's possession of the property." 257 B.R., at 38 (citing Markham, 326 U. S., at 494). Meanwhile, in the Texas Probate Court, Pierce sought a declaration that the living trust and his father's will were valid. 392 F.3d, at 1124-1125. Vickie, in turn, challenged the validity of the will and filed a tortious interference claim against Pierce, ibid., but voluntarily dismissed both claims once the Bankruptcy Court entered its judgment, id., at 1128. Following a jury trial, the Probate Court declared the living trust and J. Howard's will valid. Id., at 1129. Back in the federal forum, Pierce sought district-court review of the Bankruptcy Court's judgment. While rejecting the Bankruptcy Court's determination that Pierce had forfeited any argument based on the probate exception, the District Court held that the exception did not reach Vickie's claim. 264 B.R. 609, 619-625 (CD Cal. 2001). The Bankruptcy Court "did not assert jurisdiction generally over the probate proceedings . . . or take control over [the] estate's assets," the District Court observed, id., at 621, "[t]hus, the probate exception would bar federal jurisdiction over Vickie's counterclaim only if such jurisdiction would `interfere' with the probate proceedings," ibid. (quoting Markham, 326 U. S., at 494). Federal jurisdiction would not "interfere" with the probate proceedings, the District Court concluded, because: (1) success on Vickie's counterclaim did not necessitate any declaration that J. Howard's will was invalid, 264 B.R., at 621; and (2) under Texas law, probate courts do not have exclusive jurisdiction to entertain claims of the kind asserted in Vickie's counterclaim, id., at 622-625. The District Court also held that Vickie's claim did not qualify as a "core proceedin[g] arising under title 11, or arising in a case under title 11." 28 U.S. C. § 157(b)(1); see 264 *303 B. R., at 625-632. A bankruptcy court may exercise plenary power only over "core proceedings." See § 157(b)-(c).[2] In noncore matters, a bankruptcy court may not enter final judgment; it has authority to issue only proposed findings of fact and conclusions of law, which are reviewed de novo by the district court. See § 157(c)(1). Accordingly, the District Court treated the Bankruptcy Court's judgment as "proposed[,] rather than final," and undertook a "comprehensive, complete, and independent review of" the Bankruptcy Court's determinations. Id., at 633. *304 Adopting and supplementing the Bankruptcy Court's findings, the District Court determined that Pierce had tortiously interfered with Vickie's expectancy. Specifically, the District Court found that J. Howard directed his lawyers to prepare an inter vivos trust for Vickie consisting of half the appreciation of his assets from the date of their marriage. See 275 B.R., at 25-30, 51-53. It further found that Pierce conspired to suppress or destroy the trust instrument and to strip J. Howard of his assets by backdating, altering, and otherwise falsifying documents, arranging for surveillance of J. Howard and Vickie, and presenting documents to J. Howard under false pretenses. See id., at 36-50, 57-58; see also 253 B.R., at 554-556, 559-560. Based on these findings, the District Court awarded Vickie some $44.3 million in compensatory damages. 275 B.R., at 53-57. In addition, finding "overwhelming" evidence of Pierce's "willfulness, maliciousness, and fraud," the District Court awarded an equal amount in punitive damages. Id., at 57-58. The Court of Appeals for the Ninth Circuit reversed. The appeals court recognized that Vickie's claim "does not involve the administration of an estate, the probate of a will, or any other purely probate matter." 392 F.3d, at 1133. Nevertheless, the court held that the probate exception bars federal jurisdiction in this case. In the Ninth Circuit's view, a claim falls within the probate exception if it raises "questions which would ordinarily be decided by a probate court in determining the validity of the decedent's estate planning instrument," whether those questions involve "fraud, undue influence[, or] tortious interference with the testator's intent." Ibid. The Ninth Circuit was also of the view that state-court delineation of a probate court's exclusive adjudicatory authority could control federal subject-matter jurisdiction. In this regard, the Court of Appeals stated: "Where a state has relegated jurisdiction over probate matters to a special court *305 and [the] state's trial courts of general jurisdiction do not have jurisdiction to hear probate matters, then the federal courts also lack jurisdiction over probate matters." Id., at 1136. Noting that "[t]he [P]robate [C]ourt ruled it had exclusive jurisdiction over all of Vickie[`s] claims," the Ninth Circuit held that "ruling . . . binding on the United States [D]istrict [C]ourt." Ibid. (citing Durfee v. Duke, 375 U.S. 106, 115-116 (1963)). We granted certiorari, 545 U.S. 1165 (2005), to resolve the apparent confusion among federal courts concerning the scope of the probate exception. Satisfied that the instant case does not fall within the ambit of the narrow exception recognized by our decisions, we reverse the Ninth Circuit's judgment. II In Ankenbrandt v. Richards, 504 U.S. 689 (1992), we addressed both the derivation and the limits of the "domestic relations exception" to the exercise of federal jurisdiction. Carol Ankenbrandt, a citizen of Missouri, brought suit in Federal District Court on behalf of her daughters, naming as defendants their father (Ankenbrandt's former husband) and his female companion, both citizens of Louisiana. Id., at 691. Ankenbrandt's complaint sought damages for the defendants' alleged sexual and physical abuse of the children. Ibid. Federal jurisdiction was predicated on diversity of citizenship. Ibid. (citing 28 U.S. C. § 1332). The District Court dismissed the case for lack of subject-matter jurisdiction, holding that Ankenbrandt's suit fell within "the `domestic relations' exception to diversity jurisdiction." 504 U.S., at 692. The Court of Appeals agreed and affirmed. Ibid. We reversed the Court of Appeals' judgment. Id., at 706-707. Holding that the District Court improperly refrained from exercising jurisdiction over Ankenbrandt's tort claim, id., at 704, we traced explanation of the current domestic relations *306 exception to Barber v. Barber, 21 How. 582 (1859). See Ankenbrandt, 504 U. S., at 693-695. In Barber, the Court upheld federal-court authority, in a diversity case, to enforce an alimony award decreed by a state court. In dicta, however, the Barber Court announced—without citation or discussion— that federal courts lack jurisdiction over suits for divorce or the allowance of alimony. 21 How., at 584-589; see Ankenbrandt, 504 U. S., at 693-695. Finding no Article III impediment to federal-court jurisdiction in domestic relations cases, id., at 695-697, the Court in Ankenbrandt anchored the exception in Congress' original provision for diversity jurisdiction, id., at 698-701. Beginning at the beginning, the Court recalled: "The Judiciary Act of 1789 provided that `the circuit courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and . . . an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State.'" Id., at 698 (quoting Act of Sept. 24, 1789, § 11, 1 Stat. 78; emphasis added in Ankenbrandt). The defining phrase, "all suits of a civil nature at common law or in equity," the Court stressed, remained in successive statutory provisions for diversity jurisdiction until 1948, when Congress adopted the more economical phrase, "all civil actions." 504 U.S., at 698; 1948 Judicial Code and Judiciary Act, 62 Stat. 930, 28 U.S. C. § 1332. The Barber majority, we acknowledged in Ankenbrandt, did not expressly tie its announcement of a domestic relations exception to the text of the diversity statute. 504 U.S., at 698. But the dissenters in that case made the connection. They stated that English courts of chancery lacked *307 authority to issue divorce and alimony decrees. Because "the jurisdiction of the courts of the United States in chancery is bounded by that of the chancery in England," Barber, 21 How., at 605 (opinion of Daniel, J.), the dissenters reasoned, our federal courts similarly lack authority to decree divorces or award alimony, ibid. Such relief, in other words, would not fall within the diversity statute's original grant of jurisdiction over "all suits of a civil nature at common law or in equity." We concluded in Ankenbrandt that "it may be inferred fairly that the jurisdictional limitation recognized by the [Barber] Court rested on th[e] statutory basis" indicated by the dissenters in that case. 504 U.S., at 699. We were "content" in Ankenbrandt "to rest our conclusion that a domestic relations exception exists as a matter of statutory construction not on the accuracy of the historical justifications on which [the exception] was seemingly based." Id., at 700. "[R]ather," we relied on "Congress' apparent acceptance of this construction of the diversity jurisdiction provisions in the years prior to 1948, when the statute limited jurisdiction to `suits of a civil nature at common law or in equity.'" Ibid. (quoting 1 Stat. 78). We further determined that Congress did not intend to terminate the exception in 1948 when it "replace[d] the law/equity distinction with the phrase `all civil actions.'" 504 U.S., at 700. Absent contrary indications, we presumed that Congress meant to leave undisturbed "the Court's nearly century-long interpretation" of the diversity statute "to contain an exception for certain domestic relations matters." Ibid. We nevertheless emphasized in Ankenbrandt that the exception covers only "a narrow range of domestic relations issues." Id., at 701. The Barber Court itself, we reminded, "sanctioned the exercise of federal jurisdiction over the enforcement of an alimony decree that had been properly obtained in a state court of competent jurisdiction." 504 U.S., at 702. Noting that some lower federal courts had applied *308 the domestic relations exception "well beyond the circumscribed situations posed by Barber and its progeny," id., at 701, we clarified that only "divorce, alimony, and child custody decrees" remain outside federal jurisdictional bounds, id., at 703, 704. While recognizing the "special proficiency developed by state tribunals . . . in handling issues that arise in the granting of [divorce, alimony, and child custody] decrees," id., at 704, we viewed federal courts as equally equipped to deal with complaints alleging the commission of torts, ibid. III Federal jurisdiction in this case is premised on 28 U.S. C. § 1334, the statute vesting in federal district courts jurisdiction in bankruptcy cases and related proceedings. Decisions of this Court have recognized a "probate exception," kin to the domestic relations exception, to otherwise proper federal jurisdiction. See Markham, 326 U. S., at 494; see also Sutton v. English, 246 U.S. 199 (1918); Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33 (1909). Like the domestic relations exception, the probate exception has been linked to language contained in the Judiciary Act of 1789. Markham, the Court's most recent and pathmarking pronouncement on the probate exception, stated that "the equity jurisdiction conferred by the Judiciary Act of 1789 . . ., which is that of the English Court of Chancery in 1789, did not extend to probate matters." 326 U.S., at 494. See generally Nicolas, Fighting the Probate Mafia: A Dissection of the Probate Exception to Federal Court Jurisdiction, 74 S. Cal. L. Rev. 1479 (2001). As in Ankenbrandt, so in this case, "[w]e have no occasion . . . to join the historical debate" over the scope of English chancery jurisdiction in 1789, 504 U.S., at 699, for Vickie Marshall's claim falls far outside the bounds of the probate exception described in Markham. We therefore need not consider in this case whether there exists any *309 uncodified probate exception to federal bankruptcy jurisdiction under § 1334.[3] In Markham, the plaintiff Alien Property Custodian [4] commenced suit in Federal District Court against an executor and resident heirs to determine the Custodian's asserted rights regarding a decedent's estate. 326 U.S., at 491-492. Jurisdiction was predicated on § 24(1) of the Judicial Code, now 28 U.S. C. § 1345, which provides for federal jurisdiction over suits brought by an officer of the United States. At the time the federal suit commenced, the estate was undergoing *310 probate administration in a state court. The Custodian had issued an order vesting in himself all right, title, and interest of German legatees. He sought and gained in the District Court a judgment determining that the resident heirs had no interest in the estate, and that the Custodian, substituting himself for the German legatees, was entitled to the entire net estate, including specified real estate passing under the will. Reversing the Ninth Circuit, which had ordered the case dismissed for want of federal subject-matter jurisdiction, this Court held that federal jurisdiction was properly invoked. The Court first stated: "It is true that a federal court has no jurisdiction to probate a will or administer an estate . . . . But it has been established by a long series of decisions of this Court that federal courts of equity have jurisdiction to entertain suits `in favor of creditors, legatees and heirs' and other claimants against a decedent's estate `to establish their claims' so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court." 326 U.S., at 494 (quoting Waterman, 215 U. S., at 43). Next, the Court described a probate exception of distinctly limited scope: "[W]hile a federal court may not exercise its jurisdiction to disturb or affect the possession of property in the custody of a state court, . . . it may exercise its jurisdiction to adjudicate rights in such property where the final judgment does not undertake to interfere with the state court's possession save to the extent that the state court is bound by the judgment to recognize the right adjudicated by the federal court." 326 U.S., at 494. The first of the above-quoted passages from Markham is not a model of clear statement. The Court observed that *311 federal courts have jurisdiction to entertain suits to determine the rights of creditors, legatees, heirs, and other claimants against a decedent's estate, "so long as the federal court does not interfere with the probate proceedings." Ibid. (emphasis added). Lower federal courts have puzzled over the meaning of the words "interfere with the probate proceedings," and some have read those words to block federal jurisdiction over a range of matters well beyond probate of a will or administration of a decedent's estate. See, e. g., Mangieri v. Mangieri, 226 F.3d 1, 2-3 (CA1 2000) (breach of fiduciary duty by executor); Golden ex rel. Golden v. Golden, 382 F.3d 348, 360-362 (CA3 2004) (same); Lepard v. NBD Bank, Div. of Bank One, 384 F.3d 232, 234-237 (CA6 2004) (breach of fiduciary duty by trustee); Storm v. Storm, 328 F.3d 941, 943-945 (CA7 2003) (probate exception bars claim that plaintiff's father tortiously interfered with plaintiff's inheritance by persuading trust grantor to amend irrevocable inter vivos trust); Rienhardt v. Kelly, 164 F.3d 1296, 1300-1301 (CA10 1999) (probate exception bars claim that defendants exerted undue influence on testator and thereby tortiously interfered with plaintiff's expected inheritance). We read Markham's enigmatic words, in sync with the second above-quoted passage, to proscribe "disturb[ing] or affect[ing] the possession of property in the custody of a state court." 326 U.S., at 494. True, that reading renders the first-quoted passage in part redundant, but redundancy in this context, we do not doubt, is preferable to incoherence. In short, we comprehend the "interference" language in Markham as essentially a reiteration of the general principle that, when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. See, e. g., Penn General Casualty Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189, 195-196 (1935); Waterman, 215 U. S., at 45-46. Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate; it also *312 precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction. A As the Court of Appeals correctly observed, Vickie's claim does not "involve the administration of an estate, the probate of a will, or any other purely probate matter." 392 F.3d, at 1133. Provoked by Pierce's claim in the bankruptcy proceedings, Vickie's claim, like Carol Ankenbrandt's, alleges a widely recognized tort. See King v. Acker, 725 S.W.2d 750, 754 (Tex. App. 1987); 4 Restatement (Second) of Torts § 774B (1977) ("One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that [s]he would otherwise have received is subject to liability to the other for loss of the inheritance or gift."). Vickie seeks an in personam judgment against Pierce, not the probate or annulment of a will. Cf. Sutton, 246 U. S., at 208 (suit to annul a will found "supplemental to the proceedings for probate of the will" and therefore not cognizable in federal court). Nor does she seek to reach a res in the custody of a state court. See Markham, 326 U. S., at 494. Furthermore, no "sound policy considerations" militate in favor of extending the probate exception to cover the case at hand. Cf. Ankenbrandt, 504 U. S., at 703. Trial courts, both federal and state, often address conduct of the kind Vickie alleges. State probate courts possess no "special proficiency . . . in handling [such] issues." Cf. id., at 704. B The Court of Appeals advanced an alternate basis for its conclusion that the federal courts lack jurisdiction over Vickie's claim. Noting that the Texas Probate Court "ruled it had exclusive jurisdiction over all of Vickie Lynn Marshall's *313 claims against E. Pierce Marshall," the Ninth Circuit held that "ruling . . . binding on the United States [D]istrict [C]ourt." 392 F.3d, at 1136. We reject that determination. Texas courts have recognized a state-law tort action for interference with an expected inheritance or gift, modeled on the Restatement formulation. See King, 725 S. W. 2d, at 754; Brandes v. Rice Trust, Inc., 966 S.W.2d 144, 146-147 (Tex. App. 1998).[5] It is clear, under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), that Texas law governs the substantive elements of Vickie's tortious interference claim. It is also clear, however, that Texas may not reserve to its probate courts the exclusive right to adjudicate a transitory *314 tort. We have long recognized that "a State cannot create a transitory cause of action and at the same time destroy the right to sue on that transitory cause of action in any court having jurisdiction." Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 360 (1914). Jurisdiction is determined "by the law of the court's creation and cannot be defeated by the extraterritorial operation of a [state] statute . . ., even though it created the right of action." Ibid. Directly on point, we have held that the jurisdiction of the federal courts, "having existed from the beginning of the Federal government, [can]not be impaired by subsequent state legislation creating courts of probate." McClellan v. Carland, 217 U.S. 268, 281 (1910) (upholding federal jurisdiction over action by heirs of decedent, who died intestate, to determine their rights in the estate (citing Waterman, 215 U.S. 33)). Our decision in Durfee v. Duke, 375 U.S. 106 (1963), relied upon by the Ninth Circuit, 392 F.3d, at 1136, is not to the contrary. Durfee stands only for the proposition that a state court's final judgment determining its own jurisdiction ordinarily qualifies for full faith and credit, so long as the jurisdictional issue was fully and fairly litigated in the court that rendered the judgment. See 375 U.S., at 111, 115. At issue here, however, is not the Texas Probate Court's jurisdiction, but the federal courts' jurisdiction to entertain Vickie's tortious interference claim. Under our federal system, Texas cannot render its probate courts exclusively competent to entertain a claim of that genre. We therefore hold that the District Court properly asserted jurisdiction over Vickie's counterclaim against Pierce. IV After determining that Vickie's claim was not a "core proceeding," the District Court reviewed the case de novo and entered its final judgment on March 7, 2002. 275 B.R., at 5-8. The Texas Probate Court's judgment became final on February 11, 2002, nearly one month earlier. App. to Pet. *315 for Cert. 41. The Court of Appeals considered only the issue of federal subject-matter jurisdiction. It did not address the question whether Vickie's claim was "core"; nor did it address Pierce's arguments concerning claim and issue preclusion. 392 F.3d, at 1137. These issues remain open for consideration on remand. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, concurring in part and concurring in the judgment.

In Cohens v. Virginia, Chief Justice Marshall famously cautioned: "It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. We have no more right to decline the exercise of jurisdiction which is given, than to *299 usurp that which is not given." Among longstanding limitations on federal jurisdiction otherwise properly exercised are the so-called "domestic relations" and "probate" exceptions. Neither is compelled by the text of the Constitution or federal Both are judicially created doctrines stemming in large measure from misty understandings of English legal history. See, e. g., Atwood, Domestic Relations Cases in Federal Court: Toward a Principled Exercise of Jurisdiction, 35 Hastings L. J. 571, 54-5 (194); ; Winkler, The Probate Jurisdiction of the Federal Courts, 14 Probate L. J. 77, 125-126, and n. 256 (1997) (describing historical explanation for probate exception as "an exercise in mythography"). In the years following Marshall's 121 pronouncement, courts have sometimes lost sight of his admonition and have rendered decisions expansively interpreting the two exceptions. In this Court reined in the "domestic relations exception." Earlier, in the Court endeavored similarly to curtail the "probate exception." Nevertheless, the Ninth in the instant case read the probate exception broadly to exclude from the federal courts' adjudicatory authority "not only direct challenges to a will or trust, but questions which would ordinarily be decided by a probate court in determining the validity of the decedent's estate planning instrument." The Court of Appeals further held that a State's vesting of exclusive jurisdiction over probate matters in a special court strips federal courts of jurisdiction to entertain any "probate related matter," including claims respecting "tax liability, debt, gift, [or] tort." We hold that the Ninth had no warrant from Congress, *300 or from decisions of this Court, for its sweeping extension of the probate exception. I Petitioner, Vickie Lynn Marshall (Vickie), known as Anna Nicole Smith, is the surviving widow of J. Howard Marshall II (J. Howard). Vickie and J. Howard met in October 1991. After a courtship lasting more than two years, they were married on June 27, 1994. J. Howard died on August 4, 1995. Although he lavished gifts and significant sums of money on Vickie during their courtship and marriage, J. Howard did not include anything for Vickie in his According to Vickie, J. Howard intended to provide for her financial security through a gift in the form of a "catchall" trust. Respondent, E. Pierce Marshall (Pierce), one of J. Howard's sons, was the ultimate beneficiary of J. Howard's estate plan, which consisted of a living trust and a "pourover" Under the terms of the will, all of J. Howard's not already included in the trust were to be transferred to the trust upon his death. Competing claims regarding J. Howard's fortune ignited proceedings in both state and federal courts. In January 1996, while J. Howard's estate was subject to ongoing proceedings in Probate Court in Harris County, Texas, Vickie filed for bankruptcy under Chapter 11 of the Bankruptcy Code, 11 U.S. C. 1101 et seq., in the United States Bankruptcy Court for the Central District of California. See In June 1996, Pierce filed a proof of claim in the federal bankruptcy proceeding, ; see 11 U.S. C. 501, alleging that Vickie had defamed him when, shortly after J. Howard's death, lawyers representing Vickie told members of the press that Pierce had engaged in forgery, fraud, and overreaching to gain control of his father's 275 B.R., Pierce sought a declaration that *301 the debt he asserted in that claim was not dischargeable in bankruptcy. [1] Vickie answered, asserting truth as a defense. She filed counterclaims, among them a claim that Pierce had tortiously interfered with a gift she expected. ; see App. 23-25. Vickie alleged that Pierce prevented the transfer of his father's intended gift to her by, among other things: effectively imprisoning J. Howard against his wishes; surrounding him with hired guards for the purpose of preventing personal contact between him and Vickie; making misrepresentations to J. Howard; and transferring property against J. Howard's expressed wishes. Vickie's tortious interference counterclaim turned her objection to Pierce's claim into an adversary proceeding. ; see Fed. Rule Bkrtcy. Proc. 3007. In that proceeding, the Bankruptcy Court granted summary judgment in favor of Vickie on Pierce's claim and, after a trial on the merits, entered judgment for Vickie on her tortious interference counterclaim. See 55-559 The Bankruptcy Court held that both Vickie's objection to Pierce's claim and Vickie's counterclaim qualified as "core proceedings" under 2 U.S. C. 157, which meant that the court had authority to enter a final judgment disposing of those claims. See The court awarded Vickie compensatory damages of more than $449 million—less whatever she recovered in the ongoing probate action in Texas—as well as $25 million in punitive Pierce filed a post-trial motion to dismiss for lack of subject-matter jurisdiction, asserting that Vickie's tortious interference claim could be tried only in the Texas probate proceedings. The Bankruptcy Court held that *302 "the `probate exception' argument was waived" because it was not timely raised. Relying on this Court's decision in the court observed that a federal court has jurisdiction to "adjudicate rights in probate property, so long as its final judgment does not undertake to interfere with the state court's possession of the property." 257 B.R., at 3 (citing ). Meanwhile, in the Texas Probate Court, Pierce sought a declaration that the living trust and his father's will were -1125. Vickie, in turn, challenged the validity of the will and filed a tortious interference claim against Pierce, ib but voluntarily dismissed both claims once the Bankruptcy Court entered its judgment, at 112. Following a jury trial, the Probate Court declared the living trust and J. Howard's will Back in the federal forum, Pierce sought district-court review of the Bankruptcy Court's judgment. While rejecting the Bankruptcy Court's determination that Pierce had forfeited any argument based on the probate exception, the District Court held that the exception did not reach Vickie's claim. The Bankruptcy Court "did not assert jurisdiction generally over the probate proceedings or take control over [the] estate's" the District Court observed, "[t]hus, the probate exception would bar federal jurisdiction over Vickie's counterclaim only if such jurisdiction would `interfere' with the probate proceedings," (quoting ). Federal jurisdiction would not "interfere" with the probate proceedings, the District Court concluded, because: (1) success on Vickie's counterclaim did not necessitate any declaration that J. Howard's will was 264 B.R., ; and (2) under Texas law, probate courts do not have exclusive jurisdiction to entertain claims of the kind asserted in Vickie's counterclaim, The District Court held that Vickie's claim did not qualify as a "core proceedin[g] arising under title 11, or arising in a case under title 11." 2 U.S. C. 157(b)(1); see 264 *-632. A bankruptcy court may exercise plenary power only over "core proceedings." See 157(b)-(c).[2] In noncore matters, a bankruptcy court may not enter final judgment; it has authority to issue only proposed findings of fact and conclusions of law, which are reviewed de novo by the district court. See 157(c)(1). Accordingly, the District Court treated the Bankruptcy Court's judgment as "proposed[,] rather than final," and undertook a "comprehensive, complete, and independent review of" the Bankruptcy Court's determinations. *304 Adopting and supplementing the Bankruptcy Court's findings, the District Court determined that Pierce had tortiously interfered with Vickie's expectancy. Specifically, the District Court found that J. Howard directed his lawyers to prepare an inter vivos trust for Vickie consisting of half the appreciation of his from the date of their marriage. See -30, 51-53. It further found that Pierce conspired to suppress or destroy the trust instrument and to strip J. Howard of his by backdating, altering, and otherwise falsifying documents, arranging for surveillance of J. Howard and Vickie, and presenting documents to J. Howard under false pretenses. See -50, 57-5; see -556, 559-560. Based on these findings, the District Court awarded Vickie some $44.3 million in compensatory -57. In addition, finding "overwhelming" evidence of Pierce's "willfulness, maliciousness, and fraud," the District Court awarded an equal amount in punitive at 57-5. The Court of Appeals for the Ninth reversed. The appeals court recognized that Vickie's claim "does not involve the administration of an estate, the probate of a will, or any other purely probate matter." 392 F.3d, at Nevertheless, the court held that the probate exception bars federal jurisdiction in this case. In the Ninth 's view, a claim falls within the probate exception if it raises "questions which would ordinarily be decided by a probate court in determining the validity of the decedent's estate planning instrument," whether those questions involve "fraud, undue influence[, or] tortious interference with the testator's intent." The Ninth was of the view that state-court delineation of a probate court's exclusive adjudicatory authority could control federal subject-matter jurisdiction. In this regard, the Court of Appeals stated: "Where a state has relegated jurisdiction over probate matters to a special court *305 and [the] state's trial courts of general jurisdiction do not have jurisdiction to hear probate matters, then the federal courts lack jurisdiction over probate matters." Noting that "[t]he [P]robate [C]ourt ruled it had exclusive jurisdiction over all of Vickie[`s] claims," the Ninth held that "ruling binding on the United States [D]istrict [C]ourt." ). We granted certiorari, to resolve the apparent confusion among federal courts concerning the scope of the probate exception. Satisfied that the instant case does not fall within the ambit of the narrow exception recognized by our decisions, we reverse the Ninth 's judgment. II In we addressed both the derivation and the limits of the "domestic relations exception" to the exercise of federal jurisdiction. Carol a citizen of Missouri, brought suit in Federal District Court on behalf of her daughters, naming as defendants their father ('s former husband) and his female companion, both citizens of Louisiana. 's complaint sought damages for the defendants' alleged sexual and physical abuse of the children. Federal jurisdiction was predicated on diversity of citizenship. (citing 2 U.S. C. 1332). The District Court dismissed the case for lack of subject-matter jurisdiction, holding that 's suit fell within "the `domestic relations' exception to diversity jurisdiction." The Court of Appeals agreed and affirmed. We reversed the Court of Appeals' judgment. Holding that the District Court improperly refrained from exercising jurisdiction over 's tort claim, we traced explanation of the current domestic relations *306 exception to 21 How. 52 (159). See -695. In the Court upheld federal-court authority, in a diversity case, to enforce an alimony award decreed by a state court. In dicta, however, the Court announced—without citation or discussion— that federal courts lack jurisdiction over suits for divorce or the allowance of alimony. 21 How., at 54-59; see -695. Finding no Article III impediment to federal-court jurisdiction in domestic relations cases, the Court in anchored the exception in Congress' original provision for diversity jurisdiction, at 69-701. Beginning at the beginning, the Court recalled: "The Judiciary Act of 179 provided that `the circuit courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State.'" at 69 (quoting Act of Sept. 24, 179, 11, 1 Stat. 7; emphasis added in ). The defining phrase, "all suits of a civil nature at common law or in equity," the Court stressed, remained in successive statutory provisions for diversity jurisdiction until 194, when Congress adopted the more economical phrase, "all civil actions." 504 U.S., at 69; 194 Judicial Code and Judiciary Act, 2 U.S. C. 1332. The majority, we acknowledged in did not expressly tie its announcement of a domestic relations exception to the text of the diversity 504 U.S., at 69. But the dissenters in that case made the connection. They stated that English courts of chancery lacked *307 authority to issue divorce and alimony decrees. Because "the jurisdiction of the courts of the United States in chancery is bounded by that of the chancery in England," the dissenters reasoned, our federal courts similarly lack authority to decree divorces or award alimony, Such relief, in other words, would not fall within the diversity statute's original grant of jurisdiction over "all suits of a civil nature at common law or in equity." We concluded in that "it may be inferred fairly that the jurisdictional limitation recognized by the [] Court rested on th[e] statutory basis" indicated by the dissenters in that case. We were "content" in "to rest our conclusion that a domestic relations exception exists as a matter of statutory construction not on the accuracy of the historical justifications on which [the exception] was seemingly based." "[R]ather," we relied on "Congress' apparent acceptance of this construction of the diversity jurisdiction provisions in the years prior to 194, when the statute limited jurisdiction to `suits of a civil nature at common law or in equity.'" (quoting 1 Stat. 7). We further determined that Congress did not intend to terminate the exception in 194 when it "replace[d] the law/equity distinction with the phrase `all civil actions.'" 504 U.S., Absent contrary indications, we presumed that Congress meant to leave undisturbed "the Court's nearly century-long interpretation" of the diversity statute "to contain an exception for certain domestic relations matters." We nevertheless emphasized in that the exception covers only "a narrow range of domestic relations issues." The Court itself, we reminded, "sanctioned the exercise of federal jurisdiction over the enforcement of an alimony decree that had been properly obtained in a state court of competent jurisdiction." Noting that some lower federal courts had applied *30 the domestic relations exception "well beyond the circumscribed situations posed by and its progeny," we clarified that only "divorce, alimony, and child custody decrees" remain outside federal jurisdictional bounds, While recognizing the "special proficiency developed by state tribunals in handling issues that arise in the granting of [divorce, alimony, and child custody] decrees," we viewed federal courts as equally equipped to deal with complaints alleging the commission of torts, III Federal jurisdiction in this case is premised on 2 U.S. C. 1334, the statute vesting in federal district courts jurisdiction in bankruptcy cases and related proceedings. Decisions of this Court have recognized a "probate exception," kin to the domestic relations exception, to otherwise proper federal jurisdiction. See ; see (191); Like the domestic relations exception, the probate exception has been linked to language contained in the Judiciary Act of 179. the Court's most recent and pathmarking pronouncement on the probate exception, stated that "the equity jurisdiction conferred by the Judiciary Act of 179, which is that of the English Court of Chancery in 179, did not extend to probate matters." See generally Nicolas, Fighting the Probate Mafia: A Dissection of the Probate Exception to Federal Court Jurisdiction, As in so in this case, "[w]e have no occasion to join the historical debate" over the scope of English chancery jurisdiction in 179, for Vickie Marshall's claim falls far outside the bounds of the probate exception described in We therefore need not consider in this case whether there exists any *309 uncodified probate exception to federal bankruptcy jurisdiction under 1334.[3] In the plaintiff Alien Property Custodian [4] commenced suit in Federal District Court against an executor and resident heirs to determine the Custodian's asserted rights regarding a decedent's -492. Jurisdiction was predicated on 24(1) of the Judicial Code, now 2 U.S. C. 1345, which provides for federal jurisdiction over suits brought by an officer of the United States. At the time the federal suit commenced, the estate was undergoing *310 probate administration in a state court. The Custodian had issued an order vesting in himself all right, title, and interest of German legatees. He sought and gained in the District Court a judgment determining that the resident heirs had no interest in the estate, and that the Custodian, substituting himself for the German legatees, was entitled to the entire net estate, including specified real estate passing under the Reversing the Ninth which had ordered the case dismissed for want of federal subject-matter jurisdiction, this Court held that federal jurisdiction was properly invoked. The Court first stated: "It is true that a federal court has no jurisdiction to probate a will or administer an estate But it has been established by a long series of decisions of this Court that federal courts of equity have jurisdiction to entertain suits `in favor of creditors, legatees and heirs' and other claimants against a decedent's estate `to establish their claims' so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court." (quoting ). Next, the Court described a probate exception of distinctly limited scope: "[W]hile a federal court may not exercise its jurisdiction to disturb or affect the possession of property in the custody of a state court, it may exercise its jurisdiction to adjudicate rights in such property where the final judgment does not undertake to interfere with the state court's possession save to the extent that the state court is bound by the judgment to recognize the right adjudicated by the federal court." The first of the above-quoted passages from is not a model of clear statement. The Court observed that *311 federal courts have jurisdiction to entertain suits to determine the rights of creditors, legatees, heirs, and other claimants against a decedent's estate, "so long as the federal court does not interfere with the probate proceedings." Lower federal courts have puzzled over the meaning of the words "interfere with the probate proceedings," and some have read those words to block federal jurisdiction over a range of matters well beyond probate of a will or administration of a decedent's See, e. g., ; Golden ex rel. 32 F.3d 34, ; 34 F.3d 232, ; 32 F.3d 941, ; We read 's enigmatic words, in sync with the second above-quoted passage, to proscribe "disturb[ing] or affect[ing] the possession of property in the custody of a state court." True, that reading renders the first-quoted passage in part redundant, but redundancy in this context, we do not doubt, is preferable to incoherence. In short, we comprehend the "interference" language in as essentially a reiteration of the general principle that, when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. See, e. g., Penn General Casualty 294 U.S. 19, ; -46. Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate; it *312 precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction. A As the Court of Appeals correctly observed, Vickie's claim does not "involve the administration of an estate, the probate of a will, or any other purely probate matter." 392 F.3d, at Provoked by Pierce's claim in the bankruptcy proceedings, Vickie's claim, like Carol 's, alleges a widely recognized tort. See (Tex. App. 197); 4 Restatement (Second) of Torts 774B (1977) ("One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that [s]he would otherwise have received is subject to liability to the other for loss of the inheritance or gift."). Vickie seeks an in personam judgment against Pierce, not the probate or annulment of a Cf. Sutton, 246 U. S., at 20 Nor does she seek to reach a res in the custody of a state court. See Furthermore, no "sound policy considerations" militate in favor of extending the probate exception to cover the case at hand. Cf. Trial courts, both federal and state, often address conduct of the kind Vickie alleges. State probate courts possess no "special proficiency in handling [such] issues." Cf. B The Court of Appeals advanced an alternate basis for its conclusion that the federal courts lack jurisdiction over Vickie's claim. Noting that the Texas Probate Court "ruled it had exclusive jurisdiction over all of Vickie Lynn Marshall's *313 claims against E. Pierce Marshall," the Ninth held that "ruling binding on the United States [D]istrict [C]ourt." 392 F.3d, We reject that determination. Texas courts have recognized a state-law tort action for interference with an expected inheritance or gift, modeled on the Restatement formulation. See King, 725 S. W. 2d, at ; (Tex. App. 199).[5] It is clear, under Erie R. (193), that Texas law governs the substantive elements of Vickie's tortious interference claim. It is clear, however, that Texas may not reserve to its probate courts the exclusive right to adjudicate a transitory *314 tort. We have long recognized that "a State cannot create a transitory cause of action and at the same time destroy the right to sue on that transitory cause of action in any court having jurisdiction." Tennessee Coal, Iron & R. Jurisdiction is determined "by the law of the court's creation and cannot be defeated by the extraterritorial operation of a [state] statute, even though it created the right of action." Directly on point, we have held that the jurisdiction of the federal courts, "having existed from the beginning of the Federal government, [can]not be impaired by subsequent state legislation creating courts of probate." 217 U.S. 26, 21 (upholding federal jurisdiction over action by heirs of decedent, who died intestate, to determine their rights in the estate (citing )). Our decision in relied upon by the Ninth 392 F.3d, is not to the contrary. Durfee stands only for the proposition that a state court's final judgment determining its own jurisdiction ordinarily qualifies for full faith and credit, so long as the jurisdictional issue was fully and fairly litigated in the court that rendered the judgment. See 115. At issue here, however, is not the Texas Probate Court's jurisdiction, but the federal courts' jurisdiction to entertain Vickie's tortious interference claim. Under our federal system, Texas cannot render its probate courts exclusively competent to entertain a claim of that genre. We therefore hold that the District Court properly asserted jurisdiction over Vickie's counterclaim against Pierce. IV After determining that Vickie's claim was not a "core proceeding," the District Court reviewed the case de novo and entered its final judgment on March 7, -. The Texas Probate Court's judgment became final on February 11, nearly one month earlier. App. to Pet. *315 for Cert. 41. The Court of Appeals considered only the issue of federal subject-matter jurisdiction. It did not address the question whether Vickie's claim was "core"; nor did it address Pierce's arguments concerning claim and issue These issues remain open for consideration on remand. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, concurring in part and concurring in the judgment.

Justice Douglas

dissenting

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

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

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

1972-133

While I join the dissent of MR. JUSTICE STEWART, I add a few words. Funds were contributed by the States and by the Federal Government to respondent for the construction of highway overpasses and underpasses and for grade-crossing protection equipment. While the Government provided most of the funds, the respondent did most of the construction work—all as found by the Court of Claims. 197 Ct. Cl. 264, 271, 455 F.2d 993, 997-998. This case is not controlled by Detroit Edison Co. v. Commissioner, 319 U.S. 98, as MR. JUSTICE STEWART says, for there the advances were made by customers of a utility as part of "the price of the service." Id., at 103. Here, however, the situation was different. As the Court of Claims found: "[U]nder all the agreements, plaintiff was obligated to maintain and replace as necessary, at its own expense, facilities originally built. The facilities were constructed primarily for the benefit of the public to improve safety and to expedite motor-vehicle traffic flow. The record shows, however, that plaintiff received economic benefits from the facilities, e. g., probable lower accident rates, reduced expenses of operating crossing equipment and, where *417 permitted, higher train speed limits. Plaintiff also received intangible benefits, e. g., goodwill from the community-at-large, which was to plaintiff's long-term economic advantage." 197 Ct. Cl., at 272, 455 F. 2d, at 998. The case is therefore on all fours with Brown Shoe Co. v. Commissioner, 339 U.S. 583. In distinguishing Detroit Edison we said: "Since in this case there are neither customers nor payments for service, we may infer a different purpose in the transactions between petitioner and the community groups. The contributions to petitioner were provided by citizens of the respective communities who neither sought nor could have anticipated any direct service or recompense whatever, their only expectation being that such contributions might prove advantageous to the community at large. Under these circumstances the transfers manifested a definite purpose to enlarge the working capital of the company." Id., at 591. I would affirm the judgment of the Court of Claims. MR. JUSTICE STEWART, with whom MR.

While I join the dissent of MR. JUSTICE STEWART, I add a few words. Funds were contributed by the States and by the Federal Government to respondent for the construction of highway overpasses and underpasses and for grade-crossing protection equipment. While the Government provided most of the funds, the respondent did most of the construction work—all as found by the Court of Claims. This case is not controlled by Detroit Edison as MR. JUSTICE STEWART says, for there the advances were made by customers of a utility as part of "the price of the service." Here, however, the situation was different. As the Court of Claims found: "[U]nder all the agreements, plaintiff was obligated to maintain and replace as necessary, at its own expense, facilities originally built. The facilities were constructed primarily for the benefit of the public to improve safety and to expedite motor-vehicle traffic flow. The record shows, however, that plaintiff received economic benefits from the facilities, e. g., probable lower accident rates, reduced expenses of operating crossing equipment and, where *417 permitted, higher train speed limits. Plaintiff also received intangible benefits, e. g., goodwill from the community-at-large, which was to plaintiff's long-term economic advantage." 455 F. 2d, at 998. The case is therefore on all fours with Brown Shoe In distinguishing Detroit Edison we said: "Since in this case there are neither customers nor payments for service, we may infer a different purpose in the transactions between petitioner and the community groups. The contributions to petitioner were provided by citizens of the respective communities who neither sought nor could have anticipated any direct service or recompense whatever, their only expectation being that such contributions might prove advantageous to the community at large. Under these circumstances the transfers manifested a definite purpose to enlarge the working capital of the company." I would affirm the judgment of the Court of Claims. MR. JUSTICE STEWART, with whom MR.

Justice Powell

dissenting

Zacchini v. Scripps-Howard Broadcasting Co.

https://www.courtlistener.com/opinion/109730/zacchini-v-scripps-howard-broadcasting-co/

https://www.courtlistener.com/api/rest/v3/clusters/109730/

1976-177

Disclaiming any attempt to do more than decide the narrow case before us, the Court reverses the decision of the Supreme Court of Ohio based on repeated incantation of a single formula: "a performer's entire act." The holding today is summed up in one sentence: "Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent." Ante, at 574-575. I doubt that this formula provides a standard clear enough even for resolution of this case.[1] In any event, I am not persuaded that the Court's opinion is appropriately sensitive *580 to the First Amendment values at stake, and I therefore dissent. Although the Court would draw no distinction, ante, at 575, I do not view respondent's action as comparable to unauthorized commercial broadcasts of sporting events, theatrical performances, and the like where the broadcaster keeps the profits. There is no suggestion here that respondent made any such use of the film. Instead, it simply reported on what petitioner concedes to be a newsworthy event, in a way hardly surprising for a television station— by means of film coverage. The report was part of an ordinary daily news program, consuming a total of 15 seconds. It is a routine example of the press' fulfilling the informing function so vital to our system. The Court's holding that the station's ordinary news report may give rise to substantial liability[2] has disturbing implications, for the decision could lead to a degree of media self-censorship. Cf. Smith v. California, 361 U.S. 147, 150-154 (1959). Hereafter, whenever a television news editor is unsure whether certain film footage received from a camera crew might be held to portray an "entire act,"[3] he may *581 decline coverage—even of clearly newsworthy events—or confine the broadcast to watered-down verbal reporting, perhaps with an occasional still picture. The public is then the loser. This is hardly the kind of news reportage that the First Amendment is meant to foster. See generally Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 257-258 (1974); Time, Inc. v. Hill, 385 U.S. 374, 389 (1967); New York Times Co. v. Sullivan, 376 U.S. 254, 270-272, 279 (1964). In my view the First Amendment commands a different analytical starting point from the one selected by the Court. Rather than begin with a quantitative analysis of the performer's behavior—is this or is this not his entire act?— we should direct initial attention to the actions of the news media: what use did the station make of the film footage? When a film is used, as here, for a routine portion of a regular news program, I would hold that the First Amendment protects the station from a "right of publicity" or "appropriation" suit, absent a strong showing by the plaintiff that the news broadcast was a subterfuge or cover for private or commercial exploitation.[4] I emphasize that this is a "reappropriation" suit, rather than one of the other varieties of "right of privacy" tort suits identified by Dean Prosser in his classic article. Prosser, Privacy, 48 Calif. L. Rev. 383 (1960). In those other causes *582 of action the competing interests are considerably different. The plaintiff generally seeks to avoid any sort of public exposure, and the existence of constitutional privilege is therefore less likely to turn on whether the publication occurred in a news broadcast or in some other fashion. In a suit like the one before us, however, the plaintiff does not complain about the fact of exposure to the public, but rather about its timing or manner. He welcomes some publicity, but seeks to retain control over means and manner as a way to maximize for himself the monetary benefits that flow from such publication. But having made the matter public—having chosen, in essence, to make it newsworthy—he cannot, consistent with the First Amendment, complain of routine news reportage. Cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-348, 351-352 (1974) (clarifying the different liability standards appropriate in defamation suits, depending on whether or not the plaintiff is a public figure). Since the film clip here was undeniably treated as news and since there is no claim that the use was subterfuge, respondent's actions were constitutionally privileged. I would affirm. MR.

Disclaiming any attempt to do more than decide the narrow case before us, the Court reverses the decision of the Supreme Court of Ohio based on repeated incantation of a single formula: "a performer's entire act." The holding today is summed up in one sentence: "Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent." Ante, at 574-575. I doubt that this formula provides a standard clear enough even for resolution of this case.[1] In any event, I am not persuaded that the Court's opinion is appropriately sensitive *580 to the First Amendment values at stake, and I therefore dissent. Although the Court would draw no distinction, ante, at 575, I do not view respondent's action as comparable to unauthorized commercial broadcasts of sporting events, theatrical performances, and the like where the broadcaster keeps the profits. There is no suggestion here that respondent made any such use of the film. Instead, it simply reported on what petitioner concedes to be a newsworthy event, in a way hardly surprising for a television station— by means of film coverage. The report was part of an ordinary daily news program, consuming a total of 15 seconds. It is a routine example of the press' fulfilling the informing function so vital to our system. The Court's holding that the station's ordinary news report may give rise to substantial liability[2] has disturbing implications, for the decision could lead to a degree of media self-censorship. Cf. Hereafter, whenever a television news editor is unsure whether certain film footage received from a camera crew might be held to portray an "entire act,"[3] he may *581 decline coverage—even of clearly newsworthy events—or confine the broadcast to watered-down verbal reporting, perhaps with an occasional still picture. The public is then the loser. This is hardly the kind of news reportage that the First Amendment is meant to foster. See generally Miami Herald Publishing ; Time, ; New York Times In my view the First Amendment commands a different analytical starting point from the one selected by the Court. Rather than begin with a quantitative analysis of the performer's behavior—is this or is this not his entire act?— we should direct initial attention to the actions of the news media: what use did the station make of the film footage? When a film is used, as here, for a routine portion of a regular news program, I would hold that the First Amendment protects the station from a "right of publicity" or "appropriation" suit, absent a strong showing by the plaintiff that the news broadcast was a subterfuge or cover for private or commercial exploitation.[4] I emphasize that this is a "reappropriation" suit, rather than one of the other varieties of "right of privacy" tort suits identified by Dean Prosser in his classic article. Prosser, Privacy, In those other causes *582 of action the competing interests are considerably different. The plaintiff generally seeks to avoid any sort of public exposure, and the existence of constitutional privilege is therefore less likely to turn on whether the publication occurred in a news broadcast or in some other fashion. In a suit like the one before us, however, the plaintiff does not complain about the fact of exposure to the public, but rather about its timing or manner. He welcomes some publicity, but seeks to retain control over means and manner as a way to maximize for himself the monetary benefits that flow from such publication. But having made the matter public—having chosen, in essence, to make it newsworthy—he cannot, consistent with the First Amendment, complain of routine news reportage. Cf. Since the film clip here was undeniably treated as news and since there is no claim that the use was subterfuge, respondent's actions were constitutionally privileged. I would affirm. MR.

Justice Sotomayor

majority

Carr v. United States

https://www.courtlistener.com/opinion/147527/carr-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/147527/

2009-063

Since 1994, federal law has required States, as a condi tion for the receipt of certain law enforcement funds, to maintain federally compliant systems for sex-offender registration and community notification. In an effort to make these state schemes more comprehensive, uniform, and effective, Congress in 2006 enacted the Sex Offender Registration and Notification Act (SORNA or Act) as part of the Adam Walsh Child Protection and Safety Act, Pub. L. 109–248, Tit. I, 120 Stat. 590. Among its provisions, the Act established a federal criminal offense covering, inter alia, any person who (1) “is required to register under [SORNA],” (2) “travels in interstate or foreign com merce,” and (3) “knowingly fails to register or update a registration.” 18 U.S. C. §2250(a). At issue in this case is whether §2250 applies to sex offenders whose interstate travel occurred prior to SORNA’s effective date and, if so, whether the statute runs afoul of the Constitution’s prohi bition on ex post facto laws. See Art. I, §9, cl. 3. Liability under §2250, we hold, cannot be predicated on pre-SORNA travel. We therefore do not address the ex post facto question. 2 CARR v. UNITED STATES Opinion of the Court I In May 2004, petitioner Thomas Carr pleaded guilty in Alabama state court to first-degree sexual abuse. He was sentenced to 15 years’ imprisonment, with all but two years suspended. Receiving credit for time previously served, Carr was released on probation on July 3, 2004, and he registered as a sex offender as required by Ala bama law. In late 2004 or early 2005, prior to SORNA’s enactment, Carr relocated from Alabama to Indiana. He did not comply with Indiana’s sex-offender registration require ments. In July 2007, Carr came to the attention of law enforcement in Fort Wayne, Indiana, following his in volvement in a fight. On August 22, 2007, federal prosecutors filed an indict ment in the United States District Court for the Northern District of Indiana charging Carr with failing to register in violation of §2250. Carr moved to dismiss the indictment, asserting that because he traveled to Indiana prior to SORNA’s effective date, it would violate the Ex Post Facto Clause to prosecute him under §2250. The District Court denied Carr’s motion, and Carr entered a conditional guilty plea, preserving his right to appeal. He received a 30-month prison sentence. The United States Court of Appeals for the Seventh Circuit consolidated Carr’s appeal with that of a similarly situated defendant, who, in addition to raising an ex post facto claim, asserted that §2250, by its terms, does not apply to persons whose interstate travel preceded SORNA’s enactment. Beginning with the statutory argu ment, the Court of Appeals held that §2250 “does not require that the defendant’s travel postdate the Act.” United States v. Dixon, 551 F.3d 578, 582 (2008). The court relied principally on its understanding of SORNA’s underlying purpose: Cite as: 560 U. S. ____ (2010) 3 Opinion of the Court “The evil at which [the Act] is aimed is that convicted sex offenders registered in one state might move to another state, fail to register there, and thus leave the public unprotected. The concern is as acute in a case in which the offender moved before the Act was passed as in one in which he moved afterward.” Ibid. (citation omitted). The court drew an analogy to 18 U.S. C. §922(g), which prohibits convicted felons from “possess[ing] in or affecting commerc[e] any firearm or ammunition.” “The danger posed by such a felon is unaffected by when the gun crossed state lines . . . , and so it need not have crossed after the statute was passed.” 551 F.3d, at 582 (citing Scarborough v. United States, 431 U.S. 563 (1977)). According to the court, §2250(a), like §922(g), uses move ment in interstate commerce as a jurisdictional element “to establish a constitutional predicate for the statute . . . rather than to create a temporal requirement.” 551 F.3d, at 583. Reading §2250 to encompass pre-SORNA travel, the Seventh Circuit recognized, created a conflict with the Tenth Circuit’s decision in United States v. Husted, 545 F.3d 1240 (2008). In holding that §2250’s coverage “is limited to those individuals who travel in interstate com merce after the Act’s effective date,” the Tenth Circuit emphasized “Congress’s use of the present tense form of the verb ‘to travel’ . . . , which according to ordinary Eng lish grammar, does not refer to travel that has already occurred.” Id., at 1243–1244. Rejecting this analysis, the Seventh Circuit characterized Congress’ choice of tenses as “ ‘not very revealing.’ ” 551 F.3d, at 583 (quoting Scar borough, 431 U.S., at 571). Having dispensed with the statutory question, the Seventh Circuit considered the claim of Carr and his co appellant that predicating a §2250 prosecution on pre 4 CARR v. UNITED STATES Opinion of the Court SORNA travel violates the Ex Post Facto Clause. Reliance on a defendant’s pre-SORNA travel, the court concluded, poses no ex post facto problem so long as the defendant had “reasonable time” to register after SORNA took effect but failed to do so. 551 F.3d, at 585. Noting that Carr remained unregistered five months after SORNA became applicable to him, the Seventh Circuit affirmed his convic tion. Id., at 586–587. The court reversed the conviction of Carr’s co-appellant, finding that he had not been given a sufficient grace period to register. In view of the division among the Circuits as to the meaning of §2250’s “travel” requirement,1 we granted certiorari, 557 U. S. __ (2009), to decide the statute’s applicability to pre-SORNA travel and, if necessary, to consider the statute’s compliance with the Ex Post Facto Clause.2 —————— 1 While the Seventh and Tenth Circuits have confronted the question directly, other Circuits have also touched on it. Aligning itself with the Seventh Circuit, the Eleventh Circuit has analogized 18 U.S. C. §2250(a) to the felon-in-possession statute, §922(g), and applied it to a sex offender who traveled before SORNA became applicable to him. United States v. Dumont, 555 F.3d 1288, 1291–1292 (2009) (per cu riam). In contrast, the Eighth Circuit has stated in dictum that §2250(a) “punishes convicted sex offenders who travel in interstate commerce after the enactment of SORNA.” United States v. May, 535 F.3d 912, 920 (2008) (emphasis added). 2 There is a separate conflict among the Courts of Appeals as to when SORNA’s registration requirements became applicable to persons convicted of sex offenses prior to the statute’s enactment. Several Circuits, including the Seventh, have taken the position that the Act did not apply to such sex offenders until the Attorney General provided for their inclusion by issuing an interim regulation, 28 CFR §72.3, 72 Fed. Reg. 8897, on February 28, 2007. See, e.g., United States v. Hatcher, 560 F.3d 222, 226–229 (CA4 2009); United States v. Cain, 583 F.3d 408, 414–419 (CA6 2009); United States v. Dixon, 551 F.3d 578, 582 (CA7 2008) (case below); United States v. Madera, 528 F.3d 852, 857–859 (CA11 2008) (per curiam). Other Circuits have held that persons with pre-SORNA sex-offense convictions became subject to the Act’s registration requirements upon the statute’s enactment in July Cite as: 560 U. S. ____ (2010) 5 Opinion of the Court II As relevant here, §2250 provides: “(a) IN GENERAL.—Whoever— “(1) is required to register under the Sex Offender Registration and Notification Act; “(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or “(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and “(3) knowingly fails to register or update a registra tion as required by the Sex Offender Registration and Notification Act; “shall be fined under this title or imprisoned not more than 10 years, or both.” For a defendant to violate this provision, Carr and the Government agree, the statute’s three elements must “be satisfied in sequence, culminating in a post-SORNA fail —————— 2006. See, e.g., May, 535 F.3d, at 915–919; United States v. Hinckley, 550 F.3d 926, 929–935 (CA10 2008). Because Carr traveled from Alabama to Indiana before both the enactment of SORNA and the Attorney General’s regulation, we have no occasion to consider whether a pre-SORNA sex offender whose travel and failure to register occurred between July 2006 and February 2007 is subject to liability under §2250, and we express no view on that question. We similarly express no view as to whether §72.3 was properly promulgated—a question that has also divided the Circuits. Compare Cain, 583 F.3d, at 419–424 (holding that the Attorney General lacked good cause for issuing the interim regulation without adhering to the notice-and-comment and publication requirements of the Administrative Procedure Act (APA)), with United States v. Dean, No. 09–13115, 2010 WL 1687618, *3–*8 (CA11, Apr. 28, 2010) (finding no APA violation); United States v. Gould, 568 F.3d 459, 469–470 (CA4 2009) (same). 6 CARR v. UNITED STATES Opinion of the Court ure to register.” Brief for United States 13; see also Reply Brief for Petitioner 4, 7, n. 6. A sequential reading, the parties recognize, helps to assure a nexus between a de fendant’s interstate travel and his failure to register as a sex offender. Persons convicted of sex offenses under state law who fail to register in their State of conviction would otherwise be subject to federal prosecution under §2250 even if they had not left the State after being convicted— an illogical result given the absence of any obvious federal interest in punishing such state offenders.3 While both parties accept that the elements of §2250 should be read sequentially, they disagree on the event that sets the sequence in motion. In the Government’s view, the statute is triggered by a sex-offense conviction, which must be followed by interstate travel, and then a failure to register under SORNA. Only the last of these events, the Government maintains, must occur after SORNA took effect; the predicate conviction and the travel may both have predated the statute’s enactment. Carr, in contrast, asserts that the statutory sequence begins when a person becomes subject to SORNA’s registration re quirements. The person must then travel in interstate commerce and thereafter fail to register. All of these events, Carr avers, necessarily postdate SORNA’s enact ment because a sex offender could not have been required to register under SORNA until SORNA became the law. Carr’s interpretation better accords with the statutory text. By its terms, the first element of §2250(a) can only be satisfied when a person “is required to register under the Sex Offender Registration and Notification Act.” §2250(a)(1) (emphasis added). In an attempt to reconcile its preferred construction with the words of the statute, —————— 3 For persons convicted of sex offenses under federal or Indian tribal law, interstate travel is not a prerequisite to §2250 liability. See §2250(a)(2)(A). Cite as: 560 U. S. ____ (2010) 7 Opinion of the Court the Government insists that this language is merely “a shorthand way of identifying those persons who have a [sex-offense] conviction in the classes identified by SORNA.” Brief for United States 19–20. To reach this conclusion, the Government observes that another provi sion of SORNA, 42 U.S. C. §16913(a), states that the Act’s registration requirements apply to “sex offender[s].” A “sex offender” is elsewhere defined as “an individual who was convicted of a sex offense.” §16911(1). Thus, as the Government would have it, Congress used 12 words and two implied cross-references to establish that the first element of §2250(a) is that a person has been convicted of a sex offense. Such contortions can scarcely be called “shorthand.” It is far more sensible to conclude that Con gress meant the first precondition to §2250 liability to be the one it listed first: a “require[ment] to register under [SORNA].” Once a person becomes subject to SORNA’s registration requirements, which can occur only after the statute’s effective date, that person can be convicted under §2250 if he thereafter travels and then fails to register.4 That §2250 sets forth the travel requirement in the present tense (“travels”) rather than in the past or present perfect (“traveled” or “has traveled”) reinforces the conclu —————— 4 Offering a variation on the Government’s argument, the dissent contends that, “[i]n accordance with current drafting conventions, §2250(a) speaks, not as of the time when the law went into effect, but as of the time when the first act necessary for conviction is committed.” Post, at 7 (opinion of ALITO, J.). This occurs, the dissent maintains, “when an individual is convicted of a qualifying sex offense, for it is that act that triggers the requirement to register under SORNA.” Ibid. The dissent’s account cannot be squared with the statutory text. “[T]he first act necessary for conviction” under §2250(a) is not a predicate sex offense conviction. It is a requirement “to register under [SORNA].” §2250(a)(1). Thus, even if the dissent is correct that legislative drafters do not invariably use the moment of enactment to mark the dividing line between covered and uncovered acts, they have clearly done so here. 8 CARR v. UNITED STATES Opinion of the Court sion that preenactment travel falls outside the statute’s compass. Consistent with normal usage, we have fre quently looked to Congress’ choice of verb tense to ascer tain a statute’s temporal reach. See, e.g., United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in construing statutes”); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57 (1987) (“Congress could have phrased its requirement in language that looked to the past . . . , but it did not choose this readily available option”); Barrett v. United States, 423 U.S. 212, 216 (1976) (observing that Congress used the present perfect tense to “denot[e] an act that has been completed”). The Dictionary Act also as cribes significance to verb tense. It provides that, “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise[,] . . . words used in the present tense include the future as well as the present.” 1 U.S. C. §1. By implication, then, the Dictionary Act in structs that the present tense generally does not include the past. Accordingly, a statute that regulates a person who “travels” is not readily understood to encompass a person whose only travel occurred before the statute took effect. Indeed, neither the Government nor the dissent identifies any instance in which this Court has construed a present-tense verb in a criminal law to reach preenact ment conduct.5 —————— 5 The Court of Appeals quoted a Ninth Circuit decision for the propo sition that “ ‘the present tense is commonly used to refer to past, pre sent, and future all at the same time.’ ” 551 F.3d, at 583 (quoting Coalition for Clean Air v. Southern Cal. Edison Co., 971 F.2d 219, 225 (CA9 1992)). Neither court offered examples of such usage. Perhaps, as the Dictionary Act itself recognizes, there may be instances in which “context” supports this sort of omnitemporality, but it is not the typical understanding of the present tense in either normal discourse or statutory construction. Taken in context, the word “travels” as it appears in §2250 is indistinguishable from the present-tense verbs that appear in myriad other criminal statutes to proscribe conduct on a Cite as: 560 U. S. ____ (2010) 9 Opinion of the Court In this instance, the statutory context strongly supports a forward-looking construction of “travels.” First, the word “travels” is followed in §2250(a)(2)(B) by a series of other present tense verbs—“enters or leaves, or resides in, Indian country.” (Emphasis added.) This Court has previ ously described a statute’s “undeviating use of the present tense” as a “striking indic[ator]” of its “prospective orien tation.” Gwaltney, 484 U.S., at 59. The Seventh Circuit thought otherwise, reasoning that it would “mak[e] no sense” for “a sex offender who has resided in Indian coun try since long before the Act was passed [to be] subject to the Act but not someone who crossed state lines before the Act was passed.” 551 F.3d, at 583. As a textual matter, however, it is the Seventh Circuit’s approach that makes little sense: If “travels” means “traveled” (i.e., a person “travels” if he crossed state lines before SORNA’s enact ment), then the only way to avoid an incongruity among neighboring verbs would be to construe the phrase “re sides i[n] Indian country” to encompass persons who once resided in Indian country but who left before SORNA’s enactment and have not since returned—an implausible reading that neither the Seventh Circuit, nor the Govern ment, nor the dissent endorses. Second, the other elements of a §2250 violation are similarly set forth in the present tense. Sections 2250(a)(1) and (a)(3) refer, respectively, to any person who “is required to register under [SORNA]” and who “know ingly fails to register or update a registration as required —————— prospective basis. Examining a criminal law with a travel element similar to the one at issue here, the Ninth Circuit itself recently agreed that “the present tense verb ‘travels,’ most sensibly read, does not refer to travel that occurred in the past—that is, before the enactment of the statute.” United States v. Jackson, 480 F.3d 1014, 1019 (CA9 2007) (interpreting 18 U.S. C. §2423(c), which imposes criminal penalties on “[a]ny United States citizen . . . who travels in foreign commerce, and engages in any illicit sexual conduct with another person”). 10 CARR v. UNITED STATES Opinion of the Court by [SORNA].” (Emphasis added.) The Government ac cepts that this last element—a knowing failure to register or update a registration—must postdate SORNA’s enact ment. Had Congress intended preenactment conduct to satisfy the first two requirements of §2250 but not the third, it presumably would have varied the verb tenses to convey this meaning. Indeed, numerous federal statutes use the past-perfect tense to describe one or more ele ments of a criminal offense when coverage of preenact ment events is intended. See, e.g., 18 U.S. C. A. §249(a)(2)(B)(iii) (Supp. 2010) (proscribing hate crimes in which “the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce” (em phasis added)); 18 U.S. C. §922(g)(9) (2006 ed.) (proscrib ing firearm possession or transport by any person “who has been convicted” of a felony or a misdemeanor crime of domestic violence (emphasis added)); §2252(a)(2) (2006 ed., Supp. II) (making it unlawful for any person to receive or distribute a visual depiction of a minor engaging in sexually explicit conduct that “has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce” (emphasis added)). The absence of similar phrasing here provides powerful evidence that §2250 targets only postenactment travel.6 —————— 6 The dissent identifies several “SORNA provisions that plainly use the present tense to refer to events that . . . may have occurred before SORNA took effect.” Post, at 10. All of these examples appear in 42 U.S. C. §16911, a definitional section that merely elucidates the meaning of certain statutory terms and proscribes no conduct. All but two of the provisions, moreover, rely on the term “sex offender,” which §16911(1) defines to mean “an individual who was convicted of a sex offense.” (Emphasis added.) The remaining provisions are §16911(7), which simply uses “involves” rather than “involved” to define whether a prior conviction qualifies as a “specified offense against a minor,” and §16911(8), which makes plain that its present-tense reference to an offender’s age refers to age “at the time of the offense.” These examples Cite as: 560 U. S. ____ (2010) 11 Opinion of the Court III Echoing the Seventh Circuit’s assessment that Con gress’ use of present-tense verbs in §2250 is “not very revealing,” Brief for United States 17, the Government offers two principal arguments for construing the statute to cover pre-SORNA travel: First, such a reading avoids an “anomaly” in the statute’s coverage of federal versus state sex offenders; and second, it “better effectuates the statutory purpose.” Id., at 22 (capitalization omitted). Neither argument persuades us to adopt the Government’s strained reading of the statutory text. A Section 2250 imposes criminal liability on two categories of persons who fail to adhere to SORNA’s registration requirements: any person who is a sex offender “by reason of a conviction under Federal law . . . , the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States,” §2250(a)(2)(A), and any other person required to register under SORNA who “travels in interstate or foreign com merce, or enters or leaves, or resides in, Indian country,” §2250(a)(2)(B). According to the Government, these cate gories correspond to “two alternate sources of power to achieve Congress’s aim of broadly registering sex offend ers.” Id., at 22. Placing pre-SORNA travelers within the statute’s coverage, the Government maintains, “ensures that the jurisdictional reach of Section 2250(a)(2) has a —————— thus provide scant support for the proposition that §2250 uses “travels” to refer to pre-SORNA travel. Given the well-established presumption against retroactivity and, in the criminal context, the constitutional bar on ex post facto laws, it cannot be the case that a statutory prohibition set forth in the present tense applies by default to acts completed before the statute’s enactment. See Johnson v. United States, 529 U.S. 694, 701 (2000) (“Absent a clear statement of that intent, we do not give retroactive effect to statutes burdening private interests”). 12 CARR v. UNITED STATES Opinion of the Court comparable breadth as applied to both federal and state sex offenders.” Id., at 21. The Government’s pronouncement that §2250 should have an “equally broad sweep” with respect to federal and state offenders, id., at 22, is little more than ipse dixit. Had Congress intended to subject any unregistered state sex offender who has ever traveled in interstate commerce to federal prosecution under §2250, it easily could have adopted language to that effect. That it declined to do so indicates that Congress instead chose to handle federal and state sex offenders differently. There is nothing “anomal[ous]” about such a choice. To the contrary, it is entirely reasonable for Congress to have assigned the Federal Government a special role in ensuring compliance with SORNA’s registration requirements by federal sex offenders—persons who typically would have spent time under federal criminal supervision. It is similarly reason able for Congress to have given the States primary re sponsibility for supervising and ensuring compliance among state sex offenders and to have subjected such offenders to federal criminal liability only when, after SORNA’s enactment, they use the channels of interstate commerce in evading a State’s reach. In this regard, it is notable that the federal sex-offender registration laws have, from their inception, expressly relied on state-level enforcement. Indeed, when it initially set national standards for state sex-offender registration programs in 1994, Congress did not include any federal criminal liability. Congress instead conditioned certain federal funds on States’ adoption of “criminal penalties” on any person “required to register under a State program . . . who knowingly fails to so register and keep such registra tion current.” Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub. L. 103–322, Tit. XVII, §170101(c), 108 Stat. 2041, 42 U.S. C. §14071(d). Two years later, Congress supplemented state Cite as: 560 U. S. ____ (2010) 13 Opinion of the Court enforcement mechanisms by subjecting to federal prosecu tion any covered sex offender who “changes address to a State other than the State in which the person resided at the time of the immediately preceding registration” and “knowingly fails to” register as required. Pam Lychner Sexual Offender Tracking and Identification Act of 1996, Pub. L. 104–236, §2, 110 Stat. 3095, 3096, 42 U.S. C. §§14072(g)(3), (i).7 The prospective orientation of this provision is apparent. No statutory gap necessitated coverage of unregistered offenders who “change[d] ad dress” before the statute’s enactment; the prosecution of such persons remained the province of the States. In enacting SORNA, Congress preserved this basic allocation of enforcement responsibilities. To strengthen state enforcement of registration requirements, Congress established, as a funding condition, that “[e]ach jurisdic tion, other than a Federally recognized Indian tribe, shall provide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this subchapter.” §16913(e).8 Meanwhile, Congress in §2250 exposed to federal criminal liability, with penalties of up to 10 years’ imprisonment, persons required to register under SORNA over whom the Federal Government has a direct supervisory interest or who threaten the efficacy of the statutory scheme by traveling in interstate commerce. —————— 7 Pre-SORNA law also exposed to federal criminal liability any person whose State “ha[d] not established a minimally sufficient sexual offender registration program” and who was thus required to register with the Federal Bureau of Investigation (FBI). See 42 U.S. C. §§14072(c), (g)(2), (i). SORNA does not include a similar FBI registra tion requirement, presumably because, by the time of the statute’s enactment, “every State . . . had enacted some” type of registration system. Smith v. Doe, 538 U.S. 84, 90 (2003). 8 The law in Indiana, Carr’s State of residence, makes the failure to register a Class D felony, which carries a prison term of up to three years’ imprisonment. Ind. Code §§11–8–8–17(a), 35–50–2–7(a) (2009). 14 CARR v. UNITED STATES Opinion of the Court Understanding the act of travel as an aspect of the harm Congress sought to punish serves to distinguish §2250 from the felon-in-possession statute to which the Seventh Circuit analogized. See 551 F.3d, at 582–583. In Scar borough, this Court held that a prior version of the stat ute, which imposed criminal liability on any convicted felon who “ ‘possesses . . . in commerce or affecting com merce . . . any firearm,’ ” 431 U.S., at 564 (quoting 18 U.S. C. App. §1202(a) (1970 ed.)), did not require the Government to prove postenactment movement of the firearm across state lines. According to the Court, Con gress had given “no indication of any concern with either the movement of the gun or the possessor or with the time of acquisition.” 431 U.S., at 572. Its aim was simply “to keep guns out of the hands of” convicted felons, ibid., and, by using the phrase “in commerce or affecting commerce,” it invoked the full breadth of its Commerce Clause author ity to achieve that end. No one in Scarborough disputed, however, that the act of possession had to occur post enactment; a felon who “possess[ed]” a firearm only pre enactment was plainly outside the statute’s sweep. In this case, the proper analogy is not, as the Seventh Circuit suggested, between the travel of a sex offender and the movement of a firearm; it is between the sex offender who “travels” and the convicted felon who “possesses.” The act of travel by a convicted sex offender may serve as a juris dictional predicate for §2250, but it is also, like the act of possession, the very conduct at which Congress took aim. B In a final effort to justify its position, the Government invokes one of SORNA’s underlying purposes: to locate sex offenders who had failed to abide by their registration obligations. SORNA, the Government observes, was motivated at least in part by Congress’ concern about these “missing” sex offenders—a problem the House Cite as: 560 U. S. ____ (2010) 15 Opinion of the Court Committee on the Judiciary expressly linked to interstate travel: “The most significant enforcement issue in the sex offender program is that over 100,000 sex offenders, or nearly one-fifth in the Nation[,] are ‘missing,’ meaning they have not complied with sex offender registration requirements. This typically occurs when the sex offender moves from one State to another.” H. R. Rep. No. 109– 218, pt. 1, p. 26 (2005). The goal of tracking down missing sex offenders, the Government maintains, “is surely better served by making Section 2250 applicable to them in their new States of residence immediately than by waiting for them to travel in interstate commerce and fail to register yet again.” Brief for United States 23–24. The Court of Appeals expressed a similar view. See 551 F.3d, at 582.9 The Government’s argument confuses a general goal of SORNA with the specific purpose of §2250. Section 2250 is not a stand-alone response to the problem of missing sex —————— 9 Also making this point, the dissent maintains that “[i]nterpreting §2250(a)(2)(B) to reach only postenactment travel severely impairs §2250(a)’s effectiveness” by “plac[ing] beyond the reach of the federal criminal laws” “the many sex offenders who had managed to avoid pre existing registration regimes.” Post, at 14. The dissent sees “no appar ent reason why Congress would have wanted to impose such a require ment.” Ibid. Yet the dissent approves an even greater impairment. Addressing a dispute we leave unresolved, see n. 2, supra, the dissent would hold that, in enacting SORNA, “Congress remained neutral on the question whether the Act reaches those with pre-SORNA sex offense convictions.” Post, at 10. The dissent’s view, in other words, is that SORNA does not apply of its own force to any sex offenders con victed prior to the statute’s enactment—a reading wholly inconsistent with the dissent’s description of SORNA as “a response to a dangerous gap in the then-existing sex-offender-registration laws.” Post, at 13. If, as the dissent accepts, Congress left open the possibility that no preen actment offenders would face liability under §2250, then it is certainly not unreasonable to conclude that Congress limited the statute’s coverage to offenders who travel after its enactment. Indeed, it is strange to think that Congress might have enacted a statute that declined to cover pre-SORNA offenders but nevertheless covered pre- SORNA travel. 16 CARR v. UNITED STATES Opinion of the Court offenders; it is embedded in a broader statutory scheme enacted to address the deficiencies in prior law that had enabled sex offenders to slip through the cracks. See 42 U.S. C. §16901 (“Congress in this chapter establishes a comprehensive national system for the registration of [sex] offenders”). Among its many provisions, SORNA instructs States to maintain sex-offender registries that compile an array of information about sex offenders, §16914; to make this information publicly available online, §16918; to share the information with other jurisdictions and with the Attorney General for inclusion in a comprehensive na tional sex-offender registry, §§16919–16921; and to “pro vide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this subchapter,” §16913(e). Sex offenders, in turn, are re quired to “register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a stu dent,” §16913(a), and to appear in person periodically to “allow the jurisdiction to take a current photograph, and verify the information in each registry in which that of fender is required to be registered,” §16916. By facilitat ing the collection of sex-offender information and its dis semination among jurisdictions, these provisions, not §2250, stand at the center of Congress’ effort to account for missing sex offenders. Knowing that Congress aimed to reduce the number of noncompliant sex offenders thus tells us little about the specific policy choice Congress made in enacting §2250. While subjecting pre-SORNA travelers to punishment under §2250 may well be consistent with the aim of find ing missing sex offenders, a contrary construction in no way frustrates that broad goal. Taking account of SORNA’s overall structure, we have little reason to doubt that Congress intended §2250 to do exactly what it says: Cite as: 560 U. S. ____ (2010) 17 Opinion of the Court to subject to federal prosecution sex offenders who elude SORNA’s registration requirements by traveling in inter state commerce. Cf. Mertens v. Hewitt Associates, 508 U.S. 248, 261 (1993) (“[V]ague notions of a statute’s ‘basic purpose’ are . . . inadequate to overcome the words of its text regarding the specific issue under consideration”). C None of the legislative materials the Government cites as evidence of SORNA’s purpose calls this reading into question. To the contrary, the report of the House Judici ary Committee suggests not only that a prohibition on postenactment travel is consonant with Congress’ goals, but also that it is the rule Congress in fact chose to adopt. As the Government acknowledges, the bill under consid eration by the Committee contained a version of §2250 that “would not have reached pre-enactment interstate travel.” Brief for United States 24, n. 9. This earlier version imposed federal criminal penalties on any person who “receives a notice from an official that such person is required to register under [SORNA] and . . . thereafter travels in interstate or foreign commerce, or enters or leaves Indian country.” H. R. Rep. No. 109–218, pt. 1, at 9; see also id., at 26 (“[S]ex offenders will now face Federal prosecution . . . if they cross a State line and fail to comply with the sex offender registration and notification re quirements contained in the legislation”). Yet this did not stop the Committee from describing its legislation as a solution to the problem of missing sex offenders. See id., at 23–24, 26, 45–46. The Government identifies nothing in the legislative record to suggest that, in modifying this language during the course of the legislative process, Congress intended to alter the statute’s temporal sweep.10 —————— 10 Among other changes, Congress eliminated the language that con ditioned liability on proof of notice, and it removed the word “thereaf ter,” presumably as redundant in light of the sequential structure of the 18 CARR v. UNITED STATES Opinion of the Court At the very least, the close correspondence between the Committee’s discussion of missing sex offenders and its recognition of the travel element’s prospective application would seem to confirm that reading §2250 to reach only postenactment travel does not contravene SORNA’s un derlying purposes, let alone result in an absurdity that would compel us to disregard the statutory text. Cf. Ar lington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 296 (2006) (“We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the statutory language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms” (internal quotation marks and citation omitted)). * * * Having concluded that §2250 does not extend to preen actment travel, we need not consider whether such a construction would present difficulties under the Constitu tion’s Ex Post Facto Clause. The judgment of the United States Court of Appeals for the Seventh Circuit is re versed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— enacted statute. Cite as: 560 U. S. ____ (2010) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES _________________ No. 08–1301 _________________ THOMAS CARR, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT [June 1, 2010] JUSTICE SCALIA, concurring in part and concurring in the judgment. I join the Court’s opinion except for Part III–C. I do not join that part because only the text Congress voted on, and not unapproved statements made or comments written during its drafting and enactment process, is an authori tative indicator of the law. But even if those preenact ment materials were relevant, it would be unnecessary to address them here. The Court’s thorough discussion of text, context, and structure, ante, at 5–17, demonstrates that the meaning of 18 U.S. C. §2250(a) is plain. As the Court acknowledges, ante, at 18, but does not heed, we must not say more: “We have stated time and again that courts must pre sume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–254 (1992) (citations and internal quo tation marks omitted). Cite as: 560 U. S. ____ (2010) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 08–1301 _________________ THOMAS CARR, PETITIONER v.

Since 1994, federal law has required States, as a condi tion for the receipt of certain law enforcement funds, to maintain federally compliant systems for sex-offender registration and community notification. In an effort to make these state schemes more comprehensive, uniform, and effective, Congress in 006 enacted the Sex Offender Registration and Notification Act (SORNA or Act) as part of the Adam Walsh Child Protection and Safety Act, Pub. L. 109–48, Tit. I, Among its provisions, the Act established a federal criminal offense covering, inter alia, any person who (1) “is required to register under [SORNA],” () “travels in interstate or foreign com merce,” and (3) “knowingly fails to register or update a registration.” 18 U.S. C. At issue in this case is whether applies to sex offenders whose interstate travel occurred prior to SORNA’s effective date and, if so, whether the statute runs afoul of the Constitution’s prohi bition on ex post facto laws. See Art. I, cl. 3. Liability under we hold, cannot be predicated on pre-SORNA travel. We therefore do not address the ex post facto question. CARR v. UNITED STATES Opinion of the Court I In 004, petitioner Thomas Carr pleaded guilty in Alabama state court to first-degree sexual abuse. He was sentenced to 15 years’ imprisonment, with all but two years suspended. Receiving credit for time previously served, Carr was released on probation on July 3, 004, and he registered as a sex offender as required by Ala bama law. In late 004 or early 005, prior to SORNA’s enactment, Carr relocated from Alabama to Indiana. He did not comply with Indiana’s sex-offender registration require ments. In July Carr came to the attention of law enforcement in Fort Wayne, Indiana, following his in volvement in a fight. On August federal prosecutors filed an indict ment in the United States District Court for the Northern District of Indiana charging Carr with failing to register in violation of Carr moved to dismiss the indictment, asserting that because he traveled to Indiana prior to SORNA’s effective date, it would violate the Ex Post Facto Clause to prosecute him under The District Court denied Carr’s motion, and Carr entered a conditional guilty plea, preserving his right to appeal. He received a 30-month prison sentence. The United States Court of Appeals for the Seventh Circuit consolidated Carr’s appeal with that of a similarly situated defendant, who, in addition to raising an ex post facto claim, asserted that by its terms, does not apply to persons whose interstate travel preceded SORNA’s enactment. Beginning with the statutory argu ment, the Court of Appeals held that “does not require that the defendant’s travel postdate the Act.” United The court relied principally on its understanding of SORNA’s underlying purpose: Cite as: 560 U. S. (010) 3 Opinion of the Court “The evil at which [the Act] is aimed is that convicted sex offenders registered in one state might move to another state, fail to register there, and thus leave the public unprotected. The concern is as acute in a case in which the offender moved before the Act was passed as in one in which he moved afterward.” (citation omitted). The court drew an analogy to 18 U.S. C. which prohibits convicted felons from “possess[ing] in or affecting commerc[e] any firearm or ammunition.” “The danger posed by such a felon is unaffected by when the gun crossed state lines and so it need not have crossed after the statute was passed.” 551 F.3d, at ). According to the court, (a), like uses move ment in interstate commerce as a jurisdictional element “to establish a constitutional predicate for the statute rather than to create a temporal requirement.” 551 F.3d, at 583. Reading to encompass pre-SORNA travel, the Seventh Circuit recognized, created a conflict with the Tenth Circuit’s decision in United States v. Husted, 545 F.3d 140 In holding that ’s coverage “is limited to those individuals who travel in interstate com merce after the Act’s effective date,” the Tenth Circuit emphasized “Congress’s use of the present tense form of the verb ‘to travel’ which according to ordinary Eng lish grammar, does not refer to travel that has already occurred.” at 143–144. Rejecting this analysis, the Seventh Circuit characterized Congress’ choice of tenses as “ ‘not very revealing.’ ” (quoting Scar ). Having dispensed with the statutory question, the Seventh Circuit considered the claim of Carr and his co appellant that predicating a prosecution on pre 4 CARR v. UNITED STATES Opinion of the Court SORNA travel violates the Ex Post Facto Clause. Reliance on a defendant’s pre-SORNA travel, the court concluded, poses no ex post facto problem so long as the defendant had “reasonable time” to register after SORNA took effect but failed to do Noting that Carr remained unregistered five months after SORNA became applicable to him, the Seventh Circuit affirmed his convic tion. at 586–587. The court reversed the conviction of Carr’s co-appellant, finding that he had not been given a sufficient grace period to register. In view of the division among the Circuits as to the meaning of ’s “travel” requirement,1 we granted certiorari, 557 U. S. to decide the statute’s applicability to pre-SORNA travel and, if necessary, to consider the statute’s compliance with the Ex Post Facto Clause. —————— 1 While the Seventh and Tenth Circuits have confronted the question directly, other Circuits have also touched on it. Aligning itself with the Seventh Circuit, the Eleventh Circuit has analogized 18 U.S. C. (a) to the felon-in-possession statute, and applied it to a sex offender who traveled before SORNA became applicable to him. United (per cu riam). In contrast, the Eighth Circuit has stated in dictum that (a) “punishes convicted sex offenders who travel in interstate commerce after the enactment of SORNA.” United States v. 535 F.3d 91, 90 (emphasis added). There is a separate conflict among the Courts of Appeals as to when SORNA’s registration requirements became applicable to persons convicted of sex offenses prior to the statute’s enactment. Several Circuits, including the Seventh, have taken the position that the Act did not apply to such sex offenders until the Attorney General provided for their inclusion by issuing an interim regulation, 7 Fed. Reg. 8897, on February 8, See, e.g., United States v. Hatcher, ; United States v. 583 F.3d 408, 414–419 ; United (case below); United 857–859 (per curiam). Other Circuits have held that persons with pre-SORNA sex-offense convictions became subject to the Act’s registration requirements upon the statute’s enactment in July Cite as: 560 U. S. (010) 5 Opinion of the Court II As relevant here, provides: “(a) IN GENERAL.—Whoever— “(1) is required to register under the Sex Offender Registration and Notification Act; “()(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or “(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and “(3) knowingly fails to register or update a registra tion as required by the Sex Offender Registration and Notification Act; “shall be fined under this title or imprisoned not more than 10 years, or both.” For a defendant to violate this provision, Carr and the Government agree, the statute’s three elements must “be satisfied in sequence, culminating in a post-SORNA fail —————— 006. See, e.g., –919; United Because Carr traveled from Alabama to Indiana before both the enactment of SORNA and the Attorney General’s regulation, we have no occasion to consider whether a pre-SORNA sex offender whose travel and failure to register occurred between July 006 and February is subject to liability under and we express no view on that question. We similarly express no view as to whether was properly promulgated—a question that has also divided the Circuits. Compare –44 (holding that the Attorney General lacked good cause for issuing the interim regulation without adhering to the notice-and-comment and publication requirements of the Administrative Procedure Act (APA)), with United *3–*8 (CA11, Apr. 8, 010) (finding no APA violation); United States v. Gould, 6 CARR v. UNITED STATES Opinion of the Court ure to register.” Brief for United States 13; see also Reply Brief for Petitioner 4, 7, n. 6. A sequential reading, the parties recognize, helps to assure a nexus between a de fendant’s interstate travel and his failure to register as a sex offender. Persons convicted of sex offenses under state law who fail to register in their State of conviction would otherwise be subject to federal prosecution under even if they had not left the State after being convicted— an illogical result given the absence of any obvious federal interest in punishing such state offenders.3 While both parties accept that the elements of should be read sequentially, they disagree on the event that sets the sequence in motion. In the Government’s view, the statute is triggered by a sex-offense conviction, which must be followed by interstate travel, and then a failure to register under SORNA. Only the last of these events, the Government maintains, must occur after SORNA took effect; the predicate conviction and the travel may both have predated the statute’s enactment. Carr, in contrast, asserts that the statutory sequence begins when a person becomes subject to SORNA’s registration re quirements. The person must then travel in interstate commerce and thereafter fail to register. All of these events, Carr avers, necessarily postdate SORNA’s enact ment because a sex offender could not have been required to register under SORNA until SORNA became the law. Carr’s interpretation better accords with the statutory text. By its terms, the first element of (a) can only be satisfied when a person “is required to register under the Sex Offender Registration and Notification Act.” (a)(1) (emphasis added). In an attempt to reconcile its preferred construction with the words of the statute, —————— 3 For persons convicted of sex offenses under federal or Indian tribal law, interstate travel is not a prerequisite to liability. See (a)()(A). Cite as: 560 U. S. (010) 7 Opinion of the Court the Government insists that this language is merely “a shorthand way of identifying those persons who have a [sex-offense] conviction in the classes identified by SORNA.” Brief for United States 19–0. To reach this conclusion, the Government observes that another provi sion of SORNA, 4 U.S. C. states that the Act’s registration requirements apply to “sex offender[s].” A “sex offender” is elsewhere defined as “an individual who was convicted of a sex offense.” Thus, as the Government would have it, Congress used 1 words and two implied cross-references to establish that the first element of (a) is that a person has been convicted of a sex offense. Such contortions can scarcely be called “shorthand.” It is far more sensible to conclude that Con gress meant the first precondition to liability to be the one it listed first: a “require[ment] to register under [SORNA].” Once a person becomes subject to SORNA’s registration requirements, which can occur only after the statute’s effective date, that person can be convicted under if he thereafter travels and then fails to register.4 That sets forth the travel requirement in the present tense (“travels”) rather than in the past or present perfect (“traveled” or “has traveled”) reinforces the conclu —————— 4 Offering a variation on the Government’s argument, the dissent contends that, “[i]n accordance with current drafting conventions, (a) speaks, not as of the time when the law went into effect, but as of the time when the first act necessary for conviction is committed.” Post, at 7 (opinion of ALITO, J.). This occurs, the dissent maintains, “when an individual is convicted of a qualifying sex offense, for it is that act that triggers the requirement to register under SORNA.” The dissent’s account cannot be squared with the statutory text. “[T]he first act necessary for conviction” under (a) is not a predicate sex offense conviction. It is a requirement “to register under [SORNA].” (a)(1). Thus, even if the dissent is correct that legislative drafters do not invariably use the moment of enactment to mark the dividing line between covered and uncovered acts, they have clearly done so here. 8 CARR v. UNITED STATES Opinion of the Court sion that preenactment travel falls outside the statute’s compass. Consistent with normal usage, we have fre quently looked to Congress’ choice of verb tense to ascer tain a statute’s temporal reach. See, e.g., United States v. Wilson, (“Congress’ use of a verb tense is significant in construing statutes”); of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57 (1987) (“Congress could have phrased its requirement in language that looked to the past but it did not choose this readily available option”); Barrett v. United States, (observing that Congress used the present perfect tense to “denot[e] an act that has been completed”). The Dictionary Act also as cribes significance to verb tense. It provides that, “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise[,] words used in the present tense include the future as well as the present.” 1 U.S. C. By implication, then, the Dictionary Act in structs that the present tense generally does not include the past. Accordingly, a statute that regulates a person who “travels” is not readily understood to encompass a person whose only travel occurred before the statute took effect. Indeed, neither the Government nor the dissent identifies any instance in which this Court has construed a present-tense verb in a criminal law to reach preenact ment conduct.5 —————— 5 The Court of Appeals quoted a Ninth Circuit decision for the propo sition that “ ‘the present tense is commonly used to refer to past, pre sent, and future all at the same time.’ ” ). Neither court offered examples of such usage. Perhaps, as the Dictionary Act itself recognizes, there may be instances in which “context” supports this sort of omnitemporality, but it is not the typical understanding of the present tense in either normal discourse or statutory construction. Taken in context, the word “travels” as it appears in is indistinguishable from the present-tense verbs that appear in myriad other criminal statutes to proscribe conduct on a Cite as: 560 U. S. (010) 9 Opinion of the Court In this instance, the statutory context strongly supports a forward-looking construction of “travels.” First, the word “travels” is followed in (a)()(B) by a series of other present tense verbs—“enters or leaves, or resides in, Indian country.” (Emphasis added.) This Court has previ ously described a statute’s “undeviating use of the present tense” as a “striking indic[ator]” of its “prospective orien tation.” The Seventh Circuit thought otherwise, reasoning that it would “mak[e] no sense” for “a sex offender who has resided in Indian coun try since long before the Act was passed [to be] subject to the Act but not someone who crossed state lines before the Act was passed.” As a textual matter, however, it is the Seventh Circuit’s approach that makes little sense: If “travels” means “traveled” (i.e., a person “travels” if he crossed state lines before SORNA’s enact ment), then the only way to avoid an incongruity among neighboring verbs would be to construe the phrase “re sides i[n] Indian country” to encompass persons who once resided in Indian country but who left before SORNA’s enactment and have not since returned—an implausible reading that neither the Seventh Circuit, nor the Govern ment, nor the dissent endorses. Second, the other elements of a violation are similarly set forth in the present tense. Sections 0(a)(1) and (a)(3) refer, respectively, to any person who “is required to register under [SORNA]” and who “know ingly fails to register or update a registration as required —————— prospective basis. Examining a criminal law with a travel element similar to the one at issue here, the Ninth Circuit itself recently agreed that “the present tense verb ‘travels,’ most sensibly read, does not refer to travel that occurred in the past—that is, before the enactment of the statute.” United (interpreting 18 U.S. C. which imposes criminal penalties on “[a]ny United States citizen who travels in foreign commerce, and engages in any illicit sexual conduct with another person”). 10 CARR v. UNITED STATES Opinion of the Court by [SORNA].” (Emphasis added.) The Government ac cepts that this last element—a knowing failure to register or update a registration—must postdate SORNA’s enact ment. Had Congress intended preenactment conduct to satisfy the first two requirements of but not the third, it presumably would have varied the verb tenses to convey this meaning. Indeed, numerous federal statutes use the past-perfect tense to describe one or more ele ments of a criminal offense when coverage of preenact ment events is intended. See, e.g., 18 U.S. C. A. (Supp. 010) (proscribing hate crimes in which “the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce” (em phasis added)); 18 U.S. C. (006 ed.) (proscrib ing firearm possession or transport by any person “who has been convicted” of a felony or a misdemeanor crime of domestic violence (emphasis added)); §(a)() (006 ed., Supp. II) (making it unlawful for any person to receive or distribute a visual depiction of a minor engaging in sexually explicit conduct that “has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce” (emphasis added)). The absence of similar phrasing here provides powerful evidence that targets only postenactment travel.6 —————— 6 The dissent identifies several “SORNA provisions that plainly use the present tense to refer to events that may have occurred before SORNA took effect.” Post, at 10. All of these examples appear in 4 U.S. C. a definitional section that merely elucidates the meaning of certain statutory terms and proscribes no conduct. All but two of the provisions, moreover, rely on the term “sex offender,” which defines to mean “an individual who was convicted of a sex offense.” (Emphasis added.) The remaining provisions are which simply uses “involves” rather than “involved” to define whether a prior conviction qualifies as a “specified offense against a minor,” and which makes plain that its present-tense reference to an offender’s age refers to age “at the time of the offense.” These examples Cite as: 560 U. S. (010) 11 Opinion of the Court III Echoing the Seventh Circuit’s assessment that Con gress’ use of present-tense verbs in is “not very revealing,” Brief for United States 17, the Government offers two principal arguments for construing the statute to cover pre-SORNA travel: First, such a reading avoids an “anomaly” in the statute’s coverage of federal versus state sex offenders; and second, it “better effectuates the statutory purpose.” Neither argument persuades us to adopt the Government’s strained reading of the statutory text. A Section 0 imposes criminal liability on two categories of persons who fail to adhere to SORNA’s registration requirements: any person who is a sex offender “by reason of a conviction under Federal law the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States,” (a)()(A), and any other person required to register under SORNA who “travels in interstate or foreign com merce, or enters or leaves, or resides in, Indian country,” (a)()(B). According to the Government, these cate gories correspond to “two alternate sources of power to achieve Congress’s aim of broadly registering sex offend ers.” Placing pre-SORNA travelers within the statute’s coverage, the Government maintains, “ensures that the jurisdictional reach of Section 0(a)() has a —————— thus provide scant support for the proposition that uses “travels” to refer to pre-SORNA travel. Given the well-established presumption against retroactivity and, in the criminal context, the constitutional bar on ex post facto laws, it cannot be the case that a statutory prohibition set forth in the present tense applies by default to acts completed before the statute’s enactment. See 701 (000) (“Absent a clear statement of that intent, we do not give retroactive effect to statutes burdening private interests”). 1 CARR v. UNITED STATES Opinion of the Court comparable breadth as applied to both federal and state sex offenders.” The Government’s pronouncement that should have an “equally broad sweep” with respect to federal and state offenders, is little more than ipse dixit. Had Congress intended to subject any unregistered state sex offender who has ever traveled in interstate commerce to federal prosecution under it easily could have adopted language to that effect. That it declined to do so indicates that Congress instead chose to handle federal and state sex offenders differently. There is nothing “anomal[ous]” about such a choice. To the contrary, it is entirely reasonable for Congress to have assigned the Federal Government a special role in ensuring compliance with SORNA’s registration requirements by federal sex offenders—persons who typically would have spent time under federal criminal supervision. It is similarly reason able for Congress to have given the States primary re sponsibility for supervising and ensuring compliance among state sex offenders and to have subjected such offenders to federal criminal liability only when, after SORNA’s enactment, they use the channels of interstate commerce in evading a State’s reach. In this regard, it is notable that the federal sex-offender registration laws have, from their inception, expressly relied on state-level enforcement. Indeed, when it initially set national standards for state sex-offender registration programs in 1994, Congress did not include any federal criminal liability. Congress instead conditioned certain federal funds on States’ adoption of “criminal penalties” on any person “required to register under a State program who knowingly fails to so register and keep such registra tion current.” Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub. L. 103–3, Tit. XVII, 4 U.S. C. Two years later, Congress supplemented state Cite as: 560 U. S. (010) 13 Opinion of the Court enforcement mechanisms by subjecting to federal prosecu tion any covered sex offender who “changes address to a State other than the State in which the person resided at the time of the immediately preceding registration” and “knowingly fails to” register as required. Pam Lychner Sexual Offender Tracking and Identification Act of 1996, Pub. L. 104–36, 3096, 4 U.S. C. (i).7 The prospective orientation of this provision is apparent. No statutory gap necessitated coverage of unregistered offenders who “change[d] ad dress” before the statute’s enactment; the prosecution of such persons remained the province of the States. In enacting SORNA, Congress preserved this basic allocation of enforcement responsibilities. To strengthen state enforcement of registration requirements, Congress established, as a funding condition, that “[e]ach jurisdic tion, other than a Federally recognized Indian tribe, shall provide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this subchapter.” Meanwhile, Congress in exposed to federal criminal liability, with penalties of up to 10 years’ imprisonment, persons required to register under SORNA over whom the Federal Government has a direct supervisory interest or who threaten the efficacy of the statutory scheme by traveling in interstate commerce. —————— 7 Pre-SORNA law also exposed to federal criminal liability any person whose State “ha[d] not established a minimally sufficient sexual offender registration program” and who was thus required to register with the Federal Bureau of Investigation (FBI). See 4 U.S. C. (g)(), (i). SORNA does not include a similar FBI registra tion requirement, presumably because, by the time of the statute’s enactment, “every State had enacted some” type of registration system. 8 The law in Indiana, Carr’s State of residence, makes the failure to register a Class D felony, which carries a prison term of up to three years’ imprisonment. –8–8–17(a), 35–50––7(a) 14 CARR v. UNITED STATES Opinion of the Court Understanding the act of travel as an aspect of the harm Congress sought to punish serves to distinguish from the felon-in-possession statute to which the Seventh Circuit analogized. See 551 F.3d, at –583. In Scar this Court held that a prior version of the stat ute, which imposed criminal liability on any convicted felon who “ ‘possesses in commerce or affecting com merce any firearm,’ ” (quoting 18 U.S. C. App. (1970 ed.)), did not require the Government to prove postenactment movement of the firearm across state lines. According to the Court, Con gress had given “no indication of any concern with either the movement of the gun or the possessor or with the time of acquisition.” Its aim was simply “to keep guns out of the hands of” convicted felons, ib and, by using the phrase “in commerce or affecting commerce,” it invoked the full breadth of its Commerce Clause author ity to achieve that end. No one in Scar disputed, however, that the act of possession had to occur post enactment; a felon who “possess[ed]” a firearm only pre enactment was plainly outside the statute’s sweep. In this case, the proper analogy is not, as the Seventh Circuit suggested, between the travel of a sex offender and the movement of a firearm; it is between the sex offender who “travels” and the convicted felon who “possesses.” The act of travel by a convicted sex offender may serve as a juris dictional predicate for but it is also, like the act of possession, the very conduct at which Congress took aim. B In a final effort to justify its position, the Government invokes one of SORNA’s underlying purposes: to locate sex offenders who had failed to abide by their registration obligations. SORNA, the Government observes, was motivated at least in part by Congress’ concern about these “missing” sex offenders—a problem the House Cite as: 560 U. S. (010) 15 Opinion of the Court Committee on the Judiciary expressly linked to interstate travel: “The most significant enforcement issue in the sex offender program is that over 100,000 sex offenders, or nearly one-fifth in the Nation[,] are ‘missing,’ meaning they have not complied with sex offender registration requirements. This typically occurs when the sex offender moves from one State to another.” H. R. Rep. No. 109– 18, pt. 1, p. 6 (005). The goal of tracking down missing sex offenders, the Government maintains, “is surely better served by making Section 0 applicable to them in their new States of residence immediately than by waiting for them to travel in interstate commerce and fail to register yet again.” Brief for United States 3–4. The Court of Appeals expressed a similar view. See 551 F.3d, at9 The Government’s argument confuses a general goal of SORNA with the specific purpose of Section 0 is not a stand-alone response to the problem of missing sex —————— 9 Also making this point, the dissent maintains that “[i]nterpreting (a)()(B) to reach only postenactment travel severely impairs (a)’s effectiveness” by “plac[ing] beyond the reach of the federal criminal laws” “the many sex offenders who had managed to avoid pre existing registration regimes.” Post, at 14. The dissent sees “no appar ent reason why Congress would have wanted to impose such a require ment.” Yet the dissent approves an even greater impairment. Addressing a dispute we leave unresolved, see n. the dissent would hold that, in enacting SORNA, “Congress remained neutral on the question whether the Act reaches those with pre-SORNA sex offense convictions.” Post, at 10. The dissent’s view, in other words, is that SORNA does not apply of its own force to any sex offenders con victed prior to the statute’s enactment—a reading wholly inconsistent with the dissent’s description of SORNA as “a response to a dangerous gap in the then-existing sex-offender-registration laws.” Post, at 13. If, as the dissent accepts, Congress left open the possibility that no preen actment offenders would face liability under then it is certainly not unreasonable to conclude that Congress limited the statute’s coverage to offenders who travel after its enactment. Indeed, it is strange to think that Congress might have enacted a statute that declined to cover pre-SORNA offenders but nevertheless covered pre- SORNA travel. 16 CARR v. UNITED STATES Opinion of the Court offenders; it is embedded in a broader statutory scheme enacted to address the deficiencies in prior law that had enabled sex offenders to slip through the cracks. See 4 U.S. C. §161 (“Congress in this chapter establishes a comprehensive national system for the registration of [sex] offenders”). Among its many provisions, SORNA instructs States to maintain sex-offender registries that compile an array of information about sex offenders, to make this information publicly available online, to share the information with other jurisdictions and with the Attorney General for inclusion in a comprehensive na tional sex-offender registry, §§16919–1691; and to “pro vide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this subchapter,” Sex offenders, in turn, are re quired to “register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a stu dent,” and to appear in person periodically to “allow the jurisdiction to take a current photograph, and verify the information in each registry in which that of fender is required to be registered,” By facilitat ing the collection of sex-offender information and its dis semination among jurisdictions, these provisions, not stand at the center of Congress’ effort to account for missing sex offenders. Knowing that Congress aimed to reduce the number of noncompliant sex offenders thus tells us little about the specific policy choice Congress made in enacting While subjecting pre-SORNA travelers to punishment under may well be consistent with the aim of find ing missing sex offenders, a contrary construction in no way frustrates that broad goal. Taking account of SORNA’s overall structure, we have little reason to doubt that Congress intended to do exactly what it says: Cite as: 560 U. S. (010) 17 Opinion of the Court to subject to federal prosecution sex offenders who elude SORNA’s registration requirements by traveling in inter state commerce. Cf. Mertens v. Hewitt Associates, 508 U.S. 48, 61 (1993) (“[V]ague notions of a statute’s ‘basic purpose’ are inadequate to overcome the words of its text regarding the specific issue under consideration”). C None of the legislative materials the Government cites as evidence of SORNA’s purpose calls this reading into question. To the contrary, the report of the House Judici ary Committee suggests not only that a prohibition on postenactment travel is consonant with Congress’ goals, but also that it is the rule Congress in fact chose to adopt. As the Government acknowledges, the bill under consid eration by the Committee contained a version of that “would not have reached pre-enactment interstate travel.” Brief for United States 4, n. 9. This earlier version imposed federal criminal penalties on any person who “receives a notice from an official that such person is required to register under [SORNA] and thereafter travels in interstate or foreign commerce, or enters or leaves Indian country.” H. R. Rep. No. 109–18, pt. 1, at 9; see also at 6 (“[S]ex offenders will now face Federal prosecution if they cross a State line and fail to comply with the sex offender registration and notification re quirements contained in the legislation”). Yet this did not stop the Committee from describing its legislation as a solution to the problem of missing sex offenders. See at 3–4, 6, 45–46. The Government identifies nothing in the legislative record to suggest that, in modifying this language during the course of the legislative process, Congress intended to alter the statute’s temporal sweep.10 —————— 10 Among other changes, Congress eliminated the language that con ditioned liability on proof of notice, and it removed the word “thereaf ter,” presumably as redundant in light of the sequential structure of the 18 CARR v. UNITED STATES Opinion of the Court At the very least, the close correspondence between the Committee’s discussion of missing sex offenders and its recognition of the travel element’s prospective application would seem to confirm that reading to reach only postenactment travel does not contravene SORNA’s un derlying purposes, let alone result in an absurdity that would compel us to disregard the statutory text. Cf. Ar lington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 91, 96 (006) (“We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the statutory language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms” (internal quotation marks and citation omitted)). * * * Having concluded that does not extend to preen actment travel, we need not consider whether such a construction would present difficulties under the Constitu tion’s Ex Post Facto Clause. The judgment of the United States Court of Appeals for the Seventh Circuit is re versed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— enacted statute. Cite as: 560 U. S. (010) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES No. 08–1301 THOMAS CARR, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT [June 1, 010] JUSTICE SCALIA, concurring in part and concurring in the judgment. I join the Court’s opinion except for Part III–C. I do not join that part because only the text Congress voted on, and not unapproved statements made or comments written during its drafting and enactment process, is an authori tative indicator of the law. But even if those preenact ment materials were relevant, it would be unnecessary to address them here. The Court’s thorough discussion of text, context, and structure, ante, at 5–17, demonstrates that the meaning of 18 U.S. C. (a) is plain. As the Court acknowledges, ante, at 18, but does not heed, we must not say more: “We have stated time and again that courts must pre sume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.” Connecticut Nat. Bank v. Germain, 503 U.S. 49, 53–54 (citations and internal quo tation marks omitted). Cite as: 560 U. S. (010) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 08–1301 THOMAS CARR, PETITIONER v.

Justice Stewart

majority

Arizona Public Service Co. v. Snead

https://www.courtlistener.com/opinion/110058/arizona-public-service-co-v-snead/

https://www.courtlistener.com/api/rest/v3/clusters/110058/

1978-075

New Mexico has imposed a tax on the privilege of generating electricity within its borders. The question in this case is whether that tax conflicts with federal law, statutory or constitutional. I The Four Corners power plants, located in New Mexico's desert northwest, are owned by the appellants, five public utilities companies.[1] Most of the electricity generated at the plants is ultimately sold to out-of-state consumers.[2] New *143 Mexico imposes a 4% gross receipts tax on retail sellers of electricity,[3] but since the bulk of the appellants' sales are made to consumers in other States, they do not incur significant liability for this tax. In 1975, New Mexico enacted the Electrical Energy Tax Act, the law at issue in this case.[4] That Act imposes a tax on the privilege of generating electricity at the rate of 4/10 of a mill on each net kilowatt hour of electricity generated. This is roughly equivalent to a 2% tax on the retail value of the electricity. The tax is imposed on all companies generating electricity within the State. Section 9 of the Act, however, provides that this electrical energy tax may be fully credited against the company's gross receipts tax liability. The Act and the regulations implementing it insure that the electrical generating company will receive full credit for the *144 tax even if it does not itself make retail sales of electricity. This result is accomplished by requiring the generating company to assign its "potential credit" to the retailer, who in turn is required to reimburse the generating company for the value of this credit.[5] The consequence is that a generating *145 company's 2% tax is completely offset by the credit against the 4% retail sales tax when its electricity is sold within New Mexico. But to the extent that the electricity generated in New Mexico is not sold at retail in the State, there is no gross receipts tax liability against which to offset the electrical energy tax liability of the generating company. In 1976, the State of Arizona, as a consumer of electricity and parens patriae for its citizens, sought to invoke this Court's original jurisdiction by a motion for leave to file a bill of complaint against New Mexico, asking for a declaratory judgment invalidating this New Mexico tax. The litigation now before us had already been initiated in the New Mexico courts by the present appellants, seeking essentially the same relief. This Court denied Arizona leave to file its complaint, concluding: "[T]he pending state-court action provides an appropriate forum in which the issues tendered here may be litigated. If on appeal the New Mexico Supreme Court should hold the electrical energy tax unconstitutional, Arizona will have been vindicated. If, on the other hand, the tax is held to be constitutional, the issues raised now may be brought to this Court by way of direct appeal under 28 U.S. C. § 1257 (2)." Arizona v. New Mexico, 425 U.S. 794, 797. One of the alternative scenarios foreseen in our 1976 opinion has now eventuated. The New Mexico Supreme Court has upheld the validity of this energy tax against federal statutory and constitutional attacks, Arizona Public Serv. Co. v. O'Chesky, 91 N. M. 485, 576 P.2d 291, and the issues have been brought to this Court by way of direct appeal under 28 U.S. C. § 1257 (2). 439 U.S. 891. *146 II The appellants contend that the New Mexico tax is invalid under a specific federal statute as well as under the Commerce, Due Process, and Import-Export Clauses of the constitution. Because we conclude that under the Supremacy Clause[6] the tax is invalid by reason of this federal statute, we do not reach the substantive constitutional issues. When Congress enacted the Tax Reform Act of 1976 it included a provision relating to state taxes on electricity. Section 2121 (a) of the Act, 90 Stat. 1914, codified at 15 U.S. C. § 391, provides: "No State, or political subdivision thereof, may impose or assess a tax on or with respect to the generation or transmission of electricity which discriminates against out-of-State manufacturers, producers, wholesalers, retailers, or consumers of that electricity. For purposes of this section, a tax is discriminatory if it results, either directly or indirectly, in a greater tax burden on electricity which is generated and transmitted in interstate commerce than on electricity which is generated and transmitted in intrastate commerce." This provision was not in the bill as passed by the House of Representatives. Its genesis was in the Senate Finance Committee, although in its original version the definition of a discriminatory tax was different from that in the law finally enacted: "For purposes of this section a tax is discriminatory that either directly or indirectly results in the payment of a higher gross or net tax on electricity which is generated and transmitted in interstate commerce than on electricity *147 which is generated and transmitted in intrastate commerce." H. R. 10612, 94th Cong., 1st Sess., § 1323 (1976). The Committee's Report described the reasons for including the provision: "The committee has learned that one State places a discriminatory tax upon the production of electricity within its boundaries for consumption outside its boundaries. While the rate of the tax itself is identical for electricity that is ultimately consumed outside the State and electricity which is consumed inside the State, discrimination results because the State allows the amount of the tax to be credited against its gross receipts tax if the electricity is consumed within its boundaries. This credit normally benefits only domiciliaries of the taxing State since no credit is allowed for electricity produced within the State and consumed outside the State. As a result, the cost of the electricity to nondomiciliaries is normally increased by the cost the producer of the electricity must bear in paying the tax. However, the cost to domiciliaries of the taxing State does not include the amount of the tax. "The committee believes that this is an example of discriminatory State taxation which is properly within the ability of Congress to prohibit through its power to regulate interstate commerce." (Footnote omitted.) S. Rep. No. 94-938, pt. I, pp. 437-438 (1976). The identity of the unnamed State was disclosed during the course of a subsequent Senate floor debate on a motion by Senator Domenici of New Mexico to strike the provision from the bill. Senators Domenici and Montoya of New Mexico, Senators Fannin and Goldwater of Arizona, and Senator Cranston of California made it clear that the provision was aimed directly at New Mexico's electrical energy tax. 122 *148 Cong. Rec. 24324-24329 (1976). At the conclusion of this debate, Senator Domenici's motion to eliminate the provision was defeated. Id., at 24329. The appellees concede that this statutory provision was aimed directly at the New Mexico Electrical Energy Tax Act. They contend, however, that the definition of a discriminatory tax was so defused in the Conference Committee that Congress in the law as enacted failed to hit its mark. Specifically, they point out that a discriminatory tax, defined in the Senate Committee's original draft as one that results in "the payment of a higher gross or net tax," became in the statute as enacted one which results in "a greater tax burden" on electricity transmitted out of state than that sold within the State. We are told that the statutory definition was redrafted in the Conference Committee to allay the concerns of Senators from States with somewhat similar taxes. That Committee's Report gave no reason, however, for the change in language. The Report merely stated: "Senate amendment.—Under present law, any restrictions on the power of States or their political subdivisions to tax goods or services produced in the taxing State for nondomiciliary use outside the taxing State are derived from court interpretations of the interstate commerce clause of the Constitution. "The Senate amendment prohibits any State or political subdivision of a State from directly or indirectly imposing any tax on the generation or transmission of electricity which discriminates against out-of-State users. This provision is effective for taxable years beginning after June 30, 1974. "Conference agreement.—The conference agreement follows the Senate amendment." H. R. Conf. Rep. No. 94-1515, p. 503 (1976). There is thus no legislative history to show what the Conference Committee's drafting change was intended to accomplish. *149 But the provision as enacted is far from the "sterile" legislation that the appellees contend it is. To the contrary, the provision clearly operates, we think, to carry out the expressed intent of the Senate to invalidate the New Mexico tax. The Act prohibits "a tax on or with respect to the generation or transmission of electricity" which "results, either directly or indirectly, in a greater tax burden on electricity" consumed outside of New Mexico than that consumed in the State. The appellees urge that this statutory provision is no more than a prohibition of a tax that is invalid under the constitutional test of the Commerce Clause. That test, they say, requires examination of New Mexico's total tax structure to determine whether the State in fact imposes a greater tax burden on electricity sent out of state. See Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 69. And the tax in question, they say, clearly survives such an examination. Power sold within New Mexico, they argue, is subject to a 4% tax: 2% from the electrical energy tax and 2% from the gross receipts tax. By contrast, New Mexico subjects electricity sent out of state only to its 2% generation tax. The appellees contend, therefore, that if there is any discrimination in New Mexico's taxing structure, it is discrimination against electricity consumed within the State. But, whatever the validity may be of the Commerce Clause test advanced by the appellees, the federal statutory provision is directed specifically at a state tax "on or with respect to the generation or transmission of electricity," not to the entire tax structure of the State. The tax imposed by New Mexico's Electrical Energy Tax Act is concededly a tax on the generation of electricity. The tax-credit provisions of the Act itself insure that locally consumed electricity is subject to no tax burden from the electrical energy tax, while the bulk of the electricity generated in New Mexico by the appellants is subject to a 2% tax, since it is sold outside the State. To look *150 narrowly to the type of tax the federal statute names, rather than to consider the entire tax structure of the State, is to be faithful not only to the language of that statute but also to the expressed intent of Congress in enacting it. Because the electrical energy tax itself indirectly but necessarily discriminates against electricity sold outside New Mexico, it violates the federal statute.[7] The appellees also argue that if the federal statute is construed to invalidate the New Mexico tax, it exceeds the permissible bounds of congressional action under the Commerce Clause. In view of the broad power of Congress to regulate interstate commerce, this argument must be rejected. See Wickard v. Filburn, 317 U.S. 111; Katzenbach v. McClung, 379 U.S. 294. Here, the Congress had a rational basis for finding that the New Mexico tax interfered with interstate commerce, and selected a reasonable method to eliminate that interference. The legislation thus was within the constitutional power of Congress to enact. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258-259; United States v. Wrightwood Dairy Co., 315 U.S. 110, 119. The generation of electricity in the Four Corners region undoubtedly also generates environmental and other problems for New Mexico. There is no indication that Congress intended to prevent the State from taxing the generation of *151 electricity to pay for solutions to these problems. But the generation of electricity to be sent to Phoenix causes no more problems than the generation of electricity to be sent to Albuquerque. Congress required only that New Mexico, if it chooses to tax the generation of electricity for consumption in either city, tax it equally for each. The judgment is reversed. It is so ordered. MR. JUSTICE REHNQUIST, with whom MR. JUSTICE WHITE joins, concurring in the judgment.

New Mexico has imposed a tax on the privilege of generating electricity within its borders. The question in this case is whether that tax conflicts with federal law, statutory or constitutional. I The Four Corners power plants, located in New Mexico's desert northwest, are owned by the appellants, five public utilities companies.[1] Most of the electricity generated at the plants is ultimately sold to out-of-state consumers.[2] New *143 Mexico imposes a 4% gross receipts tax on retail sellers of electricity,[3] but since the bulk of the appellants' sales are made to consumers in other States, they do not incur significant liability for this tax. In 1975, New Mexico enacted the Electrical Energy Tax Act, the law at issue in this case.[4] That Act imposes a tax on the privilege of generating electricity at the rate of 4/10 of a mill on each net kilowatt hour of electricity generated. This is roughly equivalent to a 2% tax on the retail value of the electricity. The tax is imposed on all companies generating electricity within the State. Section 9 of the Act, however, provides that this electrical energy tax may be fully credited against the company's gross receipts tax liability. The Act and the regulations implementing it insure that the electrical generating company will receive full credit for the *144 tax even if it does not itself make retail sales of electricity. This result is accomplished by requiring the generating company to assign its "potential credit" to the retailer, who in turn is required to reimburse the generating company for the value of this credit.[5] The consequence is that a generating *145 company's 2% tax is completely offset by the credit against the 4% retail sales tax when its electricity is sold within New Mexico. But to the extent that the electricity generated in New Mexico is not sold at retail in the State, there is no gross receipts tax liability against which to offset the electrical energy tax liability of the generating company. In 1976, the State of Arizona, as a consumer of electricity and parens patriae for its citizens, sought to invoke this Court's original jurisdiction by a motion for leave to file a bill of complaint against New Mexico, asking for a declaratory judgment invalidating this New Mexico tax. The litigation now before us had already been initiated in the New Mexico courts by the present appellants, seeking essentially the same relief. This Court denied Arizona leave to file its complaint, concluding: "[T]he pending state-court action provides an appropriate forum in which the issues tendered here may be litigated. If on appeal the New Mexico Supreme Court should hold the electrical energy tax unconstitutional, Arizona will have been vindicated. If, on the other hand, the tax is held to be constitutional, the issues raised now may be brought to this Court by way of direct appeal under 28 U.S. C. 1257 (2)." One of the alternative scenarios foreseen in our 1976 opinion has now eventuated. The New Mexico Supreme Court has upheld the validity of this energy tax against federal statutory and constitutional attacks, Arizona Public Serv. and the issues have been brought to this Court by way of direct appeal under 28 U.S. C. 1257 (2). *146 II The appellants contend that the New Mexico tax is invalid under a specific federal statute as well as under the Commerce, Due Process, and Import-Export Clauses of the constitution. Because we conclude that under the Supremacy Clause[6] the tax is invalid by reason of this federal statute, we do not reach the substantive constitutional issues. When Congress enacted the Tax Reform Act of 1976 it included a provision relating to state taxes on electricity. Section 2121 (a) of the Act, codified at 15 U.S. C. 391, provides: "No State, or political subdivision thereof, may impose or assess a tax on or with respect to the generation or transmission of electricity which discriminates against out-of-State manufacturers, producers, wholesalers, retailers, or consumers of that electricity. For purposes of this section, a tax is discriminatory if it results, either directly or indirectly, in a greater tax burden on electricity which is generated and transmitted in interstate commerce than on electricity which is generated and transmitted in intrastate commerce." This provision was not in the bill as passed by the House of Representatives. Its genesis was in the Senate Finance Committee, although in its original version the definition of a discriminatory tax was different from that in the law finally enacted: "For purposes of this section a tax is discriminatory that either directly or indirectly results in the payment of a higher gross or net tax on electricity which is generated and transmitted in interstate commerce than on electricity *147 which is generated and transmitted in intrastate commerce." H. R. 10612, 94th Cong., 1st Sess., 1323 (1976). The Committee's Report described the reasons for including the provision: "The committee has learned that one State places a discriminatory tax upon the production of electricity within its boundaries for consumption outside its boundaries. While the rate of the tax itself is identical for electricity that is ultimately consumed outside the State and electricity which is consumed inside the State, discrimination results because the State allows the amount of the tax to be credited against its gross receipts tax if the electricity is consumed within its boundaries. This credit normally benefits only domiciliaries of the taxing State since no credit is allowed for electricity produced within the State and consumed outside the State. As a result, the cost of the electricity to nondomiciliaries is normally increased by the cost the producer of the electricity must bear in paying the tax. However, the cost to domiciliaries of the taxing State does not include the amount of the tax. "The committee believes that this is an example of discriminatory State taxation which is properly within the ability of Congress to prohibit through its power to regulate interstate commerce." (Footnote omitted.) S. Rep. No. 94-938, pt. I, pp. 437-438 (1976). The identity of the unnamed State was disclosed during the course of a subsequent Senate floor debate on a motion by Senator Domenici of New Mexico to strike the provision from the bill. Senators Domenici and Montoya of New Mexico, Senators Fannin and Goldwater of Arizona, and Senator Cranston of California made it clear that the provision was aimed directly at New Mexico's electrical energy tax. 122 *148 Cong. Rec. 24324-24329 (1976). At the conclusion of this debate, Senator Domenici's motion to eliminate the provision was defeated. The appellees concede that this statutory provision was aimed directly at the New Mexico Electrical Energy Tax Act. They contend, however, that the definition of a discriminatory tax was so defused in the Conference Committee that Congress in the law as enacted failed to hit its mark. Specifically, they point out that a discriminatory tax, defined in the Senate Committee's original draft as one that results in "the payment of a higher gross or net tax," became in the statute as enacted one which results in "a greater tax burden" on electricity transmitted out of state than that sold within the State. We are told that the statutory definition was redrafted in the Conference Committee to allay the concerns of Senators from States with somewhat similar taxes. That Committee's Report gave no reason, however, for the change in language. The Report merely stated: "Senate amendment.—Under present law, any restrictions on the power of States or their political subdivisions to tax goods or services produced in the taxing State for nondomiciliary use outside the taxing State are derived from court interpretations of the interstate commerce clause of the Constitution. "The Senate amendment prohibits any State or political subdivision of a State from directly or indirectly imposing any tax on the generation or transmission of electricity which discriminates against out-of-State users. This provision is effective for taxable years beginning after June 30, 1974. "Conference agreement.—The conference agreement follows the Senate amendment." H. R. Conf. Rep. No. 94-1515, p. 503 (1976). There is thus no legislative history to show what the Conference Committee's drafting change was intended to accomplish. *149 But the provision as enacted is far from the "sterile" legislation that the appellees contend it is. To the contrary, the provision clearly operates, we think, to carry out the expressed intent of the Senate to invalidate the New Mexico tax. The Act prohibits "a tax on or with respect to the generation or transmission of electricity" which "results, either directly or indirectly, in a greater tax burden on electricity" consumed outside of New Mexico than that consumed in the State. The appellees urge that this statutory provision is no more than a prohibition of a tax that is invalid under the constitutional test of the Commerce Clause. That test, they say, requires examination of New Mexico's total tax structure to determine whether the State in fact imposes a greater tax burden on electricity sent out of state. See Halliburton Oil Well Cementing And the tax in question, they say, clearly survives such an examination. Power sold within New Mexico, they argue, is subject to a 4% tax: 2% from the electrical energy tax and 2% from the gross receipts tax. By contrast, New Mexico subjects electricity sent out of state only to its 2% generation tax. The appellees contend, therefore, that if there is any discrimination in New Mexico's taxing structure, it is discrimination against electricity consumed within the State. But, whatever the validity may be of the Commerce Clause test advanced by the appellees, the federal statutory provision is directed specifically at a state tax "on or with respect to the generation or transmission of electricity," not to the entire tax structure of the State. The tax imposed by New Mexico's Electrical Energy Tax Act is concededly a tax on the generation of electricity. The tax-credit provisions of the Act itself insure that locally consumed electricity is subject to no tax burden from the electrical energy tax, while the bulk of the electricity generated in New Mexico by the appellants is subject to a 2% tax, since it is sold outside the State. To look *150 narrowly to the type of tax the federal statute names, rather than to consider the entire tax structure of the State, is to be faithful not only to the language of that statute but also to the expressed intent of Congress in enacting it. Because the electrical energy tax itself indirectly but necessarily discriminates against electricity sold outside New Mexico, it violates the federal statute.[7] The appellees also argue that if the federal statute is construed to invalidate the New Mexico tax, it exceeds the permissible bounds of congressional action under the Commerce Clause. In view of the broad power of Congress to regulate interstate commerce, this argument must be rejected. See ; Here, the Congress had a rational basis for finding that the New Mexico tax interfered with interstate commerce, and selected a reasonable method to eliminate that interference. The legislation thus was within the constitutional power of Congress to enact. See Heart of Atlanta Motel, ; United The generation of electricity in the Four Corners region undoubtedly also generates environmental and other problems for New Mexico. There is no indication that Congress intended to prevent the State from taxing the generation of *151 electricity to pay for solutions to these problems. But the generation of electricity to be sent to Phoenix causes no more problems than the generation of electricity to be sent to Albuquerque. Congress required only that New Mexico, if it chooses to tax the generation of electricity for consumption in either city, tax it equally for each. The judgment is reversed. It is so ordered. MR. JUSTICE REHNQUIST, with whom MR. JUSTICE WHITE joins, concurring in the judgment.

Justice Scalia

concurring

Ewing v. California

https://www.courtlistener.com/opinion/127897/ewing-v-california/

https://www.courtlistener.com/api/rest/v3/clusters/127897/

2002-028

In my opinion in Harmelin v. Michigan, 501 U.S. 957, 985 (1991), I concluded that the Eighth Amendment's prohibition of "cruel and unusual punishments" was aimed at excluding only certain modes of punishment, and was not a "guarantee against disproportionate sentences." Out of respect for the principle of stare decisis, I might nonetheless accept the contrary holding of Solem v. Helm, 463 U.S. 277 (1983) — that the Eighth Amendment contains a narrow proportionality principle — if I felt I could intelligently apply it. This case demonstrates why I cannot. Proportionality — the notion that the punishment should fit the crime — is inherently a concept tied to the penological goal of retribution. "[I]t becomes difficult even to speak intelligently of `proportionality,' once deterrence and rehabilitation are given significant weight," Harmelin, supra, at 989 — not to mention giving weight to the purpose of California's three strikes law: incapacitation. In the present case, the game is up once the plurality has acknowledged that "the Constitution does not mandate adoption of any one penological theory," and that a "sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation." Ante, at 25 (internal quotation marks omitted). That acknowledgment having been made, it no longer suffices merely to assess "the gravity of the offense compared to the harshness of the penalty," ante, at 28; that classic description of the proportionality principle (alone and in itself quite resistant to policy-free, legal analysis) now becomes merely the "first" step of the inquiry, ibid. Having completed that step (by a discussion which, in all fairness, does not convincingly establish that 25-years-to-life is a "proportionate" punishment for stealing three golf clubs), the *32 plurality must then add an analysis to show that "Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons." Ante, at 29. Which indeed it is — though why that has anything to do with the principle of proportionality is a mystery. Perhaps the plurality should revise its terminology, so that what it reads into the Eighth Amendment is not the unstated proposition that all punishment should be reasonably proportionate to the gravity of the offense, but rather the unstated proposition that all punishment should reasonably pursue the multiple purposes of the criminal law. That formulation would make it clearer than ever, of course, that the plurality is not applying law but evaluating policy. Because I agree that petitioner's sentence does not violate the Eighth Amendment's prohibition against cruel and unusual punishments, I concur in the judgment. JUSTICE THOMAS, concurring in the judgment. I agree with JUSTICE SCALIA's view that the proportionality test announced in Solem v. Helm, 463 U.S. 277 (1983), is incapable of judicial application. Even were Solem's test perfectly clear, however, I would not feel compelled by stare decisis to apply it. In my view, the Cruel and Unusual Punishments Clause of the Eighth Amendment contains no proportionality principle. See Harmelin v. Michigan, 501 U.S. 957, 966-985 (1991) (opinion of SCALIA, J.). Because the plurality concludes that petitioner's sentence does not violate the Eighth Amendment's prohibition on cruel and unusual punishments, I concur in the judgment.

In my opinion in I concluded that the Eighth Amendment's prohibition of "cruel and unusual punishments" was aimed at excluding only certain modes of punishment, and was not a "guarantee against disproportionate sentences." Out of respect for the principle of stare decisis, I might nonetheless accept the contrary holding of — that the Eighth Amendment contains a narrow proportionality principle — if I felt I could intelligently apply it. This case demonstrates why I cannot. Proportionality — the notion that the punishment should fit the crime — is inherently a concept tied to the penological goal of retribution. "[I]t becomes difficult even to speak intelligently of `proportionality,' once deterrence and rehabilitation are given significant weight," at 989 — not to mention giving weight to the purpose of California's three strikes law: incapacitation. In the present case, the game is up once the plurality has acknowledged that "the Constitution does not mandate adoption of any one penological theory," and that a "sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation." Ante, at 25 (internal quotation marks omitted). That acknowledgment having been made, it no longer suffices merely to assess "the gravity of the offense compared to the harshness of the penalty," ante, at 28; that classic description of the proportionality principle (alone and in itself quite resistant to policy-free, legal analysis) now becomes merely the "first" step of the inquiry, Having completed that step (by a discussion which, in all fairness, does not convincingly establish that 25-years-to-life is a "proportionate" punishment for stealing three golf clubs), the *32 plurality must then add an analysis to show that "Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons." Ante, at 29. Which indeed it is — though why that has anything to do with the principle of proportionality is a mystery. Perhaps the plurality should revise its terminology, so that what it reads into the Eighth Amendment is not the unstated proposition that all punishment should be reasonably proportionate to the gravity of the offense, but rather the unstated proposition that all punishment should reasonably pursue the multiple purposes of the criminal law. That formulation would make it clearer than ever, of course, that the plurality is not applying law but evaluating policy. Because I agree that petitioner's sentence does not violate the Eighth Amendment's prohibition against cruel and unusual punishments, I concur in the judgment. JUSTICE THOMAS, concurring in the judgment. I agree with JUSTICE SCALIA's view that the proportionality test announced in is incapable of judicial application. Even were Solem's test perfectly clear, however, I would not feel compelled by stare decisis to apply it. In my view, the Cruel and Unusual Punishments Clause of the Eighth Amendment contains no proportionality principle. See 966- Because the plurality concludes that petitioner's sentence does not violate the Eighth Amendment's prohibition on cruel and unusual punishments, I concur in the judgment.

Justice Rehnquist

dissenting

Wooley v. Maynard

https://www.courtlistener.com/opinion/109638/wooley-v-maynard/

https://www.courtlistener.com/api/rest/v3/clusters/109638/

1976-088

The Court holds that a State is barred by the Federal Constitution from requiring that the state motto be displayed on a state license plate. The path that the Court travels to reach this result demonstrates the difficulty in supporting it. The Court holds that the required display of the motto is an unconstitutional "required affirmation of belief." The District Court, however, expressly refused to consider this contention, and noted that, in an analogous case, a decision of the Supreme Court of New Hampshire had reached precisely the opposite result. See State v. Hoskin, 112 N. H. 332, 295 *720 A. 2d 454 (1972). The District Court found for appellees on the ground that the obscuring of the motto was protected "symbolic speech." This Court, in relying upon a ground expressly avoided by the District Court, appears to disagree with the ground adopted by the District Court; indeed it points out that appellees' claim of symbolic expression has been "substantially undermined" by their very complaint in this action. Ante, at 713 n. 10. I not only agree with the Court's implicit recognition that there is no protected "symbolic speech" in this case, but I think that that conclusion goes far to undermine the Court's ultimate holding that there is an element of protected expression here. The State has not forced appellees to "say" anything; and it has not forced them to communicate ideas with nonverbal actions reasonably likened to "speech," such as wearing a lapel button promoting a political candidate or waving a flag as a symbolic gesture. The State has simply required that all[*] noncommercial automobiles bear license tags with the state motto, "Live Free or Die." Appellees have not been forced to affirm or reject that motto; they are simply required by the State, under its police power, to carry a state auto license tag for identification and registration purposes. In Part 4-A, the Court relies almost solely on Board of Education v. Barnette, 319 U.S. 624 (1943). The Court cites Barnette for the proposition that there is a constitutional right, in some cases, to "refrain from speaking." Ante, at 714. What the Court does not demonstrate is that there is any "speech" or "speaking" in the context of this case. The Court also relies upon the "right to decline to foster [religious, political, and ideological] concepts," ibid., and treats the state law in this case as if it were forcing appellees to proselytize, or to advocate an ideological point of view. But this begs the question. The issue, unconfronted by the Court, is *721 whether appellees, in displaying, as they are required to do, state license tags, the format of which is known to all as having been prescribed by the State, would be considered to be advocating political or ideological views. The Court recognizes, as it must, that this case substantially differs from Barnette, in which schoolchildren were forced to recite the pledge of allegiance while giving the flag salute. Ante, at 714-715. However, the Court states "the difference is essentially one of degree." Ante, at 715. But having recognized the rather obvious differences between these two cases, the Court does not explain why the same result should obtain. The Court suggests that the test is whether the individual is forced "to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable." Ibid. But, once again, these are merely conclusory words, barren of analysis. For example, were New Hampshire to erect a multitude of billboards, each proclaiming "Live Free or Die," and tax all citizens for the cost of erection and maintenance, clearly the message would be "fostered" by the individual citizen-taxpayers and just as clearly those individuals would be "instruments" in that communication. Certainly, however, that case would not fall within the ambit of Barnette. In that case, as in this case, there is no affirmation of belief. For First Amendment principles to be implicated, the State must place the citizen in the position of either apparently or actually "asserting as true" the message. This was the focus of Barnette, and clearly distinguishes this case from that one. In holding that the New Hampshire statute does not run afoul of our holding in Barnette, the New Hampshire Supreme Court in Hoskin, supra, at 336, 295 A.2d, at 457, aptly articulated why there is no required affirmation of belief in this case: "The defendants' membership in a class of persons required to display plates bearing the State motto carries *722 no implication and is subject to no requirement that they endorse that motto or profess to adopt it as matter of belief." As found by the New Hampshire Supreme Court in Hoskin, there is nothing in state law which precludes appellees from displaying their disagreement with the state motto as long as the methods used do not obscure the license plates. Thus appellees could place on their bumper a conspicuous bumper sticker explaining in no uncertain terms that they do not profess the motto "Live Free or Die" and that they violently disagree with the connotations of that motto. Since any implication that they affirm the motto can be so easily displaced, I cannot agree that the state statutory system for motor vehicle identification and tourist promotion may be invalidated under the fiction that appellees are unconstitutionally forced to affirm, or profess belief in, the state motto. The logic of the Court's opinion leads to startling, and I believe totally unacceptable, results. For example, the mottoes "In God We Trust" and "E Pluribus Unum" appear on the coin and currency of the United States. I cannot imagine that the statutes, see 18 U.S. C. §§ 331 and 333, proscribing defacement of United States currency impinge upon the First Amendment rights of an atheist. The fact that an atheist carries and uses United States currency does not, in any meaningful sense, convey any affirmation of belief on his part in the motto "In God We Trust." Similarly, there is no affirmation of belief involved in the display of state license tags upon the private automobiles involved here. I would reverse the judgment of the District Court.

The Court holds that a State is barred by the Federal Constitution from requiring that the state motto be displayed on a state license plate. The path that the Court travels to reach this result demonstrates the difficulty in supporting it. The Court holds that the required display of the motto is an unconstitutional "required affirmation of belief." The District Court, however, expressly refused to consider this contention, and noted that, in an analogous case, a decision of the Supreme Court of New Hampshire had reached precisely the opposite result. See The District Court found for appellees on the ground that the obscuring of the motto was protected "symbolic speech." This Court, in relying upon a ground expressly avoided by the District Court, appears to disagree with the ground adopted by the District Court; indeed it points out that appellees' claim of symbolic expression has been "substantially undermined" by their very complaint in this action. Ante, at 713 n. 10. I not only agree with the Court's implicit recognition that there is no protected "symbolic speech" in this case, but I think that that conclusion goes far to undermine the Court's ultimate holding that there is an element of protected expression here. The State has not forced appellees to "say" anything; and it has not forced them to communicate ideas with nonverbal actions reasonably likened to "speech," such as wearing a lapel button promoting a political candidate or waving a flag as a symbolic gesture. The State has simply required that all[*] noncommercial automobiles bear license tags with the state motto, "Live Free or Die." Appellees have not been forced to affirm or reject that motto; they are simply required by the State, under its police power, to carry a state auto license tag for identification and registration purposes. In Part 4-A, the Court relies almost solely on Board of The Court cites Barnette for the proposition that there is a constitutional right, in some cases, to "refrain from speaking." Ante, at 714. What the Court does not demonstrate is that there is any "speech" or "speaking" in the context of this case. The Court also relies upon the "right to decline to foster [religious, political, and ideological] concepts," ibid., and treats the state law in this case as if it were forcing appellees to proselytize, or to advocate an ideological point of view. But this begs the question. The issue, unconfronted by the Court, is *721 whether appellees, in displaying, as they are required to do, state license tags, the format of which is known to all as having been prescribed by the State, would be considered to be advocating political or ideological views. The Court recognizes, as it must, that this case substantially differs from Barnette, in which schoolchildren were forced to recite the pledge of allegiance while giving the flag salute. Ante, at 714-715. However, the Court states "the difference is essentially one of degree." Ante, at 715. But having recognized the rather obvious differences between these two cases, the Court does not explain why the same result should obtain. The Court suggests that the test is whether the individual is forced "to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable." But, once again, these are merely conclusory words, barren of analysis. For example, were New Hampshire to erect a multitude of billboards, each proclaiming "Live Free or Die," and tax all citizens for the cost of erection and maintenance, clearly the message would be "fostered" by the individual citizen-taxpayers and just as clearly those individuals would be "instruments" in that communication. Certainly, however, that case would not fall within the ambit of Barnette. In that case, as in this case, there is no affirmation of belief. For First Amendment principles to be implicated, the State must place the citizen in the position of either apparently or actually "asserting as true" the message. This was the focus of Barnette, and clearly distinguishes this case from that one. In holding that the New Hampshire statute does not run afoul of our holding in Barnette, the New Hampshire Supreme Court in aptly articulated why there is no required affirmation of belief in this case: "The defendants' membership in a class of persons required to display plates bearing the State motto carries *722 no implication and is subject to no requirement that they endorse that motto or profess to adopt it as matter of belief." As found by the New Hampshire Supreme Court in there is nothing in state law which precludes appellees from displaying their disagreement with the state motto as long as the methods used do not obscure the license plates. Thus appellees could place on their bumper a conspicuous bumper sticker explaining in no uncertain terms that they do not profess the motto "Live Free or Die" and that they violently disagree with the connotations of that motto. Since any implication that they affirm the motto can be so easily displaced, I cannot agree that the state statutory system for motor vehicle identification and tourist promotion may be invalidated under the fiction that appellees are unconstitutionally forced to affirm, or profess belief in, the state motto. The logic of the Court's opinion leads to startling, and I believe totally unacceptable, results. For example, the mottoes "In God We Trust" and "E Pluribus Unum" appear on the coin and currency of the United States. I cannot imagine that the statutes, see 18 U.S. C. 331 and 333, proscribing defacement of United States currency impinge upon the First Amendment rights of an atheist. The fact that an atheist carries and uses United States currency does not, in any meaningful sense, convey any affirmation of belief on his part in the motto "In God We Trust." Similarly, there is no affirmation of belief involved in the display of state license tags upon the private automobiles involved here. I would reverse the judgment of the District Court.

Justice Blackmun

majority

Fall River Dyeing & Finishing Corp. v. NLRB

https://www.courtlistener.com/opinion/111902/fall-river-dyeing-finishing-corp-v-nlrb/

https://www.courtlistener.com/api/rest/v3/clusters/111902/

1986-108

[†] In this case we are confronted with the issue whether the National Labor Relations Board's decision is consistent with NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972). In Burns, this Court ruled that the new employer, succeeding to the business of another, had an obligation to bargain with the union representing the predecessor's employees. Id., at 278-279. We first must decide whether Burns is limited to a situation where the union only recently was certified before the transition in employers, or whether that decision also applies where the union is entitled to a presumption of majority support. Our inquiry then proceeds *30 to three questions that concern rules the Labor Board has developed in the successorship context. First, we must determine whether there is substantial record evidence to support the Board's conclusion that petitioner was a "successor" to Sterlingwale Corp., its business predecessor. Second, we must decide whether the Board's "substantial and representative complement" rule, designed to identify the date when a successor's obligation to bargain with the predecessor's employees' union arises, is consistent with Burns, is reasonable, and was applied properly in this case. Finally, we must examine the Board's "continuing demand" principle to the effect that, if a union has presented to a successor a premature demand for bargaining, this demand continues in effect until the successor acquires the "substantial and representative complement" of employees that triggers its obligation to bargain. I For over 30 years before 1982, Sterlingwale operated a textile dyeing and finishing plant in Fall River, Mass. Its business consisted basically of two types of dyeing, called, respectively, "converting" and "commission." Under the converting process, which in 1981 accounted for 60% to 70% of its business, see App. 149, Sterlingwale bought unfinished fabrics for its own account, dyed and finished them, and then sold them to apparel manufacturers. Id., at 123. In commission dyeing, which accounted for the remainder of its business, Sterlingwale dyed and finished fabrics owned by customers according to their specifications. Id., at 124. The financing and marketing aspects of converting and commission dyeing are different. Converting requires capital to purchase fabrics and a sales force to promote the finished products. Id., at 123. The production process, however, is the same for both converting and commission dyeing. Id., at 98. In the late 1970's the textile-dyeing business, including Sterlingwale's, began to suffer from adverse economic conditions *31 and foreign competition. After 1979, business at Sterlingwale took a serious turn for the worse because of the loss of its export market, id., at 127-128, and the company reduced the number of its employees, id., at 192-195. Finally, in February 1982, Sterlingwale laid off all its production employees, primarily because it no longer had the capital to continue the converting business. Id., at 77-78, 104, 130-132. It retained a skeleton crew of workers and supervisors to ship out the goods remaining on order and to maintain the corporation's building and machinery. Id., at 147-148. In the months following the layoff, Leonard Ansin, Sterlingwale's president, liquidated the inventory of the corporation and, at the same time, looked for a business partner with whom he could "resurrect the business." Id., at 114-115, 146-147. Ansin felt that he owed it to the community and to the employees to keep Sterlingwale in operation. Id., at 103-104. For almost as long as Sterlingwale had been in existence, its production and maintenance employees had been represented by the United Textile Workers of America, AFL-CIO, Local 292 (Union). Id., at 60-61. The most recent collective-bargaining agreement before Sterlingwale's demise had been negotiated in 1978 and was due to expire in 1981. By an agreement dated October 1980, however, in response to the financial difficulties suffered by Sterlingwale, the Union agreed to amend the 1978 agreement to extend its expiration date by one year, until April 1, 1982, without any wage increase and with an agreement to improve labor productivity. Id., at 353-355. In the months following the final February 1982 layoff, the Union met with company officials over problems involving this job action, and, in particular, Sterlingwale's failure to pay premiums on group-health insurance. Id., at 66-67, 86, 131. In addition, during meetings with Ansin, Union officials told him of their concern with Sterlingwale's future and their interest in helping to keep the *32 company operating or in meeting with prospective buyers. Id., at 67-68, 86, 146-147. In late summer 1982, however, Sterlingwale finally went out of business. It made an assignment for the benefit of its creditors, id., at 115, 147, primarily Ansin's mother, who was an officer of the corporation and holder of a first mortgage on most of Sterlingwale's real property, id., at 113, and the Massachusetts Capital Resource Corporation (MCRC), which held a security interest on Sterlingwale's machinery and equipment, id., at 113-114. Ansin also hired a professional liquidator to dispose of the company's remaining assets, mostly its inventory, at auction. Id., at 115. During this same period, a former Sterlingwale employee and officer, Herbert Chace, and Arthur Friedman, president of one of Sterlingwale's major customers, Marcamy Sales Corporation (Marcamy), formed petitioner Fall River Dyeing & Finishing Corp. Chace, who had resigned from Sterlingwale in February 1982, had worked there for 27 years, had been vice president in charge of sales at the time of his departure, and had participated in collective bargaining with the Union during his tenure at Sterlingwale. Id., at 189, 232. Chace and Friedman formed petitioner with the intention of engaging strictly in the commission-dyeing business and of taking advantage of the availability of Sterlingwale's assets and work force. Id., at 203-204, 223-224. Accordingly, Friedman had Marcamy acquire from MCRC and Ansin's mother Sterlingwale's plant, real property, and equipment, id., at 238-272, and convey them to petitioner, id., at 278-289.[1] Petitioner also obtained some of Sterlingwale's remaining inventory at the liquidator's auction. Id., at 200-202, 290-293. Chace became petitioner's vice president in charge of operations and Friedman became its president. Id., at 190, 232. In September 1982, petitioner began operating out of Sterlingwale's former facilities and began hiring employees. *33 Id., at 206-207. It advertised for workers and supervisors in a local newspaper, id., at 197-198, and Chace personally got in touch with several prospective supervisors, id., at 197. Petitioner hired 12 supervisors, of whom 8 had been supervisors with Sterlingwale and 3 had been production employees there. Id., at 196, 220-222. In its hiring decisions for production employees, petitioner took into consideration recommendations from these supervisors and a prospective employee's former employment with Sterlingwale. Id., at 223-224. Petitioner's initial hiring goal was to attain one full shift of workers, which meant from 55 to 60 employees. Id., at 208. Petitioner planned to "see how business would be" after this initial goal had been met and, if business permitted, to expand to two shifts. Ibid. The employees who were hired first spent approximately four to six weeks in start-up operations and an additional month in experimental production. Id., at 156-157, 207, 226-227. By letter dated October 19, 1982, the Union requested petitioner to recognize it as the bargaining agent for petitioner's employees and to begin collective bargaining. Id., at 360. Petitioner refused the request, stating that, in its view, the request had "no legal basis." Id., at 362. At that time, 18 of petitioner's 21 employees were former employees of Sterlingwale. See 272 N. L. R. B. 839, 840 (1984). By November of that year, petitioner had employees in a complete range of jobs, had its production process in operation, and was handling customer orders, App. 225-226; by mid-January 1983, it had attained its initial goal of one shift of workers, id., at 225, 227. Of the 55 workers in this initial shift, a number that represented over half the workers petitioner would eventually hire, 36 were former Sterlingwale employees. Tr. of Oral Arg. 28. Petitioner continued to expand its work force, and by mid-April 1983, it had reached two full shifts. For the first time, ex-Sterlingwale employees were in the minority but just barely so (52 or 53 out of 107 employees). App. 294-302; Tr. of Oral Arg. 28. *34 Although petitioner engaged exclusively in commission dyeing, the employees experienced the same conditions they had when they were working for Sterlingwale. The production process was unchanged and the employees worked on the same machines, in the same building, with the same job classifications, under virtually the same supervisors. App. 152-156, 205-206. Over half the volume of petitioner's business came from former Sterlingwale customers, and, in particular, Marcamy. Id., at 314-316. On November 1, 1982, the Union filed an unfair labor practice charge with the Board, alleging that in its refusal to bargain petitioner had violated §§ 8(a)(1) and (5) of the National Labor Relations Act (NLRA), 49 Stat. 452, as amended, 29 U.S. C. §§ 158(a)(1) and (5).[2] After a hearing, the Administrative Law Judge (ALJ) decided that, on the facts of the case, petitioner was a successor to Sterlingwale. 272 N. L. R. B., at 840. He observed that petitioner therefore would have an obligation to bargain with the Union if the majority of petitioner's employees were former employees of Sterlingwale. He noted that the proper date for making this determination was not mid-April, when petitioner first had two shifts working, but mid-January, when petitioner had attained a "representative complement" of employees. Ibid. The ALJ acknowledged that a demand for bargaining from the Union was necessary to trigger petitioner's obligation to bargain, but noted that the Union's demand of October 1982, although premature, was "of a continuing nature." Ibid. *35 Thus, in the view of the ALJ, petitioner's duty to bargain arose in mid-January because former Sterlingwale employees then were in the majority and because the Union's October demand was still in effect. Petitioner thus committed an unfair labor practice in refusing to bargain. In a brief decision and order, the Board, with one member dissenting, affirmed this decision. Id., at 839.[3] The Court of Appeals for the First Circuit, also by a divided vote, enforced the order. 775 F.2d 425 (1985). The court first found, id., at 428-430, that the Board's determination that petitioner was Sterlingwale's successor was consistent with Burns and was "supported by substantial evidence in the record." 775 F.2d, at 430. The court observed: "The differences between [petitioner's] business and Sterlingwale's are not sufficiently significant to require a finding that the continuity of the enterprise, viewed from the employees' standpoint, was broken." Ibid. The court then noted that the Board's longstanding "substantial and representative complement" standard, id., at 431, which the ALJ applied in this case, is an attempt to establish a method for determining when a successor has to bargain with the predecessor's union in a situation where, at the moment of the transition between the old and new enterprises, it is not clear when the new employer will reach a "full complement of employees." Id., at 430-431. According to the court, the Board's determination that petitioner had "employed a substantial and representative complement of its workforce in mid-January" was reasonable. Id., at 431. Finally, the court found that the Board's rule treating a premature union demand for bargaining as a continuing demand also was reasonable and "practical" and entitled to deference. Id., at 432-433.[4] *36 Because of the importance of the successorship issue in labor law, and because of our interest in the rules developed by the Board for successorship cases, we granted certiorari. 476 U.S. 1139 (1986). II Fifteen years ago in NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972), this Court first dealt with the issue of a successor employer's obligation to bargain with a union that had represented the employees of its predecessor. In Burns, about four months before the employer transition, the security-guard employees of Wackenhut Corp. had chosen a particular union as their bargaining representative and that union had negotiated a collective-bargaining agreement with Wackenhut. Wackenhut, however, lost its service contract on certain airport property to Burns. Burns proceeded to hire 27 of the Wackenhut guards for its 42-guard operation at the airport. Burns told its guards that, as a condition of their employment, they must join the union with which Burns already had collective-bargaining agreements at other locations. When the union that had represented the Wackenhut employees brought unfair labor practice charges against Burns, this Court agreed with the Board's determination that Burns had an obligation to bargain with this union. We observed: "In an election held but a few months before, the union had been designated bargaining agent for the employees in the unit and a majority of these employees had been hired by Burns for work in the identical unit. It is undisputed that Burns knew all the relevant facts in this regard and was aware of the certification and of the *37 existence of a collective-bargaining contract. In these circumstances, it was not unreasonable for the Board to conclude that the union certified to represent all employees in the unit still represented a majority of the employees and that Burns could not reasonably have entertained a good-faith doubt about that fact. Burns' obligation to bargain with the union over terms and conditions of employment stemmed from its hiring of Wackenhut's employees and from the recent election and Board certification." Id., at 278-279. Although our reasoning in Burns was tied to the facts presented there, see id., at 274, we suggested that our analysis would be equally applicable even if a union with which a successor had to bargain had not been certified just before the transition in employers. We cited with approval, id., at 279 and 281, Board and Court of Appeals decisions where it "ha[d] been consistently held that a mere change of employers or of ownership in the employing industry is not such an `unusual circumstance' as to affect the force of the Board's certification within the normal operative period if a majority of employees after the change of ownership or management were employed by the preceding employer." Id., at 279. Several of these cases involved successorship situations where the union in question had not been certified only a short time before the transition date. See, e. g., NLRB v. Auto Ventshade, Inc., 276 F.2d 303, 305 (CA5 1960); Tom-A-Hawk Transit, Inc. v. NLRB, 419 F.2d 1025, 1026 (CA7 1969). Moreover, in defining "the force of the Board's certification within the normal operative period," 406 U.S., at 279, we referred in Burns to two presumptions regarding a union's majority status following certification. See id., at 279, n. 3. First, after a union has been certified by the Board as a bargaining-unit representative, it usually is entitled to a conclusive presumption of majority status for one year following the certification. See ibid., citing Brooks v. NLRB, *38 348 U.S. 96, 98-99 (1954); see also 29 U.S. C. § 159(c)(3) ("No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held"). Second, after this period, the union is entitled to a rebuttable presumption of majority support. 406 U.S., at 279, n. 3, citing Celanese Corp. of America, 95 N. L. R. B. 664, 672 (1951). These presumptions are based not so much on an absolute certainty that the union's majority status will not erode following certification, as on a particular policy decision. The overriding policy of the NLRA is "industrial peace." Brooks v. NLRB, 348 U. S., at 103. The presumptions of majority support further this policy by "promot[ing] stability in collective-bargaining relationships, without impairing the free choice of employees." Terrell Machine Co., 173 N. L. R. B. 1480 (1969), enf'd, 427 F.2d 1088 (CA4), cert. denied, 398 U.S. 929 (1970). In essence, they enable a union to concentrate on obtaining and fairly administering a collective-bargaining agreement without worrying that, unless it produces immediate results, it will lose majority support and will be decertified. See Brooks v. NLRB, 348 U. S., at 100. The presumptions also remove any temptation on the part of the employer to avoid good-faith bargaining in the hope that, by delaying, it will undermine the union's support among the employees. See ibid.; see also R. Gorman, Labor Law 53 (1976).[5] The upshot of the presumptions is to permit unions *39 to develop stable bargaining relationships with employers, which will enable the unions to pursue the goals of their members, and this pursuit, in turn, will further industrial peace. The rationale behind the presumptions is particularly pertinent in the successorship situation and so it is understandable that the Court in Burns referred to them. During a transition between employers, a union is in a peculiarly vulnerable position. It has no formal and established bargaining relationship with the new employer, is uncertain about the new employer's plans, and cannot be sure if or when the new employer must bargain with it. While being concerned with the future of its members with the new employer, the union also must protect whatever rights still exist for its members under the collective-bargaining agreement with the predecessor employer.[6] Accordingly, during this unsettling transition period, the union needs the presumptions of majority status to which it is entitled to safeguard its members' rights and to develop a relationship with the successor. The position of the employees also supports the application of the presumptions in the successorship situation. If the employees find themselves in a new enterprise that substantially resembles the old, but without their chosen bargaining representative, they may well feel that their choice of a union *40 is subject to the vagaries of an enterprise's transformation. This feeling is not conducive to industrial peace. In addition, after being hired by a new company following a layoff from the old, employees initially will be concerned primarily with maintaining their new jobs. In fact, they might be inclined to shun support for their former union, especially if they believe that such support will jeopardize their jobs with the successor or if they are inclined to blame the union for their layoff and problems associated with it.[7] Without the presumptions of majority support and with the wide variety of corporate transformations possible, an employer could use a successor enterprise as a way of getting rid of a labor contract and of exploiting the employees' hesitant attitude towards the union to eliminate its continuing presence. In addition to recognizing the traditional presumptions of union majority status, however, the Court in Burns was careful to safeguard " `the rightful prerogative of owners independently to rearrange their businesses.' " Golden State Bottling Co. v. NLRB, 414 U.S. 168, 182 (1973), quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 549 (1964). We observed in Burns that, although the successor has an obligation to bargain with the union, it "is ordinarily free to set initial terms on which it will hire the employees of a predecessor," 406 U.S., at 294, and it is not bound by the substantive provisions of the predecessor's collective-bargaining agreement. Id., at 284. We further explained that the successor is under no obligation to hire the employees of its predecessor, subject, of course, to the restriction that it not discriminate against union employees in its hiring. Id., at 280, and n. 5; see also Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, 262, and n. 8 (1974). Thus, to *41 a substantial extent the applicability of Burns rests in the hands of the successor. If the new employer makes a conscious decision to maintain generally the same business and to hire a majority of its employees from the predecessor, then the bargaining obligation of § 8(a)(5) is activated. This makes sense when one considers that the employer intends to take advantage of the trained work force of its predecessor.[8] Accordingly, in Burns we acknowledged the interest of the successor in its freedom to structure its business and the interest of the employees in continued representation by the union. We now hold that a successor's obligation to bargain is not limited to a situation where the union in question has been recently certified. Where, as here, the union has a rebuttable presumption of majority status, this status continues despite the change in employers. And the new employer has an obligation to bargain with that union so long as the new employer is in fact a successor of the old employer and the majority of its employees were employed by its predecessor.[9] *42 III We turn now to the three rules, as well as to their application to the facts of this case, that the Board has adopted for the successorship situation. The Board, of course, is given considerable authority to interpret the provisions of the NLRA. See NLRB v. Financial Institution Employees, 475 U.S. 192, 202 (1986). If the Board adopts a rule that is rational and consistent with the Act, see ibid., then the rule is entitled to deference from the courts. Moreover, if the Board's application of such a rational rule is supported by substantial evidence on the record, courts should enforce the Board's order. See Beth Israel Hospital v. NLRB, 437 U.S. 483, 501 (1978); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). These principles also guide our review of the Board's action in a successorship case. See, e. g., Golden State Bottling Co. v. NLRB, 414 U. S., at 181. *43 A In Burns we approved the approach taken by the Board and accepted by courts with respect to determining whether a new company was indeed the successor to the old. 406 U.S., at 280-281, and n. 4. This approach, which is primarily factual in nature and is based upon the totality of the circumstances of a given situation, requires that the Board focus on whether the new company has "acquired substantial assets of its predecessor and continued, without interruption or substantial change, the predecessor's business operations." Golden State Bottling Co. v. NLRB, 414 U. S., at 184. Hence, the focus is on whether there is "substantial continuity" between the enterprises. Under this approach, the Board examines a number of factors: whether the business of both employers is essentially the same; whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors; and whether the new entity has the same production process, produces the same products, and basically has the same body of customers. See Burns, 406 U. S., at 280, n. 4; Aircraft Magnesium, Division of Grico Corp., 265 N. L. R. B. 1344, 1345 (1982), enf'd, 730 F.2d 767 (CA9 1984); Premium Foods, Inc., 260 N. L. R. B. 708, 714 (1982), enf'd, 709 F.2d 623 (CA9 1983). In conducting the analysis, the Board keeps in mind the question whether "those employees who have been retained will understandably view their job situations as essentially unaltered." See Golden State Bottling Co., 414 U. S., at 184; NLRB v. Jeffries Lithograph Co., 752 F.2d 459, 464 (CA9 1985). This emphasis on the employees' perspective furthers the Act's policy of industrial peace. If the employees find themselves in essentially the same jobs after the employer transition and if their legitimate expectations in continued representation by their union are thwarted, their *44 dissatisfaction may lead to labor unrest. See Golden State Bottling Co., 414 U. S., at 184. Although petitioner does not challenge the Board's "substantial continuity" approach, it does contest the application of the rule to the facts of this case. Essentially for the reasons given by the Court of Appeals, 775 F.2d, at 430, however, we find that the Board's determination that there was "substantial continuity" between Sterlingwale and petitioner and that petitioner was Sterlingwale's successor is supported by substantial evidence in the record. Petitioner acquired most of Sterlingwale's real property, its machinery and equipment, and much of its inventory and materials.[10] It introduced no new product line. Of particular significance is the fact that, from the perspective of the employees, their jobs did not change. Although petitioner abandoned converting dyeing in exclusive favor of commission dyeing, this change did not alter the essential nature of the employees' jobs, because both types of dyeing involved the same production process. The job classifications of petitioner were the same as those of Sterlingwale; petitioner's employees worked on the same machines under the direction of supervisors most of whom were former supervisors of Sterlingwale. The record, in fact, is clear that petitioner acquired Sterlingwale's assets with the express purpose of taking advantage of its predecessor's work force. *45 We do not find determinative of the successorship question the fact that there was a 7-month hiatus between Sterlingwale's demise and petitioner's start-up. Petitioner argues that this hiatus, coupled with the fact that its employees were hired through newspaper advertisements — not through Sterlingwale employment records, which were not transferred to it — resolves in its favor the "substantial continuity" question. See Brief for Petitioner 16-17, 20-22; see also 775 F.2d, at 439 (dissenting opinion). Yet such a hiatus is only one factor in the "substantial continuity" calculus and thus is relevant only when there are other indicia of discontinuity. See NLRB v. Band-Age, Inc., 534 F. 2d, 1, 5 (CA1), cert. denied, 429 U.S. 921 (1976). Conversely, if other factors indicate a continuity between the enterprises, and the hiatus is a normal start-up period, the "totality of the circumstances" will suggest that these circumstances present a successorship situation. See NLRB v. Daneker Clock Co., 516 F.2d 315, 316 (CA4 1975); C. G. Conn, Ltd., 197 N. L. R. B. 442, 446-447 (1972), enf'd, 474 F.2d 1344 (CA5 1973). For the reasons given above, this is a case where the other factors suggest "substantial continuity" between the companies despite the 7-month hiatus. Here, moreover, the extent of the hiatus between the demise of Sterlingwale and the start-up of petitioner is somewhat less than certain. After the February layoff, Sterlingwale retained a skeleton crew of supervisors and employees that continued to ship goods to customers and to maintain the plant. In addition, until the assignment for the benefit of the creditors late in the summer, Ansin was seeking to resurrect the business or to find a buyer for Sterlingwale. The Union was aware of these efforts. Viewed from the employees' perspective, therefore, the hiatus may have been much less than seven months. Although petitioner hired the employees through advertisements, it often relied on recommendations from supervisors, themselves formerly employed by Sterlingwale, and intended *46 the advertisements to reach the former Sterlingwale work force.[11] Accordingly, we hold that, under settled law, petitioner was a successor to Sterlingwale. We thus must consider if and when petitioner's duty to bargain arose. B In Burns, the Court determined that the successor had an obligation to bargain with the union because a majority of its employees had been employed by Wackenhut. 406 U.S., at 278-279. The "triggering" fact for the bargaining obligation was this composition of the successor's work force.[12] The *47 Court, however, did not have to consider the question when the successor's obligation to bargain arose: Wackenhut's contract expired on June 30 and Burns began its services with a majority of former Wackenhut guards on July 1. See id., at 275. In other situations, as in the present case, there is a start-up period by the new employer while it gradually builds its operations and hires employees. In these situations, the Board, with the approval of the Courts of Appeals, has adopted the "substantial and representative complement" rule for fixing the moment when the determination as to the composition of the successor's work force is to be made.[13] If, at this particular moment, a majority of the successor's employees had been employed by its predecessor, then the successor has an obligation to bargain with the union that represented these employees.[14] *48 This rule represents an effort to balance " `the objective of insuring maximum employee participation in the selection of a bargaining agent against the goal of permitting employees to be represented as quickly as possible.' " 775 F.2d, at 430-431, quoting NLRB v. Pre-Engineered Building Products, Inc., 603 F.2d 134, 136 (CA10 1979).[15] In deciding *49 when a "substantial and representative complement" exists in a particular employer transition, the Board examines a number of factors. It studies "whether the job classifications designated for the operation were filled or substantially filled and whether the operation was in normal or substantially normal production." See Premium Foods, Inc. v. NLRB, 709 F.2d 623, 628 (CA9 1983). In addition, it takes into consideration "the size of the complement on that date and the time expected to elapse before a substantially larger complement would be at work . . . as well as the relative certainty of the employer's expected expansion." Ibid. Petitioner contends that the Board's "representative complement" rule is unreasonable, given that it injures the representation rights of many of the successor's employees and that it places significant burdens upon the successor, which is unsure whether and when the bargaining obligation will arise. Brief for Petitioner 24-31; see also Brief for Chamber of Commerce of United States as Amicus Curiae 21-25. According to petitioner, if majority status is determined at the "full complement" stage, all the employees will have a voice in the selection of their bargaining representative, and this will reveal if the union truly has the support of most of the successor's employees. This approach, however, focuses only on the interest in having a bargaining representative selected by the majority of the employees. It fails to take into account the significant interest of employees in being represented as soon as possible. The latter interest is especially heightened in a situation where many of the successor's employees, who were formerly represented by a union, find themselves after the employer transition in essentially the same enterprise, but without their bargaining representative. Having the new employer refuse to bargain with the chosen representative of these employees "disrupts the employees' morale, deters their organizational activities, and *50 discourages their membership in unions." Franks Bros. Co. v. NLRB, 321 U.S. 702, 704 (1944). Accordingly, petitioner's "full complement" proposal must fail.[16] Nor do we believe that this "substantial and representative complement" rule places an unreasonable burden on the employer. It is true that, if an employer refuses to bargain with the employees once the representative complement has been attained, it risks violating § 8(a)(5). Furthermore, if an employer recognizes the union before this complement has been reached, this recognition could constitute a violation of § 8(a)(2), which makes it an unfair labor practice for an employer to support a labor organization. 29 U.S. C. § 158(a)(2). And, unlike the initial election situation, see n. 15, supra, here the employer, not the Board, applies this rule. We conclude, however, that in this situation the successor is in the best position to follow a rule the criteria of which are straightforward.[17] The employer generally will know with tolerable certainty when all its job classifications have been filled or substantially filled, when it has hired a majority of the employees it intends to hire, and when it has begun normal production. Moreover, the "full complement" standard advocated by petitioner is not necessarily easier for a successor *51 to apply than is the "substantial and representative complement." In fact, given the expansionist dreams of many new entrepreneurs, it might well be more difficult for a successor to identify the moment when the "full complement" has been attained, which is when the business will reach the limits of the new employer's initial hopes, than it would be for this same employer to acknowledge the time when its business has begun normal production — the moment identified by the "substantial and representative complement" rule.[18] *52 We therefore hold that the Board's "substantial and representative complement" rule is reasonable in the successorship context. Moreover, its application to the facts of this case is supported by substantial record evidence. The Court of Appeals observed that by mid-January petitioner "had hired employees in virtually all job classifications, had hired at least fifty percent of those it would ultimately employ in the majority of those classifications, and it employed a majority of the employees it would eventually employ when it reached full complement." 775 F.2d, at 431-432. At that time petitioner had begun normal production. Although petitioner intended to expand to two shifts, and, in fact, reached this goal by mid-April, that expansion was contingent expressly upon the growth of the business. Accordingly, as found by the Board and approved by the Court of Appeals, mid-January was the period when petitioner reached its "substantial and representative complement." Because at that time the majority of petitioner's employees were former Sterlingwale employees, petitioner had an obligation to bargain with the Union then. C We also hold that the Board's "continuing demand" rule is reasonable in the successorship situation. The successor's duty to bargain at the "substantial and representative complement" date is triggered only when the union has made a bargaining demand. Under the "continuing demand" rule, when a union has made a premature demand that has been rejected by the employer, this demand remains in force until the moment when the employer attains the "substantial and representative complement." See, e. g., Aircraft Magnesium, 265 N. L. R. B., at 1345, n. 9; Spruce Up Corp., 209 N. L. R. B. 194, 197 (1974), enf'd, 529 F.2d 516 (CA4 1975). Such a rule, particularly when considered along with the "substantial and representative complement" rule, places a minimal burden on the successor and makes sense in light of the union's position. Once the employer has concluded that *53 it has reached the appropriate complement, then, in order to determine whether its duty to bargain will be triggered, it has only to see whether the union already has made a demand for bargaining. Because the union has no established relationship with the successor and because it is unaware of the successor's plans for its operations and hiring, it is likely that, in many cases, a union's bargaining demand will be premature. It makes no sense to require the union repeatedly to renew its bargaining demand in the hope of having it correspond with the "substantial and representative complement" date, when, with little trouble, the employer can regard a previous demand as a continuing one.[19] The reasonableness of the "continuing demand" rule is demonstrated by the facts of this case. Although the Union had asked Ansin to inform it about his plans for Sterlingwale so that it could become involved in the employer transition, the Union learned about this transition only after it had become a fait accompli. Without having any established relationship with petitioner, it therefore is not surprising that the Union's October bargaining demand was premature. The Union, however, made clear after this demand that, in its view, petitioner had a bargaining obligation: the Union filed an unfair labor practice charge in November. Petitioner responded by denying that it had any duty to bargain. Rather than being a successor confused about when a bargaining obligation might arise, petitioner took an initial position *54 — and stuck with it — that it never would have any bargaining obligation with the Union.[20] The judgment of the Court of Appeals is affirmed. It is so ordered.

[†] In this case we are confronted with the issue whether the National Labor Relations Board's decision is consistent with In this Court ruled that the new employer, succeeding to the business of another, had an obligation to bargain with the union representing the predecessor's employees. We first must decide whether is limited to a situation where the union only recently was certified before the transition in employers, or whether that decision applies where the union is entitled to a presumption of majority Our inquiry then proceeds *30 to three questions that concern rules the Labor Board has developed in the successorship context. First, we must determine whether there is substantial record evidence to support the Board's conclusion that petitioner was a "successor" to Sterlingwale Corp., its business predecessor. Second, we must decide whether the Board's "substantial and representative complement" rule, designed to identify the date when a successor's obligation to bargain with the predecessor's employees' union arises, is consistent with is reasonable, and was applied properly in this case. Finally, we must examine the Board's "continuing demand" principle to the effect that, if a union has presented to a successor a premature demand for bargaining, this demand continues in effect until the successor acquires the "substantial and representative complement" of employees that triggers its obligation to bargain. I For over 30 years before 1982, Sterlingwale operated a textile dyeing and finishing plant in Fall River, Mass. Its business consisted basically of two types of dyeing, called, respectively, "converting" and "commission." Under the converting process, which in 1981 accounted for 60% to 70% of its business, see App. 149, Sterlingwale bought unfinished fabrics for its own account, dyed and finished them, and then sold them to apparel manufacturers. In commission dyeing, which accounted for the remainder of its business, Sterlingwale dyed and finished fabrics owned by customers according to their specifications. The financing and marketing aspects of converting and commission dyeing are different. Converting requires capital to purchase fabrics and a sales force to promote the finished products. The production process, however, is the same for both converting and commission dyeing. In the late 1970's the textile-dyeing business, including Sterlingwale's, began to suffer from adverse economic conditions *31 and foreign competition. After business at Sterlingwale took a serious turn for the worse because of the loss of its export market, and the company reduced the number of its employees, Finally, in February 1982, Sterlingwale laid off all its production employees, primarily because it no longer had the capital to continue the converting business. It retained a skeleton crew of workers and supervisors to ship out the goods remaining on order and to maintain the corporation's building and machinery. In the months following the layoff, Leonard Ansin, Sterlingwale's president, liquidated the inventory of the corporation and, at the same time, looked for a business partner with whom he could "resurrect the business." Ansin felt that he owed it to the community and to the employees to keep Sterlingwale in operation. For almost as long as Sterlingwale had been in existence, its production and maintenance employees had been represented by the United Textile Workers of America, AFL-CIO, Local 292 (Union). The most recent collective-bargaining agreement before Sterlingwale's demise had been negotiated in 1978 and was due to expire in 1981. By an agreement dated October 1980, however, in response to the financial difficulties suffered by Sterlingwale, the Union agreed to amend the 1978 agreement to extend its expiration date by one year, until April 1, 1982, without any wage increase and with an agreement to improve labor productivity. In the months following the final February 1982 layoff, the Union met with company officials over problems involving this job action, and, in particular, Sterlingwale's failure to pay premiums on group-health insurance. In addition, during meetings with Ansin, Union officials told him of their concern with Sterlingwale's future and their interest in helping to keep the *32 company operating or in meeting with prospective buyers. In late summer 1982, however, Sterlingwale finally went out of business. It made an assignment for the benefit of its creditors, primarily Ansin's mother, who was an officer of the corporation and holder of a first mortgage on most of Sterlingwale's real property, and the Massachusetts Capital Resource Corporation (MCRC), which held a security interest on Sterlingwale's machinery and equipment, -114. Ansin hired a professional liquidator to dispose of the company's remaining assets, mostly its inventory, at auction. During this same period, a former Sterlingwale employee and officer, Herbert Chace, and Arthur Friedman, president of one of Sterlingwale's major customers, Marcamy Sales Corporation (Marcamy), formed petitioner Fall River Dyeing & Finishing Corp. Chace, who had resigned from Sterlingwale in February 1982, had worked there for 27 years, had been vice president in charge of sales at the time of his departure, and had participated in collective bargaining with the Union during his tenure at Sterlingwale. Chace and Friedman formed petitioner with the intention of engaging strictly in the commission-dyeing business and of taking advantage of the availability of Sterlingwale's assets and work force. Accordingly, Friedman had Marcamy acquire from MCRC and Ansin's mother Sterlingwale's plant, real property, and equipment, and convey them to petitioner,[1] Petitioner obtained some of Sterlingwale's remaining inventory at the liquidator's auction. Chace became petitioner's vice president in charge of operations and Friedman became its president. In September 1982, petitioner began operating out of Sterlingwale's former facilities and began hiring employees. *33 It advertised for workers and supervisors in a local newspaper, and Chace personally got in touch with several prospective supervisors, Petitioner hired 12 supervisors, of whom 8 had been supervisors with Sterlingwale and 3 had been production employees there. In its hiring decisions for production employees, petitioner took into consideration recommendations from these supervisors and a prospective employee's former employment with Sterlingwale. Petitioner's initial hiring goal was to attain one full shift of workers, which meant from to 60 employees. Petitioner planned to "see how business would be" after this initial goal had been met and, if business permitted, to expand to two shifts. The employees who were hired first spent approximately four to six weeks in start-up operations and an additional month in experimental production. By letter dated October 19, 1982, the Union requested petitioner to recognize it as the bargaining agent for petitioner's employees and to begin collective bargaining. Petitioner refused the request, stating that, in its view, the request had "no legal basis." At that time, 18 of petitioner's 21 employees were former employees of Sterlingwale. See 272 N. L. R. B. 839, 840 By November of that year, petitioner had employees in a complete range of jobs, had its production process in operation, and was handling customer orders, App. 22-226; by mid-January it had attained its initial goal of one shift of workers, Of the workers in this initial shift, a number that represented over half the workers petitioner would eventually hire, 36 were former Sterlingwale employees. Tr. of Oral Arg. 28. Petitioner continued to expand its work force, and by mid-April it had reached two full shifts. For the first time, ex-Sterlingwale employees were in the minority but just barely so (2 or 3 out of 107 employees). App. 294-302; Tr. of Oral Arg. 28. *34 Although petitioner engaged exclusively in commission dyeing, the employees experienced the same conditions they had when they were working for Sterlingwale. The production process was unchanged and the employees worked on the same machines, in the same building, with the same job classifications, under virtually the same supervisors. App. 12-16, 20-206. Over half the volume of petitioner's business came from former Sterlingwale customers, and, in particular, Marcamy. On November 1, 1982, the Union filed an unfair labor practice charge with the Board, alleging that in its refusal to bargain petitioner had violated 8(a)(1) and () of the National Labor Relations Act (NLRA), as amended, 29 U.S. C. 18(a)(1) and ().[2] After a hearing, the Administrative Law Judge (ALJ) decided that, on the facts of the case, petitioner was a successor to Sterlingwale. 272 N. L. R. B., at 840. He observed that petitioner therefore would have an obligation to bargain with the Union if the majority of petitioner's employees were former employees of Sterlingwale. He noted that the proper date for making this determination was not mid-April, when petitioner first had two shifts working, but mid-January, when petitioner had attained a "representative complement" of employees. The ALJ acknowledged that a demand for bargaining from the Union was necessary to trigger petitioner's obligation to bargain, but noted that the Union's demand of October 1982, although premature, was "of a continuing nature." *3 Thus, in the view of the ALJ, petitioner's duty to bargain arose in mid-January because former Sterlingwale employees then were in the majority and because the Union's October demand was still in effect. Petitioner thus committed an unfair labor practice in refusing to bargain. In a brief decision and order, the Board, with one member dissenting, affirmed this decision.[3] The Court of for the First Circuit, by a divided vote, enforced the order. The court first found, that the Board's determination that petitioner was Sterlingwale's successor was consistent with and was "supported by substantial evidence in the record." The court observed: "The differences between [petitioner's] business and Sterlingwale's are not sufficiently significant to require a finding that the continuity of the enterprise, viewed from the employees' standpoint, was broken." The court then noted that the Board's longstanding "substantial and representative complement" standard, which the ALJ applied in this case, is an attempt to establish a method for determining when a successor has to bargain with the predecessor's union in a situation where, at the moment of the transition between the old and new enterprises, it is not clear when the new employer will reach a "full complement of employees." According to the court, the Board's determination that petitioner had "employed a substantial and representative complement of its workforce in mid-January" was reasonable. Finally, the court found that the Board's rule treating a premature union demand for bargaining as a continuing demand was reasonable and "practical" and entitled to deference.[4] *36 Because of the importance of the successorship issue in labor law, and because of our interest in the rules developed by the Board for successorship cases, we granted certiorari. II Fifteen years ago in this Court first dealt with the issue of a successor employer's obligation to bargain with a union that had represented the employees of its predecessor. In about four months before the employer transition, the security-guard employees of Wackenhut Corp. had chosen a particular union as their bargaining representative and that union had negotiated a collective-bargaining agreement with Wackenhut, however, lost its service contract on certain airport property to proceeded to hire 27 of the Wackenhut guards for its 42-guard operation at the airport. told its guards that, as a condition of their employment, they must join the union with which already had collective-bargaining agreements at other locations. When the union that had represented the Wackenhut employees brought unfair labor practice charges against this Court agreed with the Board's determination that had an obligation to bargain with this union. We observed: "In an election held but a few months before, the union had been designated bargaining agent for the employees in the unit and a majority of these employees had been hired by for work in the identical unit. It is undisputed that knew all the relevant facts in this regard and was aware of the certification and of the *37 existence of a collective-bargaining contract. In these circumstances, it was not unreasonable for the Board to conclude that the union certified to represent all employees in the unit still represented a majority of the employees and that could not reasonably have entertained a good-faith doubt about that fact. ' obligation to bargain with the union over terms and conditions of employment stemmed from its hiring of Wackenhut's employees and from the recent election and Board certification." Although our reasoning in was tied to the facts presented there, see we suggested that our analysis would be equally applicable even if a union with which a successor had to bargain had not been certified just before the transition in employers. We cited with approval, and 281, Board and Court of decisions where it "ha[d] been consistently held that a mere change of employers or of ownership in the employing industry is not such an `unusual circumstance' as to affect the force of the Board's certification within the normal operative period if a majority of employees after the change of ownership or management were employed by the preceding employer." Several of these cases involved successorship situations where the union in question had not been certified only a short time before the transition date. See, e. g., ; Tom-A-Hawk Transit, Moreover, in defining "the force of the Board's certification within the normal operative period," 406 U.S., we referred in to two presumptions regarding a union's majority status following certification. See n. 3. First, after a union has been certified by the Board as a bargaining-unit representative, it usually is entitled to a conclusive presumption of majority status for one year following the certification. See ib citing ; see 29 U.S. C. 19(c)(3) ("No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held"). Second, after this period, the union is entitled to a rebuttable presumption of majority 406 U.S., n. 3, citing Celanese Corp. of America, 9 N. L. R. B. 664, 672 These presumptions are based not so much on an absolute certainty that the union's majority status will not erode following certification, as on a particular policy decision. The overriding policy of the NLRA is "industrial peace." Brooks v. The presumptions of majority support further this policy by "promot[ing] stability in collective-bargaining relationships, without impairing the free choice of employees." Terrell Machine 173 N. L. R. B. 1480 enf'd, (CA4), cert. denied, In essence, they enable a union to concentrate on obtaining and fairly administering a collective-bargaining agreement without worrying that, unless it produces immediate results, it will lose majority support and will be decertified. See Brooks v. The presumptions remove any temptation on the part of the employer to avoid good-faith bargaining in the hope that, by delaying, it will undermine the union's support among the employees. See ibid.; see R. Gorman, Labor Law 3[] The upshot of the presumptions is to permit unions *39 to develop stable bargaining relationships with employers, which will enable the unions to pursue the goals of their members, and this pursuit, in turn, will further industrial peace. The rationale behind the presumptions is particularly pertinent in the successorship situation and so it is understandable that the Court in referred to them. During a transition between employers, a union is in a peculiarly vulnerable position. It has no formal and established bargaining relationship with the new employer, is uncertain about the new employer's plans, and cannot be sure if or when the new employer must bargain with it. While being concerned with the future of its members with the new employer, the union must protect whatever rights still exist for its members under the collective-bargaining agreement with the predecessor employer.[6] Accordingly, during this unsettling transition period, the union needs the presumptions of majority status to which it is entitled to safeguard its members' rights and to develop a relationship with the successor. The position of the employees supports the application of the presumptions in the successorship situation. If the employees find themselves in a new enterprise that substantially resembles the old, but without their chosen bargaining representative, they may well feel that their choice of a union *40 is subject to the vagaries of an enterprise's transformation. This feeling is not conducive to industrial peace. In addition, after being hired by a new company following a layoff from the old, employees initially will be concerned primarily with maintaining their new jobs. In fact, they might be inclined to shun support for their former union, especially if they believe that such support will jeopardize their jobs with the successor or if they are inclined to blame the union for their layoff and problems associated with it.[7] Without the presumptions of majority support and with the wide variety of corporate transformations possible, an employer could use a successor enterprise as a way of getting rid of a labor contract and of exploiting the employees' hesitant attitude towards the union to eliminate its continuing presence. In addition to recognizing the traditional presumptions of union majority status, however, the Court in was careful to safeguard " `the rightful prerogative of owners independently to rearrange their businesses.' " Golden State Bottling v. quoting John Wiley & Sons, We observed in that, although the successor has an obligation to bargain with the union, it "is ordinarily free to set initial terms on which it will hire the employees of a predecessor," and it is not bound by the substantive provisions of the predecessor's collective-bargaining agreement. We further explained that the successor is under no obligation to hire the employees of its predecessor, subject, of course, to the restriction that it not discriminate against union employees in its hiring. and n. ; see Howard Johnson Thus, to *41 a substantial extent the applicability of rests in the hands of the successor. If the new employer makes a conscious decision to maintain generally the same business and to hire a majority of its employees from the predecessor, then the bargaining obligation of 8(a)() is activated. This makes sense when one considers that the employer intends to take advantage of the trained work force of its predecessor.[8] Accordingly, in we acknowledged the interest of the successor in its freedom to structure its business and the interest of the employees in continued representation by the union. We now hold that a successor's obligation to bargain is not limited to a situation where the union in question has been recently certified. Where, as here, the union has a rebuttable presumption of majority status, this status continues despite the change in employers. And the new employer has an obligation to bargain with that union so long as the new employer is in fact a successor of the old employer and the majority of its employees were employed by its predecessor.[9] *42 III We turn now to the three rules, as well as to their application to the facts of this case, that the Board has adopted for the successorship situation. The Board, of course, is given considerable authority to interpret the provisions of the NLRA. See v. Financial Institution Employees, If the Board adopts a rule that is rational and consistent with the Act, see ib then the rule is entitled to deference from the courts. Moreover, if the Board's application of such a rational rule is supported by substantial evidence on the record, courts should enforce the Board's order. See Beth Israel Hospital v. ; Universal Camera Corp. v. These principles guide our review of the Board's action in a successorship case. See, e. g., Golden State Bottling v. *43 A In we approved the approach taken by the Board and accepted by courts with respect to determining whether a new company was indeed the successor to the 406 U.S., -281, and n. 4. This approach, which is primarily factual in nature and is based upon the totality of the circumstances of a given situation, requires that the Board focus on whether the new company has "acquired substantial assets of its predecessor and continued, without interruption or substantial change, the predecessor's business operations." Golden State Bottling v. Hence, the focus is on whether there is "substantial continuity" between the enterprises. Under this approach, the Board examines a number of factors: whether the business of both employers is essentially the same; whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors; and whether the new entity has the same production process, produces the same products, and basically has the same body of customers. See 406 U. S., n. 4; Aircraft Magnesium, Division of Grico Corp., 26 N. L. R. B. 1344, 134 (1982), enf'd, ; Premium Foods, Inc., 260 N. L. R. B. 708, 714 (1982), enf'd, In conducting the analysis, the Board keeps in mind the question whether "those employees who have been retained will understandably view their job situations as essentially unaltered." See Golden State Bottling ; v. Jeffries Lithograph This emphasis on the employees' perspective furthers the Act's policy of industrial peace. If the employees find themselves in essentially the same jobs after the employer transition and if their legitimate expectations in continued representation by their union are thwarted, their *44 dissatisfaction may lead to labor unrest. See Golden State Bottling Although petitioner does not challenge the Board's "substantial continuity" approach, it does contest the application of the rule to the facts of this case. Essentially for the reasons given by the Court of however, we find that the Board's determination that there was "substantial continuity" between Sterlingwale and petitioner and that petitioner was Sterlingwale's successor is supported by substantial evidence in the record. Petitioner acquired most of Sterlingwale's real property, its machinery and equipment, and much of its inventory and materials.[10] It introduced no new product line. Of particular significance is the fact that, from the perspective of the employees, their jobs did not change. Although petitioner abandoned converting dyeing in exclusive favor of commission dyeing, this change did not alter the essential nature of the employees' jobs, because both types of dyeing involved the same production process. The job classifications of petitioner were the same as those of Sterlingwale; petitioner's employees worked on the same machines under the direction of supervisors most of whom were former supervisors of Sterlingwale. The record, in fact, is clear that petitioner acquired Sterlingwale's assets with the express purpose of taking advantage of its predecessor's work force. *4 We do not find determinative of the successorship question the fact that there was a 7-month hiatus between Sterlingwale's demise and petitioner's start-up. Petitioner argues that this hiatus, coupled with the fact that its employees were hired through newspaper advertisements — not through Sterlingwale employment records, which were not transferred to it — resolves in its favor the "substantial continuity" question. See Brief for Petitioner 16-17, 20-22; see Yet such a hiatus is only one factor in the "substantial continuity" calculus and thus is relevant only when there are other indicia of discontinuity. See v. Band-Age, Inc., (CA1), cert. denied, Conversely, if other factors indicate a continuity between the enterprises, and the hiatus is a normal start-up period, the "totality of the circumstances" will suggest that these circumstances present a successorship situation. See v. Daneker Clock 16 F.2d 31, (CA4 197); C. G. Conn, Ltd., 197 N. L. R. B. 442, 446-447 enf'd, For the reasons given above, this is a case where the other factors suggest "substantial continuity" between the companies despite the 7-month hiatus. Here, moreover, the extent of the hiatus between the demise of Sterlingwale and the start-up of petitioner is somewhat less than certain. After the February layoff, Sterlingwale retained a skeleton crew of supervisors and employees that continued to ship goods to customers and to maintain the plant. In addition, until the assignment for the benefit of the creditors late in the summer, Ansin was seeking to resurrect the business or to find a buyer for Sterlingwale. The Union was aware of these efforts. Viewed from the employees' perspective, therefore, the hiatus may have been much less than seven months. Although petitioner hired the employees through advertisements, it often relied on recommendations from supervisors, themselves formerly employed by Sterlingwale, and intended *46 the advertisements to reach the former Sterlingwale work force.[11] Accordingly, we hold that, under settled law, petitioner was a successor to Sterlingwale. We thus must consider if and when petitioner's duty to bargain arose. B In the Court determined that the successor had an obligation to bargain with the union because a majority of its employees had been employed by 406 U.S., The "triggering" fact for the bargaining obligation was this composition of the successor's work force.[12] The *47 Court, however, did not have to consider the question when the successor's obligation to bargain arose: Wackenhut's contract expired on June 30 and began its services with a majority of former Wackenhut guards on July 1. See at 27. In other situations, as in the present case, there is a start-up period by the new employer while it gradually builds its operations and hires employees. In these situations, the Board, with the approval of the Courts of has adopted the "substantial and representative complement" rule for fixing the moment when the determination as to the composition of the successor's work force is to be made.[13] If, at this particular moment, a majority of the successor's employees had been employed by its predecessor, then the successor has an obligation to bargain with the union that represented these employees.[14] *48 This rule represents an effort to balance " `the objective of insuring maximum employee participation in the selection of a bargaining agent against the goal of permitting employees to be represented as quickly as possible.' " -431, quoting v. Pre-Engineered Building Products, Inc.,[1] In deciding *49 when a "substantial and representative complement" exists in a particular employer transition, the Board examines a number of factors. It studies "whether the job classifications designated for the operation were filled or substantially filled and whether the operation was in normal or substantially normal production." See Premium Foods, In addition, it takes into consideration "the size of the complement on that date and the time expected to elapse before a substantially larger complement would be at work as well as the relative certainty of the employer's expected expansion." Petitioner contends that the Board's "representative complement" rule is unreasonable, given that it injures the representation rights of many of the successor's employees and that it places significant burdens upon the successor, which is unsure whether and when the bargaining obligation will arise. Brief for Petitioner 24-31; see Brief for Chamber of Commerce of United States as Amicus Curiae 21-2. According to petitioner, if majority status is determined at the "full complement" stage, all the employees will have a voice in the selection of their bargaining representative, and this will reveal if the union truly has the support of most of the successor's employees. This approach, however, focuses only on the interest in having a bargaining representative selected by the majority of the employees. It fails to take into account the significant interest of employees in being represented as soon as possible. The latter interest is especially heightened in a situation where many of the successor's employees, who were formerly represented by a union, find themselves after the employer transition in essentially the same enterprise, but without their bargaining representative. Having the new employer refuse to bargain with the chosen representative of these employees "disrupts the employees' morale, deters their organizational activities, and *0 discourages their membership in unions." Franks Bros. v. Accordingly, petitioner's "full complement" proposal must fail.[16] Nor do we believe that this "substantial and representative complement" rule places an unreasonable burden on the employer. It is true that, if an employer refuses to bargain with the employees once the representative complement has been attained, it risks violating 8(a)(). Furthermore, if an employer recognizes the union before this complement has been reached, this recognition could constitute a violation of 8(a)(2), which makes it an unfair labor practice for an employer to support a labor organization. 29 U.S. C. 18(a)(2). And, unlike the initial election situation, see n. 1, here the employer, not the Board, applies this rule. We conclude, however, that in this situation the successor is in the best position to follow a rule the criteria of which are straightforward.[17] The employer generally will know with tolerable certainty when all its job classifications have been filled or substantially filled, when it has hired a majority of the employees it intends to hire, and when it has begun normal production. Moreover, the "full complement" standard advocated by petitioner is not necessarily easier for a successor *1 to apply than is the "substantial and representative complement." In fact, given the expansionist dreams of many new entrepreneurs, it might well be more difficult for a successor to identify the moment when the "full complement" has been attained, which is when the business will reach the limits of the new employer's initial hopes, than it would be for this same employer to acknowledge the time when its business has begun normal production — the moment identified by the "substantial and representative complement" rule.[18] *2 We therefore hold that the Board's "substantial and representative complement" rule is reasonable in the successorship context. Moreover, its application to the facts of this case is supported by substantial record evidence. The Court of observed that by mid-January petitioner "had hired employees in virtually all job classifications, had hired at least fifty percent of those it would ultimately employ in the majority of those classifications, and it employed a majority of the employees it would eventually employ when it reached full complement." 77 F.2d, -432. At that time petitioner had begun normal production. Although petitioner intended to expand to two shifts, and, in fact, reached this goal by mid-April, that expansion was contingent expressly upon the growth of the business. Accordingly, as found by the Board and approved by the Court of mid-January was the period when petitioner reached its "substantial and representative complement." Because at that time the majority of petitioner's employees were former Sterlingwale employees, petitioner had an obligation to bargain with the Union then. C We hold that the Board's "continuing demand" rule is reasonable in the successorship situation. The successor's duty to bargain at the "substantial and representative complement" date is triggered only when the union has made a bargaining demand. Under the "continuing demand" rule, when a union has made a premature demand that has been rejected by the employer, this demand remains in force until the moment when the employer attains the "substantial and representative complement." See, e. g., Aircraft Magnesium, 26 N. L. R. B., at 134, n. 9; Spruce Up Corp., 209 N. L. R. B. 194, 197 enf'd, 29 F.2d 16 (CA4 197). Such a rule, particularly when considered along with the "substantial and representative complement" rule, places a minimal burden on the successor and makes sense in light of the union's position. Once the employer has concluded that *3 it has reached the appropriate complement, then, in order to determine whether its duty to bargain will be triggered, it has only to see whether the union already has made a demand for bargaining. Because the union has no established relationship with the successor and because it is unaware of the successor's plans for its operations and hiring, it is likely that, in many cases, a union's bargaining demand will be premature. It makes no sense to require the union repeatedly to renew its bargaining demand in the hope of having it correspond with the "substantial and representative complement" date, when, with little trouble, the employer can regard a previous demand as a continuing one.[19] The reasonableness of the "continuing demand" rule is demonstrated by the facts of this case. Although the Union had asked Ansin to inform it about his plans for Sterlingwale so that it could become involved in the employer transition, the Union learned about this transition only after it had become a fait accompli. Without having any established relationship with petitioner, it therefore is not surprising that the Union's October bargaining demand was premature. The Union, however, made clear after this demand that, in its view, petitioner had a bargaining obligation: the Union filed an unfair labor practice charge in November. Petitioner responded by denying that it had any duty to bargain. Rather than being a successor confused about when a bargaining obligation might arise, petitioner took an initial position *4 — and stuck with it — that it never would have any bargaining obligation with the Union.[20] The judgment of the Court of is affirmed. It is so ordered.

Justice Stevens

dissenting

California v. Carney

https://www.courtlistener.com/opinion/111423/california-v-carney/

https://www.courtlistener.com/api/rest/v3/clusters/111423/

1984-091

The character of "the place to be searched"[1] plays an important role in Fourth Amendment analysis. In this case, police officers searched a Dodge/Midas Mini Motor Home. The California Supreme Court correctly characterized this vehicle as a "hybrid" which combines "the mobility attribute of an automobile . . . with most of the privacy characteristics of a house."[2] The hybrid character of the motor home places it at the crossroads between the privacy interests that generally forbid warrantless invasions of the home, Payton v. New York, 445 U.S. 573, 585-590 (1980), and the law enforcement interests that support the exception for warrantless searches of automobiles based on probable cause, United States v. Ross, 456 U.S. 798, 806, 820 (1982). By choosing to follow the latter route, the Court errs in three respects: it has entered new *396 territory prematurely, it has accorded priority to an exception rather than to the general rule, and it has abandoned the limits on the exception imposed by prior cases. I In recent Terms, the Court has displayed little confidence in state and lower federal court decisions that purport to enforce the Fourth Amendment. Unless an order suppressing evidence is clearly correct, a petition for certiorari is likely to garner the four votes required for a grant of plenary review — as the one in this case did. Much of the Court's "burdensome" workload is a product of its own aggressiveness in this area. By promoting the Supreme Court of the United States as the High Magistrate for every warrantless search and seizure, this practice has burdened the argument docket with cases presenting fact-bound errors of minimal significance.[3] It has also encouraged state legal officers to file petitions for certiorari in even the most frivolous search and seizure cases.[4] The Court's lack of trust in lower judicial authority has resulted in another improvident exercise of discretionary *397 jurisdiction.[5] In what is at most only a modest extension of our Fourth Amendment precedents, the California Supreme Court held that police officers may not conduct a nonexigent search of a motor home without a warrant supported by probable cause. The State of California filed a petition for certiorari contending that the decision below conflicted with the authority of other jurisdictions.[6] Even a cursory examination of the cases alleged to be in conflict revealed that they did not consider the question presented here.[7] *398 This is not a case "in which an American citizen has been deprived of a right secured by the United States Constitution or a federal statute. Rather, . . . a state court has upheld a citizen's assertion of a right, finding the citizen to be protected under both federal and state law." Michigan v. Long, 463 U.S. 1032, 1067-1068 (1983) (STEVENS, J., dissenting). As an unusually perceptive study of this Court's docket stated with reference to California v. Ramos, 463 U.S. 992 (1983), "this . . . situation . . . rarely presents a compelling reason for Court review in the absence of a fully percolated conflict."[8] The Court's decision to forge ahead *399 has established a rule for searching motor homes that is to be followed by the entire Nation. If the Court had merely allowed the decision below to stand, it would have only governed searches of those vehicles in a single State. The breadth of this Court's mandate counsels greater patience before we offer our binding judgment on the meaning of the Constitution. Premature resolution of the novel question presented has stunted the natural growth and refinement of alternative principles. Despite the age of the automobile exception and the countless cases in which it has been applied, we have no prior cases defining the contours of a reasonable search in the context of hybrids such as motor homes, house trailers, houseboats, or yachts. In this case, the Court can barely glimpse the diverse lifestyles associated with recreational vehicles and mobile living quarters.[9] The line or lines separating mobile homes from permanent structures might have been drawn in various ways, with consideration given to whether the home is moving or at rest, whether it rests on land or water, the form of the vehicle's attachment to its location, its potential speed of departure, its size and capacity to serve as a domicile, and its method of locomotion. Rational decisionmaking strongly counsels against divining the uses and abuses of these vehicles in the vacuum of the first case raising the question before us. Of course, we may not abdicate our responsibility to clarify the law in this filed. Some caution, however, is justified when every decision requires us to resolve a vexing "conflict. . . between the individual's constitutionally protected interest in privacy and the public interest in effective law enforcement." United States v. Ross, 456 U. S., at 804. "The certainty that is supposed to come from speedy resolution *400 may prove illusory if a premature decision raises more questions than it answers."[10] The only true rules governing search and seizure have been formulated and refined in the painstaking scrutiny of case-by-case adjudication. Consideration of this matter by the lower courts in a series of litigated cases would surely have facilitated a reasoned accommodation of the conflicting interests. To identify rules that will endure, we must rely on the state and lower federal courts to debate and evaluate the different approaches to difficult and unresolved questions of constitutional law.[11] Deliberation on the question over time winnows out the unnecessary *401 and discordant elements of doctrine and preserves "whatever is pure and sound and fine."[12] II The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." We have interpreted this language to provide law enforcement officers with a bright-line standard: "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967) (footnotes omitted); Arkansas v. Sanders, 442 U.S. 753, 758 (1979). In United States v. Ross, the Court reaffirmed the primary importance of the general rule condemning warrantless searches, and emphasized that the exception permitting the search of automobiles without a warrant is a narrow one. 456 U.S., at 824-825. We expressly endorsed "the general rule," stated in Carroll v. United States, 267 U.S. 132, 156 (1925), that " `[i]n cases where the securing of a warrant is reasonably practicable, it must be used.' " 456 U.S., at 807. Given this warning and the presumption of regularity that attaches to a warrant,[13] it is hardly unrealistic to expect experienced law enforcement officers to obtain a search warrant when one can easily be secured. The ascendancy of the warrant requirement in our system of justice must not be bullied aside by extravagant claims of necessity: " `The warrant requirement . . . is not an inconvenience to be somehow "weighed" against the claims of police efficiency. It is, or should be, an important working part *402 of our machinery of government, operating as a matter of course to check the "well-intentioned but mistakenly overzealous executive officers" who are a part of any system of law enforcement.' [Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971).] ". . . By requiring that conclusions concerning probable cause and the scope of a search `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' Johnson v. United States, 333 U.S. 10, 14 (1948), we minimize the risk of unreasonable assertions of executive authority." Arkansas v. Sanders, 442 U. S., at 758-759. If the motor home were parked in the exact middle of the intersection between the general rule and the exception for automobiles, priority should be given to the rule rather than the exception. III The motor home, however, was not parked in the middle of that intersection. Our prior cases teach us that inherent mobility is not a sufficient justification for the fashioning of an exception to the warrant requirement, especially in the face of heightened expectations of privacy in the location searched. Motor homes, by their common use and construction, afford their owners a substantial and legitimate expectation of privacy when they dwell within. When a motor home is parked in a location that is removed from the public highway, I believe that society is prepared to recognize that the expectations of privacy within it are not unlike the expectations one has in a fixed dwelling. As a general rule, such places may only be searched with a warrant based upon probable cause. Warrantless searches of motor homes are only reasonable when the motor home is traveling on the public streets or highways, or when exigent circumstances otherwise require an immediate search without the expenditure of time necessary to obtain a warrant. *403 As we explained in Ross, the automobile exception is the product of a long history: "[S]ince its earliest days Congress had recognized the impracticability of securing a warrant in cases involving the transportation of contraband goods. It is this impracticability, viewed in historical perspective, that provided the basis for the Carroll decision. Given the nature of an automobile in transit, the Court recognized that an immediate intrusion is necessary if police officers are to secure the illicit substance. In this class of cases, the Court held that a warrantless search of an automobile is not unreasonable." 456 U.S., at 806-807 (footnotes omitted).[14] The automobile exception has been developed to ameliorate the practical problems associated with the search of vehicles that have been stopped on the streets or public highways because there was probable cause to believe they were transporting contraband. Until today, however, the Court has never decided whether the practical justifications that apply to a vehicle that is stopped in transit on a public way apply with the same force to a vehicle parked in a lot near a courthouse where it could easily be detained while a warrant is issued.[15] *404 In this case, the motor home was parked in an off-the-street lot only a few blocks from the courthouse in downtown San Diego where dozens of magistrates were available to entertain a warrant application.[16] The officers clearly had the element of surprise with them, and with curtains covering the windshield, the motor home offered no indication of any imminent departure. The officers plainly had probable cause to arrest the respondent and search the motor home, and on this record, it is inexplicable why they eschewed the safe harbor of a warrant.[17] In the absence of any evidence of exigency in the circumstances of this case, the Court relies on the inherent mobility of the motor home to create a conclusive presumption of exigency. This Court, however, has squarely held that mobility of the place to be searched is not a sufficient justification for abandoning the warrant requirement. In United States v. Chadwick, 433 U.S. 1 (1977), the Court held that a warrantless search of a footlocker violated the Fourth Amendment even *405 though there was ample probable cause to believe it contained contraband. The Government had argued that the rationale of the automobile exception applied to movable containers in general, and that the warrant requirement should be limited to searches of homes and other "core" areas of privacy. See id., at 7. We categorically rejected the Government's argument, observing that there are greater privacy interests associated with containers than with automobiles,[18] and that there are less practical problems associated with the temporary detention of a container than with the detention of an automobile. See id., at 13, and n. 7. We again endorsed that analysis in Ross: "The Court in Chadwick specifically rejected the argument that the warrantless search was `reasonable' because a footlocker has some of the mobile characteristics that support warrantless searches of automobiles. The Court recognized that `a person's expectations of privacy in personal luggage are substantially greater than in an automobile,' [433 U. S., at 13], and noted that the practical problems associated with the temporary detention of a piece of luggage during the period of time necessary to obtain a warrant are significantly less than those associated with the detention of an automobile. Id., at 13, n. 7." 456 U.S., at 811. It is perfectly obvious that the citizen has a much greater expectation of privacy concerning the interior of a mobile home than of a piece of luggage such as a footlocker. If "inherent mobility" does not justify warrantless searches *406 of containers, it cannot rationally provide a sufficient justification for the search of a person's dwelling place. Unlike a brick bungalow or a frame Victorian, a motor home seldom serves as a permanent lifetime abode. The motor home in this case, however, was designed to accommodate a breadth of ordinary everyday living. Photographs in the record indicate that its height, length, and beam provided substantial living space inside: stuffed chairs surround a table; cupboards provide room for storage of personal effects; bunk beds provide sleeping space; and a refrigerator provides ample space for food and beverages.[19] Moreover, curtains and large opaque walls inhibit viewing the activities inside from the exterior of the vehicle. The interior configuration of the motor home establishes that the vehicle's size, shape, and mode of construction should have indicated to the officers that it was a vehicle containing mobile living quarters. The State contends that officers in the field will have an impossible task determining whether or not other vehicles contain mobile living quarters. It is not necessary for the Court to resolve every unanswered question in this area in a single case, but common English usage suggests that we already distinguish between a "motor home" which is "equipped as a self-contained traveling home," a "camper" which is only equipped for "casual travel and camping," and an automobile which is "designed for passenger transportation."[20] Surely the exteriors of these vehicles contain clues about their different functions which could alert officers in the field to the necessity of a warrant.[21] *407 The California Vehicle Code also refutes the State's argument that the exclusion of "motor homes" from the automobile exception would be impossible to apply in practice. In its definitional section, the Code distinguishes campers and house cars from station wagons, and suggests that they are special categories of the more general terms — motor vehicles and passenger vehicles.[22] A "house car" is "a motor vehicle originally designed, or permanently altered, and equipped for human habitation, or to which a camper has been permanently attached."[23] Alcoholic beverages may not be opened or consumed in motor vehicles traveling on the highways, except in the "living quarters of a housecar or camper."[24] The same definitions might not necessarily apply in the context of the Fourth Amendment, but they do indicate that descriptive distinctions are humanly possible. They also reflect the California Legislature's judgment that "house cars" entertain different kinds of activities than the ordinary passenger vehicle. In my opinion, searches of places that regularly accommodate a wide range of private human activity are fundamentally different from searches of automobiles which primarily serve a public transportation function.[25] Although it may not be a castle, a motor home is usually the functional equivalent of a hotel room, a vacation and retirement home, or a hunting and fishing cabin. These places may be as Spartan *408 as a humble cottage when compared to the most majestic mansion, 456 U.S., at 822; ante, at 393, but the highest and most legitimate expectations of privacy associated with these temporary abodes should command the respect of this Court. Stoner v. California, 376 U.S. 483, 490 (1964); Payton v. New York, 445 U. S., at 585; United States v. Karo, 468 U.S. 705, 714-715 (1984).[26] In my opinion, a warrantless search of living quarters in a motor home is "presumptively unreasonable absent exigent circumstances." Ibid. I respectfully dissent.

The character of "the place to be searched"[1] plays an important role in Fourth Amendment analysis. In this case, police officers searched a Dodge/Midas Mini Motor Home. The California Supreme Court correctly characterized this vehicle as a "hybrid" which combines "the mobility attribute of an automobile with most of the privacy characteristics of a house."[2] The hybrid character of the motor home places it at the crossroads between the privacy interests that generally forbid warrantless invasions of the home, and the law enforcement interests that support the exception for warrantless searches of automobiles based on probable cause, United By choosing to follow the latter route, the Court errs in three respects: it has entered new *396 territory prematurely, it has accorded priority to an exception rather than to the general rule, and it has abandoned the limits on the exception imposed by prior cases. I In recent Terms, the Court has displayed little confidence in state and lower federal court decisions that purport to enforce the Fourth Amendment. Unless an order suppressing evidence is clearly correct, a petition for certiorari is likely to garner the four votes required for a grant of plenary review — as the one in this case did. Much of the Court's "burdensome" workload is a product of its own aggressiveness in this area. By promoting the Supreme Court of the United States as the High Magistrate for every warrantless search and seizure, this practice has burdened the argument docket with cases presenting fact-bound errors of minimal significance.[3] It has also encouraged state legal officers to file petitions for certiorari in even the most frivolous search and seizure cases.[4] The Court's lack of trust in lower judicial authority has resulted in another improvident exercise of discretionary *397 jurisdiction.[5] In what is at most only a modest extension of our Fourth Amendment precedents, the California Supreme Court held that police officers may not conduct a nonexigent search of a motor home without a warrant supported by probable cause. The State of California filed a petition for certiorari contending that the decision below conflicted with the authority of other jurisdictions.[6] Even a cursory examination of the cases alleged to be in conflict revealed that they did not consider the question presented here.[7] *398 This is not a case "in which an American citizen has been deprived of a right secured by the United States Constitution or a federal statute. Rather, a state court has upheld a citizen's assertion of a right, finding the citizen to be protected under both federal and state law." As an unusually perceptive study of this Court's docket stated with reference to "this situation rarely presents a compelling reason for Court review in the absence of a fully percolated conflict."[8] The Court's decision to forge ahead *399 has established a rule for searching motor homes that is to be followed by the entire Nation. If the Court had merely allowed the decision below to stand, it would have only governed searches of those vehicles in a single State. The breadth of this Court's mandate counsels greater patience before we offer our binding judgment on the meaning of the Constitution. Premature resolution of the novel question presented has stunted the natural growth and refinement of alternative principles. Despite the age of the automobile exception and the countless cases in which it has been applied, we have no prior cases defining the contours of a reasonable search in the context of hybrids such as motor homes, house trailers, houseboats, or yachts. In this case, the Court can barely glimpse the diverse lifestyles associated with recreational vehicles and mobile living quarters.[9] The line or lines separating mobile homes from permanent structures might have been drawn in various ways, with consideration given to whether the home is moving or at rest, whether it rests on land or water, the form of the vehicle's attachment to its location, its potential speed of departure, its size and capacity to serve as a domicile, and its method of locomotion. Rational decisionmaking strongly counsels against divining the uses and abuses of these vehicles in the vacuum of the first case raising the question before us. Of course, we may not abdicate our responsibility to clarify the law in this filed. Some caution, however, is justified when every decision requires us to resolve a vexing "conflict. between the individual's constitutionally protected interest in privacy and the public interest in effective law enforcement." United "The certainty that is supposed to come from speedy resolution *400 may prove illusory if a premature decision raises more questions than it answers."[10] The only true rules governing search and seizure have been formulated and refined in the painstaking scrutiny of case-by-case adjudication. Consideration of this matter by the lower courts in a series of litigated cases would surely have facilitated a reasoned accommodation of the conflicting interests. To identify rules that will endure, we must rely on the state and lower federal courts to debate and evaluate the different approaches to difficult and unresolved questions of constitutional law.[11] Deliberation on the question over time winnows out the unnecessary *401 and discordant elements of doctrine and preserves "whatever is pure and sound and fine."[12] II The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." We have interpreted this language to provide law enforcement officers with a bright-line standard: "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions." ; In United the Court reaffirmed the primary importance of the general rule condemning warrantless searches, and emphasized that the exception permitting the search of automobiles without a warrant is a narrow -825. We expressly endorsed "the general rule," stated in that " `[i]n cases where the securing of a warrant is reasonably practicable, it must be used.' " Given this warning and the presumption of regularity that attaches to a warrant,[13] it is hardly unrealistic to expect experienced law enforcement officers to obtain a search warrant when one can easily be secured. The ascendancy of the warrant requirement in our system of justice must not be bullied aside by extravagant claims of necessity: " `The warrant requirement is not an inconvenience to be somehow "weighed" against the claims of police efficiency. It is, or should be, an important working part *402 of our machinery of government, operating as a matter of course to check the "well-intentioned but mistakenly overzealous executive officers" who are a part of any system of law enforcement.'] ". By requiring that conclusions concerning probable cause and the scope of a search `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' we minimize the risk of unreasonable assertions of executive authority." 442 U. S., at -759. If the motor home were parked in the exact middle of the intersection between the general rule and the exception for automobiles, priority should be given to the rule rather than the exception. III The motor home, however, was not parked in the middle of that intersection. Our prior cases teach us that inherent mobility is not a sufficient justification for the fashioning of an exception to the warrant requirement, especially in the face of heightened expectations of privacy in the location searched. Motor homes, by their common use and construction, afford their owners a substantial and legitimate expectation of privacy when they dwell within. When a motor home is parked in a location that is removed from the public highway, I believe that society is prepared to recognize that the expectations of privacy within it are not unlike the expectations one has in a fixed dwelling. As a general rule, such places may only be searched with a warrant based upon probable cause. Warrantless searches of motor homes are only reasonable when the motor home is traveling on the public streets or highways, or when exigent circumstances otherwise require an immediate search without the expenditure of time necessary to obtain a warrant. *403 As we explained in the automobile exception is the product of a long history: "[S]ince its earliest days Congress had recognized the impracticability of securing a warrant in cases involving the transportation of contraband goods. It is this impracticability, viewed in historical perspective, that provided the basis for the Carroll decision. Given the nature of an automobile in transit, the Court recognized that an immediate intrusion is necessary if police officers are to secure the illicit substance. In this class of cases, the Court held that a warrantless search of an automobile is not unreasonable." -807[] The automobile exception has been developed to ameliorate the practical problems associated with the search of vehicles that have been stopped on the streets or public highways because there was probable cause to believe they were transporting contraband. Until today, however, the Court has never decided whether the practical justifications that apply to a vehicle that is stopped in transit on a public way apply with the same force to a vehicle parked in a lot near a courthouse where it could easily be detained while a warrant is issued.[15] *404 In this case, the motor home was parked in an off-the-street lot only a few blocks from the courthouse in downtown San Diego where dozens of magistrates were available to entertain a warrant application.[16] The officers clearly had the element of surprise with them, and with curtains covering the windshield, the motor home offered no indication of any imminent departure. The officers plainly had probable cause to arrest the respondent and search the motor home, and on this record, it is inexplicable why they eschewed the safe harbor of a warrant.[17] In the absence of any evidence of exigency in the circumstances of this case, the Court relies on the inherent mobility of the motor home to create a conclusive presumption of exigency. This Court, however, has squarely held that mobility of the place to be searched is not a sufficient justification for abandoning the warrant requirement. In United the Court held that a warrantless search of a footlocker violated the Fourth Amendment even *405 though there was ample probable cause to believe it contained contraband. The Government had argued that the rationale of the automobile exception applied to movable containers in general, and that the warrant requirement should be limited to searches of homes and other "core" areas of privacy. See We categorically rejected the Government's argument, observing that there are greater privacy interests associated with containers than with automobiles,[18] and that there are less practical problems associated with the temporary detention of a container than with the detention of an automobile. See and n. 7. We again endorsed that analysis in : "The Court in Chadwick specifically rejected the argument that the warrantless search was `reasonable' because a footlocker has some of the mobile characteristics that support warrantless searches of automobiles. The Court recognized that `a person's expectations of privacy in personal luggage are substantially greater than in an automobile,' [433 U. S., ], and noted that the practical problems associated with the temporary detention of a piece of luggage during the period of time necessary to obtain a warrant are significantly less than those associated with the detention of an automobile. n. 7." It is perfectly obvious that the citizen has a much greater expectation of privacy concerning the interior of a mobile home than of a piece of luggage such as a footlocker. If "inherent mobility" does not justify warrantless searches *406 of containers, it cannot rationally provide a sufficient justification for the search of a person's dwelling place. Unlike a brick bungalow or a frame Victorian, a motor home seldom serves as a permanent lifetime abode. The motor home in this case, however, was designed to accommodate a breadth of ordinary everyday living. Photographs in the record indicate that its height, length, and beam provided substantial living space inside: stuffed chairs surround a table; cupboards provide room for storage of personal effects; bunk beds provide sleeping space; and a refrigerator provides ample space for food and beverages.[19] Moreover, curtains and large opaque walls inhibit viewing the activities inside from the exterior of the vehicle. The interior configuration of the motor home establishes that the vehicle's size, shape, and mode of construction should have indicated to the officers that it was a vehicle containing mobile living quarters. The State contends that officers in the field will have an impossible task determining whether or not other vehicles contain mobile living quarters. It is not necessary for the Court to resolve every unanswered question in this area in a single case, but common English usage suggests that we already distinguish between a "motor home" which is "equipped as a self-contained traveling home," a "camper" which is only equipped for "casual travel and camping," and an automobile which is "designed for passenger transportation."[20] Surely the exteriors of these vehicles contain clues about their different functions which could alert officers in the field to the necessity of a warrant.[21] *407 The California Vehicle Code also refutes the State's argument that the exclusion of "motor homes" from the automobile exception would be impossible to apply in practice. In its definitional section, the Code distinguishes campers and house cars from station wagons, and suggests that they are special categories of the more general terms — motor vehicles and passenger vehicles.[22] A "house car" is "a motor vehicle originally designed, or permanently altered, and equipped for human habitation, or to which a camper has been permanently attached."[23] Alcoholic beverages may not be opened or consumed in motor vehicles traveling on the highways, except in the "living quarters of a housecar or camper."[24] The same definitions might not necessarily apply in the context of the Fourth Amendment, but they do indicate that descriptive distinctions are humanly possible. They also reflect the California Legislature's judgment that "house cars" entertain different kinds of activities than the ordinary passenger vehicle. In my opinion, searches of places that regularly accommodate a wide range of private human activity are fundamentally different from searches of automobiles which primarily serve a public transportation function.[25] Although it may not be a castle, a motor home is usually the functional equivalent of a hotel room, a vacation and retirement home, or a hunting and fishing cabin. These places may be as Spartan *408 as a humble cottage when compared to the most majestic ; ante, at 393, but the highest and most legitimate expectations of privacy associated with these temporary abodes should command the respect of this Court. ; ; United 7-715[26] In my opinion, a warrantless search of living quarters in a motor home is "presumptively unreasonable absent exigent circumstances." I respectfully dissent.

Justice O'Connor

majority

Pilot Life Ins. Co. v. Dedeaux

https://www.courtlistener.com/opinion/111858/pilot-life-ins-co-v-dedeaux/

https://www.courtlistener.com/api/rest/v3/clusters/111858/

1986-067

This case presents the question whether the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U.S. C. § 1001 et seq., pre-empts state common law tort and contract actions asserting improper processing of a claim for benefits under an insured employee benefit plan. I In March 1975, in Gulfport, Mississippi, respondent Everate W. Dedeaux injured his back in an accident related to his employment for Entex, Inc. (Entex). Entex had at this time a long term disability employee benefit plan established by purchasing a group insurance policy from petitioner, Pilot Life Insurance Co. (Pilot Life). Entex collected and matched its employees' contributions to the plan and forwarded those funds to Pilot Life; the employer also provided forms to its employees for processing disability claims, and forwarded completed forms to Pilot Life. Pilot Life bore the responsibility of determining who would receive disability benefits. Although Dedeaux sought permanent disability benefits following the 1975 accident, Pilot Life terminated his benefits after two years. During the following three years Dedeaux's benefits were reinstated and terminated by Pilot Life several times. In 1980, Dedeaux instituted a diversity action against Pilot Life in the United States District Court for the Southern District of Mississippi. Dedeaux's complaint contained three counts: "Tortious Breach of Contract"; "Breach of Fiduciary Duties"; and "Fraud in the Inducement." App. 18-23. Dedeaux sought "[d]amages for failure to provide benefits under the insurance policy in a sum to be determined at the time of trial," "[g]eneral damages for mental and emotional distress and other incidental damages in the sum of $250,000.00," and "[p]unitive and exemplary damages in the *44 sum of $500,000.00." Id., at 23-24. Dedeaux did not assert any of the several causes of action available to him under ERISA, see infra, at 53. At the close of discovery, Pilot Life moved for summary judgment, arguing that ERISA pre-empted Dedeaux's common law claim for failure to pay benefits on the group insurance policy. The District Court granted Pilot Life summary judgment, finding all Dedeaux's claims pre-empted. App. to Pet. Cert. 16a. The Court of Appeals for the Fifth Circuit reversed, primarily on the basis of this Court's decision in Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985). See 770 F.2d 1311 (1985). We granted certiorari, 478 U.S. 1004 (1986), and now reverse. II In ERISA, Congress set out to "protect . . . participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts." § 2, as set forth in 29 U.S. C. § 1001(b). ERISA comprehensively regulates, among other things, employee welfare benefit plans that, "through the purchase of insurance or otherwise," provide medical, surgical, or hospital care, or benefits in the event of sickness, accident, disability, or death. § 3(1), 29 U.S. C. § 1002(1). Congress capped off the massive undertaking of ERISA with three provisions relating to the pre-emptive effect of the federal legislation: "Except as provided in subsection (b) of this section [the saving clause], the provisions of this subchapter and *45 subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . . ." § 514(a), as set forth in 29 U.S. C. § 1144(a) (pre-emption clause). "Except as provided in subparagraph (B) [the deemer clause], nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." § 514(b)(2)(A), as set forth in 29 U.S. C. § 1144(b)(2)(A) (saving clause). "Neither an employee benefit plan . . . nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies." § 514(b)(2)(B), 29 U.S. C. § 1144(b) (2)(B) (deemer clause). To summarize the pure mechanics of the provisions quoted above: If a state law "relate[s] to . . . employee benefit plan[s]," it is pre-empted. § 514(a). The saving clause excepts from the pre-emption clause laws that "regulat[e] insurance." § 514(b)(2)(A). The deemer clause makes clear that a state law that "purport[s] to regulate insurance" cannot deem an employee benefit plan to be an insurance company. § 514(b)(2)(B). "[T]he question whether a certain state action is preempted by federal law is one of congressional intent. ` "The purpose of Congress is the ultimate touchstone." ' " Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985), quoting Malone v. White Motor Corp., 435 U.S. 497, 504 (1978), quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963). We have observed in the past that the express pre-emption *46 provisions of ERISA are deliberately expansive, and designed to "establish pension plan regulation as exclusively a federal concern." Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523 (1981). As we explained in Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98 (1983): "The bill that became ERISA originally contained a limited pre-emption clause, applicable only to state laws relating to the specific subjects covered by ERISA. The Conference Committee rejected those provisions in favor of the present language, and indicated that section's pre-emptive scope was as broad as its language. See H. R. Conf. Rep. No. 93-1280, p. 383 (1974); S. Conf. Rep. No. 93-1090, p. 383 (1974)." The House and Senate sponsors emphasized both the breadth and importance of the pre-emption provisions. Representative Dent described the "reservation to Federal authority [of] the sole power to regulate the field of employee benefit plans" as ERISA's "crowning achievement." 120 Cong. Rec. 29197 (1974). Senator Williams said: "It should be stressed that with the narrow exceptions specified in the bill, the substantive and enforcement provisions of the conference substitute are intended to preempt the field for Federal regulations, thus eliminating the threat of conflicting or inconsistent State and local regulation of employee benefit plans. This principle is intended to apply in its broadest sense to all actions of State or local governments, or any instrumentality thereof, which have the force or effect of law." Id., at 29933. See also Shaw v. Delta Air Lines, Inc., supra, at 99-100, n. 20 (describing remarks of Sen. Javits). In Metropolitan Life, this Court, noting that the preemption and saving clauses "perhaps are not a model of legislative drafting," 471 U.S., at 739, interpreted these clauses in relation to a Massachusetts statute that required minimum *47 mental health care benefits to be provided Massachusetts residents covered by general health insurance policies. The appellants in Metropolitan Life argued that the state statute, as applied to insurance policies purchased by employee health care plans regulated by ERISA, was pre-empted. The Court concluded, first, that the Massachusetts statute did "relate to . . . employee benefit plan[s]," thus placing the state statute within the broad sweep of the pre-emption clause, § 514(a). Metropolitan Life, supra, at 739. However, the Court held that, because the state statute was one that "regulate[d] insurance," the saving clause prevented the state law from being pre-empted. In determining whether the Massachusetts statute regulated insurance, the Court was guided by case law interpreting the phrase "business of insurance" in the McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U.S. C. § 1011 et seq. Given the "statutory complexity" of ERISA's three pre-emption provisions, Metropolitan Life, supra, at 740, as well as the wide variety of state statutory and decisional law arguably affected by the federal pre-emption provisions, it is not surprising that we are again called on to interpret these provisions. III There is no dispute that the common law causes of action asserted in Dedeaux's complaint "relate to" an employee benefit plan and therefore fall under ERISA's express pre-emption clause, § 514(a). In both Metropolitan Life, supra, and Shaw v. Delta Air Lines, Inc., supra, at 96-100, we noted the expansive sweep of the pre-emption clause. In both cases "[t]he phrase `relate to' was given its broad common-sense meaning, such that a state law `relate[s] to' a benefit plan `in the normal sense of the phrase, if it has a connection with or reference to such a plan.' " Metropolitan Life, supra, at 739, quoting Shaw v. Delta Air Lines, supra, at 97. In particular we have emphasized that the pre-emption clause is not limited to "state laws specifically designed *48 to affect employee benefit plans." Shaw v. Delta Air Lines, supra, at 98. The common law causes of action raised in Dedeaux's complaint, each based on alleged improper processing of a claim for benefits under an employee benefit plan, undoubtedly meet the criteria for pre-emption under § 514(a). Unless these common law causes of action fall under an exception to § 514(a), therefore, they are expressly pre-empted. Although Dedeaux's complaint pleaded several state common law causes of action, before this Court Dedeaux has described only one of the three counts — called "tortious breach of contract" in the complaint, and "the Mississippi law of bad faith" in respondent's brief — as protected from the pre-emptive effect of § 514(a). The Mississippi law of bad faith, Dedeaux argues, is a law "which regulates insurance," and thus is saved from pre-emption by § 514(b)(2)(A).[1] In Metropolitan Life, we were guided by several considerations in determining whether a state law falls under the saving clause. First, we took what guidance was available from a "common-sense view" of the language of the saving clause itself. 471 U.S., at 740. Second, we made use of the case law interpreting the phrase "business of insurance" under the McCarran-Ferguson Act, 15 U.S. C. § 1011 et seq., in interpreting the saving clause.[2] Three criteria have been used to determine whether a practice falls under the "business of insurance" for purposes of the McCarran-Ferguson Act: "[F]irst, 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 *49 between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry." Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 129 (1982) (emphasis in original). In the present case, the considerations weighed in Metropolitan Life argue against the assertion that the Mississippi law of bad faith is a state law that "regulates insurance." As early as 1915 the Mississippi Supreme Court had recognized that punitive damages were available in a contract case when "the act or omission constituting the breach of the contract amounts also to the commission of a tort." See Hood v. Moffett, 109 Miss. 757, 767, 69 So. 664, 666 (1915) (involving a physician's breach of a contract to attend to a woman at her approaching "accouchement"). In American Railway Express Co. v. Bailey, 142 Miss. 622, 631, 107 So. 761, 763 (1926), a case involving a failure of a finance company to deliver to the plaintiff the correct amount of money cabled to the plaintiff through the finance company's offices, the Mississippi Supreme Court explained that punitive damages could be available when the breach of contract was "attended by some intentional wrong, insult, abuse, or gross negligence, which amounts to an independent tort." In Standard Life Insurance Co. v. Veal, 354 So. 2d 239 (1977), the Mississippi Supreme Court, citing D. L. Fair Lumber Co. v. Weems, 196 Miss. 201, 16 So. 2d 770 (1944) (breach of contract was accompanied by "the breaking down and destruction of another's fence"), American Railway Express Co. v. Bailey, supra, and Hood v. Moffett, supra, upheld an award of punitive damages against a defendant insurance company for failure to pay on a credit life policy. Since Veal, the Mississippi Supreme Court has considered a large number of cases in which plaintiffs have sought punitive damages from insurance companies for failure to pay a claim under an insurance contract, and in a great many of these cases the court has used the identical formulation, first stated in Bailey, of what must "attend" the breach of contract in order for punitive *50 damages to be recoverable. See, e. g., Employers Mutual Casualty Co. v. Tompkins, 490 So. 2d 897, 902 (1986); State Farm Fire & Casualty Co. v. Simpson, 477 So. 2d 242, 248 (1985); Consolidated American Life Ins. Co. v. Toche, 410 So. 2d 1303, 1304 (1982); Gulf Guaranty Life Ins. Co. v. Kelley, 389 So. 2d 920, 922 (1980); State Farm Mutual Automobile Ins. Co. v. Roberts, 379 So. 2d 321, 322 (1980); New Hampshire Ins. Co. v. Smith, 357 So. 2d 119, 121 (1978); Lincoln National Life Ins. Co. v. Crews, 341 So. 2d 1321, 1322 (1977). Recently the Mississippi Supreme Court stated that "[w]e have come to term an insurance carrier which refuses to pay a claim when there is no reasonably arguable basis to deny it as acting in `bad faith,' and a lawsuit based upon such an arbitrary refusal as a `bad faith' cause of action." Blue Cross & Blue Shield of Mississippi, Inc. v. Campbell, 466 So. 2d 833, 842 (1984). Certainly a common-sense understanding of the phrase "regulates insurance" does not support the argument that the Mississippi law of bad faith falls under the saving clause. A common-sense view of the word "regulates" would lead to the conclusion that in order to regulate insurance, a law must not just have an impact on the insurance industry, but must be specifically directed toward that industry. Even though the Mississippi Supreme Court has identified its law of bad faith with the insurance industry, the roots of this law are firmly planted in the general principles of Mississippi tort and contract law. Any breach of contract, and not merely breach of an insurance contract, may lead to liability for punitive damages under Mississippi law. Neither do the McCarran-Ferguson Act factors support the assertion that the Mississippi law of bad faith "regulates insurance." Unlike the mandated-benefits law at issue in Metropolitan Life, the Mississippi common law of bad faith does not effect a spreading of policyholder risk. The state common law of bad faith may be said to concern "the policy relationship between the insurer and the insured." The connection *51 to the insurer-insured relationship is attenuated at best, however. In contrast to the mandated-benefits law in Metropolitan Life, the common law of bad faith does not define the terms of the relationship between the insurer and the insured; it declares only that, whatever terms have been agreed upon in the insurance contract, a breach of that contract may in certain circumstances allow the policyholder to obtain punitive damages. The state common law of bad faith is therefore no more "integral" to the insurer-insured relationship than any State's general contract law is integral to a contract made in that State. Finally, as we have just noted, Mississippi's law of bad faith, even if associated with the insurance industry, has developed from general principles of tort and contract law available in any Mississippi breach of contract case. Cf. Hart v. Orion Ins. Co., 453 F.2d 1358 (CA10 1971) (general state arbitration statutes do not regulate the business of insurance under the McCarran-Ferguson Act); Hamilton Life Ins. Co. v. Republic National Life Ins. Co., 408 F.2d 606 (CA2 1969) (same). Accordingly, the Mississippi common law of bad faith at most meets one of the three criteria used to identify the "business of insurance" under the McCarran-Ferguson Act, and used in Metropolitan Life to identify laws that "regulat[e] insurance" under the saving clause. In the present case, moreover, we are obliged in interpreting the saving clause to consider not only the factors by which we were guided in Metropolitan Life, but also the role of the saving clause in ERISA as a whole. On numerous occasions we have noted that " ` " `[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' " ' " Kelly v. Robinson, 479 U.S. 36, 43 (1986), quoting Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 221 (1986) (quoting Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285 (1956) (in turn quoting United States v. Heirs of Boisdore, 8 How. 113, 122 (1849))). Because in this case, *52 the state cause of action seeks remedies for the improper processing of a claim for benefits under an ERISA-regulated plan, our understanding of the saving clause must be informed by the legislative intent concerning the civil enforcement provisions provided by ERISA § 502(a), 29 U.S. C. § 1132(a). The Solicitor General, for the United States as amicus curiae, argues that Congress clearly expressed an intent that the civil enforcement provisions of ERISA § 502(a) be the exclusive vehicle for actions by ERISA-plan participants and beneficiaries asserting improper processing of a claim for benefits, and that varying state causes of action for claims within the scope of § 502(a) would pose an obstacle to the purposes and objectives of Congress. Brief for United States as Amicus Curiae 18-19. We agree. The conclusion that § 502(a) was intended to be exclusive is supported, first, by the language and structure of the civil enforcement provisions, and second, by legislative history in which Congress declared that the pre-emptive force of § 502(a) was modeled on the exclusive remedy provided by § 301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U.S. C. § 185. The civil enforcement scheme of § 502(a) is one of the essential tools for accomplishing the stated purposes of ERISA.[3] The civil enforcement scheme is sandwiched between *53 two other ERISA provisions relevant to enforcement of ERISA and to the processing of a claim for benefits under an employee benefit plan. Section 501, 29 U.S. C. § 1131, authorizes criminal penalties for violations of the reporting and disclosure provisions of ERISA. Section 503, 29 U.S. C. § 1133, requires every employee benefit plan to comply with Department of Labor regulations on giving notice to any participant or beneficiary whose claim for benefits has been denied, and affording a reasonable opportunity for review of the decision denying the claim. Under the civil enforcement provisions of § 502(a), a plan participant or beneficiary may sue to recover benefits due under the plan, to enforce the participant's rights under the plan, or to clarify rights to future benefits. Relief may take the form of accrued benefits due, a declaratory judgment on entitlement to benefits, or an injunction against a plan administrator's improper refusal to pay benefits. A participant or beneficiary may also bring a cause of action for breach of fiduciary duty, and under this cause of action may seek removal of the fiduciary. §§ 502(a)(2), 409. In an action under these civil enforcement provisions, the court in its discretion may allow an award of attorney's fees to either party. § 502(g). See Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 147 (1985). In Russell, we concluded that ERISA's breach of fiduciary duty provision, § 409(a), 29 U.S. C. *54 § 1109(a), provided no express authority for an award of punitive damages to a beneficiary. Moreover, we declined to find an implied cause of action for punitive damages in that section, noting that " `[t]he presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement.' " Russell, supra, at 147, quoting Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 97 (1981). Our examination of these provisions made us "reluctant to tamper with an enforcement scheme crafted with such evident care as the one in ERISA." Russell, supra, at 147. In sum, the detailed provisions of § 502(a) set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. "The six carefully integrated civil enforcement provisions found in § 502(a) of the statute as finally enacted . . . provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly." Russell, supra, at 146 (emphasis in original). The deliberate care with which ERISA's civil enforcement remedies were drafted and the balancing of policies embodied in its choice of remedies argue strongly for the conclusion that ERISA's civil enforcement remedies were intended to be exclusive. This conclusion is fully confirmed by the legislative history of the civil enforcement provision. The legislative history demonstrates that the pre-emptive force of § 502(a) was modeled after § 301 of the LMRA. *55 The Conference Report on ERISA describing the civil enforcement provisions of § 502(a) says: "Under the conference agreement, civil actions may be brought by a participant or beneficiary to recover benefits due under the plan, to clarify rights to receive future benefits under the plan, and for relief from breach of fiduciary responsibility. . . . [W]ith respect to suits to enforce benefit rights under the plan or to recover benefits under the plan which do not involve application of the title I provisions, they may be brought not only in U. S. district courts but also in State courts of competent jurisdiction. All such actions in Federal or State courts are to 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 of 1947." H. R. Conf. Rep. No. 93-1280, p. 327 (1974) (emphasis added). Congress was well aware that the powerful pre-emptive force of § 301 of the LMRA displaced all state actions for violation of contracts between an employer and a labor organization, even when the state action purported to authorize a remedy unavailable under the federal provision. Section 301 pre-empts any "state-law claim [whose resolution] is substantially dependent upon the analysis of the terms of an agreement made between the parties in a labor contract." Allis-Chalmers Corp. v. Lueck, 471 U. S., at 220. As we observed in Allis-Chalmers, the broad pre-emptive effect of § 301 was first analyzed in Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962). In Lucas Flour the Court found that "[t]he dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute." Id., at 103. "[I]n enacting § 301 Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules." Id., at 104. Indeed, for purposes of determining federal jurisdiction, this Court has singled out § 301 of the LMRA as having "pre-emptive *56 force . . . so powerful as to displace entirely any state cause of action `for violation of contracts between an employer and a labor organization.' Any such suit is purely a creature of federal law . . . ." Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 23 (1983), referring to Avco Corp. v. Machinists, 390 U.S. 557 (1968). Congress' specific reference to § 301 of the LMRA to describe the civil enforcement scheme of ERISA makes clear its intention that all suits brought by beneficiaries or participants asserting improper processing of claims under ERISA-regulated plans be treated as federal questions governed by § 502(a). See also H. R. Rep. No. 93-533, p. 12 (1973), reprinted in 2 Senate Committee on Labor and Public Welfare, Legislative History of ERISA, 94th Cong., 2d Sess., 2359 (Comm. Print 1976) ("The uniformity of decision which the Act is designed to foster will help administrators, fiduciaries and participants to predict the legality of proposed actions without the necessity of reference to varying state laws"); 120 Cong. Rec. 29933 (1974) (remarks of Sen. Williams) (suits involving claims for benefits "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"); id., at 29942 (remarks of Sen. Javits) ("[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"). The expectations that a federal common law of rights and obligations under ERISA-regulated plans would develop, indeed, the entire comparison of ERISA's § 502(a) to § 301 of the LMRA, would make little sense if the remedies available to ERISA participants and beneficiaries under § 502(a) could be supplemented or supplanted by varying state laws. In Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S., at 746, this Court rejected an interpretation of the saving clause of ERISA's express pre-emption provisions, § 514(b) (2)(A), 29 U.S. C. § 1144(b)(2)(A), that saved from pre-emption *57 "only state regulations unrelated to the substantive provisions of ERISA," finding that "[n]othing in the language, structure, or legislative history of the Act" supported this reading of the saving clause. Metropolitan Life, however, did not involve a state law that conflicted with a substantive provision of ERISA. Therefore the Court's general observation — that state laws related to ERISA may also fall under the saving clause — was not focused on any particular relationship or conflict between a substantive provision of ERISA and a state law. In particular, the Court had no occasion to consider in Metropolitan Life the question raised in the present case: whether Congress might clearly express, through the structure and legislative history of a particular substantive provision of ERISA, an intention that the federal remedy provided by that provision displace state causes of action. Our resolution of this different question does not conflict with the Court's earlier general observations in Metropolitan Life. Considering the common-sense understanding of the saving clause, the McCarran-Ferguson Act factors defining the business of insurance, and, most importantly, the clear expression of congressional intent that ERISA's civil enforcement scheme be exclusive, we conclude that Dedeaux's state law suit asserting improper processing of a claim for benefits under an ERISA-regulated plan is not saved by § 514(b)(2)(A), and therefore is pre-empted by § 514(a).[4] Accordingly, the judgment of the Court of Appeals is Reversed.

This case presents the question whether the Employee Retirement Income Security Act of 14 (ERISA), as amended, 29 U.S. C. 1001 et seq., pre-empts state common law tort and contract actions asserting improper processing of a claim for benefits under an insured employee benefit plan. I In March 15, in Gulfport, Mississippi, respondent Everate W. Dedeaux injured his back in an accident related to his employment for Entex, (Entex). Entex had at this time a long term disability employee benefit plan established by purchasing a group insurance policy from petitioner, Pilot Insurance Co. (Pilot ). Entex collected and matched its employees' contributions to the plan and forwarded those funds to Pilot ; the employer also provided forms to its employees for processing disability claims, and forwarded completed forms to Pilot Pilot bore the responsibility of determining who would receive disability benefits. Although Dedeaux sought permanent disability benefits following the 15 accident, Pilot terminated his benefits after two years. During the following three years Dedeaux's benefits were reinstated and terminated by Pilot several times. In 10, Dedeaux instituted a diversity action against Pilot in the United States District Court for the Southern District of Mississippi. Dedeaux's complaint contained three counts: "Tortious Breach of Contract"; "Breach of Fiduciary Duties"; and "Fraud in the Inducement." App. 18-. Dedeaux sought "[d]amages for failure to provide benefits under the insurance policy in a sum to be determined at the time of trial," "[g]eneral damages for mental and emotional distress and other incidental damages in the sum of $250,000.00," and "[p]unitive and exemplary damages in the *44 sum of $500,000.00." Dedeaux did not assert any of the several causes of action available to him under ERISA, see infra, at 53. At the close of discovery, Pilot moved for summary judgment, arguing that ERISA pre-empted Dedeaux's common law claim for failure to pay benefits on the group insurance policy. The District Court granted Pilot summary judgment, finding all Dedeaux's claims pre-empted. App. to Pet. Cert. 16a. The Court of Appeals for the Fifth Circuit reversed, primarily on the basis of this Court's decision in Metropolitan Ins. See We granted certiorari, and now reverse. II In ERISA, Congress set out to "protect participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts." 2, as set forth in 29 U.S. C. 1001(b). ERISA comprehensively regulates, among other things, employee welfare benefit plans that, "through the purchase of insurance or otherwise," provide medical, surgical, or hospital care, or benefits in the event of sickness, accident, disability, or death. 3(1), 29 U.S. C. 1002(1). Congress capped off the massive undertaking of ERISA with three provisions relating to the pre-emptive effect of the federal legislation: "Except as provided in subsection (b) of this section [the saving clause], the provisions of this subchapter and *45 subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" 514(a), as set forth in 29 U.S. C. 1144(a) (pre-emption clause). "Except as provided in subparagraph (B) [the deemer clause], nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." 514(b)(2)(A), as set forth in 29 U.S. C. 1144(b)(2)(A) (saving clause). "Neither an employee benefit plan nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies." 514(b)(2)(B), 29 U.S. C. 1144(b) (2)(B) (deemer clause). To summarize the pure mechanics of the provisions quoted above: If a state law "relate[s] to employee benefit plan[s]," it is pre-empted. 514(a). The saving clause excepts from the pre-emption clause laws that "regulat[e] insurance." 514(b)(2)(A). The deemer clause makes clear that a state law that "purport[s] to regulate insurance" cannot deem an employee benefit plan to be an insurance company. 514(b)(2)(B). "[T]he question whether a certain state action is preempted by federal law is one of congressional intent. ` "The purpose of Congress is the ultimate touchstone." ' " Allis-Chalmers quoting quoting Retail We have observed in the past that the express pre-emption *46 provisions of ERISA are deliberately expansive, and designed to "establish pension plan regulation as exclusively a federal concern." 451 U.S. As we explained in : "The bill that became ERISA originally contained a limited pre-emption clause, applicable only to state laws relating to the specific subjects covered by ERISA. The Conference Committee rejected those provisions in favor of the present language, and indicated that section's pre-emptive scope was as broad as its language. See H. R. Conf. Rep. No. 93-1280, p. 383 (14); S. Conf. Rep. No. 93-1090, p. 383 (14)." The House and Senate sponsors emphasized both the breadth and importance of the pre-emption provisions. Representative Dent described the "reservation to Federal authority [of] the sole power to regulate the field of employee benefit plans" as ERISA's "crowning achievement." 120 Cong. Rec. 291 (14). Senator Williams said: "It should be stressed that with the narrow exceptions specified in the bill, the substantive and enforcement provisions of the conference substitute are intended to preempt the field for Federal regulations, thus eliminating the threat of conflicting or inconsistent State and local regulation of employee benefit plans. This principle is intended to apply in its broadest sense to all actions of State or local governments, or any instrumentality thereof, which have the force or effect of law." See also In Metropolitan this Court, noting that the preemption and saving clauses "perhaps are not a model of legislative drafting," interpreted these clauses in relation to a statute that required minimum *47 mental health care benefits to be provided residents covered by general health insurance policies. The appellants in Metropolitan argued that the state statute, as applied to insurance policies purchased by employee health care plans regulated by ERISA, was pre-empted. The Court concluded, first, that the statute did "relate to employee benefit plan[s]," thus placing the state statute within the broad sweep of the pre-emption clause, 514(a). Metropolitan However, the Court held that, because the state statute was one that "regulate[d] insurance," the saving clause prevented the state law from being pre-empted. In determining whether the statute regulated insurance, the Court was guided by case law interpreting the phrase "business of insurance" in the McCarran-Ferguson Act, as amended, 15 U.S. C. 1011 et seq. Given the "statutory complexity" of ERISA's three pre-emption provisions, Metropolitan as well as the wide variety of state statutory and decisional law arguably affected by the federal pre-emption provisions, it is not surprising that we are again called on to interpret these provisions. III There is no dispute that the common law causes of action asserted in Dedeaux's complaint "relate to" an employee benefit plan and therefore fall under ERISA's express pre-emption clause, 514(a). In both Metropolitan and we noted the expansive sweep of the pre-emption clause. In both cases "[t]he phrase `relate to' was given its broad common-sense meaning, such that a state law `relate[s] to' a benefit plan `in the normal sense of the phrase, if it has a connection with or reference to such a plan.' " Metropolitan quoting Shaw v. Delta Air In particular we have emphasized that the pre-emption clause is not limited to "state laws specifically designed *48 to affect employee benefit plans." Shaw v. Delta Air at The common law causes of action raised in Dedeaux's complaint, each based on alleged improper processing of a claim for benefits under an employee benefit plan, undoubtedly meet the criteria for pre-emption under 514(a). Unless these common law causes of action fall under an exception to 514(a), therefore, they are expressly pre-empted. Although Dedeaux's complaint pleaded several state common law causes of action, before this Court Dedeaux has described only one of the three counts — called "tortious breach of contract" in the complaint, and "the Mississippi law of bad faith" in respondent's brief — as protected from the pre-emptive effect of 514(a). The Mississippi law of bad faith, Dedeaux argues, is a law "which regulates insurance," and thus is saved from pre-emption by 514(b)(2)(A).[1] In Metropolitan we were guided by several considerations in determining whether a state law falls under the saving clause. First, we took what guidance was available from a "common-sense view" of the language of the saving clause 471 U.S., Second, we made use of the case law interpreting the phrase "business of insurance" under the McCarran-Ferguson Act, 15 U.S. C. 1011 et seq., in interpreting the saving clause.[2] Three criteria have been used to determine whether a practice falls under the "business of insurance" for purposes of the McCarran-Ferguson Act: "[F]irst, 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 *49 between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry." Union Labor Ins. (12) In the present case, the considerations weighed in Metropolitan argue against the assertion that the Mississippi law of bad faith is a state law that "regulates insurance." As early as the Mississippi Supreme Court had recognized that punitive damages were available in a contract case when "the act or omission constituting the breach of the contract amounts also to the commission of a tort." See In American Railway Express a case involving a failure of a finance company to deliver to the plaintiff the correct amount of money cabled to the plaintiff through the finance company's offices, the Mississippi Supreme Court explained that punitive damages could be available when the breach of contract was "attended by some intentional wrong, insult, abuse, or gross negligence, which amounts to an independent tort." In Standard Insurance the Mississippi Supreme Court, citing D. L. Fair Lumber American Railway Express and upheld an award of punitive damages against a defendant insurance company for failure to pay on a credit life policy. Since Veal, the Mississippi Supreme Court has considered a large number of cases in which plaintiffs have sought punitive damages from insurance companies for failure to pay a claim under an insurance contract, and in a great many of these cases the court has used the identical formulation, first stated in of what must "attend" the breach of contract in order for punitive *50 damages to be recoverable. See, e. g., Employers Mutual Casualty ; State Farm Fire & Casualty ; Consolidated American Ins. (12); Gulf Guaranty Ins. (10); State Farm Mutual Automobile Ins. (10); New Hampshire Ins. ; Lincoln National Ins. 1 Recently the Mississippi Supreme Court stated that "[w]e have come to term an insurance carrier which refuses to pay a claim when there is no reasonably arguable basis to deny it as acting in `bad faith,' and a lawsuit based upon such an arbitrary refusal as a `bad faith' cause of action." Blue Cross & Blue Shield of Mississippi, v. Campbell, (14). Certainly a common-sense understanding of the phrase "regulates insurance" does not support the argument that the Mississippi law of bad faith falls under the saving clause. A common-sense view of the word "regulates" would lead to the conclusion that in order to regulate insurance, a law must not just have an impact on the insurance industry, but must be specifically directed toward that industry. Even though the Mississippi Supreme Court has identified its law of bad faith with the insurance industry, the roots of this law are firmly planted in the general principles of Mississippi tort and contract law. Any breach of contract, and not merely breach of an insurance contract, may lead to liability for punitive damages under Mississippi law. Neither do the McCarran-Ferguson Act factors support the assertion that the Mississippi law of bad faith "regulates insurance." Unlike the mandated-benefits law at issue in Metropolitan the Mississippi common law of bad faith does not effect a spreading of policyholder risk. The state common law of bad faith may be said to concern "the policy relationship between the insurer and the insured." The connection *51 to the insurer-insured relationship is attenuated at best, however. In contrast to the mandated-benefits law in Metropolitan the common law of bad faith does not define the terms of the relationship between the insurer and the insured; it declares only that, whatever terms have been agreed upon in the insurance contract, a breach of that contract may in certain circumstances allow the policyholder to obtain punitive damages. The state common law of bad faith is therefore no more "integral" to the insurer-insured relationship than any State's general contract law is integral to a contract made in that State. Finally, as we have just noted, Mississippi's law of bad faith, even if associated with the insurance industry, has developed from general principles of tort and contract law available in any Mississippi breach of contract case. Cf. ; Hamilton Ins. Co. v. Republic National Ins. Co., Accordingly, the Mississippi common law of bad faith at most meets one of the three criteria used to identify the "business of insurance" under the McCarran-Ferguson Act, and used in Metropolitan to identify laws that "regulat[e] insurance" under the saving clause. In the present case, moreover, we are obliged in interpreting the saving clause to consider not only the factors by which we were guided in Metropolitan but also the role of the saving clause in ERISA as a whole. On numerous occasions we have noted that " ` " `[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' " ' " quoting Offshore Logistics, v. Tallentire, Because in this case, *52 the state cause of action seeks remedies for the improper processing of a claim for benefits under an ERISA-regulated plan, our understanding of the saving clause must be informed by the legislative intent concerning the civil enforcement provisions provided by ERISA 502(a), 29 U.S. C. 1132(a). The Solicitor General, for the United States as amicus curiae, argues that Congress clearly expressed an intent that the civil enforcement provisions of ERISA 502(a) be the exclusive vehicle for actions by ERISA-plan participants and beneficiaries asserting improper processing of a claim for benefits, and that varying state causes of action for claims within the scope of 502(a) would pose an obstacle to the purposes and objectives of Congress. Brief for United States as Amicus Curiae 18-19. We agree. The conclusion that 502(a) was intended to be exclusive is supported, first, by the language and structure of the civil enforcement provisions, and second, by legislative history in which Congress declared that the pre-emptive force of 502(a) was modeled on the exclusive remedy provided by 301 of the Labor Management Relations Act, 1947 (LMRA), 29 U.S. C. 185. The civil enforcement scheme of 502(a) is one of the essential tools for accomplishing the stated purposes of ERISA.[3] The civil enforcement scheme is sandwiched between *53 two other ERISA provisions relevant to enforcement of ERISA and to the processing of a claim for benefits under an employee benefit plan. Section 501, 29 U.S. C. 1131, authorizes criminal penalties for violations of the reporting and disclosure provisions of ERISA. Section 503, 29 U.S. C. 1133, requires every employee benefit plan to comply with Department of Labor regulations on giving notice to any participant or beneficiary whose claim for benefits has been denied, and affording a reasonable opportunity for review of the decision denying the claim. Under the civil enforcement provisions of 502(a), a plan participant or beneficiary may sue to recover benefits due under the plan, to enforce the participant's rights under the plan, or to clarify rights to future benefits. Relief may take the form of accrued benefits due, a declaratory judgment on entitlement to benefits, or an injunction against a plan administrator's improper refusal to pay benefits. A participant or beneficiary may also bring a cause of action for breach of fiduciary duty, and under this cause of action may seek removal of the fiduciary. 502(a)(2), 409. In an action under these civil enforcement provisions, the court in its discretion may allow an award of attorney's fees to either party. 502(g). See Mutual Ins. In we concluded that ERISA's breach of fiduciary duty provision, 409(a), 29 U.S. C. *54 1109(a), provided no express authority for an award of punitive damages to a beneficiary. Moreover, we declined to find an implied cause of action for punitive damages in that section, noting that " `[t]he presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement.' " at quoting Northwest Airlines, v. Transport Workers, Our examination of these provisions made us "reluctant to tamper with an enforcement scheme crafted with such evident care as the one in ERISA." at In sum, the detailed provisions of 502(a) set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. "The six carefully integrated civil enforcement provisions found in 502(a) of the statute as finally enacted provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly." The deliberate care with which ERISA's civil enforcement remedies were drafted and the balancing of policies embodied in its choice of remedies argue strongly for the conclusion that ERISA's civil enforcement remedies were intended to be exclusive. This conclusion is fully confirmed by the legislative history of the civil enforcement provision. The legislative history demonstrates that the pre-emptive force of 502(a) was modeled after 301 of the LMRA. *55 The Conference Report on ERISA describing the civil enforcement provisions of 502(a) says: "Under the conference agreement, civil actions may be brought by a participant or beneficiary to recover benefits due under the plan, to clarify rights to receive future benefits under the plan, and for relief from breach of fiduciary responsibility. [W]ith respect to suits to enforce benefit rights under the plan or to recover benefits under the plan which do not involve application of the title I provisions, they may be brought not only in U. S. district courts but also in State courts of competent jurisdiction. All such actions in Federal or State courts are to 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 of 1947." H. R. Conf. Rep. No. 93-1280, p. 327 (14) (emphasis added). Congress was well aware that the powerful pre-emptive force of 301 of the LMRA displaced all state actions for violation of contracts between an employer and a labor organization, even when the state action purported to authorize a remedy unavailable under the federal provision. Section 301 pre-empts any "state-law claim [whose resolution] is substantially dependent upon the analysis of the terms of an agreement made between the parties in a labor contract." Allis-Chalmers As we observed in Allis-Chalmers, the broad pre-emptive effect of 301 was first analyzed in In Lucas Flour the Court found that "[t]he dimensions of 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute." at "[I]n enacting 301 Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules." Indeed, for purposes of determining federal jurisdiction, this Court has singled out 301 of the LMRA as having "pre-emptive *56 force so powerful as to displace entirely any state cause of action `for violation of contracts between an employer and a labor organization.' Any such suit is purely a creature of federal law" Franchise Tax Board of referring to Avco Congress' specific reference to 301 of the LMRA to describe the civil enforcement scheme of ERISA makes clear its intention that all suits brought by beneficiaries or participants asserting improper processing of claims under ERISA-regulated plans be treated as federal questions governed by 502(a). See also H. R. Rep. No. 93-533, p. 12 (13), reprinted in 2 Senate Committee on Labor and Public Welfare, Legislative History of ERISA, 94th Cong., 2d Sess., 59 (Comm. Print 16) ("The uniformity of decision which the Act is designed to foster will help administrators, fiduciaries and participants to predict the legality of proposed actions without the necessity of reference to varying state laws"); 120 Cong. Rec. 29933 (14) (remarks of Sen. Williams) (suits involving claims for benefits "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"); ("[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"). The expectations that a federal common law of rights and obligations under ERISA-regulated plans would develop, indeed, the entire comparison of ERISA's 502(a) to 301 of the LMRA, would make little sense if the remedies available to ERISA participants and beneficiaries under 502(a) could be supplemented or supplanted by varying state laws. In Metropolitan Ins. this Court rejected an interpretation of the saving clause of ERISA's express pre-emption provisions, 514(b) (2)(A), 29 U.S. C. 1144(b)(2)(A), that saved from pre-emption *57 "only state regulations unrelated to the substantive provisions of ERISA," finding that "[n]othing in the language, structure, or legislative history of the Act" supported this reading of the saving clause. Metropolitan however, did not involve a state law that conflicted with a substantive provision of ERISA. Therefore the Court's general observation — that state laws related to ERISA may also fall under the saving clause — was not focused on any particular relationship or conflict between a substantive provision of ERISA and a state law. In particular, the Court had no occasion to consider in Metropolitan the question raised in the present case: whether Congress might clearly express, through the structure and legislative history of a particular substantive provision of ERISA, an intention that the federal remedy provided by that provision displace state causes of action. Our resolution of this different question does not conflict with the Court's earlier general observations in Metropolitan Considering the common-sense understanding of the saving clause, the McCarran-Ferguson Act factors defining the business of insurance, and, most importantly, the clear expression of congressional intent that ERISA's civil enforcement scheme be exclusive, we conclude that Dedeaux's state law suit asserting improper processing of a claim for benefits under an ERISA-regulated plan is not saved by 514(b)(2)(A), and therefore is pre-empted by 514(a).[4] Accordingly, the judgment of the Court of Appeals is Reversed.

Justice Ginsburg

concurring

M&G Polymers USA, LLC v. Tackett

https://www.courtlistener.com/opinion/2773182/mg-polymers-usa-llc-v-tackett/

https://www.courtlistener.com/api/rest/v3/clusters/2773182/

2014-018

Today’s decision rightly holds that courts must apply ordinary contract principles, shorn of presumptions, to determine whether retiree health-care benefits survive the expiration of a collective-bargaining agreement. Under the “cardinal principle” of contract interpretation, “the intention of the parties, to be gathered from the whole instrument, must prevail.” 11 R. Lord, Williston on Con- tracts §30:2, p. 27 (4th ed. 2012) (Williston). To determine what the contracting parties intended, a court must exam- ine the entire agreement in light of relevant industry- specific “customs, practices, usages, and terminology.” Id., §30:4, at 55–58. When the intent of the parties is unam- biguously expressed in the contract, that expression con- trols, and the court’s inquiry should proceed no further. Id., §30:6, at 98–104. But when the contract is ambigu- ous, a court may consider extrinsic evidence to determine the intentions of the parties. Id., §30:7, at 116–124. Contrary to M&G’s assertion, Brief for Petitioner 25, no rule requires “clear and express” language in order to show that parties intended health-care benefits to vest. “[C]onstraints upon the employer after the expiration date of a collective-bargaining agreement,” we have observed, 2 M&G POLYMERS USA, LLC v. TACKETT GINSBURG, J., concurring may be derived from the agreement’s “explicit terms,” but they “may arise as well from . . . implied terms of the expired agreement.” Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB, 501 U.S. 190, 203, 207 (1991). On remand, the Court of Appeals should examine the entire agreement to determine whether the parties in- tended retiree health-care benefits to vest. 11 Williston §30:4, at 55–57. Because the retirees have a vested, life- time right to a monthly pension, App. 366, a provision stating that retirees “will receive” health-care benefits if they are “receiving a monthly pension” is relevant to this examination. Id., at 415. So is a “survivor benefits” clause instructing that if a retiree dies, her surviving spouse will “continue to receive [the retiree’s health-care] benefits . . . until death or remarriage.” Id., at 417. If, after consider- ing all relevant contractual language in light of industry practices, the Court of Appeals concludes that the contract is ambiguous, it may turn to extrinsic evidence—for ex- ample, the parties’ bargaining history. The Court of Ap- peals, however, must conduct the foregoing inspection without Yard-Man’s “thumb on the scale in favor of vested retiree benefits.” Ante, at 10; see International Union, United Auto, Aerospace, & Agricultural Implement Work- ers of Am. v. Yard-Man, Inc., 716 F.2d 1476 (1983). Because I understand the Court’s opinion to be con- sistent with these basic rules of contract interpretation, I join it

Today’s decision rightly holds that courts must apply ordinary contract principles, shorn of presumptions, to determine whether retiree health-care benefits survive the expiration of a collective-bargaining agreement. Under the “cardinal principle” of contract interpretation, “the intention of the parties, to be gathered from the whole instrument, must prevail.” 11 R. Lord, Williston on Con- tracts p. 27 (4th ed. 2012) (Williston). To determine what the contracting parties intended, a court must exam- ine the entire agreement in light of relevant industry- specific “customs, practices, usages, and terminology.” at 55–58. When the intent of the parties is unam- biguously expressed in the contract, that expression con- trols, and the court’s inquiry should proceed no further. at 98–104. But when the contract is ambigu- ous, a court may consider extrinsic evidence to determine the intentions of the parties. at 116–124. Contrary to M&G’s assertion, Brief for Petitioner 25, no rule requires “clear and express” language in order to show that parties intended health-care benefits to vest. “[C]onstraints upon the employer after the expiration date of a collective-bargaining agreement,” we have observed, 2 M&G POLYMERS USA, LLC v. TACKETT GINSBURG, J., concurring may be derived from the agreement’s “explicit terms,” but they “may arise as well from implied terms of the expired agreement.” Litton Financial Printing Div., Litton Business Systems, (1991). On remand, the Court of Appeals should examine the entire agreement to determine whether the parties in- tended retiree health-care benefits to vest. 11 Williston at 55–57. Because the retirees have a vested, life- time right to a monthly pension, App. 366, a provision stating that retirees “will receive” health-care benefits if they are “receiving a monthly pension” is relevant to this examination. So is a “survivor benefits” clause instructing that if a retiree dies, her surviving spouse will “continue to receive [the retiree’s health-care] benefits until death or remarriage.” If, after consider- ing all relevant contractual language in light of industry practices, the Court of Appeals concludes that the contract is ambiguous, it may turn to extrinsic evidence—for ex- ample, the parties’ bargaining history. The Court of Ap- peals, however, must conduct the foregoing inspection without Yard-Man’s “thumb on the scale in favor of vested retiree benefits.” Ante, at 10; see International Union, United Auto, Aerospace, & Agricultural Implement Work- ers of Because I understand the Court’s opinion to be con- sistent with these basic rules of contract interpretation, I join it

Justice White

second_dissenting

Milliken v. Bradley

https://www.courtlistener.com/opinion/109102/milliken-v-bradley/

https://www.courtlistener.com/api/rest/v3/clusters/109102/

1973-173

The District Court and the Court of Appeals found that over a long period of years those in charge of the Michigan public schools engaged in various practices calculated to effect the segregation of the Detroit school system. The Court does not question these findings, nor could it reasonably do so. Neither does it question the obligation of the federal courts to devise a feasible and effective remedy. But it promptly cripples the ability of the judiciary to perform this task, which is of fundamental importance to our constitutional system, by *763 fashioning a strict rule that remedies in school cases must stop at the school district line unless certain other conditions are met. As applied here, the remedy for unquestioned violations of the equal protection rights of Detroit's Negroes by the Detroit School Board and the State of Michigan must be totally confined to the limits of the school district and may not reach into adjoining or surrounding districts unless and until it is proved there has been some sort of "interdistrict violation"ÔÇö unless unconstitutional actions of the Detroit School Board have had a segregative impact on other districts, or unless the segregated condition of the Detroit schools has itself been influenced by segregative practices in those surrounding districts into which it is proposed to extend the remedy. Regretfully, and for several reasons, I can join neither the Court's judgment nor its opinion. The core of my disagreement is that deliberate acts of segregation and their consequences will go unremedied, not because a remedy would be infeasible or unreasonable in terms of the usual criteria governing school desegregation cases, but because an effective remedy would cause what the Court considers to be undue administrative inconvenience to the State. The result is that the State of Michigan, the entity at which the Fourteenth Amendment is directed, has successfully insulated itself from its duty to provide effective desegregation remedies by vesting sufficient power over its public schools in its local school districts. If this is the case in Michigan, it will be the case in most States. There are undoubted practical as well as legal limits to the remedial powers of federal courts in school desegregation cases. The Court has made it clear that the achievement of any particular degree of racial balance in the school system is not required by the Constitution; *764 nor may it be the primary focus of a court in devising an acceptable remedy for de jure segregation. A variety of procedures and techniques are available to a district court engrossed in fashioning remedies in a case such as this; but the courts must keep in mind that they are dealing with the process of educating the young, including the very young. The task is not to devise a system of pains and penalties to punish constitutional violations brought to light. Rather, it is to desegregate an educational system in which the races have been kept apart, without, at the same time, losing sight of the central educational function of the schools. Viewed in this light, remedies calling for school zoning, pairing, and pupil assignments, become more and more suspect as they require that schoolchildren spend more and more time in buses going to and from school and that more and more educational dollars be diverted to transportation systems. Manifestly, these considerations are of immediate and urgent concern when the issue is the desegregation of a city school system where residential patterns are predominantly segregated and the respective areas occupied by blacks and whites are heavily populated and geographically extensive. Thus, if one postulates a metropolitan school system covering a sufficiently large area, with the population evenly divided between whites and Negroes and with the races occupying identifiable residential areas, there will be very real practical limits on the extent to which racially identifiable schools can be eliminated within the school district. It is also apparent that the larger the proportion of Negroes in the area, the more difficult it would be to avoid having a substantial number of all-black or nearly all-black schools. The Detroit school district is both large and heavily populated. It covers 139.6 square miles, encircles two *765 entirely separate cities and school districts, and surrounds a third city on three sides. Also, whites and Negroes live in identifiable areas in the city. The 1970 public school enrollment in the city school district totaled 289,763 and was 63.6% Negro and 34.8% white.[1] If "racial balance" were achieved in every school in the district, each school would be approximately 64% Negro. A remedy confined to the district could achieve no more desegregation. Furthermore, the proposed intracity remedies were beset with practical problems. None of the plans limited to the school district was satisfactory to the District Court. The most promising proposal, submitted by respondents, who were the plaintiffs in the District Court, would "leave many of its schools 75 to 90 percent Black." 484 F.2d 215, 244 (CA6 1973).[2] Transportation on a "vast scale" would be required; 900 buses would have to be purchased for the transportation of pupils who are not now bused. Id., at 243. The District Court also found that the plan "would change a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population." Id., at 244. For the District Court, "[t]he conclusion, under the evidence in this case, is inescapable that relief of segregation in the public schools of the *766 City of Detroit cannot be accomplished within the corporate geographical limits of the city." Ibid. The District Court therefore considered extending its remedy to the suburbs. After hearings, it concluded that a much more effective desegregation plan could be implemented if the suburban districts were included. In proceeding to design its plan on the basis that student bus rides to and from school should not exceed 40 minutes each way as a general matter, the court's express finding was that "[f]or all the reasons stated heretoforeÔÇö including time, distance, and transportation factorsÔÇö desegregation within the area described is physically easier and more practicable and feasible, than desegregation efforts limited to the corporate geographic limits of the city of Detroit." 345 F. Supp. 914, 930 (ED Mich. 1972). The Court of Appeals agreed with the District Court that the remedy must extend beyond the city limits of Detroit. It concluded that "[i]n the instant case the only feasible desegregation plan involves the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan." 484 F.2d, at 249. (Emphasis added.) It also agreed that "any Detroit only desegregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 percent white and 13 percent black." Ibid. There was "more than ample support for the District Judge's findings of unconstitutional segregation by race resulting in major part from action and inaction of public authorities, both local and State. . . . Under this record a remedial order of a court of equity which left the Detroit school system overwhelmingly black (for the foreseeable *767 future) surrounded by suburban school systems overwhelmingly white cannot correct the constitutional violations herein found." Id., at 250. To conclude otherwise, the Court of Appeals announced, would call up "haunting memories of the now long overruled and discredited `separate but equal doctrine' of Plessy v. Ferguson, 163 U.S. 537 . . . (1896)," and "would be opening a way to nullify Brown v. Board of Education which overruled Plessy . . . ." 484 F.2d, at 249. This Court now reverses the Court of Appeals. It does not question the District Court's findings that any feasible Detroit-only plan would leave many schools 75 to 90 percent black and that the district would become progressively more black as whites left the city. Neither does the Court suggest that including the suburbs in a desegregation plan would be impractical or infeasible because of educational considerations, because of the number of children requiring transportation, or because of the length of their rides. Indeed, the Court leaves unchallenged the District Court's conclusion that a plan including the suburbs would be physically easier and more practical and feasible than a Detroit-only plan. Whereas the most promising Detroit-only plan, for example, would have entailed the purchase of 900 buses, the metropolitan plan would involve the acquisition of no more than 350 new vehicles. Despite the fact that a metropolitan remedy, if the findings of the District Court accepted by the Court of Appeals are to be credited, would more effectively desegregate the Detroit schools, would prevent resegregation,[3] and would be easier and more feasible from many *768 standpoints, the Court fashions out of whole cloth an arbitrary rule that remedies for constitutional violations occurring in a single Michigan school district must stop at the school district line. Apparently, no matter how much less burdensome or more effective and efficient in many respects, such as transportation, the metropolitan plan might be, the school district line may not be crossed. Otherwise, it seems, there would be too much disruption of the Michigan scheme for managing its educational system, too much confusion, and too much administrative burden. The District Court, on the scene and familiar with local conditions, had a wholly different view. The Court of Appeals also addressed itself at length to matters of local law and to the problems that interdistrict remedies might present to the State of Michigan. Its conclusion, flatly contrary to that of this Court, was that "the constitutional right to equality before the law [is not] hemmed in by the boundaries of a school district" and that an interdistrict remedy "is supported by the status of school districts under Michigan law and by the historical control exercised over local school districts by the legislature of Michigan and by State agencies and officials . . . . [I]t is well established under the Constitution and laws of Michigan that the public school system is a State function and that local school districts are instrumentalities of the State created for administrative convenience."[4] 484 F. 2d, at 245-246. *769 I am surprised that the Court, sitting at this distance from the State of Michigan, claims better insight than the Court of Appeals and the District Court as to whether an interdistrict remedy for equal protection violations practiced by the State of Michigan would involve undue difficulties for the State in the management of its public schools. In the area of what constitutes an acceptable desegregation plan, "we must of necessity rely to a large extent, as this Court has for more than 16 years, on the informed judgment of the district courts in the first instance and on courts of appeals." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28 (1971). Obviously, whatever difficulties there might be, they are surmountable; for the Court itself concedes that, had there been sufficient evidence of an interdistrict violation, the District Court could have fashioned a single remedy for the districts implicated rather than a different remedy for each district *770 in which the violation had occurred or had an impact. I am even more mystified as to how the Court can ignore the legal reality that the constitutional violations, even if occurring locally, were committed by governmental entities for which the State is responsible and that it is the State that must respond to the command of the Fourteenth Amendment. An interdistrict remedy for the infringements that occurred in this case is well within the confines and powers of the State, which is the governmental entity ultimately responsible for desegregating its schools. The Michigan Supreme Court has observed that "[t]he school district is a State agency," Attorney General ex rel. Kies v. Lowrey, 131 Mich. 639, 644, 92 N.W. 289, 290 (1902), and that " `[e]ducation in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality, except so far as the legislature may choose to make it such. The Constitution has turned the whole subject over to the legislature. . . .' " Attorney General ex rel. Zacharias v. Detroit Board of Education, 154 Mich. 584, 590, 118 N.W. 606, 609 (1908). It is unnecessary to catalogue at length the various public misdeeds found by the District Court and the Court of Appeals to have contributed to the present segregation of the Detroit public schools. The legislature contributed directly by enacting a statute overriding a partial high school desegregation plan voluntarily adopted by the Detroit Board of Education. Indirectly, the trial court found the State was accountable for the thinly disguised, pervasive acts of segregation committed by the Detroit Board,[5] for Detroit's school construction *771 plans that would promote segregation, and for the Detroit school district's not having funds for pupil transportation within the district. The State was also chargeable with responsibility for the transportation of Negro high school students in the late 1950's from the suburban Ferndale School District, past closer suburban and Detroit high schools with predominantly white student bodies, to a predominantly Negro high school within Detroit. Swann v. Charlotte-Mecklenburg Board of Education, supra, at 20-21, and Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189 (1973), make abundantly clear that the tactics employed by the Detroit Board of Education, a local instrumentality of the State, violated the constitutional rights of the Negro students in Detroit's public schools and required equitable relief sufficient to accomplish the maximum, practical desegregation within the power of the political body against which the Fourteenth Amendment directs its proscriptions. No "State" may deny any individual the equal protection of the laws; and if the Constitution and the Supremacy Clause are to have any substance at all, the courts must be free to devise workable remedies against the political entity with the effective power to determine local choice. It is also the case here that the State's legislative interdiction of Detroit's voluntary effort to desegregate its school system was unconstitutional. See North Carolina State Board of Education v. Swann, 402 U.S. 43 (1971). The Court draws the remedial line at the Detroit school district boundary, even though the Fourteenth Amendment is addressed to the State and even though *772 the State denies equal protection of the laws when its public agencies, acting in its behalf, invidiously discriminate. The State's default is "the condition that offends the Constitution," Swann v. Charlotte-Mecklenburg Board of Education, supra, at 16, and state officials may therefore be ordered to take the necessary measures to completely eliminate from the Detroit public schools "all vestiges of state-imposed segregation." Id., at 15. I cannot understand, nor does the majority satisfactorily explain, why a federal court may not order an appropriate interdistrict remedy, if this is necessary or more effective to accomplish this constitutionally mandated task. As the Court unanimously observed in Swann: "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." Ibid. In this case, both the right and the State's Fourteenth Amendment violation have concededly been fully established, and there is no acceptable reason for permitting the party responsible for the constitutional violation to contain the remedial powers of the federal court within administrative boundaries over which the transgressor itself has plenary power. The unwavering decisions of this Court over the past 20 years support the assumption of the Court of Appeals that the District Court's remedial power does not cease at the school district line. The Court's first formulation of the remedial principles to be followed in disestablishing racially discriminatory school systems recognized the variety of problems arising from different local school conditions and the necessity for that "practical flexibility" traditionally associated with courts of equity. Brown v. Board of Education, 349 U.S. 294, 299-301 (1955) (Brown II). Indeed, the district courts to which *773 the Brown cases were remanded for the formulation of remedial decrees were specifically instructed that they might consider, inter alia, "revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis . . . ." Id., at 300-301. The malady addressed in Brown II was the statewide policy of requiring or permitting school segregation on the basis of race, while the record here concerns segregated schools only in the city of Detroit. The obligation to rectify the unlawful condition nevertheless rests on the State. The permissible revision of school districts contemplated in Brown II rested on the State's responsibility for desegregating its unlawfully segregated schools, not on any segregative effect which the condition of segregation in one school district might have had on the schools of a neighboring district. The same situation obtains here and the same remedial power is available to the District Court. Later cases reinforced the clearly essential rules that state officials are fully answerable for unlawfully caused conditions of school segregation which can effectively be controlled only by steps beyond the authority of local school districts to take, and that the equity power of the district courts includes the ability to order such measures implemented. When the highest officials of the State of Arkansas impeded a federal court order to desegregate the public schools under the immediate jurisdiction of the Little Rock School Board, this Court refused to accept the local board's assertion of its good faith as a legal excuse for delay in implementing the desegregation order. The Court emphasized that "from the point of view of the Fourteenth Amendment, they [the local school board members] stand in this litigation as the agents of the State." Cooper v. Aaron, 358 U.S. 1, 16 (1958). Perhaps *774 more importantly for present purposes, the Court went on to state: "The record before us clearly establishes that the growth of the Board's difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties . . . can also be brought under control by state action." Ibid. See also Griffin v. School Board, 377 U.S. 218, 228, 233-234 (1964). In the context of dual school systems, the Court subsequently made clear the "affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch" and to come forward with a desegregation plan that "promises realistically to work now." Green v. County School Board of New Kent County, 391 U.S. 430, 437-438, 439 (1968). "Freedom of choice" plans were rejected as acceptable desegregation measures where "reasonably available other ways . . . promising speedier and more effective conversion to a unitary, nonracial school system . . ." exist. Id., at 441. Imperative insistence on immediate full desegregation of dual school systems "to operate now and hereafter only unitary schools" was reiterated in Alexander v. Holmes County Board of Education, 396 U.S. 19, 20 (1969), and Carter v. West Feliciana Parish School Board, 396 U.S. 290 (1970). The breadth of the equitable authority of the district courts to accomplish these comprehensive tasks was reaffirmed in much greater detail in Swann v. Charlotte-Mecklenburg Board of Education, supra, and the companion case of Davis v. School Comm'rs of Mobile County, 402 U.S. 33 (1971), where there was unanimous assent to the following propositions: "Having once found a violation, the district judge or school authorities should make every effort to *775 achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. A district court may and should consider the use of all available techniques including restructuring of attendance zones and both contiguous and noncontiguous attendance zones. . . . The measure of any desegregation plan is its effectiveness." Id., at 37. No suggestion was made that interdistrict relief was not an available technique. In Swann v. Charlotte-Mecklenburg Board of Education itself, the Court, without dissent, recognized that the District Judge, in fulfilling his obligation to "make every effort to achieve the greatest possible degree of actual desegregation[,] will thus necessarily be concerned with the elimination of one-race schools." 402 U.S., at 26. Nor was there any dispute that to break up the dual school system, it was within the District Court's "broad remedial powers" to employ a "frankÔÇöand sometimes drasticÔÇögerrymandering of school districts and attendance zones," as well as "pairing, `clustering,' or `grouping' of schools," to desegregate the "formerly all-Negro schools," despite the fact that these zones might not be compact or contiguous and might be "on opposite ends of the city." Id., at 27. The school board in that case had jurisdiction over a 550-square-mile area encompassing the city of Charlotte and surrounding Mecklenburg County, North Carolina. The Mobile County, Alabama, board in Davis embraced a 1,248-square-mile area, including the city of Mobile. Yet the Court approved the District Court's authority to award countywide relief in each case in order to accomplish desegregation of the dual school system. Even more recently, the Court specifically rejected the claim that a new school district, which admittedly would operate a unitary school system within its borders, was beyond the reach of a court-ordered desegregation plan *776 for other school districts, where the effectiveness of the plan as to the other districts depended upon the availability of the facilities and student population of the new district. In Wright v. Council of the City of Emporia, 407 U.S. 451, 470 (1972), we held "that a new school district may not be created where its effect would be to impede the process of dismantling a dual system." MR. JUSTICE STEWART's opinion for the Court made clear that if a proposal to erect new district boundary lines "would impede the dismantling of the [pre-existing] dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out." Id., at 460. In United States v. Scotland Neck Board of Education, 407 U.S. 484 (1972), this same standard was applied to forbid North Carolina from creating a new city school district within a larger district which was in the process of dismantling a dual school system. The Court noted that if establishment of the new district were permitted, the "traditional racial identities of the schools in the area would be maintained," id., at 490. Until today, the permissible contours of the equitable authority of the district courts to remedy the unlawful establishment of a dual school system have been extensive, adaptable, and fully responsive to the ultimate goal of achieving "the greatest possible degree of actual desegregation." There are indeed limitations on the equity powers of the federal judiciary, but until now the Court has not accepted the proposition that effective enforcement of the Fourteenth Amendment could be limited by political or administrative boundary lines demarcated by the very State responsible for the constitutional violation and for the disestablishment of the dual system. Until now the Court has instead looked to practical considerations in effectuating a desegregation *777 decree such as excessive distance, transportation time, and hazards to the safety of the schoolchildren involved in a proposed plan. That these broad principles have developed in the context of dual school systems compelled or authorized by state statute at the time of Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), does not lessen their current applicability to dual systems found to exist in other contexts, like that in Detroit, where intentional school segregation does not stem from the compulsion of state law, but from deliberate individual actions of local and state school authorities directed at a particular school system. The majority properly does not suggest that the duty to eradicate completely the resulting dual system in the latter context is any less than in the former. But its reason for incapacitating the remedial authority of the federal judiciary in the presence of school district perimeters in the latter context is not readily apparent. The result reached by the Court certainly cannot be supported by the theory that the configuration of local governmental units is immune from alteration when necessary to redress constitutional violations. In addition to the well-established principles already noted, the Court has elsewhere required the public bodies of a State to restructure the State's political subdivisions to remedy infringements of the constitutional rights of certain members of its populace, notably in the reapportionment cases. In Reynolds v. Sims, 377 U.S. 533 (1964), for example, which held that equal protection of the laws demands that the seats in both houses of a bicameral state legislature be apportioned on a population basis, thus necessitating wholesale revision of Alabama's voting districts, the Court remarked: "Political subdivisions of StatesÔÇöcounties, cities, or whateverÔÇönever were and never have been considered *778 as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions." Id., at 575. And even more pointedly, the Court declared in Gomillion v. Lightfoot, 364 U.S. 339, 344-345 (1960), that "[l]egislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution." Nor does the Court's conclusion follow from the talismanic invocation of the desirability of local control over education. Local autonomy over school affairs, in the sense of the community's participation in the decisions affecting the education of its children, is, of course, an important interest. But presently constituted school district lines do not delimit fixed and unchangeable areas of a local educational community. If restructuring is required to meet constitutional requirements, local authority may simply be redefined in terms of whatever configuration is adopted, with the parents of the children attending schools in the newly demarcated district or attendance zone continuing their participation in the policy management of the schools with which they are concerned most directly. The majority's suggestion that judges should not attempt to grapple with the administrative problems attendant on a reorganization of school attendance patterns is wholly without foundation. It is precisely this sort of task which the district courts have been properly exercising to vindicate the constitutional rights of Negro students since Brown I and which the Court has never suggested they lack the capacity to perform. Intradistrict revisions of attendance zones, and pairing and grouping of schools, are techniques unanimously approved in Swann v. Charlotte-Mecklenburg *779 Board of Education which entail the same sensitivity to the interest of parents in the education their children receive as would an interdistrict plan which is likely to employ the very same methods. There is no reason to suppose that the District Court, which has not yet adopted a final plan of desegregation, would not be as capable of giving or as likely to give sufficient weight to the interest in community participation in schools in an interdistrict setting, consistent with the dictates of the Fourteenth Amendment. The majority's assumption that the District Court would act otherwise is a radical departure from the practical flexibility previously left to the equity powers of the federal judiciary. Finally, I remain wholly unpersuaded by the Court's assertion that "the remedy is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." Ante, at 746. In the first place, under this premise the Court's judgment is itself infirm; for had the Detroit school system not followed an official policy of segregation throughout the 1950's and 1960's, Negroes and whites would have been going to school together. There would have been no, or at least not as many, recognizable Negro schools and no, or at least not as many, white schools, but "just schools," and neither Negroes nor whites would have suffered from the effects of segregated education, with all its shortcomings. Surely the Court's remedy will not restore to the Negro community, stigmatized as it was by the dual school system, what it would have enjoyed over all or most of this period if the remedy is confined to present-day Detroit; for the maximum remedy available within that area will leave many of the schools almost totally black, and the system itself will be predominantly black and will become increasingly so. Moreover, when a State has engaged in acts of official segregation over a lengthy *780 period of time, as in the case before us, it is unrealistic to suppose that the children who were victims of the State's unconstitutional conduct could now be provided the benefits of which they were wrongfully deprived. Nor can the benefits which accrue to school systems in which schoolchildren have not been officially segregated, and to the communities supporting such school systems, be fully and immediately restored after a substantial period of unlawful segregation. The education of children of different races in a desegregated environment has unhappily been lost, along with the social, economic, and political advantages which accompany a desegregated school system as compared with an unconstitutionally segregated system. It is for these reasons that the Court has consistently followed the course of requiring the effects of past official segregation to be eliminated "root and branch" by imposing, in the present, the duty to provide a remedy which will achieve "the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." It is also for these reasons that once a constitutional violation has been found, the district judge obligated to provide such a remedy "will thus necessarily be concerned with the elimination of one-race schools." These concerns were properly taken into account by the District Judge in this case. Confining the remedy to the boundaries of the Detroit district is quite unrelated either to the goal of achieving maximum desegregation or to those intensely practical considerations, such as the extent and expense of transportation, that have imposed limits on remedies in cases such as this. The Court's remedy, in the end, is essentially arbitrary and will leave serious violations of the Constitution substantially unremedied. I agree with my Brother DOUGLAS that the Court of Appeals has acted responsibly in these cases. Regrettably, *781 the majority's arbitrary limitation on the equitable power of federal district courts, based on the invisible borders of local school districts, is unrelated to the State's responsibility for remedying the constitutional wrongs visited upon the Negro schoolchildren of Detroit. It is oblivious to the potential benefits of metropolitan relief, to the noneducational communities of interest among neighborhoods located in and sometimes bridging different school districts, and to the considerable interdistrict cooperation already existing in various educational areas. Ultimately, it is unresponsive to the goal of attaining the utmost actual desegregation consistent with restraints of practicability and thus augurs the frequent frustration of the remedial powers of the federal courts. Here the District Court will be forced to impose an intracity desegregation plan more expensive to the district, more burdensome for many of Detroit's Negro students, and surely more conducive to white flight than a metropolitan plan would beÔÇöall of this merely to avoid what the Detroit School Board, the District Court, and the en banc Court of Appeals considered to be the very manageable and quite surmountable difficulties that would be involved in extending the desegregation remedy to the suburban school districts. I am therefore constrained to record my disagreement and dissent. MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE WHITE join, dissenting. In Brown v. Board of Education, 347 U.S. 483 (1954), this Court held that segregation of children in public schools on the basis of race deprives minority group children of equal educational opportunities and therefore denies them the equal protection of the laws under the *782 Fourteenth Amendment. This Court recognized then that remedying decades of segregation in public education would not be an easy task. Subsequent events, unfortunately, have seen that prediction bear bitter fruit. But however imbedded old ways, however ingrained old prejudices, this Court has not been diverted from its appointed task of making "a living truth" of our constitutional ideal of equal justice under law. Cooper v. Aaron, 358 U.S. 1, 20 (1958). After 20 years of small, often difficult steps toward that great end, the Court today takes a giant step backwards. Notwithstanding a record showing widespread and pervasive racial segregation in the educational system provided by the State of Michigan for children in Detroit, this Court holds that the District Court was powerless to require the State to remedy its constitutional violation in any meaningful fashion. Ironically purporting to base its result on the principle that the scope of the remedy in a desegregation case should be determined by the nature and the extent of the constitutional violation, the Court's answer is to provide no remedy at all for the violation proved in this case, thereby guaranteeing that Negro children in Detroit will receive the same separate and inherently unequal education in the future as they have been unconstitutionally afforded in the past. I cannot subscribe to this emasculation of our constitutional guarantee of equal protection of the laws and must respectfully dissent. Our precedents, in my view, firmly establish that where, as here, state-imposed segregation has been demonstrated, it becomes the duty of the State to eliminate root and branch all vestiges of racial discrimination and to achieve the greatest possible degree of actual desegregation. I agree with both the District Court and the Court of Appeals that, under the facts of this case, this duty cannot be fulfilled unless the State *783 of Michigan involves outlying metropolitan area school districts in its desegregation remedy. Furthermore, I perceive no basis either in law or in the practicalities of the situation justifying the State's interposition of school district boundaries as absolute barriers to the implementation of an effective desegregation remedy. Under established and frequently used Michigan procedures, school district lines are both flexible and permeable for a wide variety of purposes, and there is no reason why they must now stand in the way of meaningful desegregation relief. The rights at issue in this case are too fundamental to be abridged on grounds as superficial as those relied on by the majority today. We deal here with the right of all of our children, whatever their race, to an equal start in life and to an equal opportunity to reach their full potential as citizens. Those children who have been denied that right in the past deserve better than to see fences thrown up to deny them that right in the future. Our Nation, I fear, will be ill served by the Court's refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together. I The great irony of the Court's opinion and, in my view, its most serious analytical flaw may be gleaned from its concluding sentence, in which the Court remands for "prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970." Ante, at 753. The majority, however, seems to have forgotten the District Court's explicit finding that a Detroit-only decree, the only remedy permitted under today's decision, "would not accomplish desegregation." *784 Nowhere in the Court's opinion does the majority confront, let alone respond to, the District Court's conclusion that a remedy limited to the city of Detroit would not effectively desegregate the Detroit city schools. I, for one, find the District Court's conclusion well supported by the record and its analysis compelled by our prior cases. Before turning to these questions, however, it is best to begin by laying to rest some mischaracterizations in the Court's opinion with respect to the basis for the District Court's decision to impose a metropolitan remedy. The Court maintains that while the initial focus of this lawsuit was the condition of segregation within the Detroit city schools, the District Court abruptly shifted focus in mid-course and altered its theory of the case. This new theory, in the majority's words, was "equating racial imbalance with a constitutional violation calling for a remedy." Ante, at 741 n. 19. As the following review of the District Court's handling of the case demonstrates, however, the majority's characterization is totally inaccurate. Nowhere did the District Court indicate that racial imbalance between school districts in the Detroit metropolitan area or within the Detroit School District constituted a constitutional violation calling for interdistrict relief. The focus of this case was from the beginning, and has remained, the segregated system of education in the Detroit city schools and the steps necessary to cure that condition which offends the Fourteenth Amendment. The District Court's consideration of this case began with its finding, which the majority accepts, that the State of Michigan, through its instrumentality, the Detroit Board of Education, engaged in widespread purposeful acts of racial segregation in the Detroit School District. Without belaboring the details, it is sufficient to *785 note that the various techniques used in Detroit were typical of methods employed to segregate students by race in areas where no statutory dual system of education has existed. See, e. g., Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189 (1973). Exacerbating the effects of extensive residential segregation between Negroes and whites, the school board consciously drew attendance zones along lines which maximized the segregation of the races in schools as well. Optional attendance zones were created for neighborhoods undergoing racial transition so as to allow whites in these areas to escape integration. Negro students in areas with overcrowded schools were transported past or away from closer white schools with available space to more distant Negro schools. Grade structures and feeder-school patterns were created and maintained in a manner which had the foreseeable and actual effect of keeping Negro and white pupils in separate schools. Schools were also constructed in locations and in sizes which ensured that they would open with predominantly one-race student bodies. In sum, the evidence adduced below showed that Negro children had been intentionally confined to an expanding core of virtually all-Negro schools immediately surrounded by a receding band of all-white schools. Contrary to the suggestions in the Court's opinion, the basis for affording a desegregation remedy in this case was not some perceived racial imbalance either between schools within a single school district or between independent school districts. What we confront here is "a systematic program of segregation affecting a substantial portion of the students, schools . . . and facilities within the school system . . . ." Id., at 201. The constitutional violation found here was not some de facto racial imbalance, but rather the purposeful, intentional, massive, de jure segregation of the Detroit city schools, *786 which under our decision in Keyes, forms "a predicate for a finding of the existence of a dual school system," ibid., and justifies "all-out desegregation." Id., at 214. Having found a de jure segregated public school system in operation in the city of Detroit, the District Court turned next to consider which officials and agencies should be assigned the affirmative obligation to cure the constitutional violation. The court concluded that responsibility for the segregation in the Detroit city schools rested not only with the Detroit Board of Education, but belonged to the State of Michigan itself and the state defendants in this caseÔÇöthat is, the Governor of Michigan, the Attorney General, the State Board of Education, and the State Superintendent of Public Instruction. While the validity of this conclusion will merit more extensive analysis below, suffice it for now to say that it was based on three considerations. First, the evidence at trial showed that the State itself had taken actions contributing to the segregation within the Detroit schools. Second, since the Detroit Board of Education was an agency of the State of Michigan, its acts of racial discrimination were acts of the State for purposes of the Fourteenth Amendment. Finally, the District Court found that under Michigan law and practice, the system of education was in fact a state school system, characterized by relatively little local control and a large degree of centralized state regulation, with respect to both educational policy and the structure and operation of school districts. Having concluded, then, that the school system in the city of Detroit was a de jure segregated system and that the State of Michigan had the affirmative duty to remedy that condition of segregation, the District Court then turned to the difficult task of devising an effective remedy. It bears repeating that the District Court's focus at this stage of the litigation remained what it had *787 been at the beginningÔÇöthe condition of segregation within the Detroit city schools. As the District Court stated: "From the initial ruling [on segregation] to this day, the basis of the proceedings has been and remains the violation: de jure school segregation. . . . The task before this court, therefore, is now, and . . . has always been, how to desegregate the Detroit public schools." The District Court first considered three desegregation plans limited to the geographical boundaries of the city of Detroit. All were rejected as ineffective to desegregate the Detroit city schools. Specifically, the District Court determined that the racial composition of the Detroit student body is such that implementation of any Detroit-only plan "would clearly make the entire Detroit public school system racially identifiable as Black" and would "leave many of its schools 75 to 90 per cent Black." The District Court also found that a Detroit-only plan "would change a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population." Based on these findings, the District Court reasoned that "relief of segregation in the public schools of the City of Detroit cannot be accomplished within the corporate geographical limits of the city" because a Detroit-only decree "would accentuate the racial identifiability of the district as a Black school system, and would not accomplish desegregation." The District Court therefore concluded that it "must look beyond the limits of the Detroit school district for a solution to the problem of segregation in the Detroit public schools . . . ." In seeking to define the appropriate scope of that expanded desegregation area, however, the District Court continued to maintain as its sole focus the condition shown to violate the Constitution in this caseÔÇöthe segregation of the Detroit school system. As it stated, the *788 primary question "remains the determination of the area necessary and practicable effectively to eliminate `root and branch' the effects of state-imposed and supported segregation and to desegregate the Detroit public schools." There is simply no foundation in the record, then, for the majority's accusation that the only basis for the District Court's order was some desire to achieve a racial balance in the Detroit metropolitan area.[1] In fact, just the contrary is the case. In considering proposed desegregation areas, the District Court had occasion to criticize one of the State's proposals specifically because it had no basis other than its "particular racial ratio" and did not focus on "relevant factors, like eliminating racially identifiable schools [and] accomplishing maximum actual desegregation of the Detroit public schools." Similarly, in rejecting the Detroit School Board's proposed desegregation area, even though it included more all-white districts and therefore achieved a higher white-Negro ratio, the District Court commented: "There is nothing in the record which suggests that these districts need be included in the desegregation area in order to disestablish the racial *789 identifiability of the Detroit public schools. From the evidence, the primary reason for the Detroit School Board's interest in the inclusion of these school districts is not racial desegregation but to increase the average socio-economic balance of all the schools in the abutting regions and clusters." The Court also misstates the basis for the District Court's order by suggesting that since the only segregation proved at trial was within the Detroit school system, any relief which extended beyond the jurisdiction of the Detroit Board of Education would be inappropriate because it would impose a remedy on outlying districts "not shown to have committed any constitutional violation." Ante, at 745.[2] The essential foundation of interdistrict relief in this case was not to correct conditions within outlying districts which themselves engaged in purposeful segregation. Instead, interdistrict relief was seen as a necessary part of any meaningful effort by the State of Michigan to remedy the state-caused segregation within the city of Detroit. Rather than consider the propriety of interdistrict relief on this basis, however, the Court has conjured up a largely fictional account of what the District Court was attempting to accomplish. With all due respect, the Court, in my view, does a great disservice to the District Judge who labored long and hard with this complex litigation by accusing him of changing horses in midstream and shifting the focus of this case from the pursuit of a remedy for the condition of segregation *790 within the Detroit school system to some unprincipled attempt to impose his own philosophy of racial balance on the entire Detroit metropolitan area. See ante, at 738-739. The focus of this case has always been the segregated system of education in the city of Detroit. The District Court determined that interdistrict relief was necessary and appropriate only because it found that the condition of segregation within the Detroit school system could not be cured with a Detroit-only remedy. It is on this theory that the interdistrict relief must stand or fall. Unlike the Court, I perceive my task to be to review the District Court's order for what it is, rather than to criticize it for what it manifestly is not. II As the foregoing demonstrates, the District Court's decision to expand its desegregation decree beyond the geographical limits of the city of Detroit rested in large part on its conclusions (A) that the State of Michigan was ultimately responsible for curing the condition of segregation within the Detroit city schools, and (B) that a Detroit-only remedy would not accomplish this task. In my view, both of these conclusions are well supported by the facts of this case and by this Court's precedents. A To begin with, the record amply supports the District Court's findings that the State of Michigan, through state officers and state agencies, had engaged in purposeful acts which created or aggravated segregation in the Detroit schools. The State Board of Education, for example, prior to 1962, exercised its authority to supervise local schoolsite selection in a manner which contributed to segregation. 484 F.2d 215, 238 (CA6 1973). Furthermore, the State's continuing authority, after 1962, *791 to approve school building construction plans[3] had intertwined the State with site-selection decisions of the Detroit Board of Education which had the purpose and effect of maintaining segregation. The State had also stood in the way of past efforts to desegregate the Detroit city schools. In 1970, for example, the Detroit School Board had begun implementation of its own desegregation plan for its high schools, despite considerable public and official resistance. The State Legislature intervened by enacting Act 48 of the Public Acts of 1970, specifically prohibiting implementation of the desegregation plan and thereby continuing the growing segregation of the Detroit school system. Adequate desegregation of the Detroit system was also hampered by discriminatory restrictions placed by the State on the use of transportation within Detroit. While state aid for transportation was provided by statute for suburban districts, many of which were highly urbanized, aid for intracity transportation was excepted. One of the effects of this restriction was to encourage the construction of small walk-in neighborhood schools in Detroit, thereby lending aid to the intentional policy of creating a school system which reflected, to the greatest extent feasible, extensive residential segregation. Indeed, that one of the purposes of the transportation restriction was to impede desegregation was evidenced when the Michigan Legislature amended the State Transportation Aid Act to cover intracity transportation but expressly prohibited the allocation of funds for cross-busing of students within a school district to achieve racial balance.[4] Cf. North Carolina State Board of Education v. Swann, 402 U.S. 43 (1971). *792 Also significant was the State's involvement during the 1950's in the transportation of Negro high school students from the Carver School District past a closer white high school in the Oak Park District to a more distant Negro high school in the Detroit system. Certainly the District Court's finding that the State Board of Education had knowledge of this action and had given its tacit or express approval was not clearly erroneous. Given the comprehensive statutory powers of the State Board of Education over contractual arrangements between school districts in the enrollment of students on a nonresident tuition basis, including certification of the number of pupils involved in the transfer and the amount of tuition charged, over the review of transportation routes and distances, and over the disbursement of transportation funds,[5] the State Board inevitably knew and understood the significance of this discriminatory act. Aside from the acts of purposeful segregation committed by the State Legislature and the State Board of Education, the District Court also concluded that the State was responsible for the many intentional acts of segregation committed by the Detroit Board of Education, an agency of the State. The majority is only willing to accept this finding arguendo. See ante, at 748. I have no doubt, however, as to its validity under the Fourteenth Amendment. "The command of the Fourteenth Amendment," it should be recalled, "is that no `State' shall deny to any person within its jurisdiction the equal protection of the laws." Cooper v. Aaron, 358 U.S. 1, 16 (1958). While a State can act only through "the officers or agents by whom its powers are exerted," Ex parte Virginia, 100 U.S. 339, 347 (1880), actions by an agent or officer of *793 the State are encompassed by the Fourteenth Amendment for, "as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State." Ibid. See also Cooper v. Aaron, supra; Virginia v. Rives, 100 U.S. 313, 318 (1880); Shelley v. Kraemer, 334 U.S. 1, 14 (1948). Under Michigan law a "school district is an agency of the State government." School District of the City of Lansing v. State Board of Education, 367 Mich. 591, 600, 116 N.W.2d 866, 870 (1962). It is "a legal division of territory, created by the State for educational purposes, to which the State has granted such powers as are deemed necessary to permit the district to function as a State agency." Detroit Board of Education v. Superintendent of Public Instruction, 319 Mich. 436, 450, 29 N.W.2d 902, 908 (1947). Racial discrimination by the school district, an agency of the State, is therefore racial discrimination by the State itself, forbidden by the Fourteenth Amendment. See, e. g., Pennsylvania v. Board of Trusts, 353 U.S. 230 (1957). We recognized only last Term in Keyes that it was the State itself which was ultimately responsible for de jure acts of segregation committed by a local school board. A deliberate policy of segregation by the local board, we held, amounted to "state-imposed segregation." 413 U.S., at 200. Wherever a dual school system exists, whether compelled by state statute or created by a local board's systematic program of segregation, "the State automatically assumes an affirmative duty `to effectuate a transition to a racially nondiscriminatory school system' [and] to eliminate from the public schools within their school system `all vestiges of state-imposed segregation.' " Ibid. (emphasis added). Vesting responsibility with the State of Michigan for Detroit's segregated schools is particularly appropriate as *794 Michigan, unlike some other States, operates a single statewide system of education rather than several separate and independent local school systems. The majority's emphasis on local governmental control and local autonomy of school districts in Michigan will come as a surprise to those with any familiarity with that State's system of education. School districts are not separate and distinct sovereign entities under Michigan law, but rather are " `auxiliaries of the State,' " subject to its "absolute power." Attorney General of Michigan ex rel. Kies v. Lowrey, 199 U.S. 233, 240 (1905). The courts of the State have repeatedly emphasized that education in Michigan is not a local governmental concern, but a state function. "Unlike the delegation of other powers by the legislature to local governments, education is not inherently a part of the local self-government of a municipality . . . . Control of our public school system is a State matter delegated and lodged in the State legislature by the Constitution. The policy of the State has been to retain control of its school system, to be administered throughout the State under State laws by local State agencies organized with plenary powers to carry out the delegated functions given [them] by the legislature." School District of the City of Lansing v. State Board of Education, supra, at 595, 116 N.W.2d, at 868. The Supreme Court of Michigan has noted the deep roots of this policy: "It has been settled by the Ordinance of 1787, the several Constitutions adopted in this State, by its uniform course of legislation, and by the decisions of this court, that education in Michigan is a matter of State concern, that it is no part of the local self-government of a particular township or municipality *795. . . . The legislature has always dictated the educational policy of the State." In re School District No. 6, 284 Mich. 132, 145-146, 278 N.W. 792, 797 (1938). The State's control over education is reflected in the fact that, contrary to the Court's implication, there is little or no relationship between school districts and local political units. To take the 85 outlying local school districts in the Detroit metropolitan area as examples, 17 districts lie in two counties, two in three counties. One district serves five municipalities; other suburban municipalities are fragmented into as many as six school districts. Nor is there any apparent state policy with regard to the size of school districts, as they now range from 2,000 to 285,000 students. Centralized state control manifests itself in practice as well as in theory. The State controls the financing of education in several ways. The legislature contributes a substantial portion of most school districts' operating budgets with funds appropriated from the State's General Fund revenues raised through statewide taxation.[6] The State's power over the purse can be and is in fact used to enforce the State's powers over local districts.[7] In addition, although local districts obtain funds through local property taxation, the State has assumed the responsibility to ensure equalized property valuations throughout the State.[8] The State also establishes *796 standards for teacher certification and teacher tenure;[9] determines part of the required curriculum;[10] sets the minimum school term;[11] approves bus routes, equipment, and drivers;[12] approves textbooks;[13] and establishes procedures for student discipline.[14] The State Superintendent of Public Instruction and the State Board of Education have the power to remove local school board members from office for neglect of their duties.[15] Most significantly for present purposes, the State has wide-ranging powers to consolidate and merge school districts, even without the consent of the districts themselves or of the local citizenry.[16] See, e. g., Attorney General ex rel. Kies v. Lowrey, 131 Mich. 639, 92 N.W. 289 (1902), aff'd, 199 U.S. 233 (1905). Indeed, recent years have witnessed an accelerated program of school district consolidations, mergers, and annexations, many of which were state imposed. Whereas the State had 7,362 local districts in 1912, the number had been reduced to 1,438 in 1964 and to 738 in 1968.[17] By June 1972, only 608 school districts remained. Furthermore, the State has broad powers to transfer property from one district to another, again without the consent of the local school districts affected by the transfer.[18] See, e. g., School District *797 of the City of Lansing v. State Board of Education, supra; Imlay Township District v. State Board of Education, 359 Mich. 478, 102 N.W.2d 720 (1960). Whatever may be the history of public education in other parts of our Nation, it simply flies in the face of reality to say, as does the majority, that in Michigan, "[n]o single tradition in public education is more deeply rooted than local control over the operation of schools . . . ." Ante, at 741. As the State's Supreme Court has said: "We have repeatedly held that education in this State is not a matter of local concern, but belongs to the State at large." Collins v. City of Detroit, 195 Mich. 330, 335-336, 161 N.W. 905, 907 (1917). See also Sturgis v. County of Allegan, 343 Mich. 209, 215, 72 N.W.2d 56, 59 (1955); Van Fleet v. Oltman, 244 Mich. 241, 244, 221 N.W. 299, 300 (1928); Child Welfare Society of Flint v. Kennedy School District, 220 Mich. 290, 296, 189 N.W. 1002, 1004 (1922). Indeed, a study prepared for the 1961 Michigan Constitutional Convention noted that the Michigan Constitution's articles on education had resulted in "the establishment of a state system of education in contrast to a series of local school systems." Elementary and Secondary Education and the Michigan Constitution, Michigan Constitutional Convention Studies 1 (1961). In sum, several factors in this case coalesce to support the District Court's ruling that it was the State of Michigan itself, not simply the Detroit Board of Education, which bore the obligation of curing the condition of segregation within the Detroit city schools. The actions of the State itself directly contributed to Detroit's segregation. Under the Fourteenth Amendment, the State is ultimately responsible for the actions of its local agencies. And, finally, given the structure of Michigan's educational system, Detroit's segregation cannot be *798 viewed as the problem of an independent and separate entity. Michigan operates a single statewide system of education, a substantial part of which was shown to be segregated in this case. B What action, then, could the District Court require the State to take in order to cure Detroit's condition of segregation? Our prior cases have not minced words as to what steps responsible officials and agencies must take in order to remedy segregation in the public schools. Not only must distinctions on the basis of race be terminated for the future, but school officials are also "clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Green v. County School Board of New Kent County, 391 U.S. 430, 437-438 (1968). See also Lee v. Macon County Board of Education, 267 F. Supp. 458 (MD Ala.), aff'd sub nom. Wallace v. United States, 389 U.S. 215 (1967). Negro students are not only entitled to neutral nondiscriminatory treatment in the future. They must receive "what Brown II promised them: a school system in which all vestiges of enforced racial segregation have been eliminated." Wright v. Council of the City of Emporia, 407 U.S. 451, 463 (1972). See also Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 (1971). These remedial standards are fully applicable not only to school districts where a dual system was compelled by statute, but also where, as here, a dual system was the product of purposeful and intentional state action. See Keyes, 413 U. S., at 200-201. After examining three plans limited to the city of Detroit, the District Court correctly concluded that none would eliminate root and branch the vestiges of *799 unconstitutional segregation. The plans' effectiveness, of course, had to be evaluated in the context of the District Court's findings as to the extent of segregation in the Detroit city schools. As indicated earlier, the most essential finding was that Negro children in Detroit had been confined by intentional acts of segregation to a growing core of Negro schools surrounded by a receding ring of white schools.[19] Thus, in 1960, of Detroit's 251 *800 regular-attendance schools, 100 were 90% or more white and 71 were 90% or more Negro. In 1970, of Detroit's 282 regular-attendance schools, 69 were 90% or more white and 133 were 90% or more Negro. While in 1960, 68% of all schools were 90% or more one race, by 1970, 71.6% of the schools fell into that category. The growing core of all-Negro schools was further evidenced in total school district population figures. In 1960 the Detroit system had 46% Negro students and 54% white students, but by 1970, 64% of the students were Negro and only 36% were white. This increase in the proportion of Negro students was the highest of any major Northern city. It was with these figures in the background that the District Court evaluated the adequacy of the three Detroit-only plans submitted by the parties. Plan A, proposed by the Detroit Board of Education, desegregated the high schools and about a fifth of the middle-level schools. It was deemed inadequate, however, because it did not desegregate elementary schools and left the middle-level schools not included in the plan more segregated than ever. Plan C, also proposed by the Detroit Board, was deemed inadequate because it too covered only some grade levels and would leave elementary schools segregated. Plan B, the plaintiffs' plan, though requiring the transportation of 82,000 pupils and the acquisition of 900 school buses, would make little *801 headway in rooting out the vestiges of segregation. To begin with, because of practical limitations, the District Court found that the plan would leave many of the Detroit city schools 75% to 90% Negro. More significantly, the District Court recognized that in the context of a community which historically had a school system marked by rigid de jure segregation, the likely effect of a Detroit-only plan would be to "change a school system which is now Black and White to one that would be perceived as Black . . . ." The result of this changed perception, the District Court found, would be to increase the flight of whites from the city to the outlying suburbs, compounding the effects of the present rate of increase in the proportion of Negro students in the Detroit system. Thus, even if a plan were adopted which, at its outset, provided in every school a 65% Negro-35% white racial mix in keeping with the Negro-white proportions of the total student population, such a system would, in short order, devolve into an all-Negro system. The net result would be a continuation of the all-Negro schools which were the hallmarks of Detroit's former dual system of one-race schools. Under our decisions, it was clearly proper for the District Court to take into account the so-called "white flight" from the city schools which would be forthcoming from any Detroit-only decree. The court's prediction of white flight was well supported by expert testimony based on past experience in other cities undergoing desegregation relief. We ourselves took the possibility of white flight into account in evaluating the effectiveness of a desegregation plan in Wright, supra, where we relied on the District Court's finding that if the city of Emporia were allowed to withdraw from the existing system, leaving a system with a higher proportion of Negroes, it " `may be anticipated that the proportion *802 of whites in county schools may drop as those who can register in private academies' . . . ." 407 U.S., at 464. One cannot ignore the white-flight problem, for where legally imposed segregation has been established, the District Court has the responsibility to see to it not only that the dual system is terminated at once but also that future events do not serve to perpetuate or re-establish segregation. See Swann, 402 U. S., at 21. See also Green, 391 U. S., at 438 n. 4; Monroe v. Board of Comm'rs, 391 U.S. 450, 459 (1968). We held in Swann, supra, that where de jure segregation is shown, school authorities must make "every effort to achieve the greatest possible degree of actual desegregation." 402 U.S., at 26. This is the operative standard re-emphasized in Davis v. School Comm'rs of Mobile County, 402 U.S. 33, 37 (1971). If these words have any meaning at all, surely it is that school authorities must, to the extent possible, take all practicable steps to ensure that Negro and white children in fact go to school together. This is, in the final analysis, what desegregation of the public schools is all about. Because of the already high and rapidly increasing percentage of Negro students in the Detroit system, as well as the prospect of white flight, a Detroit-only plan simply has no hope of achieving actual desegregation. Under such a plan white and Negro students will not go to school together. Instead, Negro children will continue to attend all-Negro schools. The very evil that Brown I was aimed at will not be cured, but will be perpetuated for the future. Racially identifiable schools are one of the primary vestiges of state-imposed segregation which an effective desegregation decree must attempt to eliminate. In Swann, supra, for example, we held that "[t]he district judge or school authorities . . . will thus necessarily be concerned with the elimination of one-race schools." 402 *803 U. S., at 26. There is "a presumption," we stated, "against schools that are substantially disproportionate in their racial composition." Ibid. And in evaluating the effectiveness of desegregation plans in prior cases, we ourselves have considered the extent to which they discontinued racially identifiable schools. See, e. g., Green v. County School Board of New Kent County, supra; Wright v. Council of the City of Emporia, supra. For a principal end of any desegregation remedy is to ensure that it is no longer "possible to identify a `white school' or a `Negro school.' " Swann, supra, at 18. The evil to be remedied in the dismantling of a dual system is the "[r]acial identification of the system's schools." Green, 391 U. S., at 435. The goal is a system without white schools or Negro schoolsÔÇöa system with "just schools." Id., at 442. A school authority's remedial plan or a district court's remedial decree is to be judged by its effectiveness in achieving this end. See Swann, supra, at 25; Davis, supra, at 37; Green, supra, at 439. We cautioned in Swann, of course, that the dismantling of a segregated school system does not mandate any particular racial balance. 402 U.S., at 24. We also concluded that a remedy under which there would remain a small number of racially identifiable schools was only presumptively inadequate and might be justified. Id., at 26. But this is a totally different case. The flaw of a Detroit-only decree is not that it does not reach some ideal degree of racial balance or mixing. It simply does not promise to achieve actual desegregation at all. It is one thing to have a system where a small number of students remain in racially identifiable schools. It is something else entirely to have a system where all students continue to attend such schools. The continued racial identifiability of the Detroit schools under a Detroit-only remedy is not simply a reflection of their high percentage of Negro students. *804 What is or is not a racially identifiable vestige of de jure segregation must necessarily depend on several factors. Cf. Keyes, 413 U. S., at 196. Foremost among these should be the relationship between the schools in question and the neighboring community. For these purposes the city of Detroit and its surrounding suburbs must be viewed as a single community. Detroit is closely connected to its suburbs in many ways, and the metropolitan area is viewed as a single cohesive unit by its residents. About 40% of the residents of the two suburban counties included in the desegregation plan work in Wayne County, in which Detroit is situated. Many residents of the city work in the suburbs. The three counties participate in a wide variety of cooperative governmental ventures on a metropolitan-wide basis, including a metropolitan transit system, park authority, water and sewer system, and council of governments. The Federal Government has classified the tri-county area as a Standard Metropolitan Statistical Area, indicating that it is an area of "economic and social integration." United States v. Connecticut National Bank, ante, at 670. Under a Detroit-only decree, Detroit's schools will clearly remain racially identifiable in comparison with neighboring schools in the metropolitan community. Schools with 65% and more Negro students will stand in sharp and obvious contrast to schools in neighboring districts with less than 2% Negro enrollment. Negro students will continue to perceive their schools as segregated educational facilities and this perception will only be increased when whites react to a Detroit-only decree by fleeing to the suburbs to avoid integration. School district lines, however innocently drawn, will surely be perceived as fences to separate the races when, under a Detroit-only decree, white parents withdraw their children *805 from the Detroit city schools and move to the suburbs in order to continue them in all-white schools. The message of this action will not escape the Negro children in the city of Detroit. See Wright, 407 U. S., at 466. It will be of scant significance to Negro children who have for years been confined by de jure acts of segregation to a growing core of all-Negro schools surrounded by a ring of all-white schools that the new dividing line between the races is the school district boundary. Nor can it be said that the State is free from any responsibility for the disparity between the racial makeup of Detroit and its surrounding suburbs. The State's creation, through de jure acts of segregation, of a growing core of all-Negro schools inevitably acted as a magnet to attract Negroes to the areas served by such schools and to deter them from settling either in other areas of the city or in the suburbs. By the same token, the growing core of all-Negro schools inevitably helped drive whites to other areas of the city or to the suburbs. As we recognized in Swann: "People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods. . . . [Action taken] to maintain the separation of the races with a minimum departure from the formal principles of `neighborhood zoning' . . . does more than simply influence the short-run composition of the student body . . . . It may well promote segregated residential patterns which, when combined with `neighborhood zoning,' further lock the school system into the mold of separation of the races. Upon a proper *806 showing a district court may consider this in fashioning a remedy." 402 U.S., at 20-21. See also Keyes, 413 U. S., at 202. The rippling effects on residential patterns caused by purposeful acts of segregation do not automatically subside at the school district border. With rare exceptions, these effects naturally spread through all the residential neighborhoods within a metropolitan area. See id., at 202-203. The State must also bear part of the blame for the white flight to the suburbs which would be forthcoming from a Detroit-only decree and would render such a remedy ineffective. Having created a system where whites and Negroes were intentionally kept apart so that they could not become accustomed to learning together, the State is responsible for the fact that many whites will react to the dismantling of that segregated system by attempting to flee to the suburbs. Indeed, by limiting the District Court to a Detroit-only remedy and allowing that flight to the suburbs to succeed, the Court today allows the State to profit from its own wrong and to perpetuate for years to come the separation of the races it achieved in the past by purposeful state action. The majority asserts, however, that involvement of outlying districts would do violence to the accepted principle that "the nature of the violation determines the scope of the remedy." Swann, supra, at 16. See ante, at 744-745. Not only is the majority's attempt to find in this single phrase the answer to the complex and difficult questions presented in this case hopelessly simplistic, but more important, the Court reads these words in a manner which perverts their obvious meaning. The nature of a violation determines the scope of the remedy simply because the function of any remedy is to cure the violation to which it is addressed. In school segregation *807 cases, as in other equitable causes, a remedy which effectively cures the violation is what is required. See Green, 391 U. S., at 439; Davis, 402 U. S., at 37. No more is necessary, but we can tolerate no less. To read this principle as barring a district court from imposing the only effective remedy for past segregation and remitting the court to a patently ineffective alternative is, in my view, to turn a simple commonsense rule into a cruel and meaningless paradox. Ironically, by ruling out an interdistrict remedy, the only relief which promises to cure segregation in the Detroit public schools, the majority flouts the very principle on which it purports to rely. Nor should it be of any significance that the suburban school districts were not shown to have themselves taken any direct action to promote segregation of the races. Given the State's broad powers over local school districts, it was well within the State's powers to require those districts surrounding the Detroit school district to participate in a metropolitan remedy. The State's duty should be no different here than in cases where it is shown that certain of a State's voting districts are malapportioned in violation of the Fourteenth Amendment. See Reynolds v. Sims, 377 U.S. 533 (1964). Overrepresented electoral districts are required to participate in reapportionment although their only "participation" in the violation was to do nothing about it. Similarly, electoral districts which themselves meet representation standards must frequently be redrawn as part of a remedy for other over- and under-inclusive districts. No finding of fault on the part of each electoral district and no finding of a discriminatory effect on each district is a prerequisite to its involvement in the constitutionally required remedy. By the same logic, no finding of fault on the part of the suburban school districts in this case *808 and no finding of a discriminatory effect on each district should be a prerequisite to their involvement in the constitutionally required remedy. It is the State, after all, which bears the responsibility under Brown of affording a nondiscriminatory system of education. The State, of course, is ordinarily free to choose any decentralized framework for education it wishes, so long as it fulfills that Fourteenth Amendment obligation. But the State should no more be allowed to hide behind its delegation and compartmentalization of school districts to avoid its constitutional obligations to its children than it could hide behind its political subdivisions to avoid its obligations to its voters. Reynolds v. Sims, supra, at 575. See also Gomillion v. Lightfoot, 364 U.S. 339 (1960). It is a hollow remedy indeed where "after supposed `desegregation' the schools remained segregated in fact." Hobson v. Hansen, 269 F. Supp. 401, 495 (DDC 1967). We must do better than " `substitute . . . one segregated school system for another segregated school system.' " Wright, 407 U. S., at 456. To suggest, as does the majority, that a Detroit-only plan somehow remedies the effects of de jure segregation of the races is, in my view, to make a solemn mockery of Brown I's holding that separate educational facilities are inherently unequal and of Swann's unequivocal mandate that the answer to de jure segregation is the greatest possible degree of actual desegregation. III One final set of problems remains to be considered. We recognized in Brown II, and have re-emphasized ever since, that in fashioning relief in desegregation cases, "the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for *809 adjusting and reconciling public and private needs." Brown II, 349 U. S., at 300. See also Swann, supra. Though not resting its holding on this point, the majority suggests that various equitable considerations militate against interdistrict relief. The Court, for example, refers to financing and administrative problems, the logistical problems attending large-scale transportation of students, and the prospect of the District Court's becoming a "de facto `legislative authority' " and " `school superintendent' for the entire area." Ante, at 743-744. The entangling web of problems woven by the Court, however, appears on further consideration to be constructed of the flimsiest of threads. I deal first with the last of the problems posed by the CourtÔÇöthe specter of the District Court qua "school superintendent" and "legislative authority"ÔÇöfor analysis of this problem helps put the other issues in proper perspective. Our cases, of course, make clear that the initial responsibility for devising an adequate desegregation plan belongs with school authorities, not with the District Court. The court's primary role is to review the adequacy of the school authorities' efforts and to substitute its own plan only if and to the extent they default. See Swann, 402 U. S., at 16; Green, 391 U. S., at 439. Contrary to the majority's suggestions, the District Judge in this case consistently adhered to these procedures and there is every indication that he would have continued to do so. After finding de jure segregation the court ordered the parties to submit proposed Detroit-only plans. The state defendants were also ordered to submit a proposed metropolitan plan extending beyond Detroit's boundaries. As the District Court stated, "the State defendants . . . bear the initial burden of coming forward with a proposal that promises to work." The state defendants defaulted in this obligation, however. *810 Rather than submit a complete plan, the State Board of Education submitted six proposals, none of which was in fact a desegregation plan. It was only upon this default that the District Court began to take steps to develop its own plan. Even then the District Court maximized school authority participation by appointing a panel representing both plaintiffs and defendants to develop a plan. Pet. App. 99a-100a. Furthermore, the District Court still left the state defendants the initial responsibility for developing both interim and final financial and administrative arrangements to implement interdistrict relief. Id., at 104a-105a. The Court of Appeals further protected the interests of local school authorities by ensuring that the outlying suburban districts could fully participate in the proceedings to develop a metropolitan remedy. These processes have not been allowed to run their course. No final desegregation plan has been proposed by the panel of experts, let alone approved by the District Court. We do not know in any detail how many students will be transported to effect a metropolitan remedy, and we do not know how long or how far they will have to travel. No recommendations have yet been submitted by the state defendants on financial and administrative arrangements. In sum, the practicality of a final metropolitan plan is simply not before us at the present time. Since the State and the panel of experts have not yet had an opportunity to come up with a workable remedy, there is no foundation for the majority's suggestion of the impracticality of interdistrict relief. Furthermore, there is no basis whatever for assuming that the District Court will inevitably be forced to assume the role of legislature or school superintendent.[20]*811 Were we to hold that it was its constitutional duty to do so, there is every indication that the State of Michigan would fulfill its obligation and develop a plan which is workable, administrable, financially sound, and, most important, in the best interest of quality education for all of the children in the Detroit metropolitan area. Since the Court chooses, however, to speculate on the feasibility of a metropolitan plan, I feel constrained to comment on the problem areas it has targeted. To begin with, the majority's questions concerning the practicality of consolidation of school districts need not give us pause. The State clearly has the power, under existing law, to effect a consolidation if it is ultimately determined that this offers the best prospect for a workable and stable desegregation plan. See supra, at 796-797. And given the 1,000 or so consolidations of school districts which have taken place in the past, it is hard to believe that the State has not already devised means of solving most, if not all, of the practical problems which the Court suggests consolidation would entail. Furthermore, the majority ignores long-established Michigan procedures under which school districts may enter into contractual agreements to educate their pupils in other districts using state or local funds to finance non-resident education.[21] Such agreements could form an *812 easily administrable framework for interdistrict relief short of outright consolidation of the school districts. The District Court found that interdistrict procedures like these were frequently used to provide special educational services for handicapped children, and extensive statutory provision is also made for their use in vocational education.[22] Surely if school districts are willing to engage in interdistrict programs to help those unfortunate children crippled by physical or mental handicaps, school districts can be required to participate in an interdistrict program to help those children in the city of Detroit whose educations and very futures have been crippled by purposeful state segregation. Although the majority gives this last matter only fleeting reference, it is plain that one of the basic emotional and legal issues underlying these cases concerns the propriety of transportation of students to achieve desegregation. While others may have retreated from its standards, see, e. g., Keyes, 413 U. S., at 217 (POWELL, J., concurring in part and dissenting in part), I continue to adhere to the guidelines set forth in Swann on this issue. See 402 U.S., at 29-31. And though no final desegregation plan is presently before us, to the extent the outline of such a plan is now visible, it is clear that the transportation it would entail will be fully consistent with these guidelines. First of all, the metropolitan plan would not involve the busing of substantially more students than already ride buses. The District Court found that, statewide, 35%-40% of all students already arrive at school on a bus. In those school districts in the tri-county Detroit metropolitan area eligible for state reimbursement of transportation costs, 42%-52% of all students rode buses to school. In the tri-county areas as a whole, approximately *813 300,000 pupils arrived at school on some type of bus, with about 60,000 of these apparently using regular public transit. In comparison, the desegregation plan, according to its present rough outline, would involve the transportation of 310,000 students, about 40% of the population within the desegregation area. With respect to distance and amount of time traveled, 17 of the outlying school districts involved in the plan are contiguous to the Detroit district. The rest are all within 8 miles of the Detroit city limits. The trial court, in defining the desegregation area, placed a ceiling of 40 minutes one way on the amount of travel time, and many students will obviously travel for far shorter periods. As to distance, the average statewide bus trip is 8 1/2 miles one way, and in some parts of the tri-county area, students already travel for one and a quarter hours or more each way. In sum, with regard to both the number of students transported and the time and distances involved, the outlined desegregation plan "compares favorably with the transportation plan previously operated . . . ." Swann, supra, at 30. As far as economics are concerned, a metropolitan remedy would actually be more sensible than a Detroit-only remedy. Because of prior transportation aid restrictions, see supra, at 791, Detroit largely relied on public transport, at student expense, for those students who lived too far away to walk to school. Since no inventory of school buses existed, a Detroit-only plan was estimated to require the purchase of 900 buses to effectuate the necessary transportation. The tri-county area, in contrast, already has an inventory of 1,800 buses, many of which are now under-utilized. Since increased utilization of the existing inventory can take up much of the increase in transportation involved in the interdistrict remedy, the District Court found that only 350 additional buses would *814 probably be needed, almost two-thirds fewer than a Detroit-only remedy. Other features of an interdistrict remedy bespeak its practicality, such as the possibility of pairing up Negro schools near Detroit's boundary with nearby white schools on the other side of the present school district line. Some disruption, of course, is the inevitable product of any desegregation decree, whether it operates within one district or on an interdistrict basis. As we said in Swann, however: "Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided . . . ." 402 U.S., at 28. Desegregation is not and was never expected to be an easy task. Racial attitudes ingrained in our Nation's childhood and adolescence are not quickly thrown aside in its middle years. But just as the inconvenience of some cannot be allowed to stand in the way of the rights of others, so public opposition, no matter how strident, cannot be permitted to divert this Court from the enforcement of the constitutional principles at issue in this case. Today's holding, I fear, is more a reflection of a perceived public mood that we have gone far enough in enforcing the Constitution's guarantee of equal justice than it is the product of neutral principles of law. In *815 the short run, it may seem to be the easier course to allow our great metropolitan areas to be divided up each into two citiesÔÇöone white, the other blackÔÇöbut it is a course, I predict, our people will ultimately regret. I dissent.

The District Court and the Court of Appeals found that over a long period of years those in charge of the Michigan public schools engaged in various practices calculated to effect the segregation of the Detroit school system. The Court does not question these findings, nor could it reasonably do so. Neither does it question the obligation of the federal courts to devise a feasible and effective remedy. But it promptly cripples the ability of the judiciary to perform this task, which is of fundamental importance to our constitutional system, by *763 fashioning a strict rule that remedies in school cases must stop at the school district line unless certain other conditions are met. As applied here, the remedy for unquestioned violations of the equal protection rights of Detroit's Negroes by the Detroit School Board and the State of Michigan must be totally confined to the limits of the school district and may not reach into adjoining or surrounding districts unless and until it is proved there has been some sort of "interdistrict violation"ÔÇö unless unconstitutional actions of the Detroit School Board have had a segregative impact on other districts, or unless the segregated condition of the Detroit schools has itself been influenced by segregative practices in those surrounding districts into which it is proposed to extend the remedy. Regretfully, and for several reasons, I can join neither the Court's judgment nor its opinion. The core of my disagreement is that deliberate acts of segregation and their consequences will go unremedied, not because a remedy would be infeasible or unreasonable in terms of the usual criteria governing school desegregation cases, but because an effective remedy would cause what the Court considers to be undue administrative inconvenience to the State. The result is that the State of Michigan, the entity at which the Fourteenth Amendment is directed, has successfully insulated itself from its duty to provide effective desegregation remedies by vesting sufficient power over its public schools in its local school districts. If this is the case in Michigan, it will be the case in most States. There are undoubted practical as well as legal limits to the remedial powers of federal courts in school desegregation cases. The Court has made it clear that the achievement of any particular degree of racial balance in the school system is not required by the Constitution; *764 nor may it be the primary focus of a court in devising an acceptable remedy for de jure segregation. A variety of procedures and techniques are available to a district court engrossed in fashioning remedies in a case such as this; but the courts must keep in mind that they are dealing with the process of educating the young, including the very young. The task is not to devise a system of pains and penalties to punish constitutional violations brought to light. Rather, it is to desegregate an educational system in which the races have been kept apart, without, at the same time, losing sight of the central educational function of the schools. Viewed in this light, remedies calling for school zoning, pairing, and pupil assignments, become more and more suspect as they require that schoolchildren spend more and more time in buses going to and from school and that more and more educational dollars be diverted to transportation systems. Manifestly, these considerations are of immediate and urgent concern when the issue is the desegregation of a city school system where residential patterns are predominantly segregated and the respective areas occupied by blacks and whites are heavily populated and geographically extensive. Thus, if one postulates a metropolitan school system covering a sufficiently large area, with the population evenly divided between whites and Negroes and with the races occupying identifiable residential areas, there will be very real practical limits on the extent to which racially identifiable schools can be eliminated within the school district. It is also apparent that the larger the proportion of Negroes in the area, the more difficult it would be to avoid having a substantial number of all-black or nearly all-black schools. The Detroit school district is both large and heavily populated. It covers 139.6 square miles, encircles two *765 entirely separate cities and school districts, and surrounds a third city on three sides. Also, whites and Negroes live in identifiable areas in the city. The 1970 public school enrollment in the city school district totaled 9,763 and was 63.6% Negro and 34.8% white.[1] If "racial balance" were achieved in every school in the district, each school would be approximately 64% Negro. A remedy confined to the district could achieve no more desegregation. Furthermore, the proposed intracity remedies were beset with practical problems. None of the plans limited to the school district was satisfactory to the District Court. The most promising proposal, submitted by respondents, who were the plaintiffs in the District Court, would "leave many of its schools 75 to 90 percent Black."[2] Transportation on a "vast scale" would be required; 900 buses would have to be purchased for the transportation of pupils who are not now bused. The District Court also found that the plan "would change a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population." at For the District Court, "[t]he conclusion, under the evidence in this case, is inescapable that relief of segregation in the public schools of the *766 City of Detroit cannot be accomplished within the corporate geographical limits of the city." The District Court therefore considered extending its remedy to the suburbs. After hearings, it concluded that a much more effective desegregation plan could be implemented if the suburban districts were included. In proceeding to design its plan on the basis that student bus rides to and from school should not exceed 40 minutes each way as a general matter, the court's express finding was that "[f]or all the reasons stated heretoforeÔÇö including time, distance, and transportation factorsÔÇö desegregation within the area described is physically easier and more practicable and feasible, than desegregation efforts limited to the corporate geographic limits of the city of Detroit." The Court of Appeals agreed with the District Court that the remedy must extend beyond the city limits of Detroit. It concluded that "[i]n the instant case the only feasible desegregation plan involves the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan." (Emphasis added.) It also agreed that "any Detroit only desegregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 percent white and 13 percent black." There was "more than ample support for the District Judge's findings of unconstitutional segregation by race resulting in major part from action and inaction of public authorities, both local and State Under this record a remedial order of a court of equity which left the Detroit school system overwhelmingly black (for the foreseeable *767 future) surrounded by suburban school systems overwhelmingly white cannot correct the constitutional violations herein found." To conclude otherwise, the Court of Appeals announced, would call up "haunting memories of the now long overruled and discredited `separate but equal doctrine' of" and "would be opening a way to nullify Brown v. Board of which overruled Plessy" This Court now reverses the Court of Appeals. It does not question the District Court's findings that any feasible Detroit-only plan would leave many schools 75 to 90 percent black and that the district would become progressively more black as whites left the city. Neither does the Court suggest that including the suburbs in a desegregation plan would be impractical or infeasible because of educational considerations, because of the number of children requiring transportation, or because of the length of their rides. Indeed, the Court leaves unchallenged the District Court's conclusion that a plan including the suburbs would be physically easier and more practical and feasible than a Detroit-only plan. Whereas the most promising Detroit-only plan, for example, would have entailed the purchase of 900 buses, the metropolitan plan would involve the acquisition of no more than 350 new vehicles. Despite the fact that a metropolitan remedy, if the findings of the District Court accepted by the Court of Appeals are to be credited, would more effectively desegregate the Detroit schools, would prevent resegregation,[3] and would be easier and more feasible from many *768 standpoints, the Court fashions out of whole cloth an arbitrary rule that remedies for constitutional violations occurring in a single Michigan school district must stop at the school district line. Apparently, no matter how much less burdensome or more effective and efficient in many respects, such as transportation, the metropolitan plan might be, the school district line may not be crossed. Otherwise, it seems, there would be too much disruption of the Michigan scheme for managing its educational system, too much confusion, and too much administrative burden. The District Court, on the scene and familiar with local conditions, had a wholly different view. The Court of Appeals also addressed itself at length to matters of local law and to the problems that interdistrict remedies might present to the State of Michigan. Its conclusion, flatly contrary to that of this Court, was that "the constitutional right to equality before the law [is not] hemmed in by the boundaries of a school district" and that an interdistrict remedy "is supported by the status of school districts under Michigan law and by the historical control exercised over local school districts by the legislature of Michigan and by State agencies and officials [I]t is well established under the Constitution and laws of Michigan that the public school system is a State function and that local school districts are instrumentalities of the State created for administrative convenience."[4] 484 F. 2d, at 245-246. *769 I am surprised that the Court, sitting at this distance from the State of Michigan, claims better insight than the Court of Appeals and the District Court as to whether an interdistrict remedy for equal protection violations practiced by the State of Michigan would involve undue difficulties for the State in the management of its public schools. In the area of what constitutes an acceptable desegregation plan, "we must of necessity rely to a large extent, as this Court has for more than years, on the informed judgment of the district courts in the first instance and on courts of appeals." Obviously, whatever difficulties there might be, they are surmountable; for the Court itself concedes that, had there been sufficient evidence of an interdistrict violation, the District Court could have fashioned a single remedy for the districts implicated rather than a different remedy for each district *770 in which the violation had occurred or had an impact. I am even more mystified as to how the Court can ignore the legal reality that the constitutional violations, even if occurring locally, were committed by governmental entities for which the State is responsible and that it is the State that must respond to the command of the Fourteenth Amendment. An interdistrict remedy for the infringements that occurred in this case is well within the confines and powers of the State, which is the governmental entity ultimately responsible for desegregating its schools. The Michigan Supreme Court has observed that "[t]he school district is a State agency," Attorney General ex rel. 92 N.W. 9, and that " `[e]ducation in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality, except so far as the legislature may choose to make it such. The Constitution has turned the whole subject over to the legislature' " Attorney General ex rel. It is unnecessary to catalogue at length the various public misdeeds found by the District Court and the Court of Appeals to have contributed to the present segregation of the Detroit public schools. The legislature contributed directly by enacting a statute overriding a partial high school desegregation plan voluntarily adopted by the Detroit Board of Indirectly, the trial court found the State was accountable for the thinly disguised, pervasive acts of segregation committed by the Detroit Board,[5] for Detroit's school construction *771 plans that would promote segregation, and for the Detroit school district's not having funds for pupil transportation within the district. The State was also chargeable with responsibility for the transportation of Negro high school students in the late 1950's from the suburban Ferndale School District, past closer suburban and Detroit high schools with predominantly white student bodies, to a predominantly Negro high school within Detroit. and make abundantly clear that the tactics employed by the Detroit Board of a local instrumentality of the State, violated the constitutional rights of the Negro students in Detroit's public schools and required equitable relief sufficient to accomplish the maximum, practical desegregation within the power of the political body against which the Fourteenth Amendment directs its proscriptions. No "State" may deny any individual the equal protection of the laws; and if the Constitution and the Supremacy Clause are to have any substance at all, the courts must be free to devise workable remedies against the political entity with the effective power to determine local choice. It is also the case here that the State's legislative interdiction of Detroit's voluntary effort to desegregate its school system was unconstitutional. See North Carolina State Board of v. The Court draws the remedial line at the Detroit school district boundary, even though the Fourteenth Amendment is addressed to the State and even though *772 the State denies equal protection of the laws when its public agencies, acting in its behalf, invidiously discriminate. The State's default is "the condition that offends the Constitution," and state officials may therefore be ordered to take the necessary measures to completely eliminate from the Detroit public schools "all vestiges of state-imposed segregation." I cannot understand, nor does the majority satisfactorily explain, why a federal court may not order an appropriate interdistrict remedy, if this is necessary or more effective to accomplish this constitutionally mandated task. As the Court unanimously 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." In this case, both the right and the State's Fourteenth Amendment violation have concededly been fully established, and there is no acceptable reason for permitting the party responsible for the constitutional violation to contain the remedial powers of the federal court within administrative boundaries over which the transgressor itself has plenary power. The unwavering decisions of this Court over the past years support the assumption of the Court of Appeals that the District Court's remedial power does not cease at the school district line. The Court's first formulation of the remedial principles to be followed in disestablishing racially discriminatory school systems recognized the variety of problems arising from different local school conditions and the necessity for that "practical flexibility" traditionally associated with courts of equity. Brown v. Board of Indeed, the district courts to which *773 the Brown cases were remanded for the formulation of remedial decrees were specifically instructed that they might consider, inter alia, "revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis" The malady addressed in Brown was the statewide policy of requiring or permitting school segregation on the basis of race, while the record here concerns segregated schools only in the city of Detroit. The obligation to rectify the unlawful condition nevertheless rests on the State. The permissible revision of school districts contemplated in Brown rested on the State's responsibility for desegregating its unlawfully segregated schools, not on any segregative effect which the condition of segregation in one school district might have had on the schools of a neighboring district. The same situation obtains here and the same remedial power is available to the District Court. Later cases reinforced the clearly essential rules that state officials are fully answerable for unlawfully caused conditions of school segregation which can effectively be controlled only by steps beyond the authority of local school districts to take, and that the equity power of the district courts includes the ability to order such measures implemented. When the highest officials of the State of Arkansas impeded a federal court order to desegregate the public schools under the immediate jurisdiction of the Little Rock School Board, this Court refused to accept the local board's assertion of its good faith as a legal excuse for delay in implementing the desegregation order. The Court emphasized that "from the point of view of the Fourteenth Amendment, they [the local school board members] stand in this litigation as the agents of the State." Perhaps *774 more importantly for present purposes, the Court went on to state: "The record before us clearly establishes that the growth of the Board's difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties can also be brought under control by state action." See also 2, 233-234 In the context of dual school systems, the Court subsequently made clear the "affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch" and to come forward with a desegregation plan that "promises realistically to work now." "Freedom of choice" plans were rejected as acceptable desegregation measures where "reasonably available other ways promising speedier and more effective conversion to a unitary, nonracial school system " exist. Imperative insistence on immediate full desegregation of dual school systems "to operate now and hereafter only unitary schools" was reiterated in Alexander v. Holmes Board of and 396 U.S. The breadth of the equitable authority of the district courts to accomplish these comprehensive tasks was reaffirmed in much greater detail in and the companion case of where there was unanimous assent to the following propositions: "Having once found a violation, the district judge or school authorities should make every effort to *775 achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. A district court may and should consider the use of all available techniques including restructuring of attendance zones and both contiguous and noncontiguous attendance zones The measure of any desegregation plan is its effectiveness." No suggestion was made that interdistrict relief was not an available technique. In itself, the Court, without dissent, recognized that the District Judge, in fulfilling his obligation to "make every effort to achieve the greatest possible degree of actual desegregation[,] will thus necessarily be concerned with the elimination of one-race schools." Nor was there any dispute that to break up the dual school system, it was within the District Court's "broad remedial powers" to employ a "frankÔÇöand sometimes drasticÔÇögerrymandering of school districts and attendance zones," as well as "pairing, `clustering,' or `grouping' of schools," to desegregate the "formerly all-Negro schools," despite the fact that these zones might not be compact or contiguous and might be "on opposite ends of the city." The school board in that case had jurisdiction over a 550-square-mile area encompassing the city of Charlotte and surrounding Mecklenburg North Carolina. The Mobile Alabama, board in embraced a 1,248-square-mile area, including the city of Mobile. Yet the Court approved the District Court's authority to award countywide relief in each case in order to accomplish desegregation of the dual school system. Even more recently, the Court specifically rejected the claim that a new school district, which admittedly would operate a unitary school system within its borders, was beyond the reach of a court-ordered desegregation plan *776 for other school districts, where the effectiveness of the plan as to the other districts depended upon the availability of the facilities and student population of the new district. In we held "that a new school district may not be created where its effect would be to impede the process of dismantling a dual system." MR. JUSTICE STEWART's opinion for the Court made clear that if a proposal to erect new district boundary lines "would impede the dismantling of the [pre-existing] dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out." In United States v. Scotland Neck Board of this same standard was applied to forbid North Carolina from creating a new city school district within a larger district which was in the process of dismantling a dual school system. The Court noted that if establishment of the new district were permitted, the "traditional racial identities of the schools in the area would be maintained," Until today, the permissible contours of the equitable authority of the district courts to remedy the unlawful establishment of a dual school system have been extensive, adaptable, and fully responsive to the ultimate goal of achieving "the greatest possible degree of actual desegregation." There are indeed limitations on the equity powers of the federal judiciary, but until now the Court has not accepted the proposition that effective enforcement of the Fourteenth Amendment could be limited by political or administrative boundary lines demarcated by the very State responsible for the constitutional violation and for the disestablishment of the dual system. Until now the Court has instead looked to practical considerations in effectuating a desegregation *777 decree such as excessive distance, transportation time, and hazards to the safety of the schoolchildren involved in a proposed plan. That these broad principles have developed in the context of dual school systems compelled or authorized by state statute at the time of Brown v. Board of does not lessen their current applicability to dual systems found to exist in other contexts, like that in Detroit, where intentional school segregation does not stem from the compulsion of state law, but from deliberate individual actions of local and state school authorities directed at a particular school system. The majority properly does not suggest that the duty to eradicate completely the resulting dual system in the latter context is any less than in the former. But its reason for incapacitating the remedial authority of the federal judiciary in the presence of school district perimeters in the latter context is not readily apparent. The result reached by the Court certainly cannot be supported by the theory that the configuration of local governmental units is immune from alteration when necessary to redress constitutional violations. In addition to the well-established principles already noted, the Court has elsewhere required the public bodies of a State to restructure the State's political subdivisions to remedy infringements of the constitutional rights of certain members of its populace, notably in the reapportionment cases. In for example, which held that equal protection of the laws demands that the seats in both houses of a bicameral state legislature be apportioned on a population basis, thus necessitating wholesale revision of Alabama's voting districts, the Court remarked: "Political subdivisions of StatesÔÇöcounties, cities, or whateverÔÇönever were and never have been considered *778 as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions." And even more pointedly, the Court declared in that "[l]egislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution." Nor does the Court's conclusion follow from the talismanic invocation of the desirability of local control over education. Local autonomy over school affairs, in the sense of the community's participation in the decisions affecting the education of its children, is, of course, an important interest. But presently constituted school district lines do not delimit fixed and unchangeable areas of a local educational community. If restructuring is required to meet constitutional requirements, local authority may simply be redefined in terms of whatever configuration is adopted, with the parents of the children attending schools in the newly demarcated district or attendance zone continuing their participation in the policy management of the schools with which they are concerned most directly. The majority's suggestion that judges should not attempt to grapple with the administrative problems attendant on a reorganization of school attendance patterns is wholly without foundation. It is precisely this sort of task which the district courts have been properly exercising to vindicate the constitutional rights of Negro students since Brown I and which the Court has never suggested they lack the capacity to perform. Intradistrict revisions of attendance zones, and pairing and grouping of schools, are techniques unanimously approved in v. Charlotte-Mecklenburg *779 Board of which entail the same sensitivity to the interest of parents in the education their children receive as would an interdistrict plan which is likely to employ the very same methods. There is no reason to suppose that the District Court, which has not yet adopted a final plan of desegregation, would not be as capable of giving or as likely to give sufficient weight to the interest in community participation in schools in an interdistrict setting, consistent with the dictates of the Fourteenth Amendment. The majority's assumption that the District Court would act otherwise is a radical departure from the practical flexibility previously left to the equity powers of the federal judiciary. Finally, I remain wholly unpersuaded by the Court's assertion that "the remedy is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." Ante, at 746. In the first place, under this premise the Court's judgment is itself infirm; for had the Detroit school system not followed an official policy of segregation throughout the 1950's and 's, Negroes and whites would have been going to school together. There would have been no, or at least not as many, recognizable Negro schools and no, or at least not as many, white schools, but "just schools," and neither Negroes nor whites would have suffered from the effects of segregated education, with all its shortcomings. Surely the Court's remedy will not restore to the Negro community, stigmatized as it was by the dual school system, what it would have enjoyed over all or most of this period if the remedy is confined to present-day Detroit; for the maximum remedy available within that area will leave many of the schools almost totally black, and the system itself will be predominantly black and will become increasingly so. Moreover, when a State has engaged in acts of official segregation over a lengthy *780 period of time, as in the case before us, it is unrealistic to suppose that the children who were victims of the State's unconstitutional conduct could now be provided the benefits of which they were wrongfully deprived. Nor can the benefits which accrue to school systems in which schoolchildren have not been officially segregated, and to the communities supporting such school systems, be fully and immediately restored after a substantial period of unlawful segregation. The education of children of different races in a desegregated environment has unhappily been lost, along with the social, economic, and political advantages which accompany a desegregated school system as compared with an unconstitutionally segregated system. It is for these reasons that the Court has consistently followed the course of requiring the effects of past official segregation to be eliminated "root and branch" by imposing, in the present, the duty to provide a remedy which will achieve "the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." It is also for these reasons that once a constitutional violation has been found, the district judge obligated to provide such a remedy "will thus necessarily be concerned with the elimination of one-race schools." These concerns were properly taken into account by the District Judge in this case. Confining the remedy to the boundaries of the Detroit district is quite unrelated either to the goal of achieving maximum desegregation or to those intensely practical considerations, such as the extent and expense of transportation, that have imposed limits on remedies in cases such as this. The Court's remedy, in the end, is essentially arbitrary and will leave serious violations of the Constitution substantially unremedied. I agree with my Brother DOUGLAS that the Court of Appeals has acted responsibly in these cases. Regrettably, *781 the majority's arbitrary limitation on the equitable power of federal district courts, based on the invisible borders of local school districts, is unrelated to the State's responsibility for remedying the constitutional wrongs visited upon the Negro schoolchildren of Detroit. It is oblivious to the potential benefits of metropolitan relief, to the noneducational communities of interest among neighborhoods located in and sometimes bridging different school districts, and to the considerable interdistrict cooperation already existing in various educational areas. Ultimately, it is unresponsive to the goal of attaining the utmost actual desegregation consistent with restraints of practicability and thus augurs the frequent frustration of the remedial powers of the federal courts. Here the District Court will be forced to impose an intracity desegregation plan more expensive to the district, more burdensome for many of Detroit's Negro students, and surely more conducive to white flight than a metropolitan plan would beÔÇöall of this merely to avoid what the Detroit School Board, the District Court, and the en banc Court of Appeals considered to be the very manageable and quite surmountable difficulties that would be involved in extending the desegregation remedy to the suburban school districts. I am therefore constrained to record my disagreement and dissent. MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE WHITE join, dissenting. In Brown v. Board of this Court held that segregation of children in public schools on the basis of race deprives minority group children of equal educational opportunities and therefore denies them the equal protection of the laws under the *782 Fourteenth Amendment. This Court recognized then that remedying decades of segregation in public education would not be an easy task. Subsequent events, unfortunately, have seen that prediction bear bitter fruit. But however imbedded old ways, however ingrained old prejudices, this Court has not been diverted from its appointed task of making "a living truth" of our constitutional ideal of equal justice under law. After years of small, often difficult steps toward that great end, the Court today takes a giant step backwards. Notwithstanding a record showing widespread and pervasive racial segregation in the educational system provided by the State of Michigan for children in Detroit, this Court holds that the District Court was powerless to require the State to remedy its constitutional violation in any meaningful fashion. Ironically purporting to base its result on the principle that the scope of the remedy in a desegregation case should be determined by the nature and the extent of the constitutional violation, the Court's answer is to provide no remedy at all for the violation proved in this case, thereby guaranteeing that Negro children in Detroit will receive the same separate and inherently unequal education in the future as they have been unconstitutionally afforded in the past. I cannot subscribe to this emasculation of our constitutional guarantee of equal protection of the laws and must respectfully dissent. Our precedents, in my view, firmly establish that where, as here, state-imposed segregation has been demonstrated, it becomes the duty of the State to eliminate root and branch all vestiges of racial discrimination and to achieve the greatest possible degree of actual desegregation. I agree with both the District Court and the Court of Appeals that, under the facts of this case, this duty cannot be fulfilled unless the State *783 of Michigan involves outlying metropolitan area school districts in its desegregation remedy. Furthermore, I perceive no basis either in law or in the practicalities of the situation justifying the State's interposition of school district boundaries as absolute barriers to the implementation of an effective desegregation remedy. Under established and frequently used Michigan procedures, school district lines are both flexible and permeable for a wide variety of purposes, and there is no reason why they must now stand in the way of meaningful desegregation relief. The rights at issue in this case are too fundamental to be abridged on grounds as superficial as those relied on by the majority today. We deal here with the right of all of our children, whatever their race, to an equal start in life and to an equal opportunity to reach their full potential as citizens. Those children who have been denied that right in the past deserve better than to see fences thrown up to deny them that right in the future. Our Nation, I fear, will be ill served by the Court's refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together. I The great irony of the Court's opinion and, in my view, its most serious analytical flaw may be gleaned from its concluding sentence, in which the Court remands for "prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970." Ante, at 753. The majority, however, seems to have forgotten the District Court's explicit finding that a Detroit-only decree, the only remedy permitted under today's decision, "would not accomplish desegregation." *784 Nowhere in the Court's opinion does the majority confront, let alone respond to, the District Court's conclusion that a remedy limited to the city of Detroit would not effectively desegregate the Detroit city schools. I, for one, find the District Court's conclusion well supported by the record and its analysis compelled by our prior cases. Before turning to these questions, however, it is best to begin by laying to rest some mischaracterizations in the Court's opinion with respect to the basis for the District Court's decision to impose a metropolitan remedy. The Court maintains that while the initial focus of this lawsuit was the condition of segregation within the Detroit city schools, the District Court abruptly shifted focus in mid-course and altered its theory of the case. This new theory, in the majority's words, was "equating racial imbalance with a constitutional violation calling for a remedy." Ante, at 741 n. 19. As the following review of the District Court's handling of the case demonstrates, however, the majority's characterization is totally inaccurate. Nowhere did the District Court indicate that racial imbalance between school districts in the Detroit metropolitan area or within the Detroit School District constituted a constitutional violation calling for interdistrict relief. The focus of this case was from the beginning, and has remained, the segregated system of education in the Detroit city schools and the steps necessary to cure that condition which offends the Fourteenth Amendment. The District Court's consideration of this case began with its finding, which the majority accepts, that the State of Michigan, through its instrumentality, the Detroit Board of engaged in widespread purposeful acts of racial segregation in the Detroit School District. Without belaboring the details, it is sufficient to *785 note that the various techniques used in Detroit were typical of methods employed to segregate students by race in areas where no statutory dual system of education has existed. See, e. g., Exacerbating the effects of extensive residential segregation between Negroes and whites, the school board consciously drew attendance zones along lines which maximized the segregation of the races in schools as well. Optional attendance zones were created for neighborhoods undergoing racial transition so as to allow whites in these areas to escape integration. Negro students in areas with overcrowded schools were transported past or away from closer white schools with available space to more distant Negro schools. Grade structures and feeder-school patterns were created and maintained in a manner which had the foreseeable and actual effect of keeping Negro and white pupils in separate schools. Schools were also constructed in locations and in sizes which ensured that they would open with predominantly one-race student bodies. In sum, the evidence adduced below showed that Negro children had been intentionally confined to an expanding core of virtually all-Negro schools immediately surrounded by a receding band of all-white schools. Contrary to the suggestions in the Court's opinion, the basis for affording a desegregation remedy in this case was not some perceived racial imbalance either between schools within a single school district or between independent school districts. What we confront here is "a systematic program of segregation affecting a substantial portion of the students, schools and facilities within the school system" at 1. The constitutional violation found here was not some de facto racial imbalance, but rather the purposeful, intentional, massive, de jure segregation of the Detroit city schools, *786 which under our decision in forms "a predicate for a finding of the existence of a dual school system," ib and justifies "all-out desegregation." Having found a de jure segregated public school system in operation in the city of Detroit, the District Court turned next to consider which officials and agencies should be assigned the affirmative obligation to cure the constitutional violation. The court concluded that responsibility for the segregation in the Detroit city schools rested not only with the Detroit Board of but belonged to the State of Michigan itself and the state defendants in this caseÔÇöthat is, the Governor of Michigan, the Attorney General, the State Board of and the State Superintendent of Public Instruction. While the validity of this conclusion will merit more extensive analysis below, suffice it for now to say that it was based on three considerations. First, the evidence at trial showed that the State itself had taken actions contributing to the segregation within the Detroit schools. Second, since the Detroit Board of was an agency of the State of Michigan, its acts of racial discrimination were acts of the State for purposes of the Fourteenth Amendment. Finally, the District Court found that under Michigan law and practice, the system of education was in fact a state school system, characterized by relatively little local control and a large degree of centralized state regulation, with respect to both educational policy and the structure and operation of school districts. Having concluded, then, that the school system in the city of Detroit was a de jure segregated system and that the State of Michigan had the affirmative duty to remedy that condition of segregation, the District Court then turned to the difficult task of devising an effective remedy. It bears repeating that the District Court's focus at this stage of the litigation remained what it had *787 been at the beginningÔÇöthe condition of segregation within the Detroit city schools. As the District Court stated: "From the initial ruling [on segregation] to this day, the basis of the proceedings has been and remains the violation: de jure school segregation The task before this court, therefore, is now, and has always been, how to desegregate the Detroit public schools." The District Court first considered three desegregation plans limited to the geographical boundaries of the city of Detroit. All were rejected as ineffective to desegregate the Detroit city schools. Specifically, the District Court determined that the racial composition of the Detroit student body is such that implementation of any Detroit-only plan "would clearly make the entire Detroit public school system racially identifiable as Black" and would "leave many of its schools 75 to 90 per cent Black." The District Court also found that a Detroit-only plan "would change a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population." Based on these findings, the District Court reasoned that "relief of segregation in the public schools of the City of Detroit cannot be accomplished within the corporate geographical limits of the city" because a Detroit-only decree "would accentuate the racial identifiability of the district as a Black school system, and would not accomplish desegregation." The District Court therefore concluded that it "must look beyond the limits of the Detroit school district for a solution to the problem of segregation in the Detroit public schools" In seeking to define the appropriate scope of that expanded desegregation area, however, the District Court continued to maintain as its sole focus the condition shown to violate the Constitution in this caseÔÇöthe segregation of the Detroit school system. As it stated, the *788 primary question "remains the determination of the area necessary and practicable effectively to eliminate `root and branch' the effects of state-imposed and supported segregation and to desegregate the Detroit public schools." There is simply no foundation in the record, then, for the majority's accusation that the only basis for the District Court's order was some desire to achieve a racial balance in the Detroit metropolitan area.[1] In fact, just the contrary is the case. In considering proposed desegregation areas, the District Court had occasion to criticize one of the State's proposals specifically because it had no basis other than its "particular racial ratio" and did not focus on "relevant factors, like eliminating racially identifiable schools [and] accomplishing maximum actual desegregation of the Detroit public schools." Similarly, in rejecting the Detroit School Board's proposed desegregation area, even though it included more all-white districts and therefore achieved a higher white-Negro ratio, the District Court commented: "There is nothing in the record which suggests that these districts need be included in the desegregation area in order to disestablish the racial *789 identifiability of the Detroit public schools. From the evidence, the primary reason for the Detroit School Board's interest in the inclusion of these school districts is not racial desegregation but to increase the average socio-economic balance of all the schools in the abutting regions and clusters." The Court also misstates the basis for the District Court's order by suggesting that since the only segregation proved at trial was within the Detroit school system, any relief which extended beyond the jurisdiction of the Detroit Board of would be inappropriate because it would impose a remedy on outlying districts "not shown to have committed any constitutional violation." Ante, at 745.[2] The essential foundation of interdistrict relief in this case was not to correct conditions within outlying districts which themselves engaged in purposeful segregation. Instead, interdistrict relief was seen as a necessary part of any meaningful effort by the State of Michigan to remedy the state-caused segregation within the city of Detroit. Rather than consider the propriety of interdistrict relief on this basis, however, the Court has conjured up a largely fictional account of what the District Court was attempting to accomplish. With all due respect, the Court, in my view, does a great disservice to the District Judge who labored long and hard with this complex litigation by accusing him of changing horses in midstream and shifting the focus of this case from the pursuit of a remedy for the condition of segregation *790 within the Detroit school system to some unprincipled attempt to impose his own philosophy of racial balance on the entire Detroit metropolitan area. See ante, at 738-739. The focus of this case has always been the segregated system of education in the city of Detroit. The District Court determined that interdistrict relief was necessary and appropriate only because it found that the condition of segregation within the Detroit school system could not be cured with a Detroit-only remedy. It is on this theory that the interdistrict relief must stand or fall. Unlike the Court, I perceive my task to be to review the District Court's order for what it is, rather than to criticize it for what it manifestly is not. As the foregoing demonstrates, the District Court's decision to expand its desegregation decree beyond the geographical limits of the city of Detroit rested in large part on its conclusions (A) that the State of Michigan was ultimately responsible for curing the condition of segregation within the Detroit city schools, and (B) that a Detroit-only remedy would not accomplish this task. In my view, both of these conclusions are well supported by the facts of this case and by this Court's precedents. A To begin with, the record amply supports the District Court's findings that the State of Michigan, through state officers and state agencies, had engaged in purposeful acts which created or aggravated segregation in the Detroit schools. The State Board of for example, prior to exercised its authority to supervise local schoolsite selection in a manner which contributed to segregation. Furthermore, the State's continuing authority, after *791 to approve school building construction plans[3] had intertwined the State with site-selection decisions of the Detroit Board of which had the purpose and effect of maintaining segregation. The State had also stood in the way of past efforts to desegregate the Detroit city schools. In 1970, for example, the Detroit School Board had begun implementation of its own desegregation plan for its high schools, despite considerable public and official resistance. The State Legislature intervened by enacting Act 48 of the Public Acts of 1970, specifically prohibiting implementation of the desegregation plan and thereby continuing the growing segregation of the Detroit school system. Adequate desegregation of the Detroit system was also hampered by discriminatory restrictions placed by the State on the use of transportation within Detroit. While state aid for transportation was provided by statute for suburban districts, many of which were highly urbanized, aid for intracity transportation was excepted. One of the effects of this restriction was to encourage the construction of small walk-in neighborhood schools in Detroit, thereby lending aid to the intentional policy of creating a school system which reflected, to the greatest extent feasible, extensive residential segregation. Indeed, that one of the purposes of the transportation restriction was to impede desegregation was evidenced when the Michigan Legislature amended the State Transportation Aid Act to cover intracity transportation but expressly prohibited the allocation of funds for cross-busing of students within a school district to achieve racial [4] Cf. North Carolina State Board of v. *792 Also significant was the State's involvement during the 1950's in the transportation of Negro high school students from the Carver School District past a closer white high school in the Oak Park District to a more distant Negro high school in the Detroit system. Certainly the District Court's finding that the State Board of had knowledge of this action and had given its tacit or express approval was not clearly erroneous. Given the comprehensive statutory powers of the State Board of over contractual arrangements between school districts in the enrollment of students on a nonresident tuition basis, including certification of the number of pupils involved in the transfer and the amount of tuition charged, over the review of transportation routes and distances, and over the disbursement of transportation funds,[5] the State Board inevitably knew and understood the significance of this discriminatory act. Aside from the acts of purposeful segregation committed by the State Legislature and the State Board of the District Court also concluded that the State was responsible for the many intentional acts of segregation committed by the Detroit Board of an agency of the State. The majority is only willing to accept this finding arguendo. See ante, at 748. I have no doubt, however, as to its validity under the Fourteenth Amendment. "The command of the Fourteenth Amendment," it should be recalled, "is that no `State' shall deny to any person within its jurisdiction the equal protection of the laws." While a State can act only through "the officers or agents by whom its powers are exerted," Ex parte Virginia, actions by an agent or officer of *793 the State are encompassed by the Fourteenth Amendment for, "as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State." See also ; Under Michigan law a "school district is an agency of the State government." School District of the City of Lansing v. State Board of 1 N.W.2d 866, It is "a legal division of territory, created by the State for educational purposes, to which the State has granted such powers as are deemed necessary to permit the district to function as a State agency." Detroit Board of v. Superintendent of Public Instruction, Racial discrimination by the school district, an agency of the State, is therefore racial discrimination by the State itself, forbidden by the Fourteenth Amendment. See, e. g., We recognized only last Term in that it was the State itself which was ultimately responsible for de jure acts of segregation committed by a local school board. A deliberate policy of segregation by the local board, we held, amounted to "state-imposed segregation." 413 U.S., at 0. Wherever a dual school system exists, whether compelled by state statute or created by a local board's systematic program of segregation, "the State automatically assumes an affirmative duty `to effectuate a transition to a racially nondiscriminatory school system' [and] to eliminate from the public schools within their school system `all vestiges of state-imposed segregation.' " Vesting responsibility with the State of Michigan for Detroit's segregated schools is particularly appropriate as *794 Michigan, unlike some other States, operates a single statewide system of education rather than several separate and independent local school systems. The majority's emphasis on local governmental control and local autonomy of school districts in Michigan will come as a surprise to those with any familiarity with that State's system of education. School districts are not separate and distinct sovereign entities under Michigan law, but rather are " `auxiliaries of the State,' " subject to its "absolute power." Attorney General of Michigan ex rel. The courts of the State have repeatedly emphasized that education in Michigan is not a local governmental concern, but a state function. "Unlike the delegation of other powers by the legislature to local governments, education is not inherently a part of the local self-government of a municipality Control of our public school system is a State matter delegated and lodged in the State legislature by the Constitution. The policy of the State has been to retain control of its school system, to be administered throughout the State under State laws by local State agencies organized with plenary powers to carry out the delegated functions given [them] by the legislature." School District of the City of Lansing v. State Board of 1 N.W.2d, at 868. The Supreme Court of Michigan has noted the deep roots of this policy: "It has been settled by the Ordinance of 1787, the several Constitutions adopted in this State, by its uniform course of legislation, and by the decisions of this court, that education in Michigan is a matter of State concern, that it is no part of the local self-government of a particular township or municipality *795 The legislature has always dictated the educational policy of the State." In re School District No. 6, 4 Mich. 132, 5-6, The State's control over education is reflected in the fact that, contrary to the Court's implication, there is little or no relationship between school districts and local political units. To take the 85 outlying local school districts in the Detroit metropolitan area as examples, 17 districts lie in two counties, two in three counties. One district serves five municipalities; other suburban municipalities are fragmented into as many as six school districts. Nor is there any apparent state policy with regard to the size of school districts, as they now range from 2,000 to 5,000 students. Centralized state control manifests itself in practice as well as in theory. The State controls the financing of education in several ways. The legislature contributes a substantial portion of most school districts' operating budgets with funds appropriated from the State's General Fund revenues raised through statewide taxation.[6] The State's power over the purse can be and is in fact used to enforce the State's powers over local districts.[7] In addition, although local districts obtain funds through local property taxation, the State has assumed the responsibility to ensure equalized property valuations throughout the State.[8] The State also establishes *796 standards for teacher certification and teacher tenure;[9] determines part of the required curriculum;[10] sets the minimum school term;[11] approves bus routes, equipment, and drivers;[12] approves textbooks;[13] and establishes procedures for student discipline.[] The State Superintendent of Public Instruction and the State Board of have the power to remove local school board members from office for neglect of their duties.[] Most significantly for present purposes, the State has wide-ranging powers to consolidate and merge school districts, even without the consent of the districts themselves or of the local citizenry.[] See, e. g., Attorney General ex rel. 92 N.W. 9 aff'd, Indeed, recent years have witnessed an accelerated program of school district consolidations, mergers, and annexations, many of which were state imposed. Whereas the State had 7,362 local districts in 1912, the number had been reduced to 1,438 in 1964 and to 738 in 1968.[17] By June only 608 school districts remained. Furthermore, the State has broad powers to transfer property from one district to another, again without the consent of the local school districts affected by the transfer.[18] See, e. g., School District * of the City of Lansing v. State Board of Imlay Township District v. State Board of 102 N.W.2d 7 Whatever may be the history of public education in other parts of our Nation, it simply flies in the face of reality to say, as does the majority, that in Michigan, "[n]o single tradition in public education is more deeply rooted than local control over the operation of schools" Ante, at 741. As the State's Supreme Court has said: "We have repeatedly held that education in this State is not a matter of local concern, but belongs to the State at large." 1 N.W. 905, See also 343 Mich. 9, ; Van Mich. 241, (19); Child Welfare Society of 2 Mich. Indeed, a study prepared for the 1961 Michigan Constitutional Convention noted that the Michigan Constitution's articles on education had resulted in "the establishment of a state system of education in contrast to a series of local school systems." Elementary and Secondary and the Michigan Constitution, Michigan Constitutional Convention Studies 1 (1961). In sum, several factors in this case coalesce to support the District Court's ruling that it was the State of Michigan itself, not simply the Detroit Board of which bore the obligation of curing the condition of segregation within the Detroit city schools. The actions of the State itself directly contributed to Detroit's segregation. Under the Fourteenth Amendment, the State is ultimately responsible for the actions of its local agencies. And, finally, given the structure of Michigan's educational system, Detroit's segregation cannot be *798 viewed as the problem of an independent and separate entity. Michigan operates a single statewide system of education, a substantial part of which was shown to be segregated in this case. B What action, then, could the District Court require the State to take in order to cure Detroit's condition of segregation? Our prior cases have not minced words as to what steps responsible officials and agencies must take in order to remedy segregation in the public schools. Not only must distinctions on the basis of race be terminated for the future, but school officials are also "clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." See also Lee v. Macon Board of (MD Ala.), aff'd sub nom. 389 U.S. Negro students are not only entitled to neutral nondiscriminatory treatment in the future. They must receive "what Brown promised them: a school system in which all vestiges of enforced racial segregation have been eliminated." See also These remedial standards are fully applicable not only to school districts where a dual system was compelled by statute, but also where, as here, a dual system was the product of purposeful and intentional state action. See 413 U. S., at 0-1. After examining three plans limited to the city of Detroit, the District Court correctly concluded that none would eliminate root and branch the vestiges of *799 unconstitutional segregation. The plans' effectiveness, of course, had to be evaluated in the context of the District Court's findings as to the extent of segregation in the Detroit city schools. As indicated earlier, the most essential finding was that Negro children in Detroit had been confined by intentional acts of segregation to a growing core of Negro schools surrounded by a receding ring of white schools.[19] Thus, in of Detroit's 251 *800 regular-attendance schools, 100 were 90% or more white and 71 were 90% or more Negro. In 1970, of Detroit's 2 regular-attendance schools, 69 were 90% or more white and 133 were 90% or more Negro. While in 68% of all schools were 90% or more one race, by 1970, 71.6% of the schools fell into that category. The growing core of all-Negro schools was further evidenced in total school district population figures. In the Detroit system had 46% Negro students and 54% white students, but by 1970, 64% of the students were Negro and only 36% were white. This increase in the proportion of Negro students was the highest of any major Northern city. It was with these figures in the background that the District Court evaluated the adequacy of the three Detroit-only plans submitted by the parties. Plan A, proposed by the Detroit Board of desegregated the high schools and about a fifth of the middle-level schools. It was deemed inadequate, however, because it did not desegregate elementary schools and left the middle-level schools not included in the plan more segregated than ever. Plan C, also proposed by the Detroit Board, was deemed inadequate because it too covered only some grade levels and would leave elementary schools segregated. Plan B, the plaintiffs' plan, though requiring the transportation of 82,000 pupils and the acquisition of 900 school buses, would make little *801 headway in rooting out the vestiges of segregation. To begin with, because of practical limitations, the District Court found that the plan would leave many of the Detroit city schools 75% to 90% Negro. More significantly, the District Court recognized that in the context of a community which historically had a school system marked by rigid de jure segregation, the likely effect of a Detroit-only plan would be to "change a school system which is now Black and White to one that would be perceived as Black" The result of this changed perception, the District Court found, would be to increase the flight of whites from the city to the outlying suburbs, compounding the effects of the present rate of increase in the proportion of Negro students in the Detroit system. Thus, even if a plan were adopted which, at its outset, provided in every school a 65% Negro-35% white racial mix in keeping with the Negro-white proportions of the total student population, such a system would, in short order, devolve into an all-Negro system. The net result would be a continuation of the all-Negro schools which were the hallmarks of Detroit's former dual system of one-race schools. Under our decisions, it was clearly proper for the District Court to take into account the so-called "white flight" from the city schools which would be forthcoming from any Detroit-only decree. The court's prediction of white flight was well supported by expert testimony based on past experience in other cities undergoing desegregation relief. We ourselves took the possibility of white flight into account in evaluating the effectiveness of a desegregation plan in where we relied on the District Court's finding that if the city of were allowed to withdraw from the existing system, leaving a system with a higher proportion of Negroes, it " `may be anticipated that the proportion *802 of whites in county schools may drop as those who can register in private academies'" One cannot ignore the white-flight problem, for where legally imposed segregation has been established, the District Court has the responsibility to see to it not only that the dual system is terminated at once but also that future events do not serve to perpetuate or re-establish segregation. See See also n. 4; 391 U.S. 4 We held in that where de jure segregation is shown, school authorities must make "every effort to achieve the greatest possible degree of actual desegregation." This is the operative standard re-emphasized in If these words have any meaning at all, surely it is that school authorities must, to the extent possible, take all practicable steps to ensure that Negro and white children in fact go to school together. This is, in the final analysis, what desegregation of the public schools is all about. Because of the already high and rapidly increasing percentage of Negro students in the Detroit system, as well as the prospect of white flight, a Detroit-only plan simply has no hope of achieving actual desegregation. Under such a plan white and Negro students will not go to school together. Instead, Negro children will continue to attend all-Negro schools. The very evil that Brown I was aimed at will not be cured, but will be perpetuated for the future. Racially identifiable schools are one of the primary vestiges of state-imposed segregation which an effective desegregation decree must attempt to eliminate. In for example, we held that "[t]he district judge or school authorities will thus necessarily be concerned with the elimination of one-race schools." 402 *. There is "a presumption," we stated, "against schools that are substantially disproportionate in their racial composition." And in evaluating the effectiveness of desegregation plans in prior cases, we ourselves have considered the extent to which they discontinued racially identifiable schools. See, e. g., For a principal end of any desegregation remedy is to ensure that it is no longer "possible to identify a `white school' or a `Negro school.' " The evil to be remedied in the dismantling of a dual system is the "[r]acial identification of the system's schools." The goal is a system without white schools or Negro schoolsÔÇöa system with "just schools." A school authority's remedial plan or a district court's remedial decree is to be judged by its effectiveness in achieving this end. See ; ; We cautioned in of course, that the dismantling of a segregated school system does not mandate any particular racial We also concluded that a remedy under which there would remain a small number of racially identifiable schools was only presumptively inadequate and might be justified. But this is a totally different case. The flaw of a Detroit-only decree is not that it does not reach some ideal degree of racial balance or mixing. It simply does not promise to achieve actual desegregation at all. It is one thing to have a system where a small number of students remain in racially identifiable schools. It is something else entirely to have a system where all students continue to attend such schools. The continued racial identifiability of the Detroit schools under a Detroit-only remedy is not simply a reflection of their high percentage of Negro students. *804 What is or is not a racially identifiable vestige of de jure segregation must necessarily depend on several factors. Cf. Foremost among these should be the relationship between the schools in question and the neighboring community. For these purposes the city of Detroit and its surrounding suburbs must be viewed as a single community. Detroit is closely connected to its suburbs in many ways, and the metropolitan area is viewed as a single cohesive unit by its residents. About 40% of the residents of the two suburban counties included in the desegregation plan work in Wayne in which Detroit is situated. Many residents of the city work in the suburbs. The three counties participate in a wide variety of cooperative governmental ventures on a metropolitan-wide basis, including a metropolitan transit system, park authority, water and sewer system, and council of governments. The Federal Government has classified the tri-county area as a Standard Metropolitan Statistical Area, indicating that it is an area of "economic and social integration." United States v. Connecticut National Bank, ante, at 670. Under a Detroit-only decree, Detroit's schools will clearly remain racially identifiable in comparison with neighboring schools in the metropolitan community. Schools with 65% and more Negro students will stand in sharp and obvious contrast to schools in neighboring districts with less than 2% Negro enrollment. Negro students will continue to perceive their schools as segregated educational facilities and this perception will only be increased when whites react to a Detroit-only decree by fleeing to the suburbs to avoid integration. School district lines, however innocently drawn, will surely be perceived as fences to separate the races when, under a Detroit-only decree, white parents withdraw their children *805 from the Detroit city schools and move to the suburbs in order to continue them in all-white schools. The message of this action will not escape the Negro children in the city of Detroit. See It will be of scant significance to Negro children who have for years been confined by de jure acts of segregation to a growing core of all-Negro schools surrounded by a ring of all-white schools that the new dividing line between the races is the school district boundary. Nor can it be said that the State is free from any responsibility for the disparity between the racial makeup of Detroit and its surrounding suburbs. The State's creation, through de jure acts of segregation, of a growing core of all-Negro schools inevitably acted as a magnet to attract Negroes to the areas served by such schools and to deter them from settling either in other areas of the city or in the suburbs. By the same token, the growing core of all-Negro schools inevitably helped drive whites to other areas of the city or to the suburbs. As we recognized in : "People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods [Action taken] to maintain the separation of the races with a minimum departure from the formal principles of `neighborhood zoning' does more than simply influence the short-run composition of the student body It may well promote segregated residential patterns which, when combined with `neighborhood zoning,' further lock the school system into the mold of separation of the races. Upon a proper *806 showing a district court may consider this in fashioning a remedy." 402 U.S., See also 413 U. S., at 2. The rippling effects on residential patterns caused by purposeful acts of segregation do not automatically subside at the school district border. With rare exceptions, these effects naturally spread through all the residential neighborhoods within a metropolitan area. See at 2-3. The State must also bear part of the blame for the white flight to the suburbs which would be forthcoming from a Detroit-only decree and would render such a remedy ineffective. Having created a system where whites and Negroes were intentionally kept apart so that they could not become accustomed to learning together, the State is responsible for the fact that many whites will react to the dismantling of that segregated system by attempting to flee to the suburbs. Indeed, by limiting the District Court to a Detroit-only remedy and allowing that flight to the suburbs to succeed, the Court today allows the State to profit from its own wrong and to perpetuate for years to come the separation of the races it achieved in the past by purposeful state action. The majority asserts, however, that involvement of outlying districts would do violence to the accepted principle that "the nature of the violation determines the scope of the remedy." See ante, at 744-745. Not only is the majority's attempt to find in this single phrase the answer to the complex and difficult questions presented in this case hopelessly simplistic, but more important, the Court reads these words in a manner which perverts their obvious meaning. The nature of a violation determines the scope of the remedy simply because the function of any remedy is to cure the violation to which it is addressed. In school segregation *807 cases, as in other equitable causes, a remedy which effectively cures the violation is what is required. See 391 U. S., ; 402 U. S., No more is necessary, but we can tolerate no less. To read this principle as barring a district court from imposing the only effective remedy for past segregation and remitting the court to a patently ineffective alternative is, in my view, to turn a simple commonsense rule into a cruel and meaningless paradox. Ironically, by ruling out an interdistrict remedy, the only relief which promises to cure segregation in the Detroit public schools, the majority flouts the very principle on which it purports to rely. Nor should it be of any significance that the suburban school districts were not shown to have themselves taken any direct action to promote segregation of the races. Given the State's broad powers over local school districts, it was well within the State's powers to require those districts surrounding the Detroit school district to participate in a metropolitan remedy. The State's duty should be no different here than in cases where it is shown that certain of a State's voting districts are malapportioned in violation of the Fourteenth Amendment. See Overrepresented electoral districts are required to participate in reapportionment although their only "participation" in the violation was to do nothing about it. Similarly, electoral districts which themselves meet representation standards must frequently be redrawn as part of a remedy for other over- and under-inclusive districts. No finding of fault on the part of each electoral district and no finding of a discriminatory effect on each district is a prerequisite to its involvement in the constitutionally required remedy. By the same logic, no finding of fault on the part of the suburban school districts in this case *808 and no finding of a discriminatory effect on each district should be a prerequisite to their involvement in the constitutionally required remedy. It is the State, after all, which bears the responsibility under Brown of affording a nondiscriminatory system of education. The State, of course, is ordinarily free to choose any decentralized framework for education it wishes, so long as it fulfills that Fourteenth Amendment obligation. But the State should no more be allowed to hide behind its delegation and compartmentalization of school districts to avoid its constitutional obligations to its children than it could hide behind its political subdivisions to avoid its obligations to its voters. See also It is a hollow remedy indeed where "after supposed `desegregation' the schools remained segregated in fact." We must do better than " `substitute one segregated school system for another segregated school system.' " To suggest, as does the majority, that a Detroit-only plan somehow remedies the effects of de jure segregation of the races is, in my view, to make a solemn mockery of Brown I's holding that separate educational facilities are inherently unequal and of 's unequivocal mandate that the answer to de jure segregation is the greatest possible degree of actual desegregation. I One final set of problems remains to be considered. We recognized in Brown and have re-emphasized ever since, that in fashioning relief in desegregation cases, "the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for *809 adjusting and reconciling public and private needs." Brown 349 U. S., at See also Though not resting its holding on this point, the majority suggests that various equitable considerations militate against interdistrict relief. The Court, for example, refers to financing and administrative problems, the logistical problems attending large-scale transportation of students, and the prospect of the District Court's becoming a "de facto `legislative authority' " and " `school superintendent' for the entire area." Ante, at 743-744. The entangling web of problems woven by the Court, however, appears on further consideration to be constructed of the flimsiest of threads. I deal first with the last of the problems posed by the CourtÔÇöthe specter of the District Court qua "school superintendent" and "legislative authority"ÔÇöfor analysis of this problem helps put the other issues in proper perspective. Our cases, of course, make clear that the initial responsibility for devising an adequate desegregation plan belongs with school authorities, not with the District Court. The court's primary role is to review the adequacy of the school authorities' efforts and to substitute its own plan only if and to the extent they default. See 402 U. S., ; 391 U. S., Contrary to the majority's suggestions, the District Judge in this case consistently adhered to these procedures and there is every indication that he would have continued to do so. After finding de jure segregation the court ordered the parties to submit proposed Detroit-only plans. The state defendants were also ordered to submit a proposed metropolitan plan extending beyond Detroit's boundaries. As the District Court stated, "the State defendants bear the initial burden of coming forward with a proposal that promises to work." The state defendants defaulted in this obligation, however. *810 Rather than submit a complete plan, the State Board of submitted six proposals, none of which was in fact a desegregation plan. It was only upon this default that the District Court began to take steps to develop its own plan. Even then the District Court maximized school authority participation by appointing a panel representing both plaintiffs and defendants to develop a plan. Pet. App. 99a-100a. Furthermore, the District Court still left the state defendants the initial responsibility for developing both interim and final financial and administrative arrangements to implement interdistrict relief. at 104a-105a. The Court of Appeals further protected the interests of local school authorities by ensuring that the outlying suburban districts could fully participate in the proceedings to develop a metropolitan remedy. These processes have not been allowed to run their course. No final desegregation plan has been proposed by the panel of experts, let alone approved by the District Court. We do not know in any detail how many students will be transported to effect a metropolitan remedy, and we do not know how long or how far they will have to travel. No recommendations have yet been submitted by the state defendants on financial and administrative arrangements. In sum, the practicality of a final metropolitan plan is simply not before us at the present time. Since the State and the panel of experts have not yet had an opportunity to come up with a workable remedy, there is no foundation for the majority's suggestion of the impracticality of interdistrict relief. Furthermore, there is no basis whatever for assuming that the District Court will inevitably be forced to assume the role of legislature or school superintendent.[]*811 Were we to hold that it was its constitutional duty to do so, there is every indication that the State of Michigan would fulfill its obligation and develop a plan which is workable, administrable, financially sound, and, most important, in the best interest of quality education for all of the children in the Detroit metropolitan area. Since the Court chooses, however, to speculate on the feasibility of a metropolitan plan, I feel constrained to comment on the problem areas it has targeted. To begin with, the majority's questions concerning the practicality of consolidation of school districts need not give us pause. The State clearly has the power, under existing law, to effect a consolidation if it is ultimately determined that this offers the best prospect for a workable and stable desegregation plan. See at 796-. And given the 1,000 or so consolidations of school districts which have taken place in the past, it is hard to believe that the State has not already devised means of solving most, if not all, of the practical problems which the Court suggests consolidation would entail. Furthermore, the majority ignores long-established Michigan procedures under which school districts may enter into contractual agreements to educate their pupils in other districts using state or local funds to finance non-resident education.[21] Such agreements could form an *812 easily administrable framework for interdistrict relief short of outright consolidation of the school districts. The District Court found that interdistrict procedures like these were frequently used to provide special educational services for handicapped children, and extensive statutory provision is also made for their use in vocational education.[22] Surely if school districts are willing to engage in interdistrict programs to help those unfortunate children crippled by physical or mental handicaps, school districts can be required to participate in an interdistrict program to help those children in the city of Detroit whose educations and very futures have been crippled by purposeful state segregation. Although the majority gives this last matter only fleeting reference, it is plain that one of the basic emotional and legal issues underlying these cases concerns the propriety of transportation of students to achieve desegregation. While others may have retreated from its standards, see, e. g., I continue to adhere to the guidelines set forth in on this issue. See -31. And though no final desegregation plan is presently before us, to the extent the outline of such a plan is now visible, it is clear that the transportation it would entail will be fully consistent with these guidelines. First of all, the metropolitan plan would not involve the busing of substantially more students than already ride buses. The District Court found that, statewide, 35%-40% of all students already arrive at school on a bus. In those school districts in the tri-county Detroit metropolitan area eligible for state reimbursement of transportation costs, 42%-52% of all students rode buses to school. In the tri-county areas as a whole, approximately *813000 pupils arrived at school on some type of bus, with about 60,000 of these apparently using regular public transit. In comparison, the desegregation plan, according to its present rough outline, would involve the transportation of 310,000 students, about 40% of the population within the desegregation area. With respect to distance and amount of time traveled, 17 of the outlying school districts involved in the plan are contiguous to the Detroit district. The rest are all within 8 miles of the Detroit city limits. The trial court, in defining the desegregation area, placed a ceiling of 40 minutes one way on the amount of travel time, and many students will obviously travel for far shorter periods. As to distance, the average statewide bus trip is 8 1/2 miles one way, and in some parts of the tri-county area, students already travel for one and a quarter hours or more each way. In sum, with regard to both the number of students transported and the time and distances involved, the outlined desegregation plan "compares favorably with the transportation plan previously operated" As far as economics are concerned, a metropolitan remedy would actually be more sensible than a Detroit-only remedy. Because of prior transportation aid restrictions, see Detroit largely relied on public transport, at student expense, for those students who lived too far away to walk to school. Since no inventory of school buses existed, a Detroit-only plan was estimated to require the purchase of 900 buses to effectuate the necessary transportation. The tri-county area, in contrast, already has an inventory of 1,800 buses, many of which are now under-utilized. Since increased utilization of the existing inventory can take up much of the increase in transportation involved in the interdistrict remedy, the District Court found that only 350 additional buses would *8 probably be needed, almost two-thirds fewer than a Detroit-only remedy. Other features of an interdistrict remedy bespeak its practicality, such as the possibility of pairing up Negro schools near Detroit's boundary with nearby white schools on the other side of the present school district line. Some disruption, of course, is the inevitable product of any desegregation decree, whether it operates within one district or on an interdistrict basis. As we said in however: "Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided" 402 U.S., at Desegregation is not and was never expected to be an easy task. Racial attitudes ingrained in our Nation's childhood and adolescence are not quickly thrown aside in its middle years. But just as the inconvenience of some cannot be allowed to stand in the way of the rights of others, so public opposition, no matter how strident, cannot be permitted to divert this Court from the enforcement of the constitutional principles at issue in this case. Today's holding, I fear, is more a reflection of a perceived public mood that we have gone far enough in enforcing the Constitution's guarantee of equal justice than it is the product of neutral principles of law. In *8 the short run, it may seem to be the easier course to allow our great metropolitan areas to be divided up each into two citiesÔÇöone white, the other blackÔÇöbut it is a course, I predict, our people will ultimately regret. I dissent.

Justice Breyer

majority

Henderson v. United States

https://www.courtlistener.com/opinion/820903/henderson-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/820903/

2012-016

A federal court of appeals normally will not correct a legal error made in criminal trial court proceedings unless the defendant first brought the error to the trial court’s attention. See United States v. Olano, 507 U.S. 725, 731 (1993). But Federal Rule of Criminal Procedure 52(b), creating an exception to the normal rule, says that “[a] plain error that affects substantial rights may be consid- ered even though it was not brought to the [trial] court’s attention.” (Emphasis added.) The Rule does not say explicitly, however, as of just what time the error must be “plain.” Must the lower court ruling be plainly erroneous as of the time the lower court made the error? Or can an error still count as “plain” if the erroneous nature of that ruling is not “plain” until the time of appellate review? The case before us concerns a District Court’s decision on a substantive legal question that was unsettled at the time the trial court acted, thus foreclosing the possibility that any error could have been “plain” then. Before the case was final and at the time of direct appellate review, however, the question had become settled in the defend- 2 HENDERSON v. UNITED STATES Opinion of the Court ant’s favor, making the trial court’s error “plain”—but not until that later time. In our view, as long as the error was plain as of that later time—the time of appellate review— the error is “plain” within the meaning of the Rule. And the Court of Appeals “may . . . conside[r]” the error even though it was “not brought to the [trial] court’s attention.” Fed. Rule Crim. Proc. 52(b). I In early 2010, Armarcion Henderson, the petitioner, pleaded guilty in Federal District Court to a charge of being a felon in possession of a firearm. 646 F.3d 223, 224 (CA5 2011). The District Judge accepted the plea and, in June 2010, he sentenced Henderson to an above- Guidelines prison term of 60 months. Ibid. The judge entered the longer sentence to “try to help” Henderson by qualifying him for an in-prison drug rehabilitation pro- gram, a program that would provide “the treatment and the counse[l]ing that this defendant needs right now.” App. to Pet. for Cert. 35a, 40a. Henderson’s counsel did not object. Indeed, the judge asked counsel if there was “any reason why that sentence as stated should not be imposed.” Id., at 41a. And counsel replied, “Procedurally, no.” Ibid. Subsequently, Hender- son appealed, claiming, among other things, that the District Court had “plain[ly]” erred in sentencing him to an above-Guidelines prison term solely for rehabilitative purposes. 646 F. 3d, at 224. In 2011, after Henderson was sentenced but before Henderson’s appeal was heard, this Court decided Tapia v. United States, 564 U. S. ___. There, we held that it is error for a court to “impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Id., at ___ (slip op., at 15). Given Tapia, Henderson’s sentence was unlawful, and the District Court’s decision to impose that sentence Cite as: 568 U. S. ____ (2013) 3 Opinion of the Court was erroneous. But, since Henderson’s counsel had not objected in the trial court, the Court of Appeals could not correct the error unless Rule 52(b) applied. The Rule, however, applies only if the error was “plain.” The error was not plain before Tapia; it was plain after Tapia. Thus, the Fifth Circuit had to determine the temporal scope of Rule 52(b)’s words “plain error.” The appeals court decided that Rule 52(b) did not give it the authority to correct the trial court’s error. 646 F. 3d, at 225. The appellate panel pointed out that, “[b]efore Tapia, there was a circuit split on whether a District Court can consider a defendant’s rehabilitative needs to lengthen a sentence.” Ibid. The panel added that the Fifth Circuit had “not pronounced on the question” before Henderson was sentenced. Ibid. Thus, at the time when the District Court reached its decision, the law in that Circuit was unsettled. The Court of Appeals concluded that “Henderson cannot show that the error in his case was plain, . . . because an error is plain only if it was clear under current law at the time of trial.” Ibid. (internal quotation marks omitted). The Fifth Circuit denied rehearing en banc by a divided vote. 665 F.3d 160 (2011) (per curiam) (7 to 10). Hender- son filed a petition for certiorari. And we granted the petition to resolve differences among the Circuits. Com- pare, e.g., United States v. Cordery, 656 F.3d 1103, 1107 (CA10 2011) (time of review), with, e.g., United States v. Mouling, 557 F.3d 658, 664 (CADC 2009) (time of error). II A Is the time for determining “plainness” the time when the error is committed, or can an error be “plain” if it is not plain until the time the error is reviewed? The ques- tion reflects a conflict between two important, here com- peting, legal principles. On the one hand, “ ‘[n]o procedural 4 HENDERSON v. UNITED STATES Opinion of the Court principle is more familiar to this Court than that a consti- tutional right,’ or a right of any other sort, ‘may be for- feited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal hav- ing jurisdiction to determine it.’ ” Olano, 507 U. S., at 731 (quoting Yakus v. United States, 321 U.S. 414, 444 (1944)). This principle favors assessing plainness limited to the time the error was committed. On the other hand, “[t]he general rule . . . is that an appellate court must apply the law in effect at the time it renders its decision.” Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281 (1969). See Ziffrin v. United States, 318 U.S. 73, 78 (1943). Indeed, Chief Justice Marshall wrote long ago: “It is in the general true that the province of an ap- pellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subse- quent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. . . . In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in viola- tion of law, the judgment must be set aside.” United States v. Schooner Peggy, 1 Cranch 103, 110 (1801). This principle favors assessing plainness at the time of review. Rule 52(b) itself makes clear that the first principle is not absolute. Indeed, we have said that a “ ‘rigid and undeviating judicially declared practice under which courts of review would invariably and under all circum- stances decline to consider all questions which had not previously been specifically urged would be out of har- mony with . . . the rules of fundamental justice.’ ” Olano, Cite as: 568 U. S. ____ (2013) 5 Opinion of the Court supra, at 732 (quoting Hormel v. Helvering, 312 U.S. 552, 557 (1941); ellipsis in original). But neither is the second principle absolute. Even where a new rule of law is at issue, Rule 52(b) does not give a court of appeals authority to overlook a failure to object unless an error not only “affect[s] substantial rights” but also “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Olano, supra, at 732 (internal quotation marks omitted; brackets in original). Because the two principles here point in different directions and neither is absolute, we cannot decide this conflict simply by looking to one rather than to the other. The text of Rule 52(b) does not resolve the problem. It does not say that a court of appeals may consider an “error that was plain”—language that would look to the past. Rather, it simply says that a court of appeals may consider “[a] plain error.” And that language leaves the temporal question open. But see infra, at 12. Neither does precedent answer the temporal question— at least not directly. Olano is clearly relevant. There, we said that Rule 52(b) authorizes an appeals court to correct a forfeited error only if (1) there is “an error,” (2) the error is “ plain,” and (3) the error “affect[s] substantial rights.” 507 U. S., at 732 (internal quotation marks omitted). Pointing out that Rule 52 “is permissive, not mandatory,” id., at 735, we added (4) that “the standard that should guide the exercise of remedial discretion under Rule 52(b)” is whether “the error ‘seriously affect[s] the fairness, in- tegrity or public reputation of judicial proceedings,’ ” id., at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936); brackets in original). At the same time, we said that “[w]e need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified.” 507 U. S., at 734. That is the case now before us. Johnson v. United States, 520 U.S. 461 (1997), is also 6 HENDERSON v. UNITED STATES Opinion of the Court relevant. We there considered a trial court’s decision that was clearly correct under Circuit law when made but which, by the time of review, had become plainly errone- ous due to an intervening authoritative legal decision. We concluded that, “where the law at the time of trial was settled and clearly contrary to the law at the time of ap- peal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.” Id., at 468. As in Olano, however, we declined to decide whether that same rule should apply where the law is unsettled at the time of error but plain at the time of review. 520 U. S., at 467–468. As we have said, this is precisely the case now before us. B The text, precedents, and background principles do not directly dictate a result here. But prior precedent has helped to shape current law. And that precedent, read in light of those underlying principles, leads us to interpret Rule 52(b)’s phrase “plain error” as applying at the time of review. Given Johnson, a “time of error” interpretation would prove highly, and unfairly, anomalous. Consider the lay of the post-Johnson legal land: No one doubts that an (un-objected to) error by a trial judge will ordinarily fall within Rule 52(b)’s word “plain” as long as the trial court’s decision was plainly incorrect at the time it was made. E.g., Olano, supra, at 734. That much is common ground. Johnson then adds that, at least in one circumstance, an (un-objected to) error by a trial judge will also fall within Rule 52(b)’s word “plain” even if the judge was not plainly incorrect at the time it was made. That is the circumstance where an error is “plain” even if the trial judge’s decision was plainly correct at the time when it was made but subsequently becomes incorrect based on a change in law. 520 U. S., at 468. And, since by definition the trial judge did not commit plain error at the time of the ruling, Johnson explicitly rejects applying the words Cite as: 568 U. S. ____ (2013) 7 Opinion of the Court “plain error” as of the time when the trial judge acted. Instead, Johnson deems it “enough that an error be ‘plain’ at the time of appellate consideration” for that error to fall within Rule 52(b)’s category of “plain error.” Ibid. But if the Rule’s words “plain error” cover both (1) trial court decisions that were plainly correct at the time when the judge made the decision and (2) trial court decisions that were plainly incorrect at the time when the judge made the decision, then why should they not also cover (3) cases in the middle—i.e., where the law at the time of the trial judge’s decision was neither clearly correct nor incorrect, but unsettled? To hold to the contrary would bring about unjustifi- ably different treatment of similarly situated individuals. Imagine three virtually identical defendants, each from a different circuit, each sentenced in January to identical long prison terms, and each given those long sentences for the same reason, namely to obtain rehabilitative treat- ment. Imagine that none of them raises an objection. In June, the Supreme Court holds this form of sentencing unlawful. And, in December, each of the three different circuits considers the claim that the trial judge’s January- imposed prison term constituted a legal error. Imagine further that in the first circuit the law in January made the trial court’s decision clearly lawful as of the time when the judge made it; in the second circuit, the law in Janu- ary made the trial court’s decision clearly unlawful as of the time when the judge made it; and in the third circuit, the law in January was unsettled. To apply Rule 52(b)’s words “plain error” as of the time of appellate review would treat all three defendants alike. It would permit all three to go on to argue to the appellate court that the trial court error affected their “substantial rights” and “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Olano, supra, at 732 (internal quotation marks omitted). To interpret 8 HENDERSON v. UNITED STATES Opinion of the Court “plain error” differently, however, would treat these three virtually identical defendants differently, allowing only the first two defendants, but not the third defendant, po- tentially to qualify for Rule 52(b) relief. All three defen- dants suffered from legal error; all three failed to object; and all three would benefit from the new legal interpre- tation. What reason is there to give two of these three defendants the benefits of a new rule of law, but not the third? Cf. Schooner Peggy, 1 Cranch, at 110. There is no practical ground for making this distinction. To the contrary, to distinguish and treat more harshly cases where a circuit’s law was unclear would simply promote arguments about whether the law of the circuit initially was unclear (rather than clearly settled one way or the other). And these arguments are likely to be par- ticularly difficult to resolve where what is at issue is a matter of legal degree, not kind. To what extent, for ex- ample, did a prosecutor’s closing argument go too far down the road of prejudice? A “time of error” interpretation also would require courts of appeals to play a kind of temporal ping-pong, looking at the law that now is to decide whether “error” exists, looking at the law that then was to decide whether the error was “plain,” and looking at the circum- stances that now are to decide whether the defendant has satisfied Olano’s third and fourth criteria. Thus, the “time of error” interpretation would make the appellate process yet more complex and time consuming. We recognize, as the Solicitor General points out, that a “time of error” rule, even if confined to instances in which the law is uncertain, would in such cases provide an added incentive to counsel to call the lower court judge’s atten- tion to the matter at a time when that judge could quickly take remedial action. And, even if no remedy is offered, the lower court judge’s analysis may help the court of appeals to decide the legal question. See Brief for United States 30–32. See also Mouling, 557 F. 3d, at 664. We Cite as: 568 U. S. ____ (2013) 9 Opinion of the Court disagree with the Solicitor General, however, in that we also believe that, in the present context, any added incen- tive has little, if any, practical importance. That is because counsel normally has other good reasons for calling a trial court’s attention to potential error—for example, it is normally to the advantage of counsel and his client to get the error speedily corrected. And, even where that is not so, counsel cannot rely upon the “plain error” rule to make up for a failure to object at trial. After all, that rule will help only if (1) the law changes in the de- fendant’s favor, (2) the change comes after trial but before the appeal is decided, (3) the error affected the defendant’s “substantial rights,” and (4) the error “seriously affect[ed] the fairness, integrity or public reputation of judicial pro- ceedings.” Olano, 507 U. S., at 732 (internal quotation marks omitted). If there is a lawyer who would deliberately forgo objection now because he perceives some slightly expanded chance to argue for “plain error” later, we sus- pect that, like the unicorn, he finds his home in the imagi- nation, not the courtroom. The upshot is that a “time of review” interpretation furthers the basic Schooner Peggy principle that “an appel- late court must apply the law in effect at the time it ren- ders its decision.” Thorpe, 393 U. S., at 281. It works little, if any, practical harm upon the competing adminis- trative principle that insists that counsel call a potential error to the trial court’s attention. And, it is consistent with the basic purpose of Rule 52(b), namely the creation of a fairness-based exception to the general requirement that an objection be made at trial. See supra, at 4. At the same time, the competing “time of error” rule is out of step with our precedents, creates unfair and anoma- lous results, and works practical administrative harm. Thus, in the direct appeals of cases that are not yet final, we consider the “time of review” interpretation the better reading of Rule 52’s words “plain error.” 10 HENDERSON v. UNITED STATES Opinion of the Court III The Solicitor General makes several other important arguments, but they fail to lead us to a different conclu- sion. First, the Government argues that the purpose of plain-error review is to ensure “the integrity of the [trial] proceedings.” Brief for United States 33–34. In turn, the argument goes, appellate courts should consider only (1) errors that counsel called to the court’s attention and (2) errors that the trial court should have known about regardless, namely those that then were plain. Expanding on this theme, one Court of Appeals described plain error as “error that is so clear-cut, so obvious, a competent district judge should be able to avoid it without benefit of objection. When the state of the law is unclear at trial and only becomes clear as a result of later authority, the Dis- trict Court’s error is perforce not plain; we expect district judges to be knowledgeable, not clairvoyant.” United States v. Turman, 122 F.3d 1167, 1170 (CA9 1997) (cita- tion omitted). This approach, however, overlooks the way in which the plain-error rule—Rule 52(b)—restricts the appellate court’s authority to correct an error to those errors that would, in fact, seriously affect the fairness, integrity, or public reputation of judicial proceedings. Cf. United States v. Farrell, 672 F.3d 27, 36–37 (CA1 2012) (consid- ering the issue from this perspective). And the approach runs headlong into Johnson. The error in Johnson was not an error that the District Court should have known about at the time. It was the very opposite: The District Judge should have known that his ruling (at the time he made it) was not error; and perhaps not even clairvoyance could have led him to hold to the contrary. Cf. Khan v. State Oil Co., 93 F.3d 1358, 1362–1364 (CA7 1996) (regis- tering disagreement with this Court’s precedent while following it nonetheless); State Oil Co. v. Khan, 522 U.S. 3, 20–22 (1997) (approving of that approach). Cite as: 568 U. S. ____ (2013) 11 Opinion of the Court Rather, Johnson makes clear that plain-error review is not a grading system for trial judges. It has broader pur- poses, including in part allowing courts of appeals better to identify those instances in which the application of a new rule of law to cases on appeal will meet the demands of fairness and judicial integrity. See Johnson, 520 U. S., at 467–468; Olano, 507 U. S., at 732. Second, the Government fears that our holding will lead to too many claims of “plain error.” Brief for United States 26–28. After all, courts of appeals, not just the Supreme Court, clarify the law through their opinions. When a court of appeals does so, will not all defendants, including many who never objected in the court below, insist that the court of appeals now judge their cases according to the new rule? And will “plain error” in such cases not then disappear, leaving only simple “error” in its stead? The answer to this claim is that a new rule of law, set forth by an appellate court, cannot automatically lead that court to consider all contrary determinations by trial courts plainly erroneous. Many such new rules, as we have pointed out, concern matters of degree, not kind. And a lower court ruling about such matters (say, the nature of a closing argument), even if now wrong (in light of the new appellate holding), is not necessarily plainly wrong. The Rule’s requirement that an error be “plain” means that lower court decisions that are questionable but not plainly wrong (at time of trial or at time of appeal) fall outside the Rule’s scope. And there are other reasons for concluding that our holding will not open any “plain error” floodgates. As we have said, the Rule itself contains other screening criteria. The error must have affected the defendant’s substantial rights and it must have seriously affected the fairness, integrity, or public reputation of judicial proceedings. Olano, supra, at 732. When courts apply these latter criteria, the fact that a defendant did not object, despite 12 HENDERSON v. UNITED STATES Opinion of the Court unsettled law, may well count against the grant of Rule 52(b) relief. Moreover, the problem here arises only when there is a new rule of law, when the law was previously unsettled, and when the District Court reached a decision contrary to the subsequent rule. These limitations may well explain the absence of any account before us of “plain error” inundation in those Circuits that already follow the interpretation we now adopt. See, e.g., Farrell, supra, at 36–37; Cordery, 656 F. 3d, at 1107; United States v. Gar- cia, 587 F.3d 509, 519–520 (CA2 2009); United States v. Ross, 77 F.3d 1525, 1539 (CA7 1996). Finally, the Government points out that Rule 52(b) is written mostly in the past tense. It says that a “plain error . . . may be considered even though it was not brought to the court’s attention.” (Emphasis added.) This use of the past tense, the Government argues, refers to a “plain error” that was not “brought to the court’s atten- tion” back then, when the error occurred. And that lin- guistic fact, in turn, means that the error must have been plain at that time. Brief for United States 18–22. Whatever the merits of this textual argument, however, Johnson forecloses it. The error at issue in that case was not even an error, let alone plain, at the time when the defendant might have “brought [it] to the court’s atten- tion.” Nonetheless, we found the error to be “plain error.” We cannot square the Government’s textual argument with our holding in that case. IV For these reasons, we conclude that whether a legal question was settled or unsettled at the time of trial, “it is enough that an error be ‘plain’ at the time of appellate consideration” for “[t]he second part of the [four-part] Olano test [to be] satisfied.” Johnson, supra, at 468. The contrary judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent Cite as: 568 U. S. ____ (2013) 13 Opinion of the Court with this opinion. It is so ordered. Cite as: 568 U. S. ____ (2013) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 11–9307 _________________ ARMARCION D. HENDERSON, PETITIONER v.

A federal court of appeals normally will not correct a legal error made in criminal trial court proceedings unless the defendant first brought the error to the trial court’s attention. See United (1993). But Federal Rule of Criminal Procedure 52(b), creating an exception to the normal rule, says that “[a] plain error that affects substantial rights may be consid- ered even though it was not brought to the [trial] court’s attention.” (Emphasis added.) The Rule does not say explicitly, however, as of just what time the error must be “plain.” Must the lower court ruling be plainly erroneous as of the time the lower court made the error? Or can an error still count as “plain” if the erroneous nature of that ruling is not “plain” until the time of appellate review? The case before us concerns a District Court’s decision on a substantive legal question that was unsettled at the time the trial court acted, thus foreclosing the possibility that any error could have been “plain” then. Before the case was final and at the time of direct appellate review, however, the question had become settled in the defend- 2 HENDERSON v. UNITED STATES Opinion of the Court ant’s favor, making the trial court’s error “plain”—but not until that later time. In our view, as long as the error was plain as of that later time—the time of appellate review— the error is “plain” within the meaning of the Rule. And the Court of Appeals “may conside[r]” the error even though it was “not brought to the [trial] court’s attention.” Fed. Rule Crim. Proc. 52(b). I In early 2010, Armarcion Henderson, the petitioner, pleaded guilty in Federal District Court to a charge of being a felon in possession of a firearm. 224 The District Judge accepted the plea and, in June 2010, he sentenced Henderson to an above- Guidelines prison term of 60 months. The judge entered the longer sentence to “try to help” Henderson by qualifying him for an in-prison drug rehabilitation pro- gram, a program that would provide “the treatment and the counse[l]ing that this defendant needs right now.” App. to Pet. for Cert. 35a, 40a. Henderson’s counsel did not object. Indeed, the judge asked counsel if there was “any reason why that sentence as stated should not be imposed.” 1a. And counsel replied, “Procedurally, no.” Subsequently, Hender- son appealed, claiming, among other things, that the District Court had “plain[ly]” erred in sentencing him to an above-Guidelines prison term solely for rehabilitative In after Henderson was sentenced but before Henderson’s appeal was heard, this Court decided Tapia v. United States, 564 U. S. There, we held that it is error for a court to “impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” at (slip op., at 15). Given Tapia, Henderson’s sentence was unlawful, and the District Court’s decision to impose that sentence Cite as: 568 U. S. (2013) 3 Opinion of the Court was erroneous. But, since Henderson’s counsel had not objected in the trial court, the Court of Appeals could not correct the error unless Rule 52(b) applied. The Rule, however, applies only if the error was “plain.” The error was not plain before Tapia; it was plain after Tapia. Thus, the Fifth Circuit had to determine the temporal scope of Rule 52(b)’s words “plain error.” The appeals court decided that Rule 52(b) did not give it the authority to correct the trial court’s error. 646 F. 3d, at 225. The appellate panel pointed out that, “[b]efore Tapia, there was a circuit split on whether a District Court can consider a defendant’s rehabilitative needs to lengthen a sentence.” The panel added that the Fifth Circuit had “not pronounced on the question” before Henderson was sentenced. Thus, at the time when the District Court reached its decision, the law in that Circuit was unsettled. The Court of Appeals concluded that “Henderson cannot show that the error in his case was plain, because an error is plain only if it was clear under current law at the time of trial.” (internal quotation marks omitted). The Fifth Circuit denied rehearing en banc by a divided vote. (7 to 10). Hender- son filed a petition for certiorari. And we granted the petition to resolve differences among the Circuits. Com- pare, e.g., United (time of review), with, e.g., United States v. II A Is the time for determining “plainness” the time when the error is committed, or can an error be “plain” if it is not plain until the time the error is reviewed? The ques- tion reflects a conflict between two important, here com- peting, legal principles. On the one hand, “ ‘[n]o procedural 4 HENDERSON v. UNITED STATES Opinion of the Court principle is more familiar to this Court than that a consti- tutional right,’ or a right of any other sort, ‘may be for- feited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal hav- ing jurisdiction to determine it.’ ” 507 U. S., at (quoting (1944)). This principle favors assessing plainness limited to the time the error was committed. On the other hand, “[t]he general rule is that an appellate court must apply the law in effect at the time it renders its decision.” See Indeed, Chief Justice Marshall wrote long ago: “It is in the general true that the province of an ap- pellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subse- quent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in viola- tion of law, the judgment must be set aside.” United This principle favors assessing plainness at the time of Rule 52(b) itself makes clear that the first principle is not absolute. Indeed, we have said that a “ ‘rigid and undeviating judicially declared practice under which courts of review would invariably and under all circum- stances decline to consider all questions which had not previously been specifically urged would be out of har- mony with the rules of fundamental justice.’ ” Cite as: 568 U. S. (2013) 5 Opinion of the Court (quoting 557 (1941); ellipsis in original). But neither is the second principle absolute. Even where a new rule of law is at issue, Rule 52(b) does not give a court of appeals authority to overlook a failure to object unless an error not only “affect[s] substantial rights” but also “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” (internal quotation marks omitted; brackets in original). Because the two principles here point in different directions and neither is absolute, we cannot decide this conflict simply by looking to one rather than to the other. The text of Rule 52(b) does not resolve the problem. It does not say that a court of appeals may consider an “error that was plain”—language that would look to the past. Rather, it simply says that a court of appeals may consider “[a] plain error.” And that language leaves the temporal question open. But see infra, at 12. Neither does precedent answer the temporal question— at least not directly. is clearly relevant. There, we said that Rule 52(b) authorizes an appeals court to correct a forfeited error only if (1) there is “an error,” (2) the error is “ plain,” and (3) the error “affect[s] substantial rights.” 507 U. S., Pointing out that Rule 52 “is permissive, not mandatory,” we added (4) that “the standard that should guide the exercise of remedial discretion under Rule 52(b)” is whether “the error ‘seriously affect[s] the fairness, in- tegrity or public reputation of judicial proceedings,’ ” at 736 (quoting United 160 (1936); brackets in original). At the same time, we said that “[w]e need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified.” That is the case now before us. is also 6 HENDERSON v. UNITED STATES Opinion of the Court relevant. We there considered a trial court’s decision that was clearly correct under Circuit law when made but which, by the time of review, had become plainly errone- ous due to an intervening authoritative legal decision. We concluded that, “where the law at the time of trial was settled and clearly contrary to the law at the time of ap- peal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.” As in however, we declined to decide whether that same rule should apply where the law is unsettled at the time of error but plain at the time of –468. As we have said, this is precisely the case now before us. B The text, precedents, and background principles do not directly dictate a result here. But prior precedent has helped to shape current And that precedent, read in light of those underlying principles, leads us to interpret Rule 52(b)’s phrase “plain error” as applying at the time of Given a “time of error” interpretation would prove highly, and unfairly, anomalous. Consider the lay of the post- legal land: No one doubts that an (un-objected to) error by a trial judge will ordinarily fall within Rule 52(b)’s word “plain” as long as the trial court’s decision was plainly incorrect at the time it was made. E.g., That much is common ground. then adds that, at least in one circumstance, an (un-objected to) error by a trial judge will also fall within Rule 52(b)’s word “plain” even if the judge was not plainly incorrect at the time it was made. That is the circumstance where an error is “plain” even if the trial judge’s decision was plainly correct at the time when it was made but subsequently becomes incorrect based on a change in 520 U. S., And, since by definition the trial judge did not commit plain error at the time of the ruling, explicitly rejects applying the words Cite as: 568 U. S. (2013) 7 Opinion of the Court “plain error” as of the time when the trial judge acted. Instead, deems it “enough that an error be ‘plain’ at the time of appellate consideration” for that error to fall within Rule 52(b)’s category of “plain error.” But if the Rule’s words “plain error” cover both (1) trial court decisions that were plainly correct at the time when the judge made the decision and (2) trial court decisions that were plainly incorrect at the time when the judge made the decision, then why should they not also cover (3) cases in the middle—i.e., where the law at the time of the trial judge’s decision was neither clearly correct nor incorrect, but unsettled? To hold to the contrary would bring about unjustifi- ably different treatment of similarly situated individuals. Imagine three virtually identical defendants, each from a different circuit, each sentenced in January to identical long prison terms, and each given those long sentences for the same reason, namely to obtain rehabilitative treat- ment. Imagine that none of them raises an objection. In June, the Supreme Court holds this form of sentencing unlawful. And, in December, each of the three different circuits considers the claim that the trial judge’s January- imposed prison term constituted a legal error. Imagine further that in the first circuit the law in January made the trial court’s decision clearly lawful as of the time when the judge made it; in the second circuit, the law in Janu- ary made the trial court’s decision clearly unlawful as of the time when the judge made it; and in the third circuit, the law in January was unsettled. To apply Rule 52(b)’s words “plain error” as of the time of appellate review would treat all three defendants alike. It would permit all three to go on to argue to the appellate court that the trial court error affected their “substantial rights” and “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” To interpret 8 HENDERSON v. UNITED STATES Opinion of the Court “plain error” differently, however, would treat these three virtually identical defendants differently, allowing only the first two defendants, but not the third defendant, po- tentially to qualify for Rule 52(b) relief. All three defen- dants suffered from legal error; all three failed to object; and all three would benefit from the new legal interpre- tation. What reason is there to give two of these three defendants the benefits of a new rule of law, but not the third? Cf. Schooner 1 Cranch, at There is no practical ground for making this distinction. To the contrary, to distinguish and treat more harshly cases where a circuit’s law was unclear would simply promote arguments about whether the law of the circuit initially was unclear (rather than clearly settled one way or the other). And these arguments are likely to be par- ticularly difficult to resolve where what is at issue is a matter of legal degree, not kind. To what extent, for ex- ample, did a prosecutor’s closing argument go too far down the road of prejudice? A “time of error” interpretation also would require courts of appeals to play a kind of temporal ping-pong, looking at the law that now is to decide whether “error” exists, looking at the law that then was to decide whether the error was “plain,” and looking at the circum- stances that now are to decide whether the defendant has satisfied ’s third and fourth criteria. Thus, the “time of error” interpretation would make the appellate process yet more complex and time consuming. We recognize, as the Solicitor General points out, that a “time of error” rule, even if confined to instances in which the law is uncertain, would in such cases provide an added incentive to counsel to call the lower court judge’s atten- tion to the matter at a time when that judge could quickly take remedial action. And, even if no remedy is offered, the lower court judge’s analysis may help the court of appeals to decide the legal question. See Brief for United States 30–32. See also 557 F. 3d, at We Cite as: 568 U. S. (2013) 9 Opinion of the Court disagree with the Solicitor General, however, in that we also believe that, in the present context, any added incen- tive has little, if any, practical importance. That is because counsel normally has other good reasons for calling a trial court’s attention to potential error—for example, it is normally to the advantage of counsel and his client to get the error speedily corrected. And, even where that is not so, counsel cannot rely upon the “plain error” rule to make up for a failure to object at trial. After all, that rule will help only if (1) the law changes in the de- fendant’s favor, (2) the change comes after trial but before the appeal is decided, (3) the error affected the defendant’s “substantial rights,” and (4) the error “seriously affect[ed] the fairness, integrity or public reputation of judicial pro- ceedings.” 507 U. S., (internal quotation marks omitted). If there is a lawyer who would deliberately forgo objection now because he perceives some slightly expanded chance to argue for “plain error” later, we sus- pect that, like the unicorn, he finds his home in the imagi- nation, not the courtroom. The upshot is that a “time of review” interpretation furthers the basic Schooner principle that “an appel- late court must apply the law in effect at the time it ren- ders its decision.” 393 U. S., at It works little, if any, practical harm upon the competing adminis- trative principle that insists that counsel call a potential error to the trial court’s attention. And, it is consistent with the basic purpose of Rule 52(b), namely the creation of a fairness-based exception to the general requirement that an objection be made at trial. See At the same time, the competing “time of error” rule is out of step with our precedents, creates unfair and anoma- lous results, and works practical administrative harm. Thus, in the direct appeals of cases that are not yet final, we consider the “time of review” interpretation the better reading of Rule 52’s words “plain error.” 10 HENDERSON v. UNITED STATES Opinion of the Court III The Solicitor General makes several other important arguments, but they fail to lead us to a different conclu- sion. First, the Government argues that the purpose of plain-error review is to ensure “the integrity of the [trial] proceedings.” Brief for United States 33–34. In turn, the argument goes, appellate courts should consider only (1) errors that counsel called to the court’s attention and (2) errors that the trial court should have known about regardless, namely those that then were plain. Expanding on this theme, one Court of Appeals described plain error as “error that is so clear-cut, so obvious, a competent district judge should be able to avoid it without benefit of objection. When the state of the law is unclear at trial and only becomes clear as a result of later authority, the Dis- trict Court’s error is perforce not plain; we expect district judges to be knowledgeable, not clairvoyant.” United (cita- tion omitted). This approach, however, overlooks the way in which the plain-error rule—Rule 52(b)—restricts the appellate court’s authority to correct an error to those errors that would, in fact, seriously affect the fairness, integrity, or public reputation of judicial proceedings. Cf. United (consid- ering the issue from this perspective). And the approach runs headlong into The error in was not an error that the District Court should have known about at the time. It was the very opposite: The District Judge should have known that his ruling (at the time he made it) was not error; and perhaps not even clairvoyance could have led him to hold to the contrary. Cf. Khan v. State Oil Co., (regis- tering disagreement with this Court’s precedent while following it nonetheless); State Oil Co. v. Khan, 522 U.S. 3, 20–22 (approving of that approach). Cite as: 568 U. S. (2013) 11 Opinion of the Court Rather, makes clear that plain-error review is not a grading system for trial judges. It has broader pur- poses, including in part allowing courts of appeals better to identify those instances in which the application of a new rule of law to cases on appeal will meet the demands of fairness and judicial integrity. See 520 U. S., 67–468; 507 U. S., Second, the Government fears that our holding will lead to too many claims of “plain error.” Brief for United States 26–28. After all, courts of appeals, not just the Supreme Court, clarify the law through their opinions. When a court of appeals does so, will not all defendants, including many who never objected in the court below, insist that the court of appeals now judge their cases according to the new rule? And will “plain error” in such cases not then disappear, leaving only simple “error” in its stead? The answer to this claim is that a new rule of law, set forth by an appellate court, cannot automatically lead that court to consider all contrary determinations by trial courts plainly erroneous. Many such new rules, as we have pointed out, concern matters of degree, not kind. And a lower court ruling about such matters (say, the nature of a closing argument), even if now wrong (in light of the new appellate holding), is not necessarily plainly wrong. The Rule’s requirement that an error be “plain” means that lower court decisions that are questionable but not plainly wrong (at time of trial or at time of appeal) fall outside the Rule’s scope. And there are other reasons for concluding that our holding will not open any “plain error” floodgates. As we have said, the Rule itself contains other screening criteria. The error must have affected the defendant’s substantial rights and it must have seriously affected the fairness, integrity, or public reputation of judicial proceedings. When courts apply these latter criteria, the fact that a defendant did not object, despite 12 HENDERSON v. UNITED STATES Opinion of the Court unsettled law, may well count against the grant of Rule 52(b) relief. Moreover, the problem here arises only when there is a new rule of law, when the law was previously unsettled, and when the District Court reached a decision contrary to the subsequent rule. These limitations may well explain the absence of any account before us of “plain error” inundation in those Circuits that already follow the interpretation we now adopt. See, e.g., at ; 656 F. 3d, at ; United ; United States v. Ross, Finally, the Government points out that Rule 52(b) is written mostly in the past tense. It says that a “plain error may be considered even though it was not brought to the court’s attention.” (Emphasis added.) This use of the past tense, the Government argues, refers to a “plain error” that was not “brought to the court’s atten- tion” back then, when the error occurred. And that lin- guistic fact, in turn, means that the error must have been plain at that time. Brief for United States 18–22. Whatever the merits of this textual argument, however, forecloses it. The error at issue in that case was not even an error, let alone plain, at the time when the defendant might have “brought [it] to the court’s atten- tion.” Nonetheless, we found the error to be “plain error.” We cannot square the Government’s textual argument with our holding in that case. IV For these reasons, we conclude that whether a legal question was settled or unsettled at the time of trial, “it is enough that an error be ‘plain’ at the time of appellate consideration” for “[t]he second part of the [four-part] test [to be] satisfied.” The contrary judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent Cite as: 568 U. S. (2013) 13 Opinion of the Court with this opinion. It is so ordered. Cite as: 568 U. S. (2013) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES No. 11–9307 ARMARCION D. HENDERSON, PETITIONER v.

Justice Douglas

dissenting

Walz v. Tax Comm'n of City of New York

https://www.courtlistener.com/opinion/108135/walz-v-tax-commn-of-city-of-new-york/

https://www.courtlistener.com/api/rest/v3/clusters/108135/

1969-087

Petitioner is the owner of real property in New York and is a Christian. But he is not a member of any of the religious organizations, "rejecting them as hostile." The New York statute exempts from taxation real property "owned by a corporation or association organized exclusively for . . . religious . . . purposes" and used "exclusively for carrying out" such purposes.[1] Yet nonbelievers who own realty are taxed at the usual rate. The question in the case therefore is whether believers— organized in church groups—can be made exempt from real estate taxes, merely because they are believers, while nonbelievers, whether organized or not, must pay the real estate taxes. My Brother HARLAN says he "would suppose" that the tax exemption extends to "groups whose avowed tenets may be antitheological, atheistic, or agnostic." Ante, at 697. If it does, then the line between believers and nonbelievers has not been drawn. But, with all respect, there is not even a suggestion in the present record that the statute covers property used exclusively by organizations for "antitheological purposes," "atheistic purposes," or "agnostic purposes." In Torcaso v. Watkins, 367 U.S. 488, we held that *701 a State could not bar an atheist from public office in light of the freedom of belief and religion guaranteed by the First and Fourteenth Amendments. Neither the State nor the Federal Government, we said, "can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." Id., at 495. That principle should govern this case. There is a line between what a State may do in encouraging "religious" activities, Zorach v. Clauson, 343 U.S. 306, and what a State may not do by using its resources to promote "religious" activities, McCollum v. Board of Education, 333 U.S. 203, or bestowing benefits because of them. Yet that line may not always be clear. Closing public schools on Sunday is in the former category; subsidizing churches, in my view, is in the latter. Indeed I would suppose that in common understanding one of the best ways to "establish" one or more religions is to subsidize them, which a tax exemption does. The State may not do that any more than it may prefer "those who believe in no religion over those who do believe." Zorach v. Clauson, supra, at 314. In affirming this judgment the Court largely overlooks the revolution initiated by the adoption of the Fourteenth Amendment. That revolution involved the imposition of new and far-reaching constitutional restraints on the States. Nationalization of many civil liberties has been the consequence of the Fourteenth Amendment, reversing the historic position that the foundations of those liberties rested largely in state law. The process of the "selective incorporation" of various provisions of the Bill of Rights into the Fourteenth Amendment, although often provoking lively disagreement *702 at large as well as among the members of this Court, has been a steady one. It started in 1897 with Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, in which the Court held that the Fourteenth Amendment precluded a State from taking private property for public use without payment of just compensation, as provided in the Fifth Amendment. The first direct holding as to the incorporation of the First Amendment into the Fourteenth occurred in 1931 in Stromberg v. California, 283 U.S. 359, a case involving the right of free speech, although that holding in Stromberg had been foreshadowed in 1925 by the Court's opinion in Gitlow v. New York, 268 U.S. 652. As regards the religious guarantees of the First Amendment, the Free Exercise Clause was expressly deemed incorporated into the Fourteenth Amendment in 1940 in Cantwell v. Connecticut, 310 U.S. 296, although that holding had been foreshadowed in 1923 and 1934 by the Court's dicta in Meyer v. Nebraska, 262 U.S. 390, 399, and Hamilton v. Regents, 293 U.S. 245, 262. The Establishment Clause was not incorporated in the Fourteenth Amendment until Everson v. Board of Education, 330 U.S. 1, was decided in 1947. Those developments in the last 30 years have had unsettling effects. It was, for example, not until 1962 that state-sponsored, sectarian prayers were held to violate the Establishment Clause. Engel v. Vitale, 370 U.S. 421. That decision brought many protests, for the habit of putting one sect's prayer in public schools had long been practiced. Yet if the Catholics, controlling one school board, could put their prayer into one group of public schools, the Mormons, Baptists, Moslems, Presbyterians, and others could do the same, once they got control. And so the seeds of Establishment would grow and a secular institution would be used to serve a sectarian end. *703 Engel was as disruptive of traditional state practices as was Stromberg. Prior to Stromberg, a State could arrest an unpopular person who made a rousing speech on the charge of disorderly conduct. Since Stromberg, that has been unconstitutional. And so the revolution occasioned by the Fourteenth Amendment has progressed as Article after Article in the Bill of Rights has been incorporated in it and made applicable to the States. Hence the question in the present case makes irrelevant the "two centuries of uninterrupted freedom from taxation," referred to by the Court. Ante, at 678. If history be our guide, then tax exemption of church property in this country is indeed highly suspect, as it arose in the early days when the church was an agency of the state. See W. Torpey, Judicial Doctrines of Religious Rights in America 171 (1948). The question here, though, concerns the meaning of the Establishment Clause and the Free Exercise Clause made applicable to the States for only a few decades at best. With all due respect the governing principle is not controlled by Everson v. Board of Education, supra. Everson involved the use of public funds to bus children to parochial as well as to public schools. Parochial schools teach religion; yet they are also educational institutions offering courses competitive with public schools. They prepare students for the professions and for activities in all walks of life. Education in the secular sense was combined with religious indoctrination at the parochial schools involved in Everson. Even so, the Everson decision was five to four and, though one of the five, I have since had grave doubts about it, because I have become convinced that grants to institutions teaching a sectarian creed violate the Establishment Clause. See Engel v. Vitale, supra, at 443-444 (DOUGLAS, J., concurring). *704 This case, however, is quite different. Education is not involved. The financial support rendered here is to the church, the place of worship. A tax exemption is a subsidy. Is my Brother BRENNAN correct in saying that we would hold that state or federal grants to churches, say, to construct the edifice itself would be unconstitutional? What is the difference between that kind of subsidy and the present subsidy?[2] The problem takes us back where Madison was in 1784 and 1785 when he battled the Assessment Bill[3] in Virginia. That bill levied a tax for the support of Christian churches, leaving to each taxpayer the choice as to "what society of Christians" he wanted the tax paid; and absent such designation, the tax was to go for education. Even so, Madison was unrelenting in his opposition. As stated by Mr. Justice Rutledge: "The modified Assessment Bill passed second reading in December, 1784, and was all but enacted. *705 Madison and his followers, however, maneuvered deferment of final consideration until November, 1785. And before the Assembly reconvened in the fall he issued his historic Memorial and Remonstrance." Everson v. Board of Education, supra, at 37 (dissenting opinion). The Remonstrance[4] stirred up such a storm of popular protest that the Assessment Bill was defeated.[5] The Remonstrance covers some aspects of the present subsidy, including Madison's protest in paragraph 3 to a requirement that any person be compelled to contribute even "three pence" to support a church. All men, he maintained in paragraph 4, enter society "on equal conditions," including the right to free exercise of religion: "Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to men, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens; so it violates the same principle, by granting to others peculiar exemptions." Madison's assault on the Assessment Bill was in fact an assault based on both the concepts of "free exercise" and "establishment" of religion later embodied in the First Amendment. Madison, whom we recently called "the leading architect of the religion clauses of the First Amendment," Flast v. Cohen, 392 U.S. 83, 103, *706 was indeed their author and chief promoter.[6] As Mr. Justice Rutledge said: "All the great instruments of the Virginia struggle for religious liberty thus became warp and woof of our constitutional tradition, not simply by the course of history, but by the common unifying force of Madison's life, thought and sponsorship. He epitomized the whole of that tradition in the Amendment's compact, but nonetheless comprehensive, phrasing." Everson v. Board of Education, supra, at 39. The Court seeks to avoid this historic argument as to the meaning of "establishment" and "free exercise" by relying on the long practice of the States in granting the subsidies challenged here. Certainly government may not lay a tax on either worshiping or preaching. In Murdock v. Pennsylvania, 319 U.S. 105, we ruled on a state license tax levied on religious colporteurs as a condition to pursuit of their activities. In holding the tax unconstitutional we said: "The power to tax the exercise of a privilege is the power to control or suppress its enjoyment. Magnano Co. v. Hamilton, 292 U.S. 40, 44-45, and cases cited. Those who can tax the exercise of this religious practice can make its exercise so costly as to deprive it of the resources necessary for its maintenance. Those who can tax the privilege of engaging in this form of missionary evangelism can close its doors to all those who do not have a full purse. Spreading religious beliefs in this ancient and honorable manner would thus be denied the needy. Those who can deprive religious groups of their colporteurs can take from them a part of *707 the vital power of the press which has survived from the Reformation." Id., at 112. Churches, like newspapers also enjoying First Amendment rights, have no constitutional immunity from all taxes. As we said in Murdock: "We do not mean to say that religious groups and the press are free from all financial burdens of government. See Grosjean v. American Press Co., 297 U.S. 233, 250. We have here something quite different, for example, from a tax on the income of one who engages in religious activities or a tax on property used or employed in connection with those activities. It is one thing to impose a tax on the income or property of a preacher. It is quite another thing to exact a tax from him for the privilege of delivering a sermon." Ibid. State aid to places of worship, whether in the form of direct grants or tax exemption, takes us back to the Assessment Bill and the Remonstrance. The church qua church would not be entitled to that support from believers and from nonbelievers alike. Yet the church qua nonprofit, charitable institution is one of many that receive a form of subsidy through tax exemption. To be sure, the New York statute[7] does not single out the church for grant or favor. It includes churches in a long list of nonprofit organizations: for the moral or mental improvement of men and women (§ 420); for charitable, hospital, or educational purposes (ibid.); for playgrounds (ibid.); for scientific or literary objects (ibid.); for bar associations, medical societies, or libraries (ibid.); for patriotic and historical purposes (ibid.); for cemeteries (ibid.); for the enforcement of laws relating to children or animals (ibid.); for opera *708 houses (§ 426); for fraternal organizations (§ 428); for academies of music (§ 434); for veterans' organizations (§ 452); for pharmaceutical societies (§ 472); and for dental societies (§ 474). While the beneficiaries cover a wide range, "atheistic," "agnostic," or "antitheological" groups do not seem to be included. Churches perform some functions that a State would constitutionally be empowered to perform. I refer to nonsectarian social welfare operations such as the care of orphaned children and the destitute and people who are sick. A tax exemption to agencies performing those functions would therefore be as constitutionally proper as the grant of direct subsidies to them. Under the First Amendment a State may not, however, provide worship if private groups fail to do so. As Mr. Justice Jackson said: "[A State] may socialize utilities and economic enterprises and make taxpayers' business out of what conventionally had been private business. It may make public business of individual welfare, health, education, entertainment or security. But it cannot make public business of religious worship or instruction, or of attendance at religious institutions of any character. . . . That is a difference which the Constitution sets up between religion and almost every other subject matter of legislation, a difference which goes to the very root of religious freedom and which the Court is overlooking today." Everson v. Board of Education, supra, at 26 (dissenting opinion). That is a major difference between churches on the one hand and the rest of the nonprofit organizations on the other. Government could provide or finance operas, hospitals, historical societies, and all the rest because they represent social welfare programs within *709 the reach of the police power. In contrast, government may not provide or finance worship because of the Establishment Clause any more than it may single out "atheistic" or "agnostic" centers or groups and create or finance them. The Brookings Institution, writing in 1933, before the application of the Establishment Clause of the First Amendment to the States, said about tax exemptions of religious groups:[8] "Tax exemption, no matter what its form, is essentially a government grant or subsidy. Such grants would seem to be justified only if the purpose for which they are made is one for which the legislative body would be equally willing to make a direct appropriation from public funds equal to the amount of the exemption. This test would not be met except in the case where the exemption is granted to encourage certain activities of private interests, which, if not thus performed, would have to be assumed by the government at an expenditure at least as great as the value of the exemption." (Emphasis added.) Since 1947, when the Establishment Clause was made applicable to the States, that report would have to state that the exemption would be justified only where "the legislative body could make" an appropriation for the cause. On the record of this case, the church qua nonprofit, charitable organization is intertwined with the church qua church. A church may use the same facilities, resources, and personnel in carrying out both its secular and its sectarian activities. The two are unitary and on the present record have not been separated one from *710 the other. The state has a public policy of encouraging private public welfare organizations, which it desires to encourage through tax exemption. Why may it not do so and include churches qua welfare organizations on a nondiscriminatory basis? That avoids, it is argued, a discrimination against churches and in a real sense maintains neutrality toward religion which the First Amendment was designed to foster. Welfare services, whether performed by churches or by nonreligious groups, may well serve the public welfare. Whether a particular church seeking an exemption for its welfare work could constitutionally pass muster would depend on the special facts. The assumption is that the church is a purely private institution, promoting a sectarian cause. The creed, teaching, and beliefs of one may be undesirable or even repulsive to others. Its sectarian faith sets it apart from all others and makes it difficult to equate its constituency with the general public. The extent that its facilities are open to all may only indicate the nature of its proselytism. Yet though a church covers up its religious symbols in welfare work, its welfare activities may merely be a phase of sectarian activity. I have said enough to indicate the nature of this tax exemption problem. Direct financial aid to churches or tax exemptions to the church qua church is not, in my view, even arguably permitted. Sectarian causes are certainly not antipublic and many would rate their own church or perhaps all churches as the highest form of welfare. The difficulty is that sectarian causes must remain in the private domain not subject to public control or subsidy. That seems to me to be the requirement of the Establishment Clause. As Edmond Cahn said: "In America, Madison submitted most astutely, the rights of conscience must be kept not only free but equal as well. And in view of the endless variations— *711 not only among the numerous sects, but also among the organized activities they pursued and the relative emotional values they attached to their activities —how could any species of government assistance be considered genuinely equal from sect to sect? If, for example, a state should attempt to subsidize all sectarian schools without discrimination, it would necessarily violate the principle of equality because certain sects felt impelled to conduct a large number of such schools, others few, others none.[9] How could the officers of government begin to measure the intangible factors that a true equality of treatment would involve, i. e., the relative intensity of religious attachment to parochial education that the respective groups required of their lay and clerical members? It would be presumptuous even to inquire. Thus, just as in matters of race our belated recognition of intangible factors has finally led us to the maxim `separate therefore unequal,' so in matters of religion Madison's immediate recognition of intangible factors led us promptly to the maxim `equal therefore separate.' Equality was out of the question without total separation." Confronting Injustice 186-187 (1967). The exemptions provided here insofar as welfare projects are concerned may have the ring of neutrality. But subsidies either through direct grant or tax exemption for sectarian causes, whether carried on by church qua church or by church qua welfare agency, must be treated differently, lest we in time allow the church qua church to be on the public payroll, which, I fear, is imminent. *712 As stated by my Brother BRENNAN in Abington School Dist. v. Schempp, 374 U.S. 203, 259 (concurring opinion), "It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government." Madison as President vetoed a bill incorporating the Protestant Episcopal Church in Alexandria, Virginia, as being a violation of the Establishment Clause. He said, inter alia:[10] "[T]he bill vests in the said incorporated church an authority to provide for the support of the poor and the education of poor children of the same, an authority which, being altogether superfluous if the provision is to be the result of pious charity, would be a precedent for giving to religious societies as such a legal agency in carrying into effect a public and civil duty." He also vetoed a bill that reserved a parcel of federal land "for the use" of the Baptist Church, as violating the Establishment Clause.[11] What Madison would have thought of the present state subsidy to churches—a tax exemption as distinguished from an outright grant—no one can say with certainty. The fact that Virginia early granted church tax exemptions cannot be credited to Madison. Certainly he seems to have been opposed. In his paper Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments he wrote:[12] "Strongly guarded as is the separation between Religion & Govt in the Constitution of the United *713 States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history." And he referred, inter alia, to the "attempt in Kentucky for example, where it was proposed to exempt Houses of Worship from taxes." From these three statements, Madison, it seems, opposed all state subsidies to churches. Cf. D. Robertson, Should Churches Be Taxed? 60-61 (1968). We should adhere to what we said in Torcaso v. Watkins, 367 U. S., at 495, that neither a State nor the Federal Government "can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." (Emphasis added.) Unless we adhere to that principle, we do not give full support either to the Free Exercise Clause or to the Establishment Clause. If a church can be exempted from paying real estate taxes, why may not it be made exempt from paying special assessments? The benefits in the two cases differ only in degree; and the burden on nonbelievers is likewise no different in kind.[13] *714 The religiously used real estate of the churches today constitutes a vast domain. See M. Larson & C. Lowell, The Churches: Their Riches, Revenues, and Immunities (1969). Their assets total over $141 billion and their annual income at least $22 billion. Id., at 232. And the extent to which they are feeding from the public trough in a variety of forms is alarming. Id., c. 10. We are advised that since 1968 at least five States have undertaken to give subsidies to parochial and other private schools[14]—Pennsylvania, Ohio, New York, Connecticut, and Rhode Island. And it is reported that under two federal Acts, the Elementary and Secondary Education Act of 1965, 79 Stat. 27, and the Higher Education Act of 1965, 79 Stat. 1219, billions of dollars have been granted to parochial and other private schools. The federal grants to elementary and secondary schools under 79 Stat. 27 were made to the States which in turn made advances to elementary and secondary schools. Those figures are not available. But the federal grants to private institutions of higher education are revealed in Department of Health, Education, and Welfare (HEW), Digest of Educational Statistics 16 (1969). These show in billions of dollars the following:[15] 1965-66............................... $1.4 1966-67............................... $1.6 1967-68............................... $1.7 1968-69............................... $1.9 1969-70............................... $2.1 *715 It is an old, old problem. Madison adverted to it:[16] "Are there not already examples in the U. S. of ecclesiastical wealth equally beyond its object and the foresight of those who laid the foundation of it? In the U. S. there is a double motive for fixing limits in this case, because wealth may increase not only from additional gifts, but from exorbitant advances in the value of the primitive one. In grants of vacant lands, and of lands in the vicinity of growing towns & Cities the increase of value is often such as if foreseen, would essentially controul the liberality confirming them. The people of the U. S. owe their Independence & their liberty, to the wisdom of descrying in the minute tax of 3 pence on tea, the magnitude of the evil comprized in the precedent. Let them exert the same wisdom, in watching agst every evil lurking under plausible disguises, and growing up from small beginnings."[17] *716 If believers are entitled to public financial support, so are nonbelievers. A believer and nonbeliever under the present law are treated differently because of the articles of their faith. Believers are doubtless comforted that the cause of religion is being fostered by this legislation. Yet one of the mandates of the First Amendment is to promote a viable, pluralistic society and to keep government neutral, not only between sects, but also between believers and nonbelievers. The present involvement of government in religion may seem de minimis. But it is, I fear, a long step down the Establishment path. Perhaps I have been misinformed. But as I have read the Constitution and its philosophy, I gathered that independence was the price of liberty. I conclude that this tax exemption is unconstitutional. APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING Assessment Bill. The December 24, 1784, print reproduced in the Supplemental Appendix to the dissenting opinion of Rutledge, J., in Everson v. Board of Education, 330 U.S. 1, 72: "A BILL ESTABLISHING A PROVISION FOR TEACHERS OF THE CHRISTIAN RELIGION. "Whereas the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society; *717 which cannot be effected without a competent provision for learned teachers, who may be thereby enabled to devote their time and attention to the duty of instructing such citizens, as from their circumstances and want of education, cannot otherwise attain such knowledge; and it is judged that such provision may be made by the Legislature, without counteracting the liberal principle heretofore adopted and intended to be preserved by abolishing all distinctions of pre-eminence amongst the different societies or communities of Christians; "Be it therefore enacted by the General Assembly, That for the support of Christian teachers, per centum on the amount, or in the pound on the sum payable for tax on the property within this Commonwealth, is hereby assessed, and shall be paid by every person chargeable with the said tax at the time the same shall become due; and the Sheriffs of the several Counties shall have power to levy and collect the same in the same manner and under the like restrictions and limitations, as are or may be prescribed by the laws for raising the Revenues of this State. "And be it enacted, That for every sum so paid, the Sheriff or Collector shall give a receipt, expressing therein to what society of Christians the person from whom he may receive the same shall direct the money to be paid, keeping a distinct account thereof in his books. The Sheriff of every County, shall, on or before the day of in every year, return to the Court, upon oath, two alphabetical lists of the payments to him made, distinguishing in columns opposite to the names of the persons who shall have paid the same, the society to which the money so paid was by them appropriated; and one column for the names where no appropriation shall be made. One of which lists, after being recorded in a book to be kept for that purpose, shall be filed by the Clerk in his office; the other shall by the Sheriff *718 be fixed up in the Court-house, there to remain for the inspection of all concerned. And the Sheriff, after deducting five per centum for the collection, shall forthwith pay to such person or persons as shall be appointed to receive the same by the Vestry, Elders, or Directors, however denominated of each such society, the sum so stated to be due to that society; or in default thereof, upon the motion of such person or persons to the next or any succeeding Court, execution shall be awarded for the same against the Sheriff and his security, his and their executors or administrators; provided that ten days previous notice be given of such motion. And upon every such execution, the Officer serving the same shall proceed to immediate sale of the estate taken, and shall not accept of security for payment at the end of three months, nor to have the goods forthcoming at the day of sale; for his better direction wherein, the Clerk shall endorse upon every such execution that no security of any kind shall be taken. "And be it further enacted, That the money to be raised by virtue of this Act, shall be by the Vestries, Elders, or Directors of each religious society, appropriated to a provision for a Minister or Teacher of the Gospel of their denomination, or the providing places of divine worship, and to none other use whatsoever; except in the denominations of Quakers and Menonists, who may receive what is collected from their members, and place it in their general fund, to be disposed of in a manner which they shall think best calculated to promote their particular mode of worship. "And be it enacted, That all sums which at the time of payment to the Sheriff or Collector may not be appropriated by the person paying the same, shall be accounted for with the Court in manner as by this Act is directed; and after deducting for his collection, the Sheriff shall pay the amount thereof (upon account certified *719 by the Court to the Auditors of Public Accounts, and by them to the Treasurer) into the public Treasury, to be disposed of under the direction of the General Assembly, for the encouragement of seminaries of learning within the Counties whence such sums shall arise, and to no other use or purpose whatsoever. "THIS Act shall commence, and be in force, from and after the day of in the year "A Copy from the Engrossed Bill. "JOHN BECKLEY, C. H. D." APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING[18] Memorial and Remonstrance Against Religious Assessments, as reproduced in the Appendix to the dissenting opinion of Rutledge, J., in Everson v. Board of Education, 330 U.S. 1, 63 (2 The Writings of James Madison 183-191 (G. Hunt ed. 1901)): "We, the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled `A Bill establishing a provision for Teachers of the Christian Religion,' and conceiving that the same, if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State, to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill, "1. Because we hold it for a fundamental and undeniable truth, `that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence.' The Religion then of every man must be left to the conviction and conscience of every *720 man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men: It is unalienable also; because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true, that the majority may trespass on the rights of the minority. "2. Because if religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free government requires not merely, that the metes and bounds which separate each department *721 of power may be invariably maintained; but more especially, that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves. "3. Because, it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much, soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever? "4. Because, the bill violates that equality which ought to be the basis of every law, and which is more indispensible, in proportion as the validity or expediency of any law is more liable to be impeached. If `all men are by nature equally free and independent,' all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an `equal title to the free exercise of Religion according to the dictates *722 of conscience.' Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to men, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens; so it violates the same principle, by granting to others peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of their religions unnecessary and unwarantable? Can their piety alone be intrusted with the care of public worship? Ought their Religions to be endowed above all others, with extraordinary privileges, by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these denominations, to believe that they either covet pre-eminencies over their fellow citizens, or that they will be seduced by them, from the common opposition to the measure. "5. Because the bill implies either that the Civil Magistrate is a competent Judge of Religious truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: The second an unhallowed perversion of the means of salvation. "6. Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself; for every page of it disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them; and not only *723 during the period of miraculous aid, but long after it had been left to its own evidence, and the ordinary care of Providence: Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence, and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies, to trust it to its own merits. "7. Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries, has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy; ignorance and servility in the laity; in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to the ages prior to its incorporation with Civil policy. Propose a restoration of this primitive state in which its Teachers depended on the voluntary rewards of their flocks; many of them predict its downfall. On which side ought their testimony to have greatest weight, when for or when against their interest? "8. Because the establishment in question is not necessary for the support of Civil Government. If it be urged as necessary for the support of Civil Government only as it is a means of supporting Religion, and it be not necessary for the latter purpose, it cannot be necessary for the former. If Religion be not within [the] cognizance of Civil Government, how can its legal establishment be said to be necessary to civil Government? What influence in fact have ecclesiastical establishments *724 had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established clergy convenient auxiliaries. A just government, instituted to secure & perpetuate it, needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another. "9. Because the proposed establishment is a departure from that generous policy, which, offering an asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be, in its present form, from the Inquisition it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthropy in their due extent may offer a more certain repose from his troubles. "10. Because, it will have a like tendency to banish our Citizens. The allurements presented by other situations are every day thinning their number. To superadd a fresh motive to emigration, by revoking the liberty *725 which they now enjoy, would be the same species of folly which has dishonored and depopulated flourishing kingdoms. "11. Because, it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm to extinguish Religious discord, by proscribing all difference in Religious opinions. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs, that equal and compleat liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State. If with the salutary effects of this system under our own eyes, we begin to contract the bonds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed that `Christian forbearance, love and charity,' which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded should this enemy to the public quiet be armed with the force of a law? "12. Because, the policy of the bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift, ought to be that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false Religions; and how small is the former! Does the policy of the Bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of [revelation] from coming into the Region *726 of it; and countenances, by example the nations who continue in darkness, in shutting out those who might convey it to them. Instead of levelling as far as possible, every obstacle to the victorious progress of truth, the Bill with an ignoble and unchristian timidity would circumscribe it, with a wall of defence, against the encroachments of error. "13. Because attempts to enforce by legal sanctions, acts obnoxious to so great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case where it is deemed invalid and dangerous? and what may be the effect of so striking an example of impotency in the Government, on its general authority. "14. Because a measure of such singular magnitude and delicacy ought not to be imposed, without the clearest evidence that it is called for by a majority of citizens: and no satisfactory method is yet proposed by which the voice of the majority in this case may be determined, or its influence secured. `The people of the respective counties are indeed requested to signify their opinion respecting the adoption of the Bill to the next Session of Assembly.' But the representation must be made equal, before the voice either of the Representatives or of the Counties, will be that of the people. Our hope is that neither of the former will, after due consideration, espouse the dangerous principle of the Bill. Should the event disappoint us, it will still leave us in full confidence, that a fair appeal to the latter will reverse the sentence against our liberties. "15. Because, finally, `the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience' is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot *727 be less dear to us; if we consult the Declaration of those rights which pertain to the good people of Virginia, as the `basis and foundation of Government,' it is enumerated with equal solemnity, or rather studied emphasis. Either then, we must say, that the will of the Legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred: Either we must say, that they may controul the freedom of the press, may abolish the trial by jury, may swallow up the Executive and Judiciary Powers of the State; nay that they may despoil us of our very right to suffrage, and erect themselves into an independent and hereditary assembly: or we must say, that they have no authority to enact into law the Bill under consideration. We the subscribers say, that the General Assembly of this Commonwealth have no such authority: And that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it, this remonstrance; earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may on the one hand, turn their councils from every act which would affront his holy prerogative, or violate the trust committed to them: and on the other, guide them into every measure which may be worthy of his [blessing, may re]dound to their own praise, and may establish more firmly the liberties, the prosperity, and the Happiness of the Commonwealth."

Petitioner is the owner of real property in New York and is a Christian. But he is not a member of any of the religious organizations, "rejecting them as hostile." The New York statute exempts from taxation real property "owned by a corporation or association organized exclusively for religious purposes" and used "exclusively for carrying out" such purposes.[1] Yet nonbelievers who own realty are taxed at the usual rate. The question in the case therefore is whether believers— organized in church groups—can be made exempt from real estate taxes, merely because they are believers, while nonbelievers, whether organized or not, must pay the real estate taxes. My Brother HARLAN says he "would suppose" that the tax exemption extends to "groups whose avowed tenets may be antitheological, atheistic, or agnostic." Ante, at 697. If it does, then the line between believers and nonbelievers has not been drawn. But, with all respect, there is not even a suggestion in the present record that the statute covers property used exclusively by organizations for "antitheological purposes," "atheistic purposes," or "agnostic purposes." In we held that *701 a State could not bar an atheist from public office in light of the freedom of belief and religion guaranteed by the First and Fourteenth Amendments. Neither the State nor the Federal Government, we said, "can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." That principle should govern this case. There is a line between what a State may do in encouraging "religious" activities, and what a State may not do by using its resources to promote "religious" activities, or bestowing benefits because of them. Yet that line may not always be clear. Closing public schools on Sunday is in the former category; subsidizing churches, in my view, is in the latter. Indeed I would suppose that in common understanding one of the best ways to "establish" one or more religions is to subsidize them, which a tax exemption does. The State may not do that any more than it may prefer "those who believe in no religion over those who do believe." In affirming this judgment the Court largely overlooks the revolution initiated by the adoption of the Fourteenth Amendment. That revolution involved the imposition of new and far-reaching constitutional restraints on the States. Nationalization of many civil liberties has been the consequence of the Fourteenth Amendment, reversing the historic position that the foundations of those liberties rested largely in state law. The process of the "selective incorporation" of various provisions of the Bill of Rights into the Fourteenth Amendment, although often provoking lively disagreement *702 at large as well as among the members of this Court, has been a steady one. It started in 1897 with Chicago, B. & Q. R. in which the Court held that the Fourteenth Amendment precluded a State from taking private property for public use without payment of just compensation, as provided in the Fifth Amendment. The first direct holding as to the incorporation of the First Amendment into the Fourteenth occurred in 1931 in a case involving the right of free speech, although that holding in Stromberg had been foreshadowed in 1925 by the Court's opinion in As regards the religious guarantees of the First Amendment, the Free Exercise Clause was expressly deemed incorporated into the Fourteenth Amendment in 1940 in although that holding had been foreshadowed in 1923 and 1934 by the Court's dicta in and The Establishment Clause was not incorporated in the Fourteenth Amendment until was decided in 1947. Those developments in the last 30 years have had unsettling effects. It was, for example, not until 1962 that state-sponsored, sectarian prayers were held to violate the Establishment Clause. That decision brought many protests, for the habit of putting one sect's prayer in public schools had long been practiced. Yet if the Catholics, controlling one school board, could put their prayer into one group of public schools, the Mormons, Baptists, Moslems, Presbyterians, and others could do the same, once they got control. And so the seeds of Establishment would grow and a secular institution would be used to serve a sectarian end. *703 Engel was as disruptive of traditional state practices as was Stromberg. Prior to Stromberg, a State could arrest an unpopular person who made a rousing speech on the charge of disorderly conduct. Since Stromberg, that has been unconstitutional. And so the revolution occasioned by the Fourteenth Amendment has progressed as Article after Article in the Bill of Rights has been incorporated in it and made applicable to the States. Hence the question in the present case makes irrelevant the "two centuries of uninterrupted freedom from taxation," referred to by the Court. Ante, at 678. If history be our guide, then tax exemption of church property in this country is indeed highly suspect, as it arose in the early days when the church was an agency of the state. See W. Torpey, Judicial Doctrines of Religious Rights in America 171 (1948). The question here, though, concerns the meaning of the Establishment Clause and the Free Exercise Clause made applicable to the States for only a few decades at best. With all due respect the governing principle is not controlled by Everson involved the use of public funds to bus children to parochial as well as to public schools. Parochial schools teach religion; yet they are also educational institutions offering courses competitive with public schools. They prepare students for the professions and for activities in all walks of life. in the secular sense was combined with religious indoctrination at the parochial schools involved in Everson. Even so, the Everson decision was five to four and, though one of the five, I have since had grave doubts about it, because I have become convinced that grants to institutions teaching a sectarian creed violate the Establishment Clause. See *704 This case, however, is quite different. is not involved. The financial support rendered here is to the church, the place of worship. A tax exemption is a subsidy. Is my Brother BRENNAN correct in saying that we would hold that state or federal grants to churches, say, to construct the edifice itself would be unconstitutional? What is the difference between that kind of subsidy and the present subsidy?[2] The problem takes us back where Madison was in 1784 and 1785 when he battled the Assessment Bill[3] in Virginia. That bill levied a tax for the support of Christian churches, leaving to each taxpayer the choice as to "what society of Christians" he wanted the tax paid; and absent such designation, the tax was to go for education. Even so, Madison was unrelenting in his opposition. As stated by Mr. Justice Rutledge: "The modified Assessment Bill passed second reading in December, 1784, and was all but enacted. *705 Madison and his followers, however, maneuvered deferment of final consideration until November, 1785. And before the Assembly reconvened in the fall he issued his historic Memorial and Remonstrance." The Remonstrance[4] stirred up such a storm of popular protest that the Assessment Bill was defeated.[5] The Remonstrance covers some aspects of the present subsidy, including Madison's protest in paragraph 3 to a requirement that any person be compelled to contribute even "three pence" to support a church. All men, he maintained in paragraph 4, enter society "on equal conditions," including the right to free exercise of religion: "Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to men, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens; so it violates the same principle, by granting to others peculiar exemptions." Madison's assault on the Assessment Bill was in fact an assault based on both the concepts of "free exercise" and "establishment" of religion later embodied in the First Amendment. Madison, whom we recently called "the leading architect of the religion clauses of the First Amendment," *706 was indeed their author and chief promoter.[6] As Mr. Justice Rutledge said: "All the great instruments of the Virginia struggle for religious liberty thus became warp and woof of our constitutional tradition, not simply by the course of history, but by the common unifying force of Madison's life, thought and sponsorship. He epitomized the whole of that tradition in the Amendment's compact, but nonetheless comprehensive, phrasing." The Court seeks to avoid this historic argument as to the meaning of "establishment" and "free exercise" by relying on the long practice of the States in granting the subsidies challenged here. Certainly government may not lay a tax on either worshiping or preaching. In we ruled on a state license tax levied on religious colporteurs as a condition to pursuit of their activities. In holding the tax unconstitutional we said: "The power to tax the exercise of a privilege is the power to control or suppress its enjoyment. Magnano and cases cited. Those who can tax the exercise of this religious practice can make its exercise so costly as to deprive it of the resources necessary for its maintenance. Those who can tax the privilege of engaging in this form of missionary evangelism can close its doors to all those who do not have a full purse. Spreading religious beliefs in this ancient and honorable manner would thus be denied the needy. Those who can deprive religious groups of their colporteurs can take from them a part of *707 the vital power of the press which has survived from the Reformation." Churches, like newspapers also enjoying First Amendment rights, have no constitutional immunity from all taxes. As we said in Murdock: "We do not mean to say that religious groups and the press are free from all financial burdens of government. See We have here something quite different, for example, from a tax on the income of one who engages in religious activities or a tax on property used or employed in connection with those activities. It is one thing to impose a tax on the income or property of a preacher. It is quite another thing to exact a tax from him for the privilege of delivering a sermon." State aid to places of worship, whether in the form of direct grants or tax exemption, takes us back to the Assessment Bill and the Remonstrance. The church qua church would not be entitled to that support from believers and from nonbelievers alike. Yet the church qua nonprofit, charitable institution is one of many that receive a form of subsidy through tax exemption. To be sure, the New York statute[7] does not single out the church for grant or favor. It includes churches in a long list of nonprofit organizations: for the moral or mental improvement of men and women 420); for charitable, hospital, or educational purposes (ibid.); for playgrounds (ibid.); for scientific or literary objects (ibid.); for bar associations, medical societies, or libraries (ibid.); for patriotic and historical purposes (ibid.); for cemeteries (ibid.); for the enforcement of laws relating to children or animals (ibid.); for opera *708 houses 426); for fraternal organizations 428); for academies of music 434); for veterans' organizations 452); for pharmaceutical societies 472); and for dental societies 474). While the beneficiaries cover a wide range, "atheistic," "agnostic," or "antitheological" groups do not seem to be included. Churches perform some functions that a State would constitutionally be empowered to perform. I refer to nonsectarian social welfare operations such as the care of orphaned children and the destitute and people who are sick. A tax exemption to agencies performing those functions would therefore be as constitutionally proper as the grant of direct subsidies to them. Under the First Amendment a State may not, however, provide worship if private groups fail to do so. As Mr. Justice Jackson said: "[A State] may socialize utilities and economic enterprises and make taxpayers' business out of what conventionally had been private business. It may make public business of individual welfare, health, education, entertainment or security. But it cannot make public business of religious worship or instruction, or of attendance at religious institutions of any character. That is a difference which the Constitution sets up between religion and almost every other subject matter of legislation, a difference which goes to the very root of religious freedom and which the Court is overlooking today." That is a major difference between churches on the one hand and the rest of the nonprofit organizations on the other. Government could provide or finance operas, hospitals, historical societies, and all the rest because they represent social welfare programs within *709 the reach of the police power. In contrast, government may not provide or finance worship because of the Establishment Clause any more than it may single out "atheistic" or "agnostic" centers or groups and create or finance them. The Brookings Institution, writing in 1933, before the application of the Establishment Clause of the First Amendment to the States, said about tax exemptions of religious groups:[8] "Tax exemption, no matter what its form, is essentially a government grant or subsidy. Such grants would seem to be justified only if the purpose for which they are made is one for which the legislative body would be equally willing to make a direct appropriation from public funds equal to the amount of the exemption. This test would not be met except in the case where the exemption is granted to encourage certain activities of private interests, which, if not thus performed, would have to be assumed by the government at an expenditure at least as great as the value of the exemption." (Emphasis added.) Since 1947, when the Establishment Clause was made applicable to the States, that report would have to state that the exemption would be justified only where "the legislative body could make" an appropriation for the cause. On the record of this case, the church qua nonprofit, charitable organization is intertwined with the church qua church. A church may use the same facilities, resources, and personnel in carrying out both its secular and its sectarian activities. The two are unitary and on the present record have not been separated one from *710 the other. The state has a public policy of encouraging private public welfare organizations, which it desires to encourage through tax exemption. Why may it not do so and include churches qua welfare organizations on a nondiscriminatory basis? That avoids, it is argued, a discrimination against churches and in a real sense maintains neutrality toward religion which the First Amendment was designed to foster. Welfare services, whether performed by churches or by nonreligious groups, may well serve the public welfare. Whether a particular church seeking an exemption for its welfare work could constitutionally pass muster would depend on the special facts. The assumption is that the church is a purely private institution, promoting a sectarian cause. The creed, teaching, and beliefs of one may be undesirable or even repulsive to others. Its sectarian faith sets it apart from all others and makes it difficult to equate its constituency with the general public. The extent that its facilities are open to all may only indicate the nature of its proselytism. Yet though a church covers up its religious symbols in welfare work, its welfare activities may merely be a phase of sectarian activity. I have said enough to indicate the nature of this tax exemption problem. Direct financial aid to churches or tax exemptions to the church qua church is not, in my view, even arguably permitted. Sectarian causes are certainly not antipublic and many would rate their own church or perhaps all churches as the highest form of welfare. The difficulty is that sectarian causes must remain in the private domain not subject to public control or subsidy. That seems to me to be the requirement of the Establishment Clause. As Edmond Cahn said: "In America, Madison submitted most astutely, the rights of conscience must be kept not only free but equal as well. And in view of the endless variations— *711 not only among the numerous sects, but also among the organized activities they pursued and the relative emotional values they attached to their activities —how could any species of government assistance be considered genuinely equal from sect to sect? If, for example, a state should attempt to subsidize all sectarian schools without discrimination, it would necessarily violate the principle of equality because certain sects felt impelled to conduct a large number of such schools, others few, others none.[9] How could the officers of government begin to measure the intangible factors that a true equality of treatment would involve, i. e., the relative intensity of religious attachment to parochial education that the respective groups required of their lay and clerical members? It would be presumptuous even to inquire. Thus, just as in matters of race our belated recognition of intangible factors has finally led us to the maxim `separate therefore unequal,' so in matters of religion Madison's immediate recognition of intangible factors led us promptly to the maxim `equal therefore separate.' Equality was out of the question without total separation." Confronting Injustice 186-187 (1967). The exemptions provided here insofar as welfare projects are concerned may have the ring of neutrality. But subsidies either through direct grant or tax exemption for sectarian causes, whether carried on by church qua church or by church qua welfare agency, must be treated differently, lest we in time allow the church qua church to be on the public payroll, which, I fear, is imminent. *712 As stated by my Brother BRENNAN in Abington School (concurring opinion), "It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government." Madison as President vetoed a bill incorporating the Protestant Episcopal Church in Alexandria, Virginia, as being a violation of the Establishment Clause. He said, inter alia:[10] "[T]he bill vests in the said incorporated church an authority to provide for the support of the poor and the education of poor children of the same, an authority which, being altogether superfluous if the provision is to be the result of pious charity, would be a precedent for giving to religious societies as such a legal agency in carrying into effect a public and civil duty." He also vetoed a bill that reserved a parcel of federal land "for the use" of the Baptist Church, as violating the Establishment Clause.[11] What Madison would have thought of the present state subsidy to churches—a tax exemption as distinguished from an outright grant—no one can say with certainty. The fact that Virginia early granted church tax exemptions cannot be credited to Madison. Certainly he seems to have been opposed. In his paper Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments he wrote:[12] "Strongly guarded as is the separation between Religion & Govt in the Constitution of the United *713 States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history." And he referred, inter alia, to the "attempt in Kentucky for example, where it was proposed to exempt Houses of Worship from taxes." From these three statements, Madison, it seems, opposed all state subsidies to churches. Cf. D. Robertson, Should Churches Be Taxed? 60-61 (1968). We should adhere to what we said in 367 U. S., that neither a State nor the Federal Government "can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." (Emphasis added.) Unless we adhere to that principle, we do not give full support either to the Free Exercise Clause or to the Establishment Clause. If a church can be exempted from paying real estate taxes, why may not it be made exempt from paying special assessments? The benefits in the two cases differ only in degree; and the burden on nonbelievers is likewise no different in kind.[13] *714 The religiously used real estate of the churches today constitutes a vast domain. See M. Larson & C. Lowell, The Churches: Their Riches, Revenues, and Immunities (1969). Their assets total over $141 billion and their annual income at least $22 billion. And the extent to which they are feeding from the public trough in a variety of forms is alarming. c. 10. We are advised that since 1968 at least five States have undertaken to give subsidies to parochial and other private schools[14]—Pennsylvania, Ohio, New York, Connecticut, and Rhode Island. And it is reported that under two federal Acts, the Elementary and Secondary Act of 1965, and the Higher Act of 1965, billions of dollars have been granted to parochial and other private schools. The federal grants to elementary and secondary schools under were made to the States which in turn made advances to elementary and secondary schools. Those figures are not available. But the federal grants to private institutions of higher education are revealed in Department of Health, and Welfare (HEW), Digest of al Statistics 16 (1969). These show in billions of dollars the following:[15] 1965-66. $1.4 1966-67. $1.6 1967-68. $1.7 1968-69. $1.9 1969-70. $2.1 *715 It is an old, old problem. Madison adverted to it:[16] "Are there not already examples in the U. S. of ecclesiastical wealth equally beyond its object and the foresight of those who laid the foundation of it? In the U. S. there is a double motive for fixing limits in this case, because wealth may increase not only from additional gifts, but from exorbitant advances in the value of the primitive one. In grants of vacant lands, and of lands in the vicinity of growing towns & Cities the increase of value is often such as if foreseen, would essentially controul the liberality confirming them. The people of the U. S. owe their Independence & their liberty, to the wisdom of descrying in the minute tax of 3 pence on tea, the magnitude of the evil comprized in the precedent. Let them exert the same wisdom, in watching agst every evil lurking under plausible disguises, and growing up from small beginnings."[17] *716 If believers are entitled to public financial support, so are nonbelievers. A believer and nonbeliever under the present law are treated differently because of the articles of their faith. Believers are doubtless comforted that the cause of religion is being fostered by this legislation. Yet one of the mandates of the First Amendment is to promote a viable, pluralistic society and to keep government neutral, not only between sects, but also between believers and nonbelievers. The present involvement of government in religion may seem de minimis. But it is, I fear, a long step down the Establishment path. Perhaps I have been misinformed. But as I have read the Constitution and its philosophy, I gathered that independence was the price of liberty. I conclude that this tax exemption is unconstitutional. APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING Assessment Bill. The December 24, 1784, print reproduced in the Supplemental Appendix to the dissenting opinion of Rutledge, J., in 72: "A BILL ESTABLISHING A PROVISION FOR TEACHERS OF THE CHRISTIAN RELIGION. "Whereas the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society; *717 which cannot be effected without a competent provision for learned teachers, who may be thereby enabled to devote their time and attention to the duty of instructing such citizens, as from their circumstances and want of education, cannot otherwise attain such knowledge; and it is judged that such provision may be made by the Legislature, without counteracting the liberal principle heretofore adopted and intended to be preserved by abolishing all distinctions of pre-eminence amongst the different societies or communities of Christians; "Be it therefore enacted by the General Assembly, That for the support of Christian teachers, per centum on the amount, or in the pound on the sum payable for tax on the property within this Commonwealth, is hereby assessed, and shall be paid by every person chargeable with the said tax at the time the same shall become due; and the Sheriffs of the several Counties shall have power to levy and collect the same in the same manner and under the like restrictions and limitations, as are or may be prescribed by the laws for raising the Revenues of this State. "And be it enacted, That for every sum so paid, the Sheriff or Collector shall give a receipt, expressing therein to what society of Christians the person from whom he may receive the same shall direct the money to be paid, keeping a distinct account thereof in his books. The Sheriff of every County, shall, on or before the day of in every year, return to the Court, upon oath, two alphabetical lists of the payments to him made, distinguishing in columns opposite to the names of the persons who shall have paid the same, the society to which the money so paid was by them appropriated; and one column for the names where no appropriation shall be made. One of which lists, after being recorded in a book to be kept for that purpose, shall be filed by the Clerk in his office; the other shall by the Sheriff *718 be fixed up in the Court-house, there to remain for the inspection of all concerned. And the Sheriff, after deducting five per centum for the collection, shall forthwith pay to such person or persons as shall be appointed to receive the same by the Vestry, Elders, or Directors, however denominated of each such society, the sum so stated to be due to that society; or in default thereof, upon the motion of such person or persons to the next or any succeeding Court, execution shall be awarded for the same against the Sheriff and his security, his and their executors or administrators; provided that ten days previous notice be given of such motion. And upon every such execution, the Officer serving the same shall proceed to immediate sale of the estate taken, and shall not accept of security for payment at the end of three months, nor to have the goods forthcoming at the day of sale; for his better direction wherein, the Clerk shall endorse upon every such execution that no security of any kind shall be taken. "And be it further enacted, That the money to be raised by virtue of this Act, shall be by the Vestries, Elders, or Directors of each religious society, appropriated to a provision for a Minister or Teacher of the Gospel of their denomination, or the providing places of divine worship, and to none other use whatsoever; except in the denominations of Quakers and Menonists, who may receive what is collected from their members, and place it in their general fund, to be disposed of in a manner which they shall think best calculated to promote their particular mode of worship. "And be it enacted, That all sums which at the time of payment to the Sheriff or Collector may not be appropriated by the person paying the same, shall be accounted for with the Court in manner as by this Act is directed; and after deducting for his collection, the Sheriff shall pay the amount thereof (upon account certified *719 by the Court to the Auditors of Public Accounts, and by them to the Treasurer) into the public Treasury, to be disposed of under the direction of the General Assembly, for the encouragement of seminaries of learning within the Counties whence such sums shall arise, and to no other use or purpose whatsoever. "THIS Act shall commence, and be in force, from and after the day of in the year "A Copy from the Engrossed Bill. "JOHN BECKLEY, C. H. D." APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING[18] Memorial and Remonstrance Against Religious Assessments, as reproduced in the Appendix to the dissenting opinion of Rutledge, J., in ): "We, the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled `A Bill establishing a provision for Teachers of the Christian Religion,' and conceiving that the same, if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State, to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill, "1. Because we hold it for a fundamental and undeniable truth, `that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence.' The Religion then of every man must be left to the conviction and conscience of every *720 man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men: It is unalienable also; because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true, that the majority may trespass on the rights of the minority. "2. Because if religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free government requires not merely, that the metes and bounds which separate each department *721 of power may be invariably maintained; but more especially, that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves. "3. Because, it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much, soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever? "4. Because, the bill violates that equality which ought to be the basis of every law, and which is more indispensible, in proportion as the validity or expediency of any law is more liable to be impeached. If `all men are by nature equally free and independent,' all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an `equal title to the free exercise of Religion according to the dictates *722 of conscience.' Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to men, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens; so it violates the same principle, by granting to others peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of their religions unnecessary and unwarantable? Can their piety alone be intrusted with the care of public worship? Ought their Religions to be endowed above all others, with extraordinary privileges, by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these denominations, to believe that they either covet pre-eminencies over their fellow citizens, or that they will be seduced by them, from the common opposition to the measure. "5. Because the bill implies either that the Civil Magistrate is a competent Judge of Religious truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: The second an unhallowed perversion of the means of salvation. "6. Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself; for every page of it disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them; and not only *723 during the period of miraculous aid, but long after it had been left to its own evidence, and the ordinary care of Providence: Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence, and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies, to trust it to its own merits. "7. Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries, has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy; ignorance and servility in the laity; in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to the ages prior to its incorporation with Civil policy. Propose a restoration of this primitive state in which its Teachers depended on the voluntary rewards of their flocks; many of them predict its downfall. On which side ought their testimony to have greatest weight, when for or when against their interest? "8. Because the establishment in question is not necessary for the support of Civil Government. If it be urged as necessary for the support of Civil Government only as it is a means of supporting Religion, and it be not necessary for the latter purpose, it cannot be necessary for the former. If Religion be not within [the] cognizance of Civil Government, how can its legal establishment be said to be necessary to civil Government? What influence in fact have ecclesiastical establishments *724 had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established clergy convenient auxiliaries. A just government, instituted to secure & perpetuate it, needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another. "9. Because the proposed establishment is a departure from that generous policy, which, offering an asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be, in its present form, from the Inquisition it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthropy in their due extent may offer a more certain repose from his troubles. "10. Because, it will have a like tendency to banish our Citizens. The allurements presented by other situations are every day thinning their number. To superadd a fresh motive to emigration, by revoking the liberty *725 which they now enjoy, would be the same species of folly which has dishonored and depopulated flourishing kingdoms. "11. Because, it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm to extinguish Religious discord, by proscribing all difference in Religious opinions. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs, that equal and compleat liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State. If with the salutary effects of this system under our own eyes, we begin to contract the bonds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed that `Christian forbearance, love and charity,' which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded should this enemy to the public quiet be armed with the force of a law? "12. Because, the policy of the bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift, ought to be that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false Religions; and how small is the former! Does the policy of the Bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of [revelation] from coming into the Region *726 of it; and countenances, by example the nations who continue in darkness, in shutting out those who might convey it to them. Instead of levelling as far as possible, every obstacle to the victorious progress of truth, the Bill with an ignoble and unchristian timidity would circumscribe it, with a wall of defence, against the encroachments of error. "13. Because attempts to enforce by legal sanctions, acts obnoxious to so great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case where it is deemed invalid and dangerous? and what may be the effect of so striking an example of impotency in the Government, on its general authority. "14. Because a measure of such singular magnitude and delicacy ought not to be imposed, without the clearest evidence that it is called for by a majority of citizens: and no satisfactory method is yet proposed by which the voice of the majority in this case may be determined, or its influence secured. `The people of the respective counties are indeed requested to signify their opinion respecting the adoption of the Bill to the next Session of Assembly.' But the representation must be made equal, before the voice either of the Representatives or of the Counties, will be that of the people. Our hope is that neither of the former will, after due consideration, espouse the dangerous principle of the Bill. Should the event disappoint us, it will still leave us in full confidence, that a fair appeal to the latter will reverse the sentence against our liberties. "15. Because, finally, `the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience' is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot *727 be less dear to us; if we consult the Declaration of those rights which pertain to the good people of Virginia, as the `basis and foundation of Government,' it is enumerated with equal solemnity, or rather studied emphasis. Either then, we must say, that the will of the Legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred: Either we must say, that they may controul the freedom of the press, may abolish the trial by jury, may swallow up the Executive and Judiciary Powers of the State; nay that they may despoil us of our very right to suffrage, and erect themselves into an independent and hereditary assembly: or we must say, that they have no authority to enact into law the Bill under consideration. We the subscribers say, that the General Assembly of this Commonwealth have no such authority: And that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it, this remonstrance; earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may on the one hand, turn their councils from every act which would affront his holy prerogative, or violate the trust committed to them: and on the other, guide them into every measure which may be worthy of his [blessing, may re]dound to their own praise, and may establish more firmly the liberties, the prosperity, and the Happiness of the Commonwealth."

Justice White

dissenting

Sullivan v. Zebley

https://www.courtlistener.com/opinion/112359/sullivan-v-zebley/

https://www.courtlistener.com/api/rest/v3/clusters/112359/

1989-027

Only two Terms ago, when reviewing an aspect of the Secretary's methodology for evaluating disability applications *542 under this Act, we emphasized that "Congress has `conferred on the Secretary exceptionally broad authority' " in this context, and we stated that the Secretary's regulations were therefore entitled to great deference. Bowen v. Yuckert, 482 U.S. 137, 145 (1987), quoting Heckler v. Campbell, 461 U.S. 458, 466 (1983). Because the majority has failed to abide by this principle, I respectfully dissent. As this case involves a challenge to an agency's interpretation of a statute that the agency was entrusted to administer, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), provides the framework for our review. We should therefore first ask whether Congress has expressed a clear intent on the question at issue here; if so, we should enforce that intent. If not, as I think is the case, we should defer to the agency's interpretation as long as it is permissible. Id., at 842-845. Section 1614(a)(3)(A) of the Social Security Act, 42 U.S. C. § 1382c(a)(3)(A) (1982 ed.), provides that a person is disabled if he is unable by reason of any medically determinable physical or mental impairment to engage in any substantial gainful employment; subsection (3)(B) further defines "disability" by providing that the impairment or impairments must be severe enough, considering the person's age, education, and work experience, to prevent him from engaging in any kind of substantial gainful employment which exists in the national economy. The Secretary has implemented the statute with respect to adults by regulations listing certain impairments that he will, without more, consider disabling because each of them would prevent an adult from engaging in any kind of gainful employment. 20 CFR pt. 404, subpt. P, App. 1 (1989). If not suffering from one of those impairments or its equivalent, an adult is then given further consideration as required by subsection (a)(3)(B) in order to determine whether in light of his impairment and the specified nonmedical factors he could perform any substantial gainful activities in the national labor market. *543 At the end of 42 U.S. C. § 1382c(a)(3)(A) (1982 ed.), with its definition of disability, is a parenthetical provision defining that term in the case of persons under 18: "or, in the case of a child under the age of 18, if he suffers from any medically determinable physical or mental impairment of comparable severity." There is no reference to nonmedical factors in this definition and no references to specific consequences that an impairment must or should produce. Furthermore, neither "comparable," "severity," nor the two words together are there or elsewhere defined in the Act, and their meaning is anything but clear. The severity of an impairment that disables an adult is measured by its effects on the ability to engage in gainful employment. But that yardstick is not useful with respect to children, whose inability to work is not due to mental or physical impairment, but to the stage of their development and the labor market. Given this task of comparing apples and oranges, it is understandable that the Secretary implemented the statute with respect to children in a somewhat different manner than he did for adults, and surely there is no direction in the statute to employ the same methodology for both groups. Under the regulations applying to children, a person under 18 will be considered disabled if suffering from a Part A impairment listed for adults or its equivalent, as long as the disease's processes have a similar effect on adults and younger persons. Because vocational considerations are largely beside the point in dealing with children — a fact that the Secretary submits Congress recognized in referring only to medical considerations in subsection (a)(3)(A)'s definition of what would disable a child — the regulations do not provide for further consideration of the child in light of such factors. Instead, a child not suffering from a Part A impairment is evaluated under an additional listing of impairments in Part B of Appendix 1 to subpart P, any of which, or its equivalent, will be deemed sufficient to disable a child. The preamble to Part B, published in 1977, 42 Fed. Reg. 14705, stated that in *544 identifying medical criteria that would establish disability for a child, the Secretary had placed primary emphasis on the effects of physical and mental impairments in children, and the restrictions on growth, learning, and development imposed on the child by the impairments. The impairments that were determined to affect the child's development to the same extent that the adult criteria have on an adult's ability to engage in substantial gainful activity were deemed to be of "comparable severity" to the disabling adult impairments. I do not find this approach to be an impermissible implementation of the rather ambiguous congressional directives with respect to children. Surely it cannot be said that the regulations, insofar as they use the Part A and Part B listings, singly or in combination, to identify disability in children, are inconsistent with the statute and void on their face. And as I understand it, no one claims that they are. What is submitted is, first, that the listings do not identify all of the specific medical impairments that should be considered disabling, and second, that each child not deemed disabled under Parts A and B must be evaluated in terms of both his or her medical impairments and nonmedical factors, as are adults. These alleged deficiencies are said to be sufficient to invalidate the regulations on their face. But surely these claims, if true, only would demonstrate that the regulations do not go far enough. Furthermore, the claims purport to be supported by descriptions of various unlisted impairments and anecdotal evidence, none of which, it seems to me, has been adjudged by a court to be sufficient to demonstrate that the Part B impairments, or their equivalents, fail to identify impairments that will have comparably severe effects on a child's development as the disabling impairments for an adult will have on an adult's ability to engage in substantial gainful employment. If there are medically determinable diseases or impairments that should be considered disabling because of comparable severity to those affecting adults, the children *545 suffering from them should claim disability, make their case before the Secretary, and take the case to court if their claims are rejected.[1] As for the more general attack on the regulation — that they do not provide for individualized evaluation based on nonmedical factors — the Secretary contends that it is a reasonable construction of section 3(A) to confine disabling criteria to medical factors where children are concerned. In any event, rather than declaring the regulations wholly or partly void on their face, the Court would be better advised to insist on children making out their claims in individual cases; only then can a court confidently say that the medically identifiable impairment, though neither a listed impairment nor its equivalent, is nevertheless of "comparable severity" and hence disabling when considered with nonmedical factors. I thus largely agree with District Judge Fullam's view of this case: "Plaintiff's argument may well be valid, in many cases; but errors in applying the regulations in some cases do not demonstrate invalidity of the regulations themselves. Part B of the Secretary's listings of impairments, 20 CFR § 416.925, is not facially invalid or incomplete, *546 seems to provide the necessary flexibility, and, in my view, permits the award of benefits in conformity with the intent of Congress. If these criteria are being misapplied or misinterpreted, the remedy lies in the appeal process in individual cases, not in a class-action decree." Zebley v. Heckler, 642 F. Supp. 220, 222 (ED Pa. 1986). The difference, furthermore, between the Secretary's regulatory approach toward adults and his approach toward children accords with the different purposes underlying the disability programs for the two groups. Congress provided disability benefits for adults in order to ensure "the basic means of replacing earnings that have been lost as a result of . . . disability" for those who "are not able to support themselves through work . . . ." H. R. Rep. No. 92-231, pp. 146-147 (1971). For this reason, insofar as adults are concerned, the Act defines disabilities in terms of the effect that the disabilities have on the claimant's ability to function in the workplace. In light of this purpose, it is appropriate for the Secretary to evaluate adults not only in terms of the severity of their impairment, but also in terms of their residual functional capacity to perform work. By contrast, Congress had a different set of considerations in mind when it provided for children's benefits. Recognizing that disabled children from low-income households are "among the most disadvantaged of all Americans," Congress provided special disability benefits for these persons "because their needs are often greater than those of nondisabled children." H. R. Rep. No. 92-231, supra, at 147-148. In other words, Congress' aim in providing benefits to these individuals was not to replace lost income, but rather to provide for their special health care expenses, such as the home health care costs arising out of the child's medical disability. It is consistent with this quite distinct purpose to focus consideration on the severity of the child's impairment from a medical perspective alone, without individualized consideration *547 of vocational or similar factors or the claimant's residual functional capacity. The nature and severity of a child's impairment, rather than the child's ability to contribute to his family's income, will necessarily determine the child's entitlement to benefits.[2] I also note that the majority faults the regulations on the grounds that they do not adequately provide for considering multiple impairments together. Ante, at 534. As 42 U.S. C. § 1382c(a)(3)(F) (1982 ed., Supp. IV) requires, however, the regulations expressly provide that impairments in combination may add up to qualify for benefits. 20 CFR § 416.923 (1989). The Court of Appeals recognized that the Secretary's regulations faithfully implement the statutory mandate "by providing generally that the combined effect of all of a claimant's impairments will be considered throughout the disability determination process." Zebley v. Bowen, 855 F.2d 67, 76 (CA3 1988). There is no cross-petition challenging this aspect of the judgment below, and the Court should therefore not expand the relief obtained in the Court of Appeals. In sum, because I cannot conclude that the Secretary's method for evaluating child-disability claims is an impermissible *548 construction of the Act, I dissent. The Social Security Administration processes over 100,000 child-disability claims a year. The agency has a finite amount of funds with which to work. By requiring the Secretary to conduct unspecified individualized determinations in cases where an applicant fails to satisfy the agency that he is otherwise disabled, the majority imposes costs on the agency that surely will detract from the pool of benefits available to the unfortunate children that Congress has sought to protect through the Supplemental Security Income Program.

Only two Terms ago, when reviewing an aspect of the Secretary's methodology for evaluating disability applications *542 under this Act, we emphasized that "Congress has `conferred on the Secretary exceptionally broad authority' " in this context, and we stated that the Secretary's regulations were therefore entitled to great deference. quoting Because the majority has failed to abide by this principle, I respectfully dissent. As this case involves a challenge to an agency's interpretation of a statute that the agency was entrusted to administer, Chevron U. S. A. provides the framework for our review. We should therefore first ask whether Congress has expressed a clear intent on the question at issue here; if so, we should enforce that intent. If not, as I think is the case, we should defer to the agency's interpretation as long as it is permissible. Section 1614(a)(3)(A) of the Social Security Act, 42 U.S. C. 1382c(a)(3)(A) (1982 ed.), provides that a person is disabled if he is unable by reason of any medically determinable physical or mental impairment to engage in any substantial gainful employment; subsection (3)(B) further defines "disability" by providing that the impairment or impairments must be severe enough, considering the person's age, education, and work experience, to prevent him from engaging in any kind of substantial gainful employment which exists in the national economy. The Secretary has implemented the statute with respect to adults by regulations listing certain impairments that he will, without more, consider disabling because each of them would prevent an adult from engaging in any kind of gainful employment. 20 CFR pt. 404, subpt. P, App. 1 (1989). If not suffering from one of those impairments or its equivalent, an adult is then given further consideration as required by subsection (a)(3)(B) in order to determine whether in light of his impairment and the specified nonmedical factors he could perform any substantial gainful activities in the national labor market. *543 At the end of 42 U.S. C. 1382c(a)(3)(A) (1982 ed.), with its definition of disability, is a parenthetical provision defining that term in the case of persons under 18: "or, in the case of a child under the age of 18, if he suffers from any medically determinable physical or mental impairment of comparable severity." There is no reference to nonmedical factors in this definition and no references to specific consequences that an impairment must or should produce. Furthermore, neither "comparable," "severity," nor the two words together are there or elsewhere defined in the Act, and their meaning is anything but clear. The severity of an impairment that disables an adult is measured by its effects on the ability to engage in gainful employment. But that yardstick is not useful with respect to children, whose inability to work is not due to mental or physical impairment, but to the stage of their development and the labor market. Given this task of comparing apples and oranges, it is understandable that the Secretary implemented the statute with respect to children in a somewhat different manner than he did for adults, and surely there is no direction in the statute to employ the same methodology for both groups. Under the regulations applying to children, a person under 18 will be considered disabled if suffering from a Part A impairment listed for adults or its equivalent, as long as the disease's processes have a similar effect on adults and younger persons. Because vocational considerations are largely beside the point in dealing with children — a fact that the Secretary submits Congress recognized in referring only to medical considerations in subsection (a)(3)(A)'s definition of what would disable a child — the regulations do not provide for further consideration of the child in light of such factors. Instead, a child not suffering from a Part A impairment is evaluated under an additional listing of impairments in Part B of Appendix 1 to subpart P, any of which, or its equivalent, will be deemed sufficient to disable a child. The preamble to Part B, published in 1977, stated that in *544 identifying medical criteria that would establish disability for a child, the Secretary had placed primary emphasis on the effects of physical and mental impairments in children, and the restrictions on growth, learning, and development imposed on the child by the impairments. The impairments that were determined to affect the child's development to the same extent that the adult criteria have on an adult's ability to engage in substantial gainful activity were deemed to be of "comparable severity" to the disabling adult impairments. I do not find this approach to be an impermissible implementation of the rather ambiguous congressional directives with respect to children. Surely it cannot be said that the regulations, insofar as they use the Part A and Part B listings, singly or in combination, to identify disability in children, are inconsistent with the statute and void on their face. And as I understand it, no one claims that they are. What is submitted is, first, that the listings do not identify all of the specific medical impairments that should be considered disabling, and second, that each child not deemed disabled under Parts A and B must be evaluated in terms of both his or her medical impairments and nonmedical factors, as are adults. These alleged deficiencies are said to be sufficient to invalidate the regulations on their face. But surely these claims, if true, only would demonstrate that the regulations do not go far enough. Furthermore, the claims purport to be supported by descriptions of various unlisted impairments and anecdotal evidence, none of which, it seems to me, has been adjudged by a court to be sufficient to demonstrate that the Part B impairments, or their equivalents, fail to identify impairments that will have comparably severe effects on a child's development as the disabling impairments for an adult will have on an adult's ability to engage in substantial gainful employment. If there are medically determinable diseases or impairments that should be considered disabling because of comparable severity to those affecting adults, the children *545 suffering from them should claim disability, make their case before the Secretary, and take the case to court if their claims are rejected.[1] As for the more general attack on the regulation — that they do not provide for individualized evaluation based on nonmedical factors — the Secretary contends that it is a reasonable construction of section 3(A) to confine disabling criteria to medical factors where children are concerned. In any event, rather than declaring the regulations wholly or partly void on their face, the Court would be better advised to insist on children making out their claims in individual cases; only then can a court confidently say that the medically identifiable impairment, though neither a listed impairment nor its equivalent, is nevertheless of "comparable severity" and hence disabling when considered with nonmedical factors. I thus largely agree with District Judge Fullam's view of this case: "Plaintiff's argument may well be valid, in many cases; but errors in applying the regulations in some cases do not demonstrate invalidity of the regulations themselves. Part B of the Secretary's listings of impairments, 20 CFR 416.925, is not facially invalid or incomplete, *546 seems to provide the necessary flexibility, and, in my view, permits the award of benefits in conformity with the intent of Congress. If these criteria are being misapplied or misinterpreted, the remedy lies in the appeal process in individual cases, not in a class-action decree." The difference, furthermore, between the Secretary's regulatory approach toward adults and his approach toward children accords with the different purposes underlying the disability programs for the two groups. Congress provided disability benefits for adults in order to ensure "the basic means of replacing earnings that have been lost as a result of disability" for those who "are not able to support themselves through work" H. R. Rep. No. pp. 146-147 (1971). For this reason, insofar as adults are concerned, the Act defines disabilities in terms of the effect that the disabilities have on the claimant's ability to function in the workplace. In light of this purpose, it is appropriate for the Secretary to evaluate adults not only in terms of the severity of their impairment, but also in terms of their residual functional capacity to perform work. By contrast, Congress had a different set of considerations in mind when it provided for children's benefits. Recognizing that disabled children from low-income households are "among the most disadvantaged of all Americans," Congress provided special disability benefits for these persons "because their needs are often greater than those of nondisabled children." H. R. Rep. No. In other words, Congress' aim in providing benefits to these individuals was not to replace lost income, but rather to provide for their special health care expenses, such as the home health care costs arising out of the child's medical disability. It is consistent with this quite distinct purpose to focus consideration on the severity of the child's impairment from a medical perspective alone, without individualized consideration *547 of vocational or similar factors or the claimant's residual functional capacity. The nature and severity of a child's impairment, rather than the child's ability to contribute to his family's income, will necessarily determine the child's entitlement to benefits.[2] I also note that the majority faults the regulations on the grounds that they do not adequately provide for considering multiple impairments together. Ante, at 534. As 42 U.S. C. 1382c(a)(3)(F) (1982 ed., Supp. IV) requires, however, the regulations expressly provide that impairments in combination may add up to qualify for benefits. 20 CFR 416.923 (1989). The Court of Appeals recognized that the Secretary's regulations faithfully implement the statutory mandate "by providing generally that the combined effect of all of a claimant's impairments will be considered throughout the disability determination process." There is no cross-petition challenging this aspect of the judgment below, and the Court should therefore not expand the relief obtained in the Court of Appeals. In sum, because I cannot conclude that the Secretary's method for evaluating child-disability claims is an impermissible *548 construction of the Act, I dissent. The Social Security Administration processes over 100,000 child-disability claims a year. The agency has a finite amount of funds with which to work. By requiring the Secretary to conduct unspecified individualized determinations in cases where an applicant fails to satisfy the agency that he is otherwise disabled, the majority imposes costs on the agency that surely will detract from the pool of benefits available to the unfortunate children that Congress has sought to protect through the Supplemental Security Income Program.

Justice Thomas

second_dissenting

Lawrence v. Texas

https://www.courtlistener.com/opinion/130160/lawrence-v-texas/

https://www.courtlistener.com/api/rest/v3/clusters/130160/

2002-083

I join JUSTICE SCALIA'S dissenting opinion. I write separately to note that the law before the Court today "is . . . uncommonly silly." Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources. Notwithstanding this, I recognize that as a Member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases `agreeably to the Constitution and laws of the United States.'" Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the *606 Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 562.

I join JUSTICE SCALIA'S dissenting opinion. I write separately to note that the law before the Court today "is uncommonly silly." If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources. Notwithstanding this, I recognize that as a Member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases `agreeably to the Constitution and laws of the United States.'" And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the *606 Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 562.

Justice Powell

majority

Douglas Oil Co. of Cal. v. Petrol Stops Northwest

https://www.courtlistener.com/opinion/110060/douglas-oil-co-of-cal-v-petrol-stops-northwest/

https://www.courtlistener.com/api/rest/v3/clusters/110060/

1978-077

This case presents two intertwined questions concerning a civil litigant's right to obtain transcripts[1] of federal criminal grand jury proceedings. First, what justification for disclosure must a private party show in order to overcome the presumption of grand jury secrecy applicable to such transcripts? Second, what court should assess the strength of this showing —the court where the civil action is pending, or the court that acts as custodian of the grand jury documents? I Respondent Petrol Stops Northwest is a gasoline retailer unaffiliated with any major oil company. In 1973, it operated 104 service stations located in Arizona, California, Oregon, Washington, and several other States. On December 13, 1973, respondent filed an antitrust action in the District of Arizona against 12 large oil companies, including petitioners Douglas Oil Co. of California and Phillips Petroleum Co.[2] In its complaint, respondent alleged that on January 1, 1973, there had been a sharp reduction in the amount of gasoline offered for sale to it, and that this reduction had resulted form a conspiracy among the oil companies to restrain trade in gasoline, in violation of §§ 1 and 2 of the Sherman Act. 26 Stat. 209, as amended, 15 U.S. C. §§ 1,2. As a part of this conspiracy, respondent charged, petitioners and their codefendants had fixed the prices of gasoline at the retail and wholesale distribution levels in California, Oregon, and Washington.[3] *214 Respondents Gas-A-Tron of Arizona and Coinoco also independently sell gasoline through service stations they own or lease. Unlike respondent Petrol Stops Northwest, however, their operations are limited to the vicinity of Tucson, Ariz. On November 2, 1973, Gas-A-Tron and Coinoco filed an antitrust complaint in the District of Arizona naming as defendants nine large oil companies, including petitioner Phillips Petroleum Co.[4] Like respondent Petrol Stops Northwest, Gas-A-Tron and Coinoco alleged that as of January 1, 1973, their supply of gasoline had been sharply reduced, and attributed this reduction to a conspiracy to restrain trade in violation of the Sherman Act. The specific charges of illegal behavior asserted by the two retailers substantially paralleled those made by Petrol Stops Northwest in its complaint, and included an allegation that the defendants had fixed the price of gasoline at the wholesale and retail levels.[5] Although the issues and defendants in the two actions were substantially the same, the cases were assigned to two different judges in the District of Arizona. In February 1974, respondents served upon petitioners a set of interrogatories which included a request that petitioners state whether either of their companies at any time between January 1, 1968, and December 14, 1974 (sic), had had any communication with any of their competitors concerning the wholesale price of gasoline to be sold to unaffiliated retailers. Petitioners also were asked to produce any documents they had concerning *215 such communications. Petitioners responded that they were aware of no such communications, and therefore could produce no documents pertinent to the request.[6] In the meantime, the Antitrust Division of the Department of Justice had been investigating since 1972 the pricing behavior on the west coast of several major oil companies, including petitioners. See App. 26. As part of this investigation, employees of petitioners were called to testify before a grand jury empaneled in the Central District of California. The Government's investigation culminated on March 19, 1975, when the grand jury returned an indictment charging petitioners and four other oil companies with having conspired to fix the price of "rebrand gasoline" in California, Oregon, Washington, Nevada, and Arizona.[7] The indictment alleged that the price-fixing conspiracy had begun in July 1970 and had continued at least until the end of 1971. *216 Although initially all six defendants charged in the criminal indictment pleaded not guilty, by December 1975, each had pleaded nolo contendere and was fined $50,000. Before changing their pleas, petitioners, acting pursuant to Fed. Rule Crim. Proc. 16 (a) (1) (A), asked the District Court for the Central District of California to give them copies of the transcripts of testimony given by their employees before the grand jury. Their request was granted, and it appears that petitioners continue to possess copies of these transcripts. In October 1976, respondents served upon petitioners requests under Fed. Rule Civ. Proc. 34 for production of the grand jury transcripts in petitioners' possession. Petitioners objected to the requests for production, arguing that the transcripts were not relevant to the private antitrust actions and that they were not likely to lead to any admissible evidence. Respondents did not pursue their discovery requests by making a motion in the Arizona trial court under Fed. Rule Civ. Proc. 37 to compel discovery. See n. 17, infra. Rather, they filed a petition in the District Court for the Central District of California asking that court, as guardian of the grand jury transcripts under Fed. Rule Crim. Proc. 6 (e), to order them released to respondents. An attorney from the Antitrust Division of the Department of Justice appeared and indicated that the Government had no objection to respondents' receiving the transcripts already made available to petitioners under Fed. Rule Crim. Proc. 16 (a) (1) (A). He suggested to the court, however, that the real parties in interest were petitioners, and therefore that they should be given an opportunity to be heard. The California District Court accepted this suggestion, and petitioners participated in the proceedings as parties adverse to respondents. After briefing and oral argument, the court ordered the Chief of the Antitrust Division's Los Angeles Office "to produce for [respondents'] inspection and copying all grand jury transcripts previously disclosed to Phillips Petroleum Company or Douglas Oil Company of California or their attorneys *217 relating to the indictment in United States v. Phillips, et al., Criminal Docket No. 75-377." App. 48-49. The production order was subject, however, to several protective conditions. The transcripts were to "be disclosed only to counsel for [respondents] in connection with the two civil actions" pending in Arizona. Furthermore, under the court's order the transcripts of grand jury testimony "may be used . . . solely for the purpose of impeaching that witness or refreshing the recollection of a witness, either in deposition or at trial" in the Arizona actions. Finally, the court forbade any further reproduction of the matter turned over to respondents, and ordered that the material be returned to the Antitrust Division "upon completion of the purposes authorized by this Order." On appeal, the Ninth Circuit affirmed the disclosure order. Petrol Stops Northwest v. United States, 571 F.2d 1127 (1978). The Court of Appeals noted that under United States v. Procter & Gamble Co., 356 U.S. 677 (1958), a party seeking access to grand jury transcripts must show a "particularized need." In evaluating the strength of the need shown in the present case, the Ninth Circuit considered two factors: the need for continued grand jury secrecy and respondents' need for the requested material. The court found the former need to be insubstantial, as the grand jury proceeding had concluded three years before and the transcripts already had been released to petitioners. As to respondents' claim, the court conceded that it knew little about the Arizona proceedings, but speculated that the transcripts would facilitate the prosecution of respondents' civil suits: Petitioners' answers to the 1974 interrogatories concerning price communications with competitors appeared to be at odds with their pleas of nolo contendere in the California criminal action. II Petitioners contend that the courts below erred in holding that, because the grand jury had dissolved and the requested material had been disclosed already to the defendants, respondents *218 had to show only a "slight need" for disclosure.[8] According to petitioners, this approach to disclosure under Fed. Rule Crim. Proc. 6 (e) is contrary to prior decisions of this Court indicating that "a civil litigant must demonstrate a compelling necessity for specified grand jury materials before disclosure is proper." Brief for Petitioners 16. We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. See, e. g., United States v. Procter & Gamble Co., supra.[9] In particular, we have noted several *219 distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.[10] For all of these reasons, courts have been reluctant to lift unnecessarily the veil of secrecy from the grand jury. At the same time, it has been recognized that in some situations justice may demand that discrete portions of transcripts be *220 made available for use in subsequent proceedings. See, e. g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233-234 (1940). Indeed, recognition of the occasional need for litigants to have access to grand jury transcripts led to the provision in Fed. Rule Crim. Proc. 6 (e) (2) (C) (i) that disclosure of grand jury transcripts may be made "when so directed by a court preliminarily to or in connection with a judicial proceeding."[11] *221 In United States v. Procter & Gamble Co., the Court sought to accommodate the competing needs for secrecy and disclosure by ruling that a private party seeking to obtain grand jury transcripts must demonstrate that "without the transcript a defense would be greatly prejudiced or that without reference to it an injustice would be done." 356 U.S., at 682. Moreover, the Court required that the showing of need for the transcripts be made "with particularity" so that "the secrecy of the proceedings [may] be lifted discretely and limitedly." Id., at 683. Accord, Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959). In Dennis v. United States, 384 U.S. 855 (1966), the Court considered a request for disclosure of grand jury records in quite different circumstances. It was there held to be an abuse of discretion for a District Court in a criminal trial to refuse to disclose to the defendants the grand jury testimony of four witnesses who some years earlier had appeared before a grand jury investigating activities of the defendants. The grand jury had completed its investigation, and the witnesses whose testimony was sought already had testified in public concerning the same matters. The Court noted that "[n]one of the reasons traditionally advanced to justify nondisclosure of grand jury minutes" was significant in those circumstances, id., at 872 n. 18, whereas the defendants had shown it to be likely that the witnesses' testimony at trial was inconsistent with their prior grand jury testimony. *222 From Procter & Gamble and Dennis emerges the standard for determining when the traditional secrecy of the grand jury may be broken: Parties seeking grand jury transcripts under Rule 6 (e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.[12] Such a showing must be made even when the grand jury whose transcripts are sought has concluded its operations, as it had in Dennis. For in considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. Persons called upon to testify will consider the likelihood that their testimony may one day be disclosed to outside parties. Fear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties. Concern as to the future consequences of frank and full testimony is heightened where the witness is an employee of a company under investigation. Thus, the interests in grand jury secrecy, although reduced, are not eliminated merely because the grand jury has ended its activities.[13] *223 It is clear from Procter & Gamble and Dennis that disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy, and that the burden of demonstrating this balance rests upon the private party seeking disclosure. It is equally clear that as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification. Accord, Illinois v. Sarbaugh, 552 F.2d 768, 774 (CA7), cert. denied sub nom. J. L. Simmons Co. v. Illinois, 434 U.S. 889 (1977); U. S. Industries, Inc. v. United States District Court, 345 F.2d 18, 21 (CA9), cert. denied, 382 U.S. 814 (1965); 1 C. Wright, Federal Practice & Procedure § 106, p. 173 (1969). In sum, as so often is the situation in our jurisprudence, the court's duty in a case of this kind is to weigh carefully the competing interests in light of the relevant circumstances and the standards announced by this Court. And if disclosure is ordered, the court may include protective limitations on the use of the disclosed material, as did the District Court in this case. Moreover, we emphasize that a court called upon to determine whether grand jury transcripts should be released necessarily is infused with substantial discretion. See Pittsburgh Plate Glass Co. v. United States, supra, at 399. Applying these principles to the present case, we conclude that neither the District Court nor the Court of Appeals erred in the standard by which it assessed the request for disclosure under Rule 6 (e). The District Court made clear that the question before it was whether a particularized need for disclosure outweighed the interest in continued grand jury secrecy. See App. 53-55. Similarly, the Court of Appeals correctly understood that the standard enunciated in Procter & Gamble requires a court to examine the extent of the need for continuing grand jury secrecy, the need for disclosure, and *224 the extent to which the request was limited to that material directly pertinent to the need for disclosure.[14] III Petitioners contend, irrespective of the legal standard applied, that the District Court for the Central District of California was not the proper court to rule on respondents' motion for disclosure. Petitioners note that the Court of Appeals and the District Court both purported to base their decisions in part upon the need for use of the requested material in the civil antitrust proceedings pending in Arizona.[15] This determination necessarily involved consideration of the nature and status of the Arizona proceedings, matters peculiarly within the competence of the Arizona District Court. Although the question is an important one, this Court heretofore has had no occasion to consider which court or courts may direct disclosure of grand jury minutes under Fed. Rule Crim. Proc. 6 (e).[16] The federal courts that have addressed the *225 question generally have said that the request for disclosure of grand jury minutes under Rule 6 (e) must be directed toward the court under whose auspices the grand jury was empaneled. See Illinois v. Sarbaugh, supra, at 772-773; Gibson v. United States, 131 U. S. App. D. C. 143, 144, 403 F.2d 166, 167 (1968); Herman Schwabe, Inc. v. United Shoe Machinery Corp., 21 F. R. D. 233, 235 (DC 1957); accord, 1 Wright, supra, § 106, p. 174. But see United States v. American Oil Co., 264 F. Supp. 93, 95 (ED Mo. 1966). Indeed, those who seek grand jury transcripts have little choice other than to file a request with the court that supervised the grand jury, as it is the only court with control over the transcripts.[17] Quite apart from practical necessity, the policies underlying Rule 6 (e) dictate that the grand jury's supervisory court participate in reviewing such requests, as it is in the best position to determine the continuing need for grand jury secrecy. Ideally, the judge who supervised the grand jury should review the request for disclosure, as he will have firsthand knowledge of the grand jury's activities. But even other judges of the district where the grand jury sat may be able *226 to discover facts affecting the need for secrecy more easily than would judges from elsewhere around the country. The records are in the custody of the district court, and therefore are readily available for reference. Moreover, the personnel of that court—and particularly those of the United States Attorney's office who worked with the grand jury—are more likely to be informed about the grand jury proceedings than those in a district that had no prior experience with the subject of the request. We conclude, therefore, that, in general, requests for disclosure of grand jury transcripts should be directed to the court that supervised the grand jury's activities. It does not follow, however, that in every case the court in which the grand jury sat should make the final decision whether a request for disclosure under Rule 6 (e) should be granted. Where, as in this case, the request is made for use in a case pending in another district, the judges of the court having custody of the grand jury transcripts will have no firsthand knowledge of the litigation in which the transcripts allegedly are needed, and no practical means by which such knowledge can be obtained. In such a case, a judge in the district of the grand jury cannot weigh in an informed manner the need for disclosure against the need for maintaining grand jury secrecy. Thus, it may well be impossible for that court to apply the standard required by the decisions of this Court, reiterated above, for determining whether the veil of secrecy should be lifted. See supra, at 221-224. In the Electrical Equipment Cases, a federal court contemplated a similar quandary. Following the convictions of 29 heavy electrical equipment manufacturers for price fixing, about 1,900 private damages suits were filed in 34 Federal Districts around the country. See Note, Release of Grand Jury Minutes in the National Deposition Program of the Electrical Equipment Cases, 112 U. Pa. L. Rev. 1133 (1964). During one of these suits, plaintiffs asked the District Court for the Eastern District of Pennsylvania to disclose portions *227 of a witness' grand jury testimony so that they could be used to refresh the witness' memory during a deposition. Philadelphia v. Westinghouse Electric Corp., 210 F. Supp. 486 (ED Pa. 1962). The request was directed to Judge Clary, who had supervised the grand jury and also was in charge of the deposition. He had no difficulty, therefore, setting forth in detail in his opinion both the need for secrecy and the need for disclosure. Recognizing, however, that the other District Courts in which related actions were pending might face similar requests for the grand jury minutes under his control, Judge Clary outlined a procedure by which parties in the future could put forward such requests. In the court's words: "[T]he Grand Jury transcript of any witness deposed in [these suits], either in this district or in any other district of the United States in which these cases are pending, should be made available to the deposition Judge for use in his district. There may be and probably will be many instances during these national depositions when disclosure may be advisable. . . . The refusal [to order disclosure in this case] cannot rule out production where in camera examination by a deposition Judge uncovers material discrepancy or significant facts which the witness concealed, or failed to remember, at his deposition. Such disclosure as is necessary to uncover full and complete facts must be allowed. If, at the completion of any deposition taken in the national program, a motion is made for the production of that witness' Grand Jury testimony, and if the deposition Judge requests it from this Court for examination in camera, the testimony will be immediately made available to him. The deposition Judge may then contrast the Grand Jury testimony with the deposition and determine, in his own discretion, whether in the interest of justice there is compelling need for disclosure." Id., at 491. *228 Because Judge Clary in his opinion had discussed with care the various secrecy concerns as they applied to the transcripts before him, district courts called upon in the future to rule upon disclosure motions could weigh these concerns against the need for disclosure. In this way, the court provided precisely what was required by the situation: a coordinating of the informed views of both the civil trial court and the grand jury court concerning the propriety of disclosing portions of the grand jury minutes. Several other federal courts, recognizing the need for collaboration, have devised means by which both the court of the grand jury and the court of the collateral civil proceeding may participate in the decision whether transcripts should be released under Rule 6 (e). See In re 1975-2 Grand Jury Investigation, 566 F.2d 1293, 1296 (CA5 1978); Illinois v. Sarbaugh, 552 F. 2d, at 773 n. 5; Baker v. United States Steel Corp., 492 F.2d 1074, 1076-1077 (CA2 1974); Gibson v. United States, 131 U. S. App. D. C., at 144-145, 403 F.2d, at 167-168. In the present case, the District Court for the Central District of California was called upon to make an evaluation entirely beyond its expertise. The District Judge readily conceded that he had no knowledge of the civil proceedings pending several hundred miles away in Arizona. App. 58. Nonetheless, he was asked to rule whether there was a "particularized need" for disclosure of portions of the grand jury transcript and whether this need outweighed the need for continued grand jury secrecy. Generally we leave it to the considered discretion of the district court to determine the proper response to requests for disclosure under Rule 6 (e). See Pittsburgh Plate Glass Co. v. United States, 360 U. S., at 399. We have a duty, however, to guide the exercise of discretion by district courts, and when necessary to overturn discretionary decisions under Rule 6 (e). See, e. g., Dennis v. United States, 384 U.S. 855 (1966). We find that the District Court here abused its discretion in releasing directly to respondents the grand jury minutes *229 they requested. Appreciating that it was largely ignorant of the Arizona civil suits, the court nonetheless made a judgment concerning the relative needs for secrecy and disclosure.[18] The court based its decision largely upon the unsupported assertions of counsel during oral argument before it, supplemented only by the criminal indictment returned by the grand jury, the civil complaints, and petitioners' response to a single interrogatory that appeared to be inconsistent with petitioners' nolo contendere plea in the criminal case. Even the court's comparison of the criminal indictment and the civil complaints did not indicate unambiguously what, if any, portions of the grand jury transcripts would be pertinent to the subject of the Arizona actions, as only some of the same parties were named and only some of the same territory was covered. The possibility of an unnecessary breach of grand jury secrecy in situations such as this is not insignificant. A court more familiar with the course of the antitrust litigation might have seen important differences between the allegations of the indictment and the contours of the conspiracy respondents sought to prove in their civil actions—differences indicating that disclosure would likely be of little value to respondents, save perhaps as a mechanism for general discovery. Alternatively, *230 the courts where the civil proceedings were pending might have considered disclosure at that point in the litigation to be premature; if there were to be conflicts between petitioners' statements and their actions in the criminal proceedings, the court might have preferred to wait until they ripened at depositions or even during testimony at trial. Under these circumstances, the better practice would have been for the District Court, after making a written evaluation of the need for continued grand jury secrecy and a determination that the limited evidence before it showed that disclosure might be appropriate, to send the requested materials to the court where the civil cases were pending.[19] The Arizona court, armed with its special knowledge of the status of the civil actions, then could have considered the requests for disclosure in light of the California court's evaluation of the need *231 for continued grand jury secrecy. In this way, both the need for continued secrecy and the need for disclosure could have been evaluated by the courts in the best position to make the respective evaluations.[20] We do not suggest, of course, that such a procedure would be required in every case arising under Rule 6 (e). Circumstances that dictate the need for cooperative action between the courts of different districts will vary, and procedures to deal with the many variations are best left to the rulemaking procedures established by Congress. Undoubtedly there will be cases in which the court to whom the Rule 6 (e) request is directed will be able intelligently, on the basis of limited knowledge, to decide that disclosure plainly is inappropriate or that justice requires immediate disclosure to the requesting party, without reference of the matter to any other court. Our decision today therefore is restricted to situations, such as that presented by this case, in which the district court having custody of the grand jury records is unlikely to have dependable knowledge of the status of, and the needs of the parties in, the civil suit in which the desired transcripts are to be used. 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. MR.

This case presents two intertwined questions concerning a civil litigant's right to obtain transcripts[1] of federal criminal grand jury proceedings. First, what justification for disclosure must a private party show in order to overcome the presumption of grand jury secrecy applicable to such transcripts? Second, what court should assess the strength of this showing —the court where the civil action is pending, or the court that acts as custodian of the grand jury documents? I Respondent Petrol Stops Northwest is a gasoline retailer unaffiliated with any major oil company. In 1973, it operated 104 service stations located in Arizona, California, Oregon, Washington, and several other On December 13, 1973, respondent filed an antitrust action in the District of Arizona against 12 large oil companies, including petitioners Douglas Oil Co. of California and Phillips Petroleum Co.[2] In its complaint, respondent alleged that on January 1, 1973, there had been a sharp reduction in the amount of gasoline offered for sale to it, and that this reduction had resulted form a conspiracy among the oil companies to restrain trade in gasoline, in violation of 1 and 2 of the Sherman Act. as amended, 15 U.S. C. 1,2. As a part of this conspiracy, respondent charged, petitioners and their codefendants had fixed the prices of gasoline at the retail and wholesale distribution levels in California, Oregon, and Washington.[3] *4 Respondents Gas-A-Tron of Arizona and Coinoco also independently sell gasoline through service stations they own or lease. Unlike respondent Petrol Stops Northwest, however, their operations are limited to the vicinity of Tucson, Ariz. On November 2, 1973, Gas-A-Tron and Coinoco filed an antitrust complaint in the District of Arizona naming as defendants nine large oil companies, including petitioner Phillips Petroleum Co.[4] Like respondent Petrol Stops Northwest, Gas-A-Tron and Coinoco alleged that as of January 1, 1973, their supply of gasoline had been sharply reduced, and attributed this reduction to a conspiracy to restrain trade in violation of the Sherman Act. The specific charges of illegal behavior asserted by the two retailers substantially paralleled those made by Petrol Stops Northwest in its complaint, and included an allegation that the defendants had fixed the price of gasoline at the wholesale and retail levels.[5] Although the issues and defendants in the two actions were substantially the same, the cases were assigned to two different judges in the District of Arizona. In February respondents served upon petitioners a set of interrogatories which included a request that petitioners state whether either of their companies at any time between January 1, and December 14, (sic), had had any communication with any of their competitors concerning the wholesale price of gasoline to be sold to unaffiliated retailers. Petitioners also were asked to produce any documents they had concerning *5 such communications. Petitioners responded that they were aware of no such communications, and therefore could produce no documents pertinent to the request.[6] In the meantime, the Antitrust Division of the Department of Justice had been investigating since 1972 the pricing behavior on the west coast of several major oil companies, including petitioners. See App. 26. As part of this investigation, employees of petitioners were called to testify before a grand jury empaneled in the Central District of California. The Government's investigation culminated on March 19, 1975, when the grand jury returned an indictment charging petitioners and four other oil companies with having conspired to fix the price of "rebrand gasoline" in California, Oregon, Washington, Nevada, and Arizona.[7] The indictment alleged that the price-fixing conspiracy had begun in July 1970 and had continued at least until the end of 1971. *6 Although initially all six defendants charged in the criminal indictment pleaded not guilty, by December 1975, each had pleaded nolo contendere and was fined $50,000. Before changing their pleas, petitioners, acting pursuant to Fed. Rule Crim. Proc. 16 (a) (1) (A), asked the District Court for the Central District of California to give them copies of the transcripts of testimony given by their employees before the grand jury. Their request was granted, and it appears that petitioners continue to possess copies of these transcripts. In October 1976, respondents served upon petitioners requests under Fed. Rule Civ. Proc. 34 for production of the grand jury transcripts in petitioners' possession. Petitioners objected to the requests for production, arguing that the transcripts were not relevant to the private antitrust actions and that they were not likely to lead to any admissible evidence. Respondents did not pursue their discovery requests by making a motion in the Arizona trial court under Fed. Rule Civ. Proc. 37 to compel discovery. See n. 17, infra. Rather, they filed a petition in the District Court for the Central District of California asking that court, as guardian of the grand jury transcripts under Fed. Rule Crim. Proc. 6 (e), to order them released to respondents. An attorney from the Antitrust Division of the Department of Justice appeared and indicated that the Government had no objection to respondents' receiving the transcripts already made available to petitioners under Fed. Rule Crim. Proc. 16 (a) (1) (A). He suggested to the court, however, that the real parties in interest were petitioners, and therefore that they should be given an opportunity to be heard. The California District Court accepted this suggestion, and petitioners participated in the proceedings as parties adverse to respondents. After briefing and oral argument, the court ordered the Chief of the Antitrust Division's Los Angeles Office "to produce for [respondents'] inspection and copying all grand jury transcripts previously disclosed to Phillips Petroleum Company or Douglas Oil Company of California or their attorneys *7 relating to the indictment in United v. Phillips, et al., Criminal Docket No. 75-377." App. 48-49. The production order was subject, however, to several protective conditions. The transcripts were to "be disclosed only to counsel for [respondents] in connection with the two civil actions" pending in Arizona. Furthermore, under the court's order the transcripts of grand jury testimony "may be used solely for the purpose of impeaching that witness or refreshing the recollection of a witness, either in deposition or at trial" in the Arizona actions. Finally, the court forbade any further reproduction of the matter turned over to respondents, and ordered that the material be returned to the Antitrust Division "upon completion of the purposes authorized by this Order." On appeal, the Ninth Circuit affirmed the disclosure order. Petrol Stops The Court of Appeals noted that under United a party seeking access to grand jury transcripts must show a "particularized need." In evaluating the strength of the need shown in the present case, the Ninth Circuit considered two factors: the need for continued grand jury secrecy and respondents' need for the requested material. The court found the former need to be insubstantial, as the grand jury proceeding had concluded three years before and the transcripts already had been released to petitioners. As to respondents' claim, the court conceded that it knew little about the Arizona proceedings, but speculated that the transcripts would facilitate the prosecution of respondents' civil suits: Petitioners' answers to the interrogatories concerning price communications with competitors appeared to be at odds with their pleas of nolo contendere in the California criminal action. II Petitioners contend that the courts below erred in holding that, because the grand jury had dissolved and the requested material had been disclosed already to the defendants, respondents *8 had to show only a "slight need" for disclosure.[8] According to petitioners, this approach to disclosure under Fed. Rule Crim. Proc. 6 (e) is contrary to prior decisions of this Court indicating that "a civil litigant must demonstrate a compelling necessity for specified grand jury materials before disclosure is proper." Brief for Petitioners 16. We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. See, e. g., United supra.[9] In particular, we have noted several *9 distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.[10] For all of these reasons, courts have been reluctant to lift unnecessarily the veil of secrecy from the grand jury. At the same time, it has been recognized that in some situations justice may demand that discrete portions of transcripts be *220 made available for use in subsequent proceedings. See, e. g., United Indeed, recognition of the occasional need for litigants to have access to grand jury transcripts led to the provision in Fed. Rule Crim. Proc. 6 (e) (2) (C) (i) that disclosure of grand jury transcripts may be made "when so directed by a court preliminarily to or in connection with a judicial proceeding."[11] *2 In United the Court sought to accommodate the competing needs for secrecy and disclosure by ruling that a private party seeking to obtain grand jury transcripts must demonstrate that "without the transcript a defense would be greatly prejudiced or that without reference to it an injustice would be done." Moreover, the Court required that the showing of need for the transcripts be made "with particularity" so that "the secrecy of the proceedings [may] be lifted discretely and limitedly." Accord, Pittsburgh Plate Glass In the Court considered a request for disclosure of grand jury records in quite different circumstances. It was there held to be an abuse of discretion for a District Court in a criminal trial to refuse to disclose to the defendants the grand jury testimony of four witnesses who some years earlier had appeared before a grand jury investigating activities of the defendants. The grand jury had completed its investigation, and the witnesses whose testimony was sought already had testified in public concerning the same matters. The Court noted that "[n]one of the reasons traditionally advanced to justify nondisclosure of grand jury minutes" was significant in those circumstances, at 872 n. 18, whereas the defendants had shown it to be likely that the witnesses' testimony at trial was inconsistent with their prior grand jury testimony. *222 From Procter & Gamble and Dennis emerges the standard for determining when the traditional secrecy of the grand jury may be broken: Parties seeking grand jury transcripts under Rule 6 (e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.[12] Such a showing must be made even when the grand jury whose transcripts are sought has concluded its operations, as it had in Dennis. For in considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. Persons called upon to testify will consider the likelihood that their testimony may one day be disclosed to outside parties. Fear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties. Concern as to the future consequences of frank and full testimony is heightened where the witness is an employee of a company under investigation. Thus, the interests in grand jury secrecy, although reduced, are not eliminated merely because the grand jury has ended its activities.[13] *223 It is clear from Procter & Gamble and Dennis that disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy, and that the burden of demonstrating this balance rests upon the private party seeking disclosure. It is equally clear that as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification. Accord, (CA7), cert. denied sub nom. J. L. Simmons ; U. S. Industries, (CA9), cert. denied, ; 1 C. Federal Practice & Procedure 106, p. 173 (1969). In sum, as so often is the situation in our jurisprudence, the court's duty in a case of this kind is to weigh carefully the competing interests in light of the relevant circumstances and the standards announced by this Court. And if disclosure is ordered, the court may include protective limitations on the use of the disclosed material, as did the District Court in this case. Moreover, we emphasize that a court called upon to determine whether grand jury transcripts should be released necessarily is infused with substantial discretion. See Pittsburgh Plate Glass Applying these principles to the present case, we conclude that neither the District Court nor the Court of Appeals erred in the standard by which it assessed the request for disclosure under Rule 6 (e). The District Court made clear that the question before it was whether a particularized need for disclosure outweighed the interest in continued grand jury secrecy. See App. 53-55. Similarly, the Court of Appeals correctly understood that the standard enunciated in Procter & Gamble requires a court to examine the extent of the need for continuing grand jury secrecy, the need for disclosure, and *224 the extent to which the request was limited to that material directly pertinent to the need for disclosure.[14] III Petitioners contend, irrespective of the legal standard applied, that the District Court for the Central District of California was not the proper court to rule on respondents' motion for disclosure. Petitioners note that the Court of Appeals and the District Court both purported to base their decisions in part upon the need for use of the requested material in the civil antitrust proceedings pending in Arizona.[15] This determination necessarily involved consideration of the nature and status of the Arizona proceedings, matters peculiarly within the competence of the Arizona District Court. Although the question is an important one, this Court heretofore has had no occasion to consider which court or courts may direct disclosure of grand jury minutes under Fed. Rule Crim. Proc. 6 (e).[16] The federal courts that have addressed the *225 question generally have said that the request for disclosure of grand jury minutes under Rule 6 (e) must be directed toward the court under whose auspices the grand jury was empaneled. See ; Gibson v. United 131 U. S. App. D. C. 143, 144, ; Herman Schwabe, Inc. v. United Shoe Machinery Corp., F. R. D. 233, 235 (DC 17); accord, 1 106, p. 174. But see United v. American Oil Co., Indeed, those who seek grand jury transcripts have little choice other than to file a request with the court that supervised the grand jury, as it is the only court with control over the transcripts.[17] Quite apart from practical necessity, the policies underlying Rule 6 (e) dictate that the grand jury's supervisory court participate in reviewing such requests, as it is in the best position to determine the continuing need for grand jury secrecy. Ideally, the judge who supervised the grand jury should review the request for disclosure, as he will have firsthand knowledge of the grand jury's activities. But even other judges of the district where the grand jury sat may be able *226 to discover facts affecting the need for secrecy more easily than would judges from elsewhere around the country. The records are in the custody of the district court, and therefore are readily available for reference. Moreover, the personnel of that court—and particularly those of the United Attorney's office who worked with the grand jury—are more likely to be informed about the grand jury proceedings than those in a district that had no prior experience with the subject of the request. We conclude, therefore, that, in general, requests for disclosure of grand jury transcripts should be directed to the court that supervised the grand jury's activities. It does not follow, however, that in every case the court in which the grand jury sat should make the final decision whether a request for disclosure under Rule 6 (e) should be granted. Where, as in this case, the request is made for use in a case pending in another district, the judges of the court having custody of the grand jury transcripts will have no firsthand knowledge of the litigation in which the transcripts allegedly are needed, and no practical means by which such knowledge can be obtained. In such a case, a judge in the district of the grand jury cannot weigh in an informed manner the need for disclosure against the need for maintaining grand jury secrecy. Thus, it may well be impossible for that court to apply the standard required by the decisions of this Court, reiterated above, for determining whether the veil of secrecy should be lifted. See at 2-224. In the Electrical Equipment Cases, a federal court contemplated a similar quandary. Following the convictions of 29 heavy electrical equipment manufacturers for price fixing, about 1,900 private damages suits were filed in 34 Federal Districts around the country. See Note, Release of Grand Jury Minutes in the National Deposition Program of the Electrical Equipment Cases, During one of these suits, plaintiffs asked the District Court for the Eastern District of Pennsylvania to disclose portions *227 of a witness' grand jury testimony so that they could be used to refresh the witness' memory during a deposition. 0 F. Supp. 486 The request was directed to Judge Clary, who had supervised the grand jury and also was in charge of the deposition. He had no difficulty, therefore, setting forth in detail in his opinion both the need for secrecy and the need for disclosure. Recognizing, however, that the other District Courts in which related actions were pending might face similar requests for the grand jury minutes under his control, Judge Clary outlined a procedure by which parties in the future could put forward such requests. In the court's words: "[T]he Grand Jury transcript of any witness deposed in [these suits], either in this district or in any other district of the United in which these cases are pending, should be made available to the deposition Judge for use in his district. There may be and probably will be many instances during these national depositions when disclosure may be advisable. The refusal [to order disclosure in this case] cannot rule out production where in camera examination by a deposition Judge uncovers material discrepancy or significant facts which the witness concealed, or failed to remember, at his deposition. Such disclosure as is necessary to uncover full and complete facts must be allowed. If, at the completion of any deposition taken in the national program, a motion is made for the production of that witness' Grand Jury testimony, and if the deposition Judge requests it from this Court for examination in camera, the testimony will be immediately made available to him. The deposition Judge may then contrast the Grand Jury testimony with the deposition and determine, in his own discretion, whether in the interest of justice there is compelling need for disclosure." *228 Because Judge Clary in his opinion had discussed with care the various secrecy concerns as they applied to the transcripts before him, district courts called upon in the future to rule upon disclosure motions could weigh these concerns against the need for disclosure. In this way, the court provided precisely what was required by the situation: a coordinating of the informed views of both the civil trial court and the grand jury court concerning the propriety of disclosing portions of the grand jury minutes. Several other federal courts, recognizing the need for collaboration, have devised means by which both the court of the grand jury and the court of the collateral civil proceeding may participate in the decision whether transcripts should be released under Rule 6 (e). See In re 1975-2 Grand Jury Investigation, ; 552 F. 2d, at 773 n. 5; Baker v. United Steel Corp., ; Gibson v. United 131 U. S. App. D. C., at 403 F.2d, at -168. In the present case, the District Court for the Central District of California was called upon to make an evaluation entirely beyond its expertise. The District Judge readily conceded that he had no knowledge of the civil proceedings pending several hundred miles away in Arizona. App. 58. Nonetheless, he was asked to rule whether there was a "particularized need" for disclosure of portions of the grand jury transcript and whether this need outweighed the need for continued grand jury secrecy. Generally we leave it to the considered discretion of the district court to determine the proper response to requests for disclosure under Rule 6 (e). See Pittsburgh Plate Glass 360 U. S., We have a duty, however, to guide the exercise of discretion by district courts, and when necessary to overturn discretionary decisions under Rule 6 (e). See, e. g., We find that the District Court here abused its discretion in releasing directly to respondents the grand jury minutes *229 they requested. Appreciating that it was largely ignorant of the Arizona civil suits, the court nonetheless made a judgment concerning the relative needs for secrecy and disclosure.[18] The court based its decision largely upon the unsupported assertions of counsel during oral argument before it, supplemented only by the criminal indictment returned by the grand jury, the civil complaints, and petitioners' response to a single interrogatory that appeared to be inconsistent with petitioners' nolo contendere plea in the criminal case. Even the court's comparison of the criminal indictment and the civil complaints did not indicate unambiguously what, if any, portions of the grand jury transcripts would be pertinent to the subject of the Arizona actions, as only some of the same parties were named and only some of the same territory was covered. The possibility of an unnecessary breach of grand jury secrecy in situations such as this is not insignificant. A court more familiar with the course of the antitrust litigation might have seen important differences between the allegations of the indictment and the contours of the conspiracy respondents sought to prove in their civil actions—differences indicating that disclosure would likely be of little value to respondents, save perhaps as a mechanism for general discovery. Alternatively, *230 the courts where the civil proceedings were pending might have considered disclosure at that point in the litigation to be premature; if there were to be conflicts between petitioners' statements and their actions in the criminal proceedings, the court might have preferred to wait until they ripened at depositions or even during testimony at trial. Under these circumstances, the better practice would have been for the District Court, after making a written evaluation of the need for continued grand jury secrecy and a determination that the limited evidence before it showed that disclosure might be appropriate, to send the requested materials to the court where the civil cases were pending.[19] The Arizona court, armed with its special knowledge of the status of the civil actions, then could have considered the requests for disclosure in light of the California court's evaluation of the need *231 for continued grand jury secrecy. In this way, both the need for continued secrecy and the need for disclosure could have been evaluated by the courts in the best position to make the respective evaluations.[20] We do not suggest, of course, that such a procedure would be required in every case arising under Rule 6 (e). Circumstances that dictate the need for cooperative action between the courts of different districts will vary, and procedures to deal with the many variations are best left to the rulemaking procedures established by Congress. Undoubtedly there will be cases in which the court to whom the Rule 6 (e) request is directed will be able intelligently, on the basis of limited knowledge, to decide that disclosure plainly is inappropriate or that justice requires immediate disclosure to the requesting party, without reference of the matter to any other court. Our decision today therefore is restricted to situations, such as that presented by this case, in which the district court having custody of the grand jury records is unlikely to have dependable knowledge of the status of, and the needs of the parties in, the civil suit in which the desired transcripts are to be used. 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. MR.

Justice Rehnquist

majority

Mahan v. Howell

https://www.courtlistener.com/opinion/108719/mahan-v-howell/

https://www.courtlistener.com/api/rest/v3/clusters/108719/

1972-054

Acting pursuant to the mandate of its newly revised state constitution,[1] the Virginia General Assembly enacted statutes apportioning the State for the election of members of its House of Delegates[2] and Senate.[3] Two suits were brought challenging the constitutionality of the House redistricting statute on the grounds that there were impermissible population variances in the districts, that the multimember districts diluted representation,[4] and that the use of multimember districts *318 constituted racial gerrymandering.[5] The Senate redistricting statute was attacked in a separate suit, which alleged that the city of Norfolk was unconstitutionally split into three districts, allocating Navy personnel "home-ported" in Norfolk to one district and isolating Negro voters in one district. Three three-judge district courts were convened to hear the suits pursuant to 28 U.S. C. §§ 2281 and 2284. The suits were consolidated and heard by the four judges who variously made up the three three-judge panels. The consolidated District Court entered an interlocutory order that, inter alia, declared the legislative reapportionment statutes unconstitutional and enjoined the holding of elections in electoral districts other than those established by the court's opinion. Howell v. Mahan, 330 F. Supp. 1138, 1150 (ED Va. 1971). Appellants, the Secretary of the State Board of Elections and its members and the city of Virginia Beach, have appealed directly to this Court from those portions of the court's order, invoking our jurisdiction under 28 U.S. C. § 1253. I The statute apportioning the House provided for a combination of 52 single-member, multimember, and floater delegate districts from which 100 delegates would *319 be elected. As found by the lower court, the ideal district in Virginia consisted of 46,485 persons per delegate, and the maximum percentage variation from that ideal under the Act was 16.4%—the 12th district being over-represented by 6.8% and the 16th district being under-represented by 9.6%.[6] The population ratio between these two districts was 1.18 to 1. The average percentage variance under the plan was ±3.89%, and the minimum population percentage necessary to elect a majority of the House was 49.29%. Of the 52 districts, 35 were within 4% of perfection and nine exceeded a 6% variance from the ideal. With one exception, the delegate districts followed political jurisdictional lines of the counties and cities. That exception, Fairfax County, was allotted 10 delegates but was divided into two five-member districts. Relying on Kirkpatrick v. Preisler, 394 U.S. 526 (1969), Wells v. Rockefeller, 394 U.S. 542 (1969), and Reynolds v. Sims, 377 U.S. 533 (1964), the District Court concluded that the 16.4% variation was sufficient to condemn the House statute under the "one person, one vote" doctrine. While it noted that the variances were traceable to the desire of the General Assembly to maintain the integrity of traditional county and city boundaries, and that it was impossible to draft district lines to overcome unconstitutional disparities and still maintain *320 such integrity, it held that the State proved no governmental necessity for strictly adhering to political subdivision lines. Accordingly, it undertook its own re-districting and devised a plan having a percentage variation of slightly over 10% from the ideal district, a percentage it believed came "within passable constitutional limits as `a good-faith effort to achieve absolute equality.' Kirkpatrick v. Preisler . . . ." Howell v. Mahan, 330 F. Supp., at 1147-1148. Appellants contend that the District Court's reliance on Kirkpatrick v. Preisler, supra, and Wells v. Rockefeller, supra, in striking down the General Assembly's reapportionment plan was erroneous, and that proper application of the standards enunciated in Reynolds v. Sims, supra, would have resulted in a finding that the statute was constitutional. In Kirkpatrick v. Preisler and Wells v. Rockefeller, this Court invalidated state reapportionment statutes for federal congressional districts having maximum percentage deviations of 5.97% and 13.1% respectively. The express purpose of these cases was to elucidate the standard first announced in the holding of Wesberry v. Sanders, 376 U.S. 1 (1964), that "the command of Art. I, § 2, that Representatives be chosen `by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." Id., at 7-8 (footnotes omitted). And it was concluded that that command "permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown." Kirkpatrick v. Preisler, supra, at 531. The principal question thus presented for review is whether or not the Equal Protection Clause of the Fourteenth Amendment likewise permits only "the limited population variances which are unavoidable despite a good-faith *321 effort to achieve absolute equality" in the context of state legislative reapportionment.[7] This Court first recognized that the Equal Protection Clause requires both houses of a bicameral state legislature to be apportioned substantially on a population basis in Reynolds v. Sims, supra. In so doing, it suggested that in the implementation of the basic constitutional principle—equality of population among the districts —more flexibility was constitutionally permissible with respect to state legislative reapportionment than in congressional redistricting. Id., at 578. Consideration was given to the fact that, almost invariably, there is a significantly larger number of seats in state legislative bodies to be distributed within a State than congressional seats, and that therefore it may be feasible for a State to use political subdivision lines to a greater extent in establishing state legislative districts than congressional districts while still affording adequate statewide representation. Ibid. Another possible justification for deviation from population-based representation in state legislatures was stated to be: "[T]hat of insuring some voice to political subdivisions, as political subdivisions. Several factors make more than insubstantial claims that a State can rationally consider according political subdivisions some independent representation in at least one body of the state legislature, as long as the basic standard of equality of population among districts is maintained. Local governmental entities are frequently charged with various responsibilities incident to the operation of state government. In many States much of the legislature's activity involves the enactment of so-called local legislation, directed only *322 to the concerns of particular political subdivisions. And a State may legitimately desire to construct districts along political subdivision lines to deter the possibilities of gerrymandering. . . ." Id., at 580-581. The Court reiterated that the overriding objective in reapportionment must be "substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State." Id., at 579. By contrast, the Court in Wesberry v. Sanders, supra, recognized no excuse for the failure to meet the objective of equal representation for equal numbers of people in congressional districting other than the practical impossibility of drawing equal districts with mathematical precision. Thus, whereas population alone has been the sole criterion of constitutionality in congressional redistricting under Art. I, § 2, broader latitude has been afforded the States under the Equal Protection Clause in state legislative redistricting because of the considerations enumerated in Reynolds v. Sims, supra. The dichotomy between the two lines of cases has consistently been maintained. In Kirkpatrick v. Preisler, for example, one asserted justification for population variances was that they were necessarily a result of the State's attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing political subdivision boundaries. This argument was rejected in the congressional context. But in Abate v. Mundt, 403 U.S. 182 (1971), an apportionment for a county legislature having a maximum deviation from equality of 11.9% was upheld in the face of an equal protection challenge, in part because New York had a long history of maintaining the integrity of existing local government units within the county. *323 Application of the "absolute equality" test of Kirkpatrick and Wells to state legislative redistricting may impair the normal functioning of state and local governments. Such an effect is readily apparent from an analysis of the District Court's plan in this case. Under Art. VII, §§ 2 and 3 of Virginia's Constitution, the General Assembly is given extensive power to enact special legislation regarding the organization of, and the exercise of governmental powers by, counties, cities, towns, and other political subdivisions. The statute redistricting the House of Delegates consistently sought to avoid the fragmentation of such subdivisions, assertedly to afford them a voice in Richmond to seek such local legislation. The court's reapportionment, based on its application of Kirkpatrick and Wells, resulted in a maximum deviation of slightly over 10%,[8] as compared with the roughly 16% maximum variation found in the plan adopted by the legislature. But to achieve even this limit of variation, the court's plan extended single and multimember districts across subdivision lines in 12 instances, substituting population equality for subdivision representation. Scott County, for example, under the Assembly's plan was placed in the first district and its population of 24,376 voted with the 76,346 persons in Dickinson, Lee, and Wise Counties for two delegates. The district thus established deviated by 8.3% from the ideal. The court transferred five of Scott County's enumeration districts, containing 6,063 persons, to the contiguous second district composed of the city of Bristol, and Smith and Washington Counties, population 87,041. Scott County's representation was thereby substantially reduced in the first district, and all but nonexistent in the second district. *324 The opportunity of its voters to champion local legislation relating to Scott County is virtually nil. The countervailing benefit resulting from the court's readjustment is the fact that the first district's deviation from the ideal is now reduced to 1.8%. The city of Virginia Beach saw its position deteriorate in a similar manner under the court-imposed plan. Under the legislative plan, Virginia Beach constituted the 40th district and was allocated three delegates for its population of 172,106. The resulting underrepresentation was cured by providing a floterial district, the 42d, which also included portions of the cities of Chesapeake and Portsmouth. Under the court's plan, the 42d district was dissolved. Of its 32,651 persons that constituted the deviation from the ideal for the 40th district, 3,515 were placed in the 40th, and 29,136 were transferred to Norfolk's 39th district. The 39th district is a multimember district that includes the 307,951 persons who make up the population of the city of Norfolk. Thus, those Virginia Beach residents who cast their vote in the 39th district amount to only 8.6% of that district's population. In terms of practical politics, Virginia Beach complains that such representation is no representation at all so far as local legislation is concerned, and that those 29,136 people transferred to the 39th district have in that respect been effectively disenfranchised. We conclude, therefore, that the constitutionality of Virginia's legislative redistricting plan was not to be judged by the more stringent standards that Kirkpatrick and Wells make applicable to congressional reapportionment, but instead by the equal protection test enunciated in Reynolds v. Sims, supra. We reaffirm its holding that "the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal *325 population as is practicable." 377 U.S., at 577. We likewise reaffirm its conclusion that "[s]o long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature." Id., at 579. The asserted justification for the divergences in this case—the State's policy of maintaining the integrity of political subdivision lines—is not a new one to this Court. In Davis v. Mann, 377 U.S. 678, 686 (1964), it was noted: "Because cities and counties have consistently not been split or divided for purposes of legislative representation, multimember districts have been utilized for cities and counties whose populations entitle them to more than a single representative . . . . And, because of a tradition of respecting the integrity of the boundaries of cities and counties in drawing district lines, districts have been constructed only of combinations of counties and cities and not by pieces of them. . . ." The then-existing substantial deviation in the apportionment of both Houses defeated the constitutionality of Virginia's districting statutes in that case, but the possibility of maintaining the integrity of political subdivision lines in districting was not precluded so long as there existed "such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination." Roman v. Sincock, 377 U.S. 695, 710 (1964). We are not prepared to say that the decision of the people of Virginia to grant the General Assembly the power to enact local legislation dealing with the political *326 subdivisions is irrational. And if that be so, the decision of the General Assembly to provide representation to subdivisions qua subdivisions in order to implement that constitutional power is likewise valid when measured against the Equal Protection Clause of the Fourteenth Amendment. The inquiry then becomes whether it can reasonably be said that the state policy urged by Virginia to justify the divergences in the legislative reapportionment plan of the House is, indeed, furthered by the plan adopted by the legislature, and whether, if so justified, the divergences are also within tolerable limits. For a State's policy urged in justification of disparity in district population, however rational, cannot constitutionally be permitted to emasculate the goal of substantial equality. There was uncontradicted evidence offered in the District Court to the effect that the legislature's plan, subject to minor qualifications, "produces the minimum deviation above and below the norm, keeping intact political boundaries. . . ." (Defendants' Exhibit 8.) That court itself recognized that equality was impossible if political boundaries were to be kept intact in the process of districting. But it went on to hold that since the State "proved no governmental necessity for strictly adhering to political subdivision lines," the legislative plan was constitutionally invalid. Howell v. Mahan, supra, at 1140. As we noted above, however, the proper equal protection test is not framed in terms of "governmental necessity," but instead in terms of a claim that a State may "rationally consider." Reynolds v. Sims, supra, at 580-581. The District Court intimated that one reason for rejecting the justification for divergences offered by the State was its conclusion that the legislature had not in fact implemented its asserted policy, "as witness the division of Fairfax County." Howell v. Mahan, supra, *327 at 1140. But while Fairfax County was divided, it was not fragmented. And had it not been divided, there would have been one ten-member district in Fairfax County, a result that this Court might well have been thought to disfavor as a result of its opinion in Connor v. Johnson, 402 U.S. 690, 692 (1971). The State can scarcely be condemned for simultaneously attempting to move toward smaller districts and to maintain the integrity of its political subdivision lines. Appellees argue that the traditional adherence to such lines is no longer a justification since the Virginia constitutional provision regarding reapportionment, Art, II, § 6, supra, n. 1, neither specifically provides for apportionment along political subdivision lines nor draws a distinction between the standards for congressional and legislative districting. The standard in each case is described in the "as nearly as is practicable" language used in Wesberry v. Sanders, supra, and Reynolds v. Sims, supra. But, as we have previously indicated, the latitude afforded to States in legislative redistricting is somewhat broader than that afforded to them in congressional redistricting. Virginia was free as a matter of federal constitutional law to construe the mandate of its Constitution more liberally in the case of legislative redistricting than in the case of congressional redistricting, and the plan adopted by the legislature indicates that it has done so. We also reject the argument that, because the State is not adhering to its tradition of respecting the boundaries of political subdivisions in congressional and State Senate redistricting, it may not do so in the case of redistricting for the House of Delegates. Nothing in the fact that Virginia has followed the constitutional mandate of this Court in the case of congressional redistricting, or that it has chosen in some instances to ignore political subdivision lines in the case of the State Senate, *328 detracts from the validity of its consistently applied policy to have at least one house of its bicameral legislature responsive to voters of political subdivisions as such.[9] We hold that the legislature's plan for apportionment of the House of Delegates may reasonably be said to advance the rational state policy of respecting the boundaries of political subdivisions. The remaining inquiry is whether the population disparities among the districts that have resulted from the pursuit of this plan exceed constitutional limits. We conclude that they do not. The most stringent mathematical standard that has heretofore been imposed upon an apportionment plan for a state legislature by this Court was enunciated in Swann v. Adams, 385 U.S. 440 (1967), where a scheme having a maximum deviation of 26% was disapproved. In that case, the State of Florida offered no evidence at the trial level to support the challenged variations with respect to either the House or Senate. Id., at 446. The Court emphasized there that "the fact that a 10% or 15% variation from the norm is approved in one State has little bearing on the validity of a similar variation in another State." Id., at 445. We, therefore, find the citations to numerous cases decided by state and lower *329 federal courts to be of limited use in determining the constitutionality of Virginia's statute. The relatively minor variations present in the Virginia plan contrast sharply with the larger variations in state legislative reapportionment plans that have been struck down by previous decisions of this Court. See, e. g., Reynolds v. Sims, supra; Swann v. Adams, supra; and Kilgarlin v. Hill, 386 U.S. 120 (1967). Neither courts nor legislatures are furnished any specialized calipers that enable them to extract from the general language of the Equal Protection Clause of the Fourteenth Amendment the mathematical formula that establishes what range of percentage deviations is permissible, and what is not. The 16-odd percent maximum deviation that the District Court found to exist in the legislative plan for the reapportionment of the House is substantially less than the percentage deviations that have been found invalid in the previous decisions of this Court. While this percentage may well approach tolerable limits, we do not believe it exceeds them. Virginia has not sacrificed substantial equality to justifiable deviations. The policy of maintaining the integrity of political subdivision lines in the process of reapportioning a state legislature, the policy consistently advanced by Virginia as a justification for disparities in population among districts that elect members to the House of Delegates, is a rational one. It can reasonably be said, upon examination of the legislative plan, that it does in fact advance that policy. The population disparities that are permitted thereunder result in a maximum percentage deviation that we hold to be within tolerable constitutional limits. We, therefore, hold the General Assembly's plan for the reapportionment of the House of Delegates constitutional and reverse the District Court's conclusion *330 to the contrary. We also affirm Weinberg v. Prichard et al., No. 71-444, held pending this disposition.[10] II The General Assembly divided the State into 40 single-member senatorial districts. Under the plan, a portion of the city of Virginia Beach was added to the city of Norfolk and the entire area was divided into three single-member districts, which the court below found conformed almost ideally, numerically, to the "one person, one vote" principle. But all naval personnel "home-ported" at the U. S. Naval Station, Norfolk, about 36,700 persons, were assigned to the Fifth Senatorial District because that is where they were counted on official census tracts.[11] It was undisputed that only about 8,100 of such *331 personnel lived aboard vessels assigned to the census tract within the Fifth District. The court had before it evidence that about 18,000 lived outside the Fifth District but within the Norfolk and Virginia Beach areas that, if true, indicated a malapportionment with respect to such personnel.[12] Lacking survey data sufficiently precise to permit the creation of three single-member districts more closely representing the actual population, the court corrected the disparities by establishing one multimember district composed of the Fifth, Sixth, and Seventh Districts, encompassing the city of Norfolk and a portion of Virginia Beach. Howell v. Mahan, supra. Appellants charge that the District Court was not justified in overturning the districts established by the General Assembly since the Assembly validly used census tracts in apportioning the area and that the imposition by the court of a multimember district contravened the valid legislative policy in favor of single-member districts. We conclude that under the unusual, if not unique, circumstances in this case the District Court did not err in declining to accord conclusive weight to the legislative reliance on census figures. That court justifiably found *332 that with respect to the three single-member districts in question, the legislative plan resulted in both significant population disparities and the assignment of military personnel to vote in districts in which they admittedly did not reside. Since discriminatory treatment of military personnel in legislative reapportionment is constitutionally impermissible, Davis v. Mann, supra, at 691, we hold that the interim relief granted by the District Court as to the State Senate was within the bounds of the discretion confided to it. Application of interim remedial techniques in voting rights cases has largely been left to the district courts. Reynolds v. Sims, supra, at 585. The courts are bound to apply equitable considerations and in Reynolds it was stated that "[i]n awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws . . . ." Ibid. The court below was faced with severe time pressures. The reapportionment plans were first forwarded to the Attorney General on March 1, 1971. By April 7, these three cases had been filed and consolidated. The first hearing was scheduled for May 24, but on May 7, the Attorney General interposed his objections pursuant to the Voting Rights Act. As a result, the May 24 hearing was largely devoted to arguing about the effect of such objections and after that hearing, the court directed the cases to be continued until June 15. It also postponed the primary elections, which had been set for June 8, until September 14. The cases were finally heard on June 16, and the court's interlocutory order was entered on July 2, just two weeks prior to the revised July 16 filing deadline for primary candidates. Prior to the time the court acted, this Court had handed down Whitcomb v. Chavis, 403 U.S. 124 (1971), recognizing that multimember districts were not per se *333 violative of the Equal Protection Clause. The court conscientiously considered both the legislative policy and this Court's admonition in Connor v. Johnson, supra, that in fashioning apportionment remedies, the use of single-member districts is preferred. But it was confronted with plausible evidence of substantial malapportionment with respect to military personnel, the mandate of this Court that voting discrimination against military personnel is constitutionally impermissible, Davis v. Mann, supra, at 691-692, and the fear that too much delay would have seriously disrupted the fall 1971 elections. Facing as it did this singular combination of unique factors, we cannot say that the District Court abused its discretion in fashioning the interim remedy of combining the three districts into one multimember district.[13] We, therefore, affirm the order of that Court insofar as it dealt with the State Senate. Affirmed in part, reversed in part. MR. JUSTICE POWELL took no part in the consideration or decision of these cases. MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, concurring in part and dissenting in part. I agree with the Court in No. 71-373, City of Virginia Beach v. Howell, that the joinder by the District Court of three senatorial districts in the Norfolk-Virginia Beach area to create one multimember senatorial district for the 1971 election was permissible under the special circumstances *334 of this case. Cf. Whitcomb v. Chavis, 403 U.S. 124, 176-179 (1971) (DOUGLAS, J., concurring and dissenting); see Fortson v. Dorsey, 379 U.S. 433, 439 (1965); Burns v. Richardson, 384 U.S. 73, 88 (1966). I dissent, however, in No. 71-364, Mahan v. Howell, from the Court's action in setting aside the District Court's finding that the apportionment of the State House of Delegates violated the Equal Protection Clause of the Fourteenth Amendment. The Court approves a legislative apportionment plan that is conceded to produce a total deviation of at least 16.4% from the constitutional ideal.[1] Of course, "the fact that a 10% or 15% variation from the norm is approved in one State has little bearing on the validity of a similar variation in another State." Swann v. Adams, 385 U.S. 440, 445 (1967). "What is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the case." Reynolds v. Sims, 377 U.S. 533, 578 (1964). Since every reapportionment case presents as its factual predicate a unique combination of circumstances, decisions upholding or invalidating a legislative plan cannot normally have great precedential significance. Abate v. Mundt, 403 U.S. 182, 189 (1971) (BRENNAN, J., dissenting). But language in the Court's opinion today suggests that more may be at stake than the application of well-established principles to a novel set of facts. In my view, the problem in the case before us is in no sense one of first impression, but is squarely controlled by our prior decisions. See Kirkpatrick v. Preisler, 394 U.S. 526 (1969); Swann v. Adams, supra; Reynolds v. Sims, supra; Davis v. Mann, 377 U.S. 678 (1964); Roman v. *335 Sincock, 377 U.S. 695 (1964). It is appropriate, therefore, to call to mind again the controlling principles and to show that, properly applied to the facts of the case before us, they preclude a reversal of the District Court's decision. I Virginia's recently amended Constitution provides that "members of the Senate and of the House of Delegates of the General Assembly shall be elected from electoral districts established by the General Assembly," and "[e]very electoral district shall be composed of contiguous and compact territory and shall be so constituted as to give, as nearly as is practicable, representation in proportion to the population of the district." Art. II, § 6. Pursuant to that requirement, the General Assembly in 1971 divided the Commonwealth into 52 legislative districts from which the 100 members of the House of Delegates were to be elected. On the basis of 1970 census figures, which set the population of the Commonwealth at 4,648,494, each delegate should ideally represent 46,485 persons. While the legislature's plan does not disregard constitutional requirements to the flagrant extent of many earlier cases,[2] it does, nevertheless, demonstrate a systematic pattern of substantial deviation from the constitutional ideal. Under the 1971 plan, more than 25% of the delegates would be elected from districts in which the population deviates from the ideal by more than 5%. Almost 60% of the delegates would represent districts that deviate by more than 3%. Four legislators would be elected from districts that are overrepresented or underrepresented by more than 8%. And the maximum deviation—the *336 spread between the most overrepresented and the most underrepresented districts—would be at least 16.4%, and might be as high as 23.6%, depending on the method of calculation. Assuming a maximum deviation of 16.4%, the legislature's plan is still significantly less representative than many plans previously struck down by state and lower federal courts.[3] Appellees maintain, however, that the total deviation, properly computed, is in fact 23.6%— a figure closely approximating the 25.65% deviation that led us to invalidate the Senate plan in Swann v. Adams, supra, the 26.48% deviation that led us to invalidate the House plan in Kilgarlin v. Hill, 386 U.S. 120 (1967), and the 24.78% deviation that led us to invalidate the House plan in Whitcomb v. Chavis, 403 U.S. 124, 161-163 (1971). Appellees arrive at the figure of 23.6% by taking into account the deviations in floterial districts, see App. 81-83, and appellants seem to concede that 23.6% is an accurate indicator of the total deviation. See Brief for Appellant Commonwealth of Virginia 7.[4] *337 The District Court pointed out that the "range of deviation may exceed 16.4%," 330 F. Supp. 1138, 1139 n. 1 (ED Va. 1971), but it had no occasion to consider whether 23.6% was the more accurate figure because of its finding that "[u]nder either mode of calculation . . . the statewide range of deviation will not pass constitutional muster." Ibid. Although conceding that the District Court did not reject or disparage appellees' assertion of a 23.6% deviation, the Court nevertheless reaches the perplexing conclusion that we "confine our consideration to the figures actually found by the court and used to support its holding of unconstitutionality"— 16.4%. Ante, at 319, n. 6. But if the legislature's plan does, in fact, "pass constitutional muster" on the assumption of a 16.4% deviation, then it is surely fair to ask whether the plan would still be valid assuming a total deviation of 23.6%. The Court refuses either to confront the question directly or to render it moot by determining that the figure of 23.6% is irrelevant because improperly derived. Instead, it attempts to obscure the issue by contending that the Commonwealth and the city of Virginia Beach disputed appellees' assertion of a 23.6% total deviation. That contention is wholly incorrect. Neither in the answers filed in the District Court, nor in the briefs, nor at oral argument did the Commonwealth or the city of Virginia Beach quarrel with appellee's method of calculating the deviation in floterial districts. See n. 4, supra. The Court's refusal to consider the question can only mean that appellees have the option of reopening this litigation in the District Court in an attempt to persuade that court that the true measure of the *338 deviation is 23.6% and that a deviation of this order is fatal to the Commonwealth's plan. In my view, there is no need to prolong this litigation by resolution in the court below of an issue that this Court should, but inexplicably does not, decide. The District Court correctly held that deviations of the magnitude of even 16.4% are sufficient to invalidate the legislature's plan. And that court added—again correctly —that "[i]n reapportionment cases the burden is on the State to justify deviations from parity by `legitimate considerations incident to the effectuation of a rational state policy.' Reynolds v. Sims, 377 U.S. 533, 579 (1964); see Swann v. Adams, 385 U.S. 440, 444 (1967). The State has proved no governmental necessity for strictly adhering to political subdivision lines." 330 F. Supp., at 1140. Accordingly, the District Court promulgated its own apportionment plan, which significantly reduced the extent of deviation. Under the District Court's plan, the maximum deviation would be 7.2%,[5] excluding one district which is geographically isolated from the mainland of the Commonwealth.[6] And, even including that isolated district, the maximum total deviation would not exceed 10.2%. But the substantial reduction in the maximum deviation does not in itself make clear the full measure of the improvement achieved by the District Court's plan. The number of delegates whose districts deviate from the norm by 3% or more would be almost cut in *339 half, from 58 to 32. And of the 32 districts still exceeding the 3% mark, only one—the geographically isolated district—would exceed the mean by more than 3.7%. In short, while the District Court did not achieve its stated goal of "perfect mathematical division" because of the "multiplicity of delegates, the geography of the State and the diversity of population concentrations," 330 F. Supp., at 1147, its plan would still produce measurably greater equality of representation. Appellants necessarily concede that the District Court's plan would reduce the inequality in population per district, but they defend the legislature's plan on the ground that "tolerance of political jurisdictional lines is justification for some deviation," Brief for Appellant Commonwealth of Virginia 24. They maintain that the legislature's plan achieved the highest degree of equality possible without fragmenting political subdivisions. The principal question presented for our decision is whether on the facts of this case an asserted state interest in preserving the integrity of county lines can justify the resulting substantial deviations from population equality. II The holdings of our prior decisions can be restated in two unequivocal propositions. First, the paramount goal of reapportionment must be the drawing of district lines so as to achieve precise equality in the population of each district.[7] "[T]he Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of *340 equal population as is practicable." Reynolds v. Sims, 377 U. S., at 577; see also Kirkpatrick v. Preisler, 394 U. S., at 531. The Constitution does not permit a State to relegate considerations of equality to secondary status and reserve as the primary goal of apportionment the service of some other state interest. Second, it is open to the State, in the event that it should fail to achieve the goal of population equality, to attempt to justify its failure by demonstrating that precise equality could not be achieved without jeopardizing some critical governmental interest. The Equal Protection Clause does not exalt the principle of equal representation to the point of nullifying every competing interest of the State. But we have held firmly to the view that variations in weight accorded each vote can be approved only where the State meets its burden of presenting cogent reasons in explanation of the variations, and even then only where the variations are small. See, e. g., Abate v. Mundt, 403 U.S. 182 (1971); Kirkpatrick v. Preisler, supra; Swann v. Adams, supra. The validity of these propositions and their applicability to the case before us are not at all diminished by the fact that Kirkpatrick v. Preisler and Wells v. Rockefeller, 394 U.S. 542 (1969)—two of the many cases in which the propositions were refined and applied— concerned the division of States into federal congressional districts rather than legislative reapportionment. Prior to today's decision, we have never held that different constitutional standards are applicable to the two situations. True, there are significant differences between congressional districting and legislative apportionment, and we have repeatedly recognized those differences. In Reynolds v. Sims, for example, we termed "more than insubstantial" the argument that "a State can rationally consider according political subdivisions some independent representation in at least one body *341 of the state legislature, as long as the basic standard of equality of population among districts is maintained." 377 U.S., at 580. See also id., at 578; Abate v. Mundt, supra. But the recognition of these differences is hardly tantamount to the establishment of two distinct controlling standards. What our decisions have made clear is that certain state interests that are pertinent to legislative reapportionment can have no possible relevance to congressional districting. Thus, the need to preserve the integrity of political subdivisions as political subdivisions may, in some instances, justify small variations in the population of districts from which state legislators are elected. But that interest can hardly be asserted in justification of malapportioned congressional districts. Kirkpatrick v. Preisler, supra. While the State may have a broader range of interests to which it can point in attempting to justify a failure to achieve precise equality in the context of legislative apportionment, it by no means follows that the State is subject to a lighter burden of proof or that the controlling constitutional standard is in any sense distinguishable. Our concern in Kirkpatrick v. Preisler was with the constitutional requirement that "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." Wesberry v. Sanders, 376 U.S. 1, 7-8 (1964). We rejected the State's argument that "there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question the `as nearly as practicable' standard. . . . Since `equal representation for equal numbers of people [is] the fundamental goal for the House of Representatives,' Wesberry v. Sanders, supra, at 18, the `as nearly as practicable' standard requires that the State make a good-faith effort to achieve precise mathematical equality. See Reynolds v. Sims, 377 U.S. 533, 577 (1964)." Kirkpatrick v. Preisler, *342 supra, at 530-531. Moreover, we held, id., at 532, that "[i]t was the burden of the State `to present . . . acceptable reasons for the variations among the populations of the various . . . districts . . . .' Swann v. Adams, supra, at 443-444." The principles that undergirded our decision in Kirkpatrick v. Preisler are the very principles that supported our decision in Swann v. Adams, a case involving the apportionment of a state legislature. The opinion in Kirkpatrick does not suggest that a different standard might be applicable to congressional districting. On the contrary, the "as nearly as practicable" standard with which we were concerned is identical to the standard that Reynolds v. Sims specifically made applicable to controversies over state legislative apportionment. See Reynolds v. Sims, supra, at 577. See also Hadley v. Junior College District, 397 U.S. 50, 56 (1970). And the holding in Kirkpatrick that the State must bear the burden of justifying deviations from population equality not only rested squarely and exclusively on our holding in Swann v. Adams, but even defined the test by quotation from Swann. See Kirkpatrick v. Preisler, supra, at 532. In Swann v. Adams we held that variations in the population of legislative districts must be justified by the State by presentation of "acceptable reasons for the variations." 385 U.S., at 443. And a comparison of the opinion for the Court in Swann with the views expressed by two Justices in dissent, see Swann v. Adams, supra, at 447-448 (Harlan, J., dissenting), decisively refutes any suggestion that unequal representation will be upheld so long as some rational basis for the discrimination can be found. A showing of necessity, not rationality, is what our decision in Swann requires. If Swann does not establish the point with sufficient clarity, then surely our decision in Kilgarlin v. Hill, 386 *343 U. S. 120 (1967), where we elucidated and applied the principles of Swann, removes all doubt. There, the District Court had sustained the state apportionment plan on two grounds, one of which we termed a "burden of proof" ruling. The lower court held that appellants "had the burden not only of demonstrating the degree of variance from the equality principle but also of `negat[ing] the existence of any state of facts which would sustain the constitutionality of the legislation.' 252 F. Supp. 404, 414." Id., at 122. We squarely rejected that statement of the controlling legal standard, and held that under Swann v. Adams, "it is quite clear that unless satisfactorily justified by the court or by the evidence of record, population variances of the size and significance evident here [a total deviation of 26.48%] are sufficient to invalidate an apportionment plan." Ibid. We also rejected the District Court's second ground of decision: namely, that the deviations were amply justified by the State's attempt, wherever possible, to respect county boundaries. Significantly, the opinion stated that "[w]e are doubtful . . . that the deviations evident here are the kind of `minor' variations which Reynolds v. Sims indicated might be justified by local policies counselling the maintenance of established political subdivisions in apportionment plans. 377 U.S. 533, 578-579. But we need not reach that constitutional question, for we are not convinced that the announced policy of the State of Texas necessitated the range of deviations between legislative districts which is evident here." Id., at 123 (emphasis supplied). III I would affirm the District Court's decision because, on this record, the Commonwealth of Virginia failed—just as the State of Florida failed in Swann v. Adams and the State of Texas failed in Kilgarlin v. Hill—to justify substantial *344 variations in the population of the districts from which members of the House of Delegates are elected. The panel that heard the case below consisted of four judges, all from Virginia, and I share their unanimous view that the Commonwealth failed to prove that the variations were justified by a need to insure representation of political subdivisions or a need to respect county boundaries in the drawing of district lines. If variations in the population of legislative districts are to be upheld, the Court must determine, before turning to the justifications that are asserted in defense of the variations, that they are "free from any taint of arbitrariness or discrimination." Ante, at 325, quoting from Roman v. Sincock, 377 U. S., at 710. Appellees alleged before the District Court that the legislature's reapportionment plan did indeed discriminate against one region of the State—the Northern Virginia suburbs of Washington, D. C. Each House seat in Northern Virginia would be underrepresented by an average of 4.3% under the 1971 plan, and several would be underrepresented by as much as 6.3%. In view of what it termed the "pervasive under-representation in districts in Northern Virginia," 330 F. Supp., at 1146, the District Court ordered the transfer of one delegate out of the systematically overrepresented Tidewater region and into Northern Virginia. In Abate v. Mundt, supra, at 185-186, we pointed out that we have "never suggested that certain geographic areas or political interests are entitled to disproportionate representation. . . . "Accordingly, we have underscored the danger of apportionment structures that contain a built-in bias tending to favor particular geographic areas or political interests or which necessarily will tend to favor, for example, less populous districts over their more *345 highly populated neighbors, see Hadley v. Junior College District, 397 U.S. 50, 57-58 (1970)." The District Court found as a fact that the 1971 plan did include a "built-in bias tending to favor [a] particular geographic area." Conveniently, the Court discerns no need even to acknowledge this critical finding of fact, and sets it aside without explanation. We have no basis for concluding that the finding is clearly erroneous, and that finding requires an affirmance of the District Court's decision without regard to the Commonwealth's asserted justifications for the inequalities in district population. But even assuming that the Commonwealth's plan can be considered free of any "taint of arbitrariness or discrimination," appellants have failed to meet their burden of justifying the inequalities. They insist that the legislature has followed a consistent practice of drawing district lines in conformity with county boundaries. But a showing that a State has followed such a practice is still a long step from the necessary showing that the State must follow that practice. Neither in the Virginia Constitution nor in any Act of the Assembly has Virginia explicitly indicated any interest in preserving the integrity of county lines or in providing representation of political subdivisions as political subdivisions. Cf. Reynolds v. Sims, supra, at 580-581. On the contrary, the Constitution establishes a single standard for both legislative apportionment and congressional districting, and that standard requires only that lines be drawn so as to insure, "as nearly as is practicable," representation in proportion to population.[8]*346 And the origins of the constitutional provision make clear that equality in district population, not the representation of political subdivisions, is the Commonwealth's pre-eminent goal.[9] Moreover, in asserting its interest in preserving the integrity of county boundaries, the Commonwealth offers nothing more than vague references to "local legislation," without describing such legislation with precision, without indicating whether such legislation amounts to a significant proportion of the legislature's business, and without demonstrating that the District Court's plan would materially affect the treatment of such legislation.[10] *347 The Court assumes that county representation is an important goal of Virginia's reapportionment plan, ante, at 326-328, and appellants suggest that the plan can be justified, at least in part, by the effort "to give an independent voice to the cities and counties [the legislature] daily governs." Brief for Appellant Commonwealth of Virginia 33. If county representation is indeed the Commonwealth's goal, then the apportionment plan adopted in 1971 itself falls far short of that objective. Appellants describe the problem in the following terms: "Under the Court's plan, a situation could arise where the 1602 citizens of Wythe County, Virginia, who were placed in the Sixth Legislative District are opposed to local legislation pending in the General Assembly for their county. They must voice such opposition to the delegates representing 91,620 other persons in the Sixth Legislative District composed of the Counties of Carroll, Floyd and Montgomery *348 and the City of Radford, rather than oppose only their 20,537 fellow citizens of Wythe County." Brief for Appellant Commonwealth of Virginia 27. That argument assumes that some significant number of issues will have an impact squarely on Wythe County, while having no impact, or a differing impact, on the surrounding areas. For on issues affecting the entire region or the Commonwealth as a whole—presumably the vast majority of issues—the critical concern is not that each vote in Wythe County be cast in a single district, but that each vote cast be precisely equal in weight to votes in every other part of the Commonwealth. And the argument also assumes that the issues affecting only one county are of predominant concern to the voters. Under a representative form of government, the voters participate indirectly through the election of delegates. It should be obvious that as a voter's concern with regional or statewide issues increases relative to his interest in county issues, the significance of voting outside the county will correspondingly diminish. But even if a substantial number of issues do have an impact primarily on a single county, and even if those issues are of deep concern to the voters, it still does not follow that the legislature's apportionment plan is a rational attempt to serve an important state interest. The plan would by no means provide, even in the legislature's own terms, effective representation for each county. Thus, the fourth legislative district, which would elect one delegate under the 1971 plan, consists of Wythe, Grayson, and Bland Counties along with the city of Galax. Yet Wythe County alone, according to appellants' figures, comprises 22,139 of the 49,279 persons resident in the district. Since Wythe County makes up almost one-half of the population of the fourth district, the district's delegate is likely to champion Wythe County's cause should an issue arise that pits its interest *349 against the interests of Grayson or Bland County or the city of Galax. In short, the best that can be said of appellants' efforts to secure county representation is that the plan can be effective only with respect to some unspecified but in all likelihood small number of issues that affect a single county and that are overwhelmingly important to the voters of that county; and even then it provides effective representation only where the affected county represents a large enough percentage of the voters in the district to have a significant impact on the election of the delegate.[11] But even if county representation were, in fact, a strong and legitimate goal of the Commonwealth, and even if the 1971 plan did represent a rational effort to serve that goal, it is still not clear that the legislature's plan should be upheld. The plan prepared by the District Court would achieve a much higher degree of equality in district population, and it would accomplish that salutary goal with minimal disruption of the legislature's effort to avoid fragmenting counties. Of the 134 political subdivisions in the Commonwealth, only 12 would be divided by the District Court's plan. More significant, the number of persons resident in voting districts that would be cut out of one county or city and shifted to another is 64,738, out of the total state population of 4,648,494. Thus, even making each of the logical and empirical assumptions implicit in the view that violating county lines would effectively disenfranchise certain persons on certain local issues, the number *350 of persons affected would still be less than 1 1/2% of the total state population. IV On this record—without any showing of the specific need for county representation or a showing of how such representation can be meaningfully provided to small counties whose votes would be submerged in a multi-county district—I see no basis whatsoever for upholding the Assembly's 1971 plan and the resulting substantial variations in district population. Accordingly, I would affirm the judgment of the District Court holding the plan invalid under the Equal Protection Clause of the Fourteenth Amendment.

Acting pursuant to the mandate of its newly revised state constitution,[1] the Virginia General Assembly enacted statutes apportioning the State for the election of members of its House of Delegates[2] and Senate.[3] Two suits were brought challenging the constitutionality of the House redistricting statute on the grounds that there were impermissible population variances in the districts, that the multimember districts diluted representation,[] and that the use of multimember districts *318 constituted racial gerrymandering.[5] The Senate redistricting statute was attacked in a separate suit, which alleged that the city of Norfolk was unconstitutionally split into three districts, allocating Navy personnel "home-ported" in Norfolk to one district and isolating Negro voters in one district. Three three-judge district courts were convened to hear the suits pursuant to 28 U.S. C. 2281 and 228. The suits were consolidated and heard by the four judges who variously made up the three three-judge panels. The consolidated District Court entered an interlocutory order that, inter alia, declared the legislative reapportionment statutes unconstitutional and enjoined the holding of elections in electoral districts other than those established by the court's opinion. Appellants, the Secretary of the State Board of Elections and its members and the city of Virginia Beach, have appealed directly to this Court from those portions of the court's order, invoking our jurisdiction under 28 U.S. C. 1253. I The statute apportioning the House provided for a combination of 52 single-member, multimember, and floater delegate districts from which 100 delegates would *319 be elected. As found by the lower court, the ideal district in Virginia consisted of85 persons per delegate, and the maximum percentage variation from that ideal under the Act was 1.%—the 12th district being over-represented by8% and the 1th district being under-represented by 9.%.[] The population ratio between these two districts was 1.18 to 1. The average percentage variance under the plan was ±3.89%, and the minimum population percentage necessary to elect a majority of the House was 9.29%. Of the 52 districts, 35 were within % of perfection and nine exceeded a % variance from the ideal. With one exception, the delegate districts followed political jurisdictional lines of the counties and cities. That exception, Fairfax County, was allotted 10 delegates but was divided into two five-member districts. Relying on and the District Court concluded that the 1.% variation was sufficient to condemn the House statute under the "one person, one vote" doctrine. While it noted that the variances were traceable to the desire of the General Assembly to maintain the integrity of traditional county and city boundaries, and that it was impossible to draft district lines to overcome unconstitutional disparities and still maintain *320 such integrity, it held that the State proved no governmental necessity for strictly adhering to political subdivision lines. Accordingly, it undertook its own re-districting and devised a plan having a percentage variation of slightly over 10% from the ideal district, a percentage it believed came "within passable constitutional limits as `a good-faith effort to achieve absolute equality.'" -118. Appellants contend that the District Court's reliance on and in striking down the General Assembly's reapportionment plan was erroneous, and that proper application of the standards enunciated in would have resulted in a finding that the statute was constitutional. In and this Court invalidated state reapportionment statutes for federal congressional districts having maximum percentage deviations of 5.97% and 13.1% respectively. The express purpose of these cases was to elucidate the standard first announced in the holding of that "the command of Art. I, 2, that Representatives be chosen `by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." And it was concluded that that command "permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown." The principal question thus presented for review is whether or not the Equal Protection Clause of the Fourteenth Amendment likewise permits only "the limited population variances which are unavoidable despite a good-faith *321 effort to achieve absolute equality" in the context of state legislative reapportionment.[7] This Court first recognized that the Equal Protection Clause requires both houses of a bicameral state legislature to be apportioned substantially on a population basis in In so doing, it suggested that in the implementation of the basic constitutional principle—equality of population among the districts —more flexibility was constitutionally permissible with respect to state legislative reapportionment than in congressional redistricting. Consideration was given to the fact that, almost invariably, there is a significantly larger number of seats in state legislative bodies to be distributed within a State than congressional seats, and that therefore it may be feasible for a State to use political subdivision lines to a greater extent in establishing state legislative districts than congressional districts while still affording adequate statewide representation. Another possible justification for deviation from population-based representation in state legislatures was stated to be: "[T]hat of insuring some voice to political subdivisions, as political subdivisions. Several factors make more than insubstantial claims that a State can rationally consider according political subdivisions some independent representation in at least one body of the state legislature, as long as the basic standard of equality of population among districts is maintained. Local governmental entities are frequently charged with various responsibilities incident to the operation of state government. In many States much of the legislature's activity involves the enactment of so-called local legislation, directed only *322 to the concerns of particular political subdivisions. And a State may legitimately desire to construct districts along political subdivision lines to deter the possibilities of gerrymandering." The Court reiterated that the overriding objective in reapportionment must be "substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State." By contrast, the Court in recognized no excuse for the failure to meet the objective of equal representation for equal numbers of people in congressional districting other than the practical impossibility of drawing equal districts with mathematical precision. Thus, whereas population alone has been the sole criterion of constitutionality in congressional redistricting under Art. I, 2, broader latitude has been afforded the States under the Equal Protection Clause in state legislative redistricting because of the considerations enumerated in The dichotomy between the two lines of cases has consistently been maintained. In for example, one asserted justification for population variances was that they were necessarily a result of the State's attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing political subdivision boundaries. This argument was rejected in the congressional context. But in an apportionment for a county legislature having a maximum deviation from equality of 11.9% was upheld in the face of an equal protection challenge, in part because New York had a long history of maintaining the integrity of existing local government units within the county. *323 Application of the "absolute equality" test of Kirkpatrick and Wells to state legislative redistricting may impair the normal functioning of state and local governments. Such an effect is readily apparent from an analysis of the District Court's plan in this case. Under Art. VII, 2 and 3 of Virginia's Constitution, the General Assembly is given extensive power to enact special legislation regarding the organization of, and the exercise of governmental powers by, counties, cities, towns, and other political subdivisions. The statute redistricting the House of Delegates consistently sought to avoid the fragmentation of such subdivisions, assertedly to afford them a voice in Richmond to seek such local legislation. The court's reapportionment, based on its application of Kirkpatrick and Wells, resulted in a maximum deviation of slightly over 10%,[8] as compared with the roughly 1% maximum variation found in the plan adopted by the legislature. But to achieve even this limit of variation, the court's plan extended single and multimember districts across subdivision lines in 12 instances, substituting population equality for subdivision representation. Scott County, for example, under the Assembly's plan was placed in the first district and its population of 2,37 voted with the 7,3 persons in Dickinson, Lee, and Wise Counties for two delegates. The district thus established deviated by 8.3% from the ideal. The court transferred five of Scott County's enumeration districts, containing03 persons, to the contiguous second district composed of the city of Bristol, and Smith and Washington Counties, population 87,01. Scott County's representation was thereby substantially reduced in the first district, and all but nonexistent in the second district. *32 The opportunity of its voters to champion local legislation relating to Scott County is virtually nil. The countervailing benefit resulting from the court's readjustment is the fact that the first district's deviation from the ideal is now reduced to 1.8%. The city of Virginia Beach saw its position deteriorate in a similar manner under the court-imposed plan. Under the legislative plan, Virginia Beach constituted the 0th district and was allocated three delegates for its population of 172,10. The resulting underrepresentation was cured by providing a floterial district, the 2d, which also included portions of the cities of Chesapeake and Portsmouth. Under the court's plan, the 2d district was dissolved. Of its 32,51 persons that constituted the deviation from the ideal for the 0th district, 3,515 were placed in the 0th, and 29,13 were transferred to Norfolk's 39th district. The 39th district is a multimember district that includes the 307,951 persons who make up the population of the city of Norfolk. Thus, those Virginia Beach residents who cast their vote in the 39th district amount to only 8.% of that district's population. In terms of practical politics, Virginia Beach complains that such representation is no representation at all so far as local legislation is concerned, and that those 29,13 people transferred to the 39th district have in that respect been effectively disenfranchised. We conclude, therefore, that the constitutionality of Virginia's legislative redistricting plan was not to be judged by the more stringent standards that Kirkpatrick and Wells make applicable to congressional reapportionment, but instead by the equal protection test enunciated in We reaffirm its holding that "the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal *325 population as is practicable." We likewise reaffirm its conclusion that "[s]o long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature." The asserted justification for the divergences in this case—the State's policy of maintaining the integrity of political subdivision lines—is not a new one to this Court. In it was noted: "Because cities and counties have consistently not been split or divided for purposes of legislative representation, multimember districts have been utilized for cities and counties whose populations entitle them to more than a single representative And, because of a tradition of respecting the integrity of the boundaries of cities and counties in drawing district lines, districts have been constructed only of combinations of counties and cities and not by pieces of them." The then-existing substantial deviation in the apportionment of both Houses defeated the constitutionality of Virginia's districting statutes in that case, but the possibility of maintaining the integrity of political subdivision lines in districting was not precluded so long as there existed "such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination." We are not prepared to say that the decision of the people of Virginia to grant the General Assembly the power to enact local legislation dealing with the political *32 subdivisions is irrational. And if that be so, the decision of the General Assembly to provide representation to subdivisions qua subdivisions in order to implement that constitutional power is likewise valid when measured against the Equal Protection Clause of the Fourteenth Amendment. The inquiry then becomes whether it can reasonably be said that the state policy urged by Virginia to justify the divergences in the legislative reapportionment plan of the House is, indeed, furthered by the plan adopted by the legislature, and whether, if so justified, the divergences are also within tolerable limits. For a State's policy urged in justification of disparity in district population, however rational, cannot constitutionally be permitted to emasculate the goal of substantial equality. There was uncontradicted evidence offered in the District Court to the effect that the legislature's plan, subject to minor qualifications, "produces the minimum deviation above and below the norm, keeping intact political boundaries." (Defendants' Exhibit 8.) That court itself recognized that equality was impossible if political boundaries were to be kept intact in the process of districting. But it went on to hold that since the State "proved no governmental necessity for strictly adhering to political subdivision lines," the legislative plan was constitutionally invalid. As we noted above, however, the proper equal protection test is not framed in terms of "governmental necessity," but instead in terms of a claim that a State may "rationally consider." The District Court intimated that one reason for rejecting the justification for divergences offered by the State was its conclusion that the legislature had not in fact implemented its asserted policy, "as witness the division of Fairfax County." *327 But while Fairfax County was divided, it was not fragmented. And had it not been divided, there would have been one ten-member district in Fairfax County, a result that this Court might well have been thought to disfavor as a result of its opinion in The State can scarcely be condemned for simultaneously attempting to move toward smaller districts and to maintain the integrity of its political subdivision lines. Appellees argue that the traditional adherence to such lines is no longer a justification since the Virginia constitutional provision regarding reapportionment, Art, II, neither specifically provides for apportionment along political subdivision lines nor draws a distinction between the standards for congressional and legislative districting. The standard in each case is described in the "as nearly as is practicable" language used in and But, as we have previously indicated, the latitude afforded to States in legislative redistricting is somewhat broader than that afforded to them in congressional redistricting. Virginia was free as a matter of federal constitutional law to construe the mandate of its Constitution more liberally in the case of legislative redistricting than in the case of congressional redistricting, and the plan adopted by the legislature indicates that it has done so. We also reject the argument that, because the State is not adhering to its tradition of respecting the boundaries of political subdivisions in congressional and State Senate redistricting, it may not do so in the case of redistricting for the House of Delegates. Nothing in the fact that Virginia has followed the constitutional mandate of this Court in the case of congressional redistricting, or that it has chosen in some instances to ignore political subdivision lines in the case of the State Senate, *328 detracts from the validity of its consistently applied policy to have at least one house of its bicameral legislature responsive to voters of political subdivisions as such.[9] We hold that the legislature's plan for apportionment of the House of Delegates may reasonably be said to advance the rational state policy of respecting the boundaries of political subdivisions. The remaining inquiry is whether the population disparities among the districts that have resulted from the pursuit of this plan exceed constitutional limits. We conclude that they do not. The most stringent mathematical standard that has heretofore been imposed upon an apportionment plan for a state legislature by this Court was enunciated in (197), where a scheme having a maximum deviation of 2% was disapproved. In that case, the State of Florida offered no evidence at the trial level to support the challenged variations with respect to either the House or Senate. at The Court emphasized there that "the fact that a 10% or 15% variation from the norm is approved in one State has little bearing on the validity of a similar variation in another State." We, therefore, find the citations to numerous cases decided by state and lower *329 federal courts to be of limited use in determining the constitutionality of Virginia's statute. The relatively minor variations present in the Virginia plan contrast sharply with the larger variations in state legislative reapportionment plans that have been struck down by previous decisions of this Court. See, e. g., and 38 U.S. 120 (197). Neither courts nor legislatures are furnished any specialized calipers that enable them to extract from the general language of the Equal Protection Clause of the Fourteenth Amendment the mathematical formula that establishes what range of percentage deviations is permissible, and what is not. The 1-odd percent maximum deviation that the District Court found to exist in the legislative plan for the reapportionment of the House is substantially less than the percentage deviations that have been found invalid in the previous decisions of this Court. While this percentage may well approach tolerable limits, we do not believe it exceeds them. Virginia has not sacrificed substantial equality to justifiable deviations. The policy of maintaining the integrity of political subdivision lines in the process of reapportioning a state legislature, the policy consistently advanced by Virginia as a justification for disparities in population among districts that elect members to the House of Delegates, is a rational one. It can reasonably be said, upon examination of the legislative plan, that it does in fact advance that policy. The population disparities that are permitted thereunder result in a maximum percentage deviation that we hold to be within tolerable constitutional limits. We, therefore, hold the General Assembly's plan for the reapportionment of the House of Delegates constitutional and reverse the District Court's conclusion *330 to the contrary. We also affirm Weinberg v. Prichard et al., No. 71-, held pending this disposition.[10] II The General Assembly divided the State into 0 single-member senatorial districts. Under the plan, a portion of the city of Virginia Beach was added to the city of Norfolk and the entire area was divided into three single-member districts, which the court below found conformed almost ideally, numerically, to the "one person, one vote" principle. But all naval personnel "home-ported" at the U. S. Naval Station, Norfolk, about 3,700 persons, were assigned to the Fifth Senatorial District because that is where they were counted on official census tracts.[11] It was undisputed that only about 8,100 of such *331 personnel lived aboard vessels assigned to the census tract within the Fifth District. The court had before it evidence that about 18,000 lived outside the Fifth District but within the Norfolk and Virginia Beach areas that, if true, indicated a malapportionment with respect to such personnel.[12] Lacking survey data sufficiently precise to permit the creation of three single-member districts more closely representing the actual population, the court corrected the disparities by establishing one multimember district composed of the Fifth, Sixth, and Seventh Districts, encompassing the city of Norfolk and a portion of Virginia Beach. Appellants charge that the District Court was not justified in overturning the districts established by the General Assembly since the Assembly validly used census tracts in apportioning the area and that the imposition by the court of a multimember district contravened the valid legislative policy in favor of single-member districts. We conclude that under the unusual, if not unique, circumstances in this case the District Court did not err in declining to accord conclusive weight to the legislative reliance on census figures. That court justifiably found *332 that with respect to the three single-member districts in question, the legislative plan resulted in both significant population disparities and the assignment of military personnel to vote in districts in which they admittedly did not reside. Since discriminatory treatment of military personnel in legislative reapportionment is constitutionally impermissible, at 91, we hold that the interim relief granted by the District Court as to the State Senate was within the bounds of the discretion confided to it. Application of interim remedial techniques in voting rights cases has largely been left to the district courts. The courts are bound to apply equitable considerations and in Reynolds it was stated that "[i]n awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws" The court below was faced with severe time pressures. The reapportionment plans were first forwarded to the Attorney General on March 1, By April 7, these three cases had been filed and consolidated. The first hearing was scheduled for May 2, but on May 7, the Attorney General interposed his objections pursuant to the Voting Rights Act. As a result, the May 2 hearing was largely devoted to arguing about the effect of such objections and after that hearing, the court directed the cases to be continued until June 15. It also postponed the primary elections, which had been set for June 8, until September 1. The cases were finally heard on June 1, and the court's interlocutory order was entered on July 2, just two weeks prior to the revised July 1 filing deadline for primary candidates. Prior to the time the court acted, this Court had handed down recognizing that multimember districts were not per se *333 violative of the Equal Protection Clause. The court conscientiously considered both the legislative policy and this Court's admonition in that in fashioning apportionment remedies, the use of single-member districts is preferred. But it was confronted with plausible evidence of substantial malapportionment with respect to military personnel, the mandate of this Court that voting discrimination against military personnel is constitutionally impermissible, at 91-, and the fear that too much delay would have seriously disrupted the fall elections. Facing as it did this singular combination of unique factors, we cannot say that the District Court abused its discretion in fashioning the interim remedy of combining the three districts into one multimember district.[13] We, therefore, affirm the order of that Court insofar as it dealt with the State Senate. Affirmed in part, reversed in part. MR. JUSTICE POWELL took no part in the consideration or decision of these cases. MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, concurring in part and dissenting in part. I agree with the Court in No. 71-373, City of Virginia Beach v. Howell, that the joinder by the District Court of three senatorial districts in the Norfolk-Virginia Beach area to create one multimember senatorial district for the election was permissible under the special circumstances *33 of this case. Cf. 17-179 ; see (195); (19). I dissent, however, in No. 71-3, v. Howell, from the Court's action in setting aside the District Court's finding that the apportionment of the State House of Delegates violated the Equal Protection Clause of the Fourteenth Amendment. The Court approves a legislative apportionment plan that is conceded to produce a total deviation of at least 1.% from the constitutional ideal.[1] Of course, "the fact that a 10% or 15% variation from the norm is approved in one State has little bearing on the validity of a similar variation in another State." (197). "What is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the case." Since every reapportionment case presents as its factual predicate a unique combination of circumstances, decisions upholding or invalidating a legislative plan cannot normally have great precedential significance. But language in the Court's opinion today suggests that more may be at stake than the application of well-established principles to a novel set of facts. In my view, the problem in the case before us is in no sense one of first impression, but is squarely controlled by our prior decisions. See ; ; It is appropriate, therefore, to call to mind again the controlling principles and to show that, properly applied to the facts of the case before us, they preclude a reversal of the District Court's decision. I Virginia's recently amended Constitution provides that "members of the Senate and of the House of Delegates of the General Assembly shall be elected from electoral districts established by the General Assembly," and "[e]very electoral district shall be composed of contiguous and compact territory and shall be so constituted as to give, as nearly as is practicable, representation in proportion to the population of the district." Art. II, Pursuant to that requirement, the General Assembly in divided the Commonwealth into 52 legislative districts from which the 100 members of the House of Delegates were to be elected. On the basis of 1970 census figures, which set the population of the Commonwealth at8,9, each delegate should ideally represent85 persons. While the legislature's plan does not disregard constitutional requirements to the flagrant extent of many earlier cases,[2] it does, nevertheless, demonstrate a systematic pattern of substantial deviation from the constitutional ideal. Under the plan, more than 25% of the delegates would be elected from districts in which the population deviates from the ideal by more than 5%. Almost 0% of the delegates would represent districts that deviate by more than 3%. Four legislators would be elected from districts that are overrepresented or underrepresented by more than 8%. And the maximum deviation—the *33 spread between the most overrepresented and the most underrepresented districts—would be at least 1.%, and might be as high as 23.%, depending on the method of calculation. Assuming a maximum deviation of 1.%, the legislature's plan is still significantly less representative than many plans previously struck down by state and lower federal courts.[3] Appellees maintain, however, that the total deviation, properly computed, is in fact 23.%— a figure closely approximating the 25.5% deviation that led us to invalidate the Senate plan in the 2.8% deviation that led us to invalidate the House plan in 38 U.S. 120 (197), and the 2.78% deviation that led us to invalidate the House plan in 11-13 Appellees arrive at the figure of 23.% by taking into account the deviations in floterial districts, see App. 81-83, and appellants seem to concede that 23.% is an accurate indicator of the total deviation. See Brief for Appellant Commonwealth of Virginia 7.[] *337 The District Court pointed out that the "range of deviation may exceed 1.%," 1139 but it had no occasion to consider whether 23.% was the more accurate figure because of its finding that "[u]nder either mode of calculation the statewide range of deviation will not pass constitutional muster." Although conceding that the District Court did not reject or disparage appellees' assertion of a 23.% deviation, the Court nevertheless reaches the perplexing conclusion that we "confine our consideration to the figures actually found by the court and used to support its holding of unconstitutionality"— 1.%. Ante, at 319, n. But if the legislature's plan does, in fact, "pass constitutional muster" on the assumption of a 1.% deviation, then it is surely fair to ask whether the plan would still be valid assuming a total deviation of 23.%. The Court refuses either to confront the question directly or to render it moot by determining that the figure of 23.% is irrelevant because improperly derived. Instead, it attempts to obscure the issue by contending that the Commonwealth and the city of Virginia Beach disputed appellees' assertion of a 23.% total deviation. That contention is wholly incorrect. Neither in the answers filed in the District Court, nor in the briefs, nor at oral argument did the Commonwealth or the city of Virginia Beach quarrel with appellee's method of calculating the deviation in floterial districts. See n. The Court's refusal to consider the question can only mean that appellees have the option of reopening this litigation in the District Court in an attempt to persuade that court that the true measure of the *338 deviation is 23.% and that a deviation of this order is fatal to the Commonwealth's plan. In my view, there is no need to prolong this litigation by resolution in the court below of an issue that this Court should, but inexplicably does not, decide. The District Court correctly held that deviations of the magnitude of even 1.% are sufficient to invalidate the legislature's plan. And that court added—again correctly —that "[i]n reapportionment cases the burden is on the State to justify deviations from parity by `legitimate considerations incident to the effectuation of a rational state policy.' ; see (197). The State has proved no governmental necessity for strictly adhering to political subdivision lines." 330 F. Supp., Accordingly, the District Court promulgated its own apportionment plan, which significantly reduced the extent of deviation. Under the District Court's plan, the maximum deviation would be 7.2%,[5] excluding one district which is geographically isolated from the mainland of the Commonwealth.[] And, even including that isolated district, the maximum total deviation would not exceed 10.2%. But the substantial reduction in the maximum deviation does not in itself make clear the full measure of the improvement achieved by the District Court's plan. The number of delegates whose districts deviate from the norm by 3% or more would be almost cut in *339 half, from 58 to 32. And of the 32 districts still exceeding the 3% mark, only one—the geographically isolated district—would exceed the mean by more than 3.7%. In short, while the District Court did not achieve its stated goal of "perfect mathematical division" because of the "multiplicity of delegates, the geography of the State and the diversity of population concentrations," its plan would still produce measurably greater equality of representation. Appellants necessarily concede that the District Court's plan would reduce the inequality in population per district, but they defend the legislature's plan on the ground that "tolerance of political jurisdictional lines is justification for some deviation," Brief for Appellant Commonwealth of Virginia 2. They maintain that the legislature's plan achieved the highest degree of equality possible without fragmenting political subdivisions. The principal question presented for our decision is whether on the facts of this case an asserted state interest in preserving the integrity of county lines can justify the resulting substantial deviations from population equality. II The holdings of our prior decisions can be restated in two unequivocal propositions. First, the paramount goal of reapportionment must be the drawing of district lines so as to achieve precise equality in the population of each district.[7] "[T]he Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of *30 equal population as is practicable." ; see also 39 U. S., The Constitution does not permit a State to relegate considerations of equality to secondary status and reserve as the primary goal of apportionment the service of some other state interest. Second, it is open to the State, in the event that it should fail to achieve the goal of population equality, to attempt to justify its failure by demonstrating that precise equality could not be achieved without jeopardizing some critical governmental interest. The Equal Protection Clause does not exalt the principle of equal representation to the point of nullifying every competing interest of the State. But we have held firmly to the view that variations in weight accorded each vote can be approved only where the State meets its burden of presenting cogent reasons in explanation of the variations, and even then only where the variations are small. See, e. g., ; The validity of these propositions and their applicability to the case before us are not at all diminished by the fact that and —two of the many cases in which the propositions were refined and applied— concerned the division of States into federal congressional districts rather than legislative reapportionment. Prior to today's decision, we have never held that different constitutional standards are applicable to the two situations. True, there are significant differences between congressional districting and legislative apportionment, and we have repeatedly recognized those differences. In for example, we termed "more than insubstantial" the argument that "a State can rationally consider according political subdivisions some independent representation in at least one body *31 of the state legislature, as long as the basic standard of equality of population among districts is maintained." See also ; But the recognition of these differences is hardly tantamount to the establishment of two distinct controlling standards. What our decisions have made clear is that certain state interests that are pertinent to legislative reapportionment can have no possible relevance to congressional districting. Thus, the need to preserve the integrity of political subdivisions as political subdivisions may, in some instances, justify small variations in the population of districts from which state legislators are elected. But that interest can hardly be asserted in justification of malapportioned congressional districts. While the State may have a broader range of interests to which it can point in attempting to justify a failure to achieve precise equality in the context of legislative apportionment, it by no means follows that the State is subject to a lighter burden of proof or that the controlling constitutional standard is in any sense distinguishable. Our concern in was with the constitutional requirement that "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." We rejected the State's argument that "there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question the `as nearly as practicable' standard. Since `equal representation for equal numbers of people [is] the fundamental goal for the House of Representatives,' the `as nearly as practicable' standard requires that the State make a good-faith effort to achieve precise mathematical equality. See" *32 Moreover, we held, that "[i]t was the burden of the State `to present acceptable reasons for the variations among the populations of the various districts' at 3-." The principles that undergirded our decision in are the very principles that supported our decision in a case involving the apportionment of a state legislature. The opinion in Kirkpatrick does not suggest that a different standard might be applicable to congressional districting. On the contrary, the "as nearly as practicable" standard with which we were concerned is identical to the standard that specifically made applicable to controversies over state legislative apportionment. See at See also 5 And the holding in Kirkpatrick that the State must bear the burden of justifying deviations from population equality not only rested squarely and exclusively on our holding in but even defined the test by quotation from Swann. See In we held that variations in the population of legislative districts must be justified by the State by presentation of "acceptable reasons for the variations." 385 U.S., at 3. And a comparison of the opinion for the Court in Swann with the views expressed by two Justices in dissent, see at decisively refutes any suggestion that unequal representation will be upheld so long as some rational basis for the discrimination can be found. A showing of necessity, not rationality, is what our decision in Swann requires. If Swann does not establish the point with sufficient clarity, then surely our decision in 38 *33 U. S. 120 (197), where we elucidated and applied the principles of Swann, removes all doubt. There, the District Court had sustained the state apportionment plan on two grounds, one of which we termed a "burden of proof" ruling. The lower court held that appellants "had the burden not only of demonstrating the degree of variance from the equality principle but also of `negat[ing] the existence of any state of facts which would sustain the constitutionality of the legislation.' 252 F. Supp. 0, 1." We squarely rejected that statement of the controlling legal standard, and held that under "it is quite clear that unless satisfactorily justified by the court or by the evidence of record, population variances of the size and significance evident here [a total deviation of 2.8%] are sufficient to invalidate an apportionment plan." We also rejected the District Court's second ground of decision: namely, that the deviations were amply justified by the State's attempt, wherever possible, to respect county boundaries. Significantly, the opinion stated that "[w]e are doubtful that the deviations evident here are the kind of `minor' variations which indicated might be justified by local policies counselling the maintenance of established political subdivisions in apportionment plans. -. But we need not reach that constitutional question, for we are not convinced that the announced policy of the State of Texas necessitated the range of deviations between legislative districts which is evident here." III I would affirm the District Court's decision because, on this record, the Commonwealth of Virginia failed—just as the State of Florida failed in and the State of Texas failed in —to justify substantial *3 variations in the population of the districts from which members of the House of Delegates are elected. The panel that heard the case below consisted of four judges, all from Virginia, and I share their unanimous view that the Commonwealth failed to prove that the variations were justified by a need to insure representation of political subdivisions or a need to respect county boundaries in the drawing of district lines. If variations in the population of legislative districts are to be upheld, the Court must determine, before turning to the justifications that are asserted in defense of the variations, that they are "free from any taint of arbitrariness or discrimination." Ante, at 325, quoting from 377 U. S., at Appellees alleged before the District Court that the legislature's reapportionment plan did indeed discriminate against one region of the State—the Northern Virginia suburbs of Washington, D. C. Each House seat in Northern Virginia would be underrepresented by an average of3% under the plan, and several would be underrepresented by as much as3%. In view of what it termed the "pervasive under-representation in districts in Northern Virginia," 330 F. Supp., at 11, the District Court ordered the transfer of one delegate out of the systematically overrepresented Tidewater region and into Northern Virginia. In 5-18, we pointed out that we have "never suggested that certain geographic areas or political interests are entitled to disproportionate representation. "Accordingly, we have underscored the danger of apportionment structures that contain a built-in bias tending to favor particular geographic areas or political interests or which necessarily will tend to favor, for example, less populous districts over their more *35 highly populated neighbors, see" The District Court found as a fact that the plan did include a "built-in bias tending to favor [a] particular geographic area." Conveniently, the Court discerns no need even to acknowledge this critical finding of fact, and sets it aside without explanation. We have no basis for concluding that the finding is clearly erroneous, and that finding requires an affirmance of the District Court's decision without regard to the Commonwealth's asserted justifications for the inequalities in district population. But even assuming that the Commonwealth's plan can be considered free of any "taint of arbitrariness or discrimination," appellants have failed to meet their burden of justifying the inequalities. They insist that the legislature has followed a consistent practice of drawing district lines in conformity with county boundaries. But a showing that a State has followed such a practice is still a long step from the necessary showing that the State must follow that practice. Neither in the Virginia Constitution nor in any Act of the Assembly has Virginia explicitly indicated any interest in preserving the integrity of county lines or in providing representation of political subdivisions as political subdivisions. Cf. On the contrary, the Constitution establishes a single standard for both legislative apportionment and congressional districting, and that standard requires only that lines be drawn so as to insure, "as nearly as is practicable," representation in proportion to population.[8]*3 And the origins of the constitutional provision make clear that equality in district population, not the representation of political subdivisions, is the Commonwealth's pre-eminent goal.[9] Moreover, in asserting its interest in preserving the integrity of county boundaries, the Commonwealth offers nothing more than vague references to "local legislation," without describing such legislation with precision, without indicating whether such legislation amounts to a significant proportion of the legislature's business, and without demonstrating that the District Court's plan would materially affect the treatment of such legislation.[10] *37 The Court assumes that county representation is an important goal of Virginia's reapportionment plan, ante, at 32-328, and appellants suggest that the plan can be justified, at least in part, by the effort "to give an independent voice to the cities and counties [the legislature] daily governs." Brief for Appellant Commonwealth of Virginia 33. If county representation is indeed the Commonwealth's goal, then the apportionment plan adopted in itself falls far short of that objective. Appellants describe the problem in the following terms: "Under the Court's plan, a situation could arise where the 102 citizens of Wythe County, Virginia, who were placed in the Sixth Legislative District are opposed to local legislation pending in the General Assembly for their county. They must voice such opposition to the delegates representing 91,20 other persons in the Sixth Legislative District composed of the Counties of Carroll, Floyd and Montgomery *38 and the City of Radford, rather than oppose only their 20,537 fellow citizens of Wythe County." Brief for Appellant Commonwealth of Virginia 27. That argument assumes that some significant number of issues will have an impact squarely on Wythe County, while having no impact, or a differing impact, on the surrounding areas. For on issues affecting the entire region or the Commonwealth as a whole—presumably the vast majority of issues—the critical concern is not that each vote in Wythe County be cast in a single district, but that each vote cast be precisely equal in weight to votes in every other part of the Commonwealth. And the argument also assumes that the issues affecting only one county are of predominant concern to the voters. Under a representative form of government, the voters participate indirectly through the election of delegates. It should be obvious that as a voter's concern with regional or statewide issues increases relative to his interest in county issues, the significance of voting outside the county will correspondingly diminish. But even if a substantial number of issues do have an impact primarily on a single county, and even if those issues are of deep concern to the voters, it still does not follow that the legislature's apportionment plan is a rational attempt to serve an important state interest. The plan would by no means provide, even in the legislature's own terms, effective representation for each county. Thus, the fourth legislative district, which would elect one delegate under the plan, consists of Wythe, Grayson, and Bland Counties along with the city of Galax. Yet Wythe County alone, according to appellants' figures, comprises 22,139 of the 9,279 persons resident in the district. Since Wythe County makes up almost one-half of the population of the fourth district, the district's delegate is likely to champion Wythe County's cause should an issue arise that pits its interest *39 against the interests of Grayson or Bland County or the city of Galax. In short, the best that can be said of appellants' efforts to secure county representation is that the plan can be effective only with respect to some unspecified but in all likelihood small number of issues that affect a single county and that are overwhelmingly important to the voters of that county; and even then it provides effective representation only where the affected county represents a large enough percentage of the voters in the district to have a significant impact on the election of the delegate.[11] But even if county representation were, in fact, a strong and legitimate goal of the Commonwealth, and even if the plan did represent a rational effort to serve that goal, it is still not clear that the legislature's plan should be upheld. The plan prepared by the District Court would achieve a much higher degree of equality in district population, and it would accomplish that salutary goal with minimal disruption of the legislature's effort to avoid fragmenting counties. Of the 13 political subdivisions in the Commonwealth, only 12 would be divided by the District Court's plan. More significant, the number of persons resident in voting districts that would be cut out of one county or city and shifted to another is738, out of the total state population of8,9. Thus, even making each of the logical and empirical assumptions implicit in the view that violating county lines would effectively disenfranchise certain persons on certain local issues, the number *350 of persons affected would still be less than 1 1/2% of the total state population. IV On this record—without any showing of the specific need for county representation or a showing of how such representation can be meaningfully provided to small counties whose votes would be submerged in a multi-county district—I see no basis whatsoever for upholding the Assembly's plan and the resulting substantial variations in district population. Accordingly, I would affirm the judgment of the District Court holding the plan invalid under the Equal Protection Clause of the Fourteenth Amendment.

Justice White

dissenting

Rose v. Mitchell

https://www.courtlistener.com/opinion/110143/rose-v-mitchell/

https://www.courtlistener.com/api/rest/v3/clusters/110143/

1978-155

Although I agree with Parts I and II of the Court's opinion, I believe that a prima facie case of purposeful discrimination was made out and was not rebutted by the State. I therefore dissent from Parts III and IV and from the judgment. On the basis of the evidence presented at the evidentiary hearing in state court, the District Court concluded that respondents "appear[ed]" to have made out a prima facie case of discrimination in the selection of the foreman of the grand *589 jury that indicted them. App. 99. However, upon the affidavits submitted by the State in response, the court concluded that in fact the foreman had been chosen for other than racial reasons, that he had not voted on the indictment, and thus that there had not been a violation of the Equal Protection Clause. Id., at 122. The Court of Appeals agreed that a prima facie case was shown, interpreting the record testimony to the effect that the recollections of those testifying were that there had never been a black chosen as foreman of a grand jury in Tipton County, and pointing out the potential for discrimination in a system which leaves the selection of the foreman to the discretion of a single judge who has not "really given any thought to appointing" a black, id., at 113. See 570 F.2d 129, 134-135 (1978). The Court of Appeals disagreed, however, that this prima facie case had been rebutted by the testimony of the selecting judge that he had "no feeling against" appointing a black to be foreman, and found irrelevant that the foreman did not vote on respondents' indictment. Id., at 131. Because we do not sit to redetermine the factfindings of lower courts, and because the Court of Appeals correctly enunciated and applied the law governing proof of discrimination in the context of grand jury selection, I dissent. The only difference between this case and our previous cases voiding a conviction due to discriminatory selection of members of the grand jury is that in this case it has been shown only that the grand jury foreman, who did not vote on the indictment, was chosen in a manner prohibited by the Equal Protection Clause. I agree with the Court of Appeals that given the vital importance of the foreman in the functioning of grand juries in Tennessee,[1] a conviction based on an *590 indictment where the foreman was chosen in a discriminatory fashion is void just as would be a conviction where the entire grand jury is discriminatorily selected, whether or not there is a showing of actual prejudice, see Castaneda v. Partida, 430 U.S. 482 (1977); Alexander v. Louisiana, 405 U.S. 625 (1972); Arnold v. North Carolina, 376 U.S. 773 (1964); Eubanks v. Louisiana, 356 U.S. 584 (1958); Cassell v. Texas, 339 U.S. 282 (1950); Patton v. Mississippi, 332 U.S. 463 (1947); Hill v. Texas, 316 U.S. 400 (1942); Pierre v. Louisiana, 306 U.S. 354 (1939); Bush v. Kentucky, 107 U.S. 110 (1883). That this case involves only the foreman, rather than the entire grand jury, does have implications for the manner in which respondents may meet their burden of proving discrimination. In the context of racial discrimination in the selection of juries, "the systematic exclusion of Negroes is itself such an `unequal application of the law . . . as to show intentional discrimination,'" a necessary component of any equal protection violation. Washington v. Davis, 426 U.S. 229, 241 (1976). Generally, in those cases in which we have found unconstitutional discrimination in jury selection, those alleging discrimination have relied upon a significant statistical discrepancy between the percentage of the underrepresented group in the population and the percentage of this group called to serve as jurors, combined with a selection procedure "that is susceptible of abuse or is not racially neutral." Castaneda v. Partida, supra, at 494. See, e. g., Alexander v. Louisiana, supra; Turner v. Fouche, 396 U.S. 346 (1970); Carter v. Jury Comm'n, 396 U.S. 320 (1970). Once this *591 showing is made, the burden shifts to the State to rebut the inference of discriminatory purpose. Castaneda v. Partida, supra, at 495. This method of proof, sometimes called the "rule of exclusion," 430 U.S., at 494, may not be well suited when the focus of inquiry is a single officeholder whose term lasts two full years, as is true of the Tipton County grand jury foreman. For instance, in Castaneda v. Partida, we considered statistics relating to an 11-year period showing that 39% of the 870 persons selected for grand jury duty were Hispanic, from a general population that was over 79% Hispanic. The likelihood that this statistical discrepancy could be explained on the basis of chance alone was less than 1 in 10[140]. See id., at 495-496, and n. 17. The sample size necessarily considered in a case of discrimination in the selection of a foreman simply does not permit a statistical inference as overwhelming as that in Castaneda. During any 11-year period, there would be only five or six opportunities for selecting jury foremen in Tipton County, assuming that every foreman selected serves at least the full 2-year term.[2] Despite the inherent difficulty of any statistical presentation with respect to discrimination in filling a particular grand jury spot, respondents nonetheless have made a strong showing of underrepresentation supporting an inference of purposeful discrimination. This Court is not in a position to reject the finding, explicitly made by the Court of Appeals and implicitly made by the District Court,[3] that those who testified believed *592 there had never been a black foreman during the period 1951-1973. See Berenyi v. Immigration Director, 385 U.S. 630, 635 (1967); Graver Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275 (1949). Assuming that 11 foreman selections were made during this period,[4] the expected number of black foremen would be more than 3—and the likelihood of no blacks being chosen would be less than 1 in 50—if blacks, who constituted nearly a third of the county's population, and whites had an equal chance of being selected. I do not see how respondents could be expected to make a stronger statistical showing.[5] In any event, any possible weakness in respondents' statistical presentation was more than overcome by the additional evidence before the District Court. First, the selection of a foreman is left to the complete discretion of a single person— the circuit judge. The potentialities for abuse in such a system are obvious, cf. Castaneda v. Partida, supra, at 497; Carter v. Jury Comm'n, supra; Hernandez v. Texas, 347 U.S. 475, 479 (1954) ("key man" system). Moreover, the particular judge who chose the foreman of respondents' grand jury had *593 never chosen a black in any of the five counties for which he appointed foremen over a 6-year period, App. 113. Finally, the judge himself admitted that he had never even considered appointing a black foreman. Ibid.[6] Although these facts are not necessarily inconsistent with an ultimate conclusion that respondents' foreman was not chosen on racial grounds, they raise, in conjunction with the previously described statistical presentation, a strong inference of intentional racial discrimination, shifting the burden to the State. Clearly the Court of Appeals is correct that the Circuit Judge's further self-serving statement that he had "nothing against" appointing blacks is not sufficient rebuttal, see Alexander v. Louisiana, 405 U. S., at 632; Turner v. Fouche, 396 U. S., at 361; Hernandez v. Texas, supra, at 481-482. It can hardly be said that the judge, as the official authorized by the State to appoint grand jury foremen, performed his "constitutional duty . . . not to pursue a course of conduct in the administration of [his] office which would operate to discriminate in the selection of jurors on racial grounds." Hill v. Texas, 316 U. S., at 404. MR. JUSTICE STEVENS, dissenting in part. MR. JUSTICE STEWART'S opinion prompts me to explain that by joining Part II of the Court's opinion I do not necessarily indicate that I would have rejected the arguments set forth in Mr. Justice Jackson's dissenting opinion in Cassell v. Texas, 339 U.S. 282, 298, if I had been a Member of the Court when the issue was first addressed. But there is surely enough force to MR. JUSTICE BLACKMUN'S reasoning to require adherence *594 to a course of decision that has been consistently followed by this Court since 1880. The doctrine of stare decisis is not a straitjacket that forecloses re-examination of outmoded rules. The doctrine does, however, provide busy judges with a valid reason for refusing to remeasure a delicate balance that has tipped in the same direction every time the conflicting interests have been weighed. The stare decisis considerations that weigh heavily in my decision to join Part II of the Court's opinion also support MR. JUSTICE WHITE'S opinion dissenting from Parts III and IV. Accordingly, I join his dissent.

Although I agree with Parts I ad II of the Court's opiio, I believe that a prima facie case of purposeful discrimiatio was made out ad was ot rebutted by the State. I therefore disset from Parts III ad IV ad from the judgmet. O the basis of the evidece preseted at the evidetiary hearig i state court, the District Court cocluded that respodets "appear[ed]" to have made out a prima facie case of discrimiatio i the selectio of the forema of the grad *589 jury that idicted them. App. 99. However, upo the affidavits submitted by the State i respose, the court cocluded that i fact the forema had bee chose for other tha racial reasos, that he had ot voted o the idictmet, ad thus that there had ot bee a violatio of the Equal Protectio Clause. The Court of Appeals agreed that a prima facie case was show, iterpretig the record testimoy to the effect that the recollectios of those testifyig were that there had ever bee a black chose as forema of a grad jury i Tipto Couty, ad poitig out the potetial for discrimiatio i a system which leaves the selectio of the forema to the discretio of a sigle judge who has ot "really give ay thought to appoitig" a black, See The Court of Appeals disagreed, however, that this prima facie case had bee rebutted by the testimoy of the selectig judge that he had "o feelig agaist" appoitig a black to be forema, ad foud irrelevat that the forema did ot vote o respodets' idictmet. Because we do ot sit to redetermie the factfidigs of lower courts, ad because the Court of Appeals correctly euciated ad applied the law goverig proof of discrimiatio i the cotext of grad jury selectio, I disset. The oly differece betwee this case ad our previous cases voidig a covictio due to discrimiatory selectio of members of the grad jury is that i this case it has bee show oly that the grad jury forema, who did ot vote o the idictmet, was chose i a maer prohibited by the Equal Protectio Clause. I agree with the Court of Appeals that give the vital importace of the forema i the fuctioig of grad juries i Teessee,[1] a covictio based o a *590 idictmet where the forema was chose i a discrimiatory fashio is void just as would be a covictio where the etire grad jury is discrimiatorily selected, whether or ot there is a showig of actual prejudice, see ; ; ; ; ; ; ; ; That this case ivolves oly the forema, rather tha the etire grad jury, does have implicatios for the maer i which respodets may meet their burde of provig discrimiatio. I the cotext of racial discrimiatio i the selectio of juries, "the systematic exclusio of Negroes is itself such a `uequal applicatio of the law as to show itetioal discrimiatio,'" a ecessary compoet of ay equal protectio violatio. Geerally, i those cases i which we have foud ucostitutioal discrimiatio i jury selectio, those allegig discrimiatio have relied upo a sigificat statistical discrepacy betwee the percetage of the uderrepreseted group i the populatio ad the percetage of this group called to serve as jurors, combied with a selectio procedure "that is susceptible of abuse or is ot racially eutral." See, e. g., ; Oce this *591 showig is made, the burde shifts to the State to rebut the iferece of discrimiatory purpose. This method of proof, sometimes called the "rule of exclusio," 430 U.S., may ot be well suited whe the focus of iquiry is a sigle officeholder whose term lasts two full years, as is true of the Tipto Couty grad jury forema. For istace, i we cosidered statistics relatig to a 11-year period showig that 39% of the 870 persos selected for grad jury duty were Hispaic, from a geeral populatio that was over 79% Hispaic. The likelihood that this statistical discrepacy could be explaied o the basis of chace aloe was less tha 1 i 10[140]. See -496, ad 17. The sample size ecessarily cosidered i a case of discrimiatio i the selectio of a forema simply does ot permit a statistical iferece as overwhelmig as that i Castaeda. Durig ay 11-year period, there would be oly five or six opportuities for selectig jury foreme i Tipto Couty, assumig that every forema selected serves at least the full 2-year term.[2] Despite the iheret difficulty of ay statistical presetatio with respect to discrimiatio i fillig a particular grad jury spot, respodets oetheless have made a strog showig of uderrepresetatio supportig a iferece of purposeful discrimiatio. This Court is ot i a positio to reject the fidig, explicitly made by the Court of Appeals ad implicitly made by the District Court,[3] that those who testified believed *592 there had ever bee a black forema durig the period 1951-1973. See ; Graver Mfg. Assumig that 11 forema selectios were made durig this period,[4] the expected umber of black foreme would be more tha 3—ad the likelihood of o blacks beig chose would be less tha 1 i 50—if blacks, who costituted early a third of the couty's populatio, ad whites had a equal chace of beig selected. I do ot see how respodets could be expected to make a stroger statistical showig.[5] I ay evet, ay possible weakess i respodets' statistical presetatio was more tha overcome by the additioal evidece before the District Court. First, the selectio of a forema is left to the complete discretio of a sigle perso— the circuit judge. The potetialities for abuse i such a system are obvious, cf. ; Heradez v. ("key ma" system). Moreover, the particular judge who chose the forema of respodets' grad jury had *593 ever chose a black i ay of the five couties for which he appoited foreme over a 6-year period, App. 113. Fially, the judge himself admitted that he had ever eve cosidered appoitig a black forema. Ibid.[6] Although these facts are ot ecessarily icosistet with a ultimate coclusio that respodets' forema was ot chose o racial grouds, they raise, i cojuctio with the previously described statistical presetatio, a strog iferece of itetioal racial discrimiatio, shiftig the burde to the State. Clearly the Court of Appeals is correct that the Circuit Judge's further self-servig statemet that he had "othig agaist" appoitig blacks is ot sufficiet rebuttal, see ; ; Heradez v. It ca hardly be said that the judge, as the official authorized by the State to appoit grad jury foreme, performed his "costitutioal duty ot to pursue a course of coduct i the admiistratio of [his] office which would operate to discrimiate i the selectio of jurors o racial grouds." MR. JUSTICE STEVENS, dissetig i part. MR. JUSTICE STEWART'S opiio prompts me to explai that by joiig Part II of the Court's opiio I do ot ecessarily idicate that I would have rejected the argumets set forth i Mr. Justice Jackso's dissetig opiio i if I had bee a Member of the Court whe the issue was first addressed. But there is surely eough force to MR. JUSTICE BLACKMUN'S reasoig to require adherece *594 to a course of decisio that has bee cosistetly followed by this Court sice 1880. The doctrie of stare decisis is ot a straitjacket that forecloses re-examiatio of outmoded rules. The doctrie does, however, provide busy judges with a valid reaso for refusig to remeasure a delicate balace that has tipped i the same directio every time the coflictig iterests have bee weighed. The stare decisis cosideratios that weigh heavily i my decisio to joi Part II of the Court's opiio also support MR. JUSTICE WHITE'S opiio dissetig from Parts III ad IV. Accordigly, I joi his disset.

Justice Rehnquist

majority

Ansonia Bd. of Ed. v. Philbrook

https://www.courtlistener.com/opinion/111773/ansonia-bd-of-ed-v-philbrook/

https://www.courtlistener.com/api/rest/v3/clusters/111773/

1986-005

Petitioner Ansonia Board of Education has employed respondent Ronald Philbrook since 1962 to teach high school business and typing classes in Ansonia, Connecticut. In 1968, Philbrook was baptized into the Worldwide Church of God. The tenets of the church require members to refrain from secular employment during designated holy days, a *63 practice that has caused respondent to miss approximately six schooldays each year. We are asked to determine whether the employer's efforts to adjust respondent's work schedule in light of his belief fulfill its obligation under § 701 (j) of the Civil Rights Act of 1964, 86 Stat. 103, 42 U.S. C. § 2000e(j), to "reasonably accommodate to an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business."[1] Since the 1967-1968 school year, the school board's collective-bargaining agreements with the Ansonia Federation of Teachers have granted to each teacher 18 days of leave per year for illness, cumulative to 150 and later to 180 days. Accumulated leave may be used for purposes other than illness as specified in the agreement. A teacher may accordingly use five days' leave for a death in the immediate family, one day for attendance at a wedding, three days per year for attendance as an official delegate to a national veterans organization, and the like. See, e. g., App. 98-99. With the exception of the agreement covering the 1967-1968 school year, each contract has specifically provided three *64 days' annual leave for observance of mandatory religious holidays, as defined in the contract. Unlike other categories for which leave is permitted, absences for religious holidays are not charged against the teacher's annual or accumulated leave. The school board has also agreed that teachers may use up to three days of accumulated leave each school year for "necessary personal business." Recent contracts limited permissible personal leave to those uses not otherwise specified in the contract. This limitation dictated, for example, that an employee who wanted more than three leave days to attend the convention of a national veterans organization could not use personal leave to gain extra days for that purpose. Likewise, an employee already absent three days for mandatory religious observances could not later use personal leave for "[a]ny religious activity," id., at 80, 83, 86, 89, 92, or "[a]ny religious observance." Id., at 96, 100. Since the 1978-1979 school year, teachers have been allowed to take one of the three personal days without prior approval; use of the remaining two days requires advance approval by the school principal. The limitations on the use of personal business leave spawned this litigation. Until the 1976-1977 year, Philbrook observed mandatory holy days by using the three days granted in the contract and then taking unauthorized leave. His pay was reduced accordingly.[2] In 1976, however, respondent stopped taking unauthorized leave for religious reasons, and began scheduling required hospital visits on church holy days. He also worked on several holy days. Dissatisfied with this arrangement, Philbrook repeatedly asked the school board to adopt one of two alternatives. His preferred alternative would allow use of personal business leave for religious observance, effectively giving him three additional *65 days of paid leave for that purpose. Short of this arrangement, respondent suggested that he pay the cost of a substitute and receive full pay for additional days off for religious observances.[3] Petitioner has consistently rejected both proposals. In 1973 Philbrook filed a complaint with the Connecticut Commission on Human Rights and Opportunities and the Equal Employment Opportunity Commission against the school board and the Ansonia Federation of Teachers. After exhausting the available administrative avenues, he filed a complaint in the United States District Court for the District of Connecticut, alleging that the prohibition on the use of "necessary personal business" leave for religious observance violated §§ 703(a)(1), (2) of Title VII, 42 U.S. C. §§ 2000e-2(a)(1), (2), and seeking both damages and injunctive relief.[4] After a 2-day trial, the District Court concluded that Philbrook had failed to prove a case of religious discrimination because he had not been placed by the school board in a position of violating his religion or losing his job. The Court of Appeals for the Second Circuit reversed and remanded for further proceedings. It held that a prima facie case of discrimination is established when an employee shows that " `(1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; (3) he or she was disciplined for failure to comply with the conflicting employment *66 requirement.' " 757 F.2d 476, 481 (1985), quoting Turpen v. Missouri-Kansas-Texas R. Co., 736 F.2d 1022, 1026 (CA5 1984). Philbrook established his case, the court held, by showing that he had a sincere religious belief that conflicted with the employer's attendance requirements, that the employer was aware of the belief, and that he suffered a detriment — namely, a loss of pay — from the conflict.[5] The court then assumed that the employer's leave policy constituted a reasonable accommodation to Philbrook's belief. It held, however, that "[w]here the employer and the employee each propose a reasonable accommodation, Title VII requires the employer to accept the proposal the employee prefers unless that accommodation causes undue hardship on the employer's conduct of his business." 757 F.2d, at 484. The Court of Appeals remanded for consideration of the hardship that would result from Philbrook's suggestions. We granted certiorari to consider the important questions of federal law presented by the decision of the Court of Appeals. 474 U.S. 1080 (1986). Specifically, we are asked to address whether the Court of Appeals erred in finding that Philbrook established a prima facie case of religious discrimination and in opining that an employer must accept the employee's preferred accommodation absent proof of undue hardship. We find little support in the statute for the approach adopted by the Court of Appeals, but we agree that the ultimate issue of reasonable accommodation cannot be resolved without further factual inquiry. We accordingly affirm the judgment of the Court of Appeals remanding the case to the District Court for additional findings. *67 As we noted in our only previous consideration of § 701(j), its language was added to the 1972 amendments on the floor of the Senate with little discussion. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74, n. 9 (1977). See 118 Cong. Rec. 705-706 (1972). In Hardison, supra, at 84, we determined that an accommodation causes "undue hardship" whenever that accommodation results in "more than a de minimis cost" to the employer. Hardison had been discharged because his religious beliefs would not allow him to work on Saturdays and claimed that this action violated the employer's duty to effect a reasonable accommodation of his beliefs. Because we concluded that each of the suggested accommodations would impose on the employer an undue hardship, we had no occasion to consider the bounds of a prima facie case in the religious accommodation context or whether an employer is required to choose from available accommodations the alternative preferred by the employee. The employer in Hardison simply argued that all conceivable accommodations would result in undue hardship, and we agreed. Petitioner asks us to establish for religious accommodation claims a proof scheme analogous to that developed in other Title VII contexts, delineating the plaintiff's prima facie case and shifting production burdens. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). But the present case raises no such issue. As in United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983), the defendant here failed to persuade the District Court to dismiss the action for want of a prima facie case, and the case was fully tried on the merits. We held in Aikens that these circumstances place the ultimate Title VII question of discrimination vel non directly before the court. "Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant." *68 Id., at 715. We may therefore proceed to the question whether the employer's proposed accommodation of respondent's religious practices comports with the statutory mandate of § 701(j). In addressing this question, the Court of Appeals assumed that the employer had offered a reasonable accommodation of Philbrook's religious beliefs. This alone, however, was insufficient in that court's view to allow resolution of the dispute. The court observed that the duty to accommodate "cannot be defined without reference to undue hardship." 757 F.2d, at 484. It accordingly determined that the accommodation obligation includes a duty to accept "the proposal the employee prefers unless that accommodation causes undue hardship on the employer's conduct of his business." Ibid. Cf. American Postal Workers Union v. Postmaster General, 781 F.2d 772, 776 (CA9 1986) (Title VII does not dictate that "an employer must accept any accommodation, short of `undue hardship,' proposed by an employee . . ."). Because the District Court had not considered whether Philbrook's proposals would impose undue hardship, the Court of Appeals remanded for further consideration of those proposals. We find no basis in either the statute or its legislative history for requiring an employer to choose any particular reasonable accommodation. By its very terms the statute directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation. The employer violates the statute unless it "demonstrates that [it] is unable to reasonably accommodate . . . an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S. C. § 2000e(j). Thus, where the employer has already reasonably accommodated the employee's religious needs, the statutory inquiry is at an end. The employer need not further show that each of the employee's alternative accommodations would result in undue hardship. As Hardison illustrates, the extent of *69 undue hardship on the employer's business is at issue only where the employer claims that it is unable to offer any reasonable accommodation without such hardship. Once the Court of Appeals assumed that the school board had offered to Philbrook a reasonable alternative, it erred by requiring the Board to nonetheless demonstrate the hardship of Philbrook's alternatives. The legislative history of § 701(j), as we noted in Hardison, supra, at 74-75, and n. 9, is of little help in defining the employer's accommodation obligation. To the extent it provides any indication of congressional intent, however, we think that the history supports our conclusion. Senator Randolph, the sponsor of the amendment that became § 701(j), expressed his hope that accommodation would be made with "flexibility" and "a desire to achieve an adjustment." 118 Cong. Rec. 706 (1972). Consistent with these goals, courts have noted that "bilateral cooperation is appropriate in the search for an acceptable reconciliation of the needs of the employee's religion and the exigencies of the employer's business." Brener v. Diagnostic Center Hospital, 671 F.2d 141, 145-146 (CA5 1982). See also American Postal Workers, supra, at 777. Under the approach articulated by the Court of Appeals, however, the employee is given every incentive to hold out for the most beneficial accommodation, despite the fact that an employer offers a reasonable resolution of the conflict. This approach, we think, conflicts with both the language of the statute and the views that led to its enactment. We accordingly hold that an employer has met its obligation under § 701(j) when it demonstrates that it has offered a reasonable accommodation to the employee.[6] *70 The remaining issue in the case is whether the school board's leave policy constitutes a reasonable accommodation of Philbrook's religious beliefs. Because both the District Court and the Court of Appeals applied what we hold to be an erroneous view of the law, neither explicitly considered this question. We think that there are insufficient factual findings as to the manner in which the collective-bargaining agreements have been interpreted in order for us to make that judgment initially. We think that the school board policy in this case, requiring respondent to take unpaid leave for holy day observance that exceeded the amount allowed by the collective-bargaining agreement, would generally be a reasonable one. In enacting § 701(j), Congress was understandably motivated by a desire to assure the individual additional opportunity to observe religious practices, but it did not impose a duty on the employer to accommodate at all costs. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). The provision of unpaid leave eliminates the conflict between employment requirements and religious practices by allowing the individual to observe fully religious holy days and requires him only to give up compensation for a day that he did not in fact work. Generally speaking, "[t]he direct effect of [unpaid leave] is merely a loss of income for the period *71 the employee is not at work; such an exclusion has no direct effect upon either employment opportunities or job status." Nashville Gas Co. v. Satty, 434 U.S. 136, 145 (1977). But unpaid leave is not a reasonable accommodation when paid leave is provided for all purposes except religious ones. A provision for paid leave "that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free . . . not to provide the benefit at all." Hishon v. King & Spalding, 467 U.S. 69, 75 (1984). Such an arrangement would display a discrimination against religious practices that is the antithesis of reasonableness. Whether the policy here violates this teaching turns on factual inquiry into past and present administration of the personal business leave provisions of the collective-bargaining agreement. The school board contends that the necessary personal business category in the agreement, like other leave provisions, defines a limited purpose leave. Philbrook, on the other hand, asserts that the necessary personal leave category is not so limited, operating as an open-ended leave provision that may be used for a wide range of secular purposes in addition to those specifically provided for in the contract, but not for similar religious purposes. We do not think that the record is sufficiently clear on this point for us to make the necessary factual findings, and we therefore affirm the judgment of the Court of Appeals remanding the case to the District Court. The latter court on remand should make the necessary findings as to past and existing practice in the administration of the collective-bargaining agreements. It is so ordered. JUSTICE MARSHALL, concurring in part and dissenting in part. I agree with the Court's conclusion that, if the school board provides paid leave "for all purposes except religious ones," ante this page, its accommodation of Philbrook's religious needs would be unreasonable and thus violate Title VII. *72 But I do not find the specificity of the personal business leave, or the possibility that it may be used for activities similar to the religious activities Philbrook seeks leave to pursue, necessarily dispositive of whether the Board has satisfied its affirmative duty under § 701(j), 42 U.S. C. § 2000e(j), to reasonably accommodate Philbrook's religious needs. Even if the District Court should find that the personal leave is restricted to specific secular uses having no similarity with Philbrook's religious activities, Philbrook would still encounter a conflict between his religious needs and work requirements. In my view, the question would remain whether, without imposing an undue hardship on the conduct of its educational program, the school board could further reasonably accommodate Philbrook's need for additional religious leave. If, for example, the personal business leave were so limited that it allowed teachers paid leave for the sole purpose of meeting with their accountants to prepare their income tax returns (a purely secular activity), a proposal from Philbrook that he be allowed to prepare his tax return on his own time and use this paid leave for religious observance might be found imminently reasonable and lacking in undue hardship. The Board's prior determination that the conduct of its educational program can withstand the paid absence of its teachers for up to six days each year for religious and personal reasons tends to indicate that granting Philbrook's similar request in this case for a total of six days paid religious leave and no personal leave is reasonable, would cause the Board no undue hardship, and hence falls within the scope of the Board's affirmative obligation under Title VII. The Court suggests that requiring an employer to consider an employee's proposals would enable the employee to hold his employer hostage in exchange for a particular accommodation. Ante, at 69. If the employer has offered a reasonable accommodation that fully resolves the conflict between the employee's work and religious requirements, I agree that *73 no further consideration of the employee's proposals would normally be warranted. But if the accommodation offered by the employer does not completely resolve the employee's conflict, I would hold that the employer remains under an obligation to consider whatever reasonable proposals the employee may submit. I do not accept the Court's conclusion that the statute, "[b]y its very terms," relieves the Board from this continuing duty to accommodate the special religious practices of its employees where doing so is reasonable and causes no undue hardship. Ante, at 68. The statute simply creates an affirmative duty to accommodate; it does not specify who must respond to whom. Nor am I persuaded that the legislative history cited by the Court disposes of this issue. The statement of Senator Randolph, who sponsored the amendment, that he hoped the "accommodation would be made with `flexibility' and `a desire to achieve an adjustment,' " lends at least as much support to the concept of the employer's continuing duty as it does to the Court's reading of the statute. Ante, at 69 (quoting 118 Cong. Rec. 706 (1972)). The EEOC's guidelines on religious discrimination support an interpretation of the statute placing this continuing duty to accommodate on the employer.[*] Just last Term, in *74 Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986), we expressly relied on an EEOC guideline in holding that sexual harassment charges could provide the basis for a Title VII claim. The Court's reluctance to accord similar weight to the EEOC's interpretation here rests on nothing more than a selective reading of the express provisions of Title VII and the guidelines. Ante, at 69-70, n. 6. Title VII prohibits discrimination not only with respect to employment opportunities, § 703(a)(2), 42 U.S. C. § 2000e-2(a)(2), but also with respect to "compensation, terms, conditions, or privileges of employment." § 703(a)(1), 42 U.S. C. § 2000e-2(a)(1) (emphasis added). The EEOC guidelines consider compensation encompassed within the concept of "employment opportunities." 29 CFR § 1605.2(c) (1986). A forced reduction in compensation based on an employee's religious beliefs can be as much a violation of Title VII as a refusal to hire or grant a promotion. In this case, contrary to the Court's conclusion, ante, at 70-71, the school board's accommodation of Philbrook's religious needs by merely allowing unpaid leave does not eliminate the conflict. Rather, the offer forces Philbrook to choose between following his religious precepts with a partial forfeiture of salary and violating these precepts for work with full pay. It is precisely this loss of compensation that entitles Philbrook to further accommodation, if reasonably possible without undue hardship to the school board's educational program. It may be that unpaid leave will generally amount to a reasonable accommodation, but this does not mean that unpaid leave will always be the reasonable accommodation which best resolves the conflict between the needs of the employer and employee. In my view, then, an offer of unpaid leave does not end the inquiry: If an employee, in turn, offers another reasonable proposal that results in a more effective resolution without causing undue hardship, the employer should be required to implement it. *75 The Court's analysis in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), is difficult to reconcile with its holding today. In Hardison, the Court held that the employer's chosen work schedule was a reasonable accommodation but nonetheless went on to consider and reject each of the alternative suggested accommodations. The course followed in Hardison should have been adopted here as well. "Once it is determined that the duty to accommodate sometimes requires that an employee be exempted from an otherwise valid work requirement, the only remaining question is . . . : Did [the employer] prove that it exhausted all reasonable accommodations, and that the only remaining alternatives would have caused undue hardship on [the employer's] business?" Id., at 91 (MARSHALL, J., dissenting) (emphasis added). Accordingly, I would remand this case for factual findings on both the intended scope of the school board's leave provision and the reasonableness and expected hardship of Philbrook's proposals. JUSTICE STEVENS, concurring in part and dissenting in part. While I agree with the Court's rejection of the rationale of the Court of Appeals' opinion, I would simply reverse its judgment. Remanding for further proceedings in the District Court is both unnecessary and confusing. Whether respondent Philbrook's complaint is analyzed as an outright claim that he is entitled to six paid days of leave for religious observance or as an argument that petitioner's employment policies, while facially neutral, fail to accommodate his religious beliefs, the record before us plainly discloses that he cannot prevail. I The school board has a clear duty not to discriminate against Philbrook because of his religious faith. Section 703(a) of the Civil Rights Act of 1964 flatly prohibits an employer *76 from discriminating against any individual by basing employment and workplace decisions on the employee's or prospective employee's religion. This stricture against disparate treatment based on religion is simultaneously extended and qualified by § 701, which defines religion for purposes of the Act. Congress defines religion to include "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." § 701(j). The statute therefore imposes a duty on the employer to make reasonable accommodations, short of undue hardship, for the religious practices of his employees. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977). The effect of § 703(a) is to impose a special duty upon the employer when — and only when — a conflict arises between an individual's religious observance or practice and the employer's policy. The statute does not allow a plaintiff raising a claim under § 701(j) to charge immediately onto the field of undue hardship. Folded within § 701(j) are certain preliminary inquiries. First, the court must ask whether the employee's job obligations are in conflict with his religious obligations. "The accommodation issue by definition arises only when a neutral rule of general applicability conflicts with the religious practices of a particular employee." Hardison, supra, at 87 (MARSHALL, J., dissenting). Absent a conflict, it makes no sense to speak of a duty to accommodate; there is no competing claim on the employee for which the employer must make adjustments. If the duty does arise, the statute requires the employer to resolve the conflict if it can do so without undue hardship. As the Court correctly holds, the employer has no statutory duty to resolve the conflict in the way the employee requests as long as the solution that is adopted is reasonable. I find it equally clear that the employer *77 has no statutory duty to do anything more than strictly necessary to resolve the conflict. Because the existence and scope of the duty to accommodate depend solely on the nature of the conflict between the terms of the job and the requirements of the religion, it is essential to identify the alleged conflict as precisely as possible. In this case Philbrook's faith prevents him from working on certain schooldays. The school board does not require him to work on any of those days; on three of those days each year it pays him even though he does not work, and on the other days it declines to pay him for the time that he spends discharging his religious obligations. The existence of a conflict is thus not immediately apparent. Philbrook argues, however, that the contractual arrangement occasions two conflicts between his religious requirements and his employer's job requirements. First, he argues that the employer's practice of excluding religious observance as a permissible use of the three days of paid annual leave for "necessary personal business" is directly in conflict with his religious practice, because he needs to take those days as days of religious obligation. Second, during his unpaid absence from work on days of religious obligation, he is unable to do work and must later — or earlier — perform this work without separate compensation. In essence, he argues that the employer's practice of requiring him to complete this work, which is an integral part of his job duties as a salaried employee, conflicts with his religious obligation to be absent on the days when he would otherwise have performed this work and been paid for it. An examination of these claims discloses that neither has merit. II Philbrook has contended that the school board has discriminated on the basis of religion in the allocation of its paid annual leave, or more specifically, in the limitation it has placed on the use of three days of paid annual leave for necessary *78 personal business. Properly viewed, the conflict Philbrook alleges is one which is not cognizable under § 703 and therefore entitles him to no relief. He points to the conflict, by no means specific to the practice of religion, between the Board's leave policy and the needs of an employee who wishes to use the three days of necessary personal business leave for any purpose not allowed by the contract. The Board allows all of its teachers three days of paid annual leave for "necessary personal business" but prohibits them from using any of those days for "[a]ny religious activity." On its face, this prohibition might appear to discriminate against employees who need to take a day off to attend church in favor of those who need a day off for secular reasons. The argument fails, however, because it does not fully describe either the scope of the separate provision for paid leave for religious purposes or the restricted scope of the provision for leave for necessary personal business. The collective-bargaining agreement between the school board and the teachers' union contains generous provisions for paid leave for various specific purposes. After stating that 18 days of annual leave shall be granted "for personal illness and/or illness in the immediate family," the contract specifies 11 additional categories of personal leave, including 5 days for a death in the immediate family, 1 day each for attendance at funerals, weddings, graduations, and immediate family religious services, and 3 days each for "[m]andated religious observances" and "[n]ecessary personal business." The teacher is not required to identify the specific character of his personal business, but the contract limits the teacher's discretion by stating: "Necessary personal business shall not include (without limitations): "1. Marriage attendance or participation; "2. Day following marriage or wedding trip; "3. Attendance or participation in a sporting or recreational event; *79 "4. Any religious observance; "5. Travel associated with any provision of annual leave; "6. Purposes set forth under annual leave or another leave provision of this contract." App. 100. Philbrook does not contend that the leave policy is discriminatory because he is eligible for, or has actually received, fewer days of paid leave than members of other religious faiths or than teachers who have no religious obligations on schooldays. The basis of his principal discrimination argument is that the total of six days for mandated religious observances and necessary personal business is not adequate to enable him to take care of "the personal business that is most important and pressing to him: religious activity and observance,"[1] whereas this combination of six days of paid leave is adequate for some teachers who have different religious and ethical commitments. Quite clearly, however, this argument rests on the premise that Philbrook's special, that is, religious, needs entitle him to extraordinary treatment. His "discrimination" argument states a grievance against equal treatment rather than a claim that he has been the recipient of unequal treatment.[2] *80 This point comes into sharp focus when the contractual prohibition against using the three days of personal leave for "any religious observance" is seen for what it is, merely a part of the broader prohibition against using personal business leave for any of the purposes specifically authorized in the contract. The existing leave policy denies paid days to any teacher who proposes to take more paid days of personal business leave per year to fulfill his or her commitments than the contract allows. Philbrook's wish to use his secular leave for religious purposes is thwarted by the same policy that denies an avid official delegate to a national veterans' organization use of secular leave days for that activity in excess of the days specifically allotted for it under the contract. In fact, since three days are expressly authorized for mandated religious observances — events that recur each year — whereas most other categories of paid leave cover relatively infrequent contingencies such as a death in the family or attendance at a family wedding, it is highly probable that the leave policy as a whole tends to favor, rather than to disfavor, persons who must observe religious days during the school year. For example, an atheist who attends a wedding, a funeral, and a graduation on schooldays receives a total of three days of paid personal leave, but a religious person who attends the same three events on paid days also receives pay for three religious days. III Philbrook's second claim is that the board has a duty of reasonable accommodation "to mitigate the burden of the Board's requirement that [he] work without pay in connection with his absence for religious observance." Brief for *81 Respondent Philbrook 24.[3] This claim founders because it discloses no conflict between Philbrook's religion and his employment. If he had been disciplined, or discharged, for taking too many days off for religious services, the result would be different, but the only inconvenience to which he is subjected is the necessity of doing work on paid days that he was unable to do during his days of religious observance. This inconvenience arises not because of any discrimination against religion, but because the employee's missed day of work is unpaid. Every employee who takes a day off from work for an unauthorized purpose suffers the same inconvenience as Philbrook; each loses a day of pay and must make up the work associated with that day. The obligation to perform the work carries over, not because the employee has exercised his religion in the one case or satisfied a secular business need in another, but for the generic and shared reason that the employee was not paid for a day on which he was hired to do work. Since no statutory conflict between Philbrook's religion and his work duties occurred, the duty to accommodate his religious practices never arose. IV The present state of the record enables me to conclude that Philbrook states no claim of religious discrimination under § 703(a). In remanding the case, the Court apparently overlooks the plain fact that its rejection of the Court of Appeals' view of the duty of reasonable accommodation eliminates the necessity for further factual findings. Under the Court of *82 Appeals' theory that the employer has a duty to accept any reasonable accommodation proposal made by the employee as long as it does not result in "undue hardship," a remand to the District Court was appropriate to resolve the "undue hardship" issue. I do not understand why a remand is appropriate now. The Court of Appeals has already concluded that if no analysis of undue hardship is required, the Board's policy of granting three days of paid leave and additional days of unpaid leave for religious observances complies with the statute.[4] Neither that court nor the District Court saw any reason to make a special analysis of the "past and present administration of the personal business leave provisions of the collective-bargaining agreement." Ante, at 71. In view of the record, the factual analysis the Court calls for may satisfy the demands of the Court's curious holding in Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986), but it cannot affect the outcome of this case. Whether the Board has administered the provisions for paid leave for secular purposes strictly or permissively has no bearing on Philbrook's legally insufficient complaint that he *83 has some but not enough leave for religious purposes.[5] The employer has no duty to provide Philbrook with additional days of paid leave. Nor can the uses for which the board has historically allowed personal leave days possibly create a duty to pay Philbrook to perform the work he missed on days of religious obligation. Accordingly, I respectfully dissent from the part of the Court's judgment that remands the case for further proceedings.

Petitioner Ansonia Board of Education has employed respondent Ronald Philbrook since 1962 to teach high school business and typing classes in Ansonia, Connecticut. In 1968, Philbrook was baptized into the Worldwide Church of God. The tenets of the church require members to refrain from secular employment during designated holy days, a *63 practice that has caused respondent to miss approximately six schooldays each year. We are asked to determine whether the employer's efforts to adjust respondent's work schedule in light of his belief fulfill its obligation under 701 (j) of the Civil Rights Act of 1964, 42 U.S. C. 2000e(j), to "reasonably accommodate to an employee's religious observance or practice without undue hardship on the conduct of the employer's business."[1] Since the 1967-1968 school year, the school board's collective-bargaining agreements with the Ansonia Federation of Teachers have granted to each teacher 18 days of leave per year for illness, cumulative to 150 and later to 180 days. Accumulated leave may be used for purposes other than illness as specified in the agreement. A teacher may accordingly use five days' leave for a death in the immediate family, one day for attendance at a wedding, three days per year for attendance as an official delegate to a national veterans organization, and the like. See, e. g., App. 98-99. With the exception of the agreement covering the 1967-1968 school year, each contract has specifically provided three *64 days' annual leave for observance of mandatory religious holidays, as defined in the contract. Unlike other categories for which leave is permitted, absences for religious holidays are not charged against the teacher's annual or accumulated leave. The school board has also agreed that teachers may use up to three days of accumulated leave each school year for "necessary personal business." Recent contracts limited permissible personal leave to those uses not otherwise specified in the contract. This limitation dictated, for example, that an employee who wanted more than three leave days to attend the convention of a national veterans organization could not use personal leave to gain extra days for that purpose. Likewise, an employee already absent three days for mandatory religious observances could not later use personal leave for "[a]ny religious activity," or "[a]ny religious observance." Since the 1978-1979 school year, teachers have been allowed to take one of the three personal days without prior approval; use of the remaining two days requires advance approval by the school principal. The limitations on the use of personal business leave spawned this litigation. Until the 1976-1977 year, Philbrook observed mandatory holy days by using the three days granted in the contract and then taking unauthorized leave. His pay was reduced accordingly.[2] In 1976, however, respondent stopped taking unauthorized leave for religious reasons, and began scheduling required hospital visits on church holy days. He also worked on several holy days. Dissatisfied with this arrangement, Philbrook repeatedly asked the school board to adopt one of two alternatives. His preferred alternative would allow use of personal business leave for religious observance, effectively giving him three additional * days of paid leave for that purpose. Short of this arrangement, respondent suggested that he pay the cost of a substitute and receive full pay for additional days off for religious observances.[3] Petitioner has consistently rejected both proposals. In 1973 Philbrook filed a complaint with the Connecticut Commission on Human Rights and Opportunities and the Equal Employment Opportunity Commission against the school board and the Ansonia Federation of Teachers. After exhausting the available administrative avenues, he filed a complaint in the United States District Court for the District of Connecticut, alleging that the prohibition on the use of "necessary personal business" leave for religious observance violated 703(a)(1), (2) of Title VII, 42 U.S. C. 2000e-2(a)(1), (2), and seeking both damages and injunctive relief.[4] After a 2-day trial, the District Court concluded that Philbrook had failed to prove a case of religious discrimination because he had not been placed by the school board in a position of violating his religion or losing his job. The Court of Appeals for the Second Circuit reversed and remanded for further proceedings. It held that a prima facie case of discrimination is established when an employee shows that " `(1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; (3) he or she was disciplined for failure to comply with the conflicting employment *66 requirement.' " quoting Philbrook established his case, the court held, by showing that he had a sincere religious belief that conflicted with the employer's attendance requirements, that the employer was aware of the belief, and that he suffered a detriment — namely, a loss of pay — from the conflict.[5] The court then assumed that the employer's leave policy constituted a reasonable accommodation to Philbrook's belief. It held, however, that "[w]here the employer and the employee each propose a reasonable accommodation, Title VII requires the employer to accept the proposal the employee prefers unless that accommodation causes undue hardship on the employer's conduct of his business." The Court of Appeals remanded for consideration of the hardship that would result from Philbrook's suggestions. We granted certiorari to consider the important questions of federal law presented by the decision of the Court of Appeals. Specifically, we are asked to address whether the Court of Appeals erred in finding that Philbrook established a prima facie case of religious discrimination and in opining that an employer must accept the employee's preferred accommodation absent proof of undue hardship. We find little support in the statute for the approach adopted by the Court of Appeals, but we agree that the ultimate issue of reasonable accommodation cannot be resolved without further factual inquiry. We accordingly affirm the judgment of the Court of Appeals remanding the case to the District Court for additional findings. *67 As we noted in our only previous consideration of 701(j), its language was added to the 1972 amendments on the floor of the Senate with little discussion. Trans World Airlines, See 118 Cong. Rec. 705-706 (1972). In we determined that an accommodation causes "undue hardship" whenever that accommodation results in "more than a de minimis cost" to the employer. had been discharged because his religious beliefs would not allow him to work on Saturdays and claimed that this action violated the employer's duty to effect a reasonable accommodation of his beliefs. Because we concluded that each of the suggested accommodations would impose on the employer an undue hardship, we had no occasion to consider the bounds of a prima facie case in the religious accommodation context or whether an employer is required to choose from available accommodations the alternative preferred by the employee. The employer in simply argued that all conceivable accommodations would result in undue hardship, and we agreed. Petitioner asks us to establish for religious accommodation claims a proof scheme analogous to that developed in other Title VII contexts, delineating the plaintiff's prima facie case and shifting production burdens. See Texas Dept. of Community ; McDonnell Douglas But the present case raises no such issue. As in United States Postal Service Board of the defendant here failed to persuade the District Court to dismiss the action for want of a prima facie case, and the case was fully tried on the merits. We held in Aikens that these circumstances place the ultimate Title VII question of discrimination vel non directly before the court. "Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant." *68 We may therefore proceed to the question whether the employer's proposed accommodation of respondent's religious practices comports with the statutory mandate of 701(j). In addressing this question, the Court of Appeals assumed that the employer had offered a reasonable accommodation of Philbrook's religious beliefs. This alone, however, was insufficient in that court's view to allow resolution of the dispute. The court observed that the duty to accommodate "cannot be defined without reference to undue hardship." It accordingly determined that the accommodation obligation includes a duty to accept "the proposal the employee prefers unless that accommodation causes undue hardship on the employer's conduct of his business." Cf. American Postal Because the District Court had not considered whether Philbrook's proposals would impose undue hardship, the Court of Appeals remanded for further consideration of those proposals. We find no basis in either the statute or its legislative history for requiring an employer to choose any particular reasonable accommodation. By its very terms the statute directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation. The employer violates the statute unless it "demonstrates that [it] is unable to reasonably accommodate an employee's religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S. C. 2000e(j). Thus, where the employer has already reasonably accommodated the employee's religious needs, the statutory inquiry is at an end. The employer need not further show that each of the employee's alternative accommodations would result in undue hardship. As illustrates, the extent of *69 undue hardship on the employer's business is at issue only where the employer claims that it is unable to offer any reasonable accommodation without such hardship. Once the Court of Appeals assumed that the school board had offered to Philbrook a reasonable alternative, it erred by requiring the Board to nonetheless demonstrate the hardship of Philbrook's alternatives. The legislative history of 701(j), as we noted in and n. 9, is of little help in defining the employer's accommodation obligation. To the extent it provides any indication of congressional intent, however, we think that the history supports our conclusion. Senator Randolph, the sponsor of the amendment that became 701(j), expressed his hope that accommodation would be made with "flexibility" and "a desire to achieve an adjustment." 118 Cong. Rec. 706 (1972). Consistent with these goals, courts have noted that "bilateral cooperation is appropriate in the search for an acceptable reconciliation of the needs of the employee's religion and the exigencies of the employer's business." See also American Postal Under the approach articulated by the Court of Appeals, however, the employee is given every incentive to hold out for the most beneficial accommodation, despite the fact that an employer offers a reasonable resolution of the conflict. This approach, we think, conflicts with both the language of the statute and the views that led to its enactment. We accordingly hold that an employer has met its obligation under 701(j) when it demonstrates that it has offered a reasonable accommodation to the employee.[6] *70 The remaining issue in the case is whether the school board's leave policy constitutes a reasonable accommodation of Philbrook's religious beliefs. Because both the District Court and the Court of Appeals applied what we hold to be an erroneous view of the law, neither explicitly considered this question. We think that there are insufficient factual findings as to the manner in which the collective-bargaining agreements have been interpreted in order for us to make that judgment initially. We think that the school board policy in this case, requiring respondent to take unpaid leave for holy day observance that exceeded the amount allowed by the collective-bargaining agreement, would generally be a reasonable one. In enacting 701(j), Congress was understandably motivated by a desire to assure the individual additional opportunity to observe religious practices, but it did not impose a duty on the employer to accommodate at all costs. Trans World Airlines, The provision of unpaid leave eliminates the conflict between employment requirements and religious practices by allowing the individual to observe fully religious holy days and requires him only to give up compensation for a day that he did not in fact work. Generally speaking, "[t]he direct effect of [unpaid leave] is merely a loss of income for the period *71 the employee is not at work; such an exclusion has no direct effect upon either employment opportunities or job status." Nashville Gas But unpaid leave is not a reasonable accommodation when paid leave is provided for all purposes except religious ones. A provision for paid leave "that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free not to provide the benefit at all." Such an arrangement would display a discrimination against religious practices that is the antithesis of reasonableness. Whether the policy here violates this teaching turns on factual inquiry into past and present administration of the personal business leave provisions of the collective-bargaining agreement. The school board contends that the necessary personal business category in the agreement, like other leave provisions, defines a limited purpose leave. Philbrook, on the other hand, asserts that the necessary personal leave category is not so limited, operating as an open-ended leave provision that may be used for a wide range of secular purposes in addition to those specifically provided for in the contract, but not for similar religious purposes. We do not think that the record is sufficiently clear on this point for us to make the necessary factual findings, and we therefore affirm the judgment of the Court of Appeals remanding the case to the District Court. The latter court on remand should make the necessary findings as to past and existing practice in the administration of the collective-bargaining agreements. It is so ordered. JUSTICE MARSHALL, concurring in part and dissenting in part. I agree with the Court's conclusion that, if the school board provides paid leave "for all purposes except religious ones," ante this page, its accommodation of Philbrook's religious needs would be unreasonable and thus violate Title VII. *72 But I do not find the specificity of the personal business leave, or the possibility that it may be used for activities similar to the religious activities Philbrook seeks leave to pursue, necessarily dispositive of whether the Board has satisfied its affirmative duty under 701(j), 42 U.S. C. 2000e(j), to reasonably accommodate Philbrook's religious needs. Even if the District Court should find that the personal leave is restricted to specific secular uses having no similarity with Philbrook's religious activities, Philbrook would still encounter a conflict between his religious needs and work requirements. In my view, the question would remain whether, without imposing an undue hardship on the conduct of its educational program, the school board could further reasonably accommodate Philbrook's need for additional religious leave. If, for example, the personal business leave were so limited that it allowed teachers paid leave for the sole purpose of meeting with their accountants to prepare their income tax returns (a purely secular activity), a proposal from Philbrook that he be allowed to prepare his tax return on his own time and use this paid leave for religious observance might be found imminently reasonable and lacking in undue hardship. The Board's prior determination that the conduct of its educational program can withstand the paid absence of its teachers for up to six days each year for religious and personal reasons tends to indicate that granting Philbrook's similar request in this case for a total of six days paid religious leave and no personal leave is reasonable, would cause the Board no undue hardship, and hence falls within the scope of the Board's affirmative obligation under Title VII. The Court suggests that requiring an employer to consider an employee's proposals would enable the employee to hold his employer hostage in exchange for a particular accommodation. Ante, at 69. If the employer has offered a reasonable accommodation that fully resolves the conflict between the employee's work and religious requirements, I agree that *73 no further consideration of the employee's proposals would normally be warranted. But if the accommodation offered by the employer does not completely resolve the employee's conflict, I would hold that the employer remains under an obligation to consider whatever reasonable proposals the employee may submit. I do not accept the Court's conclusion that the statute, "[b]y its very terms," relieves the Board from this continuing duty to accommodate the special religious practices of its employees where doing so is reasonable and causes no undue hardship. Ante, at 68. The statute simply creates an affirmative duty to accommodate; it does not specify who must respond to whom. Nor am I persuaded that the legislative history cited by the Court disposes of this issue. The statement of Senator Randolph, who sponsored the amendment, that he hoped the "accommodation would be made with `flexibility' and `a desire to achieve an adjustment,' " lends at least as much support to the concept of the employer's continuing duty as it does to the Court's reading of the statute. Ante, at 69 (quoting 118 Cong. Rec. 706 (1972)). The EEOC's guidelines on religious discrimination support an interpretation of the statute placing this continuing duty to accommodate on the employer.[*] Just last Term, in * Meritor Savings we expressly relied on an EEOC guideline in holding that sexual harassment charges could provide the basis for a Title VII claim. The Court's reluctance to accord similar weight to the EEOC's interpretation here rests on nothing more than a selective reading of the express provisions of Title VII and the guidelines. Ante, at 69-70, n. 6. Title VII prohibits discrimination not only with respect to employment opportunities, 703(a)(2), 42 U.S. C. 2000e-2(a)(2), but also with respect to "compensation, terms, conditions, or privileges of employment." 703(a)(1), 42 U.S. C. 2000e-2(a)(1) (emphasis added). The EEOC guidelines consider compensation encompassed within the concept of "employment opportunities." 29 CFR 1605.2(c) A forced reduction in compensation based on an employee's religious beliefs can be as much a violation of Title VII as a refusal to hire or grant a promotion. In this case, contrary to the Court's conclusion, ante, at 70-71, the school board's accommodation of Philbrook's religious needs by merely allowing unpaid leave does not eliminate the conflict. Rather, the offer forces Philbrook to choose between following his religious precepts with a partial forfeiture of salary and violating these precepts for work with full pay. It is precisely this loss of compensation that entitles Philbrook to further accommodation, if reasonably possible without undue hardship to the school board's educational program. It may be that unpaid leave will generally amount to a reasonable accommodation, but this does not mean that unpaid leave will always be the reasonable accommodation which best resolves the conflict between the needs of the employer and employee. In my view, then, an offer of unpaid leave does not end the inquiry: If an employee, in turn, offers another reasonable proposal that results in a more effective resolution without causing undue hardship, the employer should be required to implement it. * The Court's analysis in Trans World Airlines, is difficult to reconcile with its holding today. In the Court held that the employer's chosen work schedule was a reasonable accommodation but nonetheless went on to consider and reject each of the alternative suggested accommodations. The course followed in should have been adopted here as well. "Once it is determined that the duty to accommodate sometimes requires that an employee be exempted from an otherwise valid work requirement, the only remaining question is : Did [the employer] prove that it exhausted all reasonable accommodations, and that the only remaining alternatives would have caused undue hardship on [the employer's] business?" (emphasis added). Accordingly, I would remand this case for factual findings on both the intended scope of the school board's leave provision and the reasonableness and expected hardship of Philbrook's proposals. JUSTICE STEVENS, concurring in part and dissenting in part. While I agree with the Court's rejection of the rationale of the Court of Appeals' opinion, I would simply reverse its judgment. Remanding for further proceedings in the District Court is both unnecessary and confusing. Whether respondent Philbrook's complaint is analyzed as an outright claim that he is entitled to six paid days of leave for religious observance or as an argument that petitioner's employment policies, while facially neutral, fail to accommodate his religious beliefs, the record before us plainly discloses that he cannot prevail. I The school board has a clear duty not to discriminate against Philbrook because of his religious faith. Section 703(a) of the Civil Rights Act of 1964 flatly prohibits an employer *76 from discriminating against any individual by basing employment and workplace decisions on the employee's or prospective employee's religion. This stricture against disparate treatment based on religion is simultaneously extended and qualified by 701, which defines religion for purposes of the Act. Congress defines religion to include "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." 701(j). The statute therefore imposes a duty on the employer to make reasonable accommodations, short of undue hardship, for the religious practices of his employees. Trans World Airlines, The effect of 703(a) is to impose a special duty upon the employer when — and only when — a conflict arises between an individual's religious observance or practice and the employer's policy. The statute does not allow a plaintiff raising a claim under 701(j) to charge immediately onto the field of undue hardship. Folded within 701(j) are certain preliminary inquiries. First, the court must ask whether the employee's job obligations are in conflict with his religious obligations. "The accommodation issue by definition arises only when a neutral rule of general applicability conflicts with the religious practices of a particular employee." Absent a conflict, it makes no sense to speak of a duty to accommodate; there is no competing claim on the employee for which the employer must make adjustments. If the duty does arise, the statute requires the employer to resolve the conflict if it can do so without undue hardship. As the Court correctly holds, the employer has no statutory duty to resolve the conflict in the way the employee requests as long as the solution that is adopted is reasonable. I find it equally clear that the employer *77 has no statutory duty to do anything more than strictly necessary to resolve the conflict. Because the existence and scope of the duty to accommodate depend solely on the nature of the conflict between the terms of the job and the requirements of the religion, it is essential to identify the alleged conflict as precisely as possible. In this case Philbrook's faith prevents him from working on certain schooldays. The school board does not require him to work on any of those days; on three of those days each year it pays him even though he does not work, and on the other days it declines to pay him for the time that he spends discharging his religious obligations. The existence of a conflict is thus not immediately apparent. Philbrook argues, however, that the contractual arrangement occasions two conflicts between his religious requirements and his employer's job requirements. First, he argues that the employer's practice of excluding religious observance as a permissible use of the three days of paid annual leave for "necessary personal business" is directly in conflict with his religious practice, because he needs to take those days as days of religious obligation. Second, during his unpaid absence from work on days of religious obligation, he is unable to do work and must later — or earlier — perform this work without separate compensation. In essence, he argues that the employer's practice of requiring him to complete this work, which is an integral part of his job duties as a salaried employee, conflicts with his religious obligation to be absent on the days when he would otherwise have performed this work and been paid for it. An examination of these claims discloses that neither has merit. II Philbrook has contended that the school board has discriminated on the basis of religion in the allocation of its paid annual leave, or more specifically, in the limitation it has placed on the use of three days of paid annual leave for necessary *78 personal business. Properly viewed, the conflict Philbrook alleges is one which is not cognizable under 703 and therefore entitles him to no relief. He points to the conflict, by no means specific to the practice of religion, between the Board's leave policy and the needs of an employee who wishes to use the three days of necessary personal business leave for any purpose not allowed by the contract. The Board allows all of its teachers three days of paid annual leave for "necessary personal business" but prohibits them from using any of those days for "[a]ny religious activity." On its face, this prohibition might appear to discriminate against employees who need to take a day off to attend church in favor of those who need a day off for secular reasons. The argument fails, however, because it does not fully describe either the scope of the separate provision for paid leave for religious purposes or the restricted scope of the provision for leave for necessary personal business. The collective-bargaining agreement between the school board and the teachers' union contains generous provisions for paid leave for various specific purposes. After stating that 18 days of annual leave shall be granted "for personal illness and/or illness in the immediate family," the contract specifies 11 additional categories of personal leave, including 5 days for a death in the immediate family, 1 day each for attendance at funerals, weddings, graduations, and immediate family religious services, and 3 days each for "[m]andated religious observances" and "[n]ecessary personal business." The teacher is not required to identify the specific character of his personal business, but the contract limits the teacher's discretion by stating: "Necessary personal business shall not include (without limitations): "1. Marriage attendance or participation; "2. Day following marriage or wedding trip; "3. Attendance or participation in a sporting or recreational event; *79 "4. Any religious observance; "5. Travel associated with any provision of annual leave; "6. Purposes set forth under annual leave or another leave provision of this contract." App. 100. Philbrook does not contend that the leave policy is discriminatory because he is eligible for, or has actually received, fewer days of paid leave than members of other religious faiths or than teachers who have no religious obligations on schooldays. The basis of his principal discrimination argument is that the total of six days for mandated religious observances and necessary personal business is not adequate to enable him to take care of "the personal business that is most important and pressing to him: religious activity and observance,"[1] whereas this combination of six days of paid leave is adequate for some teachers who have different religious and ethical commitments. Quite clearly, however, this argument rests on the premise that Philbrook's special, that is, religious, needs entitle him to extraordinary treatment. His "discrimination" argument states a grievance against equal treatment rather than a claim that he has been the recipient of unequal treatment.[2] *80 This point comes into sharp focus when the contractual prohibition against using the three days of personal leave for "any religious observance" is seen for what it is, merely a part of the broader prohibition against using personal business leave for any of the purposes specifically authorized in the contract. The existing leave policy denies paid days to any teacher who proposes to take more paid days of personal business leave per year to fulfill his or her commitments than the contract allows. Philbrook's wish to use his secular leave for religious purposes is thwarted by the same policy that denies an avid official delegate to a national veterans' organization use of secular leave days for that activity in excess of the days specifically allotted for it under the contract. In fact, since three days are expressly authorized for mandated religious observances — events that recur each year — whereas most other categories of paid leave cover relatively infrequent contingencies such as a death in the family or attendance at a family wedding, it is highly probable that the leave policy as a whole tends to favor, rather than to disfavor, persons who must observe religious days during the school year. For example, an atheist who attends a wedding, a funeral, and a graduation on schooldays receives a total of three days of paid personal leave, but a religious person who attends the same three events on paid days also receives pay for three religious days. III Philbrook's second claim is that the board has a duty of reasonable accommodation "to mitigate the burden of the Board's requirement that [he] work without pay in connection with his absence for religious observance." Brief for *81 Respondent Philbrook 24.[3] This claim founders because it discloses no conflict between Philbrook's religion and his employment. If he had been disciplined, or discharged, for taking too many days off for religious services, the result would be different, but the only inconvenience to which he is subjected is the necessity of doing work on paid days that he was unable to do during his days of religious observance. This inconvenience arises not because of any discrimination against religion, but because the employee's missed day of work is unpaid. Every employee who takes a day off from work for an unauthorized purpose suffers the same inconvenience as Philbrook; each loses a day of pay and must make up the work associated with that day. The obligation to perform the work carries over, not because the employee has exercised his religion in the one case or satisfied a secular business need in another, but for the generic and shared reason that the employee was not paid for a day on which he was hired to do work. Since no statutory conflict between Philbrook's religion and his work duties occurred, the duty to accommodate his religious practices never arose. IV The present state of the record enables me to conclude that Philbrook states no claim of religious discrimination under 703(a). In remanding the case, the Court apparently overlooks the plain fact that its rejection of the Court of Appeals' view of the duty of reasonable accommodation eliminates the necessity for further factual findings. Under the Court of *82 Appeals' theory that the employer has a duty to accept any reasonable accommodation proposal made by the employee as long as it does not result in "undue hardship," a remand to the District Court was appropriate to resolve the "undue hardship" issue. I do not understand why a remand is appropriate now. The Court of Appeals has already concluded that if no analysis of undue hardship is required, the Board's policy of granting three days of paid leave and additional days of unpaid leave for religious observances complies with the statute.[4] Neither that court nor the District Court saw any reason to make a special analysis of the "past and present administration of the personal business leave provisions of the collective-bargaining agreement." Ante, at 71. In view of the record, the factual analysis the Court calls for may satisfy the demands of the Court's curious holding in Icicle Seafoods, 4 U.S. 709, but it cannot affect the outcome of this case. Whether the Board has administered the provisions for paid leave for secular purposes strictly or permissively has no bearing on Philbrook's legally insufficient complaint that he *83 has some but not enough leave for religious purposes.[5] The employer has no duty to provide Philbrook with additional days of paid leave. Nor can the uses for which the board has historically allowed personal leave days possibly create a duty to pay Philbrook to perform the work he missed on days of religious obligation. Accordingly, I respectfully dissent from the part of the Court's judgment that remands the case for further proceedings.

Justice Brennan

second_dissenting

Richardson v. Wright

https://www.courtlistener.com/opinion/108476/richardson-v-wright/

https://www.courtlistener.com/api/rest/v3/clusters/108476/

1971-066

I respectfully dissent. The Court justifies today's sua sponte action on the ground that if reprocessing under the Secretary's new regulations "results in a determination of entitlement to disability benefits, there will be no need to consider the constitutional claim that claimants are entitled to an opportunity to make an oral presentation." (Emphasis by the Court.) Avoidance of unnecessary constitutional decisions is certainly a preferred practice when appropriate. But that course is inappropriate, indeed irresponsible, in this instance. We will not avoid the necessity of deciding the important constitutional question presented by claimants even should they prevail upon the Secretary's reconsideration. The question is being pressed all over the country. The Secretary's brief lists no less than seven cases presenting it with respect to disability benefits and 10 cases presenting it with respect to nondisability benefits.[1] *213 The Secretary's new regulations permit discontinuance of disability benefits without affording beneficiaries procedural due process either in the form mandated by Goldberg v. Kelly, 397 U.S. 254 (1970), or in the form mandated by the District Court, 321 F. Supp. 383 (DC 1971). The regulations require only that the beneficiary be informed of the proposed suspension or termination and the information upon which it is based and be given an opportunity to submit a written response before benefits are cut off.[2] This procedure does not afford the beneficiary, as Goldberg requires for welfare and old-age recipients, an evidentiary hearing at which he may personally appear to offer oral evidence and confront and cross-examine adverse witnesses. Nor does the procedure satisfy the requirements of due process as determined by the District Court. That court held that the beneficiary must be given not only notice but also, before he responds, a "reasonable opportunity to examine the documentary evidence" upon which the Secretary relies and, in case of conflict in the evidence, a decision by an impartial decisionmaker. The court said, however, that an evidentiary hearing and opportunity to confront adverse witnesses *214 were not necessary, although "a hearing could be held" if the beneficiary "submitted some evidence that contradicts that possessed by the Administration." 321 F. Supp., at 387. Thus, under both Goldberg and the District Court's decision, the omissions in the Secretary's new regulations are fatal to the constitutional adequacy of the procedures. Because we may imminently be confronted with another case presenting the question, and because its resolution is vitally essential to the administration of an important Government program, today's action in avoiding decision of the constitutional question is not a responsible exercise of that practice. We gain a brief respite for ourselves while the Secretary, state agencies, and beneficiaries continue confused and uncertain. Moreover, the question has been thoroughly and ably argued and briefed on both sides, and we have the benefit of thoughtful and well-considered majority and dissenting opinions in the District Court. Today's disposition results in an unjustified waste, not only of our own all too sparse time and energies, but also of the time and energies of the three judges of the District Court who must again suspend their own heavy calendars to assemble for what can only be an empty exercise. I cannot join in the Court's abdication of our responsibility to decide this case. Both the beneficiaries and the Secretary appeal from the District Court's judgment. The beneficiaries contend that the District Court erred in not holding that the procedure must afford an evidentiary hearing as in Goldberg. The Secretary contends that procedural due process requirements are satisfied by the "paper" hearing afforded by his new regulations. I agree with the beneficiaries and would therefore vacate the judgment of the District Court and remand with direction to enter a new judgment requiring the procedures held in Goldberg to be requisite with respect to discontinuance of welfare *215 and old-age benefits. See Wheeler v. Montgomery, 397 U.S. 280 (1970). Section 225 of the Social Security Act, 42 U.S. C. § 425, provides that "[i]f the Secretary, on the basis of information obtained by or submitted to him, believes that an individual entitled to benefits . . . may have ceased to be under a disability, the Secretary may suspend the payment of benefits . . . until it is determined . . . whether or not such individual's disability has ceased or until the Secretary believes that such disability has not ceased." The District Court held the statute unconstitutional on the ground that "[t]he ex-parte suspension power granted to the Secretary by section 225 is summary adjudication that is inconsistent with the requirements of due process." 321 F. Supp., at 386. The Secretary does not challenge that holding in this Court as applied to his now-discarded procedures. Rather, the Secretary insists that the "hearing on paper" afforded to disability beneficiaries by his new regulations is constitutionally sufficient. The Secretary does not contend that disability beneficiaries differ from welfare and old-age recipients with respect to their entitlement to benefits or the drastic consequences that may befall them if their benefits are erroneously discontinued. The only distinctions urged are that the evidence ordinarily adduced to support suspension and termination of disability benefits differs markedly from that relied upon to cut off welfare benefits and that an undue monetary and administrative burden would result if prior hearings were required. Neither distinction withstands analysis. First. The Secretary points out that the decision to discontinue disability benefits is generally made upon the basis of wage reports from employers and reports of medical examinations. This evidence, in the Secretary's view, "is highly reliable and not of a type that draws into issue veracity or credibility." Brief 10. *216 "The basis upon which disability benefits are suspended or terminated thus differs significantly from that upon which the terminations of welfare benefits involved in [Goldberg] rested." Id., at 25. Hence, the Secretary concludes, while procedural due process requires a pre-termination evidentiary hearing for welfare and old-age recipients, for disability beneficiaries a written presentation will suffice. The Secretary seriously misconstrues the holding in Goldberg. The Court there said that "the pre-termination hearing has one function only: to produce an initial determination of the validity of the welfare department's grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits." 397 U.S., at 267. The Secretary does not deny that due process safeguards fulfill the same function in disability cases. In Goldberg, the Court held that welfare recipients were entitled to hearings because decisions to discontinue benefits were challenged "as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases." Id., at 268. The Court expressly put aside consideration of situations "where there are no factual issues in dispute or where the application of the rule of law is not intertwined with factual issues." Id., at 268 n. 15. However reliable the evidence upon which a disability determination is normally based, and however rarely it involves questions of credibility and veracity, it is plain that, as with welfare and old-age determinations, the determination that an individual is or is not "disabled" will frequently depend upon the resolution of factual issues and the application of legal rules to the facts found. It is precisely for that reason that a hearing must be held. The Secretary, of course, recognizes that disability determinations often involve factual disputes. His new *217 procedures, as well as the post-termination procedures already available, presumably derive from that premise. The beneficiary may file a written response presenting rebuttal evidence before his benefits are suspended or terminated; after termination, he is entitled to reconsideration, based upon written submissions, and then a de novo evidentiary hearing, administrative appellate review of the hearing examiner's decision, and, finally, judicial review. Nevertheless, the Secretary insists that the decision to discontinue disability benefits differs from the decision to discontinue welfare benefits because the latter "may" be based upon "personal and social situations brought to the attention of the authorities by tips, rumor or gossip." Brief 25. Yet it is irrelevant how the matter is "brought to the attention of the authorities," whether "by tips, rumor or gossip" or otherwise. The question in a welfare determination, as in a disability determination, is simply whether the recipient continues to be eligible for benefits. Nor does the Secretary make clear the relevance of "personal and social situations." The Secretary does say that "[o]ne of the recipients in [Goldberg], for example, had been cut off because of her alleged failure to cooperate with welfare authorities in suing her estranged husband; payments to another were terminated because of alleged drug addiction." Ibid. The second recipient, however, was cut off because "he refused to accept counseling and rehabilitation." 397 U.S., at 256 n. 2. Consequently, both recipients lost their benefits for refusing to co-operate with the authorities. That, however, is no distinction from disability cases, for disability benefits will also be discontinued if the beneficiary refuses to cooperate. To support the assertion that pre-termination hearings are required in welfare cases because "credibility and veracity" are in issue, the Secretary focuses upon *218 certain language in Goldberg. He first quotes the statement that "[p]articularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision." Id., at 269. Apart from the obvious fact that that was not an absolute statement intended to limit hearings solely to those instances, it was but one of three reasons given to demonstrate that written submissions are insufficient. The Court also said that written submissions "are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance" and that they "do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decisionmaker appears to regard as important." Ibid. Significantly, the Secretary does not deny that those reasons are as fully applicable to disability beneficiaries as to welfare recipients. The Secretary also relies upon the statement, quoted in Goldberg from Greene v. McElroy, 360 U.S. 474, 496 (1959), that: "[W]here governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination." 397 U.S., at 270 (emphasis added). *219 Again, however, the statement hardly indicates that confrontation and cross-examination are available to welfare recipients only because "credibility and veracity" are in issue. An individual has those rights because facts are in issue, as the statement makes clear. Moreover, the Court introduced its quotation of that statement in Goldberg by pointing out that "[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses." Id., at 269 (emphasis added). And, even assuming the validity of the novel doctrine that confrontation and cross-examination are available solely for the purpose of testing "credibility and veracity," that would not justify depriving the disability beneficiary of "an effective opportunity to defend . . . by presenting his own arguments and evidence orally." Id., at 268. Finally, I see no reason to suppose, nor does the Secretary suggest any, that the "credibility and veracity" of doctors and employers can never be in issue in a disability case. Indeed, the Secretary's new regulations indicate that they may. See Disability Ins. State Manual § 353. The premise of the Secretary's entire argument is that disability benefits are discontinued "only on the basis of an objective consideration—that the previous disability has ceased—and that conclusion rests on reliable information." Brief 26. Whether or not the information is reliable, the premise is questionable. The Secretary himself emphasizes that disability determinations require "specialized medical and vocational evaluations" and not simply the acquisition of "medical and other relevant data." Id., at 28. In any event, there are three grounds, pertinent here, upon which disability can be found to have ceased. None can fairly be characterized by the term "objective." *220 First, cessation of disability may be found if the beneficiary refuses to cooperate with the social security authorities. 20 CFR § 404.1539 (c); see Claims Manual § 6706 (e). That judgment, of course, could be wholly subjective, as the Secretary points out with reference to welfare cases. Second, cessation may be found if the beneficiary "has regained his ability to engage in substantial gainful activity . . . as demonstrated by work activity." 20 CFR § 404.1539 (a) (2); see Claims Manual § 6706 (a). That decision does not, as the Secretary appears to assert, rest solely "upon regular reports made by [the beneficiary's] employers to the government." Brief 25. Rather, "the work performed" by the beneficiary "may demonstrate" that he is no longer disabled, but only if it "is both substantial and gainful." "Substantial work activity involves the performance of significant physical or mental duties, or a combination of both, productive in nature." A finding of "substantial gainful activity" depends upon the nature of the work performed, the adequacy of the performance, and the special conditions, if any, of the employment, as well as an evaluation of the time spent and the amount of money earned by the beneficiary. 20 CFR §§ 404.1532-404.1534. Third, cessation of disability may be found if the evidence establishes medical recovery. 20 CFR § 404.1539 (a) (1); see Claims Manual § 6706 (c). That decision, of course, will be based upon medical examinations, but it does not follow that it is necessarily "objective." "The function of deciding whether or not an individual is under a disability is the responsibility of the Secretary," and a medical conclusion that the beneficiary is or is not disabled "shall not be determinative of the question." 20 CFR § 404.1526. The Secretary's decision that a beneficiary's impairment "is no longer of such severity as to prevent him from engaging *221 in any substantial gainful activity," 20 CFR § 404.1539 (a) (1), obviously depends upon more than an "objective" medical report, for the application of the legal standard necessarily requires the exercise of judgment. And, of course, multiple conflicting medical reports are "not uncommon." Richardson v. Perales, 402 U.S. 389, 399 (1971). The Secretary's claim for "objectivity" is even less persuasive in the situation where a beneficiary's benefits are suspended. "Benefits are suspended when information is received which indicates that the individual may no longer be under a disability." Claims Manual § 6708. Here, by definition, there has been no determination that disability has ceased. Finally, the post-termination reversal rate for disability determinations makes the asserted "objectivity" even more doubtful. According to the Secretary's figures for 1971, 37% of the requests for reconsideration resulted in reversal of the determination that disability had ceased. Moreover, 55% of the beneficiaries who exercised their right to a hearing won reversal. While, as the Secretary says, these figures may attest to the fairness of the system, Richardson v. Perales, supra, at 410, they also appear to confirm that the Court's reference in Goldberg to "the welfare bureaucracy's difficulties in reaching correct decisions on eligibility," 397 U.S., at 264 n. 12, is fully applicable to the administration of the disability program. Second. The Secretary also contends that affording disability beneficiaries the opportunity to participate in evidentiary hearings before discontinuance of their benefits will result in great expense and a vast disruption of the administrative system. This justification for denial of pre-termination hearings was, of course, specifically rejected in Goldberg, 397 U. S., at 265-266, and *222 the Secretary offers no new considerations to support its acceptance here. In Goldberg, the Court pointed out "that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits." 397 U.S., at 264 (emphasis in original). That statement applies equally to eligible disability beneficiaries, for, as the District Court noted and the Secretary does not deny, "a disability beneficiary is by definition unable to engage in substantial gainful activity and he would, therefore, be liable to sustain grievous loss while awaiting the resolution of his claim." 321 F. Supp., at 386. In view of that result, the District Court concluded that the "fiscal and administrative expenses to the government, whatever their magnitude, are insufficient justification considering the crippling blow that could be dealt to an individual in these circumstances." Ibid. The Secretary's response is simply to stress the magnitude of the burden. Here, as in Goldberg, "[t]he requirement of a prior hearing doubtless involves some greater expense." 397 U.S., at 266. The Secretary points out that current procedures include a two-step determination of disability: first by the state agency, after a district office of the Social Security Administration has conducted a disability investigation, and then, on review of the state agency's determination, by the Administration's Bureau of Disability Insurance, which is located in Baltimore, Maryland.[3] Thus, the Secretary says, a prior hearing "either would require the beneficiary to travel great distances or would necessitate that State or federal officials travel to the area in which the beneficiary resides, *223 neither of which is practical." Brief 28-29. "Nor could the decision-making function be turned over to the Administration's district offices, which are located conveniently to the beneficiaries, without staffing them with individuals qualified to make the necessary medical and vocational judgment." Id., at 29. Hence, the Secretary concludes, prior hearings "would require massive restructuring of the existing administrative adjudicative process." Id., at 27. Except for bald assertion, the Secretary offers nothing to indicate that any great burden upon the system would result if the state agencies conducted the hearings. Moreover, the Secretary omits even to mention the existence of the current post-termination hearing procedures. See 20 CFR §§ 404.917-404.941. It is reasonable to assume that the only "restructuring" necessary would be a change in the timing of the hearings. That was apparently the method by which the Secretary required the States to comply with Goldberg in the administration of various other social security programs, see 45 CFR § 205.10, 36 Fed. Reg. 3034-3035, and it would seem to be an equally available response here. While the administration of the disability program to provide prior hearings may involve "some greater expense," as the Court noted in Goldberg, 397 U. S., at 266, that expense should not be exaggerated in order to deprive disability beneficiaries of their right to "rudimentary due process," id., at 267. The Secretary also claims that the requirement of prior hearings "would result in losses to the Social Security Trust Fund of nearly $16 million per year for disability cases and still greater sums when all Title II programs are considered." Brief 10. This conclusion does not follow from the facts the Secretary presents. As to the disability program, the Secretary says that in 1971 there were 38,000 determinations that disability *224 had ceased and that the average monthly benefit in those cases was $207. If, to provide prior hearings, terminations were delayed for two months, the Secretary says, the cost in benefits paid pending the hearings would approach $16 million. It is immediately apparent that this figure is grossly inflated. First, this figure depends upon the unwarranted assumption that all beneficiaries will demand a prior hearing. The Secretary suggests no reason to suppose that would happen. In fact, while there were 38,000 disability cessations in 1971, there were only 10,941 requests for reconsideration, and although 6,885 cessations were affirmed on reconsideration, there were only 2,330 requests for hearings. These post-termination procedures, of course, were utilized by beneficiaries who could not present their views before termination. Under the new regulations, affording notice and the opportunity to respond in writing before termination, it may well be that even fewer beneficiaries will demand hearings. In any event, experience in the welfare area has not demonstrated that recipients abuse their right to pre-termination hearings, and the Secretary does not claim that disability beneficiaries will do so. Second, the $16 million figure requires not only that all 38,000 beneficiaries request prior hearings, but also that they all lose. Yet, as noted above, 37% of the reconsiderations on written submissions and 55% of the post-termination hearings in 1971 resulted in reversal. The Secretary does not claim, nor is it conceivable, that in every case a prior hearing would uphold the initial determination that disability had ceased. Third, not only must every beneficiary request a prior hearing and every hearing affirm cessation of disability, it must also be true, to reach the $16 million figure, that the Secretary will be unable to recover any of the benefits paid to beneficiaries pending the hearings. That result *225 is unlikely. Section 204 (a) (1) of the Act, 42 U.S. C. § 404 (a) (1); see 20 CFR §§ 404.501-404.502, directs the Secretary, if he finds that there has been an overpayment, to require a refund from the beneficiary or to decrease any future benefits to which he may be entitled. Thus, if the beneficiary is not "disabled," he presumably can engage in "substantial gainful activity," and the Secretary may well secure a refund. If, on the other hand, the case is a close one and the beneficiary is later found to be "disabled" again, the Secretary may reduce his benefits. Furthermore, § 204 (b), 42 U.S. C. § 404 (b); see 20 CFR §§ 404.506-404.509, directs the Secretary not to require a refund or decrease benefits if the beneficiary "is without fault" and a refund or decrease "would defeat the purpose of" the Act or "would be against equity and good conscience." The Secretary's duty to waive claims for excess payments may well apply in many termination cases, particularly where the beneficiary is judgment proof. See 20 CFR § 404.508. Obviously, there is no loss to the social security fund if benefits paid to an ineligible beneficiary pending a hearing are subject to statutory waiver. Fourth, the $16 million figure depends upon the stated premise that the requirement of a hearing would cause a two-month delay in the termination of benefits. The Secretary does not explain why he chose that time period. Under the new regulations, a beneficiary receives notice of the proposed discontinuance, is informed of the information upon which it is based, and is given the opportunity to submit a written response presenting rebuttal evidence. Only then is the disability determination made. It is difficult to believe that it would require another two months just to provide a hearing. Finally, under § 223 (a) (1) of the Act, 42 U.S. C. § 423 (a) (1); see Claims Manual § 6707, benefits must be paid for two months after the month in which disability *226 ceases. The $16 million figure depends upon the unwarranted assumption that all terminations occur at least two months after disability is found to have ceased. In this case, for example, the state agency determined that plaintiff Atkins' disability ceased in January. The Bureau of Disability Insurance approved that determination and on February 3 informed Atkins that his benefits would be terminated at the end of March. Thus, even assuming a two-month delay for a hearing, there would be no cost whatever to the trust fund. Viewing Title II programs as a whole, the Secretary points out that there were nearly three million terminations of benefits in 1969. The vast majority of these terminations were for death, attainment of a certain age, and so forth, but the Secretary asserts that apart from those cases there were 515,189 terminations that would have been affected by the requirement of a prior hearing. That number, however, includes terminations based upon a student's leaving school, a change in a beneficiary's marital status, and the death or adoption of a child. Without those cases, the number drops to 186,035. Moreover, even this number includes disability terminations and the terminations of dependents based thereon. Putting aside those cases, the total appears to be somewhat closer to 100,000. While that is a substantial number of terminations, the Secretary does not indicate what issues are involved in making the decisions. As noted above, prior evidentiary hearings are necessary in disability cases because factual disputes exist. They may exist to a far lesser extent in other programs. Moreover, to whatever extent they do exist, the objections to the Secretary's inflated cost figure for disability terminations would seem to apply equally to nondisability terminations. In any event, the Secretary has simply provided the bare number of terminations, with no further information, and it *227 is inappropriate, if not impossible, to decide what effect requiring prior hearings in disability cases will have on nondisability cases. I do not deny that prior hearings will entail some additional administrative burdens and expense. Administrative fairness usually does. But the Secretary "is not without weapons to minimize these increased costs." Goldberg v. Kelly, 397 U. S., at 266. Despite the Secretary's protestations to the contrary, I believe that in the disability, as in the welfare, area "[m]uch of the drain on fiscal and administrative resources can be reduced by developing procedures for prompt pre-termination hearings and by skillful use of personnel and facilities." Ibid. The Court's conclusion on this point in Goldberg is fully applicable here: "Indeed, the very provision for a post-termination evidentiary hearing . . . is itself cogent evidence that the State recognizes the primacy of the public interest in correct eligibility determinations and therefore in the provision of procedural safeguards. Thus, the interest of the eligible recipient in uninterrupted receipt of public assistance, coupled with the State's interest that his payments not be erroneously terminated, clearly outweighs the State's competing concern to prevent any increase in its fiscal and administrative burdens." Ibid. My answers to the Secretary's contentions are also the reasons I disagree with the majority of the District Court and agree with the dissenting judge. I would therefore vacate the judgment of the District Court and remand with direction to enter a new judgment requiring that disability benefits not be discontinued until the beneficiary has been afforded procedural due process in the form mandated by Goldberg with respect to discontinuance of welfare and old-age benefits.

I respectfully dissent. The Court justifies today's sua sponte action on the ground that if reprocessing under the Secretary's new regulations "results in a determination of entitlement to disability benefits, there will be no need to consider the constitutional claim that claimants are entitled to an opportunity to make an oral presentation." (Emphasis by the Court.) Avoidance of unnecessary constitutional decisions is certainly a preferred practice when appropriate. But that course is inappropriate, indeed irresponsible, in this instance. We will not avoid the necessity of deciding the important constitutional question presented by claimants even should they prevail upon the Secretary's reconsideration. The question is being pressed all over the country. The Secretary's brief lists no less than seven cases presenting it with respect to disability benefits and 10 cases presenting it with respect to nondisability benefits.[1] *213 The Secretary's new regulations permit discontinuance of disability benefits without affording beneficiaries procedural due process either in the form mandated by or in the form mandated by the District Court, The regulations require only that the beneficiary be informed of the proposed suspension or termination and the information upon which it is based and be given an opportunity to submit a written response before benefits are cut off.[2] This procedure does not afford the beneficiary, as requires for welfare and old-age recipients, an evidentiary hearing at which he may personally appear to offer oral evidence and confront and cross-examine adverse witnesses. Nor does the procedure satisfy the requirements of due process as determined by the District Court. That court held that the beneficiary must be given not only notice but also, before he responds, a "reasonable opportunity to examine the documentary evidence" upon which the Secretary relies and, in case of conflict in the evidence, a decision by an impartial decisionmaker. The court said, however, that an evidentiary hearing and opportunity to confront adverse witnesses *214 were not necessary, although "a hearing could be held" if the beneficiary "submitted some evidence that contradicts that possessed by the Administration." Thus, under both and the District Court's decision, the omissions in the Secretary's new regulations are fatal to the constitutional adequacy of the procedures. Because we may imminently be confronted with another case presenting the question, and because its resolution is vitally essential to the administration of an important Government program, today's action in avoiding decision of the constitutional question is not a responsible exercise of that practice. We gain a brief respite for ourselves while the Secretary, state agencies, and beneficiaries continue confused and uncertain. Moreover, the question has been thoroughly and ably argued and briefed on both sides, and we have the benefit of thoughtful and well-considered majority and dissenting opinions in the District Court. Today's disposition results in an unjustified waste, not only of our own all too sparse time and energies, but also of the time and energies of the three judges of the District Court who must again suspend their own heavy calendars to assemble for what can only be an empty exercise. I cannot join in the Court's abdication of our responsibility to decide this case. Both the beneficiaries and the Secretary appeal from the District Court's judgment. The beneficiaries contend that the District Court erred in not holding that the procedure must afford an evidentiary hearing as in The Secretary contends that procedural due process requirements are satisfied by the "paper" hearing afforded by his new regulations. I agree with the beneficiaries and would therefore vacate the judgment of the District Court and remand with direction to enter a new judgment requiring the procedures held in to be requisite with respect to discontinuance of welfare *215 and old-age benefits. See Section 225 of the Social Security Act, 42 U.S. C. 425, provides that "[i]f the Secretary, on the basis of information obtained by or submitted to him, believes that an individual entitled to benefits may have ceased to be under a disability, the Secretary may suspend the payment of benefits until it is determined whether or not such individual's disability has ceased or until the Secretary believes that such disability has not ceased." The District Court held the statute unconstitutional on the ground that "[t]he ex-parte suspension power granted to the Secretary by section 225 is summary adjudication that is inconsistent with the requirements of due process." The Secretary does not challenge that holding in this Court as applied to his now-discarded procedures. Rather, the Secretary insists that the "hearing on paper" afforded to disability beneficiaries by his new regulations is constitutionally sufficient. The Secretary does not contend that disability beneficiaries differ from welfare and old-age recipients with respect to their entitlement to benefits or the drastic consequences that may befall them if their benefits are erroneously discontinued. The only distinctions urged are that the evidence ordinarily adduced to support suspension and termination of disability benefits differs markedly from that relied upon to cut off welfare benefits and that an undue monetary and administrative burden would result if prior hearings were required. Neither distinction withstands analysis. First. The Secretary points out that the decision to discontinue disability benefits is generally made upon the basis of wage reports from employers and reports of medical examinations. This evidence, in the Secretary's view, "is highly reliable and not of a type that draws into issue veracity or credibility." Brief 10. *216 "The basis upon which disability benefits are suspended or terminated thus differs significantly from that upon which the terminations of welfare benefits involved in [] rested." Hence, the Secretary concludes, while procedural due process requires a pre-termination evidentiary hearing for welfare and old-age recipients, for disability beneficiaries a written presentation will suffice. The Secretary seriously misconstrues the holding in The Court there said that "the pre-termination hearing has one function only: to produce an initial determination of the validity of the welfare department's grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits." The Secretary does not deny that due process safeguards fulfill the same function in disability cases. In the Court held that welfare recipients were entitled to hearings because decisions to discontinue benefits were challenged "as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases." The Court expressly put aside consideration of situations "where there are no factual issues in dispute or where the application of the rule of law is not intertwined with factual issues." n. 15. However reliable the evidence upon which a disability determination is normally based, and however rarely it involves questions of credibility and veracity, it is plain that, as with welfare and old-age determinations, the determination that an individual is or is not "disabled" will frequently depend upon the resolution of factual issues and the application of legal rules to the facts found. It is precisely for that reason that a hearing must be held. The Secretary, of course, recognizes that disability determinations often involve factual disputes. His new *217 procedures, as well as the post-termination procedures already available, presumably derive from that premise. The beneficiary may file a written response presenting rebuttal evidence before his benefits are suspended or terminated; after termination, he is entitled to reconsideration, based upon written submissions, and then a de novo evidentiary hearing, administrative appellate review of the hearing examiner's decision, and, finally, judicial review. Nevertheless, the Secretary insists that the decision to discontinue disability benefits differs from the decision to discontinue welfare benefits because the latter "may" be based upon "personal and social situations brought to the attention of the authorities by tips, rumor or gossip." Brief 25. Yet it is irrelevant how the matter is "brought to the attention of the authorities," whether "by tips, rumor or gossip" or otherwise. The question in a welfare determination, as in a disability determination, is simply whether the recipient continues to be eligible for benefits. Nor does the Secretary make clear the relevance of "personal and social situations." The Secretary does say that "[o]ne of the recipients in [], for example, had been cut off because of her alleged failure to cooperate with welfare authorities in suing her estranged husband; payments to another were terminated because of alleged drug addiction." The second recipient, however, was cut off because "he refused to accept counseling and rehabilitation." 397 U.S., 6 n. 2. Consequently, both recipients lost their benefits for refusing to co-operate with the authorities. That, however, is no distinction from disability cases, for disability benefits will also be discontinued if the beneficiary refuses to cooperate. To support the assertion that pre-termination hearings are required in welfare cases because "credibility and veracity" are in issue, the Secretary focuses upon *218 certain language in He first quotes the statement that "[p]articularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision." Apart from the obvious fact that that was not an absolute statement intended to limit hearings solely to those instances, it was but one of three reasons given to demonstrate that written submissions are insufficient. The Court also said that written submissions "are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance" and that they "do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decisionmaker appears to regard as important." Significantly, the Secretary does not deny that those reasons are as fully applicable to disability beneficiaries as to welfare recipients. The Secretary also relies upon the statement, quoted in from that: "[W]here governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination." *219 Again, however, the statement hardly indicates that confrontation and cross-examination are available to welfare recipients only because "credibility and veracity" are in issue. An individual has those rights because facts are in issue, as the statement makes clear. Moreover, the Court introduced its quotation of that statement in by pointing out that "[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses." And, even assuming the validity of the novel doctrine that confrontation and cross-examination are available solely for the purpose of testing "credibility and veracity," that would not justify depriving the disability beneficiary of "an effective opportunity to defend by presenting his own arguments and evidence orally." Finally, I see no reason to suppose, nor does the Secretary suggest any, that the "credibility and veracity" of doctors and employers can never be in issue in a disability case. Indeed, the Secretary's new regulations indicate that they may. See Disability Ins. State Manual 353. The premise of the Secretary's entire argument is that disability benefits are discontinued "only on the basis of an objective consideration—that the previous disability has ceased—and that conclusion rests on reliable information." Brief 26. Whether or not the information is reliable, the premise is questionable. The Secretary himself emphasizes that disability determinations require "specialized medical and vocational evaluations" and not simply the acquisition of "medical and other relevant data." In any event, there are three grounds, pertinent here, upon which disability can be found to have ceased. None can fairly be characterized by the term "objective." *220 First, cessation of disability may be found if the beneficiary refuses to cooperate with the social security authorities. 20 CFR 404.1539 ; see Claims Manual 6706 (e). That judgment, of course, could be wholly subjective, as the Secretary points out with reference to welfare cases. Second, cessation may be found if the beneficiary "has regained his ability to engage in substantial gainful activity as demonstrated by work activity." 20 CFR 404.1539 (2); see Claims Manual 6706 That decision does not, as the Secretary appears to assert, rest solely "upon regular reports made by [the beneficiary's] employers to the government." Brief 25. Rather, "the work performed" by the beneficiary "may demonstrate" that he is no longer disabled, but only if it "is both substantial and gainful." "Substantial work activity involves the performance of significant physical or mental duties, or a combination of both, productive in nature." A finding of "substantial gainful activity" depends upon the nature of the work performed, the adequacy of the performance, and the special conditions, if any, of the employment, as well as an evaluation of the time spent and the amount of money earned by the beneficiary. 20 CFR 404.1532-404.1534. Third, cessation of disability may be found if the evidence establishes medical recovery. 20 CFR 404.1539 (1); see Claims Manual 6706 That decision, of course, will be based upon medical examinations, but it does not follow that it is necessarily "objective." "The function of deciding whether or not an individual is under a disability is the responsibility of the Secretary," and a medical conclusion that the beneficiary is or is not disabled "shall not be determinative of the question." 20 CFR 404.1526. The Secretary's decision that a beneficiary's impairment "is no longer of such severity as to prevent him from engaging *221 in any substantial gainful activity," 20 CFR 404.1539 (1), obviously depends upon more than an "objective" medical report, for the application of the legal standard necessarily requires the exercise of judgment. And, of course, multiple conflicting medical reports are "not uncommon." The Secretary's claim for "objectivity" is even less persuasive in the situation where a beneficiary's benefits are suspended. "Benefits are suspended when information is received which indicates that the individual may no longer be under a disability." Claims Manual 6708. Here, by definition, there has been no determination that disability has ceased. Finally, the post-termination reversal rate for disability determinations makes the asserted "objectivity" even more doubtful. According to the Secretary's figures for 37% of the requests for reconsideration resulted in reversal of the determination that disability had ceased. Moreover, 55% of the beneficiaries who exercised their right to a hearing won reversal. While, as the Secretary says, these figures may attest to the fairness of the system, they also appear to confirm that the Court's reference in to "the welfare bureaucracy's difficulties in reaching correct decisions on eligibility," n. 12, is fully applicable to the administration of the disability program. Second. The Secretary also contends that affording disability beneficiaries the opportunity to participate in evidentiary hearings before discontinuance of their benefits will result in great expense and a vast disruption of the administrative system. This justification for denial of pre-termination hearings was, of course, specifically rejected in -266, and *222 the Secretary offers no new considerations to support its acceptance here. In the Court pointed out "that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits." That statement applies equally to eligible disability beneficiaries, for, as the District Court noted and the Secretary does not deny, "a disability beneficiary is by definition unable to engage in substantial gainful activity and he would, therefore, be liable to sustain grievous loss while awaiting the resolution of his claim." In view of that result, the District Court concluded that the "fiscal and administrative expenses to the government, whatever their magnitude, are insufficient justification considering the crippling blow that could be dealt to an individual in these circumstances." The Secretary's response is simply to stress the magnitude of the burden. Here, as in "[t]he requirement of a prior hearing doubtless involves some greater expense." The Secretary points out that current procedures include a two-step determination of disability: first by the state agency, after a district office of the Social Security Administration has conducted a disability investigation, and then, on review of the state agency's determination, by the Administration's Bureau of Disability Insurance, which is located in Baltimore, Maryland.[3] Thus, the Secretary says, a prior hearing "either would require the beneficiary to travel great distances or would necessitate that State or federal officials travel to the area in which the beneficiary resides, *223 neither of which is practical." Brief 28-29. "Nor could the decision-making function be turned over to the Administration's district offices, which are located conveniently to the beneficiaries, without staffing them with individuals qualified to make the necessary medical and vocational judgment." Hence, the Secretary concludes, prior hearings "would require massive restructuring of the existing administrative adjudicative process." Except for bald assertion, the Secretary offers nothing to indicate that any great burden upon the system would result if the state agencies conducted the hearings. Moreover, the Secretary omits even to mention the existence of the current post-termination hearing procedures. See 20 CFR 404.917-404.941. It is reasonable to assume that the only "restructuring" necessary would be a change in the timing of the hearings. That was apparently the method by which the Secretary required the States to comply with in the administration of various other social security programs, see 45 CFR 205.10, -3035, and it would seem to be an equally available response here. While the administration of the disability program to provide prior hearings may involve "some greater expense," as the Court noted in that expense should not be exaggerated in order to deprive disability beneficiaries of their right to "rudimentary due process," The Secretary also claims that the requirement of prior hearings "would result in losses to the Social Security Trust Fund of nearly $16 million per year for disability cases and still greater sums when all Title II programs are considered." Brief 10. This conclusion does not follow from the facts the Secretary presents. As to the disability program, the Secretary says that in there were 38,000 determinations that disability *224 had ceased and that the average monthly benefit in those cases was $207. If, to provide prior hearings, terminations were delayed for two months, the Secretary says, the cost in benefits paid pending the hearings would approach $16 million. It is immediately apparent that this figure is grossly inflated. First, this figure depends upon the unwarranted assumption that all beneficiaries will demand a prior hearing. The Secretary suggests no reason to suppose that would happen. In fact, while there were 38,000 disability cessations in there were only 10,941 requests for reconsideration, and although 6,885 cessations were affirmed on reconsideration, there were only 2,330 requests for hearings. These post-termination procedures, of course, were utilized by beneficiaries who could not present their views before termination. Under the new regulations, affording notice and the opportunity to respond in writing before termination, it may well be that even fewer beneficiaries will demand hearings. In any event, experience in the welfare area has not demonstrated that recipients abuse their right to pre-termination hearings, and the Secretary does not claim that disability beneficiaries will do so. Second, the $16 million figure requires not only that all 38,000 beneficiaries request prior hearings, but also that they all lose. Yet, as noted above, 37% of the reconsiderations on written submissions and 55% of the post-termination hearings in resulted in reversal. The Secretary does not claim, nor is it conceivable, that in every case a prior hearing would uphold the initial determination that disability had ceased. Third, not only must every beneficiary request a prior hearing and every hearing affirm cessation of disability, it must also be true, to reach the $16 million figure, that the Secretary will be unable to recover any of the benefits paid to beneficiaries pending the hearings. That result *225 is unlikely. Section 204 (1) of the Act, 42 U.S. C. 404 (1); see 20 CFR 404.501-404.502, directs the Secretary, if he finds that there has been an overpayment, to require a refund from the beneficiary or to decrease any future benefits to which he may be entitled. Thus, if the beneficiary is not "disabled," he presumably can engage in "substantial gainful activity," and the Secretary may well secure a refund. If, on the other hand, the case is a close one and the beneficiary is later found to be "disabled" again, the Secretary may reduce his benefits. Furthermore, 204 (b), 42 U.S. C. 404 (b); see 20 CFR 404.506-404.509, directs the Secretary not to require a refund or decrease benefits if the beneficiary "is without fault" and a refund or decrease "would defeat the purpose of" the Act or "would be against equity and good conscience." The Secretary's duty to waive claims for excess payments may well apply in many termination cases, particularly where the beneficiary is judgment proof. See 20 CFR 404.508. Obviously, there is no loss to the social security fund if benefits paid to an ineligible beneficiary pending a hearing are subject to statutory waiver. Fourth, the $16 million figure depends upon the stated premise that the requirement of a hearing would cause a two-month delay in the termination of benefits. The Secretary does not explain why he chose that time period. Under the new regulations, a beneficiary receives notice of the proposed discontinuance, is informed of the information upon which it is based, and is given the opportunity to submit a written response presenting rebuttal evidence. Only then is the disability determination made. It is difficult to believe that it would require another two months just to provide a hearing. Finally, under 223 (1) of the Act, 42 U.S. C. 423 (1); see Claims Manual 6707, benefits must be paid for two months after the month in which disability *226 ceases. The $16 million figure depends upon the unwarranted assumption that all terminations occur at least two months after disability is found to have ceased. In this case, for example, the state agency determined that plaintiff Atkins' disability ceased in January. The Bureau of Disability Insurance approved that determination and on February 3 informed Atkins that his benefits would be terminated at the end of March. Thus, even assuming a two-month delay for a hearing, there would be no cost whatever to the trust fund. Viewing Title II programs as a whole, the Secretary points out that there were nearly three million terminations of benefits in 1969. The vast majority of these terminations were for death, attainment of a certain age, and so forth, but the Secretary asserts that apart from those cases there were 515,189 terminations that would have been affected by the requirement of a prior hearing. That number, however, includes terminations based upon a student's leaving school, a change in a beneficiary's marital status, and the death or adoption of a child. Without those cases, the number drops to 186,035. Moreover, even this number includes disability terminations and the terminations of dependents based thereon. Putting aside those cases, the total appears to be somewhat closer to 100,000. While that is a substantial number of terminations, the Secretary does not indicate what issues are involved in making the decisions. As noted above, prior evidentiary hearings are necessary in disability cases because factual disputes exist. They may exist to a far lesser extent in other programs. Moreover, to whatever extent they do exist, the objections to the Secretary's inflated cost figure for disability terminations would seem to apply equally to nondisability terminations. In any event, the Secretary has simply provided the bare number of terminations, with no further information, and it *227 is inappropriate, if not impossible, to decide what effect requiring prior hearings in disability cases will have on nondisability cases. I do not deny that prior hearings will entail some additional administrative burdens and expense. Administrative fairness usually does. But the Secretary "is not without weapons to minimize these increased costs." Despite the Secretary's protestations to the contrary, I believe that in the disability, as in the welfare, area "[m]uch of the drain on fiscal and administrative resources can be reduced by developing procedures for prompt pre-termination hearings and by skillful use of personnel and facilities." The Court's conclusion on this point in is fully applicable here: "Indeed, the very provision for a post-termination evidentiary hearing is itself cogent evidence that the State recognizes the primacy of the public interest in correct eligibility determinations and therefore in the provision of procedural safeguards. Thus, the interest of the eligible recipient in uninterrupted receipt of public assistance, coupled with the State's interest that his payments not be erroneously terminated, clearly outweighs the State's competing concern to prevent any increase in its fiscal and administrative burdens." My answers to the Secretary's contentions are also the reasons I disagree with the majority of the District Court and agree with the dissenting judge. I would therefore vacate the judgment of the District Court and remand with direction to enter a new judgment requiring that disability benefits not be discontinued until the beneficiary has been afforded procedural due process in the form mandated by with respect to discontinuance of welfare and old-age benefits.

Justice Marshall

dissenting

Bell v. Wolfish

https://www.courtlistener.com/opinion/110075/bell-v-wolfish/

https://www.courtlistener.com/api/rest/v3/clusters/110075/

1978-092

The Court holds that the Government may burden pretrial detainees with almost any restriction, provided detention officials do not proclaim a punitive intent or impose conditions that are "arbitrary or purposeless." Ante, at 539. As if this standard were not sufficiently ineffectual, the Court dilutes it further by according virtually unlimited deference to detention officials' justifications for particular impositions. Conspicuously lacking from this analysis is any meaningful consideration of the most relevant factor, the impact that restrictions may have on inmates. Such an approach is unsupportable, given that all of these detainees are presumptively innocent and many are confined solely because they cannot afford bail.[1] *564 In my view, the Court's holding departs from the precedent it purports to follow and precludes effective judicial review of the conditions of pretrial confinement. More fundamentally, I believe the proper inquiry in this context is not whether a particular restraint can be labeled "punishment." Rather, as with other due process challenges, the inquiry should be whether the governmental interests served by any given restriction outweigh the individual deprivations suffered. I The premise of the Court's analysis is that detainees, unlike prisoners, may not be "punished." To determine when a particular disability imposed during pretrial detention is punishment, the Court invokes the factors enunciated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963), quoted ante, at 537-538 (footnotes omitted): "Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions." A number of the factors enunciated above focus on the nature and severity of the impositions at issue. Thus, if weight were given to all its elements, I believe the Mendoza-Martinez inquiry could be responsive to the impact of the *565 deprivations imposed on detainees. However, within a few lines after quoting Mendoza-Martinez, the Court restates the standard as whether there is an expressed punitive intent on the part of detention officials, and, if not, whether the restriction is rationally related to some nonpunitive purpose or appears excessive in relation to that purpose. Ante, at 538-539 Absent from the reformulation is any appraisal of whether the sanction constitutes an affirmative disability or restraint and whether it has historically been regarded as punishment. Moreover, when the Court applies this standard, it loses interest in the inquiry concerning excessiveness, and, indeed, eschews consideration of less restrictive alternatives, practices in other detention facilities, and the recommendations of the Justice Department and professional organizations. See ante, at 542-543, n. 25, 543-544, n. 27, 554. By this process of elimination, the Court contracts a broad standard, sensitive to the deprivations imposed on detainees, into one that seeks merely to sanitize official motives and prohibit irrational behavior. As thus reformulated, the test lacks any real content. A To make detention officials' intent the critical factor in assessing the constitutionality of impositions on detainees is unrealistic in the extreme. The cases on which the Court relies to justify this narrow focus all involve legislative Acts, not day-to-day administrative decisions. See Kennedy v. Mendoza-Martinez, supra (Nationality Act of 1940 and Immigration and Nationality Act of 1952); Flemming v. Nestor, 363 U.S. 603 (1960) (Social Security Act); De Veau v. Braisted, 363 U.S. 144 (1960) (New York Waterfront Commission Act). In discerning the intent behind a statutory enactment, courts engage in a familiar judicial function, usually with the benefit of a legislative history that preceded passage of the statue. The motivation for policies in detention facilities, however, will frequently not be a matter of public *566 record. Detainees challenging these policies will therefore bear the substantial burden of establishing punitive intent on the basis of circumstantial evidence or retrospective explanations by detention officials, which frequently may be self-serving. Particularly since the Court seems unwilling to look behind any justification based on security,[2] that burden will usually prove insurmountable. In any event, it will often be the case that officials believe, erroneously but in good faith, that a specific restriction is necessary for institutional security. As the District Court noted, "zeal for security is among the most common varieties of official excess," United States ex rel. Wolfish v. Levi, 439 F. Supp. 114, 141 (SDNY 1977), and the litigation in this area corroborates that conclusion.[3] A standard that focuses *567 on punitive intent cannot effectively eliminate this excess. Indeed, the Court does not even attempt to "detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial detention." Ante, at 540. Rather, it is content merely to recognize that "the effective management of the detention facility . . . is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment." Ibid. Moreover, even if the inquiry the Court pursues were more productive, it simply is not the one the Constitution mandates here. By its terms, the Due Process Clause focuses on the nature of deprivations, not on the persons inflicting them. If this concern is to be vindicated, it is the effect of conditions of confinement, not the intent behind them, that must be the focal point of constitutional analysis. B Although the Court professes to go beyond the direct inquiry regarding intent and to determine whether a particular imposition is rationally related to a nonpunitive purposes, this exercise is at best a formality. Almost any restriction on detainees, including, as the Court concedes, chains and shackles, ante, at 539 n. 20, can be found to have some rational relation to institutional security, or more broadly, to "the effective management of the detention facility." Ante, at 540. See Feeley v. Sampson, 570 F.2d 364, 380 (CA1 1977) (Coffin, C. J., dissenting). Yet this toothless standard applies irrespective of the excessiveness of the restraint or the nature of the rights infringed.[4] *568 Moreover, the Court has not in fact reviewed the rationality of detention officials' decisions, as Mendoza-Martinez requires Instead, the majority affords "wide-ranging" deference to those officials "in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Ante, at 547.[5] Reasoning that security considerations in jails are little different than in prisons, the Court concludes that cases requiring substantial deference to prison administrators' determinations on security-related issues are equally applicable in the present context. Ante, at 546-547, nn. 28, 29. Yet as the Court implicitly acknowledges, ante, at 545, the rights of detainees, who have not been adjudicated guilty of a crime, are necessarily more extensive than those of prisoners "who have been found to have violated one or more of the criminal laws established by society for its orderly governance." Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 129 (1977). See Campbell v. McGruder, 188 U. S. App. D.C. 258, 264 n. 9, 580 F.2d 521, 527 n. 9 (1978). Judicial tolerance of substantial impositions on detainees must be concomitantly less. However, by blindly deferring to administrative judgments on the rational basis for particular restrictions, the Court effectively delegates to detention officials the decision whether pretrial detainees have been punished. This, in my view, is an abdication of an unquestionably judicial function. II Even had the Court properly applied the punishment test, I could not agree to its use in this context. It simply does *569 not advance analysis to determine whether a given deprivation imposed on detainees constitutes "punishment." For in terms of the nature of the imposition and the impact on detainees, pretrial incarceration, although necessary to secure defendants' presence at trial, is essentially indistinguishable from punishment.[6] The detainee is involuntarily confined and deprived of the freedom "to be with his family and friends and to form the other enduring attachments of normal life," Morrissey v. Brewer, 408 U.S. 471, 482 (1972). Indeed, this Court has previously recognized that incarceration is an "infamous punishment." Flemming v. Nestor, 363 U. S., at 617; see also Wong Wing v. United States, 163 U.S. 228, 233-234 (1896); Ingraham v. Wright, 430 U.S. 651, 669 (1977). And if the effect of incarceration itself is inevitably punitive, so too must be the cumulative impact of those restraints incident to that restraint.[7] A test that balances the deprivations involved against the state interests assertedly served[8] would be more consistent *570 with the import of the Due Process Clause. Such an approach would be sensitive to the tangible physical and psychological harm that a particular disability inflicts on detainees and to the nature of the less tangible, but significant, individual interests at stake. The greater the imposition on detainees, the heavier the burden of justification the Government would bear. See Bates v. Little Rock, 361 U.S. 516, 524 (1960); Shapiro v. Thompson, 394 U.S. 618, 634 (1969); Kusper v. Pontikes, 414 U.S. 51, 58-59 (1973). When assessing the restrictions on detainees, we must consider the cumulative impact of restraints imposed during confinement. Incarceration of itself clearly represents a profound infringement of liberty, and each additional imposition increases the severity of that initial deprivation. Since any restraint thus has a serious effect on detainees, I believe the Government must bear a more rigorous burden of justification than the rational-basis standard mandates. See supra, at 567. At a minimum, I would require a showing that a restriction is substantially necessary to jail administration. Where the imposition is of particular gravity, that is, where it implicates interests of fundamental importance[9] or inflicts significant harms, the Government should demonstrate that the restriction serves a compelling necessity of jail administration.[10] In presenting its justifications, the Government could adduce evidence of the security and administrative needs of *571 the institution as well as the fiscal constraints under which it operates. And, of course, considerations of competence and comity require some measure of deference to the judgments of detention officials. Their estimation of institutional needs and the administrative consequences of particular acts is entitled to weight. But as the Court has repeatedly held in the prison context, judicial restraint "cannot encompass any failure to take cognizance of valid constitutional claims." Procunier v. Martinez, 416 U.S. 396, 405 (1974); Bounds v. Smith, 430 U.S. 817, 832 (1977). Even more so here, with the rights of presumptively innocent individuals at stake, we cannot abdicate our judicial responsibility to evaluate independently the Government's asserted justifications for particular deprivations. In undertaking this evaluation, courts should thus examine evidence of practices in other detention and penal facilities. To be sure, conditions of detention should not survive constitutional challenge merely because they are no worse than circumstances in prisons. But this evidence can assist courts in evaluating justifications based on security, administrative convenience, and fiscal constraints. Simply stated, the approach I advocate here weighs the detainees' interests implicated by a particular restriction against the governmental interests the restriction serves. As the substantiality of the intrusion on detainees' rights increases, so must the significance of the countervailing governmental objectives. III A Applying this standard to the facts of this case, I believe a remand is necessary on the issue of double-bunking at the MCC. The courts below determined only whether double-bunking was justified by a compelling necessity, excluding fiscal and administrative considerations. Since it was readily ascertainable that the Government could not prevail under that test, detailed inquiry was unnecessary. Thus, the District *572 Court granted summary judgment, without a full record on the psychological and physical harms caused by overcrowding.[11] To conclude, as the Court does here, that double-bunking has not inflicted "genuine privations and hardship over an extended period of time," ante, at 542, is inappropriate where respondents have not had an adequate opportunity to produce evidence suggesting otherwise. Moreover, that the District Court discerned no disputed issues of material fact, see ante, at 541 n. 24, is no justification for avoiding a remand, since what is material necessarily varies with the standard applied. Rather than pronouncing overbroad aphorisms about the principles "lurking in the Due Process Clause," ante, at 542, I would leave to the District Court in the first instance the sensitive balancing inquiry that the Due Process Clause dictates.[12] B Although the constitutionality of the MCC's rule limiting the sources of hardback books was also decided on summary judgment, I believe a remand is unnecessary.[13] That *573 individuals have a fundamental First Amendment right to receive information and ideas is beyond dispute. See Martin v. Struthers, 319 U.S. 141, 143 (1943); Stanley v. Georgia, 394 U.S. 557, 565 (1969); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969); see also Brandenburg v. Ohio, 395 U.S. 444, 448 (1969). Under the balancing test elaborated above, the Government must therefore demonstrate that its rule infringing on that interest serves a compelling necessity. As the courts below found, the Government failed to make such a showing.[14] In support of its restriction, the Government presented the affidavit of the MCC warden, who averred without elaboration that a proper and thorough search of incoming hardback books might require removal of the covers. Further, the warden asserted, "in the case of all books and magazines," it would *574 be necessary to leaf through every page to ascertain that there was no contraband. App. 24. The warden offered no reasons why the institution could not place reasonable limitations on the number of books inmates could receive or use electronic devices and fluoroscopes to detect contraband rather than requiring inmates to purchase hardback books directly from publishers or stores.[15] As the Court of Appeals noted, "other institutions have not recorded untoward experiences with far less restrictive rules." Wolfish v. Levi, 573 F.2d 118, 130 (1978). The limitation on receipt of hardback books may well be one rational response to the legitimate security concerns of the institution, concerns which I in no way intend to deprecate. But our precedents, as the courts below apparently recognized, United States ex rel. Wolfish v. United States, 428 F. Supp. 333, 341 (SDNY 1977); 573 F.2d, at 130, require some consideration of less restrictive alternatives, see, e. g., Shelton v. Tucker, 364 U.S. 479, 488-490 (1960); Keyishian v. Board of Regents, 385 U.S. 589, 602-604 (1967). There is no basis for relaxing this requirement when the rights of presumptively innocent detainees are implicated. C The District Court did conduct a trial on the constitutionality of the MCC package rule and room-search practices. Although the courts below applied a different standard, the record is sufficient to permit resolution of these issues here. And since this Court decides the questions, I think it appropriate to suggest the results that would obtain on this record under my standard. Denial of the right to possess property is surely of heightened concern when viewed with the other indignities of detainment. See App. 73. As the District Court observed, it is a *575 severe discomfort to do without personal items such as a watch or cosmetics, and things to eat, smoke, or chew. Indeed, the court noted, "[t]he strong dependence upon material things . . . gives rise to one of the deepest miseries of incarceration —the deprivation of familiar possessions." 439 F. Supp., at 150. Given this impact on detainees, the appropriate inquiry is whether the package restriction is substantially necessary to prison administration. The Government's justification for such a broad rule cannot meet this burden. The asserted interest in ameliorating sanitation and storage problems and avoiding thefts, gambling, and inmate conflicts over personal property is belied, as the Court seems to recognize, ante, at 553, by the policy of permitting inmate purchases of up to $15 a week from the prison commissary. Detention officials doubtless have a legitimate interest in preventing introduction of drugs or weapons into the facility. But as both the District Court and the Court of Appeals observed, other detention institutions have adopted much less restrictive regulations than the MCC's governing receipt of packages. See, e. g., Miller v. Carson, 401 F. Supp. 835, 885 (MD Fla. 1975), aff'd, 563 F.2d 741 (CA5 1977); Giampetruzzi v. Malcolm, 406 F. Supp. 836, 842 (SDNY 1975). Inmates in New York state institutions, for example, may receive a 35-pound package each month, as well as clothing and magazines. See 439 F. Supp., at 152.[16] To be sure, practices in other institutions do not necessarily demarcate the constitutional minimum. See ante, at 554. But such evidence does cast doubt upon the Government's justifications based on institutional security and administrative convenience. The District Court held that the Government was obligated to dispel these doubts. The court thus *576 required a reasoned showing why "there must be deprivations at the MCC so much harsher than deemed necessary in other institutions." 439 F. Supp., at 152. Absent such a showing, the court concluded that the MCC's rule swept too broadly and ordered detention officials to formulate a suitable alternative, at least with respect to items available from the commissary. Id., at 153. This holding seems an appropriate accommodation of the competing interests and a minimal intrusion on administrative prerogatives. I would also affirm the ruling of the courts below that inmates must be permitted to observe searches of their cells. Routine searches such as those at issue here may be an unavoidable incident of incarceration. Nonetheless, the protections of the Fourth Amendment do not lapse at the jail-house door, Bonner v. Coughlin, 517 F.2d 1311, 1316-1317 (CA7 1975) (Stevens, J.); United States v. Lilly, 576 F.2d 1240, 1244-1245 (CA5 1978). Detention officials must therefore conduct such searches in a reasonable manner, avoiding needless intrusions on inmates' privacy. Because unobserved searches may invite official disrespect for detainees' few possessions and generate fears that guards will steal personal property or plant contraband, see 439 F. Supp., at 148-149, the inmates' interests are significant. The Government argues that allowing detainees to observe official searches would lead to violent confrontations and enable inmates to remove or conceal contraband. However, the District Court found that the Government had not substantiated these security concerns and that there were less intrusive means available to accomplish the institution's objectives. Ibid. Thus, this record does not establish that unobserved searches are substantially necessary to jail administration. D In my view, the body-cavity searches of MCC inmates represent one of the most grievous offenses against personal *577 dignity and common decency. After every contact visit with someone from outside the facility, including defense attorneys, an inmate must remove all of his or her clothing, bend over, spread the buttocks, and display the anal cavity for inspection by a correctional officer. Women inmates must assume a suitable posture for vaginal inspection, while men must raise their genitals. And, as the Court neglects to note, because of time pressures, this humiliating spectacle is frequently conducted in the presence of other inmates. App. 77. The District Court found that the stripping was "unpleasant, embarrassing, and humiliating." 439 F. Supp., at 146. A psychiatrist testified that the practice placed inmates in the most degrading position possible, App. 48, a conclusion amply corroborated by the testimony of the inmates themselves. Id., at 36-37, 41.[17] There was evidence, moreover, that these searches engendered among detainees fears of sexual assault, id., at 49, were the occasion for actual threats of physical abuse by guards, and caused some inmates to forgo personal visits. 439 F. Supp., at 147. Not surprisingly, the Government asserts a security justification for such inspections. These searches are necessary, it argues, to prevent inmates from smuggling contraband into the facility. In crediting this justification despite the contrary findings of the two courts below, the Court overlooks the critical facts. As respondents point out, inmates are required to wear one-piece jumpsuits with zippers in the front. To insert an object into the vaginal or anal cavity, an inmate would have to remove the jumpsuit, at least from the upper torso. App. 45; Joint App. in Nos. 77-2035, 77-2135 (CA2), *578 p. 925 (hereinafter Joint App.). Since contact visits occur in a glass-enclosed room and are continuously monitored by corrections officers, see 439 F. Supp., at 140, 147; Joint App. 144, 1208-1209,[18] such a feat would seem extraordinarily difficult. There was medical testimony, moreover, that inserting an object into the rectum is painful and "would require time and opportunity which is not available in the visiting areas," App. 49-50, and that visual inspection would probably not detect an object once inserted. Id., at 50. Additionally, before entering the visiting room, visitors and their packages are searched thoroughly by a metal detector, fluoroscope, and by hand. Id., at 93; Joint App. 601, 1077. Correction officers may require that visitors leave packages or handbags with guards until the visit is over. Joint App. 1077-1078. Only by blinding itself to the facts presented on this record can the Court accept the Government's security rationale. Without question, these searches are an imposition of sufficient gravity to invoke the compelling-necessity standard. It is equally indisputable that they cannot meet that standard. Indeed, the procedure is so unnecessarily degrading that it "shocks the conscience." Rochin v. California, 342 U.S. 165, 172 (1952). Even in Rochin, the police had reason to believe that the petitioner had swallowed contraband. Here, the searches are employed absent any suspicion of wrongdoing. It was this aspect of the MCC practice that the Court of Appeals redressed, requiring that searches be conducted only when there is probable cause to believe that the inmate is concealing contraband. The Due Process Clause, on any principled reading, dictates no less. *579 That the Court can uphold these indiscriminate searches highlights the bankruptcy of its basic analysis. Under the test adopted today, the rights of detainees apparently extend only so far as detention officials decide that cost and security will permit. Such unthinking deference to administrative convenience cannot be justified where the interests at stake are those of presumptively innocent individuals, many of whose only proven offense is the inability to afford bail. I dissent. MR. JUSTICE STEVENS, with whom MR.

The Court holds that the Government may burden pretrial detainees with almost any restriction, provided detention officials do not proclaim a punitive intent or impose conditions that are "arbitrary or purposeless." Ante, at 539. As if this standard were not sufficiently ineffectual, the Court dilutes it further by according virtually unlimited deference to detention officials' justifications for particular impositions. Conspicuously lacking from this analysis is any meaningful consideration of the most relevant factor, the impact that restrictions may have on inmates. Such an approach is unsupportable, given that all of these detainees are presumptively innocent and many are confined solely because they cannot afford bail.[1] *564 In my view, the Court's holding departs from the precedent it purports to follow and precludes effective judicial review of the conditions of pretrial confinement. More fundamentally, I believe the proper inquiry in this context is not whether a particular restraint can be labeled "punishment." Rather, as with other due process challenges, the inquiry should be whether the governmental interests served by any given restriction outweigh the individual deprivations suffered. I The premise of the Court's analysis is that detainees, unlike prisoners, may not be "punished." To determine when a particular disability imposed during pretrial detention is punishment, the Court invokes the factors enunciated in quoted ante, at 537-538 (footnotes omitted): "Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions." A number of the factors enunciated above focus on the nature and severity of the impositions at issue. Thus, if weight were given to all its elements, I believe the inquiry could be responsive to the impact of the * deprivations imposed on detainees. However, within a few lines after quoting the Court restates the standard as whether there is an expressed punitive intent on the part of detention officials, and, if not, whether the restriction is rationally related to some nonpunitive purpose or appears excessive in relation to that purpose. Ante, at 538-539 Absent from the reformulation is any appraisal of whether the sanction constitutes an affirmative disability or restraint and whether it has historically been regarded as punishment. Moreover, when the Court applies this standard, it loses interest in the inquiry concerning excessiveness, and, indeed, eschews consideration of less restrictive alternatives, practices in other detention facilities, and the recommendations of the Justice Department and professional organizations. See ante, at 542-543, n. 25, 543-544, n. 27, 554. By this process of elimination, the Court contracts a broad standard, sensitive to the deprivations imposed on detainees, into one that seeks merely to sanitize official motives and prohibit irrational behavior. As thus reformulated, the test lacks any real content. A To make detention officials' intent the critical factor in assessing the constitutionality of impositions on detainees is unrealistic in the extreme. The cases on which the Court relies to justify this narrow focus all involve legislative Acts, not day-to-day administrative decisions. See ; ; De In discerning the intent behind a statutory enactment, courts engage in a familiar judicial function, usually with the benefit of a legislative history that preceded passage of the statue. The motivation for policies in detention facilities, however, will frequently not be a matter of public *566 record. Detainees challenging these policies will therefore bear the substantial burden of establishing punitive intent on the basis of circumstantial evidence or retrospective explanations by detention officials, which frequently may be self-serving. Particularly since the Court seems unwilling to look behind any justification based on security,[2] that burden will usually prove insurmountable. In any event, it will often be the case that officials believe, erroneously but in good faith, that a specific restriction is necessary for institutional security. As the District Court noted, "zeal for security is among the most common varieties of official excess," United States ex rel. and the litigation in this area corroborates that conclusion.[3] A standard that focuses *567 on punitive intent cannot effectively eliminate this excess. Indeed, the Court does not even attempt to "detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial detention." Ante, at 540. Rather, it is content merely to recognize that "the effective management of the detention facility is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment." Moreover, even if the inquiry the Court pursues were more productive, it simply is not the one the Constitution mandates here. By its terms, the Due Process Clause focuses on the nature of deprivations, not on the persons inflicting them. If this concern is to be vindicated, it is the effect of conditions of confinement, not the intent behind them, that must be the focal point of constitutional analysis. B Although the Court professes to go beyond the direct inquiry regarding intent and to determine whether a particular imposition is rationally related to a nonpunitive purposes, this exercise is at best a formality. Almost any restriction on detainees, including, as the Court concedes, chains and shackles, ante, at 539 n. 20, can be found to have some rational relation to institutional security, or more broadly, to "the effective management of the detention facility." Ante, at 540. See Yet this toothless standard applies irrespective of the excessiveness of the restraint or the nature of the rights infringed.[4] *568 Moreover, the Court has not in fact reviewed the rationality of detention officials' decisions, as requires Instead, the majority affords "wide-ranging" deference to those officials "in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Ante, at 547.[5] Reasoning that security considerations in jails are little different than in prisons, the Court concludes that cases requiring substantial deference to prison administrators' determinations on security-related issues are equally applicable in the present context. Ante, at 546-547, nn. 28, 29. Yet as the Court implicitly acknowledges, ante, at 545, the rights of detainees, who have not been adjudicated guilty of a crime, are necessarily more extensive than those of prisoners "who have been found to have violated one or more of the criminal laws established by society for its orderly governance." See Judicial tolerance of substantial impositions on detainees must be concomitantly less. However, by blindly deferring to administrative judgments on the rational basis for particular restrictions, the Court effectively delegates to detention officials the decision whether pretrial detainees have been punished. This, in my view, is an abdication of an unquestionably judicial function. II Even had the Court properly applied the punishment test, I could not agree to its use in this context. It simply does *569 not advance analysis to determine whether a given deprivation imposed on detainees constitutes "punishment." For in terms of the nature of the imposition and the impact on detainees, pretrial incarceration, although necessary to secure defendants' presence at trial, is essentially indistinguishable from punishment.[6] The detainee is involuntarily confined and deprived of the freedom "to be with his family and friends and to form the other enduring attachments of normal life," Indeed, this Court has previously recognized that incarceration is an "infamous punishment." ; see also Wong ; And if the effect of incarceration itself is inevitably punitive, so too must be the cumulative impact of those restraints incident to that restraint.[7] A test that balances the deprivations involved against the state interests assertedly served[8] would be more consistent *570 with the import of the Due Process Clause. Such an approach would be sensitive to the tangible physical and psychological harm that a particular disability inflicts on detainees and to the nature of the less tangible, but significant, individual interests at stake. The greater the imposition on detainees, the heavier the burden of justification the Government would bear. See ; ; When assessing the restrictions on detainees, we must consider the cumulative impact of restraints imposed during confinement. Incarceration of itself clearly represents a profound infringement of liberty, and each additional imposition increases the severity of that initial deprivation. Since any restraint thus has a serious effect on detainees, I believe the Government must bear a more rigorous burden of justification than the rational-basis standard mandates. See At a minimum, I would require a showing that a restriction is substantially necessary to jail administration. Where the imposition is of particular gravity, that is, where it implicates interests of fundamental importance[9] or inflicts significant harms, the Government should demonstrate that the restriction serves a compelling necessity of jail administration.[10] In presenting its justifications, the Government could adduce evidence of the security and administrative needs of *571 the institution as well as the fiscal constraints under which it operates. And, of course, considerations of competence and comity require some measure of deference to the judgments of detention officials. Their estimation of institutional needs and the administrative consequences of particular acts is entitled to weight. But as the Court has repeatedly held in the prison context, judicial restraint "cannot encompass any failure to take cognizance of valid constitutional claims." ; Even more so here, with the rights of presumptively innocent individuals at stake, we cannot abdicate our judicial responsibility to evaluate independently the Government's asserted justifications for particular deprivations. In undertaking this evaluation, courts should thus examine evidence of practices in other detention and penal facilities. To be sure, conditions of detention should not survive constitutional challenge merely because they are no worse than circumstances in prisons. But this evidence can assist courts in evaluating justifications based on security, administrative convenience, and fiscal constraints. Simply stated, the approach I advocate here weighs the detainees' interests implicated by a particular restriction against the governmental interests the restriction serves. As the substantiality of the intrusion on detainees' rights increases, so must the significance of the countervailing governmental objectives. III A Applying this standard to the facts of this case, I believe a remand is necessary on the issue of double-bunking at the MCC. The courts below determined only whether double-bunking was justified by a compelling necessity, excluding fiscal and administrative considerations. Since it was readily ascertainable that the Government could not prevail under that test, detailed inquiry was unnecessary. Thus, the District *572 Court granted summary judgment, without a full record on the psychological and physical harms caused by overcrowding.[11] To conclude, as the Court does here, that double-bunking has not inflicted "genuine privations and hardship over an extended period of time," ante, at 542, is inappropriate where respondents have not had an adequate opportunity to produce evidence suggesting otherwise. Moreover, that the District Court discerned no disputed issues of material fact, see ante, at 541 n. 24, is no justification for avoiding a remand, since what is material necessarily varies with the standard applied. Rather than pronouncing overbroad aphorisms about the principles "lurking in the Due Process Clause," ante, at 542, I would leave to the District Court in the first instance the sensitive balancing inquiry that the Due Process Clause dictates.[12] B Although the constitutionality of the MCC's rule limiting the sources of hardback books was also decided on summary judgment, I believe a remand is unnecessary.[13] That *573 individuals have a fundamental First Amendment right to receive information and ideas is beyond dispute. See 319 U.S. ; ; Red Lion Broadcasting ; see also Under the balancing test elaborated above, the Government must therefore demonstrate that its rule infringing on that interest serves a compelling necessity. As the courts below found, the Government failed to make such a showing.[14] In support of its restriction, the Government presented the affidavit of the MCC warden, who averred without elaboration that a proper and thorough search of incoming hardback books might require removal of the covers. Further, the warden asserted, "in the case of all books and magazines," it would *574 be necessary to leaf through every page to ascertain that there was no contraband. App. 24. The warden offered no reasons why the institution could not place reasonable limitations on the number of books inmates could receive or use electronic devices and fluoroscopes to detect contraband rather than requiring inmates to purchase hardback books directly from publishers or stores.[15] As the Court of Appeals noted, "other institutions have not recorded untoward experiences with far less restrictive rules." The limitation on receipt of hardback books may well be one rational response to the legitimate security concerns of the institution, concerns which I in no way intend to deprecate. But our precedents, as the courts below apparently recognized, United States ex rel. ; 573 F.2d, at require some consideration of less restrictive alternatives, see, e. g., ; There is no basis for relaxing this requirement when the rights of presumptively innocent detainees are implicated. C The District Court did conduct a trial on the constitutionality of the MCC package rule and room-search practices. Although the courts below applied a different standard, the record is sufficient to permit resolution of these issues here. And since this Court decides the questions, I think it appropriate to suggest the results that would obtain on this record under my standard. Denial of the right to possess property is surely of heightened concern when viewed with the other indignities of detainment. See App. 73. As the District Court observed, it is a *575 severe discomfort to do without personal items such as a watch or cosmetics, and things to eat, smoke, or chew. Indeed, the court noted, "[t]he strong dependence upon material things gives rise to one of the deepest miseries of incarceration —the deprivation of familiar possessions." Given this impact on detainees, the appropriate inquiry is whether the package restriction is substantially necessary to prison administration. The Government's justification for such a broad rule cannot meet this burden. The asserted interest in ameliorating sanitation and storage problems and avoiding thefts, gambling, and inmate conflicts over personal property is belied, as the Court seems to recognize, ante, at 553, by the policy of permitting inmate purchases of up to $15 a week from the prison commissary. Detention officials doubtless have a legitimate interest in preventing introduction of drugs or weapons into the facility. But as both the District Court and the Court of Appeals observed, other detention institutions have adopted much less restrictive regulations than the MCC's governing receipt of packages. See, e. g., aff'd, ; Inmates in New York state institutions, for example, may receive a 35-pound package each month, as well as clothing and magazines. See[16] To be sure, practices in other institutions do not necessarily demarcate the constitutional minimum. See ante, at 554. But such evidence does cast doubt upon the Government's justifications based on institutional security and administrative convenience. The District Court held that the Government was obligated to dispel these doubts. The court thus *576 required a reasoned showing why "there must be deprivations at the MCC so much harsher than deemed necessary in other institutions." Absent such a showing, the court concluded that the MCC's rule swept too broadly and ordered detention officials to formulate a suitable alternative, at least with respect to items available from the commissary. This holding seems an appropriate accommodation of the competing interests and a minimal intrusion on administrative prerogatives. I would also affirm the ruling of the courts below that inmates must be permitted to observe searches of their cells. Routine searches such as those at issue here may be an unavoidable incident of incarceration. Nonetheless, the protections of the Fourth Amendment do not lapse at the jail-house door, ; United Detention officials must therefore conduct such searches in a reasonable manner, avoiding needless intrusions on inmates' privacy. Because unobserved searches may invite official disrespect for detainees' few possessions and generate fears that guards will steal personal property or plant contraband, see -149, the inmates' interests are significant. The Government argues that allowing detainees to observe official searches would lead to violent confrontations and enable inmates to remove or conceal contraband. However, the District Court found that the Government had not substantiated these security concerns and that there were less intrusive means available to accomplish the institution's objectives. Thus, this record does not establish that unobserved searches are substantially necessary to jail administration. D In my view, the body-cavity searches of MCC inmates represent one of the most grievous offenses against personal *577 dignity and common decency. After every contact visit with someone from outside the facility, including defense attorneys, an inmate must remove all of his or her clothing, bend over, spread the buttocks, and display the anal cavity for inspection by a correctional officer. Women inmates must assume a suitable posture for vaginal inspection, while men must raise their genitals. And, as the Court neglects to note, because of time pressures, this humiliating spectacle is frequently conducted in the presence of other inmates. App. 77. The District Court found that the stripping was "unpleasant, embarrassing, and humiliating." A psychiatrist testified that the practice placed inmates in the most degrading position possible, App. 48, a conclusion amply corroborated by the testimony of the inmates themselves.[17] There was evidence, moreover, that these searches engendered among detainees fears of sexual assault, were the occasion for actual threats of physical abuse by guards, and caused some inmates to forgo personal Not surprisingly, the Government asserts a security justification for such inspections. These searches are necessary, it argues, to prevent inmates from smuggling contraband into the facility. In crediting this justification despite the contrary findings of the two courts below, the Court overlooks the critical facts. As respondents point out, inmates are required to wear one-piece jumpsuits with zippers in the front. To insert an object into the vaginal or anal cavity, an inmate would have to remove the jumpsuit, at least from the upper torso. App. 45; Joint App. in Nos. 77-2035, 77-2135 (CA2), *578 p. 925 (hereinafter Joint App.). Since contact visits occur in a glass-enclosed room and are continuously monitored by corrections officers, see 147; Joint App. 144, 1208-1209,[18] such a feat would seem extraordinarily difficult. There was medical testimony, moreover, that inserting an object into the rectum is painful and "would require time and opportunity which is not available in the visiting areas," App. 49-50, and that visual inspection would probably not detect an object once inserted. Additionally, before entering the visiting room, visitors and their packages are searched thoroughly by a metal detector, fluoroscope, and by hand. ; Joint App. 601, 1077. Correction officers may require that visitors leave packages or handbags with guards until the visit is over. Joint App. 1077-1078. Only by blinding itself to the facts presented on this record can the Court accept the Government's security rationale. Without question, these searches are an imposition of sufficient gravity to invoke the compelling-necessity standard. It is equally indisputable that they cannot meet that standard. Indeed, the procedure is so unnecessarily degrading that it "shocks the conscience." Even in Rochin, the police had reason to believe that the petitioner had swallowed contraband. Here, the searches are employed absent any suspicion of wrongdoing. It was this aspect of the MCC practice that the Court of Appeals redressed, requiring that searches be conducted only when there is probable cause to believe that the inmate is concealing contraband. The Due Process Clause, on any principled reading, dictates no less. *579 That the Court can uphold these indiscriminate searches highlights the bankruptcy of its basic analysis. Under the test adopted today, the rights of detainees apparently extend only so far as detention officials decide that cost and security will permit. Such unthinking deference to administrative convenience cannot be justified where the interests at stake are those of presumptively innocent individuals, many of whose only proven offense is the inability to afford bail. I dissent. MR. JUSTICE STEVENS, with whom MR.

Justice White

dissenting

Larson v. Valente

https://www.courtlistener.com/opinion/110697/larson-v-valente/

https://www.courtlistener.com/api/rest/v3/clusters/110697/

1981-081

I concur in the dissent of JUSTICE REHNQUIST with respect to standing. I also dissent on the merits. I It will be helpful first to indicate what occurred in the lower courts and what the Court now proposes to do. Based on two reports of a Magistrate, the District Court held unconstitutional the Minnesota limitation denying an exemption to religious organizations receiving less than 50 percent of their funding from their own members. The Magistrate recommended this action on the ground that the limitation could not pass muster under the second criterion set down in Lemon v. Kurtzman, 403 U.S. 602 (1971), for identifying an unconstitutional establishment of religion — that the principal or primary effect of the statute is one that neither enhances nor inhibits religion. The 50-percent limitation failed this test because it subjected some churches to far more rigorous requirements than others, the effect being to "severely inhibit plaintiff's religious activities." App. to Juris. Statement A-63. This created a preference offensive to the Establishment Clause. Id., at A-33.[1] The Magistrate relied on the inhibiting effect of the 50-percent rule without reference *259 to whether or not it was the principal or primary effect of the limitation. In any event, the Magistrate recommended, and the District Court agreed, that the exemption from registration be extended to all religious organizations. The Court of Appeals agreed with the District Court that the 50-percent rule violated the Establishment Clause. Its ruling, however, was on the ground that the limitation failed to satisfy the first Lemon criterion — that the statute have a secular rather than a religious purpose. The court conceded that the Act as a whole had the valid secular purpose of preventing fraudulent or deceptive practices in the solicitation of funds in the name of charity. The court also thought freeing certain organizations from regulation served a valid purpose because for those organizations public disclosure of funding would not significantly enhance the availability of information to contributors. Patriotic and fraternal societies that limit solicitation to voting members and certain charitable organizations that do not solicit in excess of $10,000 annually from the public fell into this category. But the court found no sound secular legislative purpose for the 50-percent limitation with respect to religious organizations because it "appears to be designed to shield favored sects, while continuing to burden other sects." 637 F.2d 562, 567. The challenged provision, the Court of Appeals said, "expressly separates two classes of religious organizations and makes the separation for no valid secular purpose that has been suggested by defendants. Inexplicable disparate treatment will not generally be attributed to accident; it seems much more likely that at some stage of the legislative process special solicitude for particular religious organizations affected the choice of statutory language. The resulting discrimination is constitutionally invidious." Id., at 568. The Court of Appeals went on to say that if it were necessary to apply the second part of the Lemon test, the provision would also fail to survive that examination because it advantaged some organizations and disadvantaged others. *260 In this Court, the case is given still another treatment. The Lemon v. Kurtzman tests are put aside because they are applicable only to laws affording uniform benefit to all religions, not to provisions that discriminate among religions. Rather, in cases of denominational preference, the Court says that "our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality." Ante, at 246. The Court then invalidates the challenged limitation. It does so by first declaring that the 50-percent rule makes explicit and deliberate distinctions between different religious organizations. The State's submission that the 50-percent limitation is a law based on secular criteria which happens not to have an identical effect on all religious organizations is rejected. The Court then holds that the challenged rule is not closely fitted to serve any compelling state interest and rejects each of the reasons submitted by the State to demonstrate that the distinction between contributions solicited from members and from nonmembers is a sensible one. Among others, the Court rejects the proposition that membership control is an adequate safeguard against deceptive solicitations of the public. The ultimate conclusion is that the exemption provision violates the Establishment Clause. II I have several difficulties with this disposition of the case. First, the Court employs a legal standard wholly different from that applied in the courts below. The premise for the Court's standard is that the challenged provision is a deliberate and explicit legislative preference for some religious denominations over others. But there was no such finding in the District Court. That court proceeded under the second Lemon test and then relied only on the disparate impact of the provision. There was no finding of a discriminatory or preferential legislative purpose. If this case is to be judged by a standard not employed by the courts below and if the *261 new standard involves factual issues or even mixed questions of law and fact that have not been addressed by the District Court, the Court should not itself purport to make these factual determinations. It should remand to the District Court. In this respect, it is no answer to say that the Court of Appeals appeared to find, although rather tentatively, that the state legislature had acted out of intentional denominational preferences. That court was no more entitled to supply the missing factual predicate for a different legal standard than is this Court. It is worth noting that none of the Court of Appeals' judges on the panel in this case is a resident of Minnesota. Second, apparently realizing its lack of competence to judge the purposes of the Minnesota Legislature other than by the words it used, the Court disposes in a footnote of the State's claim that the 50-percent rule is a neutral, secular criterion that has disparate impact among religious organizations. The limitation, it is said, "is not simply a facially neutral statute" but one that makes "explicit and deliberate distinctions between different religious organizations." Ante, at 247, n. 23. The rule itself, however, names no churches or denominations that are entitled to or denied the exemption. It neither qualifies nor disqualifies a church based on the kind or variety of its religious belief. Some religions will qualify and some will not, but this depends on the source of their contributions, not on their brand of religion. To say that the rule on its face represents an explicit and deliberate preference for some religious beliefs over others is not credible. The Court offers no support for this assertion other than to agree with the Court of Appeals that the limitation might burden the less well organized denominations. This conclusion, itself, is a product of assumption and speculation. It is contrary to what the State insists is readily evident from a list of those charitable organizations that have registered under the Act and of those that are exempt. It is claimed that both categories include not only well-established, *262 but also not so well-established, organizations. The Court appears to concede that the Minnesota law at issue does not constitute an establishment of religion merely because it has a disparate impact. An intentional preference must be expressed. To find that intention on the face of the provision at issue here seems to me to be patently wrong. Third, I cannot join the Court's easy rejection of the State's submission that a valid secular purpose justifies basing the exemption on the percentage of external funding. Like the Court of Appeals, the majority accepts the prevention of fraudulent solicitation as a valid, even compelling, secular interest. Hence, charities, including religious organizations, may be required to register if the State chooses to insist. But here the State has excused those classes of charities it thought had adequate substitute safeguards or for some other reason had reduced the risk which is being guarded against. Among those exempted are various patriotic and fraternal organizations that depend only on their members for contributions. The Court of Appeals did not question the validity of this exemption because of the built-in safeguards of membership funding. The Court of Appeals, however, would not extend the same reasoning to permit the State to exempt religious organizations receiving more than half of their contributions from their members while denying exemption to those who rely on the public to a greater extent. This Court, preferring its own judgment of the realities of fundraising by religious organizations to that of the state legislature, also rejects the State's submission that organizations depending on their members for more than half of their funds do not pose the same degree of danger as other religious organizations. In the course of doing so, the Court expressly disagrees with the notion that members in general can be relied upon to control their organizations.[2] *263 I do not share the Court's view of our omniscience. The State has the same interest in requiring registration by organizations soliciting most of their funds from the public as it would have in requiring any charitable organization to register, including a religious organization, if it wants to solicit funds. And if the State determines that its interest in preventing fraud does not extend to those who do not raise a majority of their funds from the public, its interest in imposing the requirement on others is not thereby reduced in the least. Furthermore, as the State suggests, the legislature thought it made good sense, and the courts, including this one, should not so readily disagree. Fourth, and finally, the Court agrees with the Court of Appeals and the District Court that the exemption must be extended to all religious organizations. The Court of Appeals noted that the exemption provision, so construed, could be said to prefer religious organizations over nonreligious organizations and hence amount to an establishment of religion. Nevertheless, the Court of Appeals did not further address the question, and the Court says nothing of it now. Arguably, however, there is a more evident secular reason for exempting religious organizations who rely on their members to a great extent than there is to exempt all religious organizations, including those who raise all or nearly all of their funds from the public. Without an adequate factual basis, the majority concludes that the provision in question deliberately prefers some religious denominations to others. Without an adequate factual basis, it rejects the justifications offered by the State. It reaches its conclusions by applying a legal standard different from that considered by either of the courts below. I would reverse the judgment of the Court of Appeals.

I concur in the dissent of JUSTICE REHNQUIST with respect to standing. I also dissent on the merits. I It will be helpful first to indicate what occurred in the lower courts and what the Court now proposes to do. Based on two reports of a Magistrate, the District Court held unconstitutional the Minnesota limitation denying an exemption to religious organizations receiving less than 50 percent of their funding from their own members. The Magistrate recommended this action on the ground that the limitation could not pass muster under the second criterion set down in for identifying an unconstitutional establishment of religion — that the principal or primary effect of the statute is one that neither enhances nor inhibits religion. The 50-percent limitation failed this test because it subjected some churches to far more rigorous requirements than others, the effect being to "severely inhibit plaintiff's religious activities." App. to Juris. Statement A-63. This created a preference offensive to the Establishment Clause. at A-33.[1] The Magistrate relied on the inhibiting effect of the 50-percent rule without reference *259 to whether or not it was the principal or primary effect of the limitation. In any event, the Magistrate recommended, and the District Court agreed, that the exemption from registration be extended to all religious organizations. The Court of Appeals agreed with the District Court that the 50-percent rule violated the Establishment Clause. Its ruling, however, was on the ground that the limitation failed to satisfy the first Lemon criterion — that the statute have a secular rather than a religious purpose. The court conceded that the Act as a whole had the valid secular purpose of preventing fraudulent or deceptive practices in the solicitation of funds in the name of charity. The court also thought freeing certain organizations from regulation served a valid purpose because for those organizations public disclosure of funding would not significantly enhance the availability of information to contributors. Patriotic and fraternal societies that limit solicitation to voting members and certain charitable organizations that do not solicit in excess of $10,000 annually from the public fell into this category. But the court found no sound secular legislative purpose for the 50-percent limitation with respect to religious organizations because it "appears to be designed to shield favored sects, while continuing to burden other sects." The challenged provision, the Court of Appeals said, "expressly separates two classes of religious organizations and makes the separation for no valid secular purpose that has been suggested by defendants. Inexplicable disparate treatment will not generally be attributed to accident; it seems much more likely that at some stage of the legislative process special solicitude for particular religious organizations affected the choice of statutory language. The resulting discrimination is constitutionally invidious." The Court of Appeals went on to say that if it were necessary to apply the second part of the Lemon test, the provision would also fail to survive that examination because it advantaged some organizations and disadvantaged others. *260 In this Court, the case is given still another treatment. The tests are put aside because they are applicable only to laws affording uniform benefit to all religions, not to provisions that discriminate among religions. Rather, in cases of denominational preference, the Court says that "our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality." Ante, at 246. The Court then invalidates the challenged limitation. It does so by first declaring that the 50-percent rule makes explicit and deliberate distinctions between different religious organizations. The State's submission that the 50-percent limitation is a law based on secular criteria which happens not to have an identical effect on all religious organizations is rejected. The Court then holds that the challenged rule is not closely fitted to serve any compelling state interest and rejects each of the reasons submitted by the State to demonstrate that the distinction between contributions solicited from members and from nonmembers is a sensible one. Among others, the Court rejects the proposition that membership control is an adequate safeguard against deceptive solicitations of the public. The ultimate conclusion is that the exemption provision violates the Establishment Clause. II I have several difficulties with this disposition of the case. First, the Court employs a legal standard wholly different from that applied in the courts below. The premise for the Court's standard is that the challenged provision is a deliberate and explicit legislative preference for some religious denominations over others. But there was no such finding in the District Court. That court proceeded under the second Lemon test and then relied only on the disparate impact of the provision. There was no finding of a discriminatory or preferential legislative purpose. If this case is to be judged by a standard not employed by the courts below and if the *261 new standard involves factual issues or even mixed questions of law and fact that have not been addressed by the District Court, the Court should not itself purport to make these factual determinations. It should remand to the District Court. In this respect, it is no answer to say that the Court of Appeals appeared to find, although rather tentatively, that the state legislature had acted out of intentional denominational preferences. That court was no more entitled to supply the missing factual predicate for a different legal standard than is this Court. It is worth noting that none of the Court of Appeals' judges on the panel in this case is a resident of Minnesota. Second, apparently realizing its lack of competence to judge the purposes of the Minnesota Legislature other than by the words it used, the Court disposes in a footnote of the State's claim that the 50-percent rule is a neutral, secular criterion that has disparate impact among religious organizations. The limitation, it is said, "is not simply a facially neutral statute" but one that makes "explicit and deliberate distinctions between different religious organizations." Ante, at 247, n. 23. The rule itself, however, names no churches or denominations that are entitled to or denied the exemption. It neither qualifies nor disqualifies a church based on the kind or variety of its religious belief. Some religions will qualify and some will not, but this depends on the source of their contributions, not on their brand of religion. To say that the rule on its face represents an explicit and deliberate preference for some religious beliefs over others is not credible. The Court offers no support for this assertion other than to agree with the Court of Appeals that the limitation might burden the less well organized denominations. This conclusion, itself, is a product of assumption and speculation. It is contrary to what the State insists is readily evident from a list of those charitable organizations that have registered under the Act and of those that are exempt. It is claimed that both categories include not only well-established, *262 but also not so well-established, organizations. The Court appears to concede that the Minnesota law at issue does not constitute an establishment of religion merely because it has a disparate impact. An intentional preference must be expressed. To find that intention on the face of the provision at issue here seems to me to be patently wrong. Third, I cannot join the Court's easy rejection of the State's submission that a valid secular purpose justifies basing the exemption on the percentage of external funding. Like the Court of Appeals, the majority accepts the prevention of fraudulent solicitation as a valid, even compelling, secular interest. Hence, charities, including religious organizations, may be required to register if the State chooses to insist. But here the State has excused those classes of charities it thought had adequate substitute safeguards or for some other reason had reduced the risk which is being guarded against. Among those exempted are various patriotic and fraternal organizations that depend only on their members for contributions. The Court of Appeals did not question the validity of this exemption because of the built-in safeguards of membership funding. The Court of Appeals, however, would not extend the same reasoning to permit the State to exempt religious organizations receiving more than half of their contributions from their members while denying exemption to those who rely on the public to a greater extent. This Court, preferring its own judgment of the realities of fundraising by religious organizations to that of the state legislature, also rejects the State's submission that organizations depending on their members for more than half of their funds do not pose the same degree of danger as other religious organizations. In the course of doing so, the Court expressly disagrees with the notion that members in general can be relied upon to control their organizations.[2] *263 I do not share the Court's view of our omniscience. The State has the same interest in requiring registration by organizations soliciting most of their funds from the public as it would have in requiring any charitable organization to register, including a religious organization, if it wants to solicit funds. And if the State determines that its interest in preventing fraud does not extend to those who do not raise a majority of their funds from the public, its interest in imposing the requirement on others is not thereby reduced in the least. Furthermore, as the State suggests, the legislature thought it made good sense, and the courts, including this one, should not so readily disagree. Fourth, and finally, the Court agrees with the Court of Appeals and the District Court that the exemption must be extended to all religious organizations. The Court of Appeals noted that the exemption provision, so construed, could be said to prefer religious organizations over nonreligious organizations and hence amount to an establishment of religion. Nevertheless, the Court of Appeals did not further address the question, and the Court says nothing of it now. Arguably, however, there is a more evident secular reason for exempting religious organizations who rely on their members to a great extent than there is to exempt all religious organizations, including those who raise all or nearly all of their funds from the public. Without an adequate factual basis, the majority concludes that the provision in question deliberately prefers some religious denominations to others. Without an adequate factual basis, it rejects the justifications offered by the State. It reaches its conclusions by applying a legal standard different from that considered by either of the courts below. I would reverse the judgment of the Court of Appeals.

Justice Rehnquist

majority

Barnhill v. Johnson

https://www.courtlistener.com/opinion/112714/barnhill-v-johnson/

https://www.courtlistener.com/api/rest/v3/clusters/112714/

1991-053

Under the Bankruptcy Code's preference avoidance section, 11 U.S. C. § 547, the trustee is permitted to recover, with certain exceptions, transfers of property made by the debtor within 90 days before the date the bankruptcy petition was filed. We granted certiorari to decide whether, in determining if a transfer occurred within the 90-day preference period, a transfer made by check should be deemed to occur on the date the check is presented to the recipient or *395 on the date the drawee bank honors it. We hold that the latter date is determinative. The relevant facts in this case are not in dispute. The debtor[1] made payment for a bona fide debt to petitioner Barnhill. The check was delivered to petitioner on November 18. The check was dated November 19, and the check was honored by the drawee bank on November 20. The debtor later filed a Chapter 11 bankruptcy petition. It is agreed by the parties that the 90th day before the bankruptcy filing was November 20. Respondent Johnson was appointed trustee for the bankruptcy estate. He filed an adversary proceeding against petitioner, claiming that the check payment was recoverable by the estate pursuant to 11 U.S. C. § 547(b). That section generally permits the trustee to recover for benefit of the bankruptcy estate transfers of the debtor's property made within 90 days of the bankruptcy filing. Respondent asserted that the transfer occurred on November 20, the date the check was honored by the drawee bank, and therefore was within the 90-day period. Petitioner defended by claiming that the transfer occurred on November 18, the date he received the check (the so-called "date of delivery" rule), and that it therefore fell outside the 90-day period established by § 547(b)(4)(A). The Bankruptcy Court concluded that a date of delivery rule should govern and therefore denied the trustee recovery. The trustee appealed, and the District Court affirmed. The trustee then appealed to the Court of Appeals for the Tenth Circuit. *396 The Court of Appeals for the Tenth Circuit reversed, concluding that a date of honor rule should govern actions under § 547(b). In re Antweil, 931 F.2d 689 (1991). It distinguished a prior decision, In re White River Corp., 799 F.2d 631 (1986), in which it held that, for purposes of § 547(c), a date of delivery rule should govern when a transfer occurs.[2] The Tenth Circuit concluded that §§ 547(b) and 547(c) have different purposes and functions, justifying different rules for each. It further concluded that a date of honor rule was appropriate because such a rule was consistent with provisions of the Uniform Commercial Code (U. C. C.), was capable of easier proof, and was less subject to manipulation. We granted certiorari to resolve a Circuit split.[3] 502 U.S. 807 (1991). In relevant part, § 547(b) provides: "(b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property— . . . . . "(4) made— "(A) on or within 90 days before the date of the filing of the petition . . . ." *397 Title 11 U.S. C. § 101(54) (1988 ed., Supp. II)[4] defines "transfer" to mean "every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor's equity of redemption." Section 547(e) provides further guidance on the meaning and dating of a transfer. For purposes of § 547, it provides "[(e)(1)](B) a transfer of a fixture or property other than real property is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee. "[(e)](2) For the purposes of this section, except as provided in paragraph (3) of this subsection, a transfer is made— "(A) at the time such transfer takes effect between the transferor and the transferee, if such transfer is perfected at, or within 10 days after, such time; "(B) at the time such transfer is perfected, if such transfer is perfected after such 10 days . . . ." Our task, then, is to determine whether, under the definition of transfer provided by § 101(54), and supplemented by § 547(e), the transfer that the trustee seeks to avoid can be said to have occurred before November 20. "What constitutes a transfer and when it is complete" is a matter of federal law. McKenzie v. Irving Trust Co., 323 *398 U. S. 365, 369-370 (1945). This is unsurprising since, as noted above, the statute itself provides a definition of "transfer." But that definition in turn includes references to parting with "property" and "interest[s] in property." In the absence of any controlling federal law, "property" and "interests in property" are creatures of state law. Id., at 370; Butner v. United States, 440 U.S. 48, 54 (1979) ("Congress has generally left the determination of property rights in the assets of a bankrupt's estate to state law"). Thus it is helpful to sketch briefly the rights and duties enjoyed under state law by each party to a check transaction.[5] A person with an account at a bank enjoys a claim against the bank for funds in an amount equal to the account balance. Under the U. C. C., a check is simply an order to the drawee bank to pay the sum stated, signed by the maker and payable on demand. U. C. C. §§ 3-104(1), (2)(b), 2 U. L. A. 224 (1991). Receipt of a check does not, however, give the recipient a right against the bank. The recipient may present the check, but, if the drawee bank refuses to honor it, the recipient has no recourse against the drawee. § 3-409(1), 2A U. L. A. 189 (1991).[6] That is not to say, however, that the recipient of a check is without any rights. Receipt of a check for an underlying obligation suspends the obligation "pro tan to until the instrument[`s] . . . presentment[;] . . . discharge of the underlying obligor on the instrument also discharges him on the obligation." § 3-802(1)(b), 2A U. L. A. 514 (1991). But should *399 the drawee bank refuse to honor a check, a cause of action against the drawer of the check accrues to the recipient of a check "upon demand following dishonor of the instrument." § 3-122(3), 2 U. L. A. 407 (1991); see also § 3-413(2), 2A U. L. A. 208 (1991). And the recipient of a dishonored check, received in payment on an underlying obligation, may maintain an action on either the check or the obligation. § 3— 802(1)(b), 2A U. L. A. 514 (1991). With this background we turn to the issue at hand. Petitioner argues that the Court of Appeals erred in ignoring the interest that passed from the debtor to the petitioner when the check was delivered on a date outside the 90-day preference period. We disagree. We begin by noting that there can be no assertion that an unconditional transfer of the debtor's interest in property had occurred before November 20. This is because, as just noted above, receipt of a check gives the recipient no right in the funds held by the bank on the drawer's account. Myriad events can intervene between delivery and presentment of the check that would result in the check being dishonored. The drawer could choose to close the account. A third party could obtain a lien against the account by garnishment or other proceedings. The bank might mistakenly refuse to honor the check.[7] The import of the preceding discussion for the instant case is that no transfer of any part of the debtor's claim against the bank occurred until the bank honored the check on November 20. The drawee bank honored the check by paying it. U. C. C. § 1-201(21), 1 U. L. A. 65 (1989) (defining honor); § 4-215(a), 2B U. L. A. 45 (1991). At that time, the bank had a right to "charge" the debtor's account, § 4-401, 2B U. L. A. 307 (1991)—i. e., the debtor's claim against the bank was reduced by the amount of the check—and petitioner no longer *400 had a claim against the debtor. Honoring the check, in short, left the debtor in the position that it would have occupied if it had withdrawn cash from its account and handed it over to petitioner. We thus believe that when the debtor has directed the drawee bank to honor the check and the bank has done so, the debtor has implemented a "mode, direct or indirect . . . of disposing . . . of property or . . . an interest in property." 11 U.S. C. § 101(54) (1988 ed., Supp. II) (emphasis added). For the purposes of payment by ordinary check, therefore, a "transfer" as defined by § 101(54) occurs on the date of honor, and not before. And since it is undisputed that honor occurred within the 90-day preference period, the trustee presumptively may avoid this transfer. In the face of this argument, petitioner retreats to the definition of "transfer" contained in § 101(54). Petitioner urges that rather than viewing the transaction as involving two distinct actions—delivery of the check, with no interest in property thereby being transferred, and honoring of the check, with an interest being transferred—that we instead should view delivery of the check as a "conditional" transfer. We acknowledge that § 101(54) adopts an expansive definition of transfer, one that includes "every mode . . . absolute or conditional . . . of disposing of or parting with property or with an interest in property." There is thus some force in petitioner's claim that he did, in fact, gain something when he received the check. But at most, what petitioner gained was a chose in action against the debtor.[8] Such a right, however, cannot fairly be characterized as a conditional right to *401 "property . . . or an interest in property," § 101(54), where the property in this case is the account maintained with the drawee bank. For as noted above, until the moment of honor the debtor retains full control over disposition of the account and the account remains subject to a variety of actions by third parties. To treat petitioner's nebulous right to bring suit as a "conditional transfer" of the property would accomplish a near-limitless expansion of the term "conditional." In the absence of any right against the bank or the account, we think the fairer description is that petitioner had received no interest in debtor's property, not that his interest was "conditional." Finally, we note that our conclusion that no transfer of property occurs until the time of honor is consistent with § 547(e)(2)(A). That section provides that a transfer occurs at the time the transfer "takes effect between the transferor and the transferee . . . ." For the reasons given above, and in particular because the debtor in this case retained the ability to stop payment on the check until the very last, we do not think that the transfer of funds in this case can be said to have "taken effect between the debtor and petitioner" until the moment of honor. Recognizing, perhaps, the difficulties in his position, petitioner places his heaviest reliance not on the statutory language but on accompanying legislative history. Specifically, he points to identical statements from Representative Edwards and Senator DeConcini that "payment of a debt by means of a check is equivalent to a cash payment, unless the check is dishonored. Payment is considered to be made when the check is delivered for purposes of sections 547(c)(1) and (2)." 124 Cong. Rec. 32400 (1978); id., at 34000. We think this appeal to legislative history unavailing. To begin, we note that appeals to statutory history are well taken only to resolve "statutory ambiguity." Toibb v. Radloff, 501 U.S. 157, 162 (1991). We do not think this is such a case. But even if it were, the statements on which *402 petitioner relies, by their own terms, apply only to § 547(c), not to § 547(b). Section 547(c), in turn, establishes various exceptions to § 547(b)'s general rule permitting recovery of preferential transfers. Subsection (c)(1) provides an exception for transfers that are part of a contemporaneous exchange of new value between a debtor and creditor; subsection (c)(2) provides an exception for transfers made from debtor to creditor in the ordinary course of business. These sections are designed to encourage creditors to continue to deal with troubled debtors on normal business terms by obviating any worry that a subsequent bankruptcy filing might require the creditor to disgorge as a preference an earlier received payment. But given this specialized purpose, we see no basis for concluding that the legislative history, particularly legislative history explicitly confined by its own terms to § 547(c), should cause us to adopt a "date of delivery" rule for purposes of § 547(b).[9] *403 For the foregoing reasons, the judgment of the Court of Appeals is Affirmed.

Under the Bankruptcy Code's preference avoidance section, 11 U.S. C. 7, the trustee is permitted to recover, with certain exceptions, transfers of property made by the debtor within 90 days before the date the bankruptcy petition was filed. We granted certiorari to decide whether, in determining if a transfer occurred within the 90-day preference period, a transfer made by check should be deemed to occur on the date the check is presented to the recipient or *395 on the date the drawee bank honors it. We hold that the latter date is determinative. The relevant facts in this case are not in dispute. The debtor[1] made payment for a bona fide debt to petitioner Barnhill. The check was delivered to petitioner on November 18. The check was dated November 19, and the check was honored by the drawee bank on November 20. The debtor later filed a Chapter 11 bankruptcy petition. It is agreed by the parties that the 90th day before the bankruptcy filing was November 20. Respondent Johnson was appointed trustee for the bankruptcy estate. He filed an adversary proceeding against petitioner, claiming that the check payment was recoverable by the estate pursuant to 11 U.S. C. 7(b). That section generally permits the trustee to recover for benefit of the bankruptcy estate transfers of the debtor's property made within 90 days of the bankruptcy filing. Respondent asserted that the transfer occurred on November 20, the date the check was honored by the drawee bank, and therefore was within the 90-day period. Petitioner defended by claiming that the transfer occurred on November 18, the date he received the check (the so-called "date of delivery" rule), and that it therefore fell outside the 90-day period established by 7(b)(4)(A). The Bankruptcy Court concluded that a date of delivery rule should govern and therefore denied the trustee recovery. The trustee appealed, and the District Court affirmed. The trustee then appealed to the Court of Appeals for the Tenth Circuit. *396 The Court of Appeals for the Tenth Circuit reversed, concluding that a date of honor rule should govern actions under 7(b). In re Antweil, It distinguished a prior decision, In re White River Corp., in which it held that, for purposes of 7(c), a date of delivery rule should govern when a transfer occurs.[2] The Tenth Circuit concluded that 7(b) and 7(c) have different purposes and functions, justifying different rules for each. It further concluded that a date of honor rule was appropriate because such a rule was consistent with provisions of the Uniform Commercial Code (U. C. C.), was capable of easier proof, and was less subject to manipulation. We granted certiorari to resolve a Circuit split.[3] In relevant part, 7(b) provides: "(b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property— "(4) made— "(A) on or within 90 days before the date of the filing of the petition" *397 Title 11 U.S. C. 101() (1988 ed., Supp. II)[4] defines "transfer" to mean "every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor's equity of redemption." Section 7(e) provides further guidance on the meaning and dating of a transfer. For purposes of 7, it provides "[(e)(1)](B) a transfer of a fixture or property other than real property is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee. "[(e)](2) For the purposes of this section, except as provided in paragraph (3) of this subsection, a transfer is made— "(A) at the time such transfer takes effect between the transferor and the transferee, if such transfer is perfected at, or within 10 days after, such time; "(B) at the time such transfer is perfected, if such transfer is perfected after such 10 days" Our task, then, is to determine whether, under the definition of transfer provided by 101(), and supplemented by 7(e), the transfer that the trustee seeks to avoid can be said to have occurred before November 20. "What constitutes a transfer and when it is complete" is a matter of federal law. This is unsurprising since, as noted above, the statute itself provides a definition of "transfer." But that definition in turn includes references to parting with "property" and "interest[s] in property." In the absence of any controlling federal law, "property" and "interests in property" are creatures of state law. ; Thus it is helpful to sketch briefly the rights and duties enjoyed under state law by each party to a check transaction.[5] A person with an account at a bank enjoys a claim against the bank for funds in an amount equal to the account balance. Under the U. C. C., a check is simply an order to the drawee bank to pay the sum stated, signed by the maker and payable on demand. U. C. C. 3-104(1), (2)(b), 2 U. L. A. 224 Receipt of a check does not, however, give the recipient a right against the bank. The recipient may present the check, but, if the drawee bank refuses to honor it, the recipient has no recourse against the drawee. 3-409(1), 2A U. L. A. 189[6] That is not to say, however, that the recipient of a check is without any rights. Receipt of a check for an underlying obligation suspends the obligation "pro tan to until the instrument[`s] presentment[;] discharge of the underlying obligor on the instrument also discharges him on the obligation." 3-802(1)(b), 2A U. L. A. 514 But should *399 the drawee bank refuse to honor a check, a cause of action against the drawer of the check accrues to the recipient of a check "upon demand following dishonor of the instrument." 3-122(3), 2 U. L. A. 407 ; see also 3-413(2), 2A U. L. A. 208 And the recipient of a dishonored check, received in payment on an underlying obligation, may maintain an action on either the check or the obligation. 3— 802(1)(b), 2A U. L. A. 514 With this background we turn to the issue at hand. Petitioner argues that the Court of Appeals erred in ignoring the interest that passed from the debtor to the petitioner when the check was delivered on a date outside the 90-day preference period. We disagree. We begin by noting that there can be no assertion that an unconditional transfer of the debtor's interest in property had occurred before November 20. This is because, as just noted above, receipt of a check gives the recipient no right in the funds held by the bank on the drawer's account. Myriad events can intervene between delivery and presentment of the check that would result in the check being dishonored. The drawer could choose to close the account. A third party could obtain a lien against the account by garnishment or other proceedings. The bank might mistakenly refuse to honor the check.[7] The import of the preceding discussion for the instant case is that no transfer of any part of the debtor's claim against the bank occurred until the bank honored the check on November 20. The drawee bank honored the check by paying it. U. C. C. 1-201(21), 1 U. L. A. 65 (1989) (defining honor); 4-215(a), 2B U. L. A. 45 At that time, the bank had a right to "charge" the debtor's account, 4-401, 2B U. L. A. 307 —i. e., the debtor's claim against the bank was reduced by the amount of the check—and petitioner no longer *400 had a claim against the debtor. Honoring the check, in short, left the debtor in the position that it would have occupied if it had withdrawn cash from its account and handed it over to petitioner. We thus believe that when the debtor has directed the drawee bank to honor the check and the bank has done so, the debtor has implemented a "mode, direct or indirect of disposing of property or an interest in property." 11 U.S. C. 101() (1988 ed., Supp. II) (emphasis added). For the purposes of payment by ordinary check, therefore, a "transfer" as defined by 101() occurs on the date of honor, and not before. And since it is undisputed that honor occurred within the 90-day preference period, the trustee presumptively may avoid this transfer. In the face of this argument, petitioner retreats to the definition of "transfer" contained in 101(). Petitioner urges that rather than viewing the transaction as involving two distinct actions—delivery of the check, with no interest in property thereby being transferred, and honoring of the check, with an interest being transferred—that we instead should view delivery of the check as a "conditional" transfer. We acknowledge that 101() adopts an expansive definition of transfer, one that includes "every mode absolute or conditional of disposing of or parting with property or with an interest in property." There is thus some force in petitioner's claim that he did, in fact, gain something when he received the check. But at most, what petitioner gained was a chose in action against the debtor.[8] Such a right, however, cannot fairly be characterized as a conditional right to *401 "property or an interest in property," 101(), where the property in this case is the account maintained with the drawee bank. For as noted above, until the moment of honor the debtor retains full control over disposition of the account and the account remains subject to a variety of actions by third parties. To treat petitioner's nebulous right to bring suit as a "conditional transfer" of the property would accomplish a near-limitless expansion of the term "conditional." In the absence of any right against the bank or the account, we think the fairer description is that petitioner had received no interest in debtor's property, not that his interest was "conditional." Finally, we note that our conclusion that no transfer of property occurs until the time of honor is consistent with 7(e)(2)(A). That section provides that a transfer occurs at the time the transfer "takes effect between the transferor and the transferee" For the reasons given above, and in particular because the debtor in this case retained the ability to stop payment on the check until the very last, we do not think that the transfer of funds in this case can be said to have "taken effect between the debtor and petitioner" until the moment of honor. Recognizing, perhaps, the difficulties in his position, petitioner places his heaviest reliance not on the statutory language but on accompanying legislative history. Specifically, he points to identical statements from Representative Edwards and Senator DeConcini that "payment of a debt by means of a check is equivalent to a cash payment, unless the check is dishonored. Payment is considered to be made when the check is delivered for purposes of sections 7(c)(1) and (2)." 124 Cong. Rec. 32400 (1978); We think this appeal to legislative history unavailing. To begin, we note that appeals to statutory history are well taken only to resolve "statutory ambiguity." We do not think this is such a case. But even if it were, the statements on which *402 petitioner relies, by their own terms, apply only to 7(c), not to 7(b). Section 7(c), in turn, establishes various exceptions to 7(b)'s general rule permitting recovery of preferential transfers. Subsection (c)(1) provides an exception for transfers that are part of a contemporaneous exchange of new value between a debtor and creditor; subsection (c)(2) provides an exception for transfers made from debtor to creditor in the ordinary course of business. These sections are designed to encourage creditors to continue to deal with troubled debtors on normal business terms by obviating any worry that a subsequent bankruptcy filing might require the creditor to disgorge as a preference an earlier received payment. But given this specialized purpose, we see no basis for concluding that the legislative history, particularly legislative history explicitly confined by its own terms to 7(c), should cause us to adopt a "date of delivery" rule for purposes of 7(b).[9] *403 For the foregoing reasons, the judgment of the Court of Appeals is Affirmed.

Justice Kennedy

majority

Rice v. Collins

https://www.courtlistener.com/opinion/145690/rice-v-collins/

https://www.courtlistener.com/api/rest/v3/clusters/145690/

2005-021

Concerned that, in this habeas corpus case, a federal court set aside reasonable state-court determinations of fact in favor of its own debatable interpretation of the record, we granted certiorari. Our review confirms that the Court of Appeals for the Ninth Circuit erred, misapplying settled rules that limit its role and authority. *336 I After a 4-day trial in the Superior Court of California for the County of Los Angeles, a jury convicted Steven Martell Collins on one count of possessing cocaine. The conviction was all the more serious because it subjected him to California's three strikes rule for sentencing. The question at issue in this federal habeas corpus action, however, is the California courts' rejection of Collins' argument that the prosecutor struck a young, African-American woman, Juror 16, from the panel on account of her race. A second African-American juror was also the subject of a peremptory strike, and although Collins challenged that strike in the trial court, on appeal he objected only to the excusal of Juror 16. Even prior to this Court's decision in Batson v. Kentucky, 476 U.S. 79 (1986), California courts barred peremptory challenges to jurors based on race. People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748 (1978). Although our recent decision in Johnson v. California, 545 U.S. 162 (2005), disapproved of the manner in which Wheeler and Batson were implemented in some California cases, the state courts in this case used the correct analytical framework in considering and ruling upon the objection to the prosecutorial strike. As race-neutral explanations for striking Juror 16, the prosecutor said that Juror 16 had rolled her eyes in response to a question from the court; that Juror 16 was young and might be too tolerant of a drug crime; and that Juror 16 was single and lacked ties to the community. A further, more troubling part of the prosecutor's unorganized explanation was her reference to Juror 16's gender. The trial court, correctly, disallowed any reliance on that ground. The trial court, furthermore, which had the benefit of observing the prosecutor firsthand over the course of the proceedings, rejected Collins' challenge. "With regard to 016, the court, frankly, did not observe the demeanor of Ms. 016 that was complained of by *337 the District Attorney; however, Ms. 016 was a youthful person, as was [a white male juror the prosecutor also dismissed by peremptory challenge]. And one or more prospective jurors also. "The Court is prepared to give the District Attorney the benefit of the doubt as to Ms. 016." 2 Ohio App. 14-15. The California Court of Appeal upheld the conviction and the trial court's ruling on the peremptory challenge. People v. Collins, No. B106939 (Dec. 12, 1997), App. H to Pet. for Cert. 112-117. In its view, youth was a legitimate reason to exercise a peremptory challenge; and, even if it were not, Juror 16's demeanor also supported the strike. Id., at 116. According to its review of the record, nothing suggested the trial court failed to conduct a searching inquiry of the prosecutor's reasons for striking Juror 16. Id., at 116-117. The appeals court thus upheld the trial court's ultimate conclusion to credit the prosecutor. Ibid. Without comment, the Supreme Court of California denied Collins' petition for review. App. F, id., at 96. Collins sought collateral relief on this claim in federal court. The United States District Court for the Central District of California dismissed with prejudice Collins' petition for a writ of habeas corpus. App. D, id., at 91. A divided panel of the Court of Appeals for the Ninth Circuit reversed and remanded with instructions to grant the petition. 348 F.3d 1082 (2003), amended and superseded by 365 F.3d 667 (2004). Noting that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governed Collins' petition, the panel majority concluded that it was an unreasonable factual determination to credit the prosecutor's race-neutral reasons for striking Juror 16. Id., at 679. Judge Hall dissented, id., at 687-691; and later, over the dissent of five judges, the Court of Appeals declined to rehear the case en banc, id., at 670-673. Though it recited the proper standard of review, the panel majority improperly substituted its evaluation of the record for that of the state *338 trial court. We granted the petition for certiorari, 545 U.S. 1151 (2005), and now reverse. II A defendant's Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. 476 U.S., at 96-97. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Id., at 97-98. Although the prosecutor must present a comprehensible reason, "[t]he second step of this process does not demand an explanation that is persuasive, or even plausible"; so long as the reason is not inherently discriminatory, it suffices. Purkett v. Elem, 514 U.S. 765, 767-768 (1995) (per curiam). Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. Batson, supra, at 98. This final step involves evaluating "the persuasiveness of the justification" proffered by the prosecutor, but "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Purkett, supra, at 768. On direct appeal in federal court, the credibility findings a trial court makes in a Batson inquiry are reviewed for clear error. Hernandez v. New York, 500 U.S. 352, 364-366 (1991) (plurality opinion) (holding that evaluation of a prosecutor's credibility "lies `peculiarly within a trial judge's province'"). Under AEDPA, however, a federal habeas court must find the state-court conclusion "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). Thus, a federal habeas court can only grant Collins' petition if it was unreasonable to credit the prosecutor's race-neutral explanations for the Batson challenge. State-court factual findings, moreover, *339 are presumed correct; the petitioner has the burden of rebutting the presumption by "clear and convincing evidence." § 2254(e)(1). See Miller-El v. Dretke, 545 U.S. 231, 240 (2005). Although the Ninth Circuit assumed § 2254(e)(1)'s presumption applied in this case, 365 F.3d, at 677, the parties disagree about whether and when it does. We need not address that question. Even assuming, arguendo, that only § 2254(d)(2) applied in this proceeding, the state-court decision was not an unreasonable determination of the facts in light of the evidence presented in the state court. Because the California Court of Appeal accepted the trial court's credibility finding, the panel majority inquired whether the appellate court made an unreasonable factual determination. See id., at 682. The panel majority's analysis and conclusions, however, depended entirely on its view of the trial court's credibility holding. The panel majority found no error in the trial court's proceedings or rulings in the first two steps of the Batson inquiry. 365 F.3d, at 677-678. It disagreed, however, with the trial court's conclusions on the third step, holding that it was unreasonable to accept the prosecutor's explanation that Juror 16 was excused on account of her youth and her demeanor. Id., at 678-687. We conclude the Ninth Circuit erred, for the trial court's credibility determination was not unreasonable. Noting that the trial court had not witnessed Juror 16's purported eye rolling, the panel majority concluded that no reasonable factfinder could have accepted the prosecutor's rendition of the alleged incident because the prosecutor's conduct completely undermined her credibility. Id., at 683. Having before it only the trial court record, the Court of Appeals majority drew this conclusion based on three considerations: first, the prosecutor's erroneous statement concerning another prospective African-American juror's age; second, the prosecutor's improper attempt to use gender as a basis for exclusion; and third, the majority's skepticism toward *340 the prosecutor's explanation that she struck Juror 16 in part because of her youth and lack of ties to the community. Id., at 683-684. The first reason the panel majority noted for rejecting the trial court's credibility finding pertained not to Juror 16, the subject of Collins' claim on appeal, but to another prospective African-American juror, Juror 19. The prosecutor referred to Juror 19 as "young" even though she was a grandmother. This reference to youth took place during a discussion about three prospective jurors, Jurors 6, 16, and 19. Jurors 6 and 16 were both young. As Judge Hall observed, it is quite plausible that the prosecutor simply misspoke with respect to a juror's numerical designation, an error defense counsel may also have committed. Id., at 688; 2 Ohio App. 9. It is a tenuous inference to say that an accidental reference with respect to one juror, Juror 19, undermines the prosecutor's credibility with respect to Juror 16. Seizing on what can plausibly be viewed as an innocent transposition makes little headway toward the conclusion that the prosecutor's explanation was clearly not credible. Second, the panel majority concluded that the trial court should have questioned the prosecutor's credibility because of her "attempt to use gender as a race-neutral basis for excluding Jurors 016 and 019." 365 F.3d, at 684. Respondent's trial occurred in August 1996, over two years after our decision in J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994), made clear that discrimination in jury selection on the basis of gender violates the Equal Protection Clause. Although the record contains a somewhat confusing colloquy on this point, it can be read as indicating that one of the prosecutor's aims in striking Juror 16 was achieving gender balance on the jury. Concerned about the constitutionality of such a strike, the trial court made clear that it would not accept gender as a race-neutral explanation. The panel majority assigned the gender justification more weight than it *341 can bear. The prosecutor provided a number of other permissible and plausible race-neutral reasons, and Collins provides no argument why this portion of the colloquy demonstrates that a reasonable factfinder must conclude the prosecutor lied about the eye rolling and struck Juror 16 based on her race. Finally, the panel majority believed to be unsupportable the prosecutor's stated concern that Juror 16 might, as a young and single citizen with no ties to the community, be too tolerant of the crime with which respondent was charged. 365 F.3d, at 680-682, 684. This was so, the majority concluded, because during voir dire Juror 16 replied affirmatively when asked if she believed the crime with which respondent was charged should be illegal and disclaimed any other reason she could not be impartial. Id., at 680. That the prosecutor claimed to hold such concerns despite Juror 16's voir dire averments does not establish that she offered a pretext. It is not unreasonable to believe the prosecutor remained worried that a young person with few ties to the community might be less willing than an older, more permanent resident to impose a lengthy sentence for possessing a small amount of a controlled substance. Accord, id., at 690 (Hall, J., dissenting). Even if the prosecutor was overly cautious in this regard, her wariness of the young and the rootless could be seen as race neutral, for she used a peremptory strike on a white male juror, Juror 6, with the same characteristics. 2 Ohio App. 5, 14. Viewing the panel majority's concerns together, the most generous reading would suggest only that the trial court had reason to question the prosecutor's credibility regarding Juror 16's alleged improper demeanor. That does not, however, compel the conclusion that the trial court had no permissible alternative but to reject the prosecutor's race-neutral justifications and conclude Collins had shown a Batson violation. Reasonable minds reviewing the record *342 might disagree about the prosecutor's credibility, but on habeas review that does not suffice to supersede the trial court's credibility determination. The panel majority did not stop at the conclusion that the trial court rendered an unreasonable factual determination in light of the evidence presented. It further concluded that the state courts had unreasonably applied clearly established federal law as determined by this Court. 365 F.3d, at 679; 28 U.S.C. § 2254(d)(1). The question whether a state court errs in determining the facts is a different question from whether it errs in applying the law. In this case there is no demonstration that either the trial court or the California Court of Appeal acted contrary to clearly established federal law in recognizing and applying Batson's burden-framework. See 2 Ohio App. 14-15; App. H to Pet. for Cert. 114-116. The only question, as we have noted, is whether the trial court's factual determination at Batson's third step was unreasonable. For the reasons discussed above, we conclude it was not. III The panel majority's attempt to use a set of debatable inferences to set aside the conclusion reached by the state court does not satisfy AEDPA's requirements for granting a writ of habeas corpus. 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.

Concerned that, in this habeas corpus a federal court set aside reasonable state-court determinations of fact in favor of its own debatable interpretation of the record, we granted certiorari. Our review confirms that the Court of Appeals for the Ninth Circuit erred, misapplying settled rules that limit its role and authority. *336 I After a 4-day trial in the Superior Court of California for the County of Los Angeles, a jury convicted Steven Martell Collins on one count of possessing cocaine. The conviction was all the more serious because it subjected him to California's three strikes rule for sentencing. The question at issue in this federal habeas corpus action, however, is the California courts' rejection of Collins' argument that the prosecutor struck a young, African-American woman, Juror 16, from the panel on account of her A second African-American juror was also the subject of a peremptory strike, and although Collins challenged that strike in the trial court, on appeal he objected only to the excusal of Juror 16. Even prior to this Court's decision in California courts barred peremptory challenges to jurors based on Although our recent decision in disapproved of the manner in which Wheeler and were implemented in some California s, the state courts in this used the correct analytical framework in considering and ruling upon the objection to the prosecutorial strike. As race-neutral explanations for striking Juror 16, the prosecutor said that Juror 16 had rolled her eyes in response to a question from the court; that Juror 16 was young and might be too tolerant of a drug crime; and that Juror 16 was single and lacked ties to the community. A further, more troubling part of the prosecutor's unorganized explanation was her reference to Juror 16's gender. The trial court, correctly, disallowed any reliance on that ground. The trial court, furthermore, which had the benefit of observing the prosecutor firsthand over the course of the proceedings, rejected Collins' challenge. "With regard to 016, the court, frankly, did not observe the demeanor of Ms. 016 that was complained of by *337 the District Attorney; however, Ms. 016 was a youthful person, as was [a white male juror the prosecutor also dismissed by peremptory challenge]. And one or more prospective jurors also. "The Court is prepared to give the District Attorney the benefit of the doubt as to Ms. 016." -15. The California Court of Appeal upheld the conviction and the trial court's ruling on the peremptory challenge. People v. Collins, No. B106939 (Dec. 12, 1997), App. H to Pet. for Cert. 112-117. In its view, youth was a legitimate reason to exercise a peremptory challenge; and, even if it were not, Juror 16's demeanor also supported the strike. According to its review of the record, nothing suggested the trial court failed to conduct a searching inquiry of the prosecutor's reasons for striking Juror 16. -117. The appeals court thus upheld the trial court's ultimate conclusion to credit the prosecutor. Without comment, the Supreme Court of California denied Collins' petition for review. App. F, Collins sought collateral relief on this claim in federal court. The United States District Court for the Central District of California dismissed with prejudice Collins' petition for a writ of habeas corpus. App. D, A divided panel of the Court of Appeals for the Ninth Circuit reversed and remanded with instructions to grant the petition. amended and superseded by Noting that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governed Collins' petition, the panel majority concluded that it was an unreasonable factual determination to credit the prosecutor's race-neutral reasons for striking Juror 16. Judge Hall dissented, ; and later, over the dissent of five judges, the Court of Appeals declined to rehear the en banc, Though it recited the proper standard of review, the panel majority improperly substituted its evaluation of the record for that of the state *338 trial court. We granted the petition for certiorari, and now reverse. II A defendant's challenge to a peremptory strike requires a three-step First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of 476 U.S., -97. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, "[t]he second step of this process does not demand an explanation that is persuasive, or even plausible"; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating "the persuasiveness of the justification" proffered by the prosecutor, but "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." On direct appeal in federal court, the credibility findings a trial court makes in a inquiry are reviewed for clear error. (holding that evaluation of a prosecutor's credibility "lies `peculiarly within a trial judge's province'"). Under AEDPA, however, a federal habeas court must find the state-court conclusion "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." (d)(2). Thus, a federal habeas court can only grant Collins' petition if it was unreasonable to credit the prosecutor's race-neutral explanations for the challenge. State-court factual findings, moreover, *339 are presumed correct; the petitioner has the burden of rebutting the presumption by "clear and convincing evidence." 2254(e)(1). See Although the Ninth Circuit assumed 2254(e)(1)'s presumption applied in this the parties disagree about whether and when it does. We need not address that question. Even assuming, arguendo, that only 2254(d)(2) applied in this proceeding, the state-court decision was not an unreasonable determination of the facts in light of the evidence presented in the state court. Because the California Court of Appeal accepted the trial court's credibility finding, the panel majority inquired whether the appellate court made an unreasonable factual determination. See The panel majority's analysis and conclusions, however, depended entirely on its view of the trial court's credibility holding. The panel majority found no error in the trial court's proceedings or rulings in the first two steps of the -678. It disagreed, however, with the trial court's conclusions on the third step, holding that it was unreasonable to accept the prosecutor's explanation that Juror 16 was excused on account of her youth and her demeanor. We conclude the Ninth Circuit erred, for the trial court's credibility determination was not unreasonable. Noting that the trial court had not witnessed Juror 16's purported eye rolling, the panel majority concluded that no reasonable factfinder could have accepted the prosecutor's rendition of the alleged incident because the prosecutor's conduct completely undermined her credibility. Having before it only the trial court record, the Court of Appeals majority drew this conclusion based on three considerations: first, the prosecutor's erroneous statement concerning another prospective African-American juror's age; second, the prosecutor's improper attempt to use gender as a basis for exclusion; and third, the majority's skepticism toward *340 the prosecutor's explanation that she struck Juror 16 in part because of her youth and lack of ties to the community. -684. The first reason the panel majority noted for rejecting the trial court's credibility finding pertained not to Juror 16, the subject of Collins' claim on appeal, but to another prospective African-American juror, Juror 19. The prosecutor referred to Juror 19 as "young" even though she was a grandmother. This reference to youth took place during a discussion about three prospective jurors, Jurors 6, 16, and 19. Jurors 6 and 16 were both young. As Judge Hall observed, it is quite plausible that the prosecutor simply misspoke with respect to a juror's numerical designation, an error defense counsel may also have committed. ; It is a tenuous inference to say that an accidental reference with respect to one juror, Juror 19, undermines the prosecutor's credibility with respect to Juror 16. Seizing on what can plausibly be viewed as an innocent transposition makes little headway toward the conclusion that the prosecutor's explanation was clearly not credible. Second, the panel majority concluded that the trial court should have questioned the prosecutor's credibility because of her "attempt to use gender as a race-neutral basis for excluding Jurors 016 and 019." Respondent's trial occurred in August 1996, over two years after our decision in J. E. made clear that discrimination in jury selection on the basis of gender violates the Equal Protection Clause. Although the record contains a somewhat confusing colloquy on this point, it can be read as indicating that one of the prosecutor's aims in striking Juror 16 was achieving gender balance on the jury. Concerned about the constitutionality of such a strike, the trial court made clear that it would not accept gender as a race-neutral explanation. The panel majority assigned the gender justification more weight than it *341 can bear. The prosecutor provided a number of other permissible and plausible race-neutral reasons, and Collins provides no argument why this portion of the colloquy demonstrates that a reasonable factfinder must conclude the prosecutor lied about the eye rolling and struck Juror 16 based on her Finally, the panel majority believed to be unsupportable the prosecutor's stated concern that Juror 16 might, as a young and single citizen with no ties to the community, be too tolerant of the crime with which respondent was -682, 684. This was so, the majority concluded, because during voir dire Juror 16 replied affirmatively when asked if she believed the crime with which respondent was charged should be illegal and disclaimed any other reason she could not be impartial. That the prosecutor claimed to hold such concerns despite Juror 16's voir dire averments does not establish that she offered a pretext. It is not unreasonable to believe the prosecutor remained worried that a young person with few ties to the community might be less willing than an older, more permanent resident to impose a lengthy sentence for possessing a small amount of a controlled substance. Accord, Even if the prosecutor was overly cautious in this regard, her wariness of the young and the rootless could be seen as race neutral, for she used a peremptory strike on a white male juror, Juror 6, with the same characteristics. Viewing the panel majority's concerns together, the most generous reading would suggest only that the trial court had reason to question the prosecutor's credibility regarding Juror 16's alleged improper demeanor. That does not, however, compel the conclusion that the trial court had no permissible alternative but to reject the prosecutor's race-neutral justifications and conclude Collins had shown a violation. Reasonable minds reviewing the record *342 might disagree about the prosecutor's credibility, but on habeas review that does not suffice to supersede the trial court's credibility determination. The panel majority did not stop at the conclusion that the trial court rendered an unreasonable factual determination in light of the evidence presented. It further concluded that the state courts had unreasonably applied clearly established federal law as determined by this 365 F.3d, ; (d)(1). The question whether a state court errs in determining the facts is a different question from whether it errs in applying the law. In this there is no demonstration that either the trial court or the California Court of Appeal acted contrary to clearly established federal law in recognizing and applying 's burden-framework. See -15; App. H to Pet. for Cert. 1-116. The only question, as we have noted, is whether the trial court's factual determination at 's third step was unreasonable. For the reasons discussed above, we conclude it was not. III The panel majority's attempt to use a set of debatable inferences to set aside the conclusion reached by the state court does not satisfy AEDPA's requirements for granting a writ of habeas corpus. The judgment of the Court of Appeals is reversed, and the is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Stevens

second_dissenting

Sullivan v. Stroop

https://www.courtlistener.com/opinion/112460/sullivan-v-stroop/

https://www.courtlistener.com/api/rest/v3/clusters/112460/

1989-110

Although the answer to the question presented by this case is not quite as clear to me as it is to JUSTICE BLACKMUN, I believe he has the better of the argument. If one puts aside legal terminology and considers ordinary English usage, Social Security benefits paid to the surviving child of a deceased wage earner are reasonably characterized as a form of "child support payments" — indeed, they are quite obviously payments made to support children. Moreover, respondents' interpretation of Title IV of the Social Security Act effectuates congressional intent: If a $50 portion of Social Security payments is disregarded when a family's eligibility for aid is determined, children with equal need will be more likely to receive equal aid. Finally, the interpretation achieves this parity in a way that serves the disregard provision's purpose — fairly inferred from legislative history — of mitigating the hardships imposed by the 1984 amendment that required families applying for aid to count child support payments as available income. Thus, Title II children's benefit payments are fairly encompassed by both the language and the purpose of the disregard provision. It may be that Congress did not sharply focus on the specific problem presented by this case; the statutory terminology suggests as much. Yet, this fact does not seem to me sufficient reason for refusing to give effect to Congress' more general intent, an intent that is expressed, albeit imperfectly, in the language Congress chose. For these *497 reasons, and others stated by JUSTICE BLACKMUN in his thorough opinion, I would affirm the judgment of the Court of Appeals.

Although the answer to the question presented by this case is not quite as clear to me as it is to JUSTICE BLACKMUN, I believe he has the better of the argument. If one puts aside legal terminology and considers ordinary English usage, Social Security benefits paid to the surviving child of a deceased wage earner are reasonably characterized as a form of "child support payments" — indeed, they are quite obviously payments made to support children. Moreover, respondents' interpretation of Title IV of the Social Security Act effectuates congressional intent: If a $50 portion of Social Security payments is disregarded when a family's eligibility for aid is determined, children with equal need will be more likely to receive equal aid. Finally, the interpretation achieves this parity in a way that serves the disregard provision's purpose — fairly inferred from legislative history — of mitigating the hardships imposed by the 1984 amendment that required families applying for aid to count child support payments as available income. Thus, Title II children's benefit payments are fairly encompassed by both the language and the purpose of the disregard provision. It may be that Congress did not sharply focus on the specific problem presented by this case; the statutory terminology suggests as much. Yet, this fact does not seem to me sufficient reason for refusing to give effect to Congress' more general intent, an intent that is expressed, albeit imperfectly, in the language Congress chose. For these *497 reasons, and others stated by JUSTICE BLACKMUN in his thorough opinion, I would affirm the judgment of the Court of Appeals.

Justice Powell

dissenting

Jones v. Wolf

https://www.courtlistener.com/opinion/110144/jones-v-wolf/

https://www.courtlistener.com/api/rest/v3/clusters/110144/

1978-157

This case presents again a dispute among church members over the control of a local church's property. Although the Court appears to accept established principles that I have thought would resolve this case, it superimposes on these principles a new structure of rules that will make the decision of these cases by civil courts more difficult. The new analysis also is more likely to invite intrusion into church polity forbidden by the First Amendment. I The Court begins by stating that "[t]his case involves a dispute over the ownership of church property," ante, at 597, suggesting that the concern is with legal or equitable ownership in the real property sense. But the ownership of the property of the Vineville church is not at issue. The deeds place title in the Vineville Presbyterian Church, or in trustees of that church, and none of the parties has questioned the validity of those deeds. The question actually presented is which of the factions within the local congregation has the right to control the actions of the titleholder, and thereby to control the use of the property, as the Court later acknowledges. Ante, at 602. Since 1872, disputes over control of church property usually have been resolved under principles established by Watson v. Jones, 13 Wall. 679 (1872). Under the new and complex, two-stage analysis approved today, a court instead first must apply newly defined "neutral principles of law" to determine *611 whether property titled to the local church is held in trust for the general church organization with which the local church is affiliated. If it is, then the court will grant control of the property to the councils of the general church. If not, then control by the local congregation will be recognized. In the latter situation, if there is a schism in the local congregation, as in this case, the second stage of the new analysis becomes applicable. Again, the Court fragments the analysis into two substeps for the purpose of determining which of the factions should control the property. As this new approach inevitably will increase the involvement of civil courts in church controversies, and as it departs from long-established precedents, I dissent. A The first stage in the "neutral principles of law" approach operates as a restrictive rule of evidence. A court is required to examine the deeds to the church property, the charter of the local church (if there is one), the book of order or discipline of the general church organization, and the state statutes governing the holding of church property. The object of the inquiry, where the title to the property is in the local church, is "to determine whether there [is] any basis for a trust in favor of the general church." Ante, at 600. The court's investigation is to be "completely secular," "rel[ying] exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges." Ante, at 603. Thus, where religious documents such as church constitutions or books of order must be examined "for language of trust in favor of the general church," "a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust." Ante, at 604. It follows that the civil courts using this analysis may consider the form of religious government *612 adopted by the church members for the resolution of intrachurch disputes only if that polity has been stated, in express relation to church property, in the language of trust and property law.[1] One effect of the Court's evidentiary rule is to deny to the courts relevant evidence as to the religious polity—that is, the form of governance—adopted by the church members. The constitutional documents of churches tend to be drawn in terms of religious precepts. Attempting to read them "in purely secular terms" is more likely to promote confusion than understanding. Moreover, whenever religious polity has not been expressed in specific statements referring to the property *613 of a church, there will be no evidence of that polity cognizable under the neutral-principles rule. Lacking such evidence, presumably a court will impose some rule of church government derived from state law. In the present case, for example, the general and unqualified authority of the Presbytery over the actions of the Vineville church had not been expressed in secular terms of control of its property. As a consequence, the Georgia courts could find no acceptable evidence of this authoritative relationship, and they imposed instead a congregational form of government determined from state law. This limiting of the evidence relative to religious government cannot be justified on the ground that it "free[s] civil courts completely from entanglement in questions of religious doctrine, polity, and practice." Ante, at 603. For unless the body identified as authoritative under state law resolves the underlying dispute in accord with the decision of the church's own authority, the state court effectively will have reversed the decisions of doctrine and practice made in accordance with church law. The schism in the Vineville church, for example, resulted from disagreements among the church members over questions of doctrine and practice. App. 233. Under the Book of Church Order, these questions were resolved authoritatively by the higher church courts, which then gave control of the local church to the faction loyal to that resolution. The Georgia courts, as a matter of state law, granted control to the schismatic faction, and thereby effectively reversed the doctrinal decision of the church courts. This indirect interference by the civil courts with the resolution of religious disputes within the church is no less proscribed by the First Amendment than is the direct decision of questions of doctrine and practice.[2] *614 When civil courts step in to resolve intrachurch disputes over control of church property, they will either support or overturn the authoritative resolution of the dispute within the church itself. The new analysis, under the attractive banner of "neutral principles," actually invites the civil courts to do the latter. The proper rule of decision, that I thought had been settled until today, requires a court to give effect in all cases to the decisions of the church government agreed upon by the members before the dispute arose. B The Court's basic neutral-principles approach, as a means of isolating decisions concerning church property from other decisions made within the church, relies on the concept of a trust of local church property in favor of the general church. Because of this central premise, the neutral-principles rule suffices to settle only disputes between the central councils of a church organization and a unanimous local congregation. Where, as here, the neutral-principles inquiry reveals no trust in favor of the general church, and the local congregation is split into factions, the basic question remains unresolved: which faction should have control of the local church? *615 The Court acknowledges that the church law of the Presbyterian Church in the United States (PCUS), of which the Vineville church is a part, provides for the authoritative resolution of this question by the Presbytery. Ante, at 608-609, and n. 7. Indeed, the Court indicates that Georgia, consistently with the First Amendment, may adopt the Watson v. Jones rule of adherence to the resolution of the dispute according to church law—a rule that would necessitate reversal of the judgment for the respondents. Ante, at 609. But instead of requiring the state courts to take this approach, the Court approves as well an alternative rule of state law: the Georgia courts are said to be free to "adop[t] a presumptive rule of majority representation, defeasible upon a showing that the identity of the local church is to be determined by some other means." Ante, at 607. This showing may be made by proving that the church has "provid[ed], in the corporate charter or the constitution of the general church, that the identity of the local church is to be established in some other way." Ante, at 607-608. On its face, this rebuttable presumption also requires reversal of the state court's judgment in favor of the schismatic faction. The polity of the PCUS commits to the Presbytery the resolution of the dispute within the local church. Having shown this structure of church government for the determination of the identity of the local congregation, the petitioners have rebutted any presumption that this question has been left to a majority vote of the local congregation. The Court nevertheless declines to order reversal. Rather than decide the case here in accordance with established First Amendment principles, the Court leaves open the possibility that the state courts might adopt some restrictive evidentiary rule that would render the petitioners' evidence inadequate to overcome the presumption of majority control. Ante, at 608 n. 5. But, aside from a passing reference to the use of the neutral-principles approach developed earlier in its *616 opinion,[3] the Court affords no guidance as to the constitutional limitations on such an evidentiary rule; the state courts, it says, are free to adopt any rule that is constitutional. "Indeed, the state may adopt any method of overcoming the majoritarian presumption, so long as the use of that method does not impair free-exercise rights or entangle the civil courts in matters of religious controversy." Ante, at 608. In essence, the Court's instructions on remand therefore allow the state courts the choice of following the long-settled rule of Watson v. Jones or of adopting some other rule—unspecified by the Court—that the state courts view as consistent with the First Amendment. Not only questions of state law but also important issues of federal constitutional law thus are left to the state courts for their decision, and, if they depart from Watson v. Jones, they will travel a course left totally uncharted by this Court. II Disputes among church members over the control of church property arise almost invariably out of disagreements regarding doctrine and practice. Because of the religious nature of these disputes, civil courts should decide them according to principles that do not interfere with the free exercise of religion in accordance with church polity and doctrine. Serbian *617 Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709, 720 (1976); Presbyterian Church v. Hull Church, 393 U.S. 440, 445-446, 449 (1969); Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94, 107 (1952); id., at 121-122 (Frankfurter, J., concurring). See also Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190 (1960); Maryland & Va. Eldership v. Sharpsburg Church, 254 Md. 162, 254 A.2d 162 (1969), appeal dismissed for want of substantial federal question, 396 U.S. 367 (1970). The only course that achieves this constitutional requirement is acceptance by civil courts of the decisions reached within the polity chosen by the church members themselves. The classic statement of this view is found in Watson v. Jones, 13 Wall., at 728-729:[4] "The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious *618 unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for." Accordingly, in each case involving an intrachurch dispute— including disputes over church property—the civil court must focus directly on ascertaining, and then following, the decision made within the structure of church governance. By doing so, the court avoids two equally unacceptable departures from the genuine neutrality mandated by the First Amendment. First, it refrains from direct review and revision of decisions of the church on matters of religious doctrine and practice that underlie the church's determination of intrachurch controversies, including those that relate to control of church property.[5] Equally important, by recognizing the authoritative resolution reached within the religious association, the civil court avoids interfering indirectly with the religious governance of those who have formed the association and submitted themselves to its authority. See supra, at 612-614; Watson v. Jones, supra, at 728-729; Kedroff v. Saint Nicholas Cathedral, supra, at 107-110. III Until today, and under the foregoing authorities, the first question presented in a case involving an intrachurch dispute over church property was where within the religious association *619 the rules of polity, accepted by its members before the schism, had placed ultimate authority over the use of the church property.[6] The courts, in answering this question have recognized two broad categories of church government. One is congregational, in which authority over questions of church doctrine, practice, and administration rests entirely in the local congregation or some body within it. In disputes over the control and use of the property of such a church, the civil courts enforce the authoritative resolution of the controversy within the local church itself. Watson v. Jones, supra, at 724-726. The second is hierarchical, in which the local church is but an integral and subordinate part of a larger church and is under the authority of the general church. Since the decisions of the local congregation are subject to review by the tribunals of the church hierarchy, this Court has held that the civil courts must give effect to the duly made decisions of the highest body within the hierarchy that has considered the dispute. As we stated in Serbian Orthodox Diocese v. Milivojevich: "[T]he First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them." 426 U.S., at 724-725 (emphasis added).[7] A careful examination of the constitutions of the general *620 and local church, as well as other relevant documents, may be necessary to ascertain the form of governance adopted by the members of the religious association. But there is no reason to restrict the courts to statements of polity related directly to church property. For the constitutionally necessary limitations are imposed not on the evidence to be considered but instead on the object of the inquiry, which is both limited and clear: the civil court must determine whether the local church remains autonomous, so that its members have unreviewable authority to withdraw it (and its property) from the general church, or whether the local church is inseparably integrated into and subordinate to the general church.[8] IV The principles developed in prior decisions thus afford clear guidance in the case before us. The Vineville church is presbyterian, a part of the PCUS. The presbyterian form of church government, adopted by the PCUS, is "a hierarchical structure of tribunals which consists of, in ascending order, (1) the Church Session, composed of the elders of the local church; (2) the Presbytery, composed of several churches in a geographical area; (3) the Synod, generally composed of all Presbyteries within a State; and (4) the General Assembly, the highest governing body." Presbyterian Church v. Hull *621 Church, 393 U. S., at 442. The Book of Church Order subjects the Session to "review and control" by the Presbytery in all matters, even authorizing the Presbytery to replace the leadership of the local congregation, to winnow its membership, and to take control of it. No provision of the Book of Church Order gives the Session the authority to withdraw the local church from the PCUS; similarly, no section exempts such a decision by the local church from review by the Presbytery. Thus, while many matters, including the management of the church property, are committed in the first instance to the Session and congregation of the local church, their actions are subject to review by the Presbytery. Here, the Presbytery exercised its authority over the local church, removing the dissidents from church office, asserting direct control over the government of the church, and recognizing the petitioners as the legitimate congregation and Session of the Church. It is undisputed that under the established government of the Presbyterian Church—accepted by the members of the church before the schism—the use and control of the church property have been determined authoritatively to be in the petitioners. Accordingly, under the principles I have thought were settled, there is no occasion for the further examination of the law of Georgia that the Court directs. On remand, the Georgia courts should be directed to enter judgment for the petitioners.

This case presents again a dispute among church members over the control of a local church's property. Although the Court appears to accept established principles that I have thought would resolve this case, it superimposes on these principles a new structure of rules that will make the decision of these cases by civil courts more difficult. The new analysis also is more likely to invite intrusion into church polity forbidden by the First Amendment. I The Court begins by stating that "[t]his case involves a dispute over the ownership of church property," ante, at 597, suggesting that the concern is with legal or equitable ownership in the real property sense. But the ownership of the property of the Vineville church is not at issue. The deeds place title in the Vineville Presbyterian or in trustees of that church, and none of the parties has questioned the validity of those deeds. The question actually presented is which of the factions within the local congregation has the right to control the actions of the titleholder, and thereby to control the use of the property, as the Court later acknowledges. Ante, at 602. Since 1872, disputes over control of church property usually have been resolved under principles established by Under the new and complex, two-stage analysis approved today, a court instead first must apply newly defined "neutral principles of law" to determine *611 whether property titled to the local church is held in trust for the general church organization with which the local church is affiliated. If it is, then the court will grant control of the property to the councils of the general church. If not, then control by the local congregation will be recognized. In the latter situation, if there is a schism in the local congregation, as in this case, the second stage of the new analysis becomes applicable. Again, the Court fragments the analysis into two substeps for the purpose of determining which of the factions should control the property. As this new approach inevitably will increase the involvement of civil courts in church controversies, and as it departs from long-established precedents, I dissent. A The first stage in the "neutral principles of law" approach operates as a restrictive rule of evidence. A court is required to examine the deeds to the church property, the charter of the local church (if there is one), the book of order or discipline of the general church organization, and the state statutes governing the holding of church property. The object of the inquiry, where the title to the property is in the local church, is "to determine whether there [is] any basis for a trust in favor of the general church." Ante, at 600. The court's investigation is to be "completely secular," "rel[ying] exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges." Ante, at 603. Thus, where religious documents such as church constitutions or books of order must be examined "for language of trust in favor of the general church," "a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust." Ante, at 604. It follows that the civil courts using this analysis may consider the form of religious government *612 adopted by the church members for the resolution of intrachurch disputes only if that polity has been stated, in express relation to church property, in the language of trust and property law.[1] One effect of the Court's evidentiary rule is to deny to the courts relevant evidence as to the religious polity—that is, the form of governance—adopted by the church members. The constitutional documents of churches tend to be drawn in terms of religious precepts. Attempting to read them "in purely secular terms" is more likely to promote confusion than understanding. Moreover, whenever religious polity has not been expressed in specific statements referring to the property *613 of a church, there will be no evidence of that polity cognizable under the neutral-principles rule. Lacking such evidence, presumably a court will impose some rule of church government derived from state law. In the present case, for example, the general and unqualified authority of the Presbytery over the actions of the Vineville church had not been expressed in secular terms of control of its property. As a consequence, the Georgia courts could find no acceptable evidence of this authoritative relationship, and they imposed instead a congregational form of government determined from state law. This limiting of the evidence relative to religious government cannot be justified on the ground that it "free[s] civil courts completely from entanglement in questions of religious doctrine, polity, and practice." Ante, at 603. For unless the body identified as authoritative under state law resolves the underlying dispute in accord with the decision of the church's own authority, the state court effectively will have reversed the decisions of doctrine and practice made in accordance with church law. The schism in the Vineville church, for example, resulted from disagreements among the church members over questions of doctrine and practice. App. 233. Under the Book of Order, these questions were resolved authoritatively by the higher church courts, which then gave control of the local church to the faction loyal to that resolution. The Georgia courts, as a matter of state law, granted control to the schismatic faction, and thereby effectively reversed the doctrinal decision of the church courts. This indirect interference by the civil courts with the resolution of religious disputes within the church is no less proscribed by the First Amendment than is the direct decision of questions of doctrine and practice.[2] *614 When civil courts step in to resolve intrachurch disputes over control of church property, they will either support or overturn the authoritative resolution of the dispute within the church itself. The new analysis, under the attractive banner of "neutral principles," actually invites the civil courts to do the latter. The proper rule of decision, that I thought had been settled until today, requires a court to give effect in all cases to the decisions of the church government agreed upon by the members before the dispute arose. B The Court's basic neutral-principles approach, as a means of isolating decisions concerning church property from other decisions made within the church, relies on the concept of a trust of local church property in favor of the general church. Because of this central premise, the neutral-principles rule suffices to settle only disputes between the central councils of a church organization and a unanimous local congregation. Where, as here, the neutral-principles inquiry reveals no trust in favor of the general church, and the local congregation is split into factions, the basic question remains unresolved: which faction should have control of the local church? *615 The Court acknowledges that the church law of the Presbyterian in the United States (PCUS), of which the Vineville church is a part, provides for the authoritative resolution of this question by the Presbytery. Ante, at 608-609, and n. 7. Indeed, the Court indicates that Georgia, consistently with the First Amendment, may adopt the rule of adherence to the resolution of the dispute according to church law—a rule that would necessitate reversal of the judgment for the respondents. Ante, at 609. But instead of requiring the state courts to take this approach, the Court approves as well an alternative rule of state law: the Georgia courts are said to be free to "adop[t] a presumptive rule of majority representation, defeasible upon a showing that the identity of the local church is to be determined by some other means." Ante, at 607. This showing may be made by proving that the church has "provid[ed], in the corporate charter or the constitution of the general church, that the identity of the local church is to be established in some other way." Ante, at 607-608. On its face, this rebuttable presumption also requires reversal of the state court's judgment in favor of the schismatic faction. The polity of the PCUS commits to the Presbytery the resolution of the dispute within the local church. Having shown this structure of church government for the determination of the identity of the local congregation, the petitioners have rebutted any presumption that this question has been left to a majority vote of the local congregation. The Court nevertheless declines to order reversal. Rather than decide the case here in accordance with established First Amendment principles, the Court leaves open the possibility that the state courts might adopt some restrictive evidentiary rule that would render the petitioners' evidence inadequate to overcome the presumption of majority control. Ante, at 608 n. 5. But, aside from a passing reference to the use of the neutral-principles approach developed earlier in its *616 opinion,[3] the Court affords no guidance as to the constitutional limitations on such an evidentiary rule; the state courts, it says, are free to adopt any rule that is constitutional. "Indeed, the state may adopt any method of overcoming the majoritarian presumption, so long as the use of that method does not impair free-exercise rights or entangle the civil courts in matters of religious controversy." Ante, at 608. In essence, the Court's instructions on remand therefore allow the state courts the choice of following the long-settled rule of or of adopting some other rule—unspecified by the Court—that the state courts view as consistent with the First Amendment. Not only questions of state law but also important issues of federal constitutional law thus are left to the state courts for their decision, and, if they depart from they will travel a course left totally uncharted by this Court. II Disputes among church members over the control of church property arise almost invariably out of disagreements regarding doctrine and practice. Because of the religious nature of these disputes, civil courts should decide them according to principles that do not interfere with the free exercise of religion in accordance with church polity and doctrine. Serbian *617 Orthodox ; Presbyterian ; ; See also ; Maryland & Va. appeal dismissed for want of substantial federal question, The only course that achieves this constitutional requirement is acceptance by civil courts of the decisions reached within the polity chosen by the church members themselves. The classic statement of this view is found in -729:[4] "The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious *618 unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for." Accordingly, in each case involving an intrachurch dispute— including disputes over church property—the civil court must focus directly on ascertaining, and then following, the decision made within the structure of church governance. By doing so, the court avoids two equally unacceptable departures from the genuine neutrality mandated by the First Amendment. First, it refrains from direct review and revision of decisions of the church on matters of religious doctrine and practice that underlie the church's determination of intrachurch controversies, including those that relate to control of church property.[5] Equally important, by recognizing the authoritative resolution reached within the religious association, the civil court avoids interfering indirectly with the religious governance of those who have formed the association and submitted themselves to its authority. See ; ; at -110. III Until today, and under the foregoing authorities, the first question presented in a case involving an intrachurch dispute over church property was where within the religious association *619 the rules of polity, accepted by its members before the schism, had placed ultimate authority over the use of the church property.[6] The courts, in answering this question have recognized two broad categories of church government. One is congregational, in which authority over questions of church doctrine, practice, and administration rests entirely in the local congregation or some body within it. In disputes over the control and use of the property of such a church, the civil courts enforce the authoritative resolution of the controversy within the local church itself. The second is hierarchical, in which the local church is but an integral and subordinate part of a larger church and is under the authority of the general church. Since the decisions of the local congregation are subject to review by the tribunals of the church hierarchy, this Court has held that the civil courts must give effect to the duly made decisions of the highest body within the hierarchy that has considered the dispute. As we stated in Serbian Orthodox : "[T]he First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them." -725[7] A careful examination of the constitutions of the general *620 and local church, as well as other relevant documents, may be necessary to ascertain the form of governance adopted by the members of the religious association. But there is no reason to restrict the courts to statements of polity related directly to church property. For the constitutionally necessary limitations are imposed not on the evidence to be considered but instead on the object of the inquiry, which is both limited and clear: the civil court must determine whether the local church remains autonomous, so that its members have unreviewable authority to withdraw it (and its property) from the general church, or whether the local church is inseparably integrated into and subordinate to the general church.[8] IV The principles developed in prior decisions thus afford clear guidance in the case before us. The Vineville church is presbyterian, a part of the PCUS. The presbyterian form of church government, adopted by the PCUS, is "a hierarchical structure of tribunals which consists of, in ascending order, (1) the Session, composed of the elders of the local church; (2) the Presbytery, composed of several churches in a geographical area; (3) the Synod, generally composed of all Presbyteries within a State; and (4) the General Assembly, the highest governing body." Presbyterian v. Hull *621 The Book of Order subjects the Session to "review and control" by the Presbytery in all matters, even authorizing the Presbytery to replace the leadership of the local congregation, to winnow its membership, and to take control of it. No provision of the Book of Order gives the Session the authority to withdraw the local church from the PCUS; similarly, no section exempts such a decision by the local church from review by the Presbytery. Thus, while many matters, including the management of the church property, are committed in the first instance to the Session and congregation of the local church, their actions are subject to review by the Presbytery. Here, the Presbytery exercised its authority over the local church, removing the dissidents from church office, asserting direct control over the government of the church, and recognizing the petitioners as the legitimate congregation and Session of the It is undisputed that under the established government of the Presbyterian —accepted by the members of the church before the schism—the use and control of the church property have been determined authoritatively to be in the petitioners. Accordingly, under the principles I have thought were settled, there is no occasion for the further examination of the law of Georgia that the Court directs. On remand, the Georgia courts should be directed to enter judgment for the petitioners.

Justice Burger

majority

Administrator, Federal Aviation Administration v. Robertson

https://www.courtlistener.com/opinion/109293/administrator-federal-aviation-administration-v-robertson/

https://www.courtlistener.com/api/rest/v3/clusters/109293/

1974-131

We granted certiorari[1] in this case in order to determine whether Exemption 3 of the Freedom of Information Act, 5 U.S. C. § 552 (b) (3),[2] permits nondisclosure *257 to respondents of certain reports in the files of the Federal Aviation Administration. This exemption provides that material need not be disclosed if "specifically exempted from disclosure by statute." The reports are known as Systems Worthiness Analysis Program (SWAP) Reports.[3] They consist of analyses made by representatives of the FAA concerning the operation and maintenance performance of commercial airlines. Over-sight and regulation of air travel safety is the responsibility of the FAA, § 601 of the Federal Aviation Act of 1958, 72 Stat. 775, as amended, 49 U.S. C. § 1421. The FAA claims the documents are protected from disclosure *258 by virtue of § 1104 of the Federal Aviation Act of 1958, 49 U.S. C. § 1504.[4] The facts of the case, in its present posture,[5] are quite simple. During the summer of 1970, in connection with a study of airline safety being conducted by them, the respondents, associated with the Center for the Study of Responsive Law, requested that the FAA make available certain SWAP Reports. The FAA declined to produce the documents. In accordance with established procedures adopted by the FAA, the respondents then filed timely notice of administrative appeal in August 1970. Several months later, while this administrative appeal was pending, the Air Transport Association, on behalf of its airline *259 members, requested that the FAA make no public disclosure of the SWAP Reports. The Association noted that, in a prior memorandum of its own staff, the FAA had pointed out that " `[t]he SWAP Program requires a cooperative effort on both the part of the company and FAA if it is to work effectively,' " and argued that "[t]he present practice of non-public submissions, which includes even tentative findings and opinions as well as certain factual material, encourages a spirit of openness on the part of airline management which is vital to the promotion of aviation safety—the paramount consideration of airlines and government alike in this area." In February 1971, the FAA formally denied respondents' request for the SWAP Reports. It took the position that the reports are exempt from public disclosure under 5 U.S. C. § 552 (b) (3), the section at issue here. As previously noted, that section provides that such material need not be disclosed under the Freedom of Information Act when the material is specifically exempted from disclosure by statute. The FAA noted that § 1104 of the Federal Aviation Act of 1958 permits the Administrator to withhold information, public disclosure of which, in his judgment, would adversely affect the interests of the objecting party and is not required to be disclosed in the interest of the public. The FAA also based its denial of these data on the exemption for intra-agency memoranda (5 U.S. C. § 552 (b) (5)), the exemption for investigatory files compiled for law enforcement purposes (§ 552 (b) (7)), and, finally, the exemption for documentation containing trade secrets and commercial or financial information of a privileged or confidential nature (§ 552 (b) (4)). The FAA's answer also explained its view of the need for confidentiality in SWAP Reports: "The effectiveness of the in-depth analysis that is the essence of SWAP team investigation depends, to *260 a great extent, upon the full, frank and open cooperation of the operator himself during the inspection period. His assurance by the FAA that the resulting recommendations are in the interest of safety and operational efficiency and will not be disclosed to the public are the major incentives impelling the operator to hide nothing and to grant free access to procedures, system of operation, facilities, personnel, as well as management and operational records in order to exhibit his normal course of operations to the SWAP inspectors." Respondents then sued in the District Court, seeking, inter alia, the requested documents. The District Court held that "the documents sought by plaintiffs . . . are, as a matter of law, public and non-exempt within the meaning of 5 United States Code [§] 552, and plaintiffs are entitled to judgment . . . as a matter of law." A divided Court of Appeals affirmed the judgment of the District Court "insofar as appellants rely upon Exemption (3)," but remanded the case for consideration of other exemptions which the FAA might wish to assert. 162 U. S. App. D. C. 298, 498 F.2d 1031 (1974). Examining first what it felt was the ordinary meaning of the language of Exemption 3, the Court of Appeals held that its language required the exempting statute relied on to specify or categorize the particular documents it authorizes to be withheld. Because § 1104 delegated "broad discretionary authority" under a "public interest" standard, it was held not within the scope of Exemption 3. The Court of Appeals distinguished this Court's decision in EPA v. Mink, 410 U.S. 73 (1973), on the ground that the exemption involved in that case was construed to be a specific reference by Congress to a definite class of documents, namely those that must be kept secret " `in the *261 interest of the national defense or foreign policy,' " 162 U. S. App. D. C., at 300, 498 F.2d, at 1033. The Court of Appeals read the Act as providing a comprehensive guide to congressional intent. One of the Act's major purposes was seen as intending to eliminate what it characterized as vague phrases such as "in the public interest" or "for good cause" as a basis for withholding information. Under these circumstances, the court concluded that § 1104 cannot be considered a specific exemption by statute within the meaning of Exemption 3 of the Freedom of Information Act. This case involves no constitutional claims, no issues regarding the nature or scope of "executive privilege," but simply the scope and meaning of one of the exemptions of the Freedom of Information Act, 5 U.S. C. § 552. EPA v. Mink, supra, at 94 (STEWART, J., concurring). The Act has two aspects. In one, it seeks to open public records to greater public access; in the other, it seeks to preserve the confidentiality undeniably essential in certain areas of Government operations. It is axiomatic that all parts of an Act "if at all possible, are to be given effect." Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609, 633 (1973). Accord, Kokoszka v. Belford, 417 U.S. 642, 650 (1974). We have construed the Freedom of Information Act recently in NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975); Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168 (1975); Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1 (1974); EPA v. Mink, supra. In Mink, the Court set out the general nature and purpose of the Act, recognizing, as did the Senate committee report, that it is not " `an easy task to balance the opposing interests . . .' " and " `provid[e] a workable formula which encompasses, balances, *262 and protects all interests . . . .' " 410 U.S., at 80, quoting from S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). Nothing in the Act or its legislative history gives any intimation that all information in all agencies and in all circumstances is to be open to public inspection. Because it considered the public disclosure section of the Administrative Procedure Act, 60 Stat. 238, 5 U.S. C. § 1002 (1964 ed.), inadequate, Congress sought to permit access to certain kinds of official information which it thought had unnecessarily been withheld and, by the creation of nine explicitly exclusive exemptions, to provide a more workable and balanced formula that would make available information that ought to be public and, at the same time, protect certain information where confidentiality was necessary to protect legitimate governmental functions that would be impaired by disclosure. The exemptions provided by the Act, one of which we deal with here, represent the congressional judgment as to certain kinds of "information that the Executive Branch must have the option to keep confidential, if it so chooses," 410 U.S., at 80. The language of Exemption 3 contains no "built-in" standard as in the case of some of the other exemptions. The variety of constructions given its language by the Courts of Appeals,[6] is ample evidence *263 that the relevant portions of the exemption are unclear and ambiguous, compelling resort to the legislative history. See United States v. Donruss Co., 393 U.S. 297, 303 (1969). Cf. United States v. Oregon, 366 U.S. 643, 648 (1961). That history must be read in light of the legislation in existence when the Act was passed; that history reveals "clear evidence that Congress was aware of the necessity to deal expressly with inconsistent laws." Regional Rail Reorganization Act Cases, 419 U.S. 102, 129 (1974). Congress was aware, as it undertook a painstaking review, during several sessions, of the right of the public to information concerning the public business; it was aware that it was acting not only against the backdrop of the 1946 Administrative Procedure Act, supra, but also on the basis of a significant number of earlier congressional decisions that confidentiality was essential in certain departments and agencies in order to protect the public interest. No distinction seems to have been made on *264 the basis of the standards articulated in the exempting statute or on the degree of discretion which it vested in a particular Government officer. When the continued vitality of these specialized exempting statutes was raised by the views of various agencies,[7] the members of the committee consistently expressed the clear intention that these statutes would remain unaffected by the new Act. During the 1963 hearings, for example, Senator Long, Chairman of the Senate Subcommittee stated: "It should be made clear that this bill in no way limits statutes specifically written with the congressional intent of curtailing the flow of information as a supplement necessary to the proper functioning of certain agencies."[8] Indeed, some provisions[9] of bills which were not enacted could well have been construed as repealing all earlier legislation,[10] but such provisions were not included in the bill that was finally enacted. More specifically, when the Civil Aeronautics Board brought § 1104 to the attention of both the House and Senate hearings of 1965, and expressed the agency interpretation that the provision was encompassed within Exemption 3,[11] no question was *265 raised or challenge made to the agency view of the impact of that exemption. When the House Committee on Government Operations focused on Exemption 3, it took note that there are "nearly 100 statutes or parts of statutes which restrict public access to specific Government records. These would not be modified by the public records provisions of S. 1160." H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966). (Emphasis added.) The respondents can prevail only if the Act is to be read as repealing by implication all existing statutes "which restrict public access to specific Government records." Ibid. The term "specific" as there used cannot be read as meaning that the exemption applies only to documents specified, i. e., by naming them precisely or by describing the category in which they fall. To require this interpretation would be to ask of Congress a virtually impossible task. Such a construction would also imply that Congress had undertaken to reassess every delegation of authority to withhold information which it had made before the passage of this legislation—a task which the legislative history shows it clearly did not undertake. Earlier this Term, MR. JUSTICE BRENNAN, speaking for the Court in the Regional Rail Reorganization Act Cases, supra, noted that "repeals by implication are disfavored," *266 419 U. S., at 133, and that, when courts are confronted with statutes " `capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.' " Id., at 133-134, quoting Morton v. Mancari, 417 U.S. 535, 551 (1974). As we have noted, here, as in the Regional Rail Reorganization Act Cases, supra, there is "clear evidence that Congress was aware of the necessity to deal expressly with inconsistent laws," 419 U.S., at 129. To spell out repeal by implication of a multitude of statutes enacted over a long period of time, each of which was separately weighed and considered by Congress to meet an identified need, would be a more unreasonable step by a court than to do so with respect to a single statute such as was involved in the Regional Rail Reorganization Act Cases, supra. Congress' response was to permit the numerous laws then extant allowing confidentiality to stand; it is not for us to override that legislative choice. The discretion vested by Congress in the FAA, in both its nature and scope, is broad. There is not, however, any inevitable inconsistency between the general congressional intent to replace the broad standard of the former Administrative Procedure Act and its intent to preserve, for air transport regulation, a broad degree of discretion on what information is to be protected in the public interest in order to insure continuing access to the sources of sensitive information necessary to the regulation of air transport. Congress could not reasonably anticipate every situation in which the balance must tip in favor of nondisclosure as a means of insuring that the primary, or indeed sole, source of essential information would continue to volunteer information needed to develop and maintain safety standards. The public interest is served by assuring a free flow of relevant information to the regulatory *267 authorities from the airlines. Congress could appropriately conclude that the public interest was better served by guaranteeing confidentiality in order to secure the maximum amount of information relevant to safety. The wisdom of the balance struck by Congress is not open to judicial scrutiny. It was inescapable that some regulatory authorities be vested with broad, flexible discretion, the exercise of which was made subject to continuing scrutiny by Congress. Following passage of the Act, "[g]eneral oversight into the administration of the Freedom of Information Act [was] exercised by the [House] Foreign Operations and Government Information Subcommittee and the Senate Subcommittee on Administrative Practice and Procedure." H. R. Rep. No. 92-1419, pp. 3-4 (1972). It is not insignificant that this overall scrutiny of the Act in 1972 brought no change in Exemption 3. Indeed, when Congress amended the Freedom of Information Act in 1974, it reaffirmed the continued vitality of this particular exemption, covering statutes vesting in the agencies wide authority. S. Conf. Rep. No. 93-1200, p. 12 (1974); H. R. Conf. Rep. No. 93-1380, p. 12 (1974). Moreover, Congress amended the Act in 1974 to require that all agencies submit to each House, on an annual basis, "the number of determinations made by such agency not to comply with requests for records . . . and the reasons for each such determination." 88 Stat. 1564, 5 U.S. C. § 552 (d) (1) (1970 ed., Supp. IV). In light of this continuing close scrutiny, we are bound to assume that Congress exercised an informed judgment as to the needs of the FAA and that it was persuaded as to the necessity, or at least of the practical compatibility, of both statutes. Reversed. *268 MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN dissent for the reasons given in Judge Fahy's opinion for the Court of Appeals, 162 U. S. App. D. C. 298, 498 F.2d 1031 (1974). MR. JUSTICE STEWART, with whom MR. JUSTICE MARSHALL joins, concurring in the judgment.

We granted certiorari[1] in this case in order to determine whether Exemption 3 of the Freedom of Information 5 U.S. C. 552 (b) (3),[2] permits nondisclosure *257 to respondents of certain reports in the files of the Federal Aviation Administration. This exemption provides that material need not be disclosed if "specifically exempted from disclosure by statute." The reports are known as Systems Worthiness Analysis Program (SWAP) Reports.[3] They consist of analyses made by representatives of the FAA concerning the operation and maintenance performance of commercial airlines. Over-sight and regulation of air travel safety is the responsibility of the FAA, 601 of the Federal Aviation of 1958, as amended, 49 U.S. C. 1421. The FAA claims the documents are protected from disclosure *258 by virtue of 1104 of the Federal Aviation of 1958, 49 U.S. C. 1504.[4] The facts of the case, in its present posture,[5] are quite simple. During the summer of 1970, in connection with a study of airline safety being conducted by them, the respondents, associated with the Center for the Study of Responsive Law, requested that the FAA make available certain SWAP Reports. The FAA declined to produce the documents. In accordance with established procedures adopted by the FAA, the respondents then filed timely notice of administrative appeal in August 1970. Several months later, while this administrative appeal was pending, the Air Transport Association, on behalf of its airline *259 members, requested that the FAA make no public disclosure of the SWAP Reports. The Association noted that, in a prior memorandum of its own staff, the FAA had pointed out that " `[t]he SWAP Program requires a cooperative effort on both the part of the company and FAA if it is to work effectively,' " and argued that "[t]he present practice of non-public submissions, which includes even tentative findings and opinions as well as certain factual material, encourages a spirit of openness on the part of airline management which is vital to the promotion of aviation safety—the paramount consideration of airlines and government alike in this area." In February 1971, the FAA formally denied respondents' request for the SWAP Reports. It took the position that the reports are exempt from public disclosure under 5 U.S. C. 552 (b) (3), the section at issue here. As previously noted, that section provides that such material need not be disclosed under the Freedom of Information when the material is specifically exempted from disclosure by statute. The FAA noted that 1104 of the Federal Aviation of 1958 permits the Administrator to withhold information, public disclosure of which, in his judgment, would adversely affect the interests of the objecting party and is not required to be disclosed in the interest of the public. The FAA also based its denial of these data on the exemption for intra-agency memoranda (5 U.S. C. 552 (b) (5)), the exemption for investigatory files compiled for law enforcement purposes ( 552 (b) (7)), and, finally, the exemption for documentation containing trade secrets and commercial or financial information of a privileged or confidential nature ( 552 (b) (4)). The FAA's answer also explained its view of the need for confidentiality in SWAP Reports: "The effectiveness of the in-depth analysis that is the essence of SWAP team investigation depends, to *260 a great extent, upon the full, frank and open cooperation of the operator himself during the inspection period. His assurance by the FAA that the resulting recommendations are in the interest of safety and operational efficiency and will not be disclosed to the public are the major incentives impelling the operator to hide nothing and to grant free access to procedures, system of operation, facilities, personnel, as well as management and operational records in order to exhibit his normal course of operations to the SWAP inspectors." Respondents then sued in the District Court, seeking, inter alia, the requested documents. The District Court held that "the documents sought by plaintiffs are, as a matter of law, public and non-exempt within the meaning of 5 United States Code [] 552, and plaintiffs are entitled to judgment as a matter of law." A divided Court of Appeals affirmed the judgment of the District Court "insofar as appellants rely upon Exemption (3)," but remanded the case for consideration of other exemptions which the FAA might wish to assert. 162 U. S. App. D. C. 298, Examining first what it felt was the ordinary meaning of the language of Exemption 3, the Court of Appeals held that its language required the exempting statute relied on to specify or categorize the particular documents it authorizes to be withheld. Because 1104 delegated "broad discretionary authority" under a "public interest" standard, it was held not within the scope of Exemption 3. The Court of Appeals distinguished this Court's decision in on the ground that the exemption involved in that case was construed to be a specific reference by Congress to a definite class of documents, namely those that must be kept secret " `in the *261 interest of the national defense or foreign policy,' " 162 U. S. App. D. C., at The Court of Appeals read the as providing a comprehensive guide to congressional intent. One of the 's major purposes was seen as intending to eliminate what it characterized as vague phrases such as "in the public interest" or "for good cause" as a basis for withholding information. Under these circumstances, the court concluded that 1104 cannot be considered a specific exemption by statute within the meaning of Exemption 3 of the Freedom of Information This case involves no constitutional claims, no issues regarding the nature or scope of "executive privilege," but simply the scope and meaning of one of the exemptions of the Freedom of Information 5 U.S. C. 552. The has two aspects. In one, it seeks to open public records to greater public access; in the other, it seeks to preserve the confidentiality undeniably essential in certain areas of Government operations. It is axiomatic that all parts of an "if at all possible, are to be given effect." Accord, We have construed the Freedom of Information recently in ; Renegotiation ; Renegotiation ; In the Court set out the general nature and purpose of the recognizing, as did the Senate committee report, that it is not " `an easy task to balance the opposing interests' " and " `provid[e] a workable formula which encompasses, balances, *262 and protects all interests' " quoting from S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). Nothing in the or its legislative history gives any intimation that all information in all agencies and in all circumstances is to be open to public inspection. Because it considered the public disclosure section of the Administrative Procedure 5 U.S. C. 1002 (1964 ed.), inadequate, Congress sought to permit access to certain kinds of official information which it thought had unnecessarily been withheld and, by the creation of nine explicitly exclusive exemptions, to provide a more workable and balanced formula that would make available information that ought to be public and, at the same time, protect certain information where confidentiality was necessary to protect legitimate governmental functions that would be impaired by disclosure. The exemptions provided by the one of which we deal with here, represent the congressional judgment as to certain kinds of "information that the Executive Branch must have the option to keep confidential, if it so chooses," The language of Exemption 3 contains no "built-in" standard as in the case of some of the other exemptions. The variety of constructions given its language by the Courts of Appeals,[6] is ample evidence *263 that the relevant portions of the exemption are unclear and ambiguous, compelling resort to the legislative history. See United Cf. United That history must be read in light of the legislation in existence when the was passed; that history reveals "clear evidence that Congress was aware of the necessity to deal expressly with inconsistent laws." Regional Rail Reorganization Congress was aware, as it undertook a painstaking review, during several sessions, of the right of the public to information concerning the public business; it was aware that it was acting not only against the backdrop of the 1946 Administrative Procedure but also on the basis of a significant number of earlier congressional decisions that confidentiality was essential in certain departments and agencies in order to protect the public interest. No distinction seems to have been made on *264 the basis of the standards articulated in the exempting statute or on the degree of discretion which it vested in a particular Government officer. When the continued vitality of these specialized exempting statutes was raised by the views of various agencies,[7] the members of the committee consistently expressed the clear intention that these statutes would remain unaffected by the new During the 1963 hearings, for example, Senator Long, Chairman of the Senate Subcommittee stated: "It should be made clear that this bill in no way limits statutes specifically written with the congressional intent of curtailing the flow of information as a supplement necessary to the proper functioning of certain agencies."[8] Indeed, some provisions[9] of bills which were not enacted could well have been construed as repealing all earlier legislation,[10] but such provisions were not included in the bill that was finally enacted. More specifically, when the Civil Aeronautics Board brought 1104 to the attention of both the House and Senate hearings of 1965, and expressed the agency interpretation that the provision was encompassed within Exemption 3,[11] no question was *265 raised or challenge made to the agency view of the impact of that exemption. When the House Committee on Government Operations focused on Exemption 3, it took note that there are "nearly 100 statutes or parts of statutes which restrict public access to specific Government records. These would not be modified by the public records provisions of S. 1160." H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966). (Emphasis added.) The respondents can prevail only if the is to be read as repealing by implication all existing statutes "which restrict public access to specific Government records." The term "specific" as there used cannot be read as meaning that the exemption applies only to documents specified, i. e., by naming them precisely or by describing the category in which they fall. To require this interpretation would be to ask of Congress a virtually impossible task. Such a construction would also imply that Congress had undertaken to reassess every delegation of authority to withhold information which it had made before the passage of this legislation—a task which the legislative history shows it clearly did not undertake. Earlier this Term, MR. JUSTICE BRENNAN, speaking for the Court in the Regional Rail Reorganization noted that "repeals by implication are disfavored," * and that, when courts are confronted with statutes " `capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.' " quoting As we have noted, here, as in the Regional Rail Reorganization there is "clear evidence that Congress was aware of the necessity to deal expressly with inconsistent laws," 419 U.S., at To spell out repeal by implication of a multitude of statutes enacted over a long period of time, each of which was separately weighed and considered by Congress to meet an identified need, would be a more unreasonable step by a court than to do so with respect to a single statute such as was involved in the Regional Rail Reorganization Congress' response was to permit the numerous laws then extant allowing confidentiality to stand; it is not for us to override that legislative choice. The discretion vested by Congress in the FAA, in both its nature and scope, is broad. There is not, however, any inevitable inconsistency between the general congressional intent to replace the broad standard of the former Administrative Procedure and its intent to preserve, for air transport regulation, a broad degree of discretion on what information is to be protected in the public interest in order to insure continuing access to the sources of sensitive information necessary to the regulation of air transport. Congress could not reasonably anticipate every situation in which the balance must tip in favor of nondisclosure as a means of insuring that the primary, or indeed sole, source of essential information would continue to volunteer information needed to develop and maintain safety standards. The public interest is served by assuring a free flow of relevant information to the regulatory *267 authorities from the airlines. Congress could appropriately conclude that the public interest was better served by guaranteeing confidentiality in order to secure the maximum amount of information relevant to safety. The wisdom of the balance struck by Congress is not open to judicial scrutiny. It was inescapable that some regulatory authorities be vested with broad, flexible discretion, the exercise of which was made subject to continuing scrutiny by Congress. Following passage of the "[g]eneral oversight into the administration of the Freedom of Information [was] exercised by the [House] Foreign Operations and Government Information Subcommittee and the Senate Subcommittee on Administrative Practice and Procedure." H. R. Rep. No. 92-1419, pp. 3-4 (1972). It is not insignificant that this overall scrutiny of the in 1972 brought no change in Exemption 3. Indeed, when Congress amended the Freedom of Information in it reaffirmed the continued vitality of this particular exemption, covering statutes vesting in the agencies wide authority. S. Conf. Rep. No. 93-1200, p. 12 ; H. R. Conf. Rep. No. 93-1380, p. 12 Moreover, Congress amended the in to require that all agencies submit to each House, on an annual basis, "the number of determinations made by such agency not to comply with requests for records and the reasons for each such determination." 5 U.S. C. 552 (d) (1) (1970 ed., Supp. IV). In light of this continuing close scrutiny, we are bound to assume that Congress exercised an informed judgment as to the needs of the FAA and that it was persuaded as to the necessity, or at least of the practical compatibility, of both statutes. Reversed. *268 MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN dissent for the reasons given in Judge Fahy's opinion for the Court of Appeals, 162 U. S. App. D. C. 298, MR. JUSTICE STEWART, with whom MR. JUSTICE MARSHALL joins, concurring in the judgment.

Justice Marshall

majority

SEC v. Medical Comm. for Human Rights

https://www.courtlistener.com/opinion/108424/sec-v-medical-comm-for-human-rights/

https://www.courtlistener.com/api/rest/v3/clusters/108424/

1971-034

The Medical Committee for Human Rights acquired by gift five shares of stock in Dow Chemical Co. In March 1968, the Committee's national chairman wrote a letter to the company expressing concern over its policy with respect to the production and sale of napalm. The letter also requested that there be included in the company's proxy statement for 1968 a proposal to amend Dow's Certificate of Incorporation to prohibit the sale of napalm unless the purchaser gives reasonable assurance that the napalm will not be used against human beings. Dow replied that the proposal was too late for inclusion in the 1968 proxy statement and for discussion at that year's annual meeting, but that it would be reconsidered the following year. In an exchange of letters with Dow in 1969, the Committee indicated its belief that it had a right under Rule 14a-8 of the Securities and Exchange Commission, 17 CFR § 240.14a-8 (1970) (promulgated pursuant to § 14 (a) of the Securities Exchange Act of 1934, 48 Stat. 895, as amended, 15 U.S. C. § 78n (a)), to have its proposal included in the company's proxy statement for consideration by all shareholders. On February 7, 1969, Dow responded that it intended to omit the proposal (somewhat modified) from the 1969 statement under the authority of subsections of the SEC Rule relied on by the Committee that permitted omission of shareholder proposals under two sets of circumstances: § 240.14a-8 (c) (2)—"If it clearly appears that the proposal is submitted by the security holder primarily for the purpose of enforcing a personal claim or redressing a personal grievance against the issuer or its management, or primarily for the purpose of promoting general economic, political, racial, religious, social or similar causes"; or *405 § 240.14a-8 (c) (5)—"If the proposal consists of a recommendation or request that the management take action with respect to a matter relating to the conduct of the ordinary business operations of the issuer." The Committee requested that Dow's decision be reviewed by the staff of the SEC. On February 18, 1969, the Chief Counsel for the Division of Corporation Finance wrote both Dow and the Committee to inform them that "this Division will not recommend any action to the Commission if this proposal is omitted from the management's proxy material." App. 21. The SEC Commissioners granted a request by the Committee that they review the Division's decision and affirmed it. App. 43. The Committee then sought and obtained review of the Commission's decision in the United States Court of Appeals for the District of Columbia Circuit. On July 8, 1970, the Court of Appeals held that the decision of the SEC was reviewable under § 25 (a) of the Securities Exchange Act of 1934, 15 U.S. C. § 78y (a); that while review of Dow's decision was clearly available in district court, review of the SEC's decision could also be obtained in a court of appeals; that the validity of the Commission's determination was extremely dubious, especially in light of its failure to state reasons supporting its conclusion; and that the case should be remanded to the Commission for reconsideration and a statement of reasons. 139 U. S. App. D. C. 226, 432 F.2d 659. The Commission petitioned for review here, and we granted certiorari on March 22, 1971. 401 U.S. 973. Events have taken place, subsequent to the decision by the court below, and some subsequent to our decision to grant certiorari, that require that we dismiss this case on the ground that it has now become moot. In January 1971, the Medical Committee again submitted *406 its napalm resolution for inclusion in Dow's 1971 proxy statement. This time Dow acquiesced in the Committee's request and included the proposal. At the annual stockholder's meeting in May 1971, Dow's shareholders voted on the Committee's proposal. Less than 3% of all voting shareholders supported it, and pursuant to Rule 14a-8 (c) (4) (i), 17 CFR § 240.14a-8 (c) (4) (i), Dow may exclude the same or substantially the same proposal from its proxy materials for the next three years. We find that this series of events has mooted the controversy. Respondent argues that it will continue to urge the adoption of the proposal and its inclusion in proxy statements, and that it is likely that Dow will reject inclusion in the future as it has in the past. It is true that in permitting the proposal to be included in the 1971 proxy statement Dow stated that it adhered to its opinion that the proposal might properly be omitted and that its inclusion was without prejudice to future exclusion. However, this does not create the controversy that is necessary for us to retain jurisdiction to decide the merits. Whether or not the Committee will actually resubmit its proposal or a similar one in 1974 is purely a matter of conjecture at this point, as is whether or not Dow will accept it. If Dow were likely to repeat its allegedly illegal conduct, the case would not be moot. See Walling v. Helmerich & Payne, 323 U.S. 37, 43 (1944); United States v. W. T. Grant Co., 345 U.S. 629, 632-633 (1953). However, in light of the meager support the proposal attracted, we can only speculate that Dow will continue to include the proposal when it again becomes eligible for inclusion, rather than to repeat this litigation. Thus, we find that "the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Phosphate Export Assn., 393 U.S. 199, 203 (1968). The case is therefore moot. *407 "[I]t is well settled that federal courts may act only in the context of a justiciable case or controversy." Benton v. Maryland, 395 U.S. 784, 788 (1969). "Our lack of jurisdiction to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy." Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3 (1964); cf. Doremus v. Board of Education, 342 U.S. 429, 434 (1952). Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded to that court for dismissal. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR.

The Medical Committee for Human Rights acquired by gift five shares of stock in Dow Chemical Co. In March 1968, the Committee's national chairman wrote a letter to the company expressing concern over its policy with respect to the production and sale of napalm. The letter also requested that there be included in the company's proxy statement for 1968 a proposal to amend Dow's Certificate of Incorporation to prohibit the sale of napalm unless the purchaser gives reasonable assurance that the napalm will not be used against human beings. Dow replied that the proposal was too late for inclusion in the 1968 proxy statement and for discussion at that year's annual meeting, but that it would be reconsidered the following year. In an exchange of letters with Dow in 1969, the Committee indicated its belief that it had a right under Rule 14a-8 of the Securities and Exchange Commission,14a-8 (1970) (promulgated pursuant to 14 (a) of the Securities Exchange Act of 1934, as amended, 15 U.S. C. 78n (a)), to have its proposal included in the company's proxy statement for consideration by all shareholders. On February 7, 1969, Dow responded that it intended to omit the proposal (somewhat modified) from the 1969 statement under the authority of subsections of the SEC Rule relied on by the Committee that permitted omission of shareholder proposals under two sets of circumstances: 240.14a-8 (c) (2)—"If it clearly appears that the proposal is submitted by the security holder primarily for the purpose of enforcing a personal claim or redressing a personal grievance against the issuer or its management, or primarily for the purpose of promoting general economic, political, racial, religious, social or similar causes"; or *405 240.14a-8 (c) (5)—"If the proposal consists of a recommendation or request that the management take action with respect to a matter relating to the conduct of the ordinary business operations of the issuer." The Committee requested that Dow's decision be reviewed by the staff of the SEC. On February 18, 1969, the Chief Counsel for the Division of Corporation Finance wrote both Dow and the Committee to inform them that "this Division will not recommend any action to the Commission if this proposal is omitted from the management's proxy material." App. 21. The SEC Commissioners granted a request by the Committee that they review the Division's decision and affirmed it. App. The Committee then sought and obtained review of the Commission's decision in the United States Court of Appeals for the District of Columbia Circuit. On July 8, 1970, the Court of Appeals held that the decision of the SEC was reviewable under 25 (a) of the Securities Exchange Act of 1934, 15 U.S. C. 78y (a); that while review of Dow's decision was clearly available in district court, review of the SEC's decision could also be obtained in a court of appeals; that the validity of the Commission's determination was extremely dubious, especially in light of its failure to state reasons supporting its conclusion; and that the case should be remanded to the Commission for reconsideration and a statement of reasons. 139 U. S. App. D. C. 226, The Commission petitioned for review here, and we granted certiorari on March 22, 1971. Events have taken place, subsequent to the decision by the court below, and some subsequent to our decision to grant certiorari, that require that we dismiss this case on the ground that it has now become moot. In January 1971, the Medical Committee again submitted *406 its napalm resolution for inclusion in Dow's 1971 proxy statement. This time Dow acquiesced in the Committee's request and included the proposal. At the annual stockholder's meeting in May 1971, Dow's shareholders voted on the Committee's proposal. Less than 3% of all voting shareholders supported it, and pursuant to Rule 14a-8 (c) (4) (i),14a-8 (c) (4) (i), Dow may exclude the same or substantially the same proposal from its proxy materials for the next three years. We find that this series of events has mooted the controversy. Respondent argues that it will continue to urge the adoption of the proposal and its inclusion in proxy statements, and that it is likely that Dow will reject inclusion in the future as it has in the past. It is true that in permitting the proposal to be included in the 1971 proxy statement Dow stated that it adhered to its opinion that the proposal might properly be omitted and that its inclusion was without prejudice to future exclusion. However, this does not create the controversy that is necessary for us to retain jurisdiction to decide the merits. Whether or not the Committee will actually resubmit its proposal or a similar one in 1974 is purely a matter of conjecture at this point, as is whether or not Dow will accept it. If Dow were likely to repeat its allegedly illegal conduct, the case would not be moot. See ; United However, in light of the meager support the proposal attracted, we can only speculate that Dow will continue to include the proposal when it again becomes eligible for inclusion, rather than to repeat this litigation. Thus, we find that "the allegedly wrongful behavior could not reasonably be expected to recur." United The case is therefore moot. *407 "[I]t is well settled that federal courts may act only in the context of a justiciable case or controversy." "Our lack of jurisdiction to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy." ; cf. 4 Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded to that court for dismissal. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR.

Justice Burger

majority

Dickey v. Florida

https://www.courtlistener.com/opinion/108148/dickey-v-florida/

https://www.courtlistener.com/api/rest/v3/clusters/108148/

1969-096

We granted the writ in this case to consider the petitioner's claim that he had been denied his Sixth Amendment right to a speedy trial: he was tried in 1968 on charges of alleged criminal acts committed in 1960. *31 Prior to the commencement of his jury trial in 1968 for armed robbery petitioner, Robert Dickey, moved to quash the information against him, alleging, inter alia, that if he were tried he would be denied his right to a speedy trial, as guaranteed by § 11 of the Declaration of Rights of the Florida Constitution[1] and the Sixth Amendment to the United States Constitution.[2] The motion was denied. Dickey was subsequently tried and convicted. He appealed to the Florida District Court of Appeal, First District, alleging error in the trial court's denial of his motion to quash. The Court of Appeal affirmed the conviction in a brief order. 215 So. 2d 772 (1968). We granted Dickey leave to proceed in forma pauperis and granted his petition for a writ of certiorari. 396 U.S. 816 (1969). We reverse. I At about 2 o'clock in the morning of June 28, 1960, Clark's Motor Court in Quincy, Gadsden County, Florida, was robbed by a lone armed robber. The victim and only eyewitness was Mrs. Ralph Clark. She immediately reported the crime to Deputy County Sheriff Martin and gave a description of the robber to him; this description was routinely recorded for later reference. Shortly thereafter, Dickey was taken into custody on federal bank robbery charges and placed in the *32 Jackson County Jail, Marianna, Florida. Apparently the description Mrs. Clark had given Deputy Martin was sufficiently similar to Dickey that on July 1, 1960, he showed Mrs. Clark a picture of Dickey. Mrs. Clark and Deputy Martin then went to the Jackson County Jail where she identified Dickey as her assailant. Later that day Deputy Martin secured an arrest warrant charging Dickey with armed robbery.[3] From July 1, 1960, to September 2, 1960, Dickey remained in the Jackson County Jail. The Gadsden County Sheriff's Office knew of his whereabouts but made no effort to serve the warrant or gain custody for the purpose of trial. On September 2, 1960, Dickey, having been convicted on federal charges, was removed from Florida, first to Leavenworth and then Alcatraz. On the same day, the Gadsden County warrant was sent to the Chief United States Marshal, Atlanta, Georgia, and a formal detainer was lodged against Dickey. In 1962 Dickey filed in the Gadsden County Circuit Court a petition styled "writ of habeas corpus ad prosequendum" naming the State Attorney for Gadsden County as respondent and asking that he be required to show cause why he should not be ordered to either take the steps necessary to obtain Dickey's presence in Florida for trial or withdraw the detainer for failure to provide Dickey with a speedy trial, as guaranteed by the Sixth Amendment. The Circuit Court, in an order dated December 1, 1962, denied the petition on several grounds: first, that Dickey's unavailability for trial in Florida was the result of his voluntary commission of a federal crime, the natural consequence of which was incarceration in a federal penal institution; second, that *33 the speedy-trial issue was prematurely raised because only at the time of trial can a determination be made as to whether the delay has made a fair trial impossible; third, that even if the denial of an immediate trial was violative of Dickey's Sixth Amendment rights, it was a deprivation caused wholly by the federal officials having custody of his person, and any relief had to flow from those authorities. Dickey filed papers raising substantially the same contentions on two later occasions, April 1, 1963, and March 28, 1966. The Circuit Court denied both petitions, simply citing the prior denial dated December 1, 1962. Dickey next petitioned the Supreme Court of Florida to issue a writ of mandamus ordering the Circuit Court to either secure his return for trial or withdraw the detainer against him. The Circuit Court judge filed as a return the orders of December 1962, April 1963, and April 1966. Thereafter the Attorney General of Florida filed a brief in opposition arguing that Dickey should not be heard to complain that he had not received a speedy trial in Gadsden County because his unavailability was caused by the voluntary commission of criminal acts. Counsel was appointed for Dickey and the Florida Supreme Court heard argument on the petition for mandamus. The Florida Supreme Court rejected the State's claim that a person incarcerated for one crime has no right to demand his constitutionally guaranteed right to a speedy trial on another charge. Dickey v. Circuit Court, 200 So. 2d 521 (1967). The court held that incarceration does not make the accused unavailable since there have long been means by which one jurisdiction, for the purpose of a criminal trial, can obtain custody of a prisoner held by another. That court also held that the prisoner's demand upon the accusing State gives rise *34 to an obligation to act affirmatively to secure his presence for trial; failure of the accusing State to promptly obtain the defendant from the detaining sovereign might invalidate any judgment ultimately obtained, if the time lapse is sufficiently great and is not excused.[4] The Florida Supreme Court concluded that once the discretionary decision to charge a prisoner with a crime has been made, an obligation arises to act diligently toward procuring the accused for trial and that obligation is a ministerial duty subject to a writ of mandamus. However, since Dickey had named the Circuit Court as the respondent, rather than the appropriate State Attorney, the petition was dismissed without prejudice to his right to file another petition naming the appropriate respondent. On September 1, 1967, Dickey filed with the Circuit Court a motion to have the court order the Gadsden County State Attorney to dismiss the detainer warrant because he had been denied his right to a speedy trial. The State Attorney then filed a petition for a writ of habeas corpus ad prosequendum to secure Dickey's return to Florida for trial. On December 15, 1967, the Circuit Court issued the writ, and on the same day the State Attorney filed an information charging Dickey with the armed robbery allegedly committed in 1960. Dickey was returned to Florida on January 23, 1968. On January 30, the day before the trial was to begin, Dickey's appointed counsel filed a motion for a continuance so that the whereabouts of two witnesses could *35 be determined, and a motion asking that the information be quashed on the ground that the delay of over seven years amounted to a denial of Dickey's right to a speedy trial. The motion alleged that the delay was sufficiently prejudicial to make a fair trial impossible.[5] The Circuit Court granted the continuance but took the motion to quash under advisement. The trial was set for February 13. Dickey's counsel filed another motion for a continuance, dated February 12, stating that one of the witnesses could not be located and that more time was needed.[6] The court denied the motion and, before the commencement of the trial on the next day, denied the motion to quash. At the trial Mrs. Clark testified from memory as to the description she had given the deputy after the crime, that she had identified Dickey in the Jackson County Jail, and that he was the robber. She stated that she could not recall having seen Dickey before the night of the crime. Deputy Martin also testified concerning the identification at the Jackson jail, noting that the jailer who had been present when Mrs. Clark viewed Dickey had since died. He further testified as to the description of the robber Mrs. Clark had given him, admitting that his memory was hazy and that the notes he *36 had made while investigating the crime had long since been destroyed. The record indicates that Dickey's defense consisted of his claim that he was in Waycross, Georgia, at the time of the crime and of testimony of another witness that he and Dickey had visited the victimized motel several times. From this latter evidence the defense argued the unlikelihood that Dickey would commit robbery at a place where he was known and would be recognized. Dickey was convicted and sentenced to 10 years' imprisonment in the State Penitentiary, the sentence to run consecutively with the federal term he was then serving. He then sought review in the Florida District Court of Appeal, alleging that the trial judge had erred in not granting his motion to quash. That court affirmed the conviction without opinion, saying only that "appellant. . . failed to demonstrate reversible error . . . ." 215 So. 2d 772, 773. II The record in this case shows that petitioner was available to the State at all times during the seven-year period before his trial. The State suggests no tenable reason for deferring the trial in the face of petitioner's diligent and repeated efforts by motions in the state court in 1962, 1963, and 1966 to secure a prompt trial. In the interval two witnesses died and another potential defense witness is alleged to have become unavailable. Police records of possible relevance have been lost or destroyed. Florida argues that the right of the petitioner under the Federal Constitution did not arise until this Court's decision in Klopfer v. North Carolina, 386 U.S. 213 (1967), and that not until Smith v. Hooey, 393 U.S. 374 (1969), was there a constitutional requirement that the *37 State press for trial of a defendant in custody in another jurisdiction. As noted by the Court in Smith v. Hooey, the holding of the Klopfer case was that "the Fourteenth Amendment, [applying] the Sixth Amendment right to a speedy trial is enforceable against the States as `one of the most basic rights preserved by our Constitution.' " 393 U.S., at 374-375. From this the Court went on to hold that on demand a State had a duty to make a diligent and good-faith effort to secure the presence of the accused from the custodial jurisdiction and afford him a trial. In Smith we remanded the case to the state court without deciding whether the defendant, when available for trial in the state court, would be required to show prejudice arising from the delay. Here the State of Florida brought the petitioner back to Florida, tried, and convicted him. Petitioner's challenge is directly to the power of the State to try him after the lapse of almost eight years during which he repeatedly demanded and was denied a trial. The right to a speedy trial is not a theoretical or abstract right but one rooted in hard reality in the need to have charges promptly exposed. If the case for the prosecution calls on the accused to meet charges rather than rest on the infirmities of the prosecution's case, as is the defendant's right, the time to meet them is when the case is fresh. Stale claims have never been favored by the law, and far less so in criminal cases.[7] Although a great many accused persons seek to put *38 off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial.[8] This is brought sharply into focus when, as here, the accused presses for an early confrontation with his accusers and with the State. Crowded dockets, the lack of judges or lawyers, and other factors no doubt make some delays inevitable. Here, however, no valid reason for the delay existed; it was exclusively for the convenience of the State. On this record the delay with its consequent prejudice is intolerable as a matter of fact and impermissible as a matter of law. In addition to exerting every effort to require the State to try him, there is present in this record abundant evidence of actual prejudice to petitioner in the death of two potential witnesses, unavailability of another, and the loss of police records. This is sufficient to make a remand on that issue unnecessary.[9] We therefore reverse and remand to the District Court of Appeal of Florida, First District, with directions to vacate the judgment appealed from and direct the dismissal of any proceedings arising out of the charges on which that judgment was based. MR.

We granted the writ in this case to consider the petitioner's claim that he had been denied his Sixth Amendment right to a speedy trial: he was tried in on charges of alleged criminal acts committed in 1960. *31 Prior to the commencement of his jury trial in for armed robbery petitioner, Robert Dickey, moved to quash the information against him, alleging, inter alia, that if he were tried he would be denied his right to a speedy trial, as guaranteed by 11 of the Declaration of Rights of the Florida Constitution[1] and the Sixth Amendment to the United States Constitution.[2] The motion was denied. Dickey was subsequently tried and convicted. He appealed to the Florida District Court of Appeal, First District, alleging error in the trial court's denial of his motion to quash. The Court of Appeal affirmed the conviction in a brief order. We granted Dickey leave to proceed in forma pauperis and granted his petition for a writ of certiorari. We reverse. I At about 2 o'clock in the morning of June 28, 1960, Clark's Motor Court in Quincy, Gadsden County, Florida, was robbed by a lone armed robber. The victim and only eyewitness was Mrs. Ralph Clark. She immediately reported the crime to Deputy County Sheriff Martin and gave a description of the robber to him; this description was routinely recorded for later reference. Shortly thereafter, Dickey was taken into custody on federal bank robbery charges and placed in the *32 Jackson County Jail, Marianna, Florida. Apparently the description Mrs. Clark had given Deputy Martin was sufficiently similar to Dickey that on July 1, 1960, he showed Mrs. Clark a picture of Dickey. Mrs. Clark and Deputy Martin then went to the Jackson County Jail where she identified Dickey as her assailant. Later that day Deputy Martin secured an arrest warrant charging Dickey with armed robbery.[3] From July 1, 1960, to September 2, 1960, Dickey remained in the Jackson County Jail. The Gadsden County Sheriff's Office knew of his whereabouts but made no effort to serve the warrant or gain custody for the purpose of trial. On September 2, 1960, Dickey, having been convicted on federal charges, was removed from Florida, first to Leavenworth and then Alcatraz. On the same day, the Gadsden County warrant was sent to the Chief United States Marshal, Atlanta, Georgia, and a formal detainer was lodged against Dickey. In 1962 Dickey filed in the Gadsden County Circuit Court a petition styled "writ of habeas corpus ad prosequendum" naming the State Attorney for Gadsden County as respondent and asking that he be required to show cause why he should not be ordered to either take the steps necessary to obtain Dickey's presence in Florida for trial or withdraw the detainer for failure to provide Dickey with a speedy trial, as guaranteed by the Sixth Amendment. The Circuit Court, in an order dated December 1, 1962, denied the petition on several grounds: first, that Dickey's unavailability for trial in Florida was the result of his voluntary commission of a federal crime, the natural consequence of which was incarceration in a federal penal institution; second, that *33 the speedy-trial issue was prematurely raised because only at the time of trial can a determination be made as to whether the delay has made a fair trial impossible; third, that even if the denial of an immediate trial was violative of Dickey's Sixth Amendment rights, it was a deprivation caused wholly by the federal officials having custody of his person, and any relief had to flow from those authorities. Dickey filed papers raising substantially the same contentions on two later occasions, April 1, 1963, and March 28, 1966. The Circuit Court denied both petitions, simply citing the prior denial dated December 1, 1962. Dickey next petitioned the Supreme Court of Florida to issue a writ of mandamus ordering the Circuit Court to either secure his return for trial or withdraw the detainer against him. The Circuit Court judge filed as a return the orders of December 1962, April 1963, and April 1966. Thereafter the Attorney General of Florida filed a brief in opposition arguing that Dickey should not be heard to complain that he had not received a speedy trial in Gadsden County because his unavailability was caused by the voluntary commission of criminal acts. Counsel was appointed for Dickey and the Florida Supreme Court heard argument on the petition for mandamus. The Florida Supreme Court rejected the State's claim that a person incarcerated for one crime has no right to demand his constitutionally guaranteed right to a speedy trial on another charge. The court held that incarceration does not make the accused unavailable since there have long been means by which one jurisdiction, for the purpose of a criminal trial, can obtain custody of a prisoner held by another. That court also held that the prisoner's demand upon the accusing State gives rise *34 to an obligation to act affirmatively to secure his presence for trial; failure of the accusing State to promptly obtain the defendant from the detaining sovereign might invalidate any judgment ultimately obtained, if the time lapse is sufficiently great and is not excused.[4] The Florida Supreme Court concluded that once the discretionary decision to charge a prisoner with a crime has been made, an obligation arises to act diligently toward procuring the accused for trial and that obligation is a ministerial duty subject to a writ of mandamus. However, since Dickey had named the Circuit Court as the respondent, rather than the appropriate State Attorney, the petition was dismissed without prejudice to his right to file another petition naming the appropriate respondent. On September 1, Dickey filed with the Circuit Court a motion to have the court order the Gadsden County State Attorney to dismiss the detainer warrant because he had been denied his right to a speedy trial. The State Attorney then filed a petition for a writ of habeas corpus ad prosequendum to secure Dickey's return to Florida for trial. On December 15, the Circuit Court issued the writ, and on the same day the State Attorney filed an information charging Dickey with the armed robbery allegedly committed in 1960. Dickey was returned to Florida on January 23, On January 30, the day before the trial was to begin, Dickey's appointed counsel filed a motion for a continuance so that the whereabouts of two witnesses could *35 be determined, and a motion asking that the information be quashed on the ground that the delay of over seven years amounted to a denial of Dickey's right to a speedy trial. The motion alleged that the delay was sufficiently prejudicial to make a fair trial impossible.[5] The Circuit Court granted the continuance but took the motion to quash under advisement. The trial was set for February 13. Dickey's counsel filed another motion for a continuance, dated February 12, stating that one of the witnesses could not be located and that more time was needed.[6] The court denied the motion and, before the commencement of the trial on the next day, denied the motion to quash. At the trial Mrs. Clark testified from memory as to the description she had given the deputy after the crime, that she had identified Dickey in the Jackson County Jail, and that he was the robber. She stated that she could not recall having seen Dickey before the night of the crime. Deputy Martin also testified concerning the identification at the Jackson jail, noting that the jailer who had been present when Mrs. Clark viewed Dickey had since died. He further testified as to the description of the robber Mrs. Clark had given him, admitting that his memory was hazy and that the notes he *36 had made while investigating the crime had long since been destroyed. The record indicates that Dickey's defense consisted of his claim that he was in Waycross, Georgia, at the time of the crime and of testimony of another witness that he and Dickey had visited the victimized motel several times. From this latter evidence the defense argued the unlikelihood that Dickey would commit robbery at a place where he was known and would be recognized. Dickey was convicted and sentenced to 10 years' imprisonment in the State Penitentiary, the sentence to run consecutively with the federal term he was then serving. He then sought review in the Florida District Court of Appeal, alleging that the trial judge had erred in not granting his motion to quash. That court affirmed the conviction without opinion, saying only that "appellant. failed to demonstrate reversible error" II The record in this case shows that petitioner was available to the State at all times during the seven-year period before his trial. The State suggests no tenable reason for deferring the trial in the face of petitioner's diligent and repeated efforts by motions in the state court in 1962, 1963, and 1966 to secure a prompt trial. In the interval two witnesses died and another potential defense witness is alleged to have become unavailable. Police records of possible relevance have been lost or destroyed. Florida argues that the right of the petitioner under the Federal Constitution did not arise until this Court's decision in and that not until was there a constitutional requirement that the *37 State press for trial of a defendant in custody in another jurisdiction. As noted by the Court in the holding of the Klopfer case was that "the Fourteenth Amendment, [applying] the Sixth Amendment right to a speedy trial is enforceable against the States as `one of the most basic rights preserved by our Constitution.' " -375. From this the Court went on to hold that on demand a State had a duty to make a diligent and good-faith effort to secure the presence of the accused from the custodial jurisdiction and afford him a trial. In Smith we remanded the case to the state court without deciding whether the defendant, when available for trial in the state court, would be required to show prejudice arising from the delay. Here the State of Florida brought the petitioner back to Florida, tried, and convicted him. Petitioner's challenge is directly to the power of the State to try him after the lapse of almost eight years during which he repeatedly demanded and was denied a trial. The right to a speedy trial is not a theoretical or abstract right but one rooted in hard reality in the need to have charges promptly exposed. If the case for the prosecution calls on the accused to meet charges rather than rest on the infirmities of the prosecution's case, as is the defendant's right, the time to meet them is when the case is fresh. Stale claims have never been favored by the law, and far less so in criminal cases.[7] Although a great many accused persons seek to put *38 off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial.[8] This is brought sharply into focus when, as here, the accused presses for an early confrontation with his accusers and with the State. Crowded dockets, the lack of judges or lawyers, and other factors no doubt make some delays inevitable. Here, however, no valid reason for the delay existed; it was exclusively for the convenience of the State. On this record the delay with its consequent prejudice is intolerable as a matter of fact and impermissible as a matter of law. In addition to exerting every effort to require the State to try him, there is present in this record abundant evidence of actual prejudice to petitioner in the death of two potential witnesses, unavailability of another, and the loss of police records. This is sufficient to make a remand on that issue unnecessary.[9] We therefore reverse and remand to the District Court of Appeal of Florida, First District, with directions to vacate the judgment appealed from and direct the dismissal of any proceedings arising out of the charges on which that judgment was based. MR.

Justice Brennan

dissenting

United States v. Washington

https://www.courtlistener.com/opinion/109659/united-states-v-washington/

https://www.courtlistener.com/api/rest/v3/clusters/109659/

1976-106

The general rule that a witness must affirmatively claim the privilege against compulsory self-incrimination must in my *192 view admit of an exception in the case of a grand jury witness whom the prosecutor interrogates with the express purpose of getting evidence upon which to base a criminal charge against him. In such circumstances, even warnings, before interrogation, of his right to silence do not suffice. The privilege is emptied of substance unless the witness is further advised by the prosecutor that he is a potential defendant. Only if the witness then nevertheless intentionally and intelligently waives his right to be free from compulsory self-incrimination and submits to further interrogation should use of his grand jury testimony against him be sanctioned. As I stated in United States v. Mandujano, 425 U.S. 564, 598-600 (1976) (concurring in judgment): "I would hold that, in the absence of an intentional and intelligent waiver by the individual of his known right to be free from compulsory self-incrimination, the Government may not call before a grand jury one whom it has probable cause—as measured by an objective standard— to suspect of committing a crime, and by use of judicial compulsion compel him to testify with regard to that crime. In the absence of such a waiver, the Fifth Amendment requires that any testimony obtained in this fashion be unavailable to the Government for use at trial. Such a waiver could readily be demonstrated by proof that the individual was warned prior to questioning that he is currently subject to possible criminal prosecution for the commission of a stated crime . . . ." In this case, although respondent Washington was advised of his rights to silence and to talk to a lawyer before he appeared before the grand jury, he was "only told that he was needed as a witness in prosecuting the two who were occupants of the van at the time of its impoundment." 328 A.2d 98, 100 (1974). He was never told that he was in danger of being indicted himself, even though "at the time of his grand jury appearance respondent was a potential defendant whose *193 indictment was considered likely by the prosecution." Ante, at 186 n. 4. The ancient privilege of a witness against being compelled to incriminate himself is precious to free men as a shield against high-handed and arrogant inquisitorial practices. It has survived centuries of controversies, periodically kindled by popular impatience that its protection sometimes allows the guilty to escape punishment. But it has endured as a wise and necessary protection of the individual against arbitrary power, and the price of occasional failures of justice is paid in the larger interest of general personal security. I would hold that a failure to warn the witness that he is a potential defendant is fatal to an indictment of him when it is made unmistakably to appear, as here, that the grand jury inquiry became an investigation directed against the witness and was pursued with the purpose of compelling him to give self-incriminating testimony upon which to indict him. I would further hold that without such prior warning and the witness' subsequent voluntary waiver of his privilege, there is such gross encroachment upon the witness' privilege as to render worthless the values protected by it unless the self-incriminating testimony is unavailable to the Government for use at any trial brought pursuant to even a valid indictment. It should be remarked that, of course, today's decision applies only to application of the privilege against self-incrimination secured by the Fifth Amendment to the United States Constitution.[*] The holding does not affect the authority of state courts to construe counterpart provisions of state constitutions—even identically phrased provisions—"to give the individual greater protection than is provided" by the *194 federal provision. State v. Johnson, 68 N. J. 349, 353, 346 A.2d 66, 67-68 (1975). See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). A number of state courts have recognized that a defendant or potential defendant called before a grand jury is privileged against the State's using his self-incriminating testimony to procure an indictment or using it to introduce against him at trial, even in the absence of an affirmative claim of his privilege against self-incrimination. See, e. g., People v. Laino, 10 N.Y. 2d 161, 176 N.E.2d 571 (1961); State v. Fary, 19 N. J. 431, 437-438, 117 A.2d 499, 503 (1955); Taylor v. Commonwealth, 274 Ky. 51, 118 S.W.2d 140 (1938); State v. Corteau, 198 Minn. 433, 270 N.W. 144 (1936); Culbreath v. State, 22 Ala. App. 143, 113 So. 465 (1927). See additional cases in Annot., Privilege Against Self-incrimination as to Testimony before Grand Jury, 38 A. L. R. 2d 225, 290-294 (1954). One court has specifically held that interrogating a potential defendant "under [the] guise of examining him as to the guilt of someone else" is a violation of the defendant's privilege against self-incrimination. People v. Cochran, 313 Ill. 508, 526, 145 N.E. 207, 214 (1924). See also Newman, The Suspect and the Grand Jury: A Need for Constitutional Protection, 11 U. Rich. L. Rev. 1 (1976); Comment, The Grand Jury Witness' Privilege Against Self-Incrimination, 62 Nw. U. L. Rev. 207, 223 (1967); Meshbesher, Right to Counsel before Grand Jury, 41 F. R. D. 189, 191 (1966). The rationale of these decisions—which I would find applicable to the case now before us—is that where the grand jury investigation is in fact a proceeding against the witness, or even if begun as a general investigation it becomes a proceeding against the witness, the encroachment upon the witness' privilege requires that a court deny to the prosecution the use of the witness' self-incriminating testimony.

The general rule that a witness must affirmatively claim the privilege against compulsory self-incrimination must in my *192 view admit of an exception in the case of a grand jury witness whom the prosecutor interrogates with the express purpose of getting evidence upon which to base a criminal charge against him. In such circumstances, even warnings, before interrogation, of his right to silence do not suffice. The privilege is emptied of substance unless the witness is further advised by the prosecutor that he is a potential defendant. Only if the witness then nevertheless intentionally and intelligently waives his right to be free from compulsory self-incrimination and submits to further interrogation should use of his grand jury testimony against him be sanctioned. As I stated in United : "I would hold that, in the absence of an intentional and intelligent waiver by the individual of his known right to be free from compulsory self-incrimination, the Government may not call before a grand jury one whom it has probable cause—as measured by an objective standard— to suspect of committing a crime, and by use of judicial compulsion compel him to testify with regard to that crime. In the absence of such a waiver, the Fifth Amendment requires that any testimony obtained in this fashion be unavailable to the Government for use at trial. Such a waiver could readily be demonstrated by proof that the individual was warned prior to questioning that he is currently subject to possible criminal prosecution for the commission of a stated crime" In this case, although respondent Washington was advised of his rights to silence and to talk to a lawyer before he appeared before the grand jury, he was "only told that he was needed as a witness in prosecuting the two who were occupants of the van at the time of its impoundment." He was never told that he was in danger of being indicted himself, even though "at the time of his grand jury appearance respondent was a potential defendant whose *193 indictment was considered likely by the prosecution." Ante, at 186 n. 4. The ancient privilege of a witness against being compelled to incriminate himself is precious to free men as a shield against high-handed and arrogant inquisitorial practices. It has survived centuries of controversies, periodically kindled by popular impatience that its protection sometimes allows the guilty to escape punishment. But it has endured as a wise and necessary protection of the individual against arbitrary power, and the price of occasional failures of justice is paid in the larger interest of general personal security. I would hold that a failure to warn the witness that he is a potential defendant is fatal to an indictment of him when it is made unmistakably to appear, as here, that the grand jury inquiry became an investigation directed against the witness and was pursued with the purpose of compelling him to give self-incriminating testimony upon which to indict him. I would further hold that without such prior warning and the witness' subsequent voluntary waiver of his privilege, there is such gross encroachment upon the witness' privilege as to render worthless the values protected by it unless the self-incriminating testimony is unavailable to the Government for use at any trial brought pursuant to even a valid indictment. It should be remarked that, of course, today's decision applies only to application of the privilege against self-incrimination secured by the Fifth Amendment to the United States Constitution.[*] The holding does not affect the authority of state courts to construe counterpart provisions of state constitutions—even identically phrased provisions—"to give the individual greater protection than is provided" by the *194 federal provision. See generally Brennan, State Constitutions and the Protection of Individual Rights, A number of state courts have recognized that a defendant or potential defendant called before a grand jury is privileged against the State's using his self-incriminating testimony to procure an indictment or using it to introduce against him at trial, even in the absence of an affirmative claim of his privilege against self-incrimination. See, e. g., ; ; ; ; See additional cases in Annot., Privilege Against Self-incrimination as to Testimony before Grand Jury, 38 A. L. R. 2d 225, 290-294 (1954). One court has specifically held that interrogating a potential defendant "under [the] guise of examining him as to the guilt of someone else" is a violation of the defendant's privilege against self-incrimination. See also Newman, The Suspect and the Grand Jury: A Need for Constitutional Protection, ; Comment, The Grand Jury Witness' Privilege Against Self-Incrimination, ; Meshbesher, Right to Counsel before Grand Jury, 41 F. R. D. 189, 191 (1966). The rationale of these decisions—which I would find applicable to the case now before us—is that where the grand jury investigation is in fact a proceeding against the witness, or even if begun as a general investigation it becomes a proceeding against the witness, the encroachment upon the witness' privilege requires that a court deny to the prosecution the use of the witness' self-incriminating testimony.

Justice Kennedy

majority

Dada v. Mukasey

https://www.courtlistener.com/opinion/145792/dada-v-mukasey/

https://www.courtlistener.com/api/rest/v3/clusters/145792/

2007-056

We decide in this case whether an alien who has requested and been granted voluntary departure from the United States, a form of discretionary relief that avoids certain statutory penalties, must adhere to that election and depart within the time prescribed, even if doing so causes the alien to forgo a ruling on a pending, unresolved motion to reopen the removal proceedings. The case turns upon the interaction of relevant provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009-546 (IIRIRA or Act). The Act provides that every alien ordered removed from the United States has a right to file one motion to reopen his or her removal proceedings. See 8 U.S.C. § 1229a(c)(7) (2000 ed., Supp. V). The statute also provides, however, that if the alien's request for voluntary departure is granted after he or she is found removable, the alien is required to depart within the period prescribed by immigration officials, which cannot exceed 60 days. See § 1229c(b)(2) (2000 ed.). Failure to depart within the prescribed period renders the alien ineligible for certain forms of relief, including adjustment of status, for a period of 10 years. § 1229c(d)(1) (2000 ed., Supp. V). Pursuant to regulation, however, departure has the effect of withdrawing the motion to reopen. See 8 CFR § 1003.2(d) (2007). *2311 Without some means, consistent with the Act, to reconcile the two commands — one directing voluntary departure and the other directing termination of the motion to reopen if an alien departs the United States — an alien who seeks reopening has two poor choices: The alien can remain in the United States to ensure the motion to reopen remains pending, while incurring statutory penalties for overstaying the voluntary departure date; or the alien can avoid penalties by prompt departure but abandon the motion to reopen. The issue is whether Congress intended the statutory right to reopen to be qualified by the voluntary departure process. The alien, who is petitioner here, urges that filing a motion to reopen tolls the voluntary departure period pending the motion's disposition. We reject this interpretation because it would reconfigure the voluntary departure scheme in a manner inconsistent with the statutory design. We do not have the authority to interpret the statute as petitioner suggests. Still, the conflict between the right to file a motion to reopen and the provision requiring voluntary departure no later than 60 days remains untenable if these are the only two choices available to the alien. Absent a valid regulation resolving the dilemma in a different way, we conclude the alien must be permitted an opportunity to withdraw the motion for voluntary departure, provided the request is made before the departure period expires. Petitioner attempted to avail himself of this opportunity below. The Court of Appeals for the Fifth Circuit did not disturb the Board of Immigration Appeals' (BIA or Board) denial of petitioner's request to withdraw the voluntary departure election. We now reverse its decision and remand the case. I Petitioner Samson Taiwo Dada, a native and citizen of Nigeria, came to the United States in April 1998 on a temporary nonimmigrant visa. He overstayed it. In 1999, petitioner alleges, he married an American citizen. Petitioner's wife filed an I-130 Petition for Alien Relative on his behalf. The necessary documentary evidence was not provided, however, and the petition was denied in February 2003. In 2004, the Department of Homeland Security (DHS) charged petitioner with being removable under § 237(a)(1)(B) of the Immigration and Nationality Act (INA), 66 Stat. 201, as amended, 8 U.S.C. § 1227(a)(1)(B) (2000 ed., Supp. V), for overstaying his visa. Petitioner's wife then filed a second I-130 petition. The Immigration Judge (IJ) denied petitioner's request for a continuance pending adjudication of the newly filed I-130 petition and noted that those petitions take an average of about three years to process. The IJ found petitioner to be removable but granted the request for voluntary departure under § 1229c(b) (2000 ed.). The BIA affirmed on November 4, 2005, without a written opinion. It ordered petitioner to depart within 30 days or suffer statutory penalties, including a civil fine of not less than $1,000 and not more than $5,000 and ineligibility for relief under §§ 240A, 240B, 245, 248, and 249 of the INA for a period of 10 years. See App. to Pet. for Cert. 5-6. Two days before expiration of the 30-day period, on December 2, 2005, petitioner sought to withdraw his request for voluntary departure. At the same time he filed with the BIA a motion to reopen removal proceedings under 8 U.S.C. § 1229a(c)(7) (2000 ed., Supp. V). He contended that his motion recited new and material evidence demonstrating a bona fide marriage and that his case should be continued until the second I-130 petition was resolved. *2312 On February 8, 2006, more than two months after the voluntary departure period expired, the BIA denied the motion to reopen on the ground that petitioner had overstayed his voluntary departure period. Under § 240B(d) of the INA, 8 U.S.C. § 1229c(d) (2000 ed. and Supp. V), the BIA reasoned, an alien who has been granted voluntary departure but fails to depart in a timely fashion is statutorily barred from applying for and receiving certain forms of discretionary relief, including adjustment of status. See App. to Pet. for Cert. 3-4. The BIA did not address petitioner's motion to withdraw his request for voluntary departure. The Court of Appeals for the Fifth Circuit affirmed. Dada v. Gonzales, 207 Fed. Appx. 425 (2006) (per curiam). Relying on its decision in Banda-Ortiz v. Gonzales, 445 F.3d 387 (2006), the court held that the BIA's reading of the applicable statutes as rendering petitioner ineligible for relief was reasonable. The Fifth Circuit joined the First and Fourth Circuits in concluding that there is no automatic tolling of the voluntary departure period. See Chedad v. Gonzales, 497 F.3d 57 (C.A.1 2007); Dekoladenu v. Gonzales, 459 F.3d 500 (C.A.4 2006). Four other Courts of Appeals have reached the opposite conclusion. See, e.g., Kanivets v. Gonzales, 424 F.3d 330 (C.A.3 2005); Sidikhouya v. Gonzales, 407 F.3d 950 (C.A.8 2005); Azarte v. Ashcroft, 394 F.3d 1278 (C.A.9 2005); Ugokwe v. United States Atty. Gen., 453 F.3d 1325 (C.A.11 2006). We granted certiorari, see Dada v. Keisler, 551 U.S. ___, 128 S. Ct. 36, 168 L. Ed. 2d 805 (2007), to resolve the disagreement among the Court of Appeals. After oral argument we ordered supplemental briefing, see 552 U.S. ___, 128 S. Ct. 1116, 169 L. Ed. 2d 805 (2008), to address whether an alien may withdraw his request for voluntary departure before expiration of the departure period. Also after oral argument, on January 10, 2008, petitioner's second I-130 application was denied by the IJ on the ground that his marriage is a sham, contracted solely to obtain immigration benefits. II Resolution of the questions presented turns on the interaction of two statutory schemes — the statutory right to file a motion to reopen in removal proceedings; and the rules governing voluntary departure. A Voluntary departure is a discretionary form of relief that allows certain favored aliens — either before the conclusion of removal proceedings or after being found deportable — to leave the country willingly. Between 1927 to 2005, over 42 million aliens were granted voluntary departure; almost 13 million of those departures occurred between 1996 and 2005 alone. See Dept. of Homeland Security, Aliens Expelled: Fiscal Years 1892 to 2005, Table 38 (2005), online at http://www.dhs.gov/ ximgtn/statistics/ publications/YrBk05En.shtm (all Internet materials as visited June 13, 2008, and available in Clerk of Court's case file). Voluntary departure was "originally developed by administrative officers, in the absence of a specific mandate in the statute." 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 74.02[1], p. 74-15 (rev. ed.2007) (hereinafter Gordon). The practice was first codified in the Alien Registration Act of 1940, § 20, 54 Stat. 671. The Alien Registration Act amended § 19 of the Immigration Act of Feb. 5, 1917, 39 Stat. 889, to provide that an alien "deportable under any law of the United States and who has proved good moral character for the preceding *2313 five years" may be permitted by the Attorney General to "depart the United States to any country of his choice at his own expense, in lieu of deportation." § 20(c), 54 Stat. 672. In 1996, perhaps in response to criticism of immigration officials who had expressed frustration that aliens granted voluntary departure were "permitted to continue their illegal presence in the United States for months, and even years," Letter from Benjamin G. Habberton, Acting Commissioner on Immigration and Naturalization, to the Executive Director of the President's Commission on Immigration and Naturalization, reprinted in Hearings before the House of Representatives Committee on the Judiciary, 82d Cong., 2d Sess., 1954 (Comm. Print 1952), Congress curtailed the period of time during which an alien may remain in the United States pending voluntary departure. The Act, as pertinent to voluntary departures requested at the conclusion of removal proceedings, provides: "The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense if, at the conclusion of a proceeding under section 1229a of this title, the immigration judge enters an order granting voluntary departure in lieu of removal and finds that — "(A) the alien has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served under section 1229(a) of this title; "(B) the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the alien's application for voluntary departure; "(C) the alien is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4) of this title; and "(D) the alien has established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so." 8 U.S.C. § 1229c(b)(1). See also § 1229c(a)(1) ("The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense under this subsection" in lieu of being subject to removal proceedings or prior to the completion of those proceedings; the alien need not meet the requirements of § 1229c(b)(1) if removability is conceded). When voluntary departure is requested at the conclusion of removal proceedings, as it was in this case, the statute provides a voluntary departure period of not more than 60 days. See § 1229c(b)(2). The alien can receive up to 120 days if he or she concedes removability and requests voluntary departure before or during removal proceedings. See § 1229c(a)(2)(A). Appropriate immigration authorities may extend the time to depart but only if the voluntary departure period is less than the statutory maximum in the first instance. The voluntary departure period in no event may exceed 60 or 120 days for § 1229c(b) and § 1229c(a) departures, respectively. See 8 CFR § 1240.26(f) (2007) ("Authority to extend the time within which to depart voluntarily specified initially by an immigration judge or the Board is only within the jurisdiction of the district director, the Deputy Executive Associate Commissioner for Detention and Removal, or the Director of the Office of Juvenile Affairs .... In no event can the total period of time, including any extension, exceed 120 days or 60 days as set forth in section 240B of the Act"). *2314 The voluntary departure period typically does not begin to run until administrative appeals are concluded. See 8 U.S.C. § 1101(47)(B) ("The order ... shall become final upon the earlier of — (i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals"); § 1229c(b)(1) (Attorney General may permit voluntary departure at conclusion of removal proceedings); see also 8 CFR § 1003.6(a) (2007) ("[T]he decision in any proceeding ... from which an appeal to the Board may be taken shall not be executed during the time allowed for the filing of an appeal ... "). In addition some Federal Courts of Appeals have found that they may stay voluntary departure pending consideration of a petition for review on the merits. See, e.g., Thapa v. Gonzales, 460 F.3d 323, 329-332 (C.A.2 2006); Obale v. Attorney General of United States, 453 F.3d 151, 155-157 (C.A.3 2006). But see Ngarurih v. Ashcroft, 371 F.3d 182, 194 (C.A.4 2004). This issue is not presented here, however, and we leave its resolution for another day. Voluntary departure, under the current structure, allows the Government and the alien to agree upon a quid pro quo. From the Government's standpoint, the alien's agreement to leave voluntarily expedites the departure process and avoids the expense of deportation — including procuring necessary documents and detaining the alien pending deportation. The Government also eliminates some of the costs and burdens associated with litigation over the departure. With the apparent purpose of assuring that the Government attains the benefits it seeks, the Act imposes limits on the time for voluntary departure, see supra, at 2313, and prohibits judicial review of voluntary departure decisions, see 8 U.S.C. §§ 1229c(f) and 1252(a)(2)(B)(i). Benefits to the alien from voluntary departure are evident as well. He or she avoids extended detention pending completion of travel arrangements; is allowed to choose when to depart (subject to certain constraints); and can select the country of destination. And, of great importance, by departing voluntarily the alien facilitates the possibility of readmission. The practice was first justified as involving "no warrant of deportation ... so that if [the alien reapplies] for readmission in the proper way he will not be barred." 2 National Commission on Law Observance and Enforcement: Report on the Enforcement of the Deportation Laws of the United States 57, 102-103 (1931) (Report No. 5). The current statute likewise allows an alien who voluntarily departs to sidestep some of the penalties attendant to deportation. Under the current Act, an alien involuntarily removed from the United States is ineligible for readmission for a period of 5, 10, or 20 years, depending upon the circumstances of removal. See 8 U.S.C. § 1182(a)(9)(A)(i) ("Any alien who has been ordered removed under section 1225(b)(1) of this title or at the end of proceedings under section 1229a of this title initiated upon the alien's arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal ...) is inadmissible"); § 1182(a)(9)(A)(ii) ("Any alien not described in clause (i) who — (I) has been ordered removed under section [240] or any other provision of law, or (II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien's departure or removal ... is inadmissible"). An alien who makes a timely departure under a grant of voluntary departure, on the other hand, is not subject to these restrictions — although he *2315 or she otherwise may be ineligible for readmission based, for instance, on an earlier unlawful presence in the United States, see § 1182(a)(9)(B)(i). B A motion to reopen is a form of procedural relief that "asks the Board to change its decision in light of newly discovered evidence or a change in circumstances since the hearing." 1 Gordon § 3.05[8][c]. Like voluntary departure, reopening is a judicial creation later codified by federal statute. An early reference to the procedure was in 1916, when a Federal District Court addressed an alien's motion to reopen her case to provide evidence of her marriage to a United States citizen. See Ex parte Chan Shee, 236 F. 579 (N.D.Cal. 1916); see also Chew Hoy Quong v. White, 244 F. 749, 750 (C.A.9 1917) (addressing an application to reopen to correct discrepancies in testimony). "The reopening of a case by the immigration authorities for the introduction of further evidence" was treated then, as it is now, as "a matter for the exercise of their discretion"; where the alien was given a "full opportunity to testify and to present all witnesses and documentary evidence at the original hearing," judicial interference was deemed unwarranted. Wong Shong Been v. Proctor, 79 F.2d 881, 883 (C.A.9 1935). In 1958, when the BIA was established, the Attorney General promulgated a rule for the reopening and reconsideration of removal proceedings, 8 CFR § 3.2, upon which the current regulatory provision is based. See 23 Fed.Reg. 9115, 9118-9119 (1958), final rule codified at 8 CFR § 3.2 (1959) ("The Board may on its own motion reopen or reconsider any case in which it has rendered a decision" upon a "written motion"); see also Board of Immigration Appeals: Powers; and Reopening or Reconsideration of Cases, 27 Fed.Reg. 96-97 (Jan. 5, 1962). Until 1996, there was no time limit for requesting the reopening of a case due to the availability of new evidence. Then, in 1990, "fear[ful] that deportable or excludable aliens [were] try[ing] to prolong their stays in the U.S. by filing one type of discretionary relief ... after another in immigration proceedings," Justice Dept. Finds Aliens Not Abusing Requests for Relief, 68 No. 27 Interpreter Releases 907 (July 22, 1991), Congress ordered the Attorney General to "issue regulations with respect to ... the period of time in which motions to reopen ... may be offered in deportation proceedings," including "a limitation on the number of such motions that may be filed and a maximum time period for the filing of such motions," § 545(d)(1), 104 Stat. 5066. The Attorney General found little evidence of abuse, concluding that requirements for reopening are a disincentive to bad faith filings. See 68 Interpreter Releases, supra. Because "Congress ... neither rescinded [n]or amended its mandate to limit the number and time frames of motions," however, the Department of Justice (DOJ) issued a regulation imposing new time limits and restrictions on filings. The new regulation allowed the alien to file one motion to reopen within 90 days. Executive Office for Immigration Review; Motions and Appeals in Immigration Proceedings, 61 Fed. Reg. 18900, 18901, 18905 (1996); see 8 CFR § 3.2(c) (1996). With the 1996 enactment of the Act, Congress adopted the recommendations of the DOJ with respect to numerical and time limits. The current provision governing motions to reopen states: "(A) In general "An alien may file one motion to reopen proceedings under this section .... "(B) Contents *2316 "The motion to reopen shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material. "(C) Deadline (i) "In general "Except as provided in this subparagraph, the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal." 8 U.S.C. § 1229a(c)(7) (2000 ed., Supp.V). To qualify as "new," § 1229a(c)(7)(B), the facts must be "material" and of the sort that "could not have been discovered or presented at the former hearing," 8 CFR § 1003.2(c)(1) (2007); 1 Gordon § 3.05[8][c] ("Evidence is not previously unavailable merely because the movant chose not to testify or to present evidence earlier, or because the IJ refused to admit the evidence"). There are narrow exceptions to the 90-day filing period for asylum proceedings and claims of battered spouses, children, and parents, see 8 U.S.C. §§ 1229a(c)(7)(C)(ii), (iv) (2000 ed., Supp. V), which are not applicable here. The Act, to be sure, limits in significant ways the availability of the motion to reopen. It must be noted, though, that the Act transforms the motion to reopen from a regulatory procedure to a statutory form of relief available to the alien. Nowhere in § 1229c(b) or § 1229a(c)(7) did Congress discuss the impact of the statutory right to file a motion to reopen on a voluntary departure agreement. And no legislative history indicates what some Members of Congress might have intended with respect to the motion's status once the voluntary departure period has elapsed. But the statutory text is plain insofar as it guarantees to each alien the right to file "one motion to reopen proceedings under this section." § 1229a(c)(7)(A) (2000 ed., Supp. V). III The Government argues that, by requesting and obtaining permission to voluntarily depart, the alien knowingly surrenders the opportunity to seek reopening. See Brief for Respondent 29-30. Further, according to the Government, petitioner's proposed rule for tolling the voluntary departure period would undermine the "carefully crafted rules governing voluntary departure," including the statutory directive that these aliens leave promptly. Id., at 18, 46-47. To be sure, 8 U.S.C. § 1229c(b)(2) contains no ambiguity: The period within which the alien may depart voluntarily "shall not be valid for a period exceeding 60 days." See also 8 CFR § 1240.26(f) (2007) ("In no event can the total period of time, including any extension, exceed" the statutory periods prescribed by 8 U.S.C. § 1229c(a) and § 1229c(b)); § 1229c(d) (2000 ed. and Supp. V) (imposing statutory penalties for failure to depart). Further, § 1229a(c)(7) does not forbid a scheme under which an alien knowingly relinquishes the right to seek reopening in exchange for other benefits, including those available to the alien under the voluntary departure statute. That does not describe this case, however. Nothing in the statutes or past usage with respect to voluntary departure or motions to reopen indicates they cannot coexist. Neither § 1229a(c)(7) nor § 1229c(b)(2) says anything about the filing of a motion to reopen by an alien who has requested and been granted the opportunity to voluntarily depart. And there is no other statutory language that would place the alien on notice of an inability to seek the case's reopening in the event of newly discovered evidence or changed circumstances *2317 bearing upon eligibility for relief. In reading a statute we must not "look merely to a particular clause," but consider "in connection with it the whole statute." Kokoszka v. Belford, 417 U.S. 642, 650, 94 S. Ct. 2431, 41 L. Ed. 2d 374 (1974) (quoting Brown v. Duchesne, 19 How. 183, 194, 15 L. Ed. 595 (1857); internal quotation marks omitted); see also Gozlon-Peretz v. United States, 498 U.S. 395, 407, 111 S. Ct. 840, 112 L. Ed. 2d 919 (1991) ("`In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy'" (quoting Crandon v. United States, 494 U.S. 152, 158, 110 S. Ct. 997, 108 L. Ed. 2d 132 (1990))); United States v. Heirs of Boisdore, 8 How. 113, 122, 12 L. Ed. 1009 (1850) ("[W]e must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy"). Reading the Act as a whole, and considering the statutory scheme governing voluntary departure alongside the statutory right granted to the alien by 8 U.S.C. § 1229a(c)(7)(A) (2000 ed., Supp. V) to pursue "one motion to reopen proceedings," the Government's position that the alien is not entitled to pursue a motion to reopen if the alien agrees to voluntarily depart is unsustainable. It would render the statutory right to seek reopening a nullity in most cases of voluntary departure. (And this group is not insignificant in number; between 2002 and 2006, 897,267 aliens were found removable, of which 122,866, or approximately 13.7%, were granted voluntary departure. See DOJ, Executive Office for Immigration Review, FY 2006 Statistical Year Book, at Q 1 (Feb.2007).) It is foreseeable, and quite likely, that the time allowed for voluntary departure will expire long before the BIA issues a decision on a timely filed motion to reopen. See Proposed Rules, DOJ, Executive Office for Immigration Review, Voluntary Departure: Effect of a Motion to Reopen or Reconsider or a Petition for Review, 72 Fed.Reg. 67674, 67677, and n. 2 (2007) ("As a practical matter, it is often the case that an immigration judge or the Board cannot reasonably be expected to adjudicate a motion to reopen or reconsider during the voluntary departure period"). These practical limitations must be taken into account. In the present case the BIA denied petitioner's motion to reopen 68 days after he filed the motion — and 66 days after his voluntary departure period had expired. Although the record contains no statistics on the average disposition time for motions to reopen, the number of BIA proceedings has increased over the last two decades, doubling between 1992 and 2000 alone; and, as a result, the BIA's backlog has more than tripled, resulting in a total of 63,763 undecided cases in 2000. See Dorsey & Whitney LLP, Study Conducted for: the American Bar Association Commission on Immigration Policy, Practice and Pro Bono Re: Board of Immigration Appeals: Procedural Reforms to Improve Case Management 13 (2003), online at http://www.dorsey. com/files/upload/DorseyStudyABA_8mgPDF.pdf. Since 2000, the BIA has adopted new procedures to reduce its backlog and shorten disposition times. In 2002, the DOJ introduced rules to improve case management, including an increase in the number of cases referred to a single Board member and use of summary disposition procedures for cases without basis in law or fact. See BIA: Procedural Reforms to Improve Case Management, 67 Fed.Reg. 54878 (2002), final rule codified at 8 CFR § 1003 (2006); see also § 1003.1(e)(4) (summary affirmance procedures). Nevertheless, on September 30, 2005, there were 33,063 cases pending before the BIA, 18% *2318 of which were more than a year old. See FY 2006 Statistical Year Book, supra, at U1. On September 30, 2006, approximately 20% of the cases pending had been filed during fiscal year 2005. See ibid. Whether an alien's motion will be adjudicated within the 60-day statutory period in all likelihood will depend on pure happenstance — namely, the backlog of the particular Board member to whom the motion is assigned. Cf. United States v. Wilson, 503 U.S. 329, 334, 112 S. Ct. 1351, 117 L. Ed. 2d 593 (1992) (arbitrary results are "not to be presumed lightly"). Absent tolling or some other remedial action by the Court, then, the alien who is granted voluntary departure but whose circumstances have changed in a manner cognizable by a motion to reopen is between Scylla and Charybdis: He or she can leave the United States in accordance with the voluntary departure order; but, pursuant to regulation, the motion to reopen will be deemed withdrawn. See 8 CFR § 1003.2(d); see also 23 Fed.Reg. 9115, 9118, final rule codified at 8 CFR § 3.2 (1958). Alternatively, if the alien wishes to pursue reopening and remains in the United States to do so, he or she risks expiration of the statutory period and ineligibility for adjustment of status, the underlying relief sought. See 8 U.S.C. § 1229c(d)(1) (2000 ed., Supp. V) (failure to timely depart renders alien "ineligible, for a period of 10 years," for cancellation of removal under § 240A, adjustment of status under § 245, change of nonimmigrant status under § 248, and registry under § 249 of the INA); see also App. to Pet. for Cert. 3-4 (treating petitioner's motion to reopen as forfeited for failure to depart). The purpose of a motion to reopen is to ensure a proper and lawful disposition. We must be reluctant to assume that the voluntary departure statute was designed to remove this important safeguard for the distinct class of deportable aliens most favored by the same law. See 8 U.S.C. §§ 1229c(a)(1), (b)(1)(C) (barring aliens who have committed, inter alia, aggravated felonies or terrorism offenses from receiving voluntary departure); § 1229c(b)(1)(B) (requiring an alien who obtains voluntary departure at the conclusion of removal proceedings to demonstrate "good moral character"). This is particularly so when the plain text of the statute reveals no such limitation. See Costello v. INS, 376 U.S. 120, 127-128, 84 S. Ct. 580, 11 L. Ed. 2d 559 (1964) (counseling long hesitation "before adopting a construction of [the statute] which would, with respect to an entire class of aliens, completely nullify a procedure so intrinsic a part of the legislative scheme"); see also Stone v. INS, 514 U.S. 386, 399, 115 S. Ct. 1537, 131 L. Ed. 2d 465 (1995) ("Congress might not have wished to impose on the alien" the difficult choice created by treating a motion to reopen as rendering the underlying order nonfinal for purposes of judicial review); INS v. St. Cyr, 533 U.S. 289, 320, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001) (recognizing "`the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien'" (quoting INS v. Gardoza-Fonseca, 480 U.S. 421, 449, 107 S. Ct. 1207, 94 L. Ed. 2d 434 (1987))). IV A It is necessary, then, to read the Act to preserve the alien's right to pursue reopening while respecting the Government's interest in the quid pro quo of the voluntary departure arrangement. Some solutions, though, do not conform to the statutory design. Petitioner, as noted, proposes automatic tolling of the voluntary departure period during the pendency *2319 of the motion to reopen. We do not find statutory authority for this result. Voluntary departure is an agreed-upon exchange of benefits, much like a settlement agreement. In return for anticipated benefits, including the possibility of readmission, an alien who requests voluntary departure represents that he or she "has the means to depart the United States and intends to do so" promptly. 8 U.S.C. § 1229c(b)(1)(D); 8 CFR §§ 1240.26(c)(1)(2) (2007); cf. § 1240.26(c)(3) (the judge may impose additional conditions to "ensure the alien's timely departure from the United States"). Included among the substantive burdens imposed upon the alien when selecting voluntary departure is the obligation to arrange for departure, and actually depart, within the 60-day period. Cf. United States v. Brockamp, 519 U.S. 347, 352, 117 S. Ct. 849, 136 L. Ed. 2d 818 (1997) (substantive limitations are not subject to equitable tolling). If the alien is permitted to stay in the United States past the departure date to wait out the adjudication of the motion to reopen, he or she cannot then demand the full benefits of voluntary departure; for the benefit to the Government — a prompt and costless departure — would be lost. Furthermore, it would invite abuse by aliens who wish to stay in the country but whose cases are not likely to be reopened by immigration authorities. B Although a statute or regulation might be adopted to resolve the dilemma in a different manner, as matters now stand the appropriate way to reconcile the voluntary departure and motion to reopen provisions is to allow an alien to withdraw the request for voluntary departure before expiration of the departure period. The DOJ, which has authority to adopt regulations relevant to the issue at hand, has made a preliminary determination that the Act permits an alien to withdraw an application for voluntary departure before expiration of the departure period. According to this proposal, there is nothing in the Act or the implementing regulations that makes the grant of voluntary departure irrevocable. See 72 Fed.Reg. 67679. Accordingly, the DOJ has proposed an amendment to 8 CFR § 1240.26 that, prospectively, would "provide for the automatic termination of a grant of voluntary departure upon the timely filing of a motion to reopen or reconsider, as long as the motion is filed prior to the expiration of the voluntary departure period." 72 Fed. Reg. 67679, Part IV-D; cf. id., at 67682, Part VI ("The provisions of this proposed rule will be applied prospectively only, that is, only with respect to immigration judge orders issued on or after the effective date of the final rule that grant a period of voluntary departure"). Although not binding in the present case, the DOJ's proposed interpretation of the statutory and regulatory scheme as allowing an alien to withdraw from a voluntary departure agreement "warrants respectful consideration." Wisconsin Dept. of Health and Family Servs. v. Blumer, 534 U.S. 473, 497, 122 S. Ct. 962, 151 L. Ed. 2d 935 (2002) (citing United States v. Mead Corp., 533 U.S. 218, 121 S. Ct. 2164, 150 L. Ed. 2d 292 (2001), and Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (1994)). We hold that, to safeguard the right to pursue a motion to reopen for voluntary departure recipients, the alien must be permitted to withdraw, unilaterally, a voluntary departure request before expiration of the departure period, without regard to the underlying merits of the motion to reopen. As a result, the alien has the option either to abide by the terms, and receive the agreed-upon benefits, of voluntary departure; or, alternatively, to forgo *2320 those benefits and remain in the United States to pursue an administrative motion. If the alien selects the latter option, he or she gives up the possibility of readmission and becomes subject to the IJ's alternate order of removal. See 8 CFR § 1240.26(d). The alien may be removed by the Department of Homeland Security within 90 days, even if the motion to reopen has yet to be adjudicated. See 8 U.S.C. § 1231(a)(1)(A). But the alien may request a stay of the order of removal, see BIA Practice Manual § 6.3(a), online at http:// www.usdoj.gov/eoir/vll/ qapracmanual/apptmtn4.htm; cf. 8 U.S.C. § 1229a(b)(5)(C) (providing that a removal order entered in absentia is stayed automatically pending a motion to reopen); and, though the BIA has discretion to deny the motion for a stay, it may constitute an abuse of discretion for the BIA to do so where the motion states nonfrivolous grounds for reopening. Though this interpretation still confronts the alien with a hard choice, it avoids both the quixotic results of the Government's proposal and the elimination of benefits to the Government that would follow from petitioner's tolling rule. Contrary to the Government's assertion, the rule we adopt does not alter the quid pro quo between the Government and the alien. If withdrawal is requested prior to expiration of the voluntary departure period, the alien has not received benefits without costs; the alien who withdraws from a voluntary departure arrangement is in the same position as an alien who was not granted voluntary departure in the first instance. Allowing aliens to withdraw from their voluntary departure agreements, moreover, establishes a greater probability that their motions to reopen will be considered. At the same time, it gives some incentive to limit filings to nonfrivolous motions to reopen; for aliens with changed circumstances of the type envisioned by Congress in drafting § 1229a(c)(7) (2000 ed. and Supp. V) are the ones most likely to forfeit their previous request for voluntary departure in return for the opportunity to adjudicate their motions. Cf. Supplemental Brief for Respondent 1-2 ("[I]t is extraordinarily rare for an alien who has requested and been granted voluntary departure by the BIA to seek to withdraw from that arrangement within the voluntary departure period"). A more expeditious solution to the untenable conflict between the voluntary departure scheme and the motion to reopen might be to permit an alien who has departed the United States to pursue a motion to reopen postdeparture, much as Congress has permitted with respect to judicial review of a removal order. See IIRIRA § 306(b), 110 Stat. 3009-612 (repealing 8 U.S.C. § 1105a(c) (1994 ed.), which prohibited an alien who "departed from the United States after the issuance of the order" to seek judicial review). As noted previously, 8 CFR § 1003.2(d) provides that the alien's departure constitutes withdrawal of the motion to reopen. This regulation, however, has not been challenged in these proceedings, and we do not consider it here. * * * Petitioner requested withdrawal of his motion for voluntary departure prior to expiration of his 30-day departure period. The BIA should have granted this request, without regard to the merits of petitioner's I-130 petition, and permitted petitioner to pursue his motion to reopen. We find this same mistake implicit in the Court of Appeals' decision. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.

We decide in this case whether an alien who has requested and been granted voluntary departure from the United States, a form of discretionary relief that avoids certain statutory penalties, must adhere to that election and depart within the time prescribed, even if doing so causes the alien to forgo a ruling on a pending, unresolved motion to reopen the removal proceedings. The case turns upon the interaction of relevant provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, -546 (IIRIRA or Act). The Act provides that every alien ordered removed from the United States has a right to file one motion to reopen his or her removal proceedings. See 8 U.S.C. 9a(c)(7) (2000 ed., Supp. V). The statute also provides, however, that if the alien's request for voluntary departure is granted after he or she is found removable, the alien is required to depart within the period prescribed by immigration officials, which cannot exceed 60 days. See 9c(b)(2) (2000 ed.). Failure to depart within the prescribed period renders the alien ineligible for certain forms of relief, including adjustment of status, for a period of 10 years. 9c(d)(1) (2000 ed., Supp. V). Pursuant to regulation, however, departure has the effect of withdrawing the motion to reopen. See 8 CFR 1003.2(d) *2311 Without some means, consistent with the Act, to reconcile the two commands — one directing voluntary departure and the other directing termination of the motion to reopen if an alien departs the United States — an alien who seeks reopening has two poor choices: The alien can remain in the United States to ensure the motion to reopen remains pending, while incurring statutory penalties for overstaying the voluntary departure date; or the alien can avoid penalties by prompt departure but abandon the motion to reopen. The issue is whether Congress intended the statutory right to reopen to be qualified by the voluntary departure process. The alien, who is petitioner here, urges that filing a motion to reopen tolls the voluntary departure period pending the motion's disposition. We reject this interpretation because it would reconfigure the voluntary departure scheme in a manner inconsistent with the statutory design. We do not have the authority to interpret the statute as petitioner suggests. Still, the conflict between the right to file a motion to reopen and the provision requiring voluntary departure no later than 60 days remains untenable if these are the only two choices available to the alien. Absent a valid regulation resolving the dilemma in a different way, we conclude the alien must be permitted an opportunity to withdraw the motion for voluntary departure, provided the request is made before the departure period expires. Petitioner attempted to avail himself of this opportunity below. The Court of Appeals for the Fifth Circuit did not disturb the Board of Immigration Appeals' (BIA or Board) denial of petitioner's request to withdraw the voluntary departure election. We now reverse its decision and remand the case. I Petitioner Samson Taiwo Dada, a native and citizen of Nigeria, came to the United States in April 1998 on a temporary nonimmigrant visa. He overstayed it. In 1999, petitioner alleges, he married an American citizen. Petitioner's wife filed an I-130 Petition for Alien Relative on his behalf. The necessary documentary evidence was not provided, however, and the petition was denied in February 2003. In the Department of Homeland Security (DHS) charged petitioner with being removable under 237(a)(1)(B) of the Immigration and Nationality Act (INA), as amended, 8 U.S.C. 7(a)(1)(B) (2000 ed., Supp. V), for overstaying his visa. Petitioner's wife then filed a second I-130 petition. The Immigration Judge (IJ) denied petitioner's request for a continuance pending adjudication of the newly filed I-130 petition and noted that those petitions take an average of about three years to process. The IJ found petitioner to be removable but granted the request for voluntary departure under 9c(b) (2000 ed.). The BIA affirmed on November 4, without a written opinion. It ordered petitioner to depart within 30 days or suffer statutory penalties, including a civil fine of not less than $1,000 and not more than $5,000 and ineligibility for relief under 240A, 240B, 245, 248, and 249 of the INA for a period of 10 years. See App. to Pet. for Cert. 5-6. Two days before expiration of the 30-day period, on December 2, petitioner sought to withdraw his request for voluntary departure. At the same time he filed with the BIA a motion to reopen removal proceedings under 8 U.S.C. 9a(c)(7) (2000 ed., Supp. V). He contended that his motion recited new and material evidence demonstrating a bona fide marriage and that his case should be continued until the second I-130 petition was resolved. *2312 On February 8, more than two months after the voluntary departure period expired, the BIA denied the motion to reopen on the ground that petitioner had overstayed his voluntary departure period. Under 240B(d) of the INA, 8 U.S.C. 9c(d) (2000 ed. and Supp. V), the BIA reasoned, an alien who has been granted voluntary departure but fails to depart in a timely fashion is statutorily barred from applying for and receiving certain forms of discretionary relief, including adjustment of status. See App. to Pet. for Cert. 3-4. The BIA did not address petitioner's motion to withdraw his request for voluntary departure. The Court of Appeals for the Fifth Circuit affirmed. Relying on its decision in the court held that the BIA's reading of the applicable statutes as rendering petitioner ineligible for relief was reasonable. The Fifth Circuit joined the First and Fourth Circuits in concluding that there is no automatic tolling of the voluntary departure period. See ; Four other Courts of Appeals have reached the opposite conclusion. See, e.g., ; ; ; We granted certiorari, see to resolve the disagreement among the Court of Appeals. After oral argument we ordered supplemental briefing, see 552 U.S. to address whether an alien may withdraw his request for voluntary departure before expiration of the departure period. Also after oral argument, on January 10, petitioner's second I-130 application was denied by the IJ on the ground that his marriage is a sham, contracted solely to obtain immigration benefits. II Resolution of the questions presented turns on the interaction of two statutory schemes — the statutory right to file a motion to reopen in removal proceedings; and the rules governing voluntary departure. A Voluntary departure is a discretionary form of relief that allows certain favored aliens — either before the conclusion of removal proceedings or after being found deportable — to leave the country willingly. Between 1927 to over 42 million aliens were granted voluntary departure; almost 13 million of those departures occurred between 1996 and alone. See Dept. of Homeland Security, Aliens Expelled: Fiscal Years 1892 to Table 38 online at http://www.dhs.gov/ ximgtn/statistics/ publications/YrBk05En.shtm (all Internet materials as visited June 13, and available in Clerk of Court's case file). Voluntary departure was "originally developed by administrative officers, in the absence of a specific mandate in the statute." 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure 74.02[1], p. 74-15 (hereinafter Gordon). The practice was first codified in the Alien Registration Act of 0, 20, The Alien Registration Act amended 19 of the Immigration Act of Feb. 5, to provide that an alien "deportable under any law of the United States and who has proved good moral character for the preceding *2313 five years" may be permitted by the Attorney General to "depart the United States to any country of his choice at his own expense, in lieu of deportation." 20(c), In 1996, perhaps in response to criticism of immigration officials who had expressed frustration that aliens granted voluntary departure were "permitted to continue their illegal presence in the United States for months, and even years," Letter from Benjamin G. Habberton, Acting Commissioner on Immigration and Naturalization, to the Executive Director of the President's Commission on Immigration and Naturalization, reprinted in Hearings before the House of Representatives Committee on the Judiciary, 82d Cong., 2d Sess., 1954 (Comm. Print 1952), Congress curtailed the period of time during which an alien may remain in the United States pending voluntary departure. The Act, as pertinent to voluntary departures requested at the conclusion of removal proceedings, provides: "The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense if, at the conclusion of a proceeding under section 9a of this title, the immigration judge enters an order granting voluntary departure in lieu of removal and finds that — "(A) the alien has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served under section 9(a) of this title; "(B) the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the alien's application for voluntary departure; "(C) the alien is not deportable under section 7(a)(2)(A)(iii) or section 7(a)(4) of this title; and "(D) the alien has established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so." 8 U.S.C. 9c(b)(1). See also 9c(a)(1) ("The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense under this subsection" in lieu of being subject to removal proceedings or prior to the completion of those proceedings; the alien need not meet the requirements of 9c(b)(1) if removability is conceded). When voluntary departure is requested at the conclusion of removal proceedings, as it was in this case, the statute provides a voluntary departure period of not more than 60 days. See 9c(b)(2). The alien can receive up to 120 days if he or she concedes removability and requests voluntary departure before or during removal proceedings. See 9c(a)(2)(A). Appropriate immigration authorities may extend the time to depart but only if the voluntary departure period is less than the statutory maximum in the first instance. The voluntary departure period in no event may exceed 60 or 120 days for 9c(b) and 9c(a) departures, respectively. See 8 CFR 1240.26(f) ("Authority to extend the time within which to depart voluntarily specified initially by an immigration judge or the Board is only within the jurisdiction of the district director, the Deputy Executive Associate Commissioner for Detention and Removal, or the Director of the Office of Juvenile Affairs In no event can the total period of time, including any extension, exceed 120 days or 60 days as set forth in section 240B of the Act"). *2314 The voluntary departure period typically does not begin to run until administrative appeals are concluded. See 8 U.S.C. 1101(47)(B) ; 9c(b)(1) (Attorney General may permit voluntary departure at conclusion of removal proceedings); see also 8 CFR 1003.6(a) In addition some Federal Courts of Appeals have found that they may stay voluntary departure pending consideration of a petition for review on the merits. See, e.g., ; But see This issue is not presented here, however, and we leave its resolution for another day. Voluntary departure, under the current structure, allows the Government and the alien to agree upon a quid pro quo. From the Government's standpoint, the alien's agreement to leave voluntarily expedites the departure process and avoids the expense of deportation — including procuring necessary documents and detaining the alien pending deportation. The Government also eliminates some of the costs and burdens associated with litigation over the departure. With the apparent purpose of assuring that the Government attains the benefits it seeks, the Act imposes limits on the time for voluntary departure, see and prohibits judicial review of voluntary departure decisions, see 8 U.S.C. 9c(f) and 1252(a)(2)(B)(i). Benefits to the alien from voluntary departure are evident as well. He or she avoids extended detention pending completion of travel arrangements; is allowed to choose when to depart (subject to certain constraints); and can select the country of destination. And, of great importance, by departing voluntarily the alien facilitates the possibility of readmission. The practice was first justified as involving "no warrant of deportation so that if [the alien reapplies] for readmission in the proper way he will not be barred." 2 National Commission on Law Observance and Enforcement: Report on the Enforcement of the Deportation Laws of the United States 57, 102-103 (1931) (Report No. 5). The current statute likewise allows an alien who voluntarily departs to sidestep some of the penalties attendant to deportation. Under the current Act, an alien involuntarily removed from the United States is ineligible for readmission for a period of 5, 10, or 20 years, depending upon the circumstances of removal. See 8 U.S.C. 1182(a)(9)(A)(i) of this title or at the end of proceedings under section 9a of this title initiated upon the alien's arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal) is inadmissible"); 1182(a)(9)(A)(ii) ("Any alien not described in clause (i) who — (I) has been ordered removed under section [240] or any other provision of law, or (II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien's departure or removal is inadmissible"). An alien who makes a timely departure under a grant of voluntary departure, on the other hand, is not subject to these restrictions — although he *2315 or she otherwise may be ineligible for readmission based, for instance, on an earlier unlawful presence in the United States, see 1182(a)(9)(B)(i). B A motion to reopen is a form of procedural relief that "asks the Board to change its decision in light of newly discovered evidence or a change in circumstances since the hearing." 1 Gordon 3.05[8][c]. Like voluntary departure, reopening is a judicial creation later codified by federal statute. An early reference to the procedure was in when a Federal District Court addressed an alien's motion to reopen her case to provide evidence of her marriage to a United States citizen. See Ex parte Chan Shee, ; see also Chew Hoy "The reopening of a case by the immigration authorities for the introduction of further evidence" was treated then, as it is now, as "a matter for the exercise of their discretion"; where the alien was given a "full opportunity to testify and to present all witnesses and documentary evidence at the original hearing," judicial interference was deemed unwarranted. Wong Shong In 1958, when the BIA was established, the Attorney General promulgated a rule for the reopening and reconsideration of removal proceedings, 8 CFR 3.2, upon which the current regulatory provision is based. See 23 Fed.Reg. 9115, 9118-9119 (1958), final rule codified at 8 CFR 3.2 (1959) ; see also Board of Immigration Appeals: Powers; and Reopening or Reconsideration of Cases, 27 Fed.Reg. 96-97 (Jan. 5, 1962). Until 1996, there was no time limit for requesting the reopening of a case due to the availability of new evidence. Then, in "fear[ful] that deportable or excludable aliens [were] try[ing] to prolong their stays in the U.S. by filing one type of discretionary relief after another in immigration proceedings," Justice Dept. Finds Aliens Not Abusing Requests for Relief, 68 No. 27 Interpreter 907 Congress ordered the Attorney General to "issue regulations with respect to the period of time in which motions to reopen may be offered in deportation proceedings," including "a limitation on the number of such motions that may be filed and a maximum time period for the filing of such motions," 545(d)(1), The Attorney General found little evidence of abuse, concluding that requirements for reopening are a disincentive to bad faith filings. See 68 Interpreter Because "Congress neither rescinded [n]or amended its mandate to limit the number and time frames of motions," however, the Department of Justice (DOJ) issued a regulation imposing new time limits and restrictions on filings. The new regulation allowed the alien to file one motion to reopen within 90 days. Executive Office for Immigration Review; Motions and Appeals in Immigration Proceedings, 18901, 18905 (1996); see 8 CFR 3.2(c) (1996). With the 1996 enactment of the Act, Congress adopted the recommendations of the DOJ with respect to numerical and time limits. The current provision governing motions to reopen states: "(A) In general "An alien may file one motion to reopen proceedings under this section "(B) Contents *2316 "The motion to reopen shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material. "(C) Deadline (i) "In general "Except as provided in this subparagraph, the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal." 8 U.S.C. 9a(c)(7) (2000 ed., Supp.V). To qualify as "new," 9a(c)(7)(B), the facts must be "material" and of the sort that "could not have been discovered or presented at the former hearing," 8 CFR 1003.2(c)(1) ; 1 Gordon 3.05[8][c] ("Evidence is not previously unavailable merely because the movant chose not to testify or to present evidence earlier, or because the IJ refused to admit the evidence"). There are narrow exceptions to the 90-day filing period for asylum proceedings and claims of battered spouses, children, and parents, see 8 U.S.C. 9a(c)(7)(C)(ii), (iv) (2000 ed., Supp. V), which are not applicable here. The Act, to be sure, limits in significant ways the availability of the motion to reopen. It must be noted, though, that the Act transforms the motion to reopen from a regulatory procedure to a statutory form of relief available to the alien. Nowhere in 9c(b) or 9a(c)(7) did Congress discuss the impact of the statutory right to file a motion to reopen on a voluntary departure agreement. And no legislative history indicates what some Members of Congress might have intended with respect to the motion's status once the voluntary departure period has elapsed. But the statutory text is plain insofar as it guarantees to each alien the right to file "one motion to reopen proceedings under this section." 9a(c)(7)(A) (2000 ed., Supp. V). III The Government argues that, by requesting and obtaining permission to voluntarily depart, the alien knowingly surrenders the opportunity to seek reopening. See Brief for Respondent 29-30. Further, according to the Government, petitioner's proposed rule for tolling the voluntary departure period would undermine the "carefully crafted rules governing voluntary departure," including the statutory directive that these aliens leave promptly. To be sure, 8 U.S.C. 9c(b)(2) contains no ambiguity: The period within which the alien may depart voluntarily "shall not be valid for a period exceeding 60 days." See also 8 CFR 1240.26(f) ("In no event can the total period of time, including any extension, exceed" the statutory periods prescribed by 8 U.S.C. 9c(a) and 9c(b)); 9c(d) (2000 ed. and Supp. V) (imposing statutory penalties for failure to depart). Further, 9a(c)(7) does not forbid a scheme under which an alien knowingly relinquishes the right to seek reopening in exchange for other benefits, including those available to the alien under the voluntary departure statute. That does not describe this case, however. Nothing in the statutes or past usage with respect to voluntary departure or motions to reopen indicates they cannot coexist. Neither 9a(c)(7) nor 9c(b)(2) says anything about the filing of a motion to reopen by an alien who has requested and been granted the opportunity to voluntarily depart. And there is no other statutory language that would place the alien on notice of an inability to seek the case's reopening in the event of newly discovered evidence or changed circumstances *2317 bearing upon eligibility for relief. In reading a statute we must not "look merely to a particular clause," but consider "in connection with it the whole statute." ; internal quotation marks omitted); see also ; United Reading the Act as a whole, and considering the statutory scheme governing voluntary departure alongside the statutory right granted to the alien by 8 U.S.C. 9a(c)(7)(A) (2000 ed., Supp. V) to pursue "one motion to reopen proceedings," the Government's position that the alien is not entitled to pursue a motion to reopen if the alien agrees to voluntarily depart is unsustainable. It would render the statutory right to seek reopening a nullity in most cases of voluntary departure.) It is foreseeable, and quite likely, that the time allowed for voluntary departure will expire long before the BIA issues a decision on a timely filed motion to reopen. See Proposed Rules, DOJ, Executive Office for Immigration Review, Voluntary Departure: Effect of a Motion to Reopen or Reconsider or a Petition for Review, 72 Fed.Reg. 67674, 67677, and n. 2 ("As a practical matter, it is often the case that an immigration judge or the Board cannot reasonably be expected to adjudicate a motion to reopen or reconsider during the voluntary departure period"). These practical limitations must be taken into account. In the present case the BIA denied petitioner's motion to reopen 68 days after he filed the motion — and 66 days after his voluntary departure period had expired. Although the record contains no statistics on the average disposition time for motions to reopen, the number of BIA proceedings has increased over the last two decades, doubling between and 2000 alone; and, as a result, the BIA's backlog has more than tripled, resulting in a total of 63,763 undecided cases in 2000. See Dorsey & Whitney LLP, Study Conducted for: the American Bar Association Commission on Immigration Policy, Practice and Pro Bono Re: Board of Immigration Appeals: Procedural Reforms to Improve Case Management 13 (2003), online at http://www.dorsey. com/files/upload/DorseyStudyABA_8mgPDF.pdf. Since 2000, the BIA has adopted new procedures to reduce its backlog and shorten disposition times. In the DOJ introduced rules to improve case management, including an increase in the number of cases referred to a single Board member and use of summary disposition procedures for cases without basis in law or fact. See BIA: Procedural Reforms to Improve Case Management, 67 Fed.Reg. 54878 final rule codified at 8 CFR 1003 ; see also 1003.1(e)(4) (summary affirmance procedures). Nevertheless, on September 30, there were 33,063 cases pending before the BIA, 18% *2318 of which were more than a year old. See FY Statistical Year at U1. On September 30, approximately 20% of the cases pending had been filed during fiscal year See Whether an alien's motion will be adjudicated within the 60-day statutory period in all likelihood will depend on pure happenstance — namely, the backlog of the particular Board member to whom the motion is assigned. Cf. United Absent tolling or some other remedial action by the Court, then, the alien who is granted voluntary departure but whose circumstances have changed in a manner cognizable by a motion to reopen is between Scylla and Charybdis: He or she can leave the United States in accordance with the voluntary departure order; but, pursuant to regulation, the motion to reopen will be deemed withdrawn. See 8 CFR 1003.2(d); see also 23 Fed.Reg. 9115, 9118, final rule codified at 8 CFR 3.2 (1958). Alternatively, if the alien wishes to pursue reopening and remains in the United States to do so, he or she risks expiration of the statutory period and ineligibility for adjustment of status, the underlying relief sought. See 8 U.S.C. 9c(d)(1) (2000 ed., Supp. V) (failure to timely depart renders alien "ineligible, for a period of 10 years," for cancellation of removal under 240A, adjustment of status under 245, change of nonimmigrant status under 248, and registry under 249 of the INA); see also App. to Pet. for Cert. 3-4 (treating petitioner's motion to reopen as forfeited for failure to depart). The purpose of a motion to reopen is to ensure a proper and lawful disposition. We must be reluctant to assume that the voluntary departure statute was designed to remove this important safeguard for the distinct class of deportable aliens most favored by the same law. See 8 U.S.C. 9c(a)(1), (b)(1)(C) (barring aliens who have committed, inter alia, aggravated felonies or terrorism offenses from receiving voluntary departure); 9c(b)(1)(B) (requiring an alien who obtains voluntary departure at the conclusion of removal proceedings to demonstrate "good moral character"). This is particularly so when the plain text of the statute reveals no such limitation. See ; see also ; IV A It is necessary, then, to read the Act to preserve the alien's right to pursue reopening while respecting the Government's interest in the quid pro quo of the voluntary departure arrangement. Some solutions, though, do not conform to the statutory design. Petitioner, as noted, proposes automatic tolling of the voluntary departure period during the pendency *2319 of the motion to reopen. We do not find statutory authority for this result. Voluntary departure is an agreed-upon exchange of benefits, much like a settlement agreement. In return for anticipated benefits, including the possibility of readmission, an alien who requests voluntary departure represents that he or she "has the means to depart the United States and intends to do so" promptly. 8 U.S.C. 9c(b)(1)(D); 8 CFR 1240.26(c)(1)(2) ; cf. 1240.26(c)(3) (the judge may impose additional conditions to "ensure the alien's timely departure from the United States"). Included among the substantive burdens imposed upon the alien when selecting voluntary departure is the obligation to arrange for departure, and actually depart, within the 60-day period. Cf. United If the alien is permitted to stay in the United States past the departure date to wait out the adjudication of the motion to reopen, he or she cannot then demand the full benefits of voluntary departure; for the benefit to the Government — a prompt and costless departure — would be lost. Furthermore, it would invite abuse by aliens who wish to stay in the country but whose cases are not likely to be reopened by immigration authorities. B Although a statute or regulation might be adopted to resolve the dilemma in a different manner, as matters now stand the appropriate way to reconcile the voluntary departure and motion to reopen provisions is to allow an alien to withdraw the request for voluntary departure before expiration of the departure period. The DOJ, which has authority to adopt regulations relevant to the issue at hand, has made a preliminary determination that the Act permits an alien to withdraw an application for voluntary departure before expiration of the departure period. According to this proposal, there is nothing in the Act or the implementing regulations that makes the grant of voluntary departure irrevocable. See 72 Fed.Reg. 67679. Accordingly, the DOJ has proposed an amendment to 8 CFR 1240.26 that, prospectively, would "provide for the automatic termination of a grant of voluntary departure upon the timely filing of a motion to reopen or reconsider, as long as the motion is filed prior to the expiration of the voluntary departure period." Part IV-D; cf. Part VI ("The provisions of this proposed rule will be applied prospectively only, that is, only with respect to immigration judge orders issued on or after the effective date of the final rule that grant a period of voluntary departure"). Although not binding in the present case, the DOJ's proposed interpretation of the statutory and regulatory scheme as allowing an alien to withdraw from a voluntary departure agreement "warrants respectful consideration." Wisconsin Dept. of Health and Family S. Ct. 962, and Thomas Jefferson ). We hold that, to safeguard the right to pursue a motion to reopen for voluntary departure recipients, the alien must be permitted to withdraw, unilaterally, a voluntary departure request before expiration of the departure period, without regard to the underlying merits of the motion to reopen. As a result, the alien has the option either to abide by the terms, and receive the agreed-upon benefits, of voluntary departure; or, alternatively, to forgo *2 those benefits and remain in the United States to pursue an administrative motion. If the alien selects the latter option, he or she gives up the possibility of readmission and becomes subject to the IJ's alternate order of removal. See 8 CFR 1240.26(d). The alien may be removed by the Department of Homeland Security within 90 days, even if the motion to reopen has yet to be adjudicated. See 8 U.S.C. 1231(a)(1)(A). But the alien may request a stay of the order of removal, see BIA Practice Manual 6.3(a), online at http:// www.usdoj.gov/eoir/vll/ qapracmanual/apptmtn4.htm; cf. 8 U.S.C. 9a(b)(5)(C) (providing that a removal order entered in absentia is stayed automatically pending a motion to reopen); and, though the BIA has discretion to deny the motion for a stay, it may constitute an abuse of discretion for the BIA to do so where the motion states nonfrivolous grounds for reopening. Though this interpretation still confronts the alien with a hard choice, it avoids both the quixotic results of the Government's proposal and the elimination of benefits to the Government that would follow from petitioner's tolling rule. Contrary to the Government's assertion, the rule we adopt does not alter the quid pro quo between the Government and the alien. If withdrawal is requested prior to expiration of the voluntary departure period, the alien has not received benefits without costs; the alien who withdraws from a voluntary departure arrangement is in the same position as an alien who was not granted voluntary departure in the first instance. Allowing aliens to withdraw from their voluntary departure agreements, moreover, establishes a greater probability that their motions to reopen will be considered. At the same time, it gives some incentive to limit filings to nonfrivolous motions to reopen; for aliens with changed circumstances of the type envisioned by Congress in drafting 9a(c)(7) (2000 ed. and Supp. V) are the ones most likely to forfeit their previous request for voluntary departure in return for the opportunity to adjudicate their motions. Cf. Supplemental Brief for Respondent 1-2 ("[I]t is extraordinarily rare for an alien who has requested and been granted voluntary departure by the BIA to seek to withdraw from that arrangement within the voluntary departure period"). A more expeditious solution to the untenable conflict between the voluntary departure scheme and the motion to reopen might be to permit an alien who has departed the United States to pursue a motion to reopen postdeparture, much as Congress has permitted with respect to judicial review of a removal order. See IIRIRA 306(b), -612 (repealing 8 U.S.C. 1105a(c) ( ed.), which prohibited an alien who "departed from the United States after the issuance of the order" to seek judicial review). As noted previously, 8 CFR 1003.2(d) provides that the alien's departure constitutes withdrawal of the motion to reopen. This regulation, however, has not been challenged in these proceedings, and we do not consider it here. * * * Petitioner requested withdrawal of his motion for voluntary departure prior to expiration of his 30-day departure period. The BIA should have granted this request, without regard to the merits of petitioner's I-130 petition, and permitted petitioner to pursue his motion to reopen. We find this same mistake implicit in the Court of Appeals' decision. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.

Justice Kennedy

majority

Campbell v. Louisiana

https://www.courtlistener.com/opinion/118196/campbell-v-louisiana/

https://www.courtlistener.com/api/rest/v3/clusters/118196/

1997-053

We must decide whether a white criminal defendant has standing to object to discrimination against black persons in the selection of grand jurors. Finding he has the requisite standing to raise equal protection and due process claims, we reverse and remand. I A grand jury in Evangeline Parish, Louisiana, indicted petitioner Terry Campbell on one count of second-degree *395 murder. Campbell, who is white, filed a timely pretrial motion to quash the indictment on the grounds the grand jury was constituted in violation of his equal protection and due process rights under the Fourteenth Amendment and in violation of the Sixth Amendment's fair-cross-section requirement. Campbell alleged a longstanding practice of racial discrimination in the selection of grand jury forepersons in the parish. His sole piece of evidence is that, between January 1976 and August 1993, no black person served as a grand jury foreperson in the parish, even though more than 20 percent of the registered voters were black persons. See Brief for Petitioner 16. The State does not dispute this evidence. The trial judge refused to quash the indictment because "Campbell, being a white man accused of killing another white man," lacked standing to complain "where all of the forepersons were white." App. to Pet. for Cert. G-33. After Campbell's first trial resulted in a mistrial, he was retried, convicted of second-degree murder, and sentenced to life in prison without possibility of parole. Campbell renewed his challenge to the grand jury foreperson selection procedures in a motion for new trial, which was denied. See id., at I-2. The Louisiana Court of Appeal reversed, because, under our decision in Powers v. Ohio, 499 U.S. 400 (1991), Campbell had standing to object to the alleged discrimination even though he is white. 651 So. 2d 412 (1995). The Court of Appeal remanded the case for an evidentiary hearing because it found Campbell's evidence of discrimination inadequate. Id., at 413. The Louisiana Supreme Court reversed. It distinguished Powers as turning on the "considerable and substantial impact" that a prosecutor's discriminatory use of peremptory challenges has on a defendant's trial as well as on the integrity of the judicial system. See 661 So. 2d 1321, 1324 (1995). The court declined to extend Powers to a claim of discrimination in the selection of a grand jury foreperson. It also found Hobby v. United States, 468 U.S. 339 (1984), did not *396 afford Campbell standing to raise a due process objection. In Hobby, this Court held no relief could be granted to a white defendant even if his due process rights were violated by discrimination in the selection of a federal grand jury foreperson. Noting that Hobby turned on the ministerial nature of the federal grand jury foreperson's duties, the Louisiana Supreme Court held "[t]he role of the grand jury foreman in Louisiana appears to be similarly ministerial" such that any discrimination "has little, if any, effect on the defendant's due process right of fundamental fairness." 661 So. 2d, at 1324. Because the Court of Appeal had not addressed Campbell's other asserted points of error, the Louisiana Supreme Court remanded the case. After the Court of Appeal rejected Campbell's remaining claims, 673 So. 2d 1061 (1996), the Louisiana Supreme Court refused to reconsider its ruling on the grand jury issue, 685 So. 2d 140 (1997). We granted certiorari to address the narrow question of Campbell's standing to raise equal protection, due process, and fair-cross-section claims. 521 U.S. 1151 (1997). II As an initial matter, we note Campbell complains about more than discrimination in the selection of his grand jury foreperson; he alleges that discrimination shaped the composition of the grand jury itself. In the federal system and in most States which use grand juries, the foreperson is selected from the ranks of the already seated grand jurors. See 1 S. Beale, W. Bryson, J. Felman, & M. Elston, Grand Jury Law and Practice § 4:6, pp. 4-20 to 4-21 (2d ed. 1997) (either the judge selects the foreperson or fellow grand jurors elect him or her). Under those systems, the title "foreperson" is bestowed on one of the existing grand jurors without any change in the grand jury's composition. In Louisiana, by contrast, the judge selects the foreperson from the grand jury venire before the remaining members of the grand jury have been chosen by lot. La. Code Crim. Proc. *397 Ann., Art. 413(B) (West Supp. 1997); see also 1 Beale, supra, at 4-22, n. 11 (Ohio, Oklahoma, Tennessee, and Virginia use procedures similar to Louisiana's). In addition to his other duties, the foreperson of the Louisiana grand jury has the same full voting powers as other grand jury members. As a result, when the Louisiana judge selected the foreperson, he also selected one member of the grand jury outside of the drawing system used to compose the balance of that body. These considerations require us to treat the case as one alleging discriminatory selection of grand jurors. III Standing to litigate often turns on imprecise distinctions and requires difficult line-drawing. On occasion, however, we can ascertain standing with relative ease by applying rules established in prior cases. See Allen v. Wright, 468 U.S. 737, 751 (1984). Campbell's equal protection claim is such an instance. In Powers v. Ohio, supra, we found a white defendant had standing to challenge racial discrimination against black persons in the use of peremptory challenges. We determined the defendant himself could raise the equal protection rights of the excluded jurors. Recognizing our general reluctance to permit a litigant to assert the rights of a third party, we found three preconditions had been satisfied: (1) the defendant suffered an "injury in fact"; (2) he had a "close relationship" to the excluded jurors; and (3) there was some hindrance to the excluded jurors asserting their own rights. Powers, supra, at 411 (citing Singleton v. Wulff, 428 U.S. 106 (1976)). We concluded a white defendant suffers a serious injury in fact because discrimination at the voir dire stage "`casts doubt on the integrity of the judicial process'. . . and places the fairness of a criminal proceeding in doubt." 499 U.S., at 411. This cloud of doubt deprives the defendant of the certainty that a verdict in his case "is given in accordance with the law by persons who are fair." Id., at 413. *398 Second, the excluded juror and criminal defendant have a close relationship: They share a common interest in eliminating discrimination, and the criminal defendant has an incentive to serve as an effective advocate because a victory may result in overturning his conviction. Id., at 413-414. Third, given the economic burdens of litigation and the small financial reward available, "a juror dismissed because of race probably will leave the courtroom possessing little incentive to set in motion the arduous process needed to vindicate his own rights." Id., at 415. Upon consideration of these factors, we concluded a white defendant had standing to bring an equal protection challenge to racial discrimination against black persons in the petit jury selection process. Although Campbell challenges discriminatory selection of grand jurors, rather than petit jurors, Powers ` reasoning applies to this case on the question of standing. Our prior cases have not decided whether a white defendant's own equal protection rights are violated when the composition of his grand jury is tainted by discrimination against black persons. We do not need to address this issue because Campbell seeks to assert the well-established equal protection rights of black persons not to be excluded from grand jury service on the basis of their race. See Tr. 9 (Dec. 2, 1993); see also Carter v. Jury Comm'n of Greene Cty., 396 U.S. 320, 329-330 (1970) (racial exclusion of prospective grand and petit jurors violates their constitutional rights). Campbell satisfies the three preconditions for third-party standing outlined in Powers. Regardless of his or her skin color, the accused suffers a significant injury in fact when the composition of the grand jury is tainted by racial discrimination. "[D]iscrimination on the basis of race in the selection of members of a grand jury . . . strikes at the fundamental values of our judicial system" because the grand jury is a central component of the criminal justice process. Rose v. Mitchell, 443 U.S. 545, 556 (1979). The Fifth Amendment requires the Federal Government *399 to use a grand jury to initiate a prosecution, and 22 States adopt a similar rule as a matter of state law. See 1 Beale, supra, § 1:2, at 1-3; see also Hurtado v. California, 110 U.S. 516 (1884) (Fifth Amendment's grand jury requirement is not binding on the States). The grand jury, like the petit jury, "acts as a vital check against the wrongful exercise of power by the State and its prosecutors." Powers, supra, at 411. It controls not only the initial decision to indict, but also significant decisions such as how many counts to charge and whether to charge a greater or lesser offense, including the important decision to charge a capital crime. See Vasquez v. Hillery, 474 U.S. 254, 263 (1986). The integrity of these decisions depends on the integrity of the process used to select the grand jurors. If that process is infected with racial discrimination, doubt is cast over the fairness of all subsequent decisions. See Rose, supra, at 555-556 ("Selection of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process"). Powers emphasized the harm inflicted when a prosecutor discriminates by striking racial minorities in open court and in front of the entire jury pool. The Court expressed concern that this tactic might encourage the jury to be lawless in its own actions. See 499 U.S., at 412-413. The State suggests this sort of harm is not inflicted when a single grand juror is selected based on racial prejudice because the discrimination is invisible to the grand jurors on that panel; it only becomes apparent when a pattern emerges over the course of years. See Brief for Respondent 16. This argument, however, underestimates the seriousness of the allegations. In Powers, even if the prosecutor had been motivated by racial prejudice, those responsible for the defendant's fate, the judge and the jury, had shown no actual bias. If, by contrast, the allegations here are true, the impartiality and discretion of the judge himself would be called into question. *400 The remaining two preconditions to establish third-party standing are satisfied with little trouble. We find no reason why a white defendant would be any less effective as an advocate for excluded grand jurors than for excluded petit jurors. See Powers, supra, at 413-414. The defendant and the excluded grand juror share a common interest in eradicating discrimination from the grand jury selection process, and the defendant has a vital interest in asserting the excluded juror's rights because his conviction may be overturned as a result. See Vasquez, supra, at 264; Rose, supra, at 551; Cassell v. Texas, 339 U.S. 282 (1950). The State contends Campbell's connection to "the excluded class of . . . jurors . . . who were not called to serve . . . for the prior 16[1]20442 years is tenuous, at best." Brief for Respondent 22. This argument confuses Campbell's underlying claim with the evidence needed to prove it. To assert the rights of those venirepersons who were excluded from serving on the grand jury in his case, Campbell must prove their exclusion was on account of intentional discrimination. He seeks to do so based on past treatment of similarly situated venirepersons in other cases, see Castaneda v. Partida, 430 U.S. 482, 494 (1977), but this does not mean he seeks to assert those venirepersons' rights. As a final matter, excluded grand jurors have the same economic disincentives to assert their own rights as do excluded petit jurors. See Powers, supra, at 415. We find Campbell, like any other white defendant, has standing to raise an equal protection challenge to discrimination against black persons in the selection of his grand jury. IV It is axiomatic that one has standing to litigate his or her own due process rights. We need not explore the nature and extent of a defendant's due process rights when he alleges discriminatory selection of grand jurors, and confine our holding to his standing to raise the issue. Our decision in Peters v. Kiff addressed the due process question, although *401 a majority of Justices could not agree on a comprehensive statement of the rule or an appropriate remedy for any violation. See 407 U.S. 493, 504 (1972) (opinion of Marshall, J.) ("[W]hatever his race, a criminal defendant has standing to challenge the system used to select his grand . . . jury, on the ground that it arbitrarily excludes . . . members of any race, and thereby denies him due process of law"); id., at 507 (White, J., joined by Brennan and Powell, JJ., concurring in judgment) ("[T]he strong statutory policy of [18 U.S. C.] § 243, which reflects the central concern of the Fourteenth Amendment" permits a white defendant to challenge discrimination in grand jury selection). Our more recent decision in Hobby v. United States proceeded on the implied assumption that a white defendant had standing to raise a due process objection to discriminatory appointment of a federal grand jury foreperson and skipped ahead to the question whether a remedy was available. 468 U.S., at 350. It is unnecessary here to discuss the nature and full extent of due process protection in the context of grand jury selection. That issue, to the extent it is still open based upon our earlier precedents, should be determined on the merits, assuming a court finds it necessary to reach the point in light of the concomitant equal protection claim. The relevant assumption of Hobby, and our holding here, is that a defendant has standing to litigate whether his conviction was procured by means or procedures which contravene due process. The Louisiana Supreme Court erred in reading Hobby to foreclose Campbell's standing to bring a due process challenge. 661 So. 2d, at 1324. In Hobby, we held discrimination in the selection of a federal grand jury foreperson did not infringe principles of fundamental fairness because the foreperson's duties were "ministerial." See Hobby, supra, at 345-346. In this case, the Louisiana Supreme Court decided a Louisiana grand jury foreperson's duties were ministerial too, but then couched its decision in terms of Campbell's *402 lack of standing to litigate a due process claim. 661 So. 2d, at 1324. The Louisiana Supreme Court was wrong on both counts. Its interpretation of Hobby is inconsistent with the implicit assumption of standing we have just noted and with our explicit reasoning in that case. In Hobby, a federal grand jury foreperson was selected from the existing grand jurors, so the decision to pick one grand juror over another, at least arguably, affected the defendant only if the foreperson was given some significant duties that he would not have had as a regular grand juror. See supra, at 396. Against this background, the Court rejected the defendant's claim because the ministerial role of a federal grand jury foreperson "is not such a vital one that discrimination in the appointment of an individual to that post significantly invades" due process. Hobby, supra, at 346. Campbell's challenge is different in kind and degree because it implicates the impermissible appointment of a member of the grand jury. See supra, at 396-397. What concerns Campbell is not the foreperson's performance of his duty to preside, but performance as a grand juror, namely, voting to charge Campbell with second-degree murder. The significance of this distinction was acknowledged by Hobby `s discussion of a previous case, Rose v. Mitchell, 443 U.S. 545 (1979). In Rose, we assumed relief could be granted for a constitutional challenge to discrimination in the appointment of a state grand jury foreperson. See id., at 556. Hobby distinguished Rose in part because it involved Tennessee's grand jury system. Under the Tennessee law then in effect, 12 members of the grand jury were selected at random, and then the judge appointed a 13th member who also served as foreperson. See Hobby, 468 U. S., at 347. As a result, Hobby pointed out discrimination in selection of the foreperson in Tennessee was much more serious than in the federal system because the former can affect the composition of the grand jury whereas the latter cannot: "So *403 long as the grand jury itself is properly constituted, there is no risk that the appointment of any one of its members as foreman will distort the overall composition of the array or otherwise taint the operation of the judicial process." Id., at 348. By its own terms, then, Hobby does not address a claim like Campbell's. V One of the questions raised on certiorari is whether Campbell also has standing to raise a fair-cross-section claim. It appears neither the Louisiana Supreme Court nor the Louisiana Court of Appeal discussed this contention. "With `very rare exceptions,' . . . we will not consider a petitioner's federal claim unless it was either addressed by or properly presented to the state court that rendered the decision we have been asked to review." Adams v. Robertson, 520 U.S. 83, 86 (1997) (per curiam) . Campbell has made no effort to meet his burden of showing this issue was properly presented to the Louisiana appellate courts, even after the State pointed out this omission before this Court. See Brief for Respondent 29-30. In fact, Campbell devotes no more than one page of text in his brief to his fair-cross-section claim. See Brief for Petitioner 31-32. We decline to address the issue. The judgment of the Louisiana Supreme Court is reversed. The case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice Thomas, with whom Justice Scalia joins, concurring in part and dissenting in part. I fail to understand how the rights of blacks excluded from jury service can be vindicated by letting a white murderer go free. Yet, in Powers v. Ohio, 499 U.S. 400 (1991), the Court held that a white criminal defendant had standing to challenge his criminal conviction based upon alleged violations of the equal protection rights of black prospective jurors. *404 Today's decision, rather than merely reaffirming Powers ` misguided doctrine of third-party standing, applies that doctrine to a context in which even Powers' rationales are inapplicable. Because Powers is both incorrect as an initial matter and inapposite to the case at hand, I respectfully dissent from Part III of the Court's opinion. I join Parts I, II, IV, and V and concur in the judgment reversing and remanding to the Louisiana Supreme Court. Powers broke new ground by holding for the first time that a criminal defendant may raise an equal protection challenge to the use of peremptory strikes to exclude jurors of a different race. See id., at 422 (Scalia, J., dissenting) (explaining that Powers was inconsistent with "a vast body of clear statement" in our precedents). Recognizing that the defendant could not claim that his own equal protection rights had been denied, the Court held that the defendant had standing to assert the equal protection rights of veniremen excluded from the jury. Id., at 410-416. The Court concluded that the defendant had such "third party standing" because three criteria had been met: he had suffered an "injury in fact"; he had a "close relation" to the excluded jurors; and there was "some hindrance" to the jurors' ability to protect their own interests. Id., at 410-411. Powers distorted standing principles and equal protection law and should be overruled.[1] As Justice Scalia explained at length in his dissent, the defendant in Powers *405 could not satisfy even the first element of standing——injury in fact. Id., at 426-429. The defendant, though certainly displeased with his conviction, failed to demonstrate that the alleged discriminatory use of peremptory challenges against veniremen of another race had any effect on the outcome of his trial. The Court instead found that the defendant had suffered a "cognizable" injury because racial discrimination in jury selection "`casts doubt on the integrity of the judicial process' " and "invites cynicism respecting the jury's neutrality and its obligation to adhere to the law." Id., at 411-412. But the severity of an alleged wrong and a perception of unfairness do not constitute injury in fact. Indeed, "`[i]njury in perception' would seem to be the very antithesis of `injury in fact.' " Id., at 427 (Scalia, J., dissenting). Furthermore, there is no reason why a violation of a third party's right to serve on a jury should be grounds for reversal when other violations of third-party rights, such as obtaining evidence against the defendant in violation of another person's Fourth or Fifth Amendment rights, are not. Id., at 429 (Scalia, J., dissenting). Powers further rested on an alleged "close relation[ship]" that arises between a defendant and veniremen because voir dire permits them "to establish a relation, if not a bond of trust," that continues throughout the trial. Id., at 411, 413. According to the Court, excluded veniremen share the accused's interest in eliminating racial discrimination because a peremptory strike inflicts upon a venireman a "profound personal humiliation heightened by its public character." Id., at 413-414. But there was simply no basis for the Court's finding of a "close relation[ship]" or "common interest," id., at 413, between black veniremen and white defendants. Regardless of whether black veniremen wish to serve on a particular jury, they do not share the white defendant's interest in obtaining a reversal of his conviction. Surely a black venireman would be dismayed to learn that a white *406 defendant used the venireman's constitutional rights as a means to overturn the defendant's conviction.[2] Finally, Powers concluded that there are substantial obstacles to suit by excluded veniremen, including the costs of proceeding individually and the difficulty of establishing a likelihood of recurrence. Id., at 414-415. These obstacles, though perhaps often present in the context of Batson v. Kentucky, 476 U.S. 79 (1986), are alone insufficient to justify third-party standing. Even if the Powers justifications were persuasive, they would still be wholly inapplicable to this case, which involves neither peremptory strikes nor discrimination in the selection of the petit jury. The "injury in fact" allegedly present in Powers is wholly absent from the context at hand. Powers reasoned that repeated peremptory strikes of members of one race constituted an "overt wrong, often apparent to the entire jury panel," that threatened to "cas[t] doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial of the cause." Powers, 499 U. S., at 412. Here, in contrast, the judge selected one member of the grand jury venire to serve as foreman, and the remaining members of the grand jury were selected at random. Even if discriminatory, the judge's selection (rather than exclusion) of a single member of the grand jury could hardly constitute an "overt" wrong that would affect the remainder of the grand jury proceedings, much less the subsequent trial. The Court therefore resorts to emphasizing the seriousness of the allegation of racial discrimination (as though repetition conveys some talismanic power), but that, of course, cannot substitute for injury in fact. In this case, unlike Powers, petitioner's allegation of injury in fact is not merely unsupported; it is directly foreclosed. There is no allegation in this case that the composition of *407 petitioner's trial jury was affected by discrimination. Instead, the allegation is merely that there was discrimination in the selection of the grand jury (and of only one member). The properly constituted petit jury's verdict of guilt beyond a reasonable doubt was in no way affected by the composition of the grand jury. Indeed, to the extent that race played any part in the composition of petitioner's petit jury, it was by petitioner's own actions, as petitioner used 5 of his 12 peremptory strikes to eliminate blacks from the petit jury venire. Petitioner's attempt to assert that he was injured by the alleged exclusion of blacks at the grand jury stage is belied by his own use of peremptory strikes against blacks at the petit jury stage. It would be to no avail to suggest that the alleged discrimination in grand jury selection could have caused an indictment improperly to be rendered, because the petit jury's verdict conclusively establishes that no reasonable grand jury could have failed to indict petitioner.[3] Nor can the Court find support in our precedents allowing a defendant to challenge his conviction based upon discrimination in grand jury selection, because all of those cases involved defendants' assertions of their own rights. See, e. g., Rose v. Mitchell, 443 U.S. 545 (1979); Cassell v. Texas, 339 U.S. 282 (1950). Although we often do not require a criminal defendant to establish a cause-and-effect relationship between the procedural illegality and the subsequent conviction when the defendant asserts a denial of his own rights, see 499 U.S., at 427-428 (Scalia, J., dissenting) (noting that the government generally bears the burden of establishing harmlessness of such errors), even the Powers majority acknowledged that *408 such a showing is the foremost requirement of third-party standing, as evidenced by the lengths to which it went in an attempt to justify its finding of injury in fact. The Court's finding of a close relationship (an ambient fraternity of sorts) between petitioner and the black veniremen whose rights he seeks to vindicate is likewise unsupported. The Court, of course, never identifies precisely whose rights petitioner seeks to vindicate. Is it all veniremen who were not chosen as foreman? Is it all nonwhite veniremen? All black veniremen? Or just the black veniremen who were not ultimately chosen for the grand jury? Leaving aside the fact that the Court fails to identify the rights-holders, I fail to see how a "close relationship" could have developed between petitioner and the veniremen. Even if a "bond," Powers v. Ohio, supra, at 413, could develop between veniremen and defendants during voir dire, such a bond could not develop in the context of a judge's selection of a grand jury foreman—a context in which the defendant plays no role. Nor can any "common interest" between a defendant and excluded veniremen arise based upon a public humiliation suffered by the latter, because unlike the exercise of peremptory strikes, Evangeline Parish's process of selecting foremen does not constitute "overt" action against particular veniremen. Rather, those veniremen not chosen (all but one) are simply left to take their chances at being randomly selected for the remaining seats on the grand jury. Finally, there are ample opportunities for prospective jurors whose equal protection rights have been violated to vindicate those rights, rather than relying upon a defendant of another race to do so for them. In contrast to the Batson line of cases, where an allegation may concern discrimination in the defendant's case alone, in this case petitioner alleges systematic discrimination in the selection of grand jury foremen in Evangeline Parish. Such systematic discrimination provides a large class of potential plaintiffs and the opportunity *409 for declaratory or injunctive relief to prevent repeated violations. For these reasons, I would hold that petitioner—who does not claim that he was discriminated against or that the alleged discrimination against others had any effect on the outcome of his trial——lacks standing to raise the equal protection rights of excluded black veniremen. Accordingly, I join Parts I, II, IV, and V of the Court's opinion and concur in the judgment.

We must decide whether a white criminal defendant has standing to object to discrimination against black persons in the selection of grand jurors. Finding he has the requisite standing to raise equal protection and due process claims, we reverse and remand. I A grand jury in Evangeline Parish, Louisiana, indicted petitioner Terry Campbell on one count of second-degree *395 murder. Campbell, who is white, filed a timely pretrial motion to quash the indictment on the grounds the grand jury was constituted in violation of his equal protection and due process rights under the Fourteenth Amendment and in violation of the Sixth Amendment's fair-cross-section requirement. Campbell alleged a longstanding practice of racial discrimination in the selection of grand jury forepersons in the parish. His sole piece of evidence is that, between January 1976 and August 1993, no black person served as a grand jury foreperson in the parish, even though more than 20 percent of the registered voters were black persons. See Brief for Petitioner 16. The State does not dispute this evidence. The trial judge refused to quash the indictment because "Campbell, being a white man accused of killing another white man," lacked standing to complain "where all of the forepersons were white." App. to Pet. for Cert. G-33. After Campbell's first trial resulted in a mistrial, he was retried, convicted of second-degree murder, and sentenced to life in prison without possibility of parole. Campbell renewed his challenge to the grand jury foreperson selection procedures in a motion for new trial, which was denied. See at I-2. The Louisiana Court of Appeal reversed, because, under our decision in Campbell had standing to object to the alleged discrimination even though he is white. The Court of Appeal remanded the case for an evidentiary hearing because it found Campbell's evidence of discrimination inadequate. The Louisiana Supreme Court reversed. It distinguished as turning on the "considerable and substantial impact" that a prosecutor's discriminatory use of peremptory challenges has on a defendant's trial as well as on the integrity of the judicial system. See The court declined to extend to a claim of discrimination in the selection of a grand jury foreperson. It also found did not *396 afford Campbell standing to raise a due process objection. In this Court held no relief could be granted to a white defendant even if his due process rights were violated by discrimination in the selection of a federal grand jury foreperson. Noting that turned on the ministerial nature of the federal grand jury foreperson's duties, the Louisiana Supreme Court held "[t]he role of the grand jury foreman in Louisiana appears to be similarly ministerial" such that any discrimination "has little, if any, effect on the defendant's due process right of fundamental fairness." 661 So. 2d, at Because the Court of Appeal had not addressed Campbell's other asserted points of error, the Louisiana Supreme Court remanded the case. After the Court of Appeal rejected Campbell's remaining claims, the Louisiana Supreme Court refused to reconsider its ruling on the grand jury issue, We granted certiorari to address the narrow question of Campbell's standing to raise equal protection, due process, and fair-cross-section claims. II As an initial matter, we note Campbell complains about more than discrimination in the selection of his grand jury foreperson; he alleges that discrimination shaped the composition of the grand jury itself. In the federal system and in most States which use grand juries, the foreperson is selected from the ranks of the already seated grand jurors. See 1 S. W. Bryson, J. Felman, & M. Elston, Grand Jury Law and Practice 4:6, pp. 4-20 to 4-21 (either the judge selects the foreperson or fellow grand jurors elect him or her). Under those systems, the title "foreperson" is bestowed on one of the existing grand jurors without any change in the grand jury's composition. In Louisiana, by contrast, the judge selects the foreperson from the grand jury venire before the remaining members of the grand jury have been chosen by lot. La. Code Crim. Proc. *397 Ann., Art. 413(B) ; see also 1 In addition to his other duties, the foreperson of the Louisiana grand jury has the same full voting powers as other grand jury members. As a result, when the Louisiana judge selected the foreperson, he also selected one member of the grand jury outside of the drawing system used to compose the balance of that body. These considerations require us to treat the case as one alleging discriminatory selection of grand jurors. III Standing to litigate often turns on imprecise distinctions and requires difficult line-drawing. On occasion, however, we can ascertain standing with relative ease by applying rules established in prior cases. See Campbell's equal protection claim is such an instance. In we found a white defendant had standing to challenge racial discrimination against black persons in the use of peremptory challenges. We determined the defendant himself could raise the equal protection rights of the excluded jurors. Recognizing our general reluctance to permit a litigant to assert the rights of a third party, we found three preconditions had been satisfied: (1) the defendant suffered an "injury in fact"; (2) he had a "close relationship" to the excluded jurors; and (3) there was some hindrance to the excluded jurors asserting their own rights. ). We concluded a white defendant suffers a serious injury in fact because discrimination at the voir dire stage "`casts doubt on the integrity of the judicial process'. and places the fairness of a criminal proceeding in doubt." This cloud of doubt deprives the defendant of the certainty that a verdict in his case "is given in accordance with the law by persons who are fair." *398 Second, the excluded juror and criminal defendant have a close relationship: They share a common interest in eliminating discrimination, and the criminal defendant has an incentive to serve as an effective advocate because a victory may result in overturning his conviction. -414. Third, given the economic burdens of litigation and the small financial reward available, "a juror dismissed because of race probably will leave the courtroom possessing little incentive to set in motion the arduous process needed to vindicate his own rights." Upon consideration of these factors, we concluded a white defendant had standing to bring an equal protection challenge to racial discrimination against black persons in the petit jury selection process. Although Campbell challenges discriminatory selection of grand jurors, rather than petit jurors, ` reasoning applies to this case on the question of standing. Our prior cases have not decided whether a white defendant's own equal protection rights are violated when the composition of his grand jury is tainted by discrimination against black persons. We do not need to address this issue because Campbell seeks to assert the well-established equal protection rights of black persons not to be excluded from grand jury service on the basis of their race. See Tr. 9 (Dec. 2, 1993); see also Campbell satisfies the three preconditions for third-party standing outlined in Regardless of his or her skin color, the accused suffers a significant injury in fact when the composition of the grand jury is tainted by racial discrimination. "[D]iscrimination on the basis of race in the selection of members of a grand jury strikes at the fundamental values of our judicial system" because the grand jury is a central component of the criminal justice process. The Fifth Amendment requires the Federal Government *399 to use a grand jury to initiate a prosecution, and 22 States adopt a similar rule as a matter of state law. See 1 1:2, at 1-3; see also The grand jury, like the petit jury, "acts as a vital check against the wrongful exercise of power by the State and its prosecutors." It controls not only the initial decision to indict, but also significant decisions such as how many counts to charge and whether to charge a greater or lesser offense, including the important decision to charge a capital crime. See The integrity of these decisions depends on the integrity of the process used to select the grand jurors. If that process is infected with racial discrimination, doubt is cast over the fairness of all subsequent decisions. See at 555- emphasized the harm inflicted when a prosecutor discriminates by striking racial minorities in open court and in front of the entire jury pool. The Court expressed concern that this tactic might encourage the jury to be lawless in its own actions. See -413. The State suggests this sort of harm is not inflicted when a single grand juror is selected based on racial prejudice because the discrimination is invisible to the grand jurors on that panel; it only becomes apparent when a pattern emerges over the course of years. See Brief for Respondent 16. This argument, however, underestimates the seriousness of the allegations. In even if the prosecutor had been motivated by racial prejudice, those responsible for the defendant's fate, the judge and the jury, had shown no actual bias. If, by contrast, the allegations here are true, the impartiality and discretion of the judge himself would be called into question. *400 The remaining two preconditions to establish third-party standing are satisfied with little trouble. We find no reason why a white defendant would be any less effective as an advocate for excluded grand jurors than for excluded petit jurors. See -414. The defendant and the excluded grand juror share a common interest in eradicating discrimination from the grand jury selection process, and the defendant has a vital interest in asserting the excluded juror's rights because his conviction may be overturned as a result. See ; ; The State contends Campbell's connection to "the excluded class of jurors who were not called to serve for the prior 16[1]20442 years is tenuous, at best." Brief for Respondent 22. This argument confuses Campbell's underlying claim with the evidence needed to prove it. To assert the rights of those venirepersons who were excluded from serving on the grand jury in his case, Campbell must prove their exclusion was on account of intentional discrimination. He seeks to do so based on past treatment of similarly situated venirepersons in other cases, see but this does not mean he seeks to assert those venirepersons' rights. As a final matter, excluded grand jurors have the same economic disincentives to assert their own rights as do excluded petit jurors. See We find Campbell, like any other white defendant, has standing to raise an equal protection challenge to discrimination against black persons in the selection of his grand jury. IV It is axiomatic that one has standing to litigate his or her own due process rights. We need not explore the nature and extent of a defendant's due process rights when he alleges discriminatory selection of grand jurors, and confine our holding to his standing to raise the issue. Our decision in Peters v. Kiff addressed the due process question, although *401 a majority of Justices could not agree on a comprehensive statement of the rule or an appropriate remedy for any violation. See ("[W]hatever his race, a criminal defendant has standing to challenge the system used to select his grand jury, on the ground that it arbitrarily excludes members of any race, and thereby denies him due process of law"); ("[T]he strong statutory policy of [18 U.S. C.] 243, which reflects the central concern of the Fourteenth Amendment" permits a white defendant to challenge discrimination in grand jury selection). Our more recent decision in proceeded on the implied assumption that a white defendant had standing to raise a due process objection to discriminatory appointment of a federal grand jury foreperson and skipped ahead to the question whether a remedy was It is unnecessary here to discuss the nature and full extent of due process protection in the context of grand jury selection. That issue, to the extent it is still open based upon our earlier precedents, should be determined on the merits, assuming a court finds it necessary to reach the point in light of the concomitant equal protection The relevant assumption of and our holding here, is that a defendant has standing to litigate whether his conviction was procured by means or procedures which contravene due process. The Louisiana Supreme Court erred in reading to foreclose Campbell's standing to bring a due process 661 So. 2d, at In we held discrimination in the selection of a federal grand jury foreperson did not infringe principles of fundamental fairness because the foreperson's duties were "ministerial." See In this case, the Louisiana Supreme Court decided a Louisiana grand jury foreperson's duties were ministerial too, but then couched its decision in terms of Campbell's *402 lack of standing to litigate a due process 661 So. 2d, at The Louisiana Supreme Court was wrong on both counts. Its interpretation of is inconsistent with the implicit assumption of standing we have just noted and with our explicit reasoning in that case. In a federal grand jury foreperson was selected from the existing grand jurors, so the decision to pick one grand juror over another, at least arguably, affected the defendant only if the foreperson was given some significant duties that he would not have had as a regular grand juror. See Against this background, the Court rejected the defendant's claim because the ministerial role of a federal grand jury foreperson "is not such a vital one that discrimination in the appointment of an individual to that post significantly invades" due process. Campbell's challenge is different in kind and degree because it implicates the impermissible appointment of a member of the grand jury. See -397. What concerns Campbell is not the foreperson's performance of his duty to preside, but performance as a grand juror, namely, voting to charge Campbell with second-degree murder. The significance of this distinction was acknowledged by `s discussion of a previous case, In we assumed relief could be granted for a constitutional challenge to discrimination in the appointment of a state grand jury foreperson. See at distinguished in part because it involved Tennessee's grand jury system. Under the Tennessee law then in effect, 12 members of the grand jury were selected at random, and then the judge appointed a 13th member who also served as foreperson. See As a result, pointed out discrimination in selection of the foreperson in Tennessee was much more serious than in the federal system because the former can affect the composition of the grand jury whereas the latter cannot: "So *403 long as the grand jury itself is properly constituted, there is no risk that the appointment of any one of its members as foreman will distort the overall composition of the array or otherwise taint the operation of the judicial process." By its own terms, then, does not address a claim like Campbell's. V One of the questions raised on certiorari is whether Campbell also has standing to raise a fair-cross-section It appears neither the Louisiana Supreme Court nor the Louisiana Court of Appeal discussed this contention. "With `very rare exceptions,' we will not consider a petitioner's federal claim unless it was either addressed by or properly presented to the state court that rendered the decision we have been asked to review." Campbell has made no effort to meet his burden of showing this issue was properly presented to the Louisiana appellate courts, even after the State pointed out this omission before this Court. See Brief for Respondent 29-30. In fact, Campbell devotes no more than one page of text in his brief to his fair-cross-section See Brief for Petitioner 31-32. We decline to address the issue. The judgment of the Louisiana Supreme Court is reversed. The case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice Thomas, with whom Justice Scalia joins, concurring in part and dissenting in part. I fail to understand how the rights of blacks excluded from jury service can be vindicated by letting a white murderer go free. Yet, in the Court held that a white criminal defendant had standing to challenge his criminal conviction based upon alleged violations of the equal protection rights of black prospective jurors. *404 Today's decision, rather than merely reaffirming ` misguided doctrine of third-party standing, applies that doctrine to a context in which even ' rationales are inapplicable. Because is both incorrect as an initial matter and inapposite to the case at hand, I respectfully dissent from Part III of the Court's opinion. I join Parts I, II, IV, and V and concur in the judgment reversing and remanding to the Louisiana Supreme Court. broke new ground by holding for the first time that a criminal defendant may raise an equal protection challenge to the use of peremptory strikes to exclude jurors of a different race. See (explaining that was inconsistent with "a vast body of clear statement" in our precedents). Recognizing that the defendant could not claim that his own equal protection rights had been denied, the Court held that the defendant had standing to assert the equal protection rights of veniremen excluded from the jury. The Court concluded that the defendant had such "third party standing" because three criteria had been met: he had suffered an "injury in fact"; he had a "close relation" to the excluded jurors; and there was "some hindrance" to the jurors' ability to protect their own interests. distorted standing principles and equal protection law and should be overruled.[1] As Justice Scalia explained at length in his dissent, the defendant in *405 could not satisfy even the first element of standing——injury in fact. The defendant, though certainly displeased with his conviction, failed to demonstrate that the alleged discriminatory use of peremptory challenges against veniremen of another race had any effect on the outcome of his trial. The Court instead found that the defendant had suffered a "cognizable" injury because racial discrimination in jury selection "`casts doubt on the integrity of the judicial process' " and "invites cynicism respecting the jury's neutrality and its obligation to adhere to the law." -412. But the severity of an alleged wrong and a perception of unfairness do not constitute injury in fact. Indeed, "`[i]njury in perception' would seem to be the very antithesis of `injury in fact.' " Furthermore, there is no reason why a violation of a third party's right to serve on a jury should be grounds for reversal when other violations of third-party rights, such as obtaining evidence against the defendant in violation of another person's Fourth or Fifth Amendment rights, are not. further rested on an alleged "close relation[ship]" that arises between a defendant and veniremen because voir dire permits them "to establish a relation, if not a bond of trust," that continues throughout the trial. 413. According to the Court, excluded veniremen share the accused's interest in eliminating racial discrimination because a peremptory strike inflicts upon a venireman a "profound personal humiliation heightened by its public character." -414. But there was simply no basis for the Court's finding of a "close relation[ship]" or "common interest," between black veniremen and white defendants. Regardless of whether black veniremen wish to serve on a particular jury, they do not share the white defendant's interest in obtaining a reversal of his conviction. Surely a black venireman would be dismayed to learn that a white *406 defendant used the venireman's constitutional rights as a means to overturn the defendant's conviction.[2] Finally, concluded that there are substantial obstacles to suit by excluded veniremen, including the costs of proceeding individually and the difficulty of establishing a likelihood of recurrence. These obstacles, though perhaps often present in the context of are alone insufficient to justify third-party standing. Even if the justifications were persuasive, they would still be wholly inapplicable to this case, which involves neither peremptory strikes nor discrimination in the selection of the petit jury. The "injury in fact" allegedly present in is wholly absent from the context at hand. reasoned that repeated peremptory strikes of members of one race constituted an "overt wrong, often apparent to the entire jury panel," that threatened to "cas[t] doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial of the cause." Here, in contrast, the judge selected one member of the grand jury venire to serve as foreman, and the remaining members of the grand jury were selected at random. Even if discriminatory, the judge's selection (rather than exclusion) of a single member of the grand jury could hardly constitute an "overt" wrong that would affect the remainder of the grand jury proceedings, much less the subsequent trial. The Court therefore resorts to emphasizing the seriousness of the allegation of racial discrimination (as though repetition conveys some talismanic power), but that, of course, cannot substitute for injury in fact. In this case, unlike petitioner's allegation of injury in fact is not merely unsupported; it is directly foreclosed. There is no allegation in this case that the composition of *407 petitioner's trial jury was affected by discrimination. Instead, the allegation is merely that there was discrimination in the selection of the grand jury (and of only one member). The properly constituted petit jury's verdict of guilt beyond a reasonable doubt was in no way affected by the composition of the grand jury. Indeed, to the extent that race played any part in the composition of petitioner's petit jury, it was by petitioner's own actions, as petitioner used 5 of his 12 peremptory strikes to eliminate blacks from the petit jury venire. Petitioner's attempt to assert that he was injured by the alleged exclusion of blacks at the grand jury stage is belied by his own use of peremptory strikes against blacks at the petit jury stage. It would be to no avail to suggest that the alleged discrimination in grand jury selection could have caused an indictment improperly to be rendered, because the petit jury's verdict conclusively establishes that no reasonable grand jury could have failed to indict petitioner.[3] Nor can the Court find support in our precedents allowing a defendant to challenge his conviction based upon discrimination in grand jury selection, because all of those cases involved defendants' assertions of their own rights. See, e. g., ; Although we often do not require a criminal defendant to establish a cause-and-effect relationship between the procedural illegality and the subsequent conviction when the defendant asserts a denial of his own rights, see 499 U.S., -428 (noting that the government generally bears the burden of establishing harmlessness of such errors), even the majority acknowledged that *408 such a showing is the foremost requirement of third-party standing, as evidenced by the lengths to which it went in an attempt to justify its finding of injury in fact. The Court's finding of a close relationship (an ambient fraternity of sorts) between petitioner and the black veniremen whose rights he seeks to vindicate is likewise unsupported. The Court, of course, never identifies precisely whose rights petitioner seeks to vindicate. Is it all veniremen who were not chosen as foreman? Is it all nonwhite veniremen? All black veniremen? Or just the black veniremen who were not ultimately chosen for the grand jury? Leaving aside the fact that the Court fails to identify the rights-holders, I fail to see how a "close relationship" could have developed between petitioner and the veniremen. Even if a "bond," could develop between veniremen and defendants during voir dire, such a bond could not develop in the context of a judge's selection of a grand jury foreman—a context in which the defendant plays no role. Nor can any "common interest" between a defendant and excluded veniremen arise based upon a public humiliation suffered by the latter, because unlike the exercise of peremptory strikes, Evangeline Parish's process of selecting foremen does not constitute "overt" action against particular veniremen. Rather, those veniremen not chosen (all but one) are simply left to take their chances at being randomly selected for the remaining seats on the grand jury. Finally, there are ample opportunities for prospective jurors whose equal protection rights have been violated to vindicate those rights, rather than relying upon a defendant of another race to do so for them. In contrast to the Batson line of cases, where an allegation may concern discrimination in the defendant's case alone, in this case petitioner alleges systematic discrimination in the selection of grand jury foremen in Evangeline Parish. Such systematic discrimination provides a large class of potential plaintiffs and the opportunity *409 for declaratory or injunctive relief to prevent repeated violations. For these reasons, I would hold that petitioner—who does not claim that he was discriminated against or that the alleged discrimination against others had any effect on the outcome of his trial——lacks standing to raise the equal protection rights of excluded black veniremen. Accordingly, I join Parts I, II, IV, and V of the Court's opinion and concur in the judgment.

Justice Burger

concurring

Baldwin v. Fish and Game Comm'n of Mont.

https://www.courtlistener.com/opinion/109868/baldwin-v-fish-and-game-commn-of-mont/

https://www.courtlistener.com/api/rest/v3/clusters/109868/

1977-090

In joining the Court's opinion I write separately only to emphasize the significance of Montana's special interest in its elk population and to point out the limits of the Court's holding. The doctrine that a State "owns" the wildlife within its borders as trustee for its citizens, see Geer v. Connecticut, 161 U.S. 519 (1896), is admittedly a legal anachronism of sorts. See Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284 (1977). A State does not "own" wild birds and animals in the same way that it may own other natural resources such as land, oil, or timber. But, as noted in the Court's opinion, ante, at 386, and contrary to the implications of the dissent, the doctrine is not completely obsolete. It manifests the State's special interest in regulating and preserving wildlife for the benefit of its citizens. See Douglas v. Seacoast Products, Inc., supra, at 284, 287. Whether we describe this interest as proprietary or otherwise is not significant. We recognized in Toomer v. Witsell, 334 U.S. 385, 401-402 (1948), that the doctrine does not apply to migratory shrimp located in the three-mile belt of the marginal sea. But the elk involved in this case are found within Montana and remain primarily within the State. As such they are natural resources of the State, and Montana citizens have a legitimate interest in preserving their access to them. The Court acknowledges this interest when it points out that the Montana elk supply "has been entrusted to the care of the State by the people of Montana," ante, at 388, and asserts the continued vitality of *393 the doctrine upon which the court relied in Corfield v. Coryell, 6 F. Cas. 546, 552 (No. 3,230) (CC ED Pa. 1825); McCready v. Virginia, 94 U.S. 391 (1877); and Geer v. Connecticut, supra. See ante, at 386. McCready v. Virginia, supra, made it clear that the Privileges and Immunities Clause does not prevent a State from preferring its own citizens in granting public access to natural resources in which they have a special interest. Thus Montana does not offend the Privileges and Immunities Clause by granting residents preferred access to natural resources that do not belong to private owners. And Montana may give its residents preferred access to Montana elk without offending the Privileges and Immunities Clause. It is not necessary to challenge the cases cited by the dissent, post, at 405, which make clear that a State does not have absolute freedom to regulate the taking of wildlife within its borders or over its airspace. A State may not regulate the killing of migratory game birds in a way that frustrates a valid treaty of the United States entered into pursuant to the Art. II, § 2, treaty power, Missouri v. Holland, 252 U.S. 416, 434 (1920); it may not regulate wild animals found on federal lands in a way that conflicts with federal statutes enacted under the Property Clause, Art. IV, § 3, cl. 2, Kleppe v. New Mexico, 426 U.S. 529, 546 (1976); nor may it allocate access to its wildlife in a manner that offends the Fourteenth Amendment. Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948). Once wildlife becomes involved in interstate commerce, a State may not restrict the use of or access to that wildlife in a way that burdens interstate commerce. Douglas v. Seacoast Products, Inc., supra, at 281-282; Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928). None of those cases hold that the Privileges and Immunities Clause prevents a State from preferring its own citizens in allocating access to wildlife within that State. It is the special interest of Montana citizens in its elk that *394 permits Montana to charge nonresident hunters higher license fees without offending the Privileges and Immunities Clause. The Court does not hold that the Clause permits a State to give its residents preferred access to recreational activities offered for sale by private parties. Indeed it acknowledges that the Clause requires equality with respect to privileges "bearing upon the vitality of the Nation as a single entity." Ante, at 383. It seems clear that those basic privileges include "all the privileges of trade and commerce" which were protected in the fourth Article of the Articles of Confederation. See Austin v. New Hampshire, 420 U.S. 656, 660-661, and n. 6 (1975). The Clause assures noncitizens the opportunity to purchase goods and services on the same basis as citizens; it confers the same protection upon the buyer of luxury goods and services as upon the buyer of bread. MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE and MR.

In joining the Court's opinion I write separately only to emphasize the significance of Montana's special interest in its elk population and to point out the limits of the Court's holding. The doctrine that a State "owns" the wildlife within its borders as trustee for its citizens, see is admittedly a legal anachronism of sorts. See A State does not "own" wild birds and animals in the same way that it may own other natural resources such as land, oil, or timber. But, as noted in the Court's opinion, ante, at 386, and contrary to the implications of the dissent, the doctrine is not completely obsolete. It manifests the State's special interest in regulating and preserving wildlife for the benefit of its citizens. See at 287. Whether we describe this interest as proprietary or otherwise is not significant. We recognized in that the doctrine does not apply to migratory shrimp located in the three-mile belt of the marginal sea. But the elk involved in this case are found within Montana and remain primarily within the State. As such they are natural resources of the State, and Montana citizens have a legitimate interest in preserving their access to them. The Court acknowledges this interest when it points out that the Montana elk supply "has been entrusted to the care of the State by the people of Montana," ante, at 388, and asserts the continued vitality of *393 the doctrine upon which the court relied in (No. 3,230) (CC ED Pa. 1825); ; and See ante, at 386. made it clear that the Privileges and Immunities Clause does not prevent a State from preferring its own citizens in granting public access to natural resources in which they have a special interest. Thus Montana does not offend the Privileges and Immunities Clause by granting residents preferred access to natural resources that do not belong to private owners. And Montana may give its residents preferred access to Montana elk without offending the Privileges and Immunities Clause. It is not necessary to challenge the cases cited by the dissent, post, at 405, which make clear that a State does not have absolute freedom to regulate the taking of wildlife within its borders or over its airspace. A State may not regulate the killing of migratory game birds in a way that frustrates a valid treaty of the United States entered into pursuant to the Art. II, 2, treaty power, ; it may not regulate wild animals found on federal lands in a way that conflicts with federal statutes enacted under the Property Clause, Art. IV, 3, cl. 2, ; nor may it allocate access to its wildlife in a manner that offends the Fourteenth Amendment. Once wildlife becomes involved in interstate commerce, a State may not restrict the use of or access to that wildlife in a way that burdens interstate commerce. ; Foster-Fountain Packing None of those cases hold that the Privileges and Immunities Clause prevents a State from preferring its own citizens in allocating access to wildlife within that State. It is the special interest of Montana citizens in its elk that *394 permits Montana to charge nonresident hunters higher license fees without offending the Privileges and Immunities Clause. The Court does not hold that the Clause permits a State to give its residents preferred access to recreational activities offered for sale by private parties. Indeed it acknowledges that the Clause requires equality with respect to privileges "bearing upon the vitality of the Nation as a single entity." Ante, at 383. It seems clear that those basic privileges include "all the privileges of trade and commerce" which were protected in the fourth Article of the Articles of Confederation. See The Clause assures noncitizens the opportunity to purchase goods and services on the same basis as citizens; it confers the same protection upon the buyer of luxury goods and services as upon the buyer of bread. MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE and MR.

Justice Marshall

dissenting

Solorio v. United States

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

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

1986-153

Less than 20 years ago, this Court held in O'Callahan v. Parker, 395 U.S. 258 (1969), that, to be subject to trial by court-martial, a criminal offense charged against a member of the Armed Forces had to be "service connected," lest the phrase "cases arising in the land or naval forces" in the Fifth Amendment "be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers." Id., at 273. Today the Court overrules O'Callahan. In doing so, it disregards constitutional language and principles of stare decisis in its singleminded determination to subject members of our Armed Forces to the unrestrained control of the military in the area of criminal justice. I dissent. I The majority begins by assuming that the limitation on court-martial jurisdiction enunciated in O'Callahan was based on the power of Congress, contained in Art. I, § 8, cl. 14, "[t]o make Rules for the Government and Regulation of the land and naval Forces." It then rejects this asserted limitation of congressional power on the ground that the Framers intended to give Congress plenary authority over the *453 government of the military. But the Court in O'Callahan did not simply address whether Art. I, § 8, cl. 14, granted Congress the authority to create court-martial jurisdiction over all crimes committed by members of the Armed Forces. Congress' Article I power to regulate the Armed Forces is limited by the Fifth Amendment right to indictment or presentment by a grand jury and the Sixth Amendment right to trial by jury.[1] "[T]he constitutional grant of power to Congress to regulate the armed forces," this Court has previously stated, "itself does not empower Congress to deprive people of trials under Bill of Rights safeguards, and we are not willing to hold that power to circumvent those safeguards should be inferred through the Necessary and Proper Clause." United States ex rel. Toth v. Quarles, 350 U.S. 11, 21-22 (1955). The majority simply disregards the limitations the Bill of Rights imposes on the reach of Art. I, § 8, cl. 14. The rights to grand jury process and to trial by jury are, of course, of restricted application in military cases. The Fifth Amendment excepts from the grand jury requirement "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,"[2] and the *454 Court has held this exception applicable to the Sixth Amendment right to trial by jury as well. Ex parte Milligan, 4 Wall. 2, 123 (1867). But the text of the exception is inconsistent with the majority's conclusion that the only relevant factor in determining whether a court-martial has jurisdiction over a case is the status of the defendant as a member of the Armed Services.[3] The Fifth Amendment's exception covers only "cases arising in the land and naval forces" (emphasis added). It makes no reference to the status of the individual committing the crime. Had that been the Framers' intent, it would have been easy to have said so, given that the grand jury provision of the Amendment, which states that "[n]o Person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury," speaks not in terms of "crimes" or "cases," but of individual defendants. Nonetheless, the exception contained in the Fifth Amendment is expressed — and applies by its terms — only to cases arising in the Armed Forces. O'Callahan addressed not whether Art. I, § 8, cl. 14, empowered Congress to create court-martial jurisdiction over all crimes committed by service members, but rather whether Congress, in exercising that power, had encroached upon the rights of members of Armed Forces whose cases did not "arise in" the Armed Forces. This is clear from the Court's statement of its holding in O'Callahan: "We have concluded that the crime to be under military jurisdiction must be service connected, lest `cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,' as used in the Fifth Amendment, be expanded to deprive every *455 member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers." 395 U.S., at 272-273 (footnote omitted).[4] *456 The protections afforded individuals by the Fifth and Sixth Amendments are central to our constitutional scheme of justice. The right to trial by jury, in particular, "ranks very high in our catalogue of constitutional safeguards." United States ex rel. Toth v. Quarles, 350 U. S., at 16. These protections should not be lightly abrogated. Consequently, the exception in the Fifth Amendment for cases arising in the Armed Forces must be strictly construed. This was the basis for the Court's conclusion, in Toth, that the power to authorize trial by court-martial should be limited to " `the least possible power adequate to the end proposed.' " Id., at 23 (emphasis omitted), quoting Anderson v. Dunn, 6 Wheat. 204, 231 (1821). The historical evidence considered by the Court in O'Callahan is therefore relevant, not to what the Framers intended to include in the scope of the congressional power to regulate the Armed Forces in Art. I, § 8, cl. 14, but to what the Framers, wary of military jurisdiction and familiar with strong restrictions on the scope of that jurisdiction, considered "cases arising in the armed forces." Even assuming that they intended to assign control over the scope of the Article I power to the Legislature, this does not imply that the meaning of the Fifth Amendment's "arising in" exception can be interpreted without reference to the practices of that time. In that respect it is significant that the British political and legal writing of the 17th and 18th centuries demonstrates a longstanding suspicion of broad court-martial jurisdiction. This suspicion was well known in colonial America, and was based on familiar history.[5] British writers and legislators *457 took a narrow view of the appropriate scope of court-martial jurisdiction, which manifested itself in a very limited grant of authority to try offenses by court-martial during the period of which the Framers would have been most acutely aware. See, e. g., M. Hale, The History of the Common Law of England 42-43 (6th ed. 1820). Not only was that jurisdiction narrow, it was expressly limited to cases having some connection with the military. The test was not one of status, but one of military relationship. See S. Adye, A Treatise on Courts Martial 60 (1786) ("The crimes that are cognizable by a court martial, as repugnant to military discipline, are pointed out by the mutiny act and articles of war . . . and as to other crimes which officers and soldiers being guilty of, are to be tried for by the ordinary course of law, in like manner with other subjects"); see also 1 C. Clode, Military Forces of the Crown; Their Administration and Government 158 *458 (1869) ("It has been a subject of controversy to distinguish the offences that are purely Military (and therefore properly within the cognizance of a Court-martial), from others that are Civil or Political (and therefore properly within the cognizance of the civil tribunals of the community)"); Grant v. Gould, 2 H. Bl. 69, 99-100, 126 Eng. Rep. 434, 450 (C. P. 1792) ("In this country, all the delinquencies of soldiers are not triable, as in most countries in Europe, by martial law; but where they are ordinary offences against the civil peace they are tried by the common law courts. . . . The object of the mutiny act . . . is to create a court invested with authority to try those who are a part of the army . . . and the object of the trial is limited to breaches of military duty") (emphasis omitted). The reach of military law in Britain at the time of the Revolution thus permitted courts-martial only for offenses committed by members of the Armed Forces that had some connection with their military service. The majority disputes the O'Callahan Court's suggestion that the British Articles of War forbade the trial of civil offenses by court-martial. The Court points to Section XIV, Article XVI, of the British Articles of War of 1774, reprinted in G. Davis, Military Law of the United States 581, 593 (3d rev. ed. 1915), which provided: "All Officers and Soldiers are to behave themselves orderly in Quarters, and on their March; and whosoever shall commit any Waste or Spoil either in Walks of Trees, Parks, Warrens, Fish Ponds, Houses or Gardens, Corn Fields, Inclosures or Meadows, or shall maliciously destroy any Property whatsoever belonging to any of Our Subjects, unless by order of the then Commander in Chief of Our Forces, to annoy Rebels or other Enemies in Arms against Us, he or they that shall be found guilty of offending herein shall (besides such Penalties as they are liable to by law) be punished according to the Nature and Degree of the Offence, by the Judgment of a Regimental or General Court Martial." *459 The majority contends that this provision counters any argument that court-martial jurisdiction in Britain at the time of the American Revolution was in any respect limited to offenses not punishable by civil law. Ante, at 443. The latter provision, however, appears in a section of the Articles of War captioned "Of Duties in Quarters, in Garrison, or in the Field," and its text suggests that the activities it forbade were considered derelictions of military duty, and were punishable by court-martial on that basis.[6] American colonists shared the British suspicion of broad military authority in courts-martial. One of the grievances stated in the Declaration of Independence was King George III's assent to "pretended Legislation: For quartering large bodies of armed troops among us: For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States." The Framers thus were concerned both with protecting the rights of those subjected to courts-martial, and with preventing courts-martial from permitting soldiers to get away with murder — literally — in the civilian community. This "known hostility of the American people to any interference by the military with the regular administration of justice in the civil courts," Coleman v. Tennessee, 97 U.S. 509, 514 (1879), makes it unlikely that the Framers considered any crime committed by a member of the Armed Forces, regardless of *460 its lack of connection to military service, to give rise to a "case arising in" the Armed Forces of the new Nation.[7] This is borne out by provisions in the American Articles of 1776 that are comparable to those in the British Articles of War of 1774. See Section X, Article I, reprinted in 2 W. Winthrop, Military Law and Precedents 1494 (1896); Section XIII, Article 16, reprinted in 2 Winthrop, supra, at 1497; Section XVIII, Article 5, reprinted in 2 Winthrop, supra, at 1503. The provisions created military offenses where the crimes involved were service connected. This tradition continued after the adoption of the Constitution. With respect to the 1874 Articles of War, for example, Davis wrote: "As to whether an act which is a civil crime is also a military offense no rule can be laid down which will cover all cases, for the reason that what may be a military offense under certain circumstances may lose that character under others. . . . But if the act be committed on a military reservation, or other ground occupied by the army, or in its neighborhood, so as to be in the constructive presence of the army; or if committed while on duty, particularly if the injury be to a member of the community whom it is the offender's duty to protect; or if committed *461 in the presence of other soldiers, or while in uniform; or if the offender use his military position, or that of another, for the purpose of intimidation or other unlawful influence or object — such facts would be sufficient to make it prejudicial to military discipline . . . ." Davis, supra, at 476. Viewed historically, then, O'Callahan's recognition of the service connection requirement did not signify a meaningful change in what could be tried in courts-martial. Quite the reverse: not until the enactment of the Uniform Code of Military Justice in 1950 did Congress attempt to give courts-martial the authority to try the crimes of murder and rape committed in peacetime within the United States. See Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 12 Vand. L. Rev. 435, 452-453 (1960). Common-law felonies in peacetime were only brought within the court-martial jurisdiction in 1916. Wiener, Courts-Martial and the Bill of Rights: The Original Practice I, 72 Harv. L. Rev. 1, 10-12 (1958). The Framers' conception of what could properly be tried in a court-martial must have informed their understanding of what cases arise in the Armed Forces, thus permitting what would otherwise be unconstitutional infringements of Fifth and Sixth Amendment rights. The relatively recent expansion of the authority of military tribunals appears to disregard the Framers' understanding. Instead of acknowledging the Fifth Amendment limits on the crimes triable in a court-martial, the Court simply ignores them. But "[t]he concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government." Reid v. Covert, 354 U.S. 1, 14 (1957) (plurality opinion). *462 The limitations may not, in the view of the majority, be desirable, but that does not mean they do not exist. The requirement of service connection recognized in O'Callahan has a legitimate basis in constitutional language and a solid historical foundation. It should be applied in this case. II Application of the service connection requirement of O'Callahan, as further elaborated in Relford v. Commandant, U. S. Disciplinary Barracks, 401 U.S. 355 (1971), demonstrates that petitioner's Alaska crimes do not have an adequate service connection to support the exercise of court-martial jurisdiction. Petitioner's offenses did not detract from the performance of his military duties. He committed these crimes while properly absent from his unit, and there was no connection between his assigned duties and his crimes. Nor did petitioner's crimes threaten people or areas under military control. The crimes were committed in petitioner's private home in the civilian community in Juneau, where there is not even a base for Coast Guard personnel. Petitioner's acts were not likely to go unpunished; the court-martial judge determined that the offenses were of a type traditionally prosecuted by civilian courts, that such courts were available, and that, while the Alaska courts had deferred prosecution in light of the court-martial proceeding, the State had not declined to prosecute the offenses. Nor did the crimes implicate any authority stemming from the war power; they were committed within the territorial United States while the Nation was at peace. Moreover, the crimes caused no measurable interference with military relationships. Though the victims were dependents of Coast Guard members, the court-martial judge found that there was only de minimis military interaction between petitioner and the fathers of the victims, and that the relationships between petitioner and the families of the victims *463 "were founded primarily upon the ages and activities of the children and additionally upon common sporting interests, common spousal interest and employment and neighborly relationships," App. to Pet. for Cert. 58a, rather than the connection of petitioner and the families through the Coast Guard.[8] Because the crimes did not take place in an area within military control or have any effect on petitioner's military duties, their commission posed no challenge to the maintenance of order in the local command. The military judge found that the Government had not demonstrated any impact of the offenses on "morale, discipline, [or] the reputation or the integrity of the Coast Guard in Juneau." The only connection between the military and the offenses at issue was the fact that the victims were military dependents. But the military judge found explicitly that the military association of petitioner and the victims' fathers did not facilitate petitioner's crimes,[9] and that "[t]he impact apparent in this case, that is, on the parents and the victims themselves is no different than that which would be produced by [a] civilian perpetrator." Id., at 57a. The military judge, after properly reviewing the Relford factors, concluded correctly that they did not render petitioner's *464 offenses service connected and dismissed the charges. Engaging in what can only be described as impermissible appellate factfinding,[10] the Coast Guard Court of Military *465 Review reversed the dismissal. 21 M.J. 512 (1985). It concluded that the military judge's finding that the offenses had had no impact on morale or discipline was erroneous because the judge should have considered the effect the offenses would have had on the community in Juneau had they come to light while the victims and their families were still in Alaska, and the impact of the offenses on morale and discipline at Governors Island. Without remanding for further factfinding, the court held that the Alaska offenses had a direct impact upon the good order, discipline, morale, and welfare of Coast Guard personnel at Governors Island. Id., at 519. It further asserted, again without basis in the facts found by the military judge, that the Coast Guard's interest in deterring the offenses was greater than that of the civilian authorities, and that the concerns of the victims' parents would have been different had the offender been a civilian. Id., at 519-520. On the basis of these newly found facts, the Court of Military Review held petitioner's crime sufficiently service connected to justify the exercise of court-martial jurisdiction. Id., at 522. The Court of Military Appeals affirmed. 21 M.J. 251 (1986). While conceding that its "precedents involving off-base sex offenses against civilian dependents of military personnel would point to a different conclusion," id., at 254, it concluded that a "recent development in our society" — specifically, an increase in concern for the victims of crimes — meant that sex offenses committed against young children of members of the military, which would have "a continuing effect on the victims and their families," id., at 256, sufficed to establish service connection. The military judge's straightforward application of O'Callahan and Relford was plainly correct given the facts as he found them, facts that the reviewing courts have not demonstrated to have been clearly erroneous. The Court of Military *466 Appeals' apparent conclusion that serious or disturbing crimes committed upon military dependents sufficed to create court-martial jurisdiction ignored this Court's prior decisions. The majority asserts that "the service connection approach, even as elucidated in Relford, has proved confusing and difficult for military courts to apply." Ante, at 448. It is true that the test requires a careful, case-specific factual inquiry. But this is not beyond the capacity of the military courts. Indeed, the military judge in this case engaged in a thorough and thoughtful application of the Relford factors. It should not be surprising that such determinations may at times be difficult or time consuming or require the drawing of narrow distinctions. The trial of any person before a court-martial encompasses a deliberate decision to withhold procedural protections guaranteed by the Constitution. Denial of these protections is a very serious matter. The Framers declined to draw an easy line, like that established by the Court today, which would sweep an entire class of Americans beyond the reach of the Bill of Rights. Instead, they required that the protections of the Fifth and Sixth Amendments be applied in any case not "arising in" the Armed Forces. This requirement must not be discarded simply because it may be less expeditious than the majority deems appropriate. III O'Callahan v. Parker remains correct and workable today. The Court nonetheless insists on reopening a question which was finally and properly resolved in 1969. In doing so, it shows a blatant disregard for principles of stare decisis, and makes more dubious the presumption "that bedrock principles are founded in the law rather than in the proclivities of individuals." Vasquez v. Hillery, 474 U.S. 254, 265 (1986). This in turn undermines "the integrity of our constitutional system of government, both in appearance and in fact." *467 Ibid.; see also Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 663, (1895) (Harlan, J., dissenting). The Court's willingness to overturn precedent may reflect in part its conviction, frequently expressed this Term, that members of the Armed Forces may be subjected virtually without limit to the vagaries of military control. See United States v. Stanley, post, p. 669; United States v. Johnson, 481 U.S. 681 (1987). But the Court's decision today has, potentially, the broadest reach of any of these cases. Unless Congress acts to avoid the consequences of this case, every member of our Armed Forces, whose active duty members number in the millions, can now be subjected to court-martial jurisdiction — without grand jury indictment or trial by jury — for any offense, from tax fraud to passing a bad check, regardless of its lack of relation to "military discipline, morale and fitness." Schlesinger v. Councilman, 420 U.S. 738, 761, n. 34 (1975). Today's decision deprives our military personnel of procedural protections that are constitutionally mandated in trials for purely civilian offenses. The Court's action today reflects contempt, both for the members of our Armed Forces and for the constitutional safeguards intended to protect us all. I dissent.

Less than 20 years ago, this Court held in that, to be subject to trial by court-martial, a criminal offense charged against a member of the Armed Forces had to be "service connected," lest the phrase "cases arising in the land or naval forces" in the Fifth Amendment "be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers." Today the Court overrules O'Callahan. In doing so, it disregards constitutional language and principles of stare decisis in its singleminded determination to subject members of our Armed Forces to the unrestrained control of the military in the area of criminal justice. I dissent. I The majority begins by assuming that the limitation on court-martial jurisdiction enunciated in O'Callahan was based on the power of Congress, contained in Art. I, 8, cl. "[t]o make Rules for the Government and Regulation of the land and naval Forces." It then rejects this asserted limitation of congressional power on the ground that the Framers intended to give Congress plenary authority over the *453 government of the military. But the Court in O'Callahan did not simply address whether Art. I, 8, cl. granted Congress the authority to create court-martial jurisdiction over all crimes committed by members of the Armed Forces. Congress' Article I power to regulate the Armed Forces is limited by the Fifth Amendment right to indictment or presentment by a grand jury and the Sixth Amendment right to trial by jury.[1] "[T]he constitutional grant of power to Congress to regulate the armed forces," this Court has previously stated, "itself does not empower Congress to deprive people of trials under Bill of Rights safeguards, and we are not willing to hold that power to circumvent those safeguards should be inferred through the Necessary and Proper Clause." United States ex rel. The majority simply disregards the limitations the Bill of Rights imposes on the reach of Art. I, 8, cl. The rights to grand jury process and to trial by jury are, of course, of restricted application in military cases. The Fifth Amendment excepts from the grand jury requirement "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,"[2] and the *454 Court has held this exception applicable to the Sixth Amendment right to trial by jury as well. Ex parte Milligan, But the text of the exception is inconsistent with the majority's conclusion that the only relevant factor in determining whether a court-martial has jurisdiction over a case is the status of the defendant as a member of the Armed Services.[3] The Fifth Amendment's exception covers only "cases arising in the land and naval forces" (emphasis added). It makes no reference to the status of the individual committing the crime. Had that been the Framers' intent, it would have been easy to have said so, given that the grand jury provision of the Amendment, which states that "[n]o Person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury," speaks not in terms of "crimes" or "cases," but of individual defendants. Nonetheless, the exception contained in the Fifth Amendment is expressed — and applies by its terms — only to cases arising in the Armed Forces. O'Callahan addressed not whether Art. I, 8, cl. empowered Congress to create court-martial jurisdiction over all crimes committed by service members, but rather whether Congress, in exercising that power, had encroached upon the rights of members of Armed Forces whose cases did not "arise in" the Armed Forces. This is clear from the Court's statement of its holding in O'Callahan: "We have concluded that the crime to be under military jurisdiction must be service connected, lest `cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,' as used in the Fifth Amendment, be expanded to deprive every *455 member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers." -273[4] *456 The protections afforded individuals by the Fifth and Sixth Amendments are central to our constitutional scheme of justice. The right to trial by jury, in particular, "ranks very high in our catalogue of constitutional safeguards." United States ex rel. These protections should not be lightly abrogated. Consequently, the exception in the Fifth Amendment for cases arising in the Armed Forces must be strictly construed. This was the basis for the Court's conclusion, in Toth, that the power to authorize trial by court-martial should be limited to " `the least possible power adequate to the end proposed.' " quoting The historical evidence considered by the Court in O'Callahan is therefore relevant, not to what the Framers intended to include in the scope of the congressional power to regulate the Armed Forces in Art. I, 8, cl. but to what the Framers, wary of military jurisdiction and familiar with strong restrictions on the scope of that jurisdiction, considered "cases arising in the armed forces." Even assuming that they intended to assign control over the scope of the Article I power to the Legislature, this does not imply that the meaning of the Fifth Amendment's "arising in" exception can be interpreted without reference to the practices of that time. In that respect it is significant that the British political and legal writing of the 17th and 18th centuries demonstrates a longstanding suspicion of broad court-martial jurisdiction. This suspicion was well known in colonial America, and was based on familiar history.[5] British writers and legislators *457 took a narrow view of the appropriate scope of court-martial jurisdiction, which manifested itself in a very limited grant of authority to try offenses by court-martial during the period of which the Framers would have been most acutely aware. See, e. g., M. Hale, The History of the Common Law of England 42-43 (6th ed. 1820). Not only was that jurisdiction narrow, it was expressly limited to cases having some connection with the military. The test was not one of status, but one of military relationship. See S. Adye, A Treatise on Courts Martial 60 (1786) ("The crimes that are cognizable by a court martial, as repugnant to military discipline, are pointed out by the mutiny act and articles of war and as to other crimes which officers and soldiers being guilty of, are to be tried for by the ordinary course of law, in like manner with other subjects"); see also 1 C. Clode, Military Forces of the Crown; Their Administration and Government 158 *458 (1869) ("It has been a subject of controversy to distinguish the offences that are purely Military (and therefore properly within the cognizance of a Court-martial), from others that are Civil or Political (and therefore properly within the cognizance of the civil tribunals of the community)"); Grant v. Gould, 2 H. Bl. 69, 99-100, 126 Eng. Rep. 434, 450 (C. P. 1792) ("In this country, all the delinquencies of soldiers are not triable, as in most countries in Europe, by martial law; but where they are ordinary offences against the civil peace they are tried by the common law courts. The object of the mutiny act is to create a court invested with authority to try those who are a part of the army and the object of the trial is limited to breaches of military duty") The reach of military law in Britain at the time of the Revolution thus permitted courts-martial only for offenses committed by members of the Armed Forces that had some connection with their military service. The majority disputes the O'Callahan Court's suggestion that the British Articles of War forbade the trial of civil offenses by court-martial. The Court points to Section XIV, Article XVI, of the British Articles of War of 1774, reprinted in G. Davis, Military Law of the United States 581, 593 (3d rev. ed. 1915), which provided: "All Officers and Soldiers are to behave themselves orderly in Quarters, and on their March; and whosoever shall commit any Waste or Spoil either in Walks of Trees, Parks, Warrens, Fish Ponds, Houses or Gardens, Corn Fields, Inclosures or Meadows, or shall maliciously destroy any Property whatsoever belonging to any of Our Subjects, unless by order of the then Commander in Chief of Our Forces, to annoy Rebels or other Enemies in Arms against Us, he or they that shall be found guilty of offending herein shall (besides such Penalties as they are liable to by law) be punished according to the Nature and Degree of the Offence, by the Judgment of a Regimental or General Court Martial." *459 The majority contends that this provision counters any argument that court-martial jurisdiction in Britain at the time of the American Revolution was in any respect limited to offenses not punishable by civil law. Ante, at 443. The latter provision, however, appears in a section of the Articles of War captioned "Of Duties in Quarters, in Garrison, or in the Field," and its text suggests that the activities it forbade were considered derelictions of military duty, and were punishable by court-martial on that basis.[6] American colonists shared the British suspicion of broad military authority in courts-martial. One of the grievances stated in the Declaration of Independence was King George III's assent to "pretended Legislation: For quartering large bodies of armed troops among us: For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States." The Framers thus were concerned both with protecting the rights of those subjected to courts-martial, and with preventing courts-martial from permitting soldiers to get away with murder — literally — in the civilian community. This "known hostility of the American people to any interference by the military with the regular administration of justice in the civil courts," makes it unlikely that the Framers considered any crime committed by a member of the Armed Forces, regardless of *460 its lack of connection to military service, to give rise to a "case arising in" the Armed Forces of the new Nation.[7] This is borne out by provisions in the American Articles of 1776 that are comparable to those in the British Articles of War of 1774. See Section X, Article I, reprinted in 2 W. Military Law and Precedents 94 (1896); Section XIII, Article 16, reprinted in 2 ; Section XVIII, Article 5, reprinted in 2 The provisions created military offenses where the crimes involved were service connected. This tradition continued after the adoption of the Constitution. With respect to the 1874 Articles of War, for example, Davis wrote: "As to whether an act which is a civil crime is also a military offense no rule can be laid down which will cover all cases, for the reason that what may be a military offense under certain circumstances may lose that character under others. But if the act be committed on a military reservation, or other ground occupied by the army, or in its neighborhood, so as to be in the constructive presence of the army; or if committed while on duty, particularly if the injury be to a member of the community whom it is the offender's duty to protect; or if committed *461 in the presence of other soldiers, or while in uniform; or if the offender use his military position, or that of another, for the purpose of intimidation or other unlawful influence or object — such facts would be sufficient to make it prejudicial to military discipline" Davis, Viewed historically, then, O'Callahan's recognition of the service connection requirement did not signify a meaningful change in what could be tried in courts-martial. Quite the reverse: not until the enactment of the Uniform Code of Military Justice in 1950 did Congress attempt to give courts-martial the authority to try the crimes of murder and rape committed in peacetime within the United States. See Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, Common-law felonies in peacetime were only brought within the court-martial jurisdiction in 1916. Wiener, Courts-Martial and the Bill of Rights: The Original Practice I, The Framers' conception of what could properly be tried in a court-martial must have informed their understanding of what cases arise in the Armed Forces, thus permitting what would otherwise be unconstitutional infringements of Fifth and Sixth Amendment rights. The relatively recent expansion of the authority of military tribunals appears to disregard the Framers' understanding. Instead of acknowledging the Fifth Amendment limits on the crimes triable in a court-martial, the Court simply ignores them. But "[t]he concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government." *462 The limitations may not, in the view of the majority, be desirable, but that does not mean they do not exist. The requirement of service connection recognized in O'Callahan has a legitimate basis in constitutional language and a solid historical foundation. It should be applied in this case. II Application of the service connection requirement of O'Callahan, as further elaborated in demonstrates that petitioner's Alaska crimes do not have an adequate service connection to support the exercise of court-martial jurisdiction. Petitioner's offenses did not detract from the performance of his military duties. He committed these crimes while properly absent from his unit, and there was no connection between his assigned duties and his crimes. Nor did petitioner's crimes threaten people or areas under military control. The crimes were committed in petitioner's private home in the civilian community in Juneau, where there is not even a base for Coast Guard personnel. Petitioner's acts were not likely to go unpunished; the court-martial judge determined that the offenses were of a type traditionally prosecuted by civilian courts, that such courts were available, and that, while the Alaska courts had deferred prosecution in light of the court-martial proceeding, the State had not declined to prosecute the offenses. Nor did the crimes implicate any authority stemming from the war power; they were committed within the territorial United States while the Nation was at peace. Moreover, the crimes caused no measurable interference with military relationships. Though the victims were dependents of Coast Guard members, the court-martial judge found that there was only de minimis military interaction between petitioner and the fathers of the victims, and that the relationships between petitioner and the families of the victims *463 "were founded primarily upon the ages and activities of the children and additionally upon common sporting interests, common spousal interest and employment and neighborly relationships," App. to Pet. for Cert. 58a, rather than the connection of petitioner and the families through the Coast Guard.[8] Because the crimes did not take place in an area within military control or have any effect on petitioner's military duties, their commission posed no challenge to the maintenance of order in the local command. The military judge found that the Government had not demonstrated any impact of the offenses on "morale, discipline, [or] the reputation or the integrity of the Coast Guard in Juneau." The only connection between the military and the offenses at issue was the fact that the victims were military dependents. But the military judge found explicitly that the military association of petitioner and the victims' fathers did not facilitate petitioner's crimes,[9] and that "[t]he impact apparent in this case, that is, on the parents and the victims themselves is no different than that which would be produced by [a] civilian perpetrator." at 57a. The military judge, after properly reviewing the Relford factors, concluded correctly that they did not render petitioner's *464 offenses service connected and dismissed the charges. Engaging in what can only be described as impermissible appellate factfinding,[10] the Coast Guard Court of Military *465 Review reversed the dismissal. It concluded that the military judge's finding that the offenses had had no impact on morale or discipline was erroneous because the judge should have considered the effect the offenses would have had on the community in Juneau had they come to light while the victims and their families were still in Alaska, and the impact of the offenses on morale and discipline at Governors Island. Without remanding for further factfinding, the court held that the Alaska offenses had a direct impact upon the good order, discipline, morale, and welfare of Coast Guard personnel at Governors Island. It further asserted, again without basis in the facts found by the military judge, that the Coast Guard's interest in deterring the offenses was greater than that of the civilian authorities, and that the concerns of the victims' parents would have been different had the offender been a civilian. -520. On the basis of these newly found facts, the Court of Military Review held petitioner's crime sufficiently service connected to justify the exercise of court-martial jurisdiction. The Court of Military Appeals affirmed. While conceding that its "precedents involving off-base sex offenses against civilian dependents of military personnel would point to a different conclusion," it concluded that a "recent development in our society" — specifically, an increase in concern for the victims of crimes — meant that sex offenses committed against young children of members of the military, which would have "a continuing effect on the victims and their families," sufficed to establish service connection. The military judge's straightforward application of O'Callahan and Relford was plainly correct given the facts as he found them, facts that the reviewing courts have not demonstrated to have been clearly erroneous. The Court of Military *466 Appeals' apparent conclusion that serious or disturbing crimes committed upon military dependents sufficed to create court-martial jurisdiction ignored this Court's prior decisions. The majority asserts that "the service connection approach, even as elucidated in Relford, has proved confusing and difficult for military courts to apply." Ante, at 448. It is true that the test requires a careful, case-specific factual inquiry. But this is not beyond the capacity of the military courts. Indeed, the military judge in this case engaged in a thorough and thoughtful application of the Relford factors. It should not be surprising that such determinations may at times be difficult or time consuming or require the drawing of narrow distinctions. The trial of any person before a court-martial encompasses a deliberate decision to withhold procedural protections guaranteed by the Constitution. Denial of these protections is a very serious matter. The Framers declined to draw an easy line, like that established by the Court today, which would sweep an entire class of Americans beyond the reach of the Bill of Rights. Instead, they required that the protections of the Fifth and Sixth Amendments be applied in any case not "arising in" the Armed Forces. This requirement must not be discarded simply because it may be less expeditious than the majority deems appropriate. III remains correct and workable today. The Court nonetheless insists on reopening a question which was finally and properly resolved in 1969. In doing so, it shows a blatant disregard for principles of stare decisis, and makes more dubious the presumption "that bedrock principles are founded in the law rather than in the proclivities of individuals." This in turn undermines "the integrity of our constitutional system of government, both in appearance and in fact." *467 Ibid.; see also The Court's willingness to overturn precedent may reflect in part its conviction, frequently expressed this Term, that members of the Armed Forces may be subjected virtually without limit to the vagaries of military control. See United States v. Stanley, post, p. 669; United But the Court's decision today has, potentially, the broadest reach of any of these cases. Unless Congress acts to avoid the consequences of this case, every member of our Armed Forces, whose active duty members number in the millions, can now be subjected to court-martial jurisdiction — without grand jury indictment or trial by jury — for any offense, from tax fraud to passing a bad check, regardless of its lack of relation to "military discipline, morale and fitness." Today's decision deprives our military personnel of procedural protections that are constitutionally mandated in trials for purely civilian offenses. The Court's action today reflects contempt, both for the members of our Armed Forces and for the constitutional safeguards intended to protect us all. I dissent.

Justice Rehnquist

majority

Maryland v. Wilson

https://www.courtlistener.com/opinion/118086/maryland-v-wilson/

https://www.courtlistener.com/api/rest/v3/clusters/118086/

1996-026

In this case we consider whether the rule of Pennsylvania v.Mimms, 434 U.S. 106 (1977) (per curiam), that a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle, extends to passengers as well. We hold that it does. At about 7:30 p.m. on a June evening, Maryland state trooper David Hughes observed a passenger car driving southbound on I-95 in Baltimore County at a speed of 64 miles per hour. The posted speed limit was 55 miles per hour, and the car had no regular license tag; there was a torn piece of paper reading "Enterprise Rent-A-Car" dangling from its rear. Hughes activated his lights and sirens, signaling the car to pull over, but it continued driving for another mile and a half until it finally did so. During the pursuit, Hughes noticed that there were three occupants in the car and that the two passengers turned to look at him several times, repeatedly ducking below sight level and then reappearing. As Hughes approached the car on foot, the driver alighted and met him halfway. The driver was trembling and appeared extremely nervous, but nonetheless produced a valid Connecticut driver's license. Hughes instructed him to return to the car and retrieve the rental documents, and he complied. During this encounter, Hughes noticed that the front-seat passenger, respondent Jerry Lee Wilson, was sweating and also appeared extremely *411 nervous. While the driver was sitting in the driver's seat looking for the rental papers, Hughes ordered Wilson out of the car. When Wilson exited the car, a quantity of crack cocaine fell to the ground. Wilson was then arrested and charged with possession of cocaine with intent to distribute. Before trial, Wilson moved to suppress the evidence, arguing that Hughes' ordering him out of the car constituted an unreasonable seizure under the Fourth Amendment. The Circuit Court for Baltimore County agreed, and granted respondent's motion to suppress. On appeal, the Court of Special Appeals of Maryland affirmed, 106 Md. App. 24, 664 A.2d 1 (1995), ruling that Pennsylvania v. Mimms does not apply to passengers. The Court of Appeals of Maryland denied certiorari. 340 Md. 502, 667 A.2d 342 (1995). We granted certiorari, 518 U.S. 1003 (1996), and now reverse. In Mimms, we considered a traffic stop much like the one before us today. There, Mimms had been stopped for driving with an expired license plate, and the officer asked him to step out of his car. When Mimms did so, the officer noticed a bulge in his jacket that proved to be a .38-caliber revolver, whereupon Mimms was arrested for carrying a concealed deadly weapon. Mimms, like Wilson, urged the suppression of the evidence on the ground that the officer's ordering him out of the car was an unreasonable seizure, and the Pennsylvania Supreme Court, like the Court of Special Appeals of Maryland, agreed. We reversed, explaining that "[t]he touchstone of our analysis under the Fourth Amendment is always `the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security,' " 434 U.S., at 108— 109 (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)), and that reasonableness "depends `on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers,' " 434 U.S., at 109 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, *412 878 (1975)). On the public interest side ofthe balance, we noted that the State "freely concede[d]" that there had been nothing unusual or suspicious to justify ordering Mimms out of the car, but that it was the officer's "practice to order all drivers [stopped in traffic stops] out of their vehicles as a matter of course" as a "precautionary measure" to protect the officer's safety. 434 U.S., at 109-110. We thought it "too plain for argument" that this justification—officer safety—was "both legitimate and weighty." Id., at 110. In addition, we observed that the danger to the officer of standing by the driver's door and in the path of oncoming traffic might also be "appreciable." Id., at 111. On the other side of the balance, we considered the intrusion into the driver's liberty occasioned by the officer's ordering him out of the car. Noting that the driver's car was already validly stopped for a traffic infraction, we deemed the additional intrusion of asking him to step outside his car "de minimis. " Ibid. Accordingly, we concluded that "once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable seizures." Id., at111, n. 6. Respondent urges, and the lower courts agreed, that this per se rule does not apply to Wilson because he was a passenger, not the driver. Maryland, in turn, argues that we have already implicitly decided this question by our statement in Michigan v. Long, 463 U.S. 1032 (1983), that "[i]n [Mimms ], we held that police may order persons out of an automobile during astop for a traffic violation," id., at 1047-1048 (emphasis added), and by Justice Powell's statement in Rakas v. Illinois, 439 U.S. 128 (1978), that "this Court determined in [Mimms ] that passengers in automobiles have no Fourth Amendment right not to be ordered from their vehicle, once a proper stop is made," id., at 155, n. 4 (Powell, J., joined by Burger, C. J., concurring) (emphasis added). We agree with respondent that the former statement was dictum, and the *413 latter was contained in a concurrence, so that neither constitutes binding precedent. We must therefore now decide whether the rule of Mimms applies to passengers as well as to drivers.[1] On the public interest side of the balance, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger. Regrettably, traffic stops may be dangerous encounters. In 1994 alone, there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops. Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted 71, 33 (1994). In the case of passengers, the danger of the officer's standing in the path of oncoming traffic would not be present except in the case of a passenger in the left rear seat, but the fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer.[2] On the personal liberty side of the balance, the case for the passengers is in one sense stronger than that for the driver. There is probable cause to believe that the driver has committed a minor vehicular offense, but there is no such reason to stop or detain the passengers. But as a practical *414 matter, the passengers are already stopped by virtue of the stop of the vehicle. The only change in their circumstances which will result from ordering them out of the car is that they will be outside of, rather than inside of, the stopped car. Outside the car, the passengers will be denied access to any possible weapon that might be concealed in the interior of the passenger compartment. It would seem that the possibility of a violent encounter stems not from the ordinary reaction ofa motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop. And the motivation of a passenger to employ violence to prevent apprehension of such a crime is every bit as great as that of the driver. We think that our opinion in Michigan v. Summers, 452 U.S. 692 (1981), offers guidance by analogy here. There the police had obtained a search warrant for contraband thought to be located in a residence, but when they arrived to execute the warrant they found Summers coming down the front steps. The question in the case depended "upon a determination whether the officers had the authority to require him to re-enter the house and toremain there while they conducted their search." Id., at695. In holding as it did, the Court said: "Although no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." Id., at 702-703 (footnote omitted). In summary, danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is *415 for ordering the driver out, the additional intrusion on the passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.[3] The judgment of the Court of Special Appeals of Maryland is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.

In this case we consider whether the rule of Pennsylvania v.Mimms, that a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle, extends to passengers as well. We hold that it does. At about 7:30 p.m. on a June evening, Maryland state trooper David Hughes observed a passenger car driving southbound on I-95 in Baltimore County at a speed of 64 miles per hour. The posted speed limit was 55 miles per hour, and the car had no regular license tag; there was a torn piece of paper reading "Enterprise Rent-A-Car" dangling from its rear. Hughes activated his lights and sirens, signaling the car to pull over, but it continued driving for another mile and a half until it finally did so. During the pursuit, Hughes noticed that there were three occupants in the car and that the two passengers turned to look at him several times, repeatedly ducking below sight level and then reappearing. As Hughes approached the car on foot, the driver alighted and met him halfway. The driver was trembling and appeared extremely nervous, but nonetheless produced a valid Connecticut driver's license. Hughes instructed him to return to the car and retrieve the rental documents, and he complied. During this encounter, Hughes noticed that the front-seat passenger, respondent Jerry Lee Wilson, was sweating and also appeared extremely *411 nervous. While the driver was sitting in the driver's seat looking for the rental papers, Hughes ordered Wilson out of the car. When Wilson exited the car, a quantity of crack cocaine fell to the ground. Wilson was then arrested and charged with possession of cocaine with intent to distribute. Before trial, Wilson moved to suppress the evidence, arguing that Hughes' ordering him out of the car constituted an unreasonable seizure under the Fourth Amendment. The Circuit Court for Baltimore County agreed, and granted respondent's motion to suppress. On appeal, the Court of Special Appeals of Maryland affirmed, ruling that Pennsylvania v. Mimms does not apply to passengers. The Court of Appeals of Maryland denied certiorari. We granted certiorari, and now reverse. In Mimms, we considered a traffic stop much like the one before us today. There, Mimms had been stopped for driving with an expired license plate, and the officer asked him to step out of his car. When Mimms did so, the officer noticed a bulge in his jacket that proved to be a38-caliber revolver, whereupon Mimms was arrested for carrying a concealed deadly weapon. Mimms, like Wilson, urged the suppression of the evidence on the ground that the officer's ordering him out of the car was an unreasonable seizure, and the Pennsylvania Supreme Court, like the Court of Special Appeals of Maryland, agreed. We reversed, explaining that "[t]he touchstone of our analysis under the Fourth Amendment is always `the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security,' " — 109 ), and that reasonableness "depends `on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers,' " (quoting United (75)). On the public interest side ofthe balance, we noted that the State "freely concede[d]" that there had been nothing unusual or suspicious to justify ordering Mimms out of the car, but that it was the officer's "practice to order all drivers [stopped in traffic stops] out of their vehicles as a matter of course" as a "precautionary measure" to protect the officer's -110. We thought it "too plain for argument" that this justification—officer safety—was "both legitimate and weighty." In addition, we observed that the danger to the officer of standing by the driver's door and in the path of oncoming traffic might also be "appreciable." On the other side of the balance, we considered the intrusion into the driver's liberty occasioned by the officer's ordering him out of the car. Noting that the driver's car was already validly stopped for a traffic infraction, we deemed the additional intrusion of asking him to step outside his car "de minimis. " Accordingly, we concluded that "once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable seizures." at111, n. 6. Respondent urges, and the lower courts agreed, that this per se rule does not apply to Wilson because he was a passenger, not the driver. Maryland, in turn, argues that we have already implicitly decided this question by our statement in (83), that "[i]n [Mimms ], we held that police may order persons out of an automobile during astop for a traffic violation," and by Justice Powell's statement in (78), that "this Court determined in [Mimms ] that passengers in automobiles have no Fourth Amendment right not to be ordered from their vehicle, once a proper stop is made," We agree with respondent that the former statement was dictum, and the *413 latter was contained in a concurrence, so that neither constitutes binding precedent. We must therefore now decide whether the rule of Mimms applies to passengers as well as to drivers.[1] On the public interest side of the balance, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger. Regrettably, traffic stops may be dangerous encounters. In 94 alone, there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops. Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted 71, 33 (94). In the case of passengers, the danger of the officer's standing in the path of oncoming traffic would not be present except in the case of a passenger in the left rear seat, but the fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer.[2] On the personal liberty side of the balance, the case for the passengers is in one sense stronger than that for the driver. There is probable cause to believe that the driver has committed a minor vehicular offense, but there is no such reason to stop or detain the passengers. But as a practical *414 matter, the passengers are already stopped by virtue of the stop of the vehicle. The only change in their circumstances which will result from ordering them out of the car is that they will be outside of, rather than inside of, the stopped car. Outside the car, the passengers will be denied access to any possible weapon that might be concealed in the interior of the passenger compartment. It would seem that the possibility of a violent encounter stems not from the ordinary reaction ofa motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop. And the motivation of a passenger to employ violence to prevent apprehension of such a crime is every bit as great as that of the driver. We think that our opinion in (81), offers guidance by analogy here. There the police had obtained a search warrant for contraband thought to be located in a residence, but when they arrived to execute the warrant they found Summers coming down the front steps. The question in the case depended "upon a determination whether the officers had the authority to require him to re-enter the house and toremain there while they conducted their search." at695. In holding as it did, the Court said: "Although no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." In summary, danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is *415 for ordering the driver out, the additional intrusion on the passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.[3] The judgment of the Court of Special Appeals of Maryland is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.

Justice O'Connor

majority

Schweiker v. Chilicky

https://www.courtlistener.com/opinion/112132/schweiker-v-chilicky/

https://www.courtlistener.com/api/rest/v3/clusters/112132/

1987-142

This case requires us to decide whether the improper denial of Social Security disability benefits, allegedly resulting from violations of due process by government officials who administered the federal Social Security program, may give rise to a cause of action for money damages against those officials. We conclude that such a remedy, not having been included in the elaborate remedial scheme devised by Congress, is unavailable. I A Under Title II of the Social Security Act (Act), the Federal Government provides disability benefits to individuals who have contributed to the Social Security program and who, because of a medically determinable physical or mental impairment, are unable to engage in substantial gainful work. 42 U.S. C. §§ 423(a), (d) (1982 ed. and Supp. IV). A very similar program for disabled indigents is operated under Title XVI of the Act, 42 U.S. C. § 1381 et seq. (1982 ed. and Supp. IV), but those provisions are technically not at issue in this case. Title II, which is administered in conjunction with state welfare agencies, provides benefits only while an individual's statutory disability persists. See 42 U.S. C. §§ 421(a), 423(a)(1) (1982 ed. and Supp. IV). In 1980, Congress noted that existing administrative procedures provided *415 for reexamination of eligibility "only under a limited number of circumstances." H. R. Conf. Rep. No. 96-944, p. 60 (1980); see also S. Rep. No. 96-408, pp. 60-61 (1979). Congress responded by enacting legislation requiring that most disability determinations be reviewed at least once every three years. Pub. L. 96-265, § 311(a), 94 Stat. 460, as amended, 42 U.S. C. § 421(i) (1982 ed. and Supp. IV). Although the statute did not require this program for "continuing disability review" (CDR) to become effective before January 1, 1982, the Secretary of Health and Human Services initiated CDR in March 1981. See Pub. L. 96-265, § 311(b), 94 Stat. 460, note following 42 U.S. C. § 421; Brief for Petitioners 10. The administration of the CDR program was at first modeled on the previous procedures for reexamination of eligibility. Under these procedures, an individual whose case is selected for review bears the burden of demonstrating the continuing existence of a statutory disability. The appropriate state agency performs the initial review, and persons who are found to have become ineligible are generally provided with administrative review similar to the review provided to new claimants. See 42 U.S. C. § 421(i) (1982 ed. and Supp. IV); Brief for Petitioners 10. Cf. Mathews v. Eldridge, 424 U.S. 319, 335-339 (1976). Under the original CDR procedures, benefits were usually terminated after a state agency found a claimant ineligible, and were not available during administrative appeals. See H. R. Conf. Rep. No. 98-1039, p. 33 (1984). Finding that benefits were too often being improperly terminated by state agencies, only to be reinstated by a federal administrative law judge (ALJ), Congress enacted temporary emergency legislation in 1983. This law provided for the continuation of benefits, pending review by an ALJ, after a state agency determined that an individual was no longer disabled. Pub. L. 97-455, § 2, 96 Stat. 2498; see also Pub. L. 98-118, § 2, 97 Stat. 803. In the Social Security Disability *416 Benefits Reform Act of 1984 (1984 Reform Act), Congress extended this provision until January 1, 1988, and provided for a number of other significant changes in the administration of CDR. Pub. L. 98-460, §§ 2, 7, 98 Stat. 1794-1796, 1803-1804, 42 U.S. C. §§ 423(f), (g) (1982 ed. and Supp. IV). In its final form, this legislation was enacted without a single opposing vote in either Chamber. See 130 Cong. Rec. 26000, 26145-26146 (1984); see also id., at 6621; id., at 13247. The problems to which Congress responded so emphatically were widespread. One of the cosponsors of the 1984 Reform Act, who had conducted hearings on the administration of CDR, summarized evidence from the General Accounting Office as follows: "[T]he message perceived by the State agencies, swamped with cases, was to deny, deny, deny, and, I might add, to process cases faster and faster and faster. In the name of efficiency, we have scanned our computer terminals, rounded up the disabled workers in the country, pushed the discharge button, and let them go into a free [f]all toward economic chaos." Id., at 13218 (Sen. Cohen). Other legislators reached similar conclusions. See, e. g., id., at 13234 (Sen. Moynihan) ("[T]he Social Security Administration has tried to reduce program cost by terminating the benefits of hundreds of thousands of truly disabled Americans"); id., at 6583 (Rep. Rostenkowski) (alluding to "massive number of beneficiaries who have lost their benefits over the last 3 years even though they are truly disabled and unable to work"). Such conclusions were based, not only on anecdotal evidence, but on compellingly forceful statistics. The Social Security Administration itself apparently reported that about 200,000 persons were wrongfully terminated, and then reinstated, between March 1981 and April 1984. Id., at 25979 (Sen. Levin); see also id., at 25989 (Sen. Byrd); id., at 6588 (Rep. Conte). In the first year of CDR, half of those who were terminated appealed the decision, and "an *417 amazing two-thirds of those who appealed were being reinstated." Id., at 25979 (Sen. Levin); see also id., at 25986 (Sen. Heinz); id., at 13244 (Sen. Glenn); S. Rep. No. 98-466, p. 18 (1984). Congress was also made aware of the terrible effects on individual lives that CDR had produced. The chairman of the Senate's Special Committee on Aging pointed out that "[t]he human dimension of this crisis — the unnecessary suffering, anxiety, and turmoil — has been graphically exposed by dozens of congressional hearings and in newspaper articles all across the country." 130 Cong. Rec. 25986 (1984) (Sen. Heinz). Termination could also lead to the cut-off of Medicare benefits, so that some people were left without adequate medical care. Id., at 13321-13322 (Sen. Durenberger); see also id., at 6590 (Rep. Hammerschmidt). There is little doubt that CDR led to many hardships and injuries that could never be adequately compensated. See, e. g., id., at 6588-6589 (Rep. Regula). B Respondents are three individuals whose disability benefits under Title II were terminated pursuant to the CDR program in 1981 and 1982. Respondents Spencer Harris and Dora Adelerte appealed these determinations through the administrative process, were restored to disabled status, and were awarded full retroactive benefits. Respondent James Chilicky did not pursue these administrative remedies. Instead, he filed a new application for benefits about a year and a half after his benefits were stopped. His application was granted, and he was awarded one year's retroactive benefits; his application for the restoration of the other six months' benefits is apparently still pending. See Brief for Petitioners 18, and n. 13; Brief for Respondents 3. Because the terminations in these three cases occurred before the 1983 emergency legislation was enacted, respondents experienced delays of many months in receiving disability benefits to *418 which they were entitled. All the respondents had been wholly dependent on their disability benefits, and all allege that they were unable to maintain themselves or their families in even a minimally adequate fashion after they were declared ineligible. Id., at 7-8. Respondent James Chilicky was in the hospital recovering from open-heart surgery when he was informed that his heart condition was no longer disabling. Id., at 7. In addition to pursuing administrative remedies, respondents (along with several other individuals who have since withdrawn from the case) filed this lawsuit in the United States District Court for the District of Arizona. They alleged that petitioners — one Arizona[1] and two federal officials who had policymaking roles in the administration of the CDR program — had violated respondents' due process rights. The thrust of the complaint, which named petitioners in their official and individual capacities, was that petitioners had adopted illegal policies that led to the wrongful termination of benefits by state agencies. Among the allegations were claims that petitioners improperly accelerated the starting date of the CDR program; illegally refused to acquiesce in decisions of the United States Court of Appeals for the Ninth Circuit; failed to apply uniform written standards in implementing the CDR program; failed to give effect to dispositive evidence in particular cases; and used an impermissible quota *419 system under which state agencies were required to terminate predetermined numbers of recipients. See 796 F.2d 1131, 1133-1134 (1986) (opinion below). Respondents sought injunctive and declaratory relief, and money damages for "emotional distress and for loss of food, shelter and other necessities proximately caused by [petitioners'] denial of benefits without due process." Id., at 1134, n. 2. The District Court dismissed the case on the ground that petitioners were protected by a qualified immunity. Their alleged conduct, the court concluded, did not violate " `clearly established statutory or constitutional rights of which a reasonable person would have known.' " App. to Pet. for Cert. 16a (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Although the court discussed only the claims involving acceleration of the starting date for CDR and nonacquiescence in Ninth Circuit decisions, its qualified immunity holding apparently applied to respondents' other claims as well. Respondents appealed, pressing only their claims for money damages against petitioners in their individual capacities. These claims, noted the Court of Appeals, are "predicated on the constitutional tort theory of Bivens v. Six Unknown Named Agents, 403 U.S. 388 . . . (1971)." 796 F.2d, at 1134. Petitioners argued that the District Court lacked subject matter jurisdiction because the procedures set forth in 42 U.S. C. § 405(g), which do not authorize judicial review in a case like this one, provide the exclusive means of judicial redress for actions "arising under" the relevant provisions of the Act. The Court of Appeals rejected this argument, holding that subject matter jurisdiction existed because respondents' claims for emotional distress "arose under" the Due Process Clause of the Fifth Amendment rather than under the statute. The Court of Appeals went on to affirm the District Court to the extent that it dismissed the claims involving acceleration of the CDR program and nonacquiescence in Ninth Circuit decisions. As to respondents' other claims, however, the Court of Appeals concluded *420 that "[i]t cannot be determined as a matter of law that [respondents] could prove no state of facts . . . that resulted in violations of their due process rights and consequent damages." 796 F.2d, at 1139.[2] The case was accordingly remanded for further proceedings, including a trial if necessary. The petition for certiorari presented one question: "Whether a Bivens remedy should be implied for alleged due process violations in the denial of social security disability benefits." We granted the petition, 484 U.S. 814 (1987), and now reverse. II A The Constitution provides that federal courts may be given original jurisdiction over "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." U. S. Const., Art. III, §§ 1, 2. Since 1875, Congress has provided the federal trial courts with general jurisdiction over such cases. See Judiciary Act of March 3, 1875, § 1, 18 Stat. 470; 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3561 (2d ed. 1984); American Law Institute, Study of the Division of Jurisdiction between State and Federal Courts 162-163 (1969). The statute currently provides that the "district courts shall have original *421 jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S. C. § 1331. In 1971, this Court held that the victim of a Fourth Amendment violation by federal officers acting under color of their authority may bring suit for money damages against the officers in federal court. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388. The Court noted that Congress had not specifically provided for such a remedy and that "the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation." Id., at 396. Nevertheless, finding "no special factors counselling hesitation in the absence of affirmative action by Congress," and "no explicit congressional declaration" that money damages may not be awarded, the majority relied on the rule that " `where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.' " Id., at 396-397 (quoting Bell v. Hood, 327 U.S. 678, 684 (1946)). So-called "Bivens actions" for money damages against federal officers have subsequently been permitted under § 1331 for violations of the Due Process Clause of the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979), and the Cruel and Unusual Punishments Clause of the Eighth Amendment, Carlson v. Green, 446 U.S. 14 (1980). In each of these cases, as in Bivens itself, the Court found that there were no "special factors counselling hesitation in the absence of affirmative action by Congress," no explicit statutory prohibition against the relief sought, and no exclusive statutory alternative remedy. See 442 U.S., at 246-247; 446 U. S., at 18-20. Our more recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts. The absence of statutory relief for a constitutional violation, for example, does not by any means necessarily imply that courts should award money damages against the *422 officers responsible for the violation. Thus, in Chappell v. Wallace, 462 U.S. 296 (1983), we refused — unanimously — to create a Bivens action for enlisted military personnel who alleged that they had been injured by the unconstitutional actions of their superior officers and who had no remedy against the Government itself: "The special nature of military life — the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel — would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command. . . . "Also, Congress, the constitutionally authorized source of authority over the military system of justice, has not provided a damages remedy for claims by military personnel that constitutional rights have been violated by superior officers. Any action to provide a judicial response by way of such a remedy would be plainly inconsistent with Congress' authority in this field. "Taken together, the unique disciplinary structure of the Military Establishment and Congress' activity in the field constitute `special factors' which dictate that it would be inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers." 462 U.S., at 304 (emphasis added; citation omitted). See also United States v. Stanley, 483 U.S. 669, 681 (1987) (disallowing Bivens actions by military personnel "whenever the injury arises out of activity `incident to service' "). Similarly, we refused — again unanimously — to create a Bivens remedy for a First Amendment violation "aris[ing] out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States." Bush v. Lucas, 462 U.S. 367, 368 (1983). In that case, a federal employee was demoted, allegedly in violation of the First Amendment, *423 for making public statements critical of the agency for which he worked. He was reinstated through the administrative process, with retroactive seniority and full backpay, but he was not permitted to recover for any loss due to emotional distress or mental anguish, or for attorney's fees. See id., at 371, 372, and nn. 8-9; id., at 390-391 (MARSHALL, J., concurring). Concluding that the administrative system created by Congress "provides meaningful remedies for employees who may have been unfairly disciplined for making critical comments about their agencies," id., at 386 (footnote omitted), the Court refused to create a Bivens action even though it assumed a First Amendment violation and acknowledged that "existing remedies do not provide complete relief for the plaintiff," 462 U.S., at 388. See also id., at 385, n. 28 (no remedy whatsoever for short suspensions or for adverse personnel actions against probationary employees). The Court stressed that the case involved policy questions in an area that had received careful attention from Congress. Id., at 380-388. Noting that the Legislature is far more competent than the Judiciary to carry out the necessary "balancing [of] governmental efficiency and the rights of employees," we refused to "decide whether or not it would be good policy to permit a federal employee to recover damages from a supervisor who has improperly disciplined him for exercising his First Amendment rights." Id., at 389, 390. In sum, the concept of "special factors counselling hesitation in the absence of affirmative action by Congress" has proved to include an appropriate judicial deference to indications that congressional inaction has not been inadvertent. When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies. *424 B The administrative structure and procedures of the Social Security system, which affects virtually every American, "are of a size and extent difficult to comprehend." Richardson v. Perales, 402 U.S. 389, 399 (1971). Millions of claims are filed every year under the Act's disability benefits programs alone, and these claims are handled under "an unusually protective [multi]-step process for the review and adjudication of disputed claims." Heckler v. Day, 467 U.S. 104, 106 (1984). The steps provided for under Title II are essentially identical for new claimants and for persons subject to CDR. An initial determination of a claimant's eligibility for benefits is made by a state agency, under federal standards and criteria. See 42 U.S. C. § 421(a) (1982 ed. and Supp. IV); see also 20 CFR §§ 404.1588-404.1599 (1987). Next, a claimant is entitled to de novo reconsideration by the state agency, and additional evidence may be presented at that time. §§ 404.907-404.922. If the claimant is dissatisfied with the state agency's decision, review may then be had by the Secretary of Health and Human Services, acting through a federal ALJ; at this stage, the claimant is again free to introduce new evidence or raise new issues. 42 U.S. C. § 421(d) (1982 ed., Supp. IV); 20 CFR §§ 404.929-404.965 (1987). If the claimant is still dissatisfied, a hearing may be sought before the Appeals Council of the Social Security Administration. §§ 404.967-404.983. Once these elaborate administrative remedies have been exhausted, a claimant is entitled to seek judicial review, including review of constitutional claims. 42 U.S. C. §§ 405(g), 421(d) (1982 ed. and Supp. IV); Heckler v. Ringer, 466 U.S. 602, 615 (1984); Mathews v. Eldridge, 424 U. S., at 332; Weinberger v. Salfi, 422 U.S. 749, 762 (1975). The Act, however, makes no provision for remedies in money damages against officials responsible for unconstitutional conduct that leads to the wrongful denial of benefits. As respondents concede, claimants whose benefits have been fully restored through the administrative process would lack standing *425 to invoke the Constitution under the statute's administrative review provision. See Brief for Respondents 32-33. The case before us cannot reasonably be distinguished from Bush v. Lucas. Here, exactly as in Bush, Congress has failed to provide for "complete relief": respondents have not been given a remedy in damages for emotional distress or for other hardships suffered because of delays in their receipt of Social Security benefits. Compare Bush, 462 U. S., at 372, n. 9, with 796 F.2d, at 1134, n. 2 (opinion below). The creation of a Bivens remedy would obviously offer the prospect of relief for injuries that must now go unredressed. Congress, however, has not failed to provide meaningful safeguards or remedies for the rights of persons situated as respondents were. Indeed, the system for protecting their rights is, if anything, considerably more elaborate than the civil service system considered in Bush. The prospect of personal liability for official acts, moreover, would undoubtedly lead to new difficulties and expense in recruiting administrators for the programs Congress has established. Congressional competence at "balancing governmental efficiency and the rights of [individuals]," Bush, supra, at 389, is no more questionable in the social welfare context than it is in the civil service context. Cf. Forrester v. White, 484 U.S. 219, 223-224 (1988). Congressional attention to problems that have arisen in the administration of CDR (including the very problems that gave rise to this case) has, moreover, been frequent and intense. See, e. g., H. R. Rep. No. 98-618, pp. 2, 4 (1984); S. Rep. No. 98-466, pp. 10, 17-18 (1984). Congress itself required that the CDR program be instituted. Within two years after the program began, Congress enacted emergency legislation providing for the continuation of benefits even after a finding of ineligibility by a state agency. Less than two years after passing that law, and fully aware of the results of extensive investigations of the practices that led to respondents' injuries, Congress again enacted legislation aimed *426 at reforming the administration of CDR; that legislation again specifically addressed the problem that had provoked the earlier emergency legislation. At each step, Congress chose specific forms and levels of protection for the rights of persons affected by incorrect eligibility determinations under CDR. At no point did Congress choose to extend to any person the kind of remedies that respondents seek in this lawsuit. Cf. 130 Cong. Rec. 6585-6586 (1984) (Rep. Perkins) (expressing regret that the bill eventually enacted as the 1984 Reform Act did not provide additional relief for persons improperly terminated during the early years of CDR). Thus, congressional unwillingness to provide consequential damages for unconstitutional deprivations of a statutory right is at least as clear in the context of this case as it was in Bush. Respondents nonetheless contend that Bush should be confined to its facts, arguing that it applies only in the context of what they call "the special nature of federal employee relations." Brief for Respondents 40. Nothing that the parties to this case did "not share the sort of close, collaborative, continuing juridical relationship found in the federal civil service," respondents suggest that the availability of Bivens remedies would create less "inconvenience" to the Social Security system than it would in the context of the civil service. See Brief for Respondents 44, 46-48. Petitioners are less sanguine, arguing that the creation of Bivens remedy in this context would lead to "a complete disruption of [a] carefully crafted and constantly monitored congressional scheme." Reply Brief for Petitioners 15. We need not choose between these competing predictions, which have little bearing on the applicability of Bush to this case. The decision in Bush did not rest on this Court's belief that Bivens actions would be more disruptive of the civil service than they are in other contexts where they have been allowed, such as federal law enforcement agencies (Bivens itself) or the federal prisons (Carlson v. Green, 446 U.S. 14 (1980)). Rather, we declined in Bush " `to create a new substantive *427 legal liability . . .' because we are convinced that Congress is in a better position to decide whether or not the public interest would be served by creating it." 462 U.S., at 390 (citation omitted). That reasoning applies as much, or more, in this case as it did in Bush itself. Respondents also suggest that this case is distinguishable from Bush because the plaintiff in that case received compensation for the constitutional violation itself, while these respondents have merely received that to which they would have been entitled had there been no constitutional violation. See Brief for Respondents 20, n. 26 ("Bush's reinstatement was a remedy for the alleged abuse, not just a restoration of something to which he was entitled . . ."); see also id., at 11 (failure to create a Bivens remedy "would give respondents precisely the same thing whether or not they were victims of constitutional deprivation and would thus leave respondents with no post-deprivation remedy at all for the constitutional violations they allege"). The Bush opinion, however, drew no distinction between compensation for a "constitutional wrong" and the restoration of statutory rights that had been unconstitutionally taken away. Nor did it suggest that such labels would matter. Indeed, the Court appeared to assume that civil service employees would get "precisely the same thing whether or not they were victims of constitutional deprivation." Ibid.; see Bush, 462 U. S., at 386 (civil service statute "provides meaningful remedies for employees who may have been unfairly disciplined for making critical comments about their agencies") (emphasis added; footnote omitted). Bush thus lends no support to the notion that statutory violations caused by unconstitutional conduct necessarily require remedies in addition to the remedies provided generally for such statutory violations. Here, as in Bush, it is evident that if we were "to fashion an adequate remedy for every wrong that can be proved in a case . . . [the complaining party] would obviously prevail." Id., at 373. In neither case, however, does the presence of alleged unconstitutional *428 conduct that is not separately remedied under the statutory scheme imply that the statute has provided "no remedy" for the constitutional wrong at issue. The remedy sought in Bush was virtually identical to the one sought by respondents in this case: consequential damages for hardships resulting from an allegedly unconstitutional denial of a statutory right (Social Security benefits in one instance and employment in a particular Government job in the other). In light of the comprehensive statutory schemes involved, the harm resulting from the alleged constitutional violation can in neither case be separated from the harm resulting from the denial of the statutory right. Respondents' effort to separate the two does not distinguish this case from Bush in any analytically meaningful sense. In the end, respondents' various arguments are rooted in their insistent and vigorous contention that they simply have not been adequately recompensed for their injuries. They say, for example: "Respondents are disabled workers who were dependent upon their Social Security benefits when petitioners unconstitutionally terminated them. Respondents needed those benefits, at the time they were wrongfully withheld, to purchase food, shelter, medicine, and life's other necessities. The harm they suffered as a result bears no relation to the dollar amount of the benefits unjustly withheld from them. For the Government to offer belated restoration of back benefits in a lump sum and attempt to call it quits, after respondents have suffered deprivation for months on end, is not only to display gross insensitivity to the damage done to respondents' lives, but to trivialize the seriousness of petitioners' offense." Brief for Respondents 11. We agree that suffering months of delay in receiving the income on which one has depended for the very necessities of life cannot be fully remedied by the "belated restoration of back benefits." The trauma to respondents, and thousands of others like them, must surely have gone beyond what anyone *429 of normal sensibilities would wish to see imposed on innocent disabled citizens. Nor would we care to "trivialize" the nature of the wrongs alleged in this case. Congress, however, has addressed the problems created by state agencies' wrongful termination of disability benefits. Whether or not we believe that its response was the best response, Congress is the body charged with making the inevitable compromises required in the design of a massive and complex welfare benefits program. Cf. Dandridge v. Williams, 397 U.S. 471, 487 (1970). Congress has discharged that responsibility to the extent that it affects the case before us, and we see no legal basis that would allow us to revise its decision.[3] Because the relief sought by respondents is unavailable as a matter of law, the case must be dismissed. The judgment of the Court of Appeals to the contrary is therefore Reversed. *430 JUSTICE STEVENS, concurring in part and concurring in the judgment.

This case requires us to decide whether the improper denial of Social Security disability benefits, allegedly resulting from violations of due process by government officials who administered the federal Social Security program, may give rise to a cause of action for money damages against those officials. We conclude that such a remedy, not having been included in the elaborate remedial scheme devised by Congress, is unavailable. I A Under Title II of the Social Security Act (Act), the Federal Government provides disability benefits to individuals who have contributed to the Social Security program and who, because of a medically determinable physical or mental impairment, are unable to engage in substantial gainful work. 42 U.S. C. 423(a), (d) (1982 ed. and Supp. IV). A very similar program for disabled indigents is operated under Title XVI of the Act, 42 U.S. C. 1381 et seq. (1982 ed. and Supp. IV), but those provisions are technically not at issue in this case. Title II, which is administered in conjunction state welfare agencies, provides benefits only while an individual's statutory disability persists. See 42 U.S. C. 421(a), 423(a)(1) (1982 ed. and Supp. IV). In 1980, Congress noted that existing administrative procedures provided *415 for reexamination of eligibility "only under a limited number of circumstances." H. R. Conf. Rep. No. 96-944, p. 60 ; see also S. Rep. No. 96-408, pp. 60-61 Congress responded by enacting legislation requiring that most disability determinations be reviewed at least once every three years. Pub. L. 96-265, 311(a), as amended, 42 U.S. C. 421(i) (1982 ed. and Supp. IV). Although the statute did not require this program for "continuing disability review" (CDR) to become effective before January 1, 1982, the Secretary of Health and Human Services initiated CDR in March 1981. See Pub. L. 96-265, 311(b), note following 42 U.S. C. 421; Brief for Petitioners 10. The administration of the CDR program was at first modeled on the previous procedures for reexamination of eligibility. Under these procedures, an individual whose case is selected for review bears the burden of demonstrating the continuing existence of a statutory disability. The appropriate state agency performs the initial review, and persons who are found to have become ineligible are generally provided administrative review similar to the review provided to new claimants. See 42 U.S. C. 421(i) (1982 ed. and Supp. IV); Brief for Petitioners 10. Cf. Under the original CDR procedures, benefits were usually terminated after a state agency found a claimant ineligible, and were not available during administrative appeals. See H. R. Conf. Rep. No. 98-1039, p. 33 Finding that benefits were too often being improperly terminated by state agencies, only to be reinstated by a federal administrative law judge (ALJ), Congress enacted temporary emergency legislation in 1983. This law provided for the continuation of benefits, pending review by an ALJ, after a state agency determined that an individual was no longer disabled. Pub. L. 97-455, 2, ; see also Pub. L. 98-118, 2, In the Social Security Disability *416 Benefits Reform Act of 1984 (1984 Reform Act), Congress extended this provision until January 1, 1988, and provided for a number of other significant changes in the administration of CDR. Pub. L. 98-460, 2, 7, -1796, 1803-1804, 42 U.S. C. 423(f), (g) (1982 ed. and Supp. IV). In its final form, this legislation was enacted out a single opposing vote in either Chamber. See 130 Cong. Rec. 26000, 26145-26146 ; see also ; The problems to which Congress responded so emphatically were widespread. One of the cosponsors of the 1984 Reform Act, who had conducted hearings on the administration of CDR, summarized evidence from the General Accounting Office as follows: "[T]he message perceived by the State agencies, swamped cases, was to deny, deny, deny, and, I might add, to process cases faster and faster and faster. In the name of efficiency, we have scanned our computer terminals, rounded up the disabled workers in the country, pushed the discharge button, and let them go into a free [f]all toward economic chaos." Other legislators reached similar conclusions. See, e. g., ("[T]he Social Security Administration has tried to reduce program cost by terminating the benefits of hundreds of thousands of truly disabled Americans"); (alluding to "massive number of beneficiaries who have lost their benefits over the last 3 years even though they are truly disabled and unable to work"). Such conclusions were based, not only on anecdotal evidence, but on compellingly forceful statistics. The Social Security Administration itself apparently reported that about 200,000 persons were wrongfully terminated, and then reinstated, between March 1981 and April 1984. ; see also ; In the first year of CDR, half of those who were terminated appealed the decision, and "an *417 amazing two-thirds of those who appealed were being reinstated." ; see also ; ; S. Rep. No. 98-466, p. 18 Congress was also made aware of the terrible effects on individual lives that CDR had produced. The chairman of the Senate's Special Committee on Aging pointed out that "[t]he human dimension of this crisis — the unnecessary suffering, anxiety, and turmoil — has been graphically exposed by dozens of congressional hearings and in newspaper articles all across the country." 130 Cong. Rec. 25986 Termination could also lead to the cut-off of Medicare benefits, so that some people were left out adequate medical care. ; see also There is little doubt that CDR led to many hardships and injuries that could never be adequately compensated. See, e. g., -6589 B Respondents are three individuals whose disability benefits under Title II were terminated pursuant to the CDR program in 1981 and 1982. Respondents Spencer Harris and Dora Adelerte appealed these determinations through the administrative process, were restored to disabled status, and were awarded full retroactive benefits. Respondent James Chilicky did not pursue these administrative remedies. Instead, he filed a new application for benefits about a year and a half after his benefits were stopped. His application was granted, and he was awarded one year's retroactive benefits; his application for the restoration of the other six months' benefits is apparently still pending. See Brief for Petitioners 18, and n. 13; Brief for Respondents 3. Because the terminations in these three cases occurred before the 1983 emergency legislation was enacted, respondents experienced delays of many months in receiving disability benefits to *418 which they were entitled. All the respondents had been wholly dependent on their disability benefits, and all allege that they were unable to maintain themselves or their families in even a minimally adequate fashion after they were declared ineligible. Respondent James Chilicky was in the hospital recovering from open-heart surgery when he was informed that his heart condition was no longer disabling. In addition to pursuing administrative remedies, respondents (along several other individuals who have since drawn from the case) filed this lawsuit in the United States District Court for the District of Arizona. They alleged that petitioners — one Arizona[1] and two federal officials who had policymaking roles in the administration of the CDR program — had violated respondents' due process rights. The thrust of the complaint, which named petitioners in their official and individual capacities, was that petitioners had adopted illegal policies that led to the wrongful termination of benefits by state agencies. Among the allegations were claims that petitioners improperly accelerated the starting date of the CDR program; illegally refused to acquiesce in decisions of the United States Court of Appeals for the Ninth Circuit; failed to apply uniform written standards in implementing the CDR program; failed to give effect to dispositive evidence in particular cases; and used an impermissible quota *419 system under which state agencies were required to terminate predetermined numbers of recipients. See Respondents sought injunctive and declaratory relief, and money damages for "emotional distress and for loss of food, shelter and other necessities proximately caused by [petitioners'] denial of benefits out due process." The District Court dismissed the case on the ground that petitioners were protected by a qualified immunity. Their alleged conduct, the court concluded, did not violate " `clearly established statutory or constitutional rights of which a reasonable person would have known.' " App. to Pet. for Cert. 16a ). Although the court discussed only the claims involving acceleration of the starting date for CDR and nonacquiescence in Ninth Circuit decisions, its qualified immunity holding apparently applied to respondents' other claims as well. Respondents appealed, pressing only their claims for money damages against petitioners in their individual capacities. These claims, noted the Court of Appeals, are "predicated on the constitutional tort theory of" Petitioners argued that the District Court lacked subject matter jurisdiction because the procedures set forth in 42 U.S. C. 405(g), which do not authorize judicial review in a case like this one, provide the exclusive means of judicial redress for actions "arising under" the relevant provisions of the Act. The Court of Appeals rejected this argument, holding that subject matter jurisdiction existed because respondents' claims for emotional distress "arose under" the Due Process Clause of the Fifth Amendment rather than under the statute. The Court of Appeals went on to affirm the District Court to the extent that it dismissed the claims involving acceleration of the CDR program and nonacquiescence in Ninth Circuit decisions. As to respondents' other claims, however, the Court of Appeals concluded *420 that "[i]t cannot be determined as a matter of law that [respondents] could prove no state of facts that resulted in violations of their due process rights and consequent damages."[2] The case was accordingly remanded for further proceedings, including a trial if necessary. The petition for certiorari presented one question: "Whether a Bivens remedy should be implied for alleged due process violations in the denial of social security disability benefits." We granted the petition, and now reverse. II A The Constitution provides that federal courts may be given original jurisdiction over "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." U. S. Const., Art. III, 1, 2. Since 1875, Congress has provided the federal trial courts general jurisdiction over such cases. See Judiciary Act of March 3, 1875, 1, ; 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3561 ; American Law Institute, Study of the Division of Jurisdiction between State and Federal Courts 162-163 (1969). The statute currently provides that the "district courts shall have original *421 jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S. C. 1331. In 1971, this Court held that the victim of a Fourth Amendment violation by federal officers acting under color of their authority may bring suit for money damages against the officers in federal court. The Court noted that Congress had not specifically provided for such a remedy and that "the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation." Nevertheless, finding "no special factors counselling hesitation in the absence of affirmative action by Congress," and "no explicit congressional declaration" that money damages may not be awarded, the majority relied on the rule that " `where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.' " -397 ). So-called "Bivens actions" for money damages against federal officers have subsequently been permitted under 1331 for violations of the Due Process Clause of the Fifth Amendment, and the Cruel and Unusual Punishments Clause of the Eighth Amendment, In each of these cases, as in Bivens itself, the Court found that there were no "special factors counselling hesitation in the absence of affirmative action by Congress," no explicit statutory prohibition against the relief sought, and no exclusive statutory alternative remedy. See -247; -20. Our more recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts. The absence of statutory relief for a constitutional violation, for example, does not by any means necessarily imply that courts should award money damages against the *422 officers responsible for the violation. Thus, in we refused — unanimously — to create a Bivens action for enlisted military personnel who alleged that they had been injured by the unconstitutional actions of their superior officers and who had no remedy against the Government itself: "The special nature of military life — the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel — would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command "Also, Congress, the constitutionally authorized source of authority over the military system of justice, has not provided a damages remedy for claims by military personnel that constitutional rights have been violated by superior officers. Any action to provide a judicial response by way of such a remedy would be plainly inconsistent Congress' authority in this field. "Taken together, the unique disciplinary structure of the Military Establishment and Congress' activity in the field constitute `special factors' which dictate that it would be inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers." See also United Similarly, we refused — again unanimously — to create a Bivens remedy for a First Amendment violation "aris[ing] out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States." In that case, a federal employee was demoted, allegedly in violation of the First Amendment, *423 for making public statements critical of the agency for which he worked. He was reinstated through the administrative process, retroactive seniority and full backpay, but he was not permitted to recover for any loss due to emotional distress or mental anguish, or for attorney's fees. See and nn. 8-9; Concluding that the administrative system created by Congress "provides meaningful remedies for employees who may have been unfairly disciplined for making critical comments about their agencies," the Court refused to create a Bivens action even though it assumed a First Amendment violation and acknowledged that "existing remedies do not provide complete relief for the plaintiff," See also The Court stressed that the case involved policy questions in an area that had received careful attention from Congress. Noting that the Legislature is far more competent than the Judiciary to carry out the necessary "balancing [of] governmental efficiency and the rights of employees," we refused to "decide whether or not it would be good policy to permit a federal employee to recover damages from a supervisor who has improperly disciplined him for exercising his First Amendment rights." In sum, the concept of "special factors counselling hesitation in the absence of affirmative action by Congress" has proved to include an appropriate judicial deference to indications that congressional inaction has not been inadvertent. When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies. *424 B The administrative structure and procedures of the Social Security system, which affects virtually every American, "are of a size and extent difficult to comprehend." Millions of claims are filed every year under the Act's disability benefits programs alone, and these claims are handled under "an unusually protective [multi]-step process for the review and adjudication of disputed claims." The steps provided for under Title II are essentially identical for new claimants and for persons subject to CDR. An initial determination of a claimant's eligibility for benefits is made by a state agency, under federal standards and criteria. See 42 U.S. C. 421(a) (1982 ed. and Supp. IV); see also 20 CFR 404.1588-404.1599 Next, a claimant is entitled to de novo reconsideration by the state agency, and additional evidence may be presented at that time. 404.907-404.922. If the claimant is dissatisfied the state agency's decision, review may then be had by the Secretary of Health and Human Services, acting through a federal ALJ; at this stage, the claimant is again free to introduce new evidence or raise new issues. 42 U.S. C. 421(d) (1982 ed., Supp. IV); 20 CFR 404.929-404.965 If the claimant is still dissatisfied, a hearing may be sought before the Appeals Council of the Social Security Administration. 404.967-404.983. Once these elaborate administrative remedies have been exhausted, a claimant is entitled to seek judicial review, including review of constitutional claims. 42 U.S. C. 405(g), 421(d) (1982 ed. and Supp. IV); ; ; The Act, however, makes no provision for remedies in money damages against officials responsible for unconstitutional conduct that leads to the wrongful denial of benefits. As respondents concede, claimants whose benefits have been fully restored through the administrative process would lack standing *425 to invoke the Constitution under the statute's administrative review provision. See Brief for Respondents 32-33. The case before us cannot reasonably be distinguished from Here, exactly as in Congress has failed to provide for "complete relief": respondents have not been given a remedy in damages for emotional distress or for other hardships suffered because of delays in their receipt of Social Security benefits. Compare n. 9, 796 F.2d, The creation of a Bivens remedy would obviously offer the prospect of relief for injuries that must now go unredressed. Congress, however, has not failed to provide meaningful safeguards or remedies for the rights of persons situated as respondents were. Indeed, the system for protecting their rights is, if anything, considerably more elaborate than the civil service system considered in The prospect of personal liability for official acts, moreover, would undoubtedly lead to new difficulties and expense in recruiting administrators for the programs Congress has established. Congressional competence at "balancing governmental efficiency and the rights of [individuals]," is no more questionable in the social welfare context than it is in the civil service context. Cf. Congressional attention to problems that have arisen in the administration of CDR (including the very problems that gave rise to this case) has, moreover, been frequent and intense. See, e. g., H. R. Rep. No. 98-618, pp. 2, 4 ; S. Rep. No. 98-466, pp. 10, 17-18 Congress itself required that the CDR program be instituted. Within two years after the program began, Congress enacted emergency legislation providing for the continuation of benefits even after a finding of ineligibility by a state agency. Less than two years after passing that law, and fully aware of the results of extensive investigations of the practices that led to respondents' injuries, Congress again enacted legislation aimed *426 at reforming the administration of CDR; that legislation again specifically addressed the problem that had provoked the earlier emergency legislation. At each step, Congress chose specific forms and levels of protection for the rights of persons affected by incorrect eligibility determinations under CDR. At no point did Congress choose to extend to any person the kind of remedies that respondents seek in this lawsuit. Cf. 130 Cong. Rec. 6585-6586 (Rep. Perkins) (expressing regret that the bill eventually enacted as the 1984 Reform Act did not provide additional relief for persons improperly terminated during the early years of CDR). Thus, congressional unwillingness to provide consequential damages for unconstitutional deprivations of a statutory right is at least as clear in the context of this case as it was in Respondents nonetheless contend that should be confined to its facts, arguing that it applies only in the context of what they call "the special nature of federal employee relations." Brief for Respondents 40. Nothing that the parties to this case did "not share the sort of close, collaborative, continuing juridical relationship found in the federal civil service," respondents suggest that the availability of Bivens remedies would create less "inconvenience" to the Social Security system than it would in the context of the civil service. See Brief for Respondents 44, 46-48. Petitioners are less sanguine, arguing that the creation of Bivens remedy in this context would lead to "a complete disruption of [a] carefully crafted and constantly monitored congressional scheme." Reply Brief for Petitioners 15. We need not choose between these competing predictions, which have little bearing on the applicability of to this case. The decision in did not rest on this Court's belief that Bivens actions would be more disruptive of the civil service than they are in other contexts where they have been allowed, such as federal law enforcement agencies (Bivens itself) or the federal prisons ). Rather, we declined in " `to create a new substantive *427 legal liability ' because we are convinced that Congress is in a better position to decide whether or not the public interest would be served by creating it." That reasoning applies as much, or more, in this case as it did in itself. Respondents also suggest that this case is distinguishable from because the plaintiff in that case received compensation for the constitutional violation itself, while these respondents have merely received that to which they would have been entitled had there been no constitutional violation. See Brief for Respondents 20, n. 26 ("'s reinstatement was a remedy for the alleged abuse, not just a restoration of something to which he was entitled "); see also (failure to create a Bivens remedy "would give respondents precisely the same thing whether or not they were victims of constitutional deprivation and would thus leave respondents no post-deprivation remedy at all for the constitutional violations they allege"). The opinion, however, drew no distinction between compensation for a "constitutional wrong" and the restoration of statutory rights that had been unconstitutionally taken away. Nor did it suggest that such labels would matter. Indeed, the Court appeared to assume that civil service employees would get "precisely the same thing whether or not they were victims of constitutional deprivation." Ibid.; see 462 U. S., (emphasis added; footnote omitted). thus lends no support to the notion that statutory violations caused by unconstitutional conduct necessarily require remedies in addition to the remedies provided generally for such statutory violations. Here, as in it is evident that if we were "to fashion an adequate remedy for every wrong that can be proved in a case [the complaining party] would obviously prevail." In neither case, however, does the presence of alleged unconstitutional *428 conduct that is not separately remedied under the statutory scheme imply that the statute has provided "no remedy" for the constitutional wrong at issue. The remedy sought in was virtually identical to the one sought by respondents in this case: consequential damages for hardships resulting from an allegedly unconstitutional denial of a statutory right (Social Security benefits in one instance and employment in a particular Government job in the other). In light of the comprehensive statutory schemes involved, the harm resulting from the alleged constitutional violation can in neither case be separated from the harm resulting from the denial of the statutory right. Respondents' effort to separate the two does not distinguish this case from in any analytically meaningful sense. In the end, respondents' various arguments are rooted in their insistent and vigorous contention that they simply have not been adequately recompensed for their injuries. They say, for example: "Respondents are disabled workers who were dependent upon their Social Security benefits when petitioners unconstitutionally terminated them. Respondents needed those benefits, at the time they were wrongfully held, to purchase food, shelter, medicine, and life's other necessities. The harm they suffered as a result bears no relation to the dollar amount of the benefits unjustly held from them. For the Government to offer belated restoration of back benefits in a lump sum and attempt to call it quits, after respondents have suffered deprivation for months on end, is not only to display gross insensitivity to the damage done to respondents' lives, but to trivialize the seriousness of petitioners' offense." Brief for Respondents 11. We agree that suffering months of delay in receiving the income on which one has depended for the very necessities of life cannot be fully remedied by the "belated restoration of back benefits." The trauma to respondents, and thousands of others like them, must surely have gone beyond what anyone *429 of normal sensibilities would wish to see imposed on innocent disabled citizens. Nor would we care to "trivialize" the nature of the wrongs alleged in this case. Congress, however, has addressed the problems created by state agencies' wrongful termination of disability benefits. Whether or not we believe that its response was the best response, Congress is the body charged making the inevitable compromises required in the design of a massive and complex welfare benefits program. Cf. Congress has discharged that responsibility to the extent that it affects the case before us, and we see no legal basis that would allow us to revise its decision.[3] Because the relief sought by respondents is unavailable as a matter of law, the case must be dismissed. The judgment of the Court of Appeals to the contrary is therefore Reversed. *430 JUSTICE STEVENS, concurring in part and concurring in the judgment.

Justice Thomas

majority

Nebraska Dept. of Revenue v. Loewenstein

https://www.courtlistener.com/opinion/117885/nebraska-dept-of-revenue-v-loewenstein/

https://www.courtlistener.com/api/rest/v3/clusters/117885/

1994-010

We took this case to decide whether States may tax interest income derived from repurchase agreements involving federal securities. If the income that taxpayers earn by participating in such agreements constitutes interest on federal securities, then the taxation violates 31 U.S. C. § 3124(a), which exempts interest on "obligations of the United States Government" from taxation by States. On the other hand, if that income constitutes interest on loans to a private party, the taxation is not prohibited by the statute. With respect to the repurchase agreements at issue in this case, we conclude that for purposes of § 3124(a), the interest earned by taxpayers is interest on loans to a private party, not interest on federal securities. Accordingly, we hold that § 3124(a) does not prohibit States from taxing such income. I Respondent is a Nebraska resident who owns shares in two mutual funds, the Trust for Short-Term U. S. Government Securities and the Trust for U. S. Treasury Obligations (Trusts). The Trusts earn a portion of their income by participating in "repurchase agreements" that involve debt securities issued by the United States Government and its agencies *126 (federal securities). A typical repurchase agreement used by the Trusts, see App. 65-81, establishes a two-part transaction, commonly called a "repo," between a party who holds federal securities and seeks cash (Seller-Borrower) and a party who has available cash and seeks to earn interest on its idle funds (in this case, the Trusts). In part one of the repo, the Seller-Borrower "transfers" specified federal securities to the Trusts on the records of the Federal Reserve System's commercial book-entry system. Simultaneously, the Trusts transfer a specified amount of cash to the SellerBorrower's bank account. In part two of the transaction—which occurs at a later date fixed by agreement or, in the absence of any agreement, upon demand of either party—the Trusts "deliver" the federal securities back to the Seller-Borrower on the Federal Reserve's records, and the Seller-Borrower credits the Trusts' bank account in an amount equal to the sum of the original cash transfer plus "interest" at an agreed-upon rate. This interest rate bears no relation to the yield on the underlying federal securities—either when they were issued by the United States Government or when they later came into the hands of the Seller-Borrower—but is based instead on the current market rate paid on investments with maturities equal to the term of the repo, not to the original or current maturities of the underlying securities.[1] After deducting administrative costs, the Trusts distribute this interest income to respondent in proportion to his ownership of shares in the Trusts. The State of Nebraska generally taxes interest income, but it does not tax "interest or dividends received by the owner of obligations of the United *127 States . . . but exempt from state income taxes under the laws of the United States." Neb. Rev. Stat. § 77-2716(1)(a) (Supp. 1994). For purposes of Nebraska's income tax law, if interest would be exempt from tax in the hands of the Trusts, then respondent's proportionate share of such interest will be exempt. § 77-2716(1)(b). A decade ago petitioner considered whether the interest income derived from repurchase agreements involving federal securities and then distributed to respondent and similarly situated individuals was subject to Nebraska's income tax. Petitioner concluded that it was. Neb. Rev. Rul. 22— 85-1, Brief for Petitioner 4-5, n. 1. In 1988, respondent brought a declaratory judgment action in the District Court of Lancaster County, Nebraska, asking that Revenue Ruling 22-85-1 be declared invalid as contrary to 31 U.S. C. § 3124(a) and the Supremacy Clause of the United States Constitution. The District Court granted the requested relief. On appeal, the Supreme Court of Nebraska affirmed, concluding that "the income received by [respondent] from repo transactions executed by the [T]rusts involving federal securities is exempt from state taxation under § 3124." Loewenstein v. State, 244 Neb. 82, 90, 504 N.W.2d 800, 805 (1993). As the Nebraska Supreme Court itself acknowledged, see id., at 88-90, 504 N.W.2d, at 804-805, several state courts have reached directly contrary conclusions,[2] and two Federal *128 Courts of Appeals have ruled that interest income derived from repos involving municipal bonds is not exempt from federal taxation under § 103(a)(1) of the Internal Revenue Code.[3] We granted certiorari to resolve this conflict, 510 U.S. 1176 (1994), and we now reverse. II We begin with the text of 31 U.S. C. § 3124(a). It provides in relevant part: "[O]bligations of the United States Government are exempt from taxation by a State or political subdivision of a State. The exemption applies to each form of taxation that would require the obligation, the interest on the obligation, or both, to be considered in computing a tax . . . ." Under this provision, a state tax may consider neither the federal "obligation" itself nor the "interest on the obligation." The obligation itself is "considered" when its value is "taken into account, or included in the accounting," Ameri- *129 can Bank & Trust Co. v. Dallas County, 463 U.S. 855, 862 (1983), in computing the taxable value of a taxpayer's assets or net worth for the purpose of a property tax or the like. See, e. g., First Nat. Bank of Atlanta v. Bartow County Bd. of Tax Assessors, 470 U.S. 583, 585-586 (1985) (property tax on bank shares). By contrast, the interest on the obligation is "considered" when that interest is included in computing the taxpayer's net income or earnings for the purpose of an income tax or the like. See, e. g., Memphis Bank & Trust Co. v. Garner, 459 U.S. 392, 393-394 (1983) (tax on net earnings of banks). By participating in repos involving federal securities, the Trusts (and thus respondent) earned interest income, and Nebraska's income tax admittedly considered that interest in computing respondent's taxable income. We must decide whether for purposes of § 3124(a) the interest earned by the Trusts from these repos is interest on "obligations of the United States Government" or interest on loans of cash from the Trusts to the Seller-Borrower. We conclude that it is the latter, and we accordingly hold that Nebraska's taxation of the income derived by respondent from the repos does not violate § 3124(a). An investor may earn interest income from a federal security in one or both of two ways. First, the investor may receive periodic payments from the United States Government at the interest rate stated on the face of the security. Such payments are traditionally known as "coupon interest." Second, the investor may acquire the security at a discount from the amount for which it will ultimately be redeemed by the Government at maturity. This discount is also considered interest for purposes of taxation.[4] Although "discount *130 interest" accrues during the term of the security, the investor does not receive it in cash until the security is redeemed or transferred to a third party. Our examination of the typical repurchase agreement used by the Trusts convinces us that they did not earn either kind of interest on federal securities. Certainly, none of the income the Trusts earn by participating in repos can be attributed to redemptions of the securities or payments of coupon interest by the Government: The Trusts must "pay over to [the Seller-Borrower] as soon as received all principal, interest and other sums paid by or on behalf of the issuer in respect of the Securities and collected by the [Trusts]." App. 69. Nor can we conclude that the Trusts receive discount interest when the federal securities are transferred back to the Seller-Borrower in part two of the repo. Under the typical repurchase agreement, any individual repo transaction may involve a mix of federal securities with varying maturities, and therefore varying yields. During the term of the repo, these securities earn discount interest based on their respective yields (and on whether they pay coupon interest). The Trusts, however, earn interest from the Seller-Borrower at an agreed-upon rate that is not based on any of these yields, or any combination of them. Thus, the interest that the Trusts earn by participating in the repo will bear no relation to the discount interest earned on federal securities during the same period. We conclude instead that for purposes of § 3124(a), the interest income earned by the Trusts is interest on loans from the Trusts to the Seller-Borrower, and that the federal securities are involved in the repo transactions as collateral for *131 these loans. Several features of the repos lead to this conclusion. First, at the commencement of a repo, the Trusts pay the Seller-Borrower a fixed sum of money; at the repo's termination, the Seller-Borrower repays that sum with "interest." As explained above, this repo interest bears no relation to either the coupon interest paid or the discount interest accrued on the federal securities during the term of the repo. Second, if the Seller-Borrower defaults on its obligation to pay its debt, the Trusts may liquidate the federal securities. But like any lender who liquidates collateral, the Trusts may retain the proceeds of liquidation only up to the amount of the debt plus expenses; any excess must be paid to the Seller-Borrower. Moreover, if the proceeds are insufficient to satisfy the debt, the Trusts may recover the deficiency from the Seller-Borrower. Third, if the market value of the federal securities involved in the repo falls below 102% of the amount the Trusts originally paid to the Seller-Borrower, the latter must immediately deliver cash or additional securities to the Trusts to restore the value of the securities held by the Trusts to 102% of the original payment amount. On the other hand, if the market value of the securities rises above 102% of this amount, the Seller-Borrower may require the Trusts to return some of the securities to the Seller-Borrower. These provisions are consistent with a lender-borrower relationship in which a prudent lender desires to protect the value of its collateral, while a prudent borrower attempts to pledge as little collateral as possible. Fourth, the Seller-Borrower may, during the term of the repo, "substitute" federal securities of equal market value for the federal securities initially involved in the transaction. A lender, of course, is indifferent to the particular collateral pledged by the borrower, so long as that collateral has sufficient value and liquidity. *132 The parties have stipulated that the Trusts (or their agents) take "Delivery" of the federal securities at the commencement of a repo. App. 63. But even this fact is consistent with understanding repos as loans of cash from the Trusts to the Seller-Borrower: "Delivery" of the securities perfects the Trusts' security interests in their collateral. Under the most recent version of § 8-321(1) of the Uniform Commercial Code (U. C. C.), "[a] security interest in a security is enforceable and can attach only if it is transferred to the secured party . . . pursuant to a provision of [§] 8-313(1)." 2C U. L. A. 459 (1991). Section 8-313(1)(a) provides that transfer of a security interest in a security occurs when the secured party "acquires possession of a certificated security." [5]Id., at 402. Of course, possession of the federal securities allows the Trusts to effect an expeditious, nonjudicial liquidation of the securities if the Seller-Borrower defaults. Cf. U. C. C. § 9-504(1), 3B U. L. A. 127 (1992). The ability to liquidate immediately is obviously critical in the context of repo transactions, which may have a life span of only a single day. Based on the foregoing analysis, we conclude that the interest income earned by the Trusts from repurchase agreements involving federal securities is not interest on "obligations of the United States Government." For purposes of 31 U.S. C. § 3124(a), the income is instead interest on loans from the Trusts to the Seller-Borrower. Because § 3124(a) exempts only the former type of interest from state taxation, *133 Nebraska did not violate that statute when it taxed respondent's interest income.[6] III Respondent offers two objections to this interpretation of § 3124(a). We find neither of them persuasive. A The typical repurchase agreement at issue in this case explicitly identifies the original transfer of the federal securities to the Trusts as a "sale" and the subsequent transfer back to the Seller-Borrower as a "repurchase." Respondent maintains we should honor this characterization because the repos were structured by the Trusts and the SellerBorrower as sales and repurchases for valid business and regulatory reasons independent of tax considerations. Respondent relies on our statement in Frank Lyon Co. v. United States, 435 U.S. 561, 583-584 (1978): "[W]here . . . there is a genuine multiple-party transaction with economic substance which is compelled or encouraged by business or regulatory realities, is imbued with tax-independent considerations, and is not shaped solely by tax-avoidance features that have meaningless labels attached, the Government should honor the allocation of rights and duties effectuated by the parties." We do not believe it matters for purposes of § 3124(a) whether the repo is characterized as a sale and subsequent repurchase. A sale-repurchase characterization presumably would make the Trusts the "owners" of the federal securities *134 during the term of the repo. But the dispositive question is whether the Trusts earned interest on "obligations of the United States Government," not whether the Trusts "owned" such obligations. As respondent himself concedes, "[t]he concept of `ownership' is simply not an issue under 31 U.S. C. § 3124." Brief for Respondent 10. Even if it did matter how repos were characterized for purposes of § 3124(a), Frank Lyon Co. does not support respondent's position. Whatever the language relied on by respondent may mean, our decision in that case to honor the taxpayer's characterization of its transaction as a "sale-andleaseback" rather than a "financing transaction" was founded on an examination of "the substance and economic realities of the transaction." 435 U.S., at 582. This examination included identification of 27 specific facts. See id., at 582-583. The substance and economic realities of the Trusts' repo transactions, as manifested in the specific facts discussed above, are that the Trusts do not receive either coupon interest or discount interest from federal securities by participating in repos. Rather, in economic reality, the Trusts receive interest on cash they have lent to the Seller-Borrower. Respondent does not specifically dispute this conclusion but argues that repos are characterized as ordinary sales and repurchases for purposes of federal securities, bankruptcy, and banking law as well as commercial and local government law. We need not examine the accuracy of these assertions, for we are not called upon in this case to interpret any of those bodies of law. Our decision today is an interpretation only of 31 U.S. C. § 3124(a)—not the Securities Exchange Act of 1934, the Bankruptcy Code, or any other body of law. B At oral argument, respondent advanced another argument against the interpretation of § 3124(a) adopted here: Although petitioner's Revenue Ruling nominally acknowledges the right of the Seller-Borrower to claim the exemption granted by § 3124(a), Nebraska's income tax scheme will not *135 allow the Seller-Borrower to realize the full amount of the federal exemption. This would allegedly frustrate Congress' purpose in granting the exemption. According to respondent, after the Seller-Borrower has subtracted from its taxable income any "interest or dividends received by [it as] the owner of obligations of the United States," pursuant to subsection (a) of Neb. Rev. Stat. § 77-2716(1) (Supp. 1994), it will then be forced to add back "any interest on indebtedness incurred to carry the [federal] obligations," pursuant to subsection (e)(i) of § 77-2716(1). Respondent conjectures that the interest paid by the Seller-Borrower to the Trusts in the course of repos may constitute just such interest. Respondent therefore hypothesizes that if the Seller-Borrower receives, for example, $100 in interest as the holder of federal securities and pays out $90 to the Trusts in the course of repos involving those securities, Nebraska might give the Seller-Borrower an income tax exemption worth only $10 ($100 minus $90), rather than the $100 exemption that Congress arguably intended. There is a short answer to respondent's multi layered hypothesis: this case does not involve the construction or validity of Nebraska's add-back rule as applied in the repo context. The Nebraska Supreme Court did not cite § 77— 2716(1)(e)(i) in its opinion, and we did not grant certiorari to consider that provision. IV Finally, respondent argues that Nebraska's taxation of income from repos involving federal securities violates the Supremacy Clause of the Constitution. First, respondent contends that Nebraska discriminates against federal obligations because it does not tax income from repos involving Nebraska's own state and local obligations. Although Nebraska Revenue Ruling 22-85-1 concerns repos involving "federal government obligations" and does not mention their Nebraska counterparts, respondent has pointed to no statute, revenue ruling, or other manifestation of Nebraska policy *136 treating "state" repos any different from "federal" repos for tax purposes. Second, respondent cites our decision in Rockford Life Ins. Co. v. Illinois Dept. of Revenue, 482 U.S. 182, 190 (1987), in which we stated that "the inter governmental tax immunity doctrine . . . is based on the proposition that the borrowing power is an essential aspect of the Federal Government's authority and, just as the Supremacy Clause bars the States from directly taxing federal property, it also bars the States from taxing federal obligations in a manner which has an adverse effect on the United States' borrowing ability." According to respondent, undisputed expert testimony in the record establishes that the taxation at issue in this case will make it more difficult and expensive for the Federal Government to finance the national debt. This expert testimony essentially consists of a 1986 affidavit sworn by Peter D. Sternlight, a former official of the Federal Reserve Bank of New York. In our view, Sternlight's affidavit has no relevance to this case. It concluded only that "an impairment of the repo market would make it less attractive for [government securities] dealers to perform [their] very useful . . . function [of underwriting a sizeable portion of Treasury securities], thus adding to Treasury interest costs." App. 42. But the "impairment" that worried Sternlight would result "[i]f repurchase agreements were to lose their present characteristics of flexibility and liquidity," or if repos became "unavailable" to certain kinds of public and private institutional investors. Id., at 42, 43. These possibilities might develop if repos were to be characterized as secured loans for purposes of federal bankruptcy and banking law or of commercial and local government law. Our decision today, however, says nothing about how repos should be characterized for those purposes.[7] *137 Disregarding the inapplicable Stern light affidavit, we find no evidence in the record that the taxation at issue will impair the market in federal securities or otherwise impair the borrowing ability of the Federal Government. Rockford Life confirmed the rule that "`when effort is made . . . to establish the unconstitutional character of a particular tax by claiming its remote effect will be to impair the borrowing power of the government, courts . . .ought to have something more substantial to act upon than mere conjecture. The injury ought to be obvious and appreciable.' " 482 U.S., at 190, n. 10 (quoting Plummer v. Coler, 178 U.S. 115, 137— 138 (1900)). Respondent has shown us no "obvious and appreciable" injury to the borrowing power of the United States Government as a result of Nebraska's taxation of the repo income earned by the Trusts. Rather, he has given us "mere conjecture." In these circumstances, we cannot justifiably conclude that Nebraska's taxation of income derived from repos involving federal securities violates the Supremacy Clause of the Constitution. For the foregoing reasons, the judgment of the Supreme Court of Nebraska is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

We took this case to decide whether States may tax interest income derived from repurchase agreements involving federal securities. If the income that taxpayers earn by participating in such agreements constitutes interest on federal securities, then the taxation violates 31 U.S. C. 3124(a), which exempts interest on "obligations of the United States Government" from taxation by States. On the other hand, if that income constitutes interest on loans to a private party, the taxation is not prohibited by the statute. With respect to the repurchase agreements at issue in this case, we conclude that for purposes of 3124(a), the interest earned by taxpayers is interest on loans to a private party, not interest on federal securities. Accordingly, we hold that 3124(a) does not prohibit States from taxing such income. I Respondent is a Nebraska resident who owns shares in two mutual funds, the Trust for Short-Term U. S. Government Securities and the Trust for U. S. Treasury Obligations (Trusts). The Trusts earn a portion of their income by participating in "repurchase agreements" that involve debt securities issued by the United States Government and its agencies *126 (federal securities). A typical repurchase agreement used by the Trusts, see App. 65-81, establishes a two-part transaction, commonly called a "repo," between a party who holds federal securities and seeks cash (Seller-Borrower) and a party who has available cash and seeks to earn interest on its idle funds (in this case, the Trusts). In part one of the repo, the Seller-Borrower "transfers" specified federal securities to the Trusts on the records of the Federal Reserve System's commercial book-entry system. Simultaneously, the Trusts transfer a specified amount of cash to the SellerBorrower's bank account. In part two of the transaction—which occurs at a later date fixed by agreement or, in the absence of any agreement, upon demand of either party—the Trusts "deliver" the federal securities back to the Seller-Borrower on the Federal Reserve's records, and the Seller-Borrower credits the Trusts' bank account in an amount equal to the sum of the original cash transfer plus "interest" at an agreed-upon rate. This interest rate bears no relation to the yield on the underlying federal securities—either when they were issued by the United States Government or when they later came into the hands of the Seller-Borrower—but is based instead on the current market rate paid on investments with maturities equal to the term of the repo, not to the original or current maturities of the underlying securities.[1] After deducting administrative costs, the Trusts distribute this interest income to respondent in proportion to his ownership of shares in the Trusts. The State of Nebraska generally taxes interest income, but it does not tax "interest or dividends received by the owner of obligations of the United *127 States but exempt from state income taxes under the laws of the United States." Neb. Rev. Stat. 77-2716(1)(a) For purposes of Nebraska's income tax law, if interest would be exempt from tax in the hands of the Trusts, then respondent's proportionate share of such interest will be exempt. 77-2716(1)(b). A decade ago petitioner considered whether the interest income derived from repurchase agreements involving federal securities and then distributed to respondent and similarly situated individuals was subject to Nebraska's income tax. Petitioner concluded that it was. Neb. Rev. Rul. 22— 85-1, Brief for Petitioner 4-5, n. 1. In 1988, respondent brought a declaratory judgment action in the District Court of Lancaster County, Nebraska, asking that Revenue Ruling 22-85-1 be declared invalid as contrary to 31 U.S. C. 3124(a) and the Supremacy Clause of the United States Constitution. The District Court granted the requested relief. On appeal, the Supreme Court of Nebraska affirmed, concluding that "the income received by [respondent] from repo transactions executed by the [T]rusts involving federal securities is exempt from state taxation under 3124." As the Nebraska Supreme Court itself acknowledged, see at 88-, -, several state courts have reached directly contrary conclusions,[2] and two Federal *128 Courts of Appeals have ruled that interest income derived from repos involving municipal bonds is not exempt from federal taxation under 103(a)(1) of the Internal Revenue Code.[3] We granted certiorari to resolve this conflict, and we now reverse. II We begin with the text of 31 U.S. C. 3124(a). It provides in relevant part: "[O]bligations of the United States Government are exempt from taxation by a State or political subdivision of a State. The exemption applies to each form of taxation that would require the obligation, the interest on the obligation, or both, to be considered in computing a tax" Under this provision, a state tax may consider neither the federal "obligation" itself nor the "interest on the obligation." The obligation itself is "considered" when its value is "taken into account, or included in the accounting," Ameri- *129 can Bank & Trust in computing the taxable value of a taxpayer's assets or net worth for the purpose of a property tax or the like. See, e. g., First Nat. Bank of By contrast, the interest on the obligation is "considered" when that interest is included in computing the taxpayer's net income or earnings for the purpose of an income tax or the like. See, e. g., Memphis Bank & Trust By participating in repos involving federal securities, the Trusts (and thus respondent) earned interest income, and Nebraska's income tax admittedly considered that interest in computing respondent's taxable income. We must decide whether for purposes of 3124(a) the interest earned by the Trusts from these repos is interest on "obligations of the United States Government" or interest on loans of cash from the Trusts to the Seller-Borrower. We conclude that it is the latter, and we accordingly hold that Nebraska's taxation of the income derived by respondent from the repos does not violate 3124(a). An investor may earn interest income from a federal security in one or both of two ways. First, the investor may receive periodic payments from the United States Government at the interest rate stated on the face of the security. Such payments are traditionally known as "coupon interest." Second, the investor may acquire the security at a discount from the amount for which it will ultimately be redeemed by the Government at maturity. This discount is also considered interest for purposes of taxation.[4] Although "discount *130 interest" accrues during the term of the security, the investor does not receive it in cash until the security is redeemed or transferred to a third party. Our examination of the typical repurchase agreement used by the Trusts convinces us that they did not earn either kind of interest on federal securities. Certainly, none of the income the Trusts earn by participating in repos can be attributed to redemptions of the securities or payments of coupon interest by the Government: The Trusts must "pay over to [the Seller-Borrower] as soon as received all principal, interest and other sums paid by or on behalf of the issuer in respect of the Securities and collected by the [Trusts]." App. 69. Nor can we conclude that the Trusts receive discount interest when the federal securities are transferred back to the Seller-Borrower in part two of the repo. Under the typical repurchase agreement, any individual repo transaction may involve a mix of federal securities with varying maturities, and therefore varying yields. During the term of the repo, these securities earn discount interest based on their respective yields (and on whether they pay coupon interest). The Trusts, however, earn interest from the Seller-Borrower at an agreed-upon rate that is not based on any of these yields, or any combination of them. Thus, the interest that the Trusts earn by participating in the repo will bear no relation to the discount interest earned on federal securities during the same period. We conclude instead that for purposes of 3124(a), the interest income earned by the Trusts is interest on loans from the Trusts to the Seller-Borrower, and that the federal securities are involved in the repo transactions as collateral for *131 these loans. Several features of the repos lead to this conclusion. First, at the commencement of a repo, the Trusts pay the Seller-Borrower a fixed sum of money; at the repo's termination, the Seller-Borrower repays that sum with "interest." As explained above, this repo interest bears no relation to either the coupon interest paid or the discount interest accrued on the federal securities during the term of the repo. Second, if the Seller-Borrower defaults on its obligation to pay its debt, the Trusts may liquidate the federal securities. But like any lender who liquidates collateral, the Trusts may retain the proceeds of liquidation only up to the amount of the debt plus expenses; any excess must be paid to the Seller-Borrower. Moreover, if the proceeds are insufficient to satisfy the debt, the Trusts may recover the deficiency from the Seller-Borrower. Third, if the market value of the federal securities involved in the repo falls below 102% of the amount the Trusts originally paid to the Seller-Borrower, the latter must immediately deliver cash or additional securities to the Trusts to restore the value of the securities held by the Trusts to 102% of the original payment amount. On the other hand, if the market value of the securities rises above 102% of this amount, the Seller-Borrower may require the Trusts to return some of the securities to the Seller-Borrower. These provisions are consistent with a lender-borrower relationship in which a prudent lender desires to protect the value of its collateral, while a prudent borrower attempts to pledge as little collateral as possible. Fourth, the Seller-Borrower may, during the term of the repo, "substitute" federal securities of equal market value for the federal securities initially involved in the transaction. A lender, of course, is indifferent to the particular collateral pledged by the borrower, so long as that collateral has sufficient value and liquidity. *132 The parties have stipulated that the Trusts (or their agents) take "Delivery" of the federal securities at the commencement of a repo. App. 63. But even this fact is consistent with understanding repos as loans of cash from the Trusts to the Seller-Borrower: "Delivery" of the securities perfects the Trusts' security interests in their collateral. Under the most recent version of 8-321(1) of the Uniform Commercial Code (U. C. C.), "[a] security interest in a security is enforceable and can attach only if it is transferred to the secured party pursuant to a provision of [] 8-313(1)." 2C U. L. A. 459 (1991). Section 8-313(1)(a) provides that transfer of a security interest in a security occurs when the secured party "acquires possession of a certificated security." [5] at 402. Of course, possession of the federal securities allows the Trusts to effect an expeditious, nonjudicial liquidation of the securities if the Seller-Borrower defaults. Cf. U. C. C. 9-504(1), 3B U. L. A. 127 (1992). The ability to liquidate immediately is obviously critical in the context of repo transactions, which may have a life span of only a single day. Based on the foregoing analysis, we conclude that the interest income earned by the Trusts from repurchase agreements involving federal securities is not interest on "obligations of the United States Government." For purposes of 31 U.S. C. 3124(a), the income is instead interest on loans from the Trusts to the Seller-Borrower. Because 3124(a) exempts only the former type of interest from state taxation, *133 Nebraska did not violate that statute when it taxed respondent's interest income.[6] III Respondent offers two objections to this interpretation of 3124(a). We find neither of them persuasive. A The typical repurchase agreement at issue in this case explicitly identifies the original transfer of the federal securities to the Trusts as a "sale" and the subsequent transfer back to the Seller-Borrower as a "repurchase." Respondent maintains we should honor this characterization because the repos were structured by the Trusts and the SellerBorrower as sales and repurchases for valid business and regulatory reasons independent of tax considerations. Respondent relies on our statement in Frank Lyon : "[W]here there is a genuine multiple-party transaction with economic substance which is compelled or encouraged by business or regulatory realities, is imbued with tax-independent considerations, and is not shaped solely by tax-avoidance features that have meaningless labels attached, the Government should honor the allocation of rights and duties effectuated by the parties." We do not believe it matters for purposes of 3124(a) whether the repo is characterized as a sale and subsequent repurchase. A sale-repurchase characterization presumably would make the Trusts the "owners" of the federal securities *134 during the term of the repo. But the dispositive question is whether the Trusts earned interest on "obligations of the United States Government," not whether the Trusts "owned" such obligations. As respondent himself concedes, "[t]he concept of `ownership' is simply not an issue under 31 U.S. C. 3124." Brief for Respondent 10. Even if it did matter how repos were characterized for purposes of 3124(a), Frank Lyon Co. does not support respondent's position. Whatever the language relied on by respondent may mean, our decision in that case to honor the taxpayer's characterization of its transaction as a "sale-andleaseback" rather than a "financing transaction" was founded on an examination of "the substance and economic realities of the transaction." This examination included identification of 27 specific facts. See The substance and economic realities of the Trusts' repo transactions, as manifested in the specific facts discussed above, are that the Trusts do not receive either coupon interest or discount interest from federal securities by participating in repos. Rather, in economic reality, the Trusts receive interest on cash they have lent to the Seller-Borrower. Respondent does not specifically dispute this conclusion but argues that repos are characterized as ordinary sales and repurchases for purposes of federal securities, bankruptcy, and banking law as well as commercial and local government law. We need not examine the accuracy of these assertions, for we are not called upon in this case to interpret any of those bodies of law. Our decision today is an interpretation only of 31 U.S. C. 3124(a)—not the Securities Exchange Act of 1934, the Bankruptcy Code, or any other body of law. B At oral argument, respondent advanced another argument against the interpretation of 3124(a) adopted here: Although petitioner's Revenue Ruling nominally acknowledges the right of the Seller-Borrower to claim the exemption granted by 3124(a), Nebraska's income tax scheme will not *135 allow the Seller-Borrower to realize the full amount of the federal exemption. This would allegedly frustrate Congress' purpose in granting the exemption. According to respondent, after the Seller-Borrower has subtracted from its taxable income any "interest or dividends received by [it as] the owner of obligations of the United States," pursuant to subsection (a) of Neb. Rev. Stat. 77-2716(1) it will then be forced to add back "any interest on indebtedness incurred to carry the [federal] obligations," pursuant to subsection (e)(i) of 77-2716(1). Respondent conjectures that the interest paid by the Seller-Borrower to the Trusts in the course of repos may constitute just such interest. Respondent therefore hypothesizes that if the Seller-Borrower receives, for example, $100 in interest as the holder of federal securities and pays out $ to the Trusts in the course of repos involving those securities, Nebraska might give the Seller-Borrower an income tax exemption worth only $10 ($100 minus $), rather than the $100 exemption that Congress arguably intended. There is a short answer to respondent's multi layered hypothesis: this case does not involve the construction or validity of Nebraska's add-back rule as applied in the repo context. The Nebraska Supreme Court did not cite 77— 2716(1)(e)(i) in its opinion, and we did not grant certiorari to consider that provision. IV Finally, respondent argues that Nebraska's taxation of income from repos involving federal securities violates the Supremacy Clause of the Constitution. First, respondent contends that Nebraska discriminates against federal obligations because it does not tax income from repos involving Nebraska's own state and local obligations. Although Nebraska Revenue Ruling 22-85-1 concerns repos involving "federal government obligations" and does not mention their Nebraska counterparts, respondent has pointed to no statute, revenue ruling, or other manifestation of Nebraska policy *136 treating "state" repos any different from "federal" repos for tax purposes. Second, respondent cites our decision in Rockford Life Ins. 1 in which we stated that "the inter governmental tax immunity doctrine is based on the proposition that the borrowing power is an essential aspect of the Federal Government's authority and, just as the Supremacy Clause bars the States from directly taxing federal property, it also bars the States from taxing federal obligations in a manner which has an adverse effect on the United States' borrowing ability." According to respondent, undisputed expert testimony in the record establishes that the taxation at issue in this case will make it more difficult and expensive for the Federal Government to finance the national debt. This expert testimony essentially consists of a 1986 affidavit sworn by Peter D. Sternlight, a former official of the Federal Reserve Bank of New York. In our view, Sternlight's affidavit has no relevance to this case. It concluded only that "an impairment of the repo market would make it less attractive for [government securities] dealers to perform [their] very useful function [of underwriting a sizeable portion of Treasury securities], thus adding to Treasury interest costs." App. 42. But the "impairment" that worried Sternlight would result "[i]f repurchase agreements were to lose their present characteristics of flexibility and liquidity," or if repos became "unavailable" to certain kinds of public and private institutional investors. These possibilities might develop if repos were to be characterized as secured loans for purposes of federal bankruptcy and banking law or of commercial and local government law. Our decision today, however, says nothing about how repos should be characterized for those purposes.[7] *137 Disregarding the inapplicable Stern light affidavit, we find no evidence in the record that the taxation at issue will impair the market in federal securities or otherwise impair the borrowing ability of the Federal Government. Rockford Life confirmed the rule that "`when effort is made to establish the unconstitutional character of a particular tax by claiming its remote effect will be to impair the borrowing power of the government, courtsought to have something more substantial to act upon than mere conjecture. The injury ought to be obvious and appreciable.' " 482 U.S., at 1, n. 10 (quoting (10)). Respondent has shown us no "obvious and appreciable" injury to the borrowing power of the United States Government as a result of Nebraska's taxation of the repo income earned by the Trusts. Rather, he has given us "mere conjecture." In these circumstances, we cannot justifiably conclude that Nebraska's taxation of income derived from repos involving federal securities violates the Supremacy Clause of the Constitution. For the foregoing reasons, the judgment of the Supreme Court of Nebraska is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Justice Stevens

dissenting

Press-Enterprise Co. v. Superior Court of Cal., County of Riverside

https://www.courtlistener.com/opinion/111735/press-enterprise-co-v-superior-court-of-cal-county-of-riverside/

https://www.courtlistener.com/api/rest/v3/clusters/111735/

1985-141

The constitutional question presented by this case is whether members of the public have a First Amendment right to insist upon access to the transcript of a preliminary hearing during the period before the public trial, even though the accused, the prosecutor, and the trial judge have all agreed to the sealing of the transcript in order to assure a fair trial. The preliminary hearing transcript to which petitioner sought access consists of 4,239 pages of testimony by prosecution witnesses heard over eight weeks. The testimony, contained in 47 volumes, accuses Mr. Robert Diaz, a nurse, of murdering 12 patients in the hospital in which he worked by injecting them with lethal doses of a heart drug. The transcript reveals that the defense put on no witnesses of its own. Immediately after the Magistrate ordered the defendant bound over for trial, defense counsel moved that the transcript of the preliminary hearing be sealed to protect his client's *16 right to a fair trial. The transcript, in the words of the Magistrate, revealed "only one side of the story." App. 28a. The transcript also contained the Magistrate's characterization of Mr. Diaz as "the most dangerous type of individual there is." Id., at 27a. The prosecutor did not oppose this motion, and the Magistrate, after hearing petitioner's objection, ordered the transcript sealed. The Superior Court trial judge denied a motion to unseal the transcript. He found — and the finding is amply supported by the record — that "there is a reasonable likelihood that making all or any part of the transcripts public might prejudice the defendant's right to a fair and impartial trial." Id., at 61a. Accord, id., at 62a. The Magistrate had earlier rejected less restrictive alternatives to sealing the transcript, concluding that "the only way to protect" the defendant's "[fair trial] right would be to seal the transcript." Id., at 37a.[1] The Court of Appeal agreed with the trial judge and denied the peremptory writ of mandate sought by petitioner. It rejected petitioner's assertion that "the superior court failed to state any reasons or make a specific finding to support the sealing order." App. to Pet. for Cert. E-11. Instead, it confirmed the trial judge's determinations that "the transcript is indicative of only the prosecutorial side of the case," id., at E-14; that the public's right of access was overborne by the "reasonable likelihood of substantial prejudice" to "the defendant's right to a fair trial," id., at E-9; and that "[a]lternatives to sealing the transcript would not suffice in this *17 case," id., at E-14.[2] The California Supreme Court similarly denied petitioner's request for a peremptory writ of mandate, affirming that a preliminary hearing transcript can be sealed upon a showing of a "reasonable likelihood of substantial prejudice which would impinge upon the right to a fair trial." 37 Cal. 3d 772, 781, 691 P.2d 1026, 1032 (1984). In view of the above, the trial judge had an obvious and legitimate reason for refusing to make the transcript public any sooner than he did. His decision plainly did not violate the defendant's right to a public trial under the Sixth Amendment, for it was the defendant who objected to release of the transcript. See Gannett Co. v. DePasquale, 443 U.S. 368, 383-384 (1979). In my opinion, the judge's decision did not violate the First Amendment either. I Although perhaps obvious, it bears emphasis that the First Amendment right asserted by petitioner is not a right to publish or otherwise communicate information lawfully or unlawfully acquired. That right, which lies at the core of the First Amendment and which erased the legacy of restraints on publication against which the drafters of that Amendment rebelled, see Grosjean v. American Press Co., 297 U.S. 233, 245-250 (1936), may be overcome only by a governmental objective of the highest order attainable in a no less intrusive way. See, e. g., Smith v. Daily Mail Publishing Co., 443 U.S. 97, 101-106 (1979); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 837-845 (1978); Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 310-312 (1977) (per curiam); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 556-570 (1976); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 487-497 (1975). The First Amendment right asserted *18 by petitioner in this case, in contrast, is not the right to publicize information in its possession, but the right to acquire access thereto. I have long believed that a proper construction of the First Amendment embraces a right of access to information about the conduct of public affairs. "As Madison wrote: " `A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.' 9 Writings of James Madison 103 (G. Hunt ed. 1910). "It is not sufficient, therefore, that the channels of communication be free of governmental restraints. Without some protection for the acquisition of information about the operation of public institutions such as prisons by the public at large, the process of self-governance contemplated by the Framers would be stripped of its substance. "For that reason information gathering is entitled to some measure of constitutional protection." Houchins v. KQED, Inc., 438 U.S. 1, 31-32 (1978) (STEVENS, J., dissenting).[3] *19 Neither our elected nor our appointed representatives may abridge the free flow of information simply to protect their own activities from public scrutiny. An official policy of secrecy must be supported by some legitimate justification that serves the interest of the public office. Thus, in Pell v. Procunier, 417 U.S. 817 (1974), and Saxbe v. Washington Post Co., 417 U.S. 843 (1974), we confirmed that the warden's regulation of prearranged inmate press interviews had a legitimate disciplinary and penological basis and was "not part of an attempt by the State to conceal the conditions in its prisons or to frustrate the press' investigation and reporting of those conditions." Pell v. Procunier, 417 U. S., at 830. Accord, Saxbe v. Washington Post Co., 417 U. S., at 848. Likewise, in Gannett Co. v. DePasquale, 443 U.S. 368 (1979), we held that any First Amendment access right "was given all appropriate deference by the state nisi prius court," id., at 392, which had entered a "finding on the record that an open suppression hearing would pose a `reasonable probability of prejudice to these defendants,' " id., at 376. Conversely, in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), a violation of the First Amendment was established by the "total absence of any record justification for the closure order," id., at 584 (STEVENS, J., concurring). Accord, id., at 580-581 (opinion of BURGER, C. J.). The same constitutional infirmity afflicted the order excluding the public from attending the testimony of minor victims in a sex-offense trial in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608-609 (1982) ("the record indicates that the victims may have been willing to testify despite the presence of the press" (footnote omitted)), and the order closing the voir dire proceedings and sealing the transcript in Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510-511 (1984) ("prolonged closure was unsupported by findings"); id., at 513 ("trial judge provided no explanation" for his *20 "broad order"); id., at 515 (BLACKMUN, J., concurring). Cf. Waller v. Georgia, 467 U.S. 39, 48, n. 7, 49, n. 8 (1984).[4] But it has always been apparent that the freedom to obtain information that the government has a legitimate interest in not disclosing, see Globe Newspaper Co. v. Superior Court, 457 U. S., at 621 (STEVENS, J., dissenting), is far narrower than the freedom to disseminate information, which is "virtually absolute" in most contexts, Richmond Newspapers, Inc. v. Virginia, 448 U. S., at 582 (STEVENS, J., concurring). In this case, the risk of prejudice to the defendant's right to a fair trial is perfectly obvious. For me, that risk is far more significant than the countervailing interest in publishing the transcript of the preliminary hearing sooner rather than later. Cf. Gannett Co. v. DePasquale, 443 U. S., at 393 (upholding closure of suppression hearing in part because "any denial of access in this case was not absolute but only temporary"). The interest in prompt publication — in my view — is no greater than the interest in prompt publication of grand jury transcripts. As explained more fully below, we have always recognized the legitimacy of the governmental interest in the secrecy of grand jury proceedings, and I am unpersuaded that the difference between such proceedings and the rather elaborate procedure for determining probable cause that California has adopted strengthens the First Amendment claim to access asserted in this case. *21 II The Court nevertheless reaches the opposite conclusion by applying the "two complementary considerations," ante, at 8, of "experience and logic," ante, at 9. In my view, neither the Court's reasoning nor the result it reaches is supported by our precedents. The historical evidence proffered in this case is far less probative than the evidence adduced in prior cases granting public access to criminal proceedings. In those cases, a common-law tradition of openness at the time the First Amendment was ratified suggested an intention and expectation on the part of the Framers and ratifiers that those proceedings would remain presumptively open. Thus, in Richmond Newspapers, Inc. v. Virginia, 448 U. S., at 564, THE CHIEF JUSTICE explained that "[w]hat is significant for present purposes is that throughout its evolution, the trial has been open to all who cared to observe." "[T]he historical evidence demonstrates conclusively that at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open." Id., at 569 (emphasis added). History was relevant because it demonstrated that "[t]he Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open. Public access to trials was then regarded as an important aspect of the process itself." Id., at 575. The opinion for the Court in Globe Newspaper Co. v. Superior Court, 457 U. S., at 605, which also concerned the presumptive openness of a criminal trial, relied expressly on the opinion of THE CHIEF JUSTICE in Richmond Newspapers for the point that criminal trials were open "at the time when our organic laws were adopted." 448 U.S., at 569. Later, in Press-Enterprise Co. v. Superior Court, the Court quoted the identical passage from Richmond Newspapers, see 464 U.S., at 505, and concluded that "[p]ublic jury selection thus was the common practice in America when the Constitution was *22 adopted," id., at 508. To dispel any doubt regarding the significance of this evidence, we explained that "the question we address — whether the voir dire process must be open — focuses on First . . . Amendment values and the historical backdrop against which the First Amendment was enacted." Id., at 509, n. 8 (emphasis added). Thus, in our prior cases history mattered primarily for what it revealed about the intentions of the Framers and ratifiers of the First Amendment. In this case, however, it is uncontroverted that a common-law right of access did not inhere in preliminary proceedings at the time the First Amendment was adopted, and that the Framers and ratifiers of that provision could not have intended such proceedings to remain open. As Justice Stewart wrote for the Court in Gannett Co. v. DePasquale: "[T]here exists no persuasive evidence that at common law members of the public had any right to attend pretrial proceedings; indeed, there is substantial evidence to the contrary. By the time of the adoption of the Constitution,. . . pretrial proceedings, precisely because of the . . . concern for a fair trial, were never characterized by the same degree of openness as were actual trials. "Under English common law, the public had no right to attend pretrial proceedings. E. g., E. Jenks, The Book of English Law 75 (6th ed. 1967) (`It must, of course, be remembered, that the principle of publicity only applies to the actual trial of a case, not necessarily to the preliminary or prefatory stages of the proceedings. . .'); F. Maitland, Justice and Police 129 (1885) (The `preliminary examination of accused persons had gradually assumed a very judicial form . . . . The place in which it is held is indeed no "open court," the public can be excluded if the magistrate thinks that the ends of justice will thus be best answered . . .'). See also Indictable Offenses Act, 11 & 12 Vict., ch. 42, § 19 (1848) (providing *23 that pretrial proceedings should not be deemed an open court and that the public could therefore be excluded); Magistrates' Courts Act, 15 & 16 Geo. 6 & 1 Eliz. 2, ch. 55, § 4(2) (1952) (same)." 443 U.S., at 387-389 (footnotes omitted).[5] Justice Stewart included in his discussion the following quotation from Lord Ellenborough; the Law Lord explains, in reasons as relevant today as they were when the Bill of Rights was adopted, the historical basis for the closure of preliminary proceedings: "If any thing is more important than another in the administration of justice, it is that jurymen should come to the trial of those persons on whose guilt or innocence they are to decide, with minds pure and unprejudiced.. . . Trials at law fairly reported, although they may occasionally prove injurious to individuals, have been held to be privileged. Let them continue so privileged. . . But these preliminary examinations have no such privilege. Their only tendency is to prejudge those whom the law still presumes to be innocent, and to poison the sources of justice." King v. Fisher, 2 Camp. 563, 570-571, 170 Eng. Rep. 1253, 1255 (N. P. 1811). In the final analysis, the Court's lengthy historical disquisition demonstrates only that in many States preliminary proceedings are generally open to the public. See ante, at 10-11, n. 3. In other States, numbering California and Michigan among them, see In re Midland Publishing Co., *24 420 Mich. 148, 162, 172-174, 362 N.W.2d 580, 588, 593-594 (1984), such proceedings have been closed.[6] To paraphrase the Court's analysis in McMillan v. Pennsylvania, 477 U.S. 79, 90 (1986) (footnote omitted), "the fact that the States" have adopted different rules regarding the openness of preliminary proceedings "is merely a reflection of our federal system, which demands `[t]olerance for a spectrum of state procedures dealing with a common problem of law enforcement,' Spencer v. Texas, 385 U.S. 554, 566 (1967). That [California's] particular approach has been adopted in few other States does not render [its] choice unconstitutional." *25 As Justice Stewart admonished: we must not "confus[e] the existence of a constitutional right with the common-law tradition of open . . . proceedings." Gannett Co. v. DePasquale, 443 U. S., at 389, n. 19. The recent common-law developments reported by the Court are relevant, if at all, only insofar as they suggest that preliminary proceedings merit the "beneficial effects of public scrutiny." Cox Broadcasting Corp. v. Cohn, 420 U. S., at 492. The Court's historical crutch cannot carry the weight of opening a preliminary proceeding that the State has ordered closed; that determination must stand or fall on whether it satisfies the second component of the Court's test. If the Court's historical evidence proves too little, the " `value of openness,' " ante, at 13 (quoting Press-Enterprise Co. v. Superior Court, 464 U. S., at 508), on which it relies proves too much, for this measure would open to public scrutiny far more than preliminary hearings "as they are conducted in California" (a comforting phrase invoked by the Court in one form or another more than eight times in its opinion).[7] In brief, the Court's rationale for opening the "California preliminary hearing" is that it "is often the final and most important step in the criminal proceeding"; that it provides " `the sole occasion for public observation of the criminal justice system' "; that it lacks the protective presence *26 of a jury; and that closure denies an outlet for community catharsis. Ante, at 12, 13 (quotation omitted). The obvious defect in the Court's approach is that its reasoning applies to the traditionally secret grand jury with as much force as it applies to California preliminary hearings. A grand jury indictment is just as likely to be the "final step" in a criminal proceeding and the "sole occasion" for public scrutiny as is a preliminary hearing. Moreover, many critics of the grand jury maintain that the grand jury protects the accused less well than does a legally knowledgeable judge who personally presides over a preliminary hearing. See Hawkins v. Superior Court, 22 Cal. 2d 584, 590, 586 P.2d 916, 919-920 (1978) (holding deprivation of preliminary hearing to constitute a denial of equal protection under State Constitution in part because " `the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury' " (quoting Campbell, Eliminate the Grand Jury, 64 J. Crim. L. & C. 174 (1973))). Finally, closure of grand juries denies an outlet for community rage. When the Court's explanatory veneer is stripped away, what emerges is the reality that the California preliminary hearing is functionally identical to the traditional grand jury. As THE CHIEF JUSTICE emphasized by his quotation of Cox v. Coleridge, 1 B. & C. 37, 49-50, 107 Eng. Rep. 15, 19-20 (1822), in his concurring opinion in Gannett Co. v. DePasquale, 443 U. S., at 395, n. (emphasis added): " `It [the proceeding] is only a preliminary inquiry, whether there be sufficient ground to commit the prisoner for trial. The proceeding before the grand jury is precisely of the same nature, and it would be difficult, if the right exists in the present case, to deny it in that. This being only a preliminary inquiry, and not a trial, makes, in my mind, all the difference.' " The Court's reasoning — if carried to its logical outcome — thus contravenes the "long-established policy that maintains *27 the secrecy of the grand jury proceedings in the federal courts" and in the courts of 19 States. United States v. Procter & Gamble Co., 356 U.S. 677, 681 (1958). "Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings." Branzburg v. Hayes, 408 U.S. 665, 684-685 (1972). This Court has previously described grand jury secrecy as "indispensable," United States v. Johnson, 319 U.S. 503, 513 (1943), and has remarked that " `the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings,' " United States v. Sells Engineering, Inc., 463 U.S. 418, 424 (1983) (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 (1979)).[8] In fact, the logic of the Court's access right extends even beyond the confines of the criminal justice system to encompass proceedings held on the civil side of the docket as well. As Justice Stewart explained: "If the existence of a common-law rule were the test for whether there is a Sixth Amendment public right to a public trial, therefore, there would be such a right in civil as well as criminal cases. . . . In short, there is no principled basis upon which a public right of access to judicial *28 proceedings can be limited to criminal cases if the scope of the right is defined by the common law rather than the text and structure of the Constitution. "Indeed, many of the advantages of public criminal trials are equally applicable in the civil trial context. . . . Thus, in some civil cases the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases." Gannett Co. v. DePasquale, 443 U. S., at 386-387, n. 15. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 29-37 (1984) (newspaper not allowed to publish information to which it was privy as a litigant in a civil action). Despite the Court's valiant attempt to limit the logic of its holding, the ratio decidendi of today's decision knows no bounds. By abjuring strict reliance on history and emphasizing the broad value of openness, the Court tacitly recognizes the importance of public access to government proceedings generally. Regrettably, the Court has taken seriously the stated requirement that the sealing of a transcript be justified by a "compelling" or "overriding" governmental interest and that the closure order be " `narrowly tailored to serve that interest.' " Ante, at 9 (quoting Press-Enterprise Co. v. Superior Court, 464 U. S., at 501); Press-Enterprise Co. v. Superior Court, 464 U. S., at 510 (quoting Globe Newspaper Co. v. Superior Court, 457 U. S., at 607). See ante, at 13-14. This standard — as well as the two-part test of history and logic that formed the basis for the decision today — originated as two "helpful principles" in JUSTICE BRENNAN's eloquent concurrence in Richmond Newspapers, Inc. v. Virginia, 448 U. S., at 589. That concurrence recognized that " `[t]here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow,' " id., at 588 (quoting Zemel v. Rusk, 381 U.S. 1, 16-17 (1965)), and — in contrast with the decision today — stressed that "[a]n assertion of the prerogative to gather information must accordingly be assayed by considering the information sought *29 and the opposing interests invaded," 448 U.S., at 588 (footnote omitted) — a determination "as much a matter of sensitivity to practical necessities as . . . of abstract reasoning," ibid. The cases denying access have done so on a far lesser showing than that required by a compelling governmental interest/least restrictive means analysis, see supra, at 19-20, and cases granting access have recognized as legitimate grounds for closure interests that fall far short of those traditionally thought to be "compelling," see Press-Enterprise Co. v. Superior Court, 464 U. S., at 511-512 (privacy interest of venirepersons sufficient reason to close presumptively open voir dire proceeding); see also Richmond Newspapers, Inc. v. Virginia, 448 U. S., at 600 (Stewart, J., concurring in judgment). The presence of a legitimate reason for closure in this case requires an affirmance. The constitutionally grounded fair trial interests of the accused if he is bound over for trial, and the reputational interests of the accused if he is not, provide a substantial reason for delaying access to the transcript for at least the short time before trial. By taking its own verbal formulation seriously, the Court reverses — without comment or explanation or any attempt at reconciliation — the holding in Gannett that a "reasonable probability of prejudice" is enough to overcome the First Amendment right of access to a preliminary proceeding. It is unfortunate that the Court neglects this opportunity to fit the result in this case into the body of precedent dealing with access rights generally. I fear that today's decision will simply further unsettle the law in this area. I respectfully dissent.

The constitutional question presented by this case is whether members of the public have a First Amendment right to insist upon access to the transcript of a preliminary hearing during the period before the public trial, even though the accused, the prosecutor, and the trial judge have all agreed to the sealing of the transcript in order to assure a fair trial. The preliminary hearing transcript to which petitioner sought access consists of 4,239 pages of testimony by prosecution witnesses heard over eight weeks. The testimony, contained in 47 volumes, accuses Mr. Robert Diaz, a nurse, of murdering 12 patients in the hospital in which he worked by injecting them with lethal doses of a heart drug. The transcript reveals that the defense put on no witnesses of its own. Immediately after the Magistrate ordered the defendant bound over for trial, defense counsel moved that the transcript of the preliminary hearing be sealed to protect his client's *16 right to a fair trial. The transcript, in the words of the Magistrate, revealed "only one side of the story." App. 28a. The transcript also contained the Magistrate's characterization of Mr. Diaz as "the most dangerous type of individual there is." at 27a. The prosecutor did not oppose this motion, and the Magistrate, after hearing petitioner's objection, ordered the transcript sealed. The Superior trial judge denied a motion to unseal the transcript. He found — and the finding is amply supported by the record — that "there is a reasonable likelihood that making all or any part of the transcripts public might prejudice the defendant's right to a fair and impartial trial." at 61a. Accord, at 62a. The Magistrate had earlier rejected less restrictive alternatives to sealing the transcript, concluding that "the only way to protect" the defendant's "[fair trial] right would be to seal the transcript." at 37a.[1] The of Appeal agreed with the trial judge and denied the peremptory writ of mandate sought by petitioner. It rejected petitioner's assertion that "the superior court failed to state any reasons or make a specific finding to support the sealing order." App. to Pet. for Cert. E-11. Instead, it confirmed the trial judge's determinations that "the transcript is indicative of only the prosecutorial side of the case," at E-14; that the public's right of access was overborne by the "reasonable likelihood of substantial prejudice" to "the defendant's right to a fair trial," at E-9; and that "[a]lternatives to sealing the transcript would not suffice in this *17 case," at E-14.[2] The California Supreme similarly denied petitioner's request for a peremptory writ of mandate, affirming that a preliminary hearing transcript can be sealed upon a showing of a "reasonable likelihood of substantial prejudice which would impinge upon the right to a fair trial." In view of the above, the trial judge had an obvious and legitimate reason for refusing to make the transcript public any sooner than he did. His decision plainly did not violate the defendant's right to a public trial under the Sixth Amendment, for it was the defendant who objected to release of the transcript. See Gannett In my opinion, the judge's decision did not violate the First Amendment either. I Although perhaps obvious, it bears emphasis that the First Amendment right asserted by petitioner is not a right to publish or otherwise communicate information lawfully or unlawfully acquired. That right, which lies at the core of the First Amendment and which erased the legacy of restraints on publication against which the drafters of that Amendment rebelled, see may be overcome only by a governmental objective of the highest order attainable in a no less intrusive way. See, e. g., ; Landmark Communications, ; Oklahoma Publishing ; Nebraska Press ; Cox Broadcasting The First Amendment right asserted *18 by petitioner in this case, in contrast, is not the right to publicize information in its possession, but the right to acquire access thereto. I have long believed that a proper construction of the First Amendment embraces a right of access to information about the conduct of public affairs. "As Madison wrote: " `A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.' 9 Writings of James Madison 103 (G. Hunt ed. 1910). "It is not sufficient, therefore, that the channels of communication be free of governmental restraints. Without some protection for the acquisition of information about the operation of public institutions such as prisons by the public at large, the process of self-governance contemplated by the Framers would be stripped of its substance. "For that reason information gathering is entitled to some measure of constitutional protection."[3] *19 Neither our elected nor our appointed representatives may abridge the free flow of information simply to protect their own activities from public scrutiny. An official policy of secrecy must be supported by some legitimate justification that serves the interest of the public office. Thus, in and we confirmed that the warden's regulation of prearranged inmate press interviews had a legitimate disciplinary and penological basis and was "not part of an attempt by the State to conceal the conditions in its prisons or to frustrate the press' investigation and reporting of those conditions." Accord, Likewise, in Gannett we held that any First Amendment access right "was given all appropriate deference by the state nisi prius court," which had entered a "finding on the record that an open suppression hearing would pose a `reasonable probability of prejudice to these defendants,' " Conversely, in Richmond Newspapers, a violation of the First Amendment was established by the "total absence of any record justification for the closure order," Accord, The same constitutional infirmity afflicted the order excluding the public from attending the testimony of minor victims in a sex-offense trial in Globe Newspaper v. Superior and the order closing the voir dire proceedings and sealing the transcript in Press-Enterprise v. Superior ; ; Cf.[4] But it has always been apparent that the freedom to obtain information that the government has a legitimate interest in not disclosing, see Globe Newspaper v. Superior is far narrower than the freedom to disseminate information, which is "virtually absolute" in most contexts, Richmond Newspapers, In this case, the risk of prejudice to the defendant's right to a fair trial is perfectly obvious. For me, that risk is far more significant than the countervailing interest in publishing the transcript of the preliminary hearing sooner rather than later. Cf. Gannett The interest in prompt publication — in my view — is no greater than the interest in prompt publication of grand jury transcripts. As explained more fully below, we have always recognized the legitimacy of the governmental interest in the secrecy of grand jury proceedings, and I am unpersuaded that the difference between such proceedings and the rather elaborate procedure for determining probable cause that California has adopted strengthens the First Amendment claim to access asserted in this case. *21 II The nevertheless reaches the opposite conclusion by applying the "two complementary considerations," ante, at 8, of "experience and logic," ante, at 9. In my view, neither the 's reasoning nor the result it reaches is supported by our precedents. The historical evidence proffered in this case is far less probative than the evidence adduced in prior cases granting public access to criminal proceedings. In those cases, a common-law tradition of openness at the time the First Amendment was ratified suggested an intention and expectation on the part of the Framers and ratifiers that those proceedings would remain presumptively open. Thus, in Richmond Newspapers, THE CHIEF JUSTICE explained that "[w]hat is significant for present purposes is that throughout its evolution, the trial has been open to all who cared to observe." "[T]he historical evidence demonstrates conclusively that at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open." History was relevant because it demonstrated that "[t]he Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open. Public access to trials was then regarded as an important aspect of the process itself." The opinion for the in Globe Newspaper v. Superior which also concerned the presumptive openness of a criminal trial, relied expressly on the opinion of THE CHIEF JUSTICE in Richmond Newspapers for the point that criminal trials were open "at the time when our organic laws were adopted." 448 U.S., Later, in Press-Enterprise v. Superior the quoted the identical passage from Richmond Newspapers, see and concluded that "[p]ublic jury selection thus was the common practice in America when the Constitution was *22 adopted," To dispel any doubt regarding the significance of this evidence, we explained that "the question we address — whether the voir dire process must be open — focuses on First Amendment values and the historical backdrop against which the First Amendment was enacted." Thus, in our prior cases history mattered primarily for what it revealed about the intentions of the Framers and ratifiers of the First Amendment. In this case, however, it is uncontroverted that a common-law right of access did not inhere in preliminary proceedings at the time the First Amendment was adopted, and that the Framers and ratifiers of that provision could not have intended such proceedings to remain open. As Justice Stewart wrote for the in Gannett : "[T]here exists no persuasive evidence that at common law members of the public had any right to attend pretrial proceedings; indeed, there is substantial evidence to the contrary. By the time of the adoption of the Constitution,. pretrial proceedings, precisely because of the concern for a fair trial, were never characterized by the same degree of openness as were actual trials. "Under English common law, the public had no right to attend pretrial proceedings. E. g., E. Jenks, The Book of English Law 75 (`It must, of course, be remembered, that the principle of publicity only applies to the actual trial of a case, not necessarily to the preliminary or prefatory stages of the proceedings.'); F. Maitland, Justice and Police 129 (1885) (The `preliminary examination of accused persons had gradually assumed a very judicial form The place in which it is held is indeed no "open court," the public can be excluded if the magistrate thinks that the ends of justice will thus be best answered'). See also Indictable Offenses Act, 11 & 12 Vict., ch. 42, 19 (1848) (providing *23 that pretrial proceedings should not be deemed an open court and that the public could therefore be excluded); Magistrates' s Act, 15 & 16 Geo. 6 & 1 Eliz. 2, ch. 55, 4(2) (1952) (same)." -389[5] Justice Stewart included in his discussion the following quotation from Lord Ellenborough; the Law Lord explains, in reasons as relevant today as they were when the Bill of Rights was adopted, the historical basis for the closure of preliminary proceedings: "If any thing is more important than another in the administration of justice, it is that jurymen should come to the trial of those persons on whose guilt or innocence they are to decide, with minds pure and unprejudiced. Trials at law fairly reported, although they may occasionally prove injurious to individuals, have been held to be privileged. Let them continue so privileged. But these preliminary examinations have no such privilege. Their only tendency is to prejudge those whom the law still presumes to be innocent, and to poison the sources of justice." King v. Fisher, 2 Camp. 563, 570-571, 170 Eng. Rep. 1253, 1255 (N. P. 1811). In the final analysis, the 's lengthy historical disquisition demonstrates only that in many States preliminary proceedings are generally open to the public. See ante, at 10-11, n. 3. In other States, numbering California and Michigan among them, see In re Midland Publishing *24 such proceedings have been closed.[6] To paraphrase the 's analysis in "the fact that the States" have adopted different rules regarding the openness of preliminary proceedings "is merely a reflection of our federal system, which demands `[t]olerance for a spectrum of state procedures dealing with a common problem of law enforcement,' That [California's] particular approach has been adopted in few other States does not render [its] choice unconstitutional." *25 As Justice Stewart admonished: we must not "confus[e] the existence of a constitutional right with the common-law tradition of open proceedings." Gannett n. 19. The recent common-law developments reported by the are relevant, if at all, only insofar as they suggest that preliminary proceedings merit the "beneficial effects of public scrutiny." Cox Broadcasting The 's historical crutch cannot carry the weight of opening a preliminary proceeding that the State has ordered closed; that determination must stand or fall on whether it satisfies the second component of the 's test. If the 's historical evidence proves too little, the " `value of openness,' " ante, at 13 (quoting Press-Enterprise v. Superior 464 U. S., ), on which it relies proves too much, for this measure would open to public scrutiny far more than preliminary hearings "as they are conducted in California" (a comforting phrase invoked by the in one form or another more than eight times in its opinion).[7] In brief, the 's rationale for opening the "California preliminary hearing" is that it "is often the final and most important step in the criminal proceeding"; that it provides " `the sole occasion for public observation of the criminal justice system' "; that it lacks the protective presence *26 of a jury; and that closure denies an outlet for community catharsis. Ante, at 12, 13 (quotation omitted). The obvious defect in the 's approach is that its reasoning applies to the traditionally secret grand jury with as much force as it applies to California preliminary hearings. A grand jury indictment is just as likely to be the "final step" in a criminal proceeding and the "sole occasion" for public scrutiny as is a preliminary hearing. Moreover, many critics of the grand jury maintain that the grand jury protects the accused less well than does a legally knowledgeable judge who personally presides over a preliminary hearing. See Hawkins v. Superior 5, (holding deprivation of preliminary hearing to constitute a denial of equal protection under State Constitution in part because " `the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury' " (quoting Campbell, Eliminate the Grand Jury, 64 J. Crim. L. & C. 174 (1973))). Finally, closure of grand juries denies an outlet for community rage. When the 's explanatory veneer is stripped away, what emerges is the reality that the California preliminary hearing is functionally identical to the traditional grand jury. As THE CHIEF JUSTICE emphasized by his quotation of Cox v. Coleridge, 1 B. & C. 37, 49-50, 107 Eng. Rep. 15, 19-20 (1822), in his concurring opinion in Gannett n. : " `It [the proceeding] is only a preliminary inquiry, whether there be sufficient ground to commit the prisoner for trial. The proceeding before the grand jury is precisely of the same nature, and it would be difficult, if the right exists in the present case, to deny it in that. This being only a preliminary inquiry, and not a trial, makes, in my mind, all the difference.' " The 's reasoning — if carried to its logical outcome — thus contravenes the "long-established policy that maintains *27 the secrecy of the grand jury proceedings in the federal courts" and in the courts of 19 States. United States v. Procter & Gamble "Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings." This has previously described grand jury secrecy as "indispensable," United and has remarked that " `the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings,' " United ).[8] In fact, the logic of the 's access right extends even beyond the confines of the criminal justice system to encompass proceedings held on the civil side of the docket as well. As Justice Stewart explained: "If the existence of a common-law rule were the test for whether there is a Sixth Amendment public right to a public trial, therefore, there would be such a right in civil as well as criminal cases. In short, there is no principled basis upon which a public right of access to judicial *28 proceedings can be limited to criminal cases if the scope of the right is defined by the common law rather than the text and structure of the Constitution. "Indeed, many of the advantages of public criminal trials are equally applicable in the civil trial context. Thus, in some civil cases the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases." Gannett -387, n. 15. Cf. Seattle Times v. Rhinehart, Despite the 's valiant attempt to limit the logic of its holding, the ratio decidendi of today's decision knows no bounds. By abjuring strict reliance on history and emphasizing the broad value of openness, the tacitly recognizes the importance of public access to government proceedings generally. Regrettably, the has taken seriously the stated requirement that the sealing of a transcript be justified by a "compelling" or "overriding" governmental interest and that the closure order be " `narrowly tailored to serve that interest.' " Ante, at 9 (quoting Press-Enterprise v. Superior ); Press-Enterprise v. Superior (quoting Globe Newspaper v. Superior ). See ante, at 13-14. This standard — as well as the two-part test of history and logic that formed the basis for the decision today — originated as two "helpful principles" in JUSTICE BRENNAN's eloquent concurrence in Richmond Newspapers, That concurrence recognized that " `[t]here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow,' " ), and — in contrast with the decision today — stressed that "[a]n assertion of the prerogative to gather information must accordingly be assayed by considering the information sought *29 and the opposing interests invaded," 448 U.S., — a determination "as much a matter of sensitivity to practical necessities as of abstract reasoning," The cases denying access have done so on a far lesser showing than that required by a compelling governmental interest/least restrictive means analysis, see and cases granting access have recognized as legitimate grounds for closure interests that fall far short of those traditionally thought to be "compelling," see Press-Enterprise v. Superior -512 ; see also Richmond Newspapers, The presence of a legitimate reason for closure in this case requires an affirmance. The constitutionally grounded fair trial interests of the accused if he is bound over for trial, and the reputational interests of the accused if he is not, provide a substantial reason for delaying access to the transcript for at least the short time before trial. By taking its own verbal formulation seriously, the reverses — without comment or explanation or any attempt at reconciliation — the holding in Gannett that a "reasonable probability of prejudice" is enough to overcome the First Amendment right of access to a preliminary proceeding. It is unfortunate that the neglects this opportunity to fit the result in this case into the body of precedent dealing with access rights generally. I fear that today's decision will simply further unsettle the law in this area. I respectfully dissent.

Justice Brennan

dissenting

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

[*] Ten years ago in United States v. Calandra, 414 U.S. 338 (1974), I expressed the fear that the Court's decision "may signal that a majority of my colleagues have positioned themselves to reopen the door [to evidence secured by official lawlessness] still further and abandon altogether the exclusionary rule in search-and-seizure cases." Id., at 365 (dissenting opinion). Since then, in case after case, I have witnessed the Court's gradual but determined strangulation *929 of the rule.[1] It now appears that the Court's victory over the Fourth Amendment is complete. That today's decisions represent the piece de resistance of the Court's past efforts cannot be doubted, for today the Court sanctions the use in the prosecution's case in chief of illegally obtained evidence against the individual whose rights have been violated — a result that had previously been thought to be foreclosed. The Court seeks to justify this result on the ground that the "costs" of adhering to the exclusionary rule in cases like those before us exceed the "benefits." But the language of deterrence and of cost/benefit analysis, if used indiscriminately, can have a narcotic effect. It creates an illusion of technical precision and ineluctability. It suggests that not only constitutional principle but also empirical data support the majority's result. When the Court's analysis is examined carefully, however, it is clear that we have not been treated to an honest assessment of the merits of the exclusionary rule, but have instead been drawn into a curious world where the "costs" of excluding illegally obtained evidence loom to exaggerated heights and where the "benefits" of such exclusion are made to disappear with a mere wave of the hand. The majority ignores the fundamental constitutional importance of what is at stake here. While the machinery of law enforcement and indeed the nature of crime itself have changed dramatically since the Fourth Amendment became part of the Nation's fundamental law in 1791, what the Framers understood then remains true today — that the task of combating crime and convicting the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our *930 commitment to protecting individual liberty and privacy. It was for that very reason that the Framers of the Bill of Rights insisted that law enforcement efforts be permanently and unambiguously restricted in order to preserve personal freedoms. In the constitutional scheme they ordained, the sometimes unpopular task of ensuring that the government's enforcement efforts remain within the strict boundaries fixed by the Fourth Amendment was entrusted to the courts. As James Madison predicted in his address to the First Congress on June 8, 1789: "If [these rights] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights." 1 Annals of Cong. 439. If those independent tribunals lose their resolve, however, as the Court has done today, and give way to the seductive call of expediency, the vital guarantees of the Fourth Amendment are reduced to nothing more than a "form of words." Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920). A proper understanding of the broad purposes sought to be served by the Fourth Amendment demonstrates that the principles embodied in the exclusionary rule rest upon a far firmer constitutional foundation than the shifting sands of the Court's deterrence rationale. But even if I were to accept the Court's chosen method of analyzing the question posed by these cases, I would still conclude that the Court's decision cannot be justified. I The Court holds that physical evidence seized by police officers reasonably relying upon a warrant issued by a detached *931 and neutral magistrate is admissible in the prosecution's case in chief, even though a reviewing court has subsequently determined either that the warrant was defective. No. 82-963, or that those officers failed to demonstrate when applying for the warrant that there was probable cause to conduct the search, No. 82-1771. I have no doubt that these decisions will prove in time to have been a grave mistake. But, as troubling and important as today's new doctrine may be for the administration of criminal justice in this country, the mode of analysis used to generate that doctrine also requires critical examination, for it may prove in the long run to pose the greater threat to our civil liberties. A At bottom, the Court's decision turns on the proposition that the exclusionary rule is merely a " `judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right.' " Ante, at 906, quoting United States v. Calandra, 414 U. S., at 348. The germ of that idea is found in Wolf v. Colorado, 338 U.S. 25 (1949), and although I had thought that such a narrow conception of the rule had been forever put to rest by our decision in Mapp v. Ohio, 367 U.S. 643 (1961), it has been revived by the present Court and reaches full flower with today's decision. The essence of this view, as expressed initially in the Calandra opinion and as reiterated today, is that the sole "purpose of the Fourth Amendment is to prevent unreasonable governmental intrusions into the privacy of one's person, house, papers, or effects. The wrong condemned is the unjustified governmental invasion of these areas of an individual's life. That wrong . . . is fully accomplished by the original search without probable cause." 414 U.S., at 354 (emphasis added); see also ante, at 906. This reading of the Amendment implies that its proscriptions are directed solely at those government agents who may actually invade an individual's constitutionally *932 protected privacy. The courts are not subject to any direct constitutional duty to exclude illegally obtained evidence, because the question of the admissibility of such evidence is not addressed by the Amendment. This view of the scope of the Amendment relegates the judiciary to the periphery. Because the only constitutionally cognizable injury has already been "fully accomplished" by the police by the time a case comes before the courts, the Constitution is not itself violated if the judge decides to admit the tainted evidence. Indeed, the most the judge can do is wring his hands and hope that perhaps by excluding such evidence he can deter future transgressions by the police. Such a reading appears plausible, because, as critics of the exclusionary rule never tire of repeating,[2] the Fourth Amendment makes no express provision for the exclusion of evidence secured in violation of its commands. A short answer to this claim, of course, is that many of the Constitution's most vital imperatives are stated in general terms and the task of giving meaning of these precepts is therefore left to subsequent judicial decisionmaking in the context of concrete cases. The nature of our Constitution, as Chief Justice Marshall long ago explained, "requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." McCulloch v. Maryland, 4 Wheat. 316, 407 (1819). A more direct answer may be supplied by recognizing that the Amendment, like other provisions of the Bill of Rights, restrains the power of the government as a whole; it does not specify only a particular agency and exempt all others. The judiciary is responsible, no less than the executive, for ensuring that constitutional rights are respected. *933 When that fact is kept in mind, the role of the courts and their possible involvement in the concerns of the Fourth Amendment comes into sharper focus. Because seizures are executed principally to secure evidence, and because such evidence generally has utility in our legal system only in the context of a trial supervised by a judge, it is apparent that the admission of illegally obtained evidence implicates the same constitutional concerns as the initial seizure of that evidence. Indeed, by admitting unlawfully seized evidence, the judiciary becomes a part of what is in fact a single governmental action prohibited by the terms of the Amendment.[3] Once that connection between the evidence-gathering role of the police and the evidence-admitting function of the courts is acknowledged, the plausibility of the Court's interpretation becomes more suspect. Certainly nothing in the language or history of the Fourth Amendment suggests that a recognition of this evidentiary link between the police and the courts was meant to be foreclosed.[4] It is difficult to give any meaning *934 at all to the limitations imposed by the Amendment if they are read to proscribe only certain conduct by the police but to allow other agents of the same government to take advantage of evidence secured by the police in violation of its requirements.[5] The Amendment therefore must be read to condemn not only the initial unconstitutional invasion of privacy — which is done, after all, for the purpose of securing evidence — but also the subsequent use of any evidence so obtained. *935 The Court evades this principle by drawing an artificial line between the constitutional rights and responsibilities that are engaged by actions of the police and those that are engaged when a defendant appears before the courts. According to the Court, the substantive protections of the Fourth Amendment are wholly exhausted at the moment when police unlawfully invade an individual's privacy and thus no substantive force remains to those protections at the time of trial when the government seeks to use evidence obtained by the police. I submit that such a crabbed reading of the Fourth Amendment casts aside the teaching of those Justices who first formulated the exclusionary rule, and rests ultimately on an impoverished understanding of judicial responsibility in our constitutional scheme. For my part, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" comprises a personal right to exclude all evidence secured by means of unreasonable searches and seizures. The right to be free from the initial invasion of privacy and the right of exclusion are coordinate components of the central embracing right to be free from unreasonable searches and seizures. Such a conception of the rights secured by the Fourth Amendment was unquestionably the original basis of what has come to be called the exclusionary rule when it was first formulated in Weeks v. United States, 232 U.S. 383 (1914). There the Court considered whether evidence seized in violation of the Fourth Amendment by a United States Marshal could be admitted at trial after the defendant had moved that the evidence be returned. Significantly, although the Court considered the Marshal's initial invasion of the defendant's home to be unlawful, it went on to consider a question that "involves the right of the court in a criminal prosecution to retain for the purposes of evidence the letters and correspondence of the accused, seized in his house in his absence without his authority, by a United States Marshal holding no *936 warrant for . . . the search of his premises." Id., at 393. In answering that question, Justice Day, speaking for a unanimous Court, expressly recognized that the commands of the Fourth Amendment were addressed to both the courts and the Executive Branch: "The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures . . . should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights." Id., at 391-392. The heart of the Weeks opinion, and for me the beginning of wisdom about the Fourth Amendment's proper meaning, is found in the following passage: "If letters and private documents can . . . be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and [federal] officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great *937 principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. The United States Marshal could only have invaded the house of the accused when armed with a warrant issued as required by the Constitution.. . . Instead, he acted without sanction of law, doubtless prompted by the desire to bring further proof to the aid of the Government, and under color of his office undertook to make a seizure of private papers in direct violation of the constitutional prohibition against such action. . . . To sanction such proceedings would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action." Id., at 393-394. What this passage succinctly captures is the essential recognition, ignored by the present Court, that seizures are generally executed for the purpose of bringing "proof to the aid of the Government," id., at 393, that the utility of such evidence in a criminal prosecution arises ultimately in the context of the courts, and that the courts therefore cannot be absolved of responsibility for the means by which evidence is obtained. As the Court in Weeks clearly recognized, the obligations cast upon government by the Fourth Amendment are not confined merely to the police. In the words of Justice Holmes: "If the search and seizure are unlawful as invading personal rights secured by the Constitution those rights would be infringed yet further if the evidence were allowed to be used." Dodge v. United States, 272 U.S. 530, 532 (1926). As the Court further explained in Olmstead v. United States, 277 U.S. 438 (1928): "The striking outcome of the Weeks case and those which followed it was the sweeping declaration that the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction if obtained by government officers through a *938 violation of the Amendment. Theretofore many had supposed under the ordinary common law rules, if the tendered evidence was pertinent, the method of obtaining it was unimportant. . . . But in the Weeks case, and those which followed, this Court decided with great emphasis, and established as the law for the federal courts, that the protection of the Fourth Amendment would be much impaired unless it was held that not only was the official violator of the rights under the Amendment subject to an action at the suit of the injured defendant, but also that the evidence thereby obtained could not be received." Id., at 462-463. That conception of the rule, in my view, is more faithful to the meaning and purpose of the Fourth Amendment and to the judiciary's role as the guardian of the people's constitutional liberties. In contrast to the present Court's restrictive reading, the Court in Weeks recognized that, if the Amendment is to have any meaning, police and the courts cannot be regarded as constitutional strangers to each other; because the evidence-gathering role of the police is directly linked to the evidence-admitting function of the courts, an individual's Fourth Amendment rights may be undermined as completely by one as by the other. B From the foregoing, it is clear why the question whether the exclusion of evidence would deter future police misconduct was never considered a relevant concern in the early cases from Weeks to Olmstead.[6] In those formative decisions, the Court plainly understood that the exclusion of illegally obtained evidence was compelled not by judicially fashioned *939 remedial purposes, but rather by a direct constitutional command. A new phase in the history of the rule, however, opened with the Court's decision in Wolf v. Colorado, 338 U.S. 25 (1949). Although that decision held that the security of one's person and privacy protected by the Fourth Amendment was "implicit in `the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause" of the Fourteenth Amendment, id., at 27-28, quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937), the Court went on, in what can only be regarded as a tour de force of constitutional obfuscation, to say that the "ways of enforcing such a basic right raise questions of a different order," 338 U.S., at 28. Notwithstanding the force of the Weeks doctrine that the Fourth Amendment required exclusion, a state court was free to admit illegally seized evidence, according to the Court in Wolf, so long as the State had devised some other "effective" means of vindicating a defendant's Fourth Amendment rights. 338 U.S., at 31. Twelve years later, in Mapp v. Ohio, 367 U.S. 643 (1961), however, the Court restored the original understanding of the Weeks case by overruling the holding of Wolf and repudiating its rationale. Although in the course of reaching this conclusion the Court in Mapp responded at certain points to the question, first raised in Wolf, of whether the exclusionary rule was an "effective" remedy compared to alternative means of enforcing the right, see 367 U.S., at 651-653, it nevertheless expressly held that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." Id., at 655 (emphasis added). In the Court's view, the exclusionary rule was not one among a range of options to be selected at the discretion of judges; it was "an essential part of both the Fourth and Fourteenth Amendments." Id., at 657. Rejection of the Wolf approach was constitutionally required, the Court explained, because "the admission of the new constitutional right by Wolf could not consistently tolerate denial of *940 its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment." 367 U.S., at 656. Indeed, no other explanation suffices to account for the Court's holding in Mapp, since the only possible predicate for the Court's conclusion that the States were bound by the Fourteenth Amendment to honor the Weeks doctrine is that the exclusionary rule was "part and parcel of the Fourth Amendment's limitation upon [governmental] encroachment of individual privacy." 367 U.S., at 651.[7] Despite this clear pronouncement, however, the Court since Calandra has gradually pressed the deterrence rationale for the rule back to center stage. See, e. g., United States v. Peltier, 422 U.S. 531 (1975); United States v. Janis, 428 U.S. 433 (1976); Stone v. Powell, 428 U.S. 465 (1976). The various arguments advanced by the Court in this campaign have only strengthened my conviction that the deterrence theory is both misguided and unworkable. First, *941 the Court has frequently bewailed the "cost" of excluding reliable evidence. In large part, this criticism rests upon a refusal to acknowledge the function of the Fourth Amendment itself. If nothing else, the Amendment plainly operates to disable the government from gathering information and securing evidence in certain ways. In practical terms, of course, this restriction of official power means that some incriminating evidence inevitably will go undetected if the government obeys these constitutional restraints. It is the loss of that evidence that is the "price" our society pays for enjoying the freedom and privacy safeguarded by the Fourth Amendment. Thus, some criminals will go free not, in Justice (then Judge) Cardozo's misleading epigram, "because the constable has blundered," People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926), but rather because official compliance with Fourth Amendment requirements makes it more difficult to catch criminals. Understood in this way, the Amendment directly contemplates that some reliable and incriminating evidence will be lost to the government; therefore, it is not the exclusionary rule, but the Amendment itself that has imposed this cost.[8] *942 In addition, the Court's decisions over the past decade have made plain that the entire enterprise of attempting to assess the benefits and costs of the exclusionary rule in various contexts is a virtually impossible task for the judiciary to perform honestly or accurately. Although the Court's language in those cases suggests that some specific empirical basis may support its analyses, the reality is that the Court's opinions represent inherently unstable compounds of intuition, hunches, and occasional pieces of partial and often inconclusive data. In Calandra, for example, the Court, in considering whether the exclusionary rule should apply in grand jury proceedings, had before it no concrete evidence whatever concerning the impact that application of the rule in such proceedings would have either in terms of the long-term costs or the expected benefits. To the extent empirical data are available regarding the general costs and benefits of the exclusionary rule, such data have shown, on the one hand, as the Court acknowledges today, that the costs are not as substantial as critics have asserted in the past, see ante, at 907-908, n. 6, and, on the other hand, that while the exclusionary rule may well have certain deterrent effects, it is extremely difficult to determine with any degree of precision whether the incidence of unlawful conduct by police is now lower than it was prior to Mapp. See United States v. Janis, 428 U. S., at 449-453, and n. 22; Stone v. Powell, 428 U. S., at 492, n. 32.[9] The *943 Court has sought to turn this uncertainty to its advantage by casting the burden of proof upon proponents of the rule, see, e. g., United States v. Janis, supra, at 453-454. "Obviously," however, "the assignment of the burden of proof on an issue where evidence does not exist and cannot be obtained is outcome determinative. [The] assignment of the burden is merely a way of announcing a predetermined conclusion."[10] By remaining within its redoubt of empiricism and by basing the rule solely on the deterrence rationale, the Court has robbed the rule of legitimacy. A doctrine that is explained as if it were an empirical proposition but for which there is only limited empirical support is both inherently unstable and an easy mark for critics. The extent of this Court's fidelity to Fourth Amendment requirements, however, should not turn on such statistical uncertainties. I share the view, expressed by Justice Stewart for the Court in Faretta v. California, 422 U.S. 806 (1975), that "[p]ersonal liberties are not rooted in the law of averages." Id., at 834. Rather than seeking to give effect to the liberties secured by the Fourth Amendment through guesswork about deterrence, the Court should restore to its proper place the principle framed 70 years ago in Weeks that an individual whose privacy has been invaded in violation of the Fourth Amendment has a right grounded in that Amendment to prevent the government from subsequently making use of any evidence so obtained. *944 II Application of that principle clearly requires affirmance in the two cases decided today. In the first, United States v. Leon, No. 82-1771, it is conceded by the Government and accepted by the Court that the affidavit filed by the police officers in support of their application for a search warrant failed to provide a sufficient basis on which a neutral and detached magistrate could conclude that there was probable cause to issue the warrant. Specifically, it is conceded that the officers' application for a warrant was based in part on information supplied by a confidential informant of unproven reliability that was over five months old by the time it was relayed to the police. Although the police conducted an independent investigation on the basis of this tip, both the District Court and the Court of Appeals concluded that the additional information gathered by the officers failed to corroborate the details of the informant's tip and was "as consistent with innocence as . . . with guilt." App. to Pet. for Cert. 10a. The warrant, therefore, should never have issued. Stripped of the authority of the warrant, the conduct of these officers was plainly unconstitutional — it amounted to nothing less than a naked invasion of the privacy of respondents' homes without the requisite justification demanded by the Fourth Amendment. In order to restore the Government to the position it would have occupied had this unconstitutional search not occurred, therefore, it was necessary that the evidence be suppressed. As we said in Coolidge v. New Hampshire, 403 U.S. 443 (1971), the Warrant Clause is not "an inconvenience to be somehow `weighed' against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the `well-intentioned but mistakenly over-zealous executive officers' who are part of any system of law enforcement." Id., at 481 (footnote omitted). A close examination of the facts of this case reveals that this is neither an extraordinary nor indeed a very costly step. *945 The warrant had authorized a search for cocaine, methaqualone tablets, and miscellaneous narcotics paraphernalia at several locations: a condominium at 7902 Via Magdalena in Los Angeles; a residence at 620 Price Drive in Burbank; a residence at 716 South Sunset Canyon in Burbank; and four automobiles owned respectively by respondents Leon, Sanchez, Stewart, and Del Castillo. App. 31-33. Pursuant to this warrant, the officers seized approximately four pounds of cocaine and over 1,000 methaqualone tablets from the Via Magdalena condominium, nearly one pound of cocaine from the Sunset Canyon residence, about an ounce of cocaine from the Price Drive residence, and certain paraphernalia from Del Castillo's and Stewart's automobiles. On the basis of this and other evidence, the four respondents were charged with violating 21 U.S. C. § 846 for conspiring to possess and distribute cocaine, and § 841(a)(1) for possessing methaqualone and cocaine with intent to distribute. The indictment specifically alleged that respondents had maintained the Via Magdalena condominum as a storage area for controlled substances which they distributed to prospective purchasers. App. 27-28. At the suppression hearing, the District Court determined that none of the respondents had a sufficient expectation of privacy to contest the search of the Via Magdalena condominium, that respondents Stewart and Sanchez could challenge the search of their home at Price Drive, that respondent Leon was entitled to challenge the search of his home at Sunset Canyon, and that respondents Del Castillo and Stewart could contest the search of their cars. Given its finding that probable cause to issue the warrant was lacking, the District Court ruled that the evidence from the Price Drive residence could not be used against respondents Stewart and Sanchez, that evidence from the Sunset Canyon residence could not be used against Leon, and that evidence obtained from both Del Castillo's and Stewart's automobiles could not be used against them. App. to Pet. for Cert. 10a-13a. *946 The tenor of the Court's opinion suggests that this order somehow imposed a grave and presumably unjustifiable cost on society. Such a suggestion, however, is a gross exaggeration. Since the indictment focused upon a conspiracy among all respondents to use the Via Magdalena condominium as a storage area for controlled substances, and since the bulk of the evidence seized was from that condominium and was plainly admissible under the District Court's order, the Government would clearly still be able to present a strong case to the jury following the court's suppression order. I emphasize these details not to suggest how the Government's case would fare before the jury but rather to clarify a point that is lost in the Court's rhetorical excesses over the costs of the exclusionary rule — namely, that the suppression of evidence will certainly tend to weaken the Government's position but it will rarely force the Government to abandon a prosecution. Cf. infra, at 950-951, and n. 11. In my view, a doctrine that preserves intact the constitutional rights of the accused, and, at the same time, is sufficiently limited to permit society's legitimate and pressing interest in criminal law enforcement to be served should not be so recklessly discarded. It is a doctrine that gives life to the "very heart of the Fourth Amendment directive: that . . . a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises." United States v. United States District Court, 407 U.S. 297, 316 (1972). In the second case before the Court, Massachusetts v. Sheppard, No. 82-963, the State concedes and the Court accepts that the warrant issued to search respondent's home completely failed to state with particularity the things to be seized. Indeed, the warrant expressly and particularly described things such as "controlled substance[s]" and "other paraphernalia used in, for, or in connection with the unlawful possession or use of any controlled substance" that the police had no reason whatsoever to believe were to be found in *947 respondent's home. App. 17a. Given the Fourth Amendment's requirement that "no Warrants shall issue, but upon probable cause . . . and particularly describing the . . . things to be seized," this warrant should never have been issued. The police who entered respondent's home, therefore, were without constitutional authority to do so. Although the Court's opinion tends to overlook this fact, the requirement of particularity is not a mere "technicality," it is an express constitutional command. Ybarra v. Illinois, 444 U.S. 85, 92 (1979); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979); Stanford v. Texas, 379 U.S. 476 (1965); Marron v. United States, 275 U.S. 192, 196 (1927). The purpose of that requirement is to prevent precisely the kind of governmental conduct that the faulty warrant at issue here created a grave risk of permitting — namely, a search that was not narrowly and particularly limited to the things that a neutral and detached magistrate had reason to believe might be found at respondent's home. Although it is true, as JUSTICE STEVENS observes, see post, at 964, that the affidavit submitted by the police set forth with particularity those items that they sought authority to search for, it is nevertheless clear that the warrant itself — the document which actually gave the officers legal authority to invade respondent's privacy — made no mention of these items. And, although it is true that the particular officers who applied for the warrant also happened to execute it and did so in accordance with the limits proposed in their affidavit, this happenstance should have no bearing on the central question whether these officers secured that prior judicial authority to conduct their search required by the Fourth Amendment. As we made clear in United States v. United States District Court, supra, at 317 (footnote omitted), "[t]he Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised." See also Katz v. United States, 389 U.S. 347, 356-357 (1967) ("this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime *948 and voluntarily confined their activities to the least intrusive means consistent with that end"). Had the warrant actually been enforced by officers other than those who prepared the affidavit, the same result might not have occured; indeed, the wholly erroneous nature of the warrant might have led such officers to feel at liberty to roam throughout respondent's home in search of drugs. Cf. Whiteley v. Warden, 401 U.S. 560 (1971). I therefore fail to see how a search pursuant to such a fundamentally defective warrant can be characterized as "reasonable." What the Framers of the Bill of Rights sought to accomplish through the express requirements of the Fourth Amendment was to define precisely the conditions under which government agents could search private property so that citizens would not have to depend solely upon the discretion and restraint of those agents for the protection of their privacy. Although the self-restraint and care exhibited by the officers in this case is commendable, that alone can never be a sufficient protection for constitutional liberties. I am convinced that it is not too much to ask that an attentive magistrate take those minimum steps necessary to ensure that every warrant he issues describes with particularity the things that his independent review of the warrant application convinces him are likely to be found in the premises. And I am equally convinced that it is not too much to ask that well-trained and experienced police officers take a moment to check that the warrant they have been issued at least describes those things for which they have sought leave to search. These convictions spring not from my own view of sound criminal law enforcement policy, but are instead compelled by the language of the Fourth Amendment and the history that led to its adoption. III Even if I were to accept the Court's general approach to the exclusionary rule, I could not agree with today's result. *949 There is no question that in the hands of the present Court the deterrence rationale has proved to be a powerful tool for confining the scope of the rule. In Calandra, for example, the Court concluded that the "speculative and undoubtedly minimal advance in the deterrence of police misconduct," was insufficient to outweigh the "expense of substantially impeding the role of the grand jury." 414 U.S., at 351-352. In Stone v. Powell, the Court found that "the additional contribution, if any, of the consideration of search-and-seizure claims of state prisoners on collateral review is small in relation to the costs." 428 U.S., at 493. In United States v. Janis, 428 U.S. 433 (1976), the Court concluded that "exclusion from federal civil proceedings of evidence unlawfully seized by a state criminal enforcement officer has not been shown to have a sufficient likelihood of deterring the conduct of the state police so that it outweighs the societal costs imposed by the exclusion." Id., at 454. And in an opinion handed down today, the Court finds that the "balance between costs and benefits comes out against applying the exclusionary rule in civil deportation hearings held by the [Immigration and Naturalization Service]." INS v. Lopez-Mendoza, post, at 1050. Thus, in this bit of judicial stagecraft, while the sets sometimes change, the actors always have the same lines. Given this well-rehearsed pattern, one might have predicted with some assurance how the present case would unfold. First there is the ritual incantation of the "substantial social costs" exacted by the exclusionary rule, followed by the virtually foreordained conclusion that, given the marginal benefits, application of the rule in the circumstances of these cases is not warranted. Upon analysis, however, such a result cannot be justified even on the Court's own terms. At the outset, the Court suggests that society has been asked to pay a high price — in terms either of setting guilty persons free or of impeding the proper functioning of trials — as a result of excluding relevant physical evidence in cases *950 where the police, in conducting searches and seizing evidence, have made only an "objectively reasonable" mistake concerning the constitutionality of their actions. See ante, at 907-908. But what evidence is there to support such a claim? Significantly, the Court points to none, and, indeed, as the Court acknowledges, see ante, at 907-908, n. 6, recent studies have demonstrated that the "costs" of the exclusionary rule — calculated in terms of dropped prosecutions and lost convictions — are quite low. Contrary to the claims of the rule's critics that exclusion leads to "the release of countless guilty criminals," Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 416 (1971) (BURGER, C. J., dissenting), these studies have demonstrated that federal and state prosecutors very rarely drop cases because of potential search and seizure problems. For example, a 1979 study prepared at the request of Congress by the General Accounting Office reported that only 0.4% of all cases actually declined for prosecution by federal prosecutors were declined primarily because of illegal search problems. Report of the Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions 14 (1979). If the GAO data are restated as a percentage of all arrests, the study shows that only 0.2% of all felony arrests are declined for prosecution because of potential exclusionary rule problems. See Davies, A Hard Look at What We Know (and Still Need to Learn) About the "Costs" of the Exclusionary Rule: The NIJ Study and Other Studies of "Lost" Arrests, 1983 A. B. F. Res. J. 611, 635.[11] Of course, these data describe *951 only the costs attributable to the exclusion of evidence in all cases; the costs due to the exclusion of evidence in the narrower category of cases where police have made objectively reasonable mistakes must necessarily be even smaller. The Court, however, ignores this distinction and mistakenly weighs the aggregated costs of exclusion in all cases, irrespective of the circumstances that led to exclusion, see ante, at 907, against the potential benefits associated with only those cases in which evidence is excluded because police reasonably but mistakenly believe that their conduct does not violate the Fourth Amendment, see ante, at 915-921. When such faulty scales are used, it is little wonder that the balance tips in favor of restricting the application of the rule. *952 What then supports the Court's insistence that this evidence be admitted? Apparently, the Court's only answer is that even though the costs of exclusion are not very substantial, the potential deterrent effect in these circumstances is so marginal that exclusion cannot be justified. The key to the Court's conclusion in this respect is its belief that the prospective deterrent effect of the exclusionary rule operates only in those situations in which police officers, when deciding whether to go forward with some particular search, have reason to know that their planned conduct will violate the requirements of the Fourth Amendment. See ante, at 919-921. If these officers in fact understand (or reasonably should understand because the law is well settled) that their proposed conduct will offend the Fourth Amendment and that, consequently, any evidence they seize will be suppressed in court, they will refrain from conducting the planned search. In those circumstances, the incentive system created by the exclusionary rule will have the hoped-for deterrent effect. But in situations where police officers reasonably (but mistakenly) believe that their planned conduct satisfies Fourth Amendment requirements — presumably either (a) because they are acting on the basis of an apparently valid warrant, or (b) because their conduct is only later determined to be invalid as a result of a subsequent change in the law or the resolution of an unsettled question of law — then such officers will have no reason to refrain from conducting the search and the exclusionary rule will have no effect. At first blush, there is some logic to this position. Undoubtedly, in the situation hypothesized by the Court, the existence of the exclusionary rule cannot be expected to have any deterrent effect on the particular officers at the moment they are deciding whether to go forward with the search. Indeed, the subsequent exclusion of any evidence seized under such circumstances appears somehow "unfair" to the particular officers involved. As the Court suggests, these officers have acted in what they thought was an appropriate *953 and constitutionally authorized manner, but then the fruit of their efforts is nullified by the application of the exclusionary rule. Ante, at 920-921. The flaw in the Court's argument, however, is that its logic captures only one comparatively minor element of the generally acknowledged deterrent purposes of the exclusionary rule. To be sure, the rule operates to some extent to deter future misconduct by individual officers who have had evidence suppressed in their own cases. But what the Court overlooks is that the deterrence rationale for the rule is not designed to be, nor should it be thought of as, a form of "punishment" of individual police officers for their failures to obey the restraints imposed by the Fourth Amendment. See United States v. Peltier, 422 U. S., at 556-557 (BRENNAN, J., dissenting). Instead, the chief deterrent function of the rule is its tendency to promote institutional compliance with Fourth Amendment requirements on the part of law enforcement agencies generally.[12] Thus, as the Court has previously *954 recognized, "over the long term, [the] demonstration [provided by the exclusionary rule] that our society attaches serious consequences to violation of constitutional rights is thought to encourage those who formulate law enforcement policies, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system." Stone v. Powell, 428 U. S., at 492. It is only through such an institutionwide mechanism that information concerning Fourth Amendment standards can be effectively communicated to rank-and-file officers.[13] *955 If the overall educational effect of the exclusionary rule is considered, application of the rule to even those situations in which individual police officers have acted on the basis of a reasonable but mistaken belief that their conduct was authorized can still be expected to have a considerable long-term deterrent effect. If evidence is consistently excluded in these circumstances, police departments will surely be prompted to instruct their officers to devote greater care and attention to providing sufficient information to establish probable cause when applying for a warrant, and to review with some attention the form of the warrant that they have been issued, rather than automatically assuming that whatever document the magistrate has signed will necessarily comport with Fourth Amendment requirements. After today's decisions, however, that institutional incentive will be lost. Indeed, the Court's "reasonable mistake" exception to the exclusionary rule will tend to put a premium on police ignorance of the law. Armed with the assurance provided by today's decisions that evidence will always be admissible whenever an officer has "reasonably" relied upon a warrant, police departments will be encouraged to train officers that if a warrant has simply been signed, it is reasonable, without more, to rely on it. Since in close cases there will no longer be any incentive to err on the side of constitutional behavior, police would have every reason to adopt a "let's-wait-until-it's-decided" approach in situations in which there is a question about a warrant's validity or the basis for its issuance. Cf. United States v. Johnson, 457 U.S. 537, 561 (1982).[14] *956 Although the Court brushes these concerns aside, a host of grave consequences can be expected to result from its decision to carve this new exception out of the exclusionary rule. A chief consequence of today's decisions will be to convey a clear and unambiguous message to magistrates that their decisions to issue warrants are now insulated from subsequent judicial review. Creation of this new exception for good-faith reliance upon a warrant implicitly tells magistrates that they need not take much care in reviewing warrant applications, since their mistakes will from now on have virtually no consequence: If their decision to issue a warrant was correct, the evidence will be admitted; if their decision was incorrect but the police relied in good faith on the warrant, the evidence will also be admitted. Inevitably, the care and attention devoted to such an inconsequential chore will dwindle. Although the Court is correct to note that magistrates do not share the same stake in the outcome of a criminal case as the police, they nevertheless need to appreciate that their role is of some moment in order to continue performing the important task of carefully reviewing warrant applications. Today's decisions effectively remove that incentive.[15] *957 Moreover, the good-faith exception will encourage police to provide only the bare minimum of information in future warrant applications. The police will now know that if they can secure a warrant, so long as the circumstances of its issuance are not "entirely unreasonable," ante, at 923, all police conduct pursuant to that warrant will be protected from further judicial review.[16] The clear incentive that operated in the past to establish probable cause adequately because reviewing courts would examine the magistrate's judgment carefully, see, e. g., Franks v. Delaware, 438 U.S. 154, 169-170 (1978); Jones v. United States, 362 U.S. 257, 271-272 (1960); Giordenello v. United States, 357 U.S. 480, 483 (1958), has now been so completely vitiated that the police need only show that it was not "entirely unreasonable" under the circumstances *958 of a particular case for them to believe that the warrant they were issued was valid. See ante, at 923. The long-run effect unquestionably will be to undermine the integrity of the warrant process. Finally, even if one were to believe, as the Court apparently does, that police are hobbled by inflexible and hypertechnical warrant procedures, today's decisions cannot be justified. This is because, given the relaxed standard for assessing probable cause established just last Term in Illinois v. Gates, 462 U.S. 213 (1983), the Court's newly fashioned good-faith exception, when applied in the warrant context, will rarely, if ever, offer any greater flexibility for police than the Gates standard already supplies. In Gates, the Court held that "[t]he 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, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id., at 238. The task of a reviewing court is confined to determining whether "the magistrate had a `substantial basis for . . . conclud[ing]' that probable cause existed." Ibid. Given such a relaxed standard, it is virtually inconceivable that a reviewing court, when faced with a defendant's motion to suppress, could first find that a warrant was invalid under the new Gates standard, but then, at the same time, find that a police officer's reliance on such an invalid warrant was nevertheless "objectively reasonable" under the test announced today.[17] Because the two standards overlap so completely, it is unlikely that a warrant could be found invalid under Gates and yet the police reliance upon it could be seen as objectively reasonable; otherwise, we would have to entertain the mind-boggling *959 concept of objectively reasonable reliance upon an objectively unreasonable warrant. This paradox, as JUSTICE STEVENS suggests, see post, at 961-962, perhaps explains the Court's unwillingness to remand No. 82-1771 for reconsideration in light of Gates, for it is quite likely that on remand the Court of Appeals would find no violation of the Fourth Amendment, thereby demonstrating that the supposed need for the good-faith exception in this context is more apparent than real. Therefore, although the Court's decisions are clearly limited to the situation in which police officers reasonably rely upon an apparently valid warrant in conducting a search, I am not at all confident that the exception unleashed today will remain so confined. Indeed, the full impact of the Court's regrettable decisions will not be felt until the Court attempts to extend this rule to situations in which the police have conducted a warrantless search solely on the basis of their own judgment about the existence of probable cause and exigent circumstances. When that question is finally posed, I for one will not be surprised if my colleagues decide once again that we simply cannot afford to protect Fourth Amendment rights. IV When the public, as it quite properly has done in the past as well as in the present, demands that those in government increase their efforts to combat crime, it is all too easy for those government officials to seek expedient solutions. In contrast to such costly and difficult measures as building more prisons, improving law enforcement methods, or hiring more prosecutors and judges to relieve the overburdened court systems in the country's metropolitan areas, the relaxation of Fourth Amendment standards seems a tempting, costless means of meeting the public's demand for better law enforcement. In the long run, however, we as a society pay a heavy price for such expediency, because as Justice Jackson observed, the rights guaranteed in the Fourth Amendment *960A "are not mere second-class rights but belong in the catalog of indispensable freedoms." Brinegar v. United States, 338 U.S. 160, 180 (1949) (dissenting opinion). Once lost, such rights are difficult to recover. There is hope, however, that in time this or some later Court will restore these precious freedoms to their rightful place as a primary protection for our citizens against overreaching officialdom. I dissent. *960B JUSTICE STEVENS, concurring in the judgment in No. 82-963, post, p. 981, and dissenting in No. 82-1771. It is appropriate to begin with the plain language of the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Court assumes that the searches in these cases violated the Fourth Amendment, yet refuses to apply the exclusionary rule because the Court concludes that it was "reasonable" for the police to conduct them. In my opinion an official search and seizure cannot be both "unreasonable" and "reasonable" at the same time. The doctrinal vice in the Court's holding is its failure to consider the separate purposes of the two prohibitory Clauses in the Fourth Amendment. The first Clause prohibits unreasonable searches and seizures and the second prohibits the issuance of warrants that are not supported by probable cause or that do not particularly describe the place to be searched and the persons or things to be seized. We have, of course, repeatedly held that warrantless searches are presumptively unreasonable,[1]*961 and that there are only a few carefully delineated exceptions to that basic presumption.[2] But when such an exception has been recognized, analytically we have necessarily concluded that the warrantless activity was not "unreasonable" within the meaning of the first Clause. Thus, any Fourth Amendment case may present two separate questions: whether the search was conducted pursuant to a warrant issued in accordance with the second Clause, and, if not, whether it was nevertheless "reasonable" within the meaning of the first. On these questions, the constitutional text requires that we speak with one voice. We cannot intelligibly assume, arguendo, that a search was constitutionally unreasonable but that the seized evidence is admissible because the same search was reasonable. I In No. 82-963, the Supreme Judicial Court of Massachusetts determined that a warrant which purported to authorize a search of respondent's home had been issued in violation of the Warrant Clause. In its haste to make new law, this Court does not tarry to consider this holding. Yet, as I will demonstrate, this holding is clearly wrong; I would reverse the judgment on that ground alone. In No. 82-1771, there is also a substantial question whether the warrant complied with the Fourth Amendment. There was a strong dissent on the probable-cause issue when Leon was before the Court of Appeals, and that dissent has been given added force by this Court's intervening decision in Illinois v. Gates, 462 U.S. 213 (1983), which constituted a significant development in the law. It is probable, though admittedly not certain, that the Court of Appeals would now conclude that the warrant in Leon satisfied the Fourth Amendment if it were given the opportunity to reconsider the issue in the light of Gates. Adherence to our normal *962 practice following the announcement of a new rule would therefore postpone, and probably obviate, the need for the promulgation of the broad new rule the Court announces today.[3] It is, of course, disturbing that the Court chooses one case in which there was no violation of the Fourth Amendment, and another in which there is grave doubt on the question, in order to promulgate a "good faith" exception to the Fourth Amendment's exclusionary rule. The Court's explanation for its failure to decide the merits of the Fourth Amendment question in No. 82-963 is that it "is a factbound issue of little importance," Massachusetts v. Sheppard, post, at 988, n. 5. In No. 82-1771, the Court acknowledges that the case could be remanded to the Court of Appeals for reconsideration in light of Gates, yet does not bother to explain why it fails to do so except to note that it is "within our power" to decide the broader question in the case. United States v. Leon, ante, at 905. The Court seems determined to decide these cases on the broadest possible grounds; such determination is utterly at odds with the Court's traditional practice as well as any principled notion of judicial restraint. Decisions made in this manner are unlikely to withstand the test of time. Judges, more than most, should understand the value of adherence to settled procedures. By adopting a set of fair procedures, and then adhering to them, courts of law ensure that justice is administered with an even hand. "These are subtle matters, for they concern the ingredients of what constitutes justice. Therefore, justice must satisfy the appearance of justice." Offutt v. United States, 348 U.S. 11, 14 (1954). Of course, this Court has a duty to face questions of constitutional law when necessary to the disposition of an actual case or controversy. Marbury v. Madison, 1 Cranch *963 137, 177 (1803). But when the Court goes beyond what is necessary to decide the case before it, it can only encourage the perception that it is pursuing its own notions of wise social policy, rather than adhering to its judicial role. I do not believe the Court should reach out to decide what is undoubtedly a profound question concerning the administration of criminal justice before assuring itself that this question is actually and of necessity presented by the concrete facts before the Court. Although it may appear that the Court's broad holding will serve the public interest in enforcing obedience to the rule of law, for my part, I remain firmly convinced that "the preservation of order in our communities will be best ensured by adherence to established and respected procedures." Groppi v. Leslie, 436 F.2d 331, 336 (CA7 1971) (en banc) (Stevens, J., dissenting), rev'd, 404 U.S. 496 (1972). II In No. 82-963, there is no contention that the police officers did not receive appropriate judicial authorization for their search of respondent's residence. A neutral and detached judicial officer had correctly determined that there was probable cause to conduct a search. Nevertheless, the Supreme Judicial Court suppressed the fruits of the search because the warrant did not particularly describe the place to be searched and the things to be seized. The particularity requirement of the Fourth Amendment has a manifest purpose — to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search is carefully tailored to its justification, and does not resemble the wide-ranging general searches that the Framers intended to prohibit.[4] In this *964 case the warrant did not come close to authorizing a general search.[5] The affidavit supporting the application for the warrant correctly identified the things to be seized, and on its face the affidavit indicated that it had been presented to the judge who had issued the warrant.[6] Both the police officers and the judge were fully aware of the contents of the affidavit, and therefore knew precisely what the officers were authorized to search for. Since the affidavit was available for after-the-fact review, the Massachusetts courts could readily ascertain the limits of the officers' authority under the warrant. In short, the judge who issued the warrant, the police officers who executed it, and the reviewing courts all were able easily to ascertain the precise scope of the authorization provided by the warrant. All that our cases require is that a warrant contain a description sufficient to enable the officers who execute it to ascertain with reasonable effort where they are to search and what they are to seize.[7] The test is whether the executing officers' discretion has been limited in a way that forbids a general search.[8] Here there was no question that the *965 executing officers' discretion had been limited — they, as well as the reviewing courts, knew the precise limits of their authorization. There was simply no "occasion or opportunity for officers to rummage at large," Zurcher v. Stanford Daily, 436 U.S. 547, 566 (1978).[9] The only Fourth Amendment interest that is arguably implicated by the "defect" in the warrant is the citizen's interest in being able to ascertain the limits of the officers' authorization by examining the warrant.[10] Respondent, however, was not home at the time the warrant was executed, and therefore had no occasion to see the warrant. The two persons who were present when the warrant was executed, respondent's mother and sister, did not read the warrant or ask to have it read. "[T]he general rule [is] that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Alderman v. United States, 394 U.S. 165, 174 (1969). Thus, respondent, who has standing to assert only his own Fourth Amendment interests,[11] cannot complain that his interest in ascertaining the limits of the officers' authority under the search warrant was infringed.[12] In short, our *966 precedents construing the particularity requirement of the Warrant Clause unambiguously demonstrate that this warrant did not violate the Fourth Amendment. III Even if it be assumed that there was a technical violation of the particularity requirement in No. 82-963, it by no means follows that the "warrantless" search in that case was "unreasonable" within the meaning of the Fourth Amendment. For this search posed none of the dangers to which the Fourth Amendment is addressed. It was justified by a neutral magistrate's determination of probable cause and created no risk of a general search. It was eminently "reasonable." In No. 82-1771, however, the Government now admits — at least for the tactical purpose of achieving what it regards as a greater benefit — that the substance, as well as the letter, of the Fourth Amendment was violated. The Court therefore assumes that the warrant in that case was not supported by probable cause, but refuses to suppress the evidence obtained thereby because it considers the police conduct to satisfy a "newfangled" nonconstitutional standard of reasonableness.[13] Yet if the Court's assumption is correct — if there was no probable cause — it must follow that it was "unreasonable" *967 for the authorities to make unheralded entries into and searches of private dwellings and automobiles. The Court's conclusion that such searches undertaken without probable cause can nevertheless be "reasonable" is totally without support in our Fourth Amendment jurisprudence. Just last Term, the Court explained what probable cause to issue a warrant means: "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 the `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." Illinois v. Gates, 462 U. S., at 238. Moreover, in evaluating the existence of probable cause, reviewing courts must give substantial deference to the magistrate's determination.[14] In doubtful cases the warrant *968 should be sustained.[15] The judgment as to whether there is probable cause must be made in a practical and nontechnical manner.[16] The probable-cause standard therefore gives law enforcement officers ample room to engage in any reasonable law enforcement activity. What is more, the standard has been familiar to the law enforcement profession for centuries.[17] In an opinion written in 1949, and endorsed by the Court last Term in Gates, we explained: "These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice." Brinegar v. United States, 338 U.S. 160, 176. Thus, if the majority's assumption is correct, that even after paying heavy deference to the magistrate's finding and resolving all doubt in its favor, there is no probable cause here, then by definition — as a matter of constitutional law — *969 the officers' conduct was unreasonable.[18] The Court's own hypothesis is that there was no fair likelihood that the officers would find evidence of a crime, and hence there was no reasonable law enforcement justification for their conduct.[19] The majority's contrary conclusion rests on the notion that it must be reasonable for a police officer to rely on a magistrate's finding. Until today that has plainly not been the law; it has been well settled that even when a magistrate issues a warrant there is no guarantee that the ensuing search and seizure is constitutionally reasonable. Law enforcement officers have long been on notice that despite the magistrate's decision a warrant will be invalidated if the officers did not provide sufficient facts to enable the magistrate to evaluate the existence of probable cause responsibly and independently.[20] Reviewing courts have always inquired into whether the magistrate acted properly in issuing the warrant — not merely whether the officers acted properly in executing it. See Jones v. United States, 362 U.S. 257, 271-272 (1960).[21] Indeed, just last Term, in Gates, after noting *970 that " `the duty of a reviewing court is simply to ensure that the magistrate had a `substantial basis for conclud[ing]' that probable cause existed,' " 462 U.S., at 238-239 (quoting Jones, 362 U. S., at 271), the Court added: "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." 462 U.S. at 239.[22] Thus, under our cases it has never been "reasonable" for the police to rely on the mere fact that a warrant has issued; the police have always known that if they fail to supply the magistrate with sufficient information, the warrant will be held invalid and its fruits excluded.[23] The notion that a police officer's reliance on a magistrate's warrant is automatically appropriate is one the Framers of *971 the Fourth Amendment would have vehemently rejected. The precise problem that the Amendment was intended to address was the unreasonable issuance of warrants. As we have often observed, the Amendment was actually motivated by the practice of issuing general warrants — warrants which did not satisfy the particularity and probable-cause requirements.[24] The resentments which led to the Amendment were directed at the issuance of warrants unjustified by particularized evidence of wrongdoing.[25] Those who sought to amend the Constitution to include a Bill of Rights repeatedly voiced the view that the evil which had to be addressed was the issuance of warrants on insufficient evidence.[26] As Professor Taylor has written: *972 "[O]ur constitutional fathers were not concerned about warrantless searches, but about overreaching warrants. It is perhaps too much to say that they feared the warrant more than the search, but it is plain enough that the warrant was the prime object of their concern. Far from looking at the warrant as a protection against unreasonable searches, they saw it as an authority for unreasonable and oppressive searches . . . ." T. Taylor, Two Studies in Constitutional Interpretation 41 (1969). In short, the Framers of the Fourth Amendment were deeply suspicious of warrants; in their minds the paradigm of an abusive search was the execution of a warrant not based on probable cause. The fact that colonial officers had magisterial authorization for their conduct when they engaged in general searches surely did not make their conduct "reasonable." The Court's view that it is consistent with our Constitution to adopt a rule that it is presumptively reasonable to rely on a defective warrant is the product of constitutional amnesia.[27] IV In Brinegar, Justice Jackson, after observing that "[i]ndications are not wanting that Fourth Amendment freedoms are tacitly marked as secondary rights, to be relegated to a deferred position," 338 U.S., at 180 (dissenting opinion), continued: "These, I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and *973 seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police. ..... "Only occasional and more flagrant abuses come to the attention of the courts, and then only those where the search and seizure yields incriminating evidence and the defendant is at least sufficiently compromised to be indicted. If the officers raid a home, an office, or stop and search an automobile but find nothing incriminating, this invasion of the personal liberty of the innocent too often finds no practical redress. There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear. "Courts can protect the innocent against such invasions only indirectly and through the medium of excluding evidence obtained against those who frequently are guilty. . . . So a search against Brinegar's car must be regarded as a search of the car of Everyman." Id., at 180-181. Justice Jackson's reference to his experience at Nuremberg should remind us of the importance of considering the consequences of today's decision for "Everyman." The exclusionary rule is designed to prevent violations of the Fourth Amendment.[28] "Its purpose is to deter — to compel *974 respect for the constitutional guaranty in the only effectively available way, by removing the incentive to disregard it." Elkins v. United States, 364 U.S. 206, 217 (1960).[29] If the police cannot use evidence obtained through warrants issued on less than probable cause, they have less incentive to seek those warrants, and magistrates have less incentive to issue them. Today's decisions do grave damage to that deterrent function. Under the majority's new rule, even when the police know their warrant application is probably insufficient, they retain an incentive to submit it to a magistrate, on the chance that he may take the bait. No longer must they hesitate and seek additional evidence in doubtful cases. Thus, what we *975 said two Terms ago about a rule that would prevent exclusion except in cases in which the authorities violate well-settled law applies fully to the rule the Court adopts today: "If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in the area remained unsettled, evidence obtained through the questionable practice would be excluded only in the one case definitively resolving the unsettled question. Failure to accord any retroactive effect to Fourth Amendment rulings would `encourage police or other courts to disregard the plain purport of our decisions and to adopt a let's-wait-until-it's-decided approach.' " United States v. Johnson, 457 U.S. 537, 561 (1982) (emphasis in original) (footnote omitted) (quoting Desist v. United States, 394 U.S. 244, 277 (1969) (Fortas, J., dissenting)).[30] The Court is of course correct that the exclusionary rule cannot deter when the authorities have no reason to know that their conduct is unconstitutional. But when probable cause is lacking, then by definition a reasonable person under the circumstances would not believe there is a fair likelihood that a search will produce evidence of a crime. Under such circumstances well-trained professionals must know that they are violating the Constitution. The Court's approach — *976 which, in effect, encourages the police to seek a warrant even if they know the existence of probable cause is doubtful — can only lead to an increased number of constitutional violations. Thus, the Court's creation of a double standard of reasonableness inevitably must erode the deterrence rationale that still supports the exclusionary rule. But we should not ignore the way it tarnishes the role of the judiciary in enforcing the Constitution. For the original rationale for the exclusionary rule retains its force as well as its relevance: "The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures . . . should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights." Weeks v. United States, 232 U.S. 383, 392 (1914).[31] Thus, "Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional *977 rights of citizens by permitting unhindered governmental use of the fruits of such invasions. . . ." Terry v. Ohio, 392 U.S. 1, 13 (1968).[32] As the Court correctly notes,[33] we have refused to apply the exclusionary rule to collateral contexts in which its marginal efficacy is questionable; until today, however, every time the police have violated the applicable commands of the Fourth Amendment a court has been prepared to vindicate that Amendment by preventing the use of evidence so obtained in the prosecution's case in chief against those whose rights have been violated.[34] Today, for the first time, this Court holds that although the Constitution has been violated, no court should do anything about it at any time and in any proceeding.[35] In my judgment, *978 the Constitution requires more. Courts simply cannot escape their responsibility for redressing constitutional violations if they admit evidence obtained through unreasonable searches and seizures, since the entire point of police conduct that violates the Fourth Amendment is to obtain evidence for use at trial. If such evidence is admitted, then the courts become not merely the final and necessary link in an unconstitutional chain of events, but its actual motivating force. "If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed." Olmstead v. United States, 277 U.S. 438, 470 (1928) (Holmes, J., dissenting). Nor should we so easily concede the existence of a constitutional violation for which there is no remedy.[36] To do so is to convert a Bill of Rights into an unenforced honor code that the police may follow in their discretion. The Constitution requires more; it requires a remedy.[37] If the Court's new rule is to be followed, the Bill of Rights should be renamed. *979 It is of course true that the exclusionary rule exerts a high price — the loss of probative evidence of guilt. But that price is one courts have often been required to pay to serve important social goals.[38] That price is also one the Fourth Amendment requires us to pay, assuming as we must that the Framers intended that its strictures "shall not be violated." For in all such cases, as Justice Stewart has observed, "the same extremely relevant evidence would not have been obtained had the police officer complied with the commands of the fourth amendment in the first place."[39] "[T]he forefathers thought this was not too great a price to pay for that decent privacy of home, papers and effects which is indispensable to individual dignity and self-respect. They may have overvalued privacy, but I am not disposed to set their command at naught." Harris v. United States, 331 U.S. 145, 198 (1947) (Jackson, J., dissenting).[40] We could, of course, facilitate the process of administering justice to those who violate the criminal laws by ignoring the commands of the Fourth Amendment — indeed, by ignoring *980 the entire Bill of Rights — but it is the very purpose of a Bill of Rights to identify values that may not be sacrificed to expediency. In a just society those who govern, as well as those who are governed, must obey the law. While I concur in the Court's judgment in No. 82-963, I would vacate the judgment in No. 82-1771 and remand the case to the Court of Appeals for reconsideration in the light of Gates. Accordingly, I respectfully dissent from the disposition in No. 82-1771.

[*] Ten years ago in United I expressed the fear that the 's decision "may signal that a majority of my colleagues have positioned themselves to reopen the door [to evidence secured by official lawlessness] still further and abandon altogether the exclusionary rule in search-and-seizure cases." Since then, in case after case, I have witnessed the 's gradual but determined strangulation *9 of the rule.[1] It now appears that the 's victory over the Fourth Amendment is complete. That today's decisions represent the piece de resistance of the 's past efforts cannot be doubted, for today the sanctions the use in the prosecution's case in chief of illegally obtained evidence against the individual whose rights have been violated — a result that had previously been thought to be foreclosed. The seeks to justify this result on the ground that the "costs" of adhering to the exclusionary rule in cases like those before us exceed the "benefits." But the language of deterrence and of cost/benefit analysis, if used indiscriminately, can have a narcotic effect. It creates an illusion of technical precision and ineluctability. It suggests that not only constitutional principle but also empirical data support the majority's result. When the 's analysis is examined carefully, however, it is clear that we have not been treated to an honest assessment of the merits of the exclusionary rule, but have instead been drawn into a curious world where the "costs" of excluding illegally obtained evidence loom to exaggerated heights and where the "benefits" of such exclusion are made to disappear with a mere wave of the hand. The majority ignores the fundamental constitutional importance of what is at stake here. While the machinery of law enforcement and indeed the nature of crime itself have changed dramatically since the Fourth Amendment became part of the Nation's fundamental law in 1791, what the Framers understood then remains true today — that the task of combating crime and convicting the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our *930 commitment to protecting individual liberty and privacy. It was for that very reason that the Framers of the Bill of Rights insisted that law enforcement efforts be permanently and unambiguously restricted in order to preserve personal freedoms. In the constitutional scheme they ordained, the sometimes unpopular task of ensuring that the government's enforcement efforts remain within the strict boundaries fixed by the Fourth Amendment was entrusted to the courts. As James Madison predicted in his address to the First Congress on June 8, 1789: "If [these rights] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights." 1 Annals of Cong. 439. If those independent tribunals lose their resolve, however, as the has done today, and give way to the seductive call of expediency, the vital guarantees of the Fourth Amendment are reduced to nothing more than a "form of words." Silverthorne Lumber A proper understanding of the broad purposes sought to be served by the Fourth Amendment demonstrates that the principles embodied in the exclusionary rule rest upon a far firmer constitutional foundation than the shifting sands of the 's deterrence rationale. But even if I were to accept the 's chosen method of analyzing the question posed by these cases, I would still conclude that the 's decision cannot be justified. I The holds that physical evidence seized by police officers reasonably relying upon a warrant issued by a detached *931 and neutral magistrate is admissible in the prosecution's case in chief, even though a reviewing court has subsequently determined either that the warrant was defective. No. 82-963, or that those officers failed to demonstrate when applying for the warrant that there was probable cause to conduct the search, No. 82-1771. I have no doubt that these decisions will prove in time to have been a grave mistake. But, as troubling and important as today's new doctrine may be for the administration of criminal justice in this country, the mode of analysis used to generate that doctrine also requires critical examination, for it may prove in the long run to pose the greater threat to our civil liberties. A At bottom, the 's decision turns on the proposition that the exclusionary rule is merely a " `judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right.' " Ante, at 906, quoting United The germ of that idea is found in and although I had thought that such a narrow conception of the rule had been forever put to rest by our decision in it has been revived by the present and reaches full flower with today's decision. The essence of this view, as expressed initially in the opinion and as reiterated today, is that the sole "purpose of the Fourth Amendment is to prevent unreasonable governmental intrusions into the privacy of one's person, house, papers, or effects. The wrong condemned is the unjustified governmental invasion of these areas of an individual's life. That wrong is fully accomplished by the original search without probable cause." ; see also ante, at 906. This reading of the Amendment implies that its proscriptions are directed solely at those government agents who may actually invade an individual's constitutionally *932 protected privacy. The courts are not subject to any direct constitutional duty to exclude illegally obtained evidence, because the question of the admissibility of such evidence is not addressed by the Amendment. This view of the scope of the Amendment relegates the judiciary to the periphery. Because the only constitutionally cognizable injury has already been "fully accomplished" by the police by the time a case comes before the courts, the Constitution is not itself violated if the judge decides to admit the tainted evidence. Indeed, the most the judge can do is wring his hands and hope that perhaps by excluding such evidence he can deter future transgressions by the police. Such a reading appears plausible, because, as critics of the exclusionary rule never tire of repeating,[2] the Fourth Amendment makes no express provision for the exclusion of evidence secured in violation of its commands. A short answer to this claim, of course, is that many of the Constitution's most vital imperatives are stated in general terms and the task of giving meaning of these precepts is therefore left to subsequent judicial decisionmaking in the context of concrete cases. The nature of our Constitution, as Chief Justice Marshall long ago explained, "requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." A more direct answer may be supplied by recognizing that the Amendment, like other provisions of the Bill of Rights, restrains the power of the government as a whole; it does not specify only a particular agency and exempt all others. The judiciary is responsible, no less than the executive, for ensuring that constitutional rights are respected. *933 When that fact is kept in mind, the role of the courts and their possible involvement in the concerns of the Fourth Amendment comes into sharper focus. Because seizures are executed principally to secure evidence, and because such evidence generally has utility in our legal system only in the context of a trial supervised by a judge, it is apparent that the admission of illegally obtained evidence implicates the same constitutional concerns as the initial seizure of that evidence. Indeed, by admitting unlawfully seized evidence, the judiciary becomes a part of what is in fact a single governmental action prohibited by the terms of the Amendment.[3] Once that connection between the evidence-gathering role of the police and the evidence-admitting function of the courts is acknowledged, the plausibility of the 's interpretation becomes more suspect. Certainly nothing in the language or history of the Fourth Amendment suggests that a recognition of this evidentiary link between the police and the courts was meant to be foreclosed.[4] It is difficult to give any meaning *934 at all to the limitations imposed by the Amendment if they are read to proscribe only certain conduct by the police but to allow other agents of the same government to take advantage of evidence secured by the police in violation of its requirements.[5] The Amendment therefore must be read to condemn not only the initial unconstitutional invasion of privacy — which is done, after all, for the purpose of securing evidence — but also the subsequent use of any evidence so obtained. *935 The evades this principle by drawing an artificial line between the constitutional rights and responsibilities that are engaged by actions of the police and those that are engaged when a defendant appears before the courts. According to the the substantive protections of the Fourth Amendment are wholly exhausted at the moment when police unlawfully invade an individual's privacy and thus no substantive force remains to those protections at the time of trial when the government seeks to use evidence obtained by the police. I submit that such a crabbed reading of the Fourth Amendment casts aside the teaching of those Justices who first formulated the exclusionary rule, and rests ultimately on an impoverished understanding of judicial responsibility in our constitutional scheme. For my part, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" comprises a personal right to exclude all evidence secured by means of unreasonable searches and seizures. The right to be free from the initial invasion of privacy and the right of exclusion are coordinate components of the central embracing right to be free from unreasonable searches and seizures. Such a conception of the rights secured by the Fourth Amendment was unquestionably the original basis of what has come to be called the exclusionary rule when it was first formulated in There the considered whether evidence seized in violation of the Fourth Amendment by a United States Marshal could be admitted at trial after the defendant had moved that the evidence be returned. Significantly, although the considered the Marshal's initial invasion of the defendant's home to be unlawful, it went on to consider a question that "involves the right of the court in a criminal prosecution to retain for the purposes of evidence the letters and correspondence of the accused, seized in his house in his absence without his authority, by a United States Marshal holding no *936 warrant for the search of his premises." In answering that question, Justice Day, speaking for a unanimous expressly recognized that the commands of the Fourth Amendment were addressed to both the courts and the Executive Branch: "The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights." at 391-. The heart of the Weeks opinion, and for me the beginning of wisdom about the Fourth Amendment's proper meaning, is found in the following passage: "If letters and private documents can be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and [federal] officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great *937 principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. The United States Marshal could only have invaded the house of the accused when armed with a warrant issued as required by the Constitution. Instead, he acted without sanction of law, doubtless prompted by the desire to bring further proof to the aid of the Government, and under color of his office undertook to make a seizure of private papers in direct violation of the constitutional prohibition against such action. To sanction such proceedings would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action." -394. What this passage succinctly captures is the essential recognition, ignored by the present that seizures are generally executed for the purpose of bringing "proof to the aid of the Government," that the utility of such evidence in a criminal prosecution arises ultimately in the context of the courts, and that the courts therefore cannot be absolved of responsibility for the means by which evidence is obtained. As the in Weeks clearly recognized, the obligations cast upon government by the Fourth Amendment are not confined merely to the police. In the words of Justice Holmes: "If the search and seizure are unlawful as invading personal rights secured by the Constitution those rights would be infringed yet further if the evidence were allowed to be used." As the further explained in : "The striking outcome of the Weeks case and those which followed it was the sweeping declaration that the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction if obtained by government officers through a *938 violation of the Amendment. Theretofore many had supposed under the ordinary common law rules, if the tendered evidence was pertinent, the method of obtaining it was unimportant. But in the Weeks case, and those which followed, this decided with great emphasis, and established as the law for the federal courts, that the protection of the Fourth Amendment would be much impaired unless it was held that not only was the official violator of the rights under the Amendment subject to an action at the suit of the injured defendant, but also that the evidence thereby obtained could not be received." That conception of the rule, in my view, is more faithful to the meaning and purpose of the Fourth Amendment and to the judiciary's role as the guardian of the people's constitutional liberties. In contrast to the present 's restrictive reading, the in Weeks recognized that, if the Amendment is to have any meaning, police and the courts cannot be regarded as constitutional strangers to each other; because the evidence-gathering role of the police is directly linked to the evidence-admitting function of the courts, an individual's Fourth Amendment rights may be undermined as completely by one as by the other. B From the foregoing, it is clear why the question whether the exclusion of evidence would deter future police misconduct was never considered a relevant concern in the early cases from Weeks to Olmstead.[6] In those formative decisions, the plainly understood that the exclusion of illegally obtained evidence was compelled not by judicially fashioned *939 remedial purposes, but rather by a direct constitutional command. A new phase in the history of the rule, however, opened with the 's decision in Although that decision held that the security of one's person and privacy protected by the Fourth Amendment was "implicit in `the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause" of the Fourteenth Amendment, quoting the went on, in what can only be regarded as a tour de force of constitutional obfuscation, to say that the "ways of enforcing such a basic right raise questions of a different order," Notwithstanding the force of the Weeks doctrine that the Fourth Amendment required exclusion, a state court was free to admit illegally seized evidence, according to the in Wolf, so long as the State had devised some other "effective" means of vindicating a defendant's Fourth Amendment rights. Twelve years later, in however, the restored the original understanding of the Weeks case by overruling the holding of Wolf and repudiating its rationale. Although in the course of reaching this conclusion the in Mapp responded at certain points to the question, first raised in Wolf, of whether the exclusionary rule was an "effective" remedy compared to alternative means of enforcing the right, see -653, it nevertheless expressly held that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." In the 's view, the exclusionary rule was not one among a range of options to be selected at the discretion of judges; it was "an essential part of both the Fourth and Fourteenth Amendments." Rejection of the Wolf approach was constitutionally required, the explained, because "the admission of the new constitutional right by Wolf could not consistently tolerate denial of *940 its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment." Indeed, no other explanation suffices to account for the 's holding in Mapp, since the only possible predicate for the 's conclusion that the States were bound by the Fourteenth Amendment to honor the Weeks doctrine is that the exclusionary rule was "part and parcel of the Fourth Amendment's limitation upon [governmental] encroachment of individual privacy."[7] Despite this clear pronouncement, however, the since has gradually pressed the deterrence rationale for the rule back to center stage. See, e. g., United ; United ; The various arguments advanced by the in this campaign have only strengthened my conviction that the deterrence theory is both misguided and unworkable. First, *941 the has frequently bewailed the "cost" of excluding reliable evidence. In large part, this criticism rests upon a refusal to acknowledge the function of the Fourth Amendment itself. If nothing else, the Amendment plainly operates to disable the government from gathering information and securing evidence in certain ways. In practical terms, of course, this restriction of official power means that some incriminating evidence inevitably will go undetected if the government obeys these constitutional restraints. It is the loss of that evidence that is the "price" our society pays for enjoying the freedom and privacy safeguarded by the Fourth Amendment. Thus, some criminals will go free not, in Justice (then Judge) Cardozo's misleading epigram, "because the constable has blundered," but rather because official compliance with Fourth Amendment requirements makes it more difficult to catch criminals. Understood in this way, the Amendment directly contemplates that some reliable and incriminating evidence will be lost to the government; therefore, it is not the exclusionary rule, but the Amendment itself that has imposed this cost.[8] *942 In addition, the 's decisions over the past decade have made plain that the entire enterprise of attempting to assess the benefits and costs of the exclusionary rule in various contexts is a virtually impossible task for the judiciary to perform honestly or accurately. Although the 's language in those cases suggests that some specific empirical basis may support its analyses, the reality is that the 's opinions represent inherently unstable compounds of intuition, hunches, and occasional pieces of partial and often inconclusive data. In for example, the in considering whether the exclusionary rule should apply in grand jury proceedings, had before it no concrete evidence whatever concerning the impact that application of the rule in such proceedings would have either in terms of the long-term costs or the expected benefits. To the extent empirical data are available regarding the general costs and benefits of the exclusionary rule, such data have shown, on the one hand, as the acknowledges today, that the costs are not as substantial as critics have asserted in the past, see ante, at 907-908, n. 6, and, on the other hand, that while the exclusionary rule may well have certain deterrent effects, it is extremely difficult to determine with any degree of precision whether the incidence of unlawful conduct by police is now lower than it was prior to Mapp. See United -453, and n. 22; n. 32.[9] The *943 has sought to turn this uncertainty to its advantage by casting the burden of proof upon proponents of the rule, see, e. g., United "Obviously," however, "the assignment of the burden of proof on an issue where evidence does not exist and cannot be obtained is outcome determinative. [The] assignment of the burden is merely a way of announcing a predetermined conclusion."[10] By remaining within its redoubt of empiricism and by basing the rule solely on the deterrence rationale, the has robbed the rule of legitimacy. A doctrine that is explained as if it were an empirical proposition but for which there is only limited empirical support is both inherently unstable and an easy mark for critics. The extent of this 's fidelity to Fourth Amendment requirements, however, should not turn on such statistical uncertainties. I share the view, expressed by Justice Stewart for the in that "[p]ersonal liberties are not rooted in the law of averages." Rather than seeking to give effect to the liberties secured by the Fourth Amendment through guesswork about deterrence, the should restore to its proper place the principle framed 70 years ago in Weeks that an individual whose privacy has been invaded in violation of the Fourth Amendment has a right grounded in that Amendment to prevent the government from subsequently making use of any evidence so obtained. *944 II Application of that principle clearly requires affirmance in the two cases decided today. In the first, United States v. Leon, No. 82-1771, it is conceded by the Government and accepted by the that the affidavit filed by the police officers in support of their application for a search warrant failed to provide a sufficient basis on which a neutral and detached magistrate could conclude that there was probable cause to issue the warrant. Specifically, it is conceded that the officers' application for a warrant was based in part on information supplied by a confidential informant of unproven reliability that was over five months old by the time it was relayed to the police. Although the police conducted an independent investigation on the basis of this tip, both the District and the of Appeals concluded that the additional information gathered by the officers failed to corroborate the details of the informant's tip and was "as consistent with innocence as with guilt." App. to Pet. for Cert. 10a. The warrant, therefore, should never have issued. Stripped of the authority of the warrant, the conduct of these officers was plainly unconstitutional — it amounted to nothing less than a naked invasion of the privacy of respondents' homes without the requisite justification demanded by the Fourth Amendment. In order to restore the Government to the position it would have occupied had this unconstitutional search not occurred, therefore, it was necessary that the evidence be suppressed. As we said in the Warrant Clause is not "an inconvenience to be somehow `weighed' against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the `well-intentioned but mistakenly over-zealous executive officers' who are part of any system of law enforcement." A close examination of the facts of this case reveals that this is neither an extraordinary nor indeed a very costly step. *945 The warrant had authorized a search for cocaine, methaqualone tablets, and miscellaneous narcotics paraphernalia at several locations: a condominium at 7902 Via Magdalena in Los Angeles; a residence at 620 Price Drive in Burbank; a residence at 716 South Sunset Canyon in Burbank; and four automobiles owned respectively by respondents Leon, Sanchez, Stewart, and Del Castillo. App. 31-33. Pursuant to this warrant, the officers seized approximately four pounds of cocaine and over 1,000 methaqualone tablets from the Via Magdalena condominium, nearly one pound of cocaine from the Sunset Canyon residence, about an ounce of cocaine from the Price Drive residence, and certain paraphernalia from Del Castillo's and Stewart's automobiles. On the basis of this and other evidence, the four respondents were charged with violating U.S. C. 846 for conspiring to possess and distribute cocaine, and 841(a)(1) for possessing methaqualone and cocaine with intent to distribute. The indictment specifically alleged that respondents had maintained the Via Magdalena condominum as a storage area for controlled substances which they distributed to prospective purchasers. App. 27-28. At the suppression hearing, the District determined that none of the respondents had a sufficient expectation of privacy to contest the search of the Via Magdalena condominium, that respondents Stewart and Sanchez could challenge the search of their home at Price Drive, that respondent Leon was entitled to challenge the search of his home at Sunset Canyon, and that respondents Del Castillo and Stewart could contest the search of their cars. Given its finding that probable cause to issue the warrant was lacking, the District ruled that the evidence from the Price Drive residence could not be used against respondents Stewart and Sanchez, that evidence from the Sunset Canyon residence could not be used against Leon, and that evidence obtained from both Del Castillo's and Stewart's automobiles could not be used against them. App. to Pet. for Cert. 10a-a. *946 The tenor of the 's opinion suggests that this order somehow imposed a grave and presumably unjustifiable cost on society. Such a suggestion, however, is a gross exaggeration. Since the indictment focused upon a conspiracy among all respondents to use the Via Magdalena condominium as a storage area for controlled substances, and since the bulk of the evidence seized was from that condominium and was plainly admissible under the District 's order, the Government would clearly still be able to present a strong case to the jury following the court's suppression order. I emphasize these details not to suggest how the Government's case would fare before the jury but rather to clarify a point that is lost in the 's rhetorical excesses over the costs of the exclusionary rule — namely, that the suppression of evidence will certainly tend to weaken the Government's position but it will rarely force the Government to abandon a prosecution. Cf. infra, at 950-951, and n. 11. In my view, a doctrine that preserves intact the constitutional rights of the accused, and, at the same time, is sufficiently limited to permit society's legitimate and pressing interest in criminal law enforcement to be served should not be so recklessly discarded. It is a doctrine that gives life to the "very heart of the Fourth Amendment directive: that a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises." United U.S. 297, In the second case before the Massachusetts v. Sheppard, No. 82-963, the State concedes and the accepts that the warrant issued to search respondent's home completely failed to state with particularity the things to be seized. Indeed, the warrant expressly and particularly described things such as "controlled substance[s]" and "other paraphernalia used in, for, or in connection with the unlawful possession or use of any controlled substance" that the police had no reason whatsoever to believe were to be found in *947 respondent's home. App. 17a. Given the Fourth Amendment's requirement that "no Warrants shall issue, but upon probable cause and particularly describing the things to be seized," this warrant should never have been issued. The police who entered respondent's home, therefore, were without constitutional authority to do so. Although the 's opinion tends to overlook this fact, the requirement of particularity is not a mere "technicality," it is an express constitutional command. ; Lo-Ji Sales, ; ; 275 U.S. 1, (17). The purpose of that requirement is to prevent precisely the kind of governmental conduct that the faulty warrant at issue here created a grave risk of permitting — namely, a search that was not narrowly and particularly limited to the things that a neutral and detached magistrate had reason to believe might be found at respondent's home. Although it is true, as JUSTICE STEVENS observes, see post, at 964, that the affidavit submitted by the police set forth with particularity those items that they sought authority to search for, it is nevertheless clear that the warrant itself — the document which actually gave the officers legal authority to invade respondent's privacy — made no mention of these items. And, although it is true that the particular officers who applied for the warrant also happened to execute it and did so in accordance with the limits proposed in their affidavit, this happenstance should have no bearing on the central question whether these officers secured that prior judicial authority to conduct their search required by the Fourth Amendment. As we made clear in United "[t]he Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised." See also (7) ("this has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime *948 and voluntarily confined their activities to the least intrusive means consistent with that end"). Had the warrant actually been enforced by officers other than those who prepared the affidavit, the same result might not have occured; indeed, the wholly erroneous nature of the warrant might have led such officers to feel at liberty to roam throughout respondent's home in search of drugs. Cf. I therefore fail to see how a search pursuant to such a fundamentally defective warrant can be characterized as "reasonable." What the Framers of the Bill of Rights sought to accomplish through the express requirements of the Fourth Amendment was to define precisely the conditions under which government agents could search private property so that citizens would not have to depend solely upon the discretion and restraint of those agents for the protection of their privacy. Although the self-restraint and care exhibited by the officers in this case is commendable, that alone can never be a sufficient protection for constitutional liberties. I am convinced that it is not too much to ask that an attentive magistrate take those minimum steps necessary to ensure that every warrant he issues describes with particularity the things that his independent review of the warrant application convinces him are likely to be found in the premises. And I am equally convinced that it is not too much to ask that well-trained and experienced police officers take a moment to check that the warrant they have been issued at least describes those things for which they have sought leave to search. These convictions spring not from my own view of sound criminal law enforcement policy, but are instead compelled by the language of the Fourth Amendment and the history that led to its adoption. III Even if I were to accept the 's general approach to the exclusionary rule, I could not agree with today's result. *949 There is no question that in the hands of the present the deterrence rationale has proved to be a powerful tool for confining the scope of the rule. In for example, the concluded that the "speculative and undoubtedly minimal advance in the deterrence of police misconduct," was insufficient to outweigh the "expense of substantially impeding the role of the grand jury." -352. In the found that "the additional contribution, if any, of the consideration of search-and-seizure claims of state prisoners on collateral review is small in relation to the costs." In United the concluded that "exclusion from federal civil proceedings of evidence unlawfully seized by a state criminal enforcement officer has not been shown to have a sufficient likelihood of deterring the conduct of the state police so that it outweighs the societal costs imposed by the exclusion." And in an opinion handed down today, the finds that the "balance between costs and benefits comes out against applying the exclusionary rule in civil deportation hearings held by the [Immigration and Naturalization Service]." INS v. Lopez-Mendoza, post, at 1050. Thus, in this bit of judicial stagecraft, while the sets sometimes change, the actors always have the same lines. Given this well-rehearsed pattern, one might have predicted with some assurance how the present case would unfold. First there is the ritual incantation of the "substantial social costs" exacted by the exclusionary rule, followed by the virtually foreordained conclusion that, given the marginal benefits, application of the rule in the circumstances of these cases is not warranted. Upon analysis, however, such a result cannot be justified even on the 's own terms. At the outset, the suggests that society has been asked to pay a high price — in terms either of setting guilty persons free or of impeding the proper functioning of trials — as a result of excluding relevant physical evidence in cases *950 where the police, in conducting searches and seizing evidence, have made only an "objectively reasonable" mistake concerning the constitutionality of their actions. See ante, at 907-908. But what evidence is there to support such a claim? Significantly, the points to none, and, indeed, as the acknowledges, see ante, at 907-908, n. 6, recent studies have demonstrated that the "costs" of the exclusionary rule — calculated in terms of dropped prosecutions and lost convictions — are quite low. Contrary to the claims of the rule's critics that exclusion leads to "the release of countless guilty criminals," these studies have demonstrated that federal and state prosecutors very rarely drop cases because of potential search and seizure problems. For example, a 1979 study prepared at the request of Congress by the General Accounting Office reported that only 0.4% of all cases actually declined for prosecution by federal prosecutors were declined primarily because of illegal search problems. Report of the Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions If the GAO data are restated as a percentage of all arrests, the study shows that only 0.2% of all felony arrests are declined for prosecution because of potential exclusionary rule problems. See Davies, A Hard Look at What We Know (and Still Need to Learn) About the "Costs" of the Exclusionary Rule: The NIJ Study and Other Studies of "Lost" Arrests, 3 A. B. F. Res. J. 611, 635.[11] Of course, these data describe *951 only the costs attributable to the exclusion of evidence in all cases; the costs due to the exclusion of evidence in the narrower category of cases where police have made objectively reasonable mistakes must necessarily be even smaller. The however, ignores this distinction and mistakenly weighs the aggregated costs of exclusion in all cases, irrespective of the circumstances that led to exclusion, see ante, at 907, against the potential benefits associated with only those cases in which evidence is excluded because police reasonably but mistakenly believe that their conduct does not violate the Fourth Amendment, see ante, at 915-9. When such faulty scales are used, it is little wonder that the balance tips in favor of restricting the application of the rule. *952 What then supports the 's insistence that this evidence be admitted? Apparently, the 's only answer is that even though the costs of exclusion are not very substantial, the potential deterrent effect in these circumstances is so marginal that exclusion cannot be justified. The key to the 's conclusion in this respect is its belief that the prospective deterrent effect of the exclusionary rule operates only in those situations in which police officers, when deciding whether to go forward with some particular search, have reason to know that their planned conduct will violate the requirements of the Fourth Amendment. See ante, at 919-9. If these officers in fact understand (or reasonably should understand because the law is well settled) that their proposed conduct will offend the Fourth Amendment and that, consequently, any evidence they seize will be suppressed in court, they will refrain from conducting the planned search. In those circumstances, the incentive system created by the exclusionary rule will have the hoped-for deterrent effect. But in situations where police officers reasonably (but mistakenly) believe that their planned conduct satisfies Fourth Amendment requirements — presumably either (a) because they are acting on the basis of an apparently valid warrant, or (b) because their conduct is only later determined to be invalid as a result of a subsequent change in the law or the resolution of an unsettled question of law — then such officers will have no reason to refrain from conducting the search and the exclusionary rule will have no effect. At first blush, there is some logic to this position. Undoubtedly, in the situation hypothesized by the the existence of the exclusionary rule cannot be expected to have any deterrent effect on the particular officers at the moment they are deciding whether to go forward with the search. Indeed, the subsequent exclusion of any evidence seized under such circumstances appears somehow "unfair" to the particular officers involved. As the suggests, these officers have acted in what they thought was an appropriate *953 and constitutionally authorized manner, but then the fruit of their efforts is nullified by the application of the exclusionary rule. Ante, at 0-9. The flaw in the 's argument, however, is that its logic captures only one comparatively minor element of the generally acknowledged deterrent purposes of the exclusionary rule. To be sure, the rule operates to some extent to deter future misconduct by individual officers who have had evidence suppressed in their own cases. But what the overlooks is that the deterrence rationale for the rule is not designed to be, nor should it be thought of as, a form of "punishment" of individual police officers for their failures to obey the restraints imposed by the Fourth Amendment. See United -557 Instead, the chief deterrent function of the rule is its tendency to promote institutional compliance with Fourth Amendment requirements on the part of law enforcement agencies generally.[12] Thus, as the has previously *954 recognized, "over the long term, [the] demonstration [provided by the exclusionary rule] that our society attaches serious consequences to violation of constitutional rights is thought to encourage those who formulate law enforcement policies, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system." It is only through such an institutionwide mechanism that information concerning Fourth Amendment standards can be effectively communicated to rank-and-file officers.[] *955 If the overall educational effect of the exclusionary rule is considered, application of the rule to even those situations in which individual police officers have acted on the basis of a reasonable but mistaken belief that their conduct was authorized can still be expected to have a considerable long-term deterrent effect. If evidence is consistently excluded in these circumstances, police departments will surely be prompted to instruct their officers to devote greater care and attention to providing sufficient information to establish probable cause when applying for a warrant, and to review with some attention the form of the warrant that they have been issued, rather than automatically assuming that whatever document the magistrate has signed will necessarily comport with Fourth Amendment requirements. After today's decisions, however, that institutional incentive will be lost. Indeed, the 's "reasonable mistake" exception to the exclusionary rule will tend to put a premium on police ignorance of the law. Armed with the assurance provided by today's decisions that evidence will always be admissible whenever an officer has "reasonably" relied upon a warrant, police departments will be encouraged to train officers that if a warrant has simply been signed, it is reasonable, without more, to rely on it. Since in close cases there will no longer be any incentive to err on the side of constitutional behavior, police would have every reason to adopt a "let's-wait-until-it's-decided" approach in situations in which there is a question about a warrant's validity or the basis for its issuance. Cf. United[] *956 Although the brushes these concerns aside, a host of grave consequences can be expected to result from its decision to carve this new exception out of the exclusionary rule. A chief consequence of today's decisions will be to convey a clear and unambiguous message to magistrates that their decisions to issue warrants are now insulated from subsequent judicial review. Creation of this new exception for good-faith reliance upon a warrant implicitly tells magistrates that they need not take much care in reviewing warrant applications, since their mistakes will from now on have virtually no consequence: If their decision to issue a warrant was correct, the evidence will be admitted; if their decision was incorrect but the police relied in good faith on the warrant, the evidence will also be admitted. Inevitably, the care and attention devoted to such an inconsequential chore will dwindle. Although the is correct to note that magistrates do not share the same stake in the outcome of a criminal case as the police, they nevertheless need to appreciate that their role is of some moment in order to continue performing the important task of carefully reviewing warrant applications. Today's decisions effectively remove that incentive.[15] *957 Moreover, the good-faith exception will encourage police to provide only the bare minimum of information in future warrant applications. The police will now know that if they can secure a warrant, so long as the circumstances of its issuance are not "entirely unreasonable," ante, at 3, all police conduct pursuant to that warrant will be protected from further judicial review.[16] The clear incentive that operated in the past to establish probable cause adequately because reviewing courts would examine the magistrate's judgment carefully, see, e. g., ; (0); has now been so completely vitiated that the police need only show that it was not "entirely unreasonable" under the circumstances *958 of a particular case for them to believe that the warrant they were issued was valid. See ante, at 3. The long-run effect unquestionably will be to undermine the integrity of the warrant process. Finally, even if one were to believe, as the apparently does, that police are hobbled by inflexible and hypertechnical warrant procedures, today's decisions cannot be justified. This is because, given the relaxed standard for assessing probable cause established just last Term in 462 U.S. 3 the 's newly fashioned good-faith exception, when applied in the warrant context, will rarely, if ever, offer any greater flexibility for police than the standard already supplies. In the held that "[t]he 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, there is a fair probability that contraband or evidence of a crime will be found in a particular place." The task of a reviewing court is confined to determining whether "the magistrate had a `substantial basis for conclud[ing]' that probable cause existed." Given such a relaxed standard, it is virtually inconceivable that a reviewing court, when faced with a defendant's motion to suppress, could first find that a warrant was invalid under the new standard, but then, at the same time, find that a police officer's reliance on such an invalid warrant was nevertheless "objectively reasonable" under the test announced today.[17] Because the two standards overlap so completely, it is unlikely that a warrant could be found invalid under and yet the police reliance upon it could be seen as objectively reasonable; otherwise, we would have to entertain the mind-boggling *959 concept of objectively reasonable reliance upon an objectively unreasonable warrant. This paradox, as JUSTICE STEVENS suggests, see post, at 961-962, perhaps explains the 's unwillingness to remand No. 82-1771 for reconsideration in light of for it is quite likely that on remand the of Appeals would find no violation of the Fourth Amendment, thereby demonstrating that the supposed need for the good-faith exception in this context is more apparent than real. Therefore, although the 's decisions are clearly limited to the situation in which police officers reasonably rely upon an apparently valid warrant in conducting a search, I am not at all confident that the exception unleashed today will remain so confined. Indeed, the full impact of the 's regrettable decisions will not be felt until the attempts to extend this rule to situations in which the police have conducted a warrantless search solely on the basis of their own judgment about the existence of probable cause and exigent circumstances. When that question is finally posed, I for one will not be surprised if my colleagues decide once again that we simply cannot afford to protect Fourth Amendment rights. IV When the public, as it quite properly has done in the past as well as in the present, demands that those in government increase their efforts to combat crime, it is all too easy for those government officials to seek expedient solutions. In contrast to such costly and difficult measures as building more prisons, improving law enforcement methods, or hiring more prosecutors and judges to relieve the overburdened court systems in the country's metropolitan areas, the relaxation of Fourth Amendment standards seems a tempting, costless means of meeting the public's demand for better law enforcement. In the long run, however, we as a society pay a heavy price for such expediency, because as Justice Jackson observed, the rights guaranteed in the Fourth Amendment *960A "are not mere second-class rights but belong in the catalog of indispensable freedoms." Once lost, such rights are difficult to recover. There is hope, however, that in time this or some later will restore these precious freedoms to their rightful place as a primary protection for our citizens against overreaching officialdom. I dissent. *960B JUSTICE STEVENS, concurring in the judgment in No. 82-963, post, p. 981, and dissenting in No. 82-1771. It is appropriate to begin with the plain language of the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The assumes that the searches in these cases violated the Fourth Amendment, yet refuses to apply the exclusionary rule because the concludes that it was "reasonable" for the police to conduct them. In my opinion an official search and seizure cannot be both "unreasonable" and "reasonable" at the same time. The doctrinal vice in the 's holding is its failure to consider the separate purposes of the two prohibitory Clauses in the Fourth Amendment. The first Clause prohibits unreasonable searches and seizures and the second prohibits the issuance of warrants that are not supported by probable cause or that do not particularly describe the place to be searched and the persons or things to be seized. We have, of course, repeatedly held that warrantless searches are presumptively unreasonable,[1]*961 and that there are only a few carefully delineated exceptions to that basic presumption.[2] But when such an exception has been recognized, analytically we have necessarily concluded that the warrantless activity was not "unreasonable" within the meaning of the first Clause. Thus, any Fourth Amendment case may present two separate questions: whether the search was conducted pursuant to a warrant issued in accordance with the second Clause, and, if not, whether it was nevertheless "reasonable" within the meaning of the first. On these questions, the constitutional text requires that we speak with one voice. We cannot intelligibly assume, arguendo, that a search was constitutionally unreasonable but that the seized evidence is admissible because the same search was reasonable. I In No. 82-963, the Supreme Judicial of Massachusetts determined that a warrant which purported to authorize a search of respondent's home had been issued in violation of the Warrant Clause. In its haste to make new law, this does not tarry to consider this holding. Yet, as I will demonstrate, this holding is clearly wrong; I would reverse the judgment on that ground alone. In No. 82-1771, there is also a substantial question whether the warrant complied with the Fourth Amendment. There was a strong dissent on the probable-cause issue when Leon was before the of Appeals, and that dissent has been given added force by this 's intervening decision in 462 U.S. 3 which constituted a significant development in the law. It is probable, though admittedly not certain, that the of Appeals would now conclude that the warrant in Leon satisfied the Fourth Amendment if it were given the opportunity to reconsider the issue in the light of Adherence to our normal *962 practice following the announcement of a new rule would therefore postpone, and probably obviate, the need for the promulgation of the broad new rule the announces today.[3] It is, of course, disturbing that the chooses one case in which there was no violation of the Fourth Amendment, and another in which there is grave doubt on the question, in order to promulgate a "good faith" exception to the Fourth Amendment's exclusionary rule. The 's explanation for its failure to decide the merits of the Fourth Amendment question in No. 82-963 is that it "is a factbound issue of little importance," Massachusetts v. Sheppard, post, at 988, n. 5. In No. 82-1771, the acknowledges that the case could be remanded to the of Appeals for reconsideration in light of yet does not bother to explain why it fails to do so except to note that it is "within our power" to decide the broader question in the case. United States v. Leon, ante, at 905. The seems determined to decide these cases on the broadest possible grounds; such determination is utterly at odds with the 's traditional practice as well as any principled notion of judicial restraint. Decisions made in this manner are unlikely to withstand the test of time. Judges, more than most, should understand the value of adherence to settled procedures. By adopting a set of fair procedures, and then adhering to them, courts of law ensure that justice is administered with an even hand. "These are subtle matters, for they concern the ingredients of what constitutes justice. Therefore, justice must satisfy the appearance of justice." Of course, this has a duty to face questions of constitutional law when necessary to the disposition of an actual case or controversy. Marbury v. Madison, 1 Cranch *963 7, 177 (3). But when the goes beyond what is necessary to decide the case before it, it can only encourage the perception that it is pursuing its own notions of wise social policy, rather than adhering to its judicial role. I do not believe the should reach out to decide what is undoubtedly a profound question concerning the administration of criminal justice before assuring itself that this question is actually and of necessity presented by the concrete facts before the Although it may appear that the 's broad holding will serve the public interest in enforcing obedience to the rule of law, for my part, I remain firmly convinced that "the preservation of order in our communities will be best ensured by adherence to established and respected procedures." (Stevens, J., dissenting), rev'd, II In No. 82-963, there is no contention that the police officers did not receive appropriate judicial authorization for their search of respondent's residence. A neutral and detached judicial officer had correctly determined that there was probable cause to conduct a search. Nevertheless, the Supreme Judicial suppressed the fruits of the search because the warrant did not particularly describe the place to be searched and the things to be seized. The particularity requirement of the Fourth Amendment has a manifest purpose — to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search is carefully tailored to its justification, and does not resemble the wide-ranging general searches that the Framers intended to prohibit.[4] In this *964 case the warrant did not come close to authorizing a general search.[5] The affidavit supporting the application for the warrant correctly identified the things to be seized, and on its face the affidavit indicated that it had been presented to the judge who had issued the warrant.[6] Both the police officers and the judge were fully aware of the contents of the affidavit, and therefore knew precisely what the officers were authorized to search for. Since the affidavit was available for after-the-fact review, the Massachusetts courts could readily ascertain the limits of the officers' authority under the warrant. In short, the judge who issued the warrant, the police officers who executed it, and the reviewing courts all were able easily to ascertain the precise scope of the authorization provided by the warrant. All that our cases require is that a warrant contain a description sufficient to enable the officers who execute it to ascertain with reasonable effort where they are to search and what they are to seize.[7] The test is whether the executing officers' discretion has been limited in a way that forbids a general search.[8] Here there was no question that the *965 executing officers' discretion had been limited — they, as well as the reviewing courts, knew the precise limits of their authorization. There was simply no "occasion or opportunity for officers to rummage at large,"[9] The only Fourth Amendment interest that is arguably implicated by the "defect" in the warrant is the citizen's interest in being able to ascertain the limits of the officers' authorization by examining the warrant.[10] Respondent, however, was not home at the time the warrant was executed, and therefore had no occasion to see the warrant. The two persons who were present when the warrant was executed, respondent's mother and sister, did not read the warrant or ask to have it read. "[T]he general rule [is] that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." (9). Thus, respondent, who has standing to assert only his own Fourth Amendment interests,[11] cannot complain that his interest in ascertaining the limits of the officers' authority under the search warrant was infringed.[12] In short, our *966 precedents construing the particularity requirement of the Warrant Clause unambiguously demonstrate that this warrant did not violate the Fourth Amendment. III Even if it be assumed that there was a technical violation of the particularity requirement in No. 82-963, it by no means follows that the "warrantless" search in that case was "unreasonable" within the meaning of the Fourth Amendment. For this search posed none of the dangers to which the Fourth Amendment is addressed. It was justified by a neutral magistrate's determination of probable cause and created no risk of a general search. It was eminently "reasonable." In No. 82-1771, however, the Government now admits — at least for the tactical purpose of achieving what it regards as a greater benefit — that the substance, as well as the letter, of the Fourth Amendment was violated. The therefore assumes that the warrant in that case was not supported by probable cause, but refuses to suppress the evidence obtained thereby because it considers the police conduct to satisfy a "newfangled" nonconstitutional standard of reasonableness.[] Yet if the 's assumption is correct — if there was no probable cause — it must follow that it was "unreasonable" *967 for the authorities to make unheralded entries into and searches of private dwellings and automobiles. The 's conclusion that such searches undertaken without probable cause can nevertheless be "reasonable" is totally without support in our Fourth Amendment jurisprudence. Just last Term, the explained what probable cause to issue a warrant means: "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 the `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." 462 U. S., Moreover, in evaluating the existence of probable cause, reviewing courts must give substantial deference to the magistrate's determination.[] In doubtful cases the warrant *968 should be sustained.[15] The judgment as to whether there is probable cause must be made in a practical and nontechnical manner.[16] The probable-cause standard therefore gives law enforcement officers ample room to engage in any reasonable law enforcement activity. What is more, the standard has been familiar to the law enforcement profession for centuries.[17] In an opinion written in 1949, and endorsed by the last Term in we explained: "These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice." Thus, if the majority's assumption is correct, that even after paying heavy deference to the magistrate's finding and resolving all doubt in its favor, there is no probable cause here, then by definition — as a matter of constitutional law — *969 the officers' conduct was unreasonable.[18] The 's own hypothesis is that there was no fair likelihood that the officers would find evidence of a crime, and hence there was no reasonable law enforcement justification for their conduct.[19] The majority's contrary conclusion rests on the notion that it must be reasonable for a police officer to rely on a magistrate's finding. Until today that has plainly not been the law; it has been well settled that even when a magistrate issues a warrant there is no guarantee that the ensuing search and seizure is constitutionally reasonable. Law enforcement officers have long been on notice that despite the magistrate's decision a warrant will be invalidated if the officers did not provide sufficient facts to enable the magistrate to evaluate the existence of probable cause responsibly and independently.[20] Reviewing courts have always inquired into whether the magistrate acted properly in issuing the warrant — not merely whether the officers acted properly in executing it. See (0).[] Indeed, just last Term, in after noting *970 that " `the duty of a reviewing court is simply to ensure that the magistrate had a `substantial basis for conclud[ing]' that probable cause existed,' " 462 U.S., -239 (quoting ), the added: "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."[22] Thus, under our cases it has never been "reasonable" for the police to rely on the mere fact that a warrant has issued; the police have always known that if they fail to supply the magistrate with sufficient information, the warrant will be held invalid and its fruits excluded.[23] The notion that a police officer's reliance on a magistrate's warrant is automatically appropriate is one the Framers of *971 the Fourth Amendment would have vehemently rejected. The precise problem that the Amendment was intended to address was the unreasonable issuance of warrants. As we have often observed, the Amendment was actually motivated by the practice of issuing general warrants — warrants which did not satisfy the particularity and probable-cause requirements.[24] The resentments which led to the Amendment were directed at the issuance of warrants unjustified by particularized evidence of wrongdoing.[25] Those who sought to amend the Constitution to include a Bill of Rights repeatedly voiced the view that the evil which had to be addressed was the issuance of warrants on insufficient evidence.[26] As Professor Taylor has written: *972 "[O]ur constitutional fathers were not concerned about warrantless searches, but about overreaching warrants. It is perhaps too much to say that they feared the warrant more than the search, but it is plain enough that the warrant was the prime object of their concern. Far from looking at the warrant as a protection against unreasonable searches, they saw it as an authority for unreasonable and oppressive searches" T. Taylor, Two Studies in Constitutional Interpretation 41 (9). In short, the Framers of the Fourth Amendment were deeply suspicious of warrants; in their minds the paradigm of an abusive search was the execution of a warrant not based on probable cause. The fact that colonial officers had magisterial authorization for their conduct when they engaged in general searches surely did not make their conduct "reasonable." The 's view that it is consistent with our Constitution to adopt a rule that it is presumptively reasonable to rely on a defective warrant is the product of constitutional amnesia.[27] IV In Brinegar, Justice Jackson, after observing that "[i]ndications are not wanting that Fourth Amendment freedoms are tacitly marked as secondary rights, to be relegated to a deferred position," 338 U.S., at continued: "These, I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and *973 seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police. "Only occasional and more flagrant abuses come to the attention of the courts, and then only those where the search and seizure yields incriminating evidence and the defendant is at least sufficiently compromised to be indicted. If the officers raid a home, an office, or stop and search an automobile but find nothing incriminating, this invasion of the personal liberty of the innocent too often finds no practical redress. There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear. "s can protect the innocent against such invasions only indirectly and through the medium of excluding evidence obtained against those who frequently are guilty. So a search against Brinegar's car must be regarded as a search of the car of Everyman." at -181. Justice Jackson's reference to his experience at Nuremberg should remind us of the importance of considering the consequences of today's decision for "Everyman." The exclusionary rule is designed to prevent violations of the Fourth Amendment.[28] "Its purpose is to deter — to compel *974 respect for the constitutional guaranty in the only effectively available way, by removing the incentive to disregard it." 7 (0).[29] If the police cannot use evidence obtained through warrants issued on less than probable cause, they have less incentive to seek those warrants, and magistrates have less incentive to issue them. Today's decisions do grave damage to that deterrent function. Under the majority's new rule, even when the police know their warrant application is probably insufficient, they retain an incentive to submit it to a magistrate, on the chance that he may take the bait. No longer must they hesitate and seek additional evidence in doubtful cases. Thus, what we *975 said two Terms ago about a rule that would prevent exclusion except in cases in which the authorities violate well-settled law applies fully to the rule the adopts today: "If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in the area remained unsettled, evidence obtained through the questionable practice would be excluded only in the one case definitively resolving the unsettled question. Failure to accord any retroactive effect to Fourth Amendment rulings would `encourage police or other courts to disregard the plain purport of our decisions and to adopt a let's-wait-until-it's-decided approach.' " United (quoting (9) ).[30] The is of course correct that the exclusionary rule cannot deter when the authorities have no reason to know that their conduct is unconstitutional. But when probable cause is lacking, then by definition a reasonable person under the circumstances would not believe there is a fair likelihood that a search will produce evidence of a crime. Under such circumstances well-trained professionals must know that they are violating the Constitution. The 's approach — *976 which, in effect, encourages the police to seek a warrant even if they know the existence of probable cause is doubtful — can only lead to an increased number of constitutional violations. Thus, the 's creation of a double standard of reasonableness inevitably must erode the deterrence rationale that still supports the exclusionary rule. But we should not ignore the way it tarnishes the role of the judiciary in enforcing the Constitution. For the original rationale for the exclusionary rule retains its force as well as its relevance: "The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights."[31] Thus, "s which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional *977 rights of citizens by permitting unhindered governmental use of the fruits of such invasions." U.S. 1, (8).[32] As the correctly notes,[33] we have refused to apply the exclusionary rule to collateral contexts in which its marginal efficacy is questionable; until today, however, every time the police have violated the applicable commands of the Fourth Amendment a court has been prepared to vindicate that Amendment by preventing the use of evidence so obtained in the prosecution's case in chief against those whose rights have been violated.[34] Today, for the first time, this holds that although the Constitution has been violated, no court should do anything about it at any time and in any proceeding.[35] In my judgment, *978 the Constitution requires more. s simply cannot escape their responsibility for redressing constitutional violations if they admit evidence obtained through unreasonable searches and seizures, since the entire point of police conduct that violates the Fourth Amendment is to obtain evidence for use at trial. If such evidence is admitted, then the courts become not merely the final and necessary link in an unconstitutional chain of events, but its actual motivating force. "If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed." Nor should we so easily concede the existence of a constitutional violation for which there is no remedy.[36] To do so is to convert a Bill of Rights into an unenforced honor code that the police may follow in their discretion. The Constitution requires more; it requires a remedy.[37] If the 's new rule is to be followed, the Bill of Rights should be renamed. *979 It is of course true that the exclusionary rule exerts a high price — the loss of probative evidence of guilt. But that price is one courts have often been required to pay to serve important social goals.[38] That price is also one the Fourth Amendment requires us to pay, assuming as we must that the Framers intended that its strictures "shall not be violated." For in all such cases, as Justice Stewart has observed, "the same extremely relevant evidence would not have been obtained had the police officer complied with the commands of the fourth amendment in the first place."[39] "[T]he forefathers thought this was not too great a price to pay for that decent privacy of home, papers and effects which is indispensable to individual dignity and self-respect. They may have overvalued privacy, but I am not disposed to set their command at naught." 331 U.S. 5,[40] We could, of course, facilitate the process of administering justice to those who violate the criminal laws by ignoring the commands of the Fourth Amendment — indeed, by ignoring *980 the entire Bill of Rights — but it is the very purpose of a Bill of Rights to identify values that may not be sacrificed to expediency. In a just society those who govern, as well as those who are governed, must obey the law. While I concur in the 's judgment in No. 82-963, I would vacate the judgment in No. 82-1771 and remand the case to the of Appeals for reconsideration in the light of Accordingly, I respectfully dissent from the disposition in No. 82-1771.

Justice Marshall

dissenting

Roberts v. United States

https://www.courtlistener.com/opinion/110234/roberts-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/110234/

1979-066

The Court today permits a term of imprisonment to be increased because of a defendant's refusal to identify others *564 involved in criminal activities—a refusal that was not unlawful and that may have been motivated by a desire to avoid self-incrimination or by a reasonable fear of reprisal. I do not believe that a defendant's failure to inform on others may properly be used to aggravate a sentence of imprisonment, and accordingly, I dissent. The majority does not dispute that a failure to disclose the identity of others involved in criminal activity may often stem from a desire to avoid self-incrimination. This case is an excellent illustration of that possibility. The prosecutor asked petitioner "to identify the person or persons from whom he was getting the drugs, and the location, and to lay out the conspiracy and identify other co-conspirators who were involved with them." App. 36. Disclosure of this information might well have exposed petitioner to prosecution on additional charges.[1] He was never offered immunity from such prosecution. Petitioner's right to refuse to incriminate himself on additional charges was not, of course, extinguished by his guilty plea. There can be no doubt that a judge would be barred from increasing the length of a jail sentence because of a defendant's refusal to cooperate based on the constitutional privilege against self-incrimination. In such a case, the threat of a longer sentence of imprisonment would plainly be compulsion within the meaning of the Fifth Amendment. Cf. McGautha v. California, 402 U.S. 183 (1971). Such an aggravation of sentence would amount to an impermissible penalty imposed solely because of the defendant's assertion of the Fifth Amendment privilege. *565 I also believe that it would be an abuse of discretion for a judge to use a defendant's refusal to become an informer to increase the length of a sentence when the refusal was motivated by a fear of retaliation.[2] In such a case, the failure to identify other participants in the crime is irrevelant to the defendant's prospects for rehabilitation, see ante, at 558, and bears no relation to any of the legitimate purposes of sentencing. See United States v. Grayson, 438 U.S. 41 (1978); United States v. Tucker, 404 U.S. 443 (1972). In this case, then, petitioner's refusal to provide the requested information was lawful[3] and may have been motivated by the possibility of self-incrimination or a reasonable fear of reprisal. The majority acknowledges that these claims "would have merited serious consideration if they had been presented properly to the sentencing judge." Ante, at 559. Because petitioner did not expressly state these grounds to *566 the sentencing judge, however, the Court indulges the assumption that petitioner's refusal was motivated by a desire to "preserv[e] his ability to resume criminal activities upon release." Ante, at 558. I am at a loss to discern any evidentiary basis for this assumption.[4] And I reject the Court's harsh and rigid approach to the issue of waiver, especially in a context in which it was hardly clear that reasons for petitioner's failure to cooperate had to be identified before the sentencing judge.[5] *567 Furthermore, the bare failure to cooperate in an investigation of others cannot, without further inquiry, justify a conclusive negative inference about "the meaning of that conduct with respect to [the defendant's] prospects for rehabilitation and restoration to a useful place in society." United States v. Grayson, supra, at 55. A fear of reprisal against one's self or one's family or a desire to avoid further self-incrimination are equally plausible explanations for such conduct. Even the desire to "do his own time" without becoming a police informer might explain petitioner's behavior without necessarily indicating that he intended to "resume criminal activities upon [his] release." Ante, at 558. The inference that petitioner was a poor candidate for rehabilitation could not be justified without additional information.[6] The enhancement of petitioner's sentence, then, was impermissible because it may have burdened petitioner's exercise of his constitutional rights or been based on a factor unrelated to the permissible goals of sentencing. In addition, it represented an improper involvement of the judicial office in the prosecutorial function that should be corrected through our supervisory power over the federal courts.[7] *568 The usual method for obtaining testimony which may be self-incriminatory is through a grant of immunity from prosecution. See 18 U.S. C. § 6001 et seq. (1976 ed. and Supp. II). Prosecutors would have little incentive to offer defendants immunity for their testimony if they could achieve the same result without giving up the option to prosecute. There is no suggestion here that an offer of immunity was ever extended to petitioner. If a defendant knows his silence may be used against him to enhance his sentence, he may be put to an unfair choice. He must either give incriminating information with no assurance that he will not be prosecuted on the basis of that information, or face the possibility of an increased sentence because of his noncooperation. Since a prosecutor may overcome a Fifth Amendment claim through an offer of immunity, I see no reason to put defendants to such a choice. A second method available to the prosecutor for obtaining a defendant's testimony against others is the plea-bargaining process. The Court has upheld that process on the theory that the relative equality of bargaining power between the prosecutor and the defendant prevents the process from being fundamentally unfair. Santobello v. New York, 404 U.S. 257, 261 (1971). But if the judge can be counted on to increase the defendant's sentence if he fails to cooperate, the balance of bargaining power is tipped in favor of the prosecution. Not only is the prosecutor able to offer less in exchange for cooperation, but a defendant may agree for fear of incurring the displeasure of the sentencing judge. To insure that defendants will not be so intimidated into accepting plea bargains, *569 federal judges are forbidden from participating in the bargaining process. See Fed. Rule Crim. Proc. 11 (e) (1); ABA Project on Standards for Criminal Justice, Pleas of Guilty § 3.3 (a) (App. Draft 1968). As Judge Bazelon observed below: "The trial judge, whose impartiality is a cornerstone of our criminal justice system, may be tempted, under the guise of exercising discretion in sentencing[,] to join forces with the prosecutor in securing the defendant's cooperation." 195 U. S. App. D. C. 1, 3, 600 F.2d 815, 817 (1979). I do not believe that we should allow that possibility. I find disturbing the majority's willingness to brush aside these serious objections to the propriety of petitioner's sentence on the strength of "the duty to report known criminal behavior," ante, at 558. According to the Court, petitioner's refusal to become an informer was a rejection of a "deeply rooted social obligation," ibid. All citizens apparently are "obliged to assist the authorities" in this way, and petitioner's failure to do so was not only "a badge of irresponsible citizenship," but constituted "antisocial conduct" as well. Ante, at 558, 559. The Court supports its stern conclusions about petitioner's civic duty only by reference to the concepts of "hue and cry" and "misprision of felony." Those concepts were developed in an era in which enforcement of the criminal law was entrusted to the general citizenry rather than to an organized police force.[8] But it is unnecessary to discuss in detail the historical context of such concepts, so different from our present-day society, in order to reject the Court's analysis. American society has always approved those who own up to their wrongdoing and vow to do better, just as it has admired those who come to the aid of the victims of criminal conduct. But our admiration of those who inform on others *570 has never been as unambiguous as the majority suggests. The countervailing social values of loyalty and personal privacy have prevented us from imposing on the citizenry at large a duty to join in the business of crime detection. If the Court's view of social mores were accurate, it would be hard to understand how terms such as "stool pigeon," "snitch," "squealer," and "tattletale" have come to be the common description of those who engage in such behavior. I do not, of course, suggest that those who have engaged in criminal activity should refuse to cooperate with the authorities. The informer plays a vital role in the struggle to check crime, especially the narcotics trade. We could not do without him. In recognition of this role, it is fully appropriate to encourage such behavior by offering leniency in exchange for "cooperation."[9] Cooperation of that sort may *571 be a sign of repentance and the beginning of rehabilitation.[10] But our Government has allowed its citizens to decide for themselves whether to enlist in the enterprise of enforcing the criminal laws; it has never imposed a duty to do so, as the Court's opinion suggests. I find no justification for creating such a duty in this case and applying it only to persons about to be sentenced for a crime. In fact, the notion that citizens may be compelled to become informers is contrary to my understanding of the fundamental nature of our criminal law. Some legal systems have been premised on the obligation of an accused to answer all questions put to him. In other societies law-abiding behavior is encouraged by penalizing citizens who fail to spy on their neighbors or report infractions. Our country, thankfully, has never chosen that path. As highly as we value the directives *572 of our criminal laws, we place their enforcement in the hands of public officers, and we do not give those officers the authority to impress the citizenry into the prosecutorial enterprise. By today's decision, the Court ignores this precept, and it does so in a setting that both threatens Fifth Amendment rights and encourages arbitrary and irrational sentencing.

The Court today permits a term of imprisonment to be increased because of a defendant's refusal to identify others *564 involved in criminal activities—a refusal that was not unlawful and that may have been motivated by a desire to avoid self-incrimination or by a reasonable fear of reprisal. I do not believe that a defendant's failure to inform on others may properly be used to aggravate a sentence of imprisonment, and accordingly, I dissent. The majority does not dispute that a failure to disclose the identity of others involved in criminal activity may often stem from a desire to avoid self-incrimination. This case is an excellent illustration of that possibility. The prosecutor asked petitioner "to identify the person or persons from whom he was getting the drugs, and the location, and to lay out the conspiracy and identify other co-conspirators who were involved with them." App. 36. Disclosure of this information might well have exposed petitioner to prosecution on additional charges.[1] He was never offered immunity from such prosecution. Petitioner's right to refuse to incriminate himself on additional charges was not, of course, extinguished by his guilty plea. There can be no doubt that a judge would be barred from increasing the length of a jail sentence because of a defendant's refusal to cooperate based on the constitutional privilege against self-incrimination. In such a case, the threat of a longer sentence of imprisonment would plainly be compulsion within the meaning of the Fifth Amendment. Cf. Such an aggravation of sentence would amount to an impermissible penalty imposed solely because of the defendant's assertion of the Fifth Amendment privilege. *565 I also believe that it would be an abuse of discretion for a judge to use a defendant's refusal to become an informer to increase the length of a sentence when the refusal was motivated by a fear of retaliation.[2] In such a case, the failure to identify other participants in the crime is irrevelant to the defendant's prospects for rehabilitation, see ante, 8, and bears no relation to any of the legitimate purposes of sentencing. See United ; United In this case, then, petitioner's refusal to provide the requested information was lawful[3] and may have been motivated by the possibility of self-incrimination or a reasonable fear of reprisal. The majority acknowledges that these claims "would have merited serious consideration if they had been presented properly to the sentencing judge." Ante, 9. Because petitioner did not expressly state these grounds to *566 the sentencing judge, however, the Court indulges the assumption that petitioner's refusal was motivated by a desire to "preserv[e] his ability to resume criminal activities upon release." Ante, 8. I am at a loss to discern any evidentiary basis for this assumption.[4] And I reject the Court's harsh and rigid approach to the issue of waiver, especially in a context in which it was hardly clear that reasons for petitioner's failure to cooperate had to be identified before the sentencing judge.[5] *567 Furthermore, the bare failure to cooperate in an investigation of others cannot, without further inquiry, justify a conclusive negative inference about "the meaning of that conduct with respect to [the defendant's] prospects for rehabilitation and restoration to a useful place in society." United A fear of reprisal against one's self or one's family or a desire to avoid further self-incrimination are equally plausible explanations for such conduct. Even the desire to "do his own time" without becoming a police informer might explain petitioner's behavior without necessarily indicating that he intended to "resume criminal activities upon [his] release." Ante, 8. The inference that petitioner was a poor candidate for rehabilitation could not be justified without additional information.[6] The enhancement of petitioner's sentence, then, was impermissible because it may have burdened petitioner's exercise of his constitutional rights or been based on a factor unrelated to the permissible goals of sentencing. In addition, it represented an improper involvement of the judicial office in the prosecutorial function that should be corrected through our supervisory power over the federal courts.[7] *568 The usual method for obtaining testimony which may be self-incriminatory is through a grant of immunity from prosecution. See 18 U.S. C. 6001 et seq. (1976 ed. and Supp. II). Prosecutors would have little incentive to offer defendants immunity for their testimony if they could achieve the same result without giving up the option to prosecute. There is no suggestion here that an offer of immunity was ever extended to petitioner. If a defendant knows his silence may be used against him to enhance his sentence, he may be put to an unfair choice. He must either give incriminating information with no assurance that he will not be prosecuted on the basis of that information, or face the possibility of an increased sentence because of his noncooperation. Since a prosecutor may overcome a Fifth Amendment claim through an offer of immunity, I see no reason to put defendants to such a choice. A second method available to the prosecutor for obtaining a defendant's testimony against others is the plea-bargaining process. The Court has upheld that process on the theory that the relative equality of bargaining power between the prosecutor and the defendant prevents the process from being fundamentally unfair. But if the judge can be counted on to increase the defendant's sentence if he fails to cooperate, the balance of bargaining power is tipped in favor of the prosecution. Not only is the prosecutor able to offer less in exchange for cooperation, but a defendant may agree for fear of incurring the displeasure of the sentencing judge. To insure that defendants will not be so intimidated into accepting plea bargains, *569 federal judges are forbidden from participating in the bargaining process. See Fed. Rule Crim. Proc. 11 (e) (1); ABA Project on Standards for Criminal Justice, Pleas of Guilty 3.3 (a) (App. Draft 1968). As Judge Bazelon observed below: "The trial judge, whose impartiality is a cornerstone of our criminal justice system, may be tempted, under the guise of exercising discretion in sentencing[,] to join forces with the prosecutor in securing the defendant's cooperation." 195 U. S. App. D. C. 1, 3, I do not believe that we should allow that possibility. I find disturbing the majority's willingness to brush aside these serious objections to the propriety of petitioner's sentence on the strength of "the duty to report known criminal behavior," ante, 8. According to the Court, petitioner's refusal to become an informer was a rejection of a "deeply rooted social obligation," All citizens apparently are "obliged to assist the authorities" in this way, and petitioner's failure to do so was not only "a badge of irresponsible citizenship," but constituted "antisocial conduct" as well. Ante, 8, 559. The Court supports its stern conclusions about petitioner's civic duty only by reference to the concepts of "hue and cry" and "misprision of felony." Those concepts were developed in an era in which enforcement of the criminal law was entrusted to the general citizenry rather than to an organized police force.[8] But it is unnecessary to discuss in detail the historical context of such concepts, so different from our present-day society, in order to reject the Court's analysis. American society has always approved those who own up to their wrongdoing and vow to do better, just as it has admired those who come to the aid of the victims of criminal conduct. But our admiration of those who inform on others *570 has never been as unambiguous as the majority suggests. The countervailing social values of loyalty and personal privacy have prevented us from imposing on the citizenry at large a duty to join in the business of crime detection. If the Court's view of social mores were accurate, it would be hard to understand how terms such as "stool pigeon," "snitch," "squealer," and "tattletale" have come to be the common description of those who engage in such behavior. I do not, of course, suggest that those who have engaged in criminal activity should refuse to cooperate with the authorities. The informer plays a vital role in the struggle to check crime, especially the narcotics trade. We could not do without him. In recognition of this role, it is fully appropriate to encourage such behavior by offering leniency in exchange for "cooperation."[9] Cooperation of that sort may *571 be a sign of repentance and the beginning of rehabilitation.[10] But our Government has allowed its citizens to decide for themselves whether to enlist in the enterprise of enforcing the criminal laws; it has never imposed a duty to do so, as the Court's opinion suggests. I find no justification for creating such a duty in this case and applying it only to persons about to be sentenced for a crime. In fact, the notion that citizens may be compelled to become informers is contrary to my understanding of the fundamental nature of our criminal law. Some legal systems have been premised on the obligation of an accused to answer all questions put to him. In other societies law-abiding behavior is encouraged by penalizing citizens who fail to spy on their neighbors or report infractions. Our country, thankfully, has never chosen that path. As highly as we value the directives *572 of our criminal laws, we place their enforcement in the hands of public officers, and we do not give those officers the authority to impress the citizenry into the prosecutorial enterprise. By today's decision, the Court ignores this precept, and it does so in a setting that both threatens Fifth Amendment rights and encourages arbitrary and irrational sentencing.

Justice Burger

dissenting

Wallace v. Jaffree

https://www.courtlistener.com/opinion/111464/wallace-v-jaffree/

https://www.courtlistener.com/api/rest/v3/clusters/111464/

1984-115

Some who trouble to read the opinions in these cases will find it ironic — perhaps even bizarre — that on the very day we heard arguments in the cases, the Court's session opened with an invocation for Divine protection. Across the park a few hundred yards away, the House of Representatives and *85 the Senate regularly open each session with a prayer. These legislative prayers are not just one minute in duration, but are extended, thoughtful invocations and prayers for Divine guidance. They are given, as they have been since 1789, by clergy appointed as official chaplains and paid from the Treasury of the United States. Congress has also provided chapels in the Capitol, at public expense, where Members and others may pause for prayer, meditation — or a moment of silence. Inevitably some wag is bound to say that the Court's holding today reflects a belief that the historic practice of the Congress and this Court is justified because members of the Judiciary and Congress are more in need of Divine guidance than are schoolchildren. Still others will say that all this controversy is "much ado about nothing," since no power on earth — including this Court and Congress — can stop any teacher from opening the schoolday with a moment of silence for pupils to meditate, to plan their day — or to pray if they voluntarily elect to do so. I make several points about today's curious holding. (a) It makes no sense to say that Alabama has "endorsed prayer" by merely enacting a new statute "to specify expressly that voluntary prayer is one of the authorized activities during a moment of silence," ante, at 77 (O'CONNOR, J., concurring in judgment) (emphasis added). To suggest that a moment-of-silence statute that includes the word "prayer" unconstitutionally endorses religion, while one that simply provides for a moment of silence does not, manifests not neutrality but hostility toward religion. For decades our opinions have stated that hostility toward any religion or toward all religions is as much forbidden by the Constitution as is an official establishment of religion. The Alabama Legislature has no more "endorsed" religion than a state or the Congress does when it provides for legislative chaplains, or than this Court does when it opens each session with an invocation to *86 God. Today's decision recalls the observations of Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive dedication to the secular and a passive, or even active, hostility to the religious. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it." Abington School District v. Schempp, 374 U.S. 203, 306 (1963) (concurring opinion). (b) The inexplicable aspect of the foregoing opinions, however, is what they advance as support for the holding concerning the purpose of the Alabama Legislature. Rather than determining legislative purpose from the face of the statute as a whole,[1] the opinions rely on three factors in concluding that the Alabama Legislature had a "wholly religious" purpose for enacting the statute under review, Ala. Code § 16-1-20.1 (Supp. 1984): (i) statements of the statute's sponsor, (ii) admissions in Governor James' answer to the second amended complaint, and (iii) the difference between § 16-1-20.1 and its predecessor statute. Curiously, the opinions do not mention that all of the sponsor's statements relied upon — including the statement "inserted" into the Senate Journal — were made after the legislature had passed the statute; indeed, the testimony that the Court finds critical was given well over a year after the statute was enacted. As even the appellees concede, see Brief for Appellees 18, there is not a shred of evidence that *87 the legislature as a whole shared the sponsor's motive or that a majority in either house was even aware of the sponsor's view of the bill when it was passed. The sole relevance of the sponsor's statements, therefore, is that they reflect the personal, subjective motives of a single legislator. No case in the 195-year history of this Court supports the disconcerting idea that postenactment statements by individual legislators are relevant in determining the constitutionality of legislation. Even if an individual legislator's after-the-fact statements could rationally be considered relevant, all of the opinions fail to mention that the sponsor also testified that one of his purposes in drafting and sponsoring the moment-of-silence bill was to clear up a widespread misunderstanding that a schoolchild is legally prohibited from engaging in silent, individual prayer once he steps inside a public school building. See App. 53-54. That testimony is at least as important as the statements the Court relies upon, and surely that testimony manifests a permissible purpose. The Court also relies on the admissions of Governor James' answer to the second amended complaint. Strangely, however, the Court neglects to mention that there was no trial bearing on the constitutionality of the Alabama statutes; trial became unnecessary when the District Court held that the Establishment Clause does not apply to the states.[2] The absence of a trial on the issue of the constitutionality of § 16-1-20.1 is significant because the answer filed by the State Board and Superintendent of Education did not make the same admissions that the Governor's answer made. See 1 Record 187. The Court cannot know whether, if these cases had been tried, those state officials would have offered evidence to contravene appellees' allegations concerning legislative purpose. Thus, it is completely inappropriate to accord any relevance to the admissions in the Governor's answer. *88 The several preceding opinions conclude that the principal difference between § 16-1-20.1 and its predecessor statute proves that the sole purpose behind the inclusion of the phrase "or voluntary prayer" in § 16-1-20.1 was to endorse and promote prayer. This reasoning is simply a subtle way of focusing exclusively on the religious component of the statute rather than examining the statute as a whole. Such logic — if it can be called that — would lead the Court to hold, for example, that a state may enact a statute that provides reimbursement for bus transportation to the parents of all schoolchildren, but may not add parents of parochial school students to an existing program providing reimbursement for parents of public school students. Congress amended the statutory Pledge of Allegiance 31 years ago to add the words "under God." Act of June 14, 1954, Pub. L. 396, 68 Stat. 249. Do the several opinions in support of the judgment today render the Pledge unconstitutional? That would be the consequence of their method of focusing on the difference between § 16-1-20.1 and its predecessor statute rather than examining § 16-1-20.1 as a whole.[3] Any such holding would of course make a mockery of our decisionmaking in Establishment Clause cases. And even were the Court's method correct, the inclusion of the words "or voluntary prayer" in § 16-1-20.1 is wholly consistent with the clearly permissible purpose of clarifying that silent, voluntary prayer is not forbidden in the public school building.[4] *89 (c) The Court's extended treatment of the "test" of Lemon v. Kurtzman, 403 U.S. 602 (1971), suggests a naive preoccupation with an easy, bright-line approach for addressing constitutional issues. We have repeatedly cautioned that Lemon did not establish a rigid caliper capable of resolving every Establishment Clause issue, but that it sought only to provide "signposts." "In each [Establishment Clause] case, the inquiry calls for line-drawing; no fixed, per se rule can be framed." Lynch v. Donnelly, 465 U.S. 668, 678 (1984). In any event, our responsibility is not to apply tidy formulas by rote; our duty is to determine whether the statute or practice at issue is a step toward establishing a state religion. Given today's decision, however, perhaps it is understandable that the opinions in support of the judgment all but ignore the Establishment Clause itself and the concerns that underlie it. (d) The notion that the Alabama statute is a step toward creating an established church borders on, if it does not trespass into, the ridiculous. The statute does not remotely threaten religious liberty; it affirmatively furthers the values of religious freedom and tolerance that the Establishment Clause was designed to protect. Without pressuring those who do not wish to pray, the statute simply creates an opportunity to think, to plan, or to pray if one wishes — as Congress does by providing chaplains and chapels. It accommodates the purely private, voluntary religious choices of the individual pupils who wish to pray while at the same time creating a time for nonreligious reflection for those who do not choose to pray. The statute also provides a meaningful opportunity for schoolchildren to appreciate the absolute constitutional right of each individual to worship and believe as the individual wishes. The statute "endorses" only the view that the religious observances of other should be tolerated and, *90A where possible, accommodated. If the government may not accommodate religious needs when it does so in a wholly neutral and noncoercive manner, the "benevolent neutrality" that we have long considered the correct constitutional standard will quickly translate into the "callous indifference" that the Court has consistently held the Establishment Clause does not require. The Court today has ignored the wise admonition of Justice Goldberg that "the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow." Abington School District v. Schempp, 374 U. S., at 308 (concurring opinion). The innocuous statute that the Court strikes down does not even rise to the level of "mere shadow." JUSTICE O'CONNOR paradoxically acknowledges: "It is difficult to discern a serious threat to religious liberty from a room of silent, thoughtful schoolchildren." Ante, at 73.[5] I would add to that, "even if they choose to pray." The mountains have labored and brought forth a mouse.[

Some who trouble to read the opinions in these cases will find it ironic — perhaps even bizarre — that on the very day we heard arguments in the cases, the Court's session opened with an invocation for Divine protection. Across the park a few hundred yards away, the House of Representatives and *85 the Senate regularly open each session with a prayer. These legislative prayers are not just one minute in duration, but are extended, thoughtful invocations and prayers for Divine guidance. They are given, as they have been since 1789, by clergy appointed as official chaplains and paid from the Treasury of the United States. Congress has also provided chapels in the Capitol, at public expense, where Members and others may pause for prayer, meditation — or a moment of silence. Inevitably some wag is bound to say that the Court's holding today reflects a belief that the historic practice of the Congress and this Court is justified because members of the Judiciary and Congress are more in need of Divine guidance than are schoolchildren. Still others will say that all this controversy is "much ado about nothing," since no power on earth — including this Court and Congress — can stop any teacher from opening the schoolday with a moment of silence for pupils to meditate, to plan their day — or to pray if they voluntarily elect to do so. I make several points about today's curious holding. (a) It makes no sense to say that Alabama has "endorsed prayer" by merely enacting a new statute "to specify expressly that voluntary prayer is one of the authorized activities during a moment of silence," ante, at 77 (O'CONNOR, J., concurring in judgment) (emphasis added). To suggest that a moment-of-silence statute that includes the word "prayer" unconstitutionally endorses religion, while one that simply provides for a moment of silence does not, manifests not neutrality but hostility toward religion. For decades our opinions have stated that hostility toward any religion or toward all religions is as much forbidden by the Constitution as is an official establishment of religion. The Alabama Legislature has no more "endorsed" religion than a state or the Congress does when it provides for legislative chaplains, or than this Court does when it opens each session with an invocation to *86 God. Today's decision recalls the observations of Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive dedication to the secular and a passive, or even active, hostility to the religious. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it." Abington School (b) The inexplicable aspect of the foregoing opinions, however, is what they advance as support for the holding concerning the purpose of the Alabama Legislature. Rather than determining legislative purpose from the face of the statute as a whole,[1] the opinions rely on three factors in concluding that the Alabama Legislature had a "wholly religious" purpose for enacting the statute under review, : (i) statements of the statute's sponsor, (ii) admissions in Governor James' answer to the second amended complaint, and (iii) the difference between 16-1-20.1 and its predecessor statute. Curiously, the opinions do not mention that all of the sponsor's statements relied upon — including the statement "inserted" into the Senate Journal — were made after the legislature had passed the statute; indeed, the testimony that the Court finds critical was given well over a year after the statute was enacted. As even the appellees concede, see Brief for Appellees 18, there is not a shred of evidence that *87 the legislature as a whole shared the sponsor's motive or that a majority in either house was even aware of the sponsor's view of the bill when it was passed. The sole relevance of the sponsor's statements, therefore, is that they reflect the personal, subjective motives of a single legislator. No case in the 195-year history of this Court supports the disconcerting idea that postenactment statements by individual legislators are relevant in determining the constitutionality of legislation. Even if an individual legislator's after-the-fact statements could rationally be considered relevant, all of the opinions fail to mention that the sponsor also testified that one of his purposes in drafting and sponsoring the moment-of-silence bill was to clear up a widespread misunderstanding that a schoolchild is legally prohibited from engaging in silent, individual prayer once he steps inside a public school building. See App. 53-54. That testimony is at least as important as the statements the Court relies upon, and surely that testimony manifests a permissible purpose. The Court also relies on the admissions of Governor James' answer to the second amended complaint. Strangely, however, the Court neglects to mention that there was no trial bearing on the constitutionality of the Alabama statutes; trial became unnecessary when the District Court held that the Establishment Clause does not apply to the states.[2] The absence of a trial on the issue of the constitutionality of 16-1-20.1 is significant because the answer filed by the State Board and Superintendent of Education did not make the same admissions that the Governor's answer made. See 1 Record 187. The Court cannot know whether, if these cases had been tried, those state officials would have offered evidence to contravene appellees' allegations concerning legislative purpose. Thus, it is completely inappropriate to accord any relevance to the admissions in the Governor's answer. *88 The several preceding opinions conclude that the principal difference between 16-1-20.1 and its predecessor statute proves that the sole purpose behind the inclusion of the phrase "or voluntary prayer" in 16-1-20.1 was to endorse and promote prayer. This reasoning is simply a subtle way of focusing exclusively on the religious component of the statute rather than examining the statute as a whole. Such logic — if it can be called that — would lead the Court to hold, for example, that a state may enact a statute that provides reimbursement for bus transportation to the parents of all schoolchildren, but may not add parents of parochial school students to an existing program providing reimbursement for parents of public school students. Congress amended the statutory Pledge of Allegiance 31 years ago to add the words "under God." Act of June 14, 1954, Pub. L. 396, Do the several opinions in support of the judgment today render the Pledge unconstitutional? That would be the consequence of their method of focusing on the difference between 16-1-20.1 and its predecessor statute rather than examining 16-1-20.1 as a whole.[3] Any such holding would of course make a mockery of our decisionmaking in Establishment Clause cases. And even were the Court's method correct, the inclusion of the words "or voluntary prayer" in 16-1-20.1 is wholly consistent with the clearly permissible purpose of clarifying that silent, voluntary prayer is not forbidden in the public school building.[4] *89 (c) The Court's extended treatment of the "test" of suggests a naive preoccupation with an easy, bright-line approach for addressing constitutional issues. We have repeatedly cautioned that Lemon did not establish a rigid caliper capable of resolving every Establishment Clause issue, but that it sought only to provide "signposts." "In each [Establishment Clause] case, the inquiry calls for line-drawing; no fixed, per se rule can be framed." In any event, our responsibility is not to apply tidy formulas by rote; our duty is to determine whether the statute or practice at issue is a step toward establishing a state religion. Given today's decision, however, perhaps it is understandable that the opinions in support of the judgment all but ignore the Establishment Clause itself and the concerns that underlie it. (d) The notion that the Alabama statute is a step toward creating an established church borders on, if it does not trespass into, the ridiculous. The statute does not remotely threaten religious liberty; it affirmatively furthers the values of religious freedom and tolerance that the Establishment Clause was designed to protect. Without pressuring those who do not wish to pray, the statute simply creates an opportunity to think, to plan, or to pray if one wishes — as Congress does by providing chaplains and chapels. It accommodates the purely private, voluntary religious choices of the individual pupils who wish to pray while at the same time creating a time for nonreligious reflection for those who do not choose to pray. The statute also provides a meaningful opportunity for schoolchildren to appreciate the absolute constitutional right of each individual to worship and believe as the individual wishes. The statute "endorses" only the view that the religious observances of other should be tolerated and, *90A where possible, accommodated. If the government may not accommodate religious needs when it does so in a wholly neutral and noncoercive manner, the "benevolent neutrality" that we have long considered the correct constitutional standard will quickly translate into the "callous indifference" that the Court has consistently held the Establishment Clause does not require. The Court today has ignored the wise admonition of Justice Goldberg that "the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow." Abington School The innocuous statute that the Court strikes down does not even rise to the level of "mere shadow." JUSTICE O'CONNOR paradoxically acknowledges: "It is difficult to discern a serious threat to religious liberty from a room of silent, thoughtful schoolchildren." Ante, at 73.[5] I would add to that, "even if they choose to pray." The mountains have labored and brought forth a mouse.[

Justice Powell

dissenting

Watt v. Western Nuclear, Inc.

https://www.courtlistener.com/opinion/110951/watt-v-western-nuclear-inc/

https://www.courtlistener.com/api/rest/v3/clusters/110951/

1982-096

The Court's opinion may have a far-reaching effect on patentees of, and particularly successors in title to, the 33 million acres of land patented under the Stock-Raising Homestead Act of 1916 (SRHA). The Act provides, with respect to land patented, that the United States reserves title to "all the coal and other minerals." 43 U.S. C. § 299. At issue here is whether gravel is a mineral within the meaning of the Act. To decide this question, the Court adopts a new definition of the statutory term: "[T]he Act [includes] substances that are mineral in character (i. e., that are inorganic), that can be removed from the soil, that can be used for commercial purposes, and that there is no reason to suppose were intended to be included in the surface estate." Ante, at 53. *61 This definition compounds, rather than clarifies, the ambiguity inherent in the term "minerals."[1] It raises more questions than it answers. Under the Court's definition, it is arguable that all gravel falls within the mineral reservation. Ante, at 53-55, and n. 14, 59. This goes beyond the Government's position that gravel deposits become reserved only when susceptible to commercial exploitation. See Tr. of Oral Arg. 18-20.[2] And what about sand, clay, and peat?[3]*62 As I read the Court's opinion it could leave Western homesteaders with the dubious assurance that only the dirt itself could not be claimed by the Government. It is not easy to believe that Congress intended this result. I In construing a congressional Act, the relevant intent of Congress is that existing at the time the statute was enacted. See Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 611, and n. 8 (1978); Winona & St. Peter R. Co. v. Barney, 113 U.S. 618, 625 (1885). The Court avoids this rule of construction by largely ignoring the stated position of the Department of the Interior before 1916 that gravel — like sand and clay — was not a mineral. In 1916, when the SRHA was enacted, the Department of the Interior's rule for what it considered to be a "valuable mineral deposit" as those terms are used under the general mining laws[4] was clear: "[W]hatever is recognized as a mineral by the standard authorities on the subject, whether of metallic or other substances, when the same is found in the public lands in quantity and quality sufficient to render the *63 land more valuable on account thereof than for agricultural purposes, should be treated as coming within the purview of the mining laws." Pacific Coast Marble Co. v. Northern Pacific R. Co., 25 Lans. Ch. D. 233, 244-245 (1897). See Letter from Commissioner Drummond to Surveyors-General, Registers, and Receivers (July 15, 1873) (reprinted in H. Copp, Mineral Lands 61, 62 (1881)). It is important to note that the Department's test had two parts. First, before a substance would cause the Department to characterize land as mineral, it had to be recognized as a mineral by the standard authorities on the subject. See n. 1, supra. Second, the mineral had to appear in sufficient quantity and quality to be commercially exploitable.[5] Under the Department of the Interior's earliest decisions, certain commonplace substances were classified as minerals. See W. H. Hooper, 1 Lans. Ch. D. 560, 561 (1881) (gypsum); H. P. Bennet, Jr., 3 Lans. Ch. D. 116, 117 (1884) (permitting placer claims for building stone). But the Department soon began to recognize a small group of substances, that were valuable for certain purposes, as not being "minerals" "under all authorities." In Dunluce Placer Mine, 6 Lans. Ch. D. 761, 762 (1888), the Secretary held that a deposit of "brick clay" would not warrant classification as a valuable mineral deposit. The Secretary so held despite a finding that the land on which the deposit was found was "undoubtedly more valuable as a `clay placer' than for any other purpose." Id., at 761. The Department followed Dunluce in a number of subsequent cases.[6] An important case under the general mining *64 laws for our purposes in Zimmerman v. Brunson, 39 Lans. Ch. D. 310 (1910). It involved sand and gravel, and was decided four years before Congress began consideration of the SRHA. After quoting the rule in Pacific Coast Marble, the Secretary stated: "A search of the standard American authorities has failed to disclose a single one which classifies a deposit such as claimed in this case as mineral, nor is the Department aware of any application to purchase such a deposit under the mining laws. This, taken into consideration with the further fact that deposits of sand and gravel occur with considerable frequency in the public domain, points rather to a general understanding that such deposits, unless they possess a peculiar property or characteristic giving them a special value, were not to be regarded as mineral." 39 Lans. Ch. D., at 312. The Secretary then reviewed the Department's cases on clay and stone,[7] concluding: *65 "From the above resume it follows that the Department, in the absence of specific legislation by Congress, will refuse to classify as mineral land containing a deposit of material not recognized by standard authorities as such, whose sole use is for general building purposes, and whose chief value is its proximity to a town or city, in contradistinction to numerous other like deposits of the same character in the public domain. Id., at 313. The Secretary concluded that gravel was such a material, and this clearly remained the Department's position until 1929. The Zimmerman decision was recognized by Department officials in Litch v. Scott, 40 Lans. Ch. D. 467, 469 (1912), as foreclosing "the question as to the mineral character of the land," even though "it [did] not appear that the [claimant's] removal of the sand or gravel had any connection with the cultivation of the land and it was removed solely for the purpose of sale." And in Hughes v. Florida, 42 Lans. Ch. D. 401 (1913), First Assistant Secretary Andreius A. Jones wrote: "The Department does not concur with the contention that this deposit [of shell rock] is a mineral within the meaning of the general mining laws. It presents features greatly similar to the deposits of sand and gravel considered in the case of Zimmerman v. Brunson. . . ." Id., at 403-404. Thus, it was beyond question, when the SRHA was adopted in 1916, that the Department had ruled consistently that gravel was not a mineral under the general mining laws.[8] The legislative history is silent on exactly how Congress *66 defined "mineral," but it is equally clear that the Department participated actively in drafting the SRHA and in advising Congress.[9] In light of this record, one must conclude that Congress intended the term "minerals" in the new statute to have the meaning so recently and consistently given it by the Department in construing and applying the general mining laws.[10] As it was the agency authorized to *67 implement the SRHA, its contemporaneous construction should be persuasive as to congressional intention. This Court previously had accorded this respect to the Department of the Interior. See, e. g., Burke v. Southern Pacific R. Co., 234 U.S. 669, 677-678 (1914); Northern Pacific R. Co. v. Soderberg, 188 U.S. 526, 534 (1903). II Despite the absence of "specific legislation by Congress," the Department in Layman v. Ellis, 52 Lans. Ch. D. 714 (1929), which did not involve SRHA lands, overruled Zimmerman 13 years after the enactment of the SRHA.[11] See 52 Lans. Ch. D., at *68 721. As a result, individuals began staking mining claims on public land containing gravel deposits to obtain land patents, not for "mineral" value, but for such purposes as fishing camps and cabin sites. See H. R. Rep. No. 730, 84th Cong., 1st Sess., 5-6 (1955). Legislation in 1955 clarified the confusion that the Department's decisions had created.[12] Ultimately, *69 sand and gravel were once again removed from the coverage of the general mining laws;[13] Congress reaffirmed the Zimmerman rule that common gravel is not a mineral under the general mining laws;[14] and Layman was legislatively overruled.[15] *70 It is clear then that Congress never has, as the Court holds, considered all gravel to be a valuable mineral.[16] And I see no basis for inferring congressional intent to classify gravel, contrary to all lay understanding, as mineral.[17] *71 III Congressional interest in stockraising and mineral development was subordinate to the ultimate congressional purpose of settling the West. See H. R. Rep. No. 35, 64th Cong., 1st Sess., 14 (1916); H. R. Rep. No. 626, 63d Cong., 2d Sess., 10-11 (1914); n. 2, supra. More than cattle and more than minerals, it was the belief of Congress that "the Nation as a unit needs more States like, for instance, Kansas and Iowa, where each citizen is the sovereign of a portion of the soil, the owner of his home and not tenant of some (perhaps) distant landlord, a builder of schools and churches, a voluntary payer of taxes for the support of his local government." H. R. Rep. No. 626, supra, at 11 (emphasis added). In recommending "citizen sovereignty" of the soil,[18] Congress surely did not intend to destroy that sovereignty by reserving *72 the commonplace substances that actually constitute much of that soil.[19] The first attempt by the Department of the Interior to acquire ownership of gravel on SRHA lands did not occur until this case began in 1975. One would think it is now too late, after a half-century of inaction, for the Department to take action that raises serious questions as to the nature and extent of titles to lands granted under the SRHA.[20] Owners of patented land are entitled to expect fairer treatment from their Government. In my view, the Department should be required to adhere to the clear intent of Congress at the time this legislation was adopted. I would affirm the judgment of the Court of Appeals.

The Court's opinion may have a far-reaching effect on patentees of, and particularly successors in title to, the 33 million acres of land patented under the Stock-Raising Homestead Act of 96 (SRHA). The Act provides, with respect to land patented, that the United States reserves title to "all the coal and other minerals." 43 U.S. C. 99. At issue here is whether gravel is a mineral within the meaning of the Act. To decide this question, the Court adopts a new definition of the statutory term: "[T]he Act [includes] substances that are mineral in character (i. e., that are inorganic), that can be removed from the soil, that can be used for commercial purposes, and that there is no reason to suppose were intended to be included in the surface estate." Ante, at 53. *6 This definition compounds, rather than clarifies, the ambiguity inherent in the term "minerals."[] It raises more questions than it answers. Under the Court's definition, it is arguable that all gravel falls within the mineral reservation. Ante, at 53-55, and n. 4, 59. This goes beyond the Government's position that gravel deposits become reserved only when susceptible to commercial exploitation. See Tr. of Oral Arg. 8-0.[] And what about sand, clay, and peat?[3]*6 As I read the Court's opinion it could leave Western homesteaders with the dubious assurance that only the dirt itself could not be claimed by the Government. It is not easy to believe that Congress intended this result. I In construing a congressional Act, the relevant intent of Congress is that existing at the time the statute was enacted. See ; Winona & St. Peter R. The Court avoids this rule of construction by largely ignoring the stated position of the Department of the Interior before 96 that gravel — like sand and clay — was not a mineral. In 96, when the SRHA was enacted, the Department of the Interior's rule for what it considered to be a "valuable mineral deposit" as those terms are used under the general mining laws[4] was clear: "[W]hatever is recognized as a mineral by the standard authorities on the subject, whether of metallic or other substances, when the same is found in the public lands in quantity and quality sufficient to render the *63 land more valuable on account thereof than for agricultural purposes, should be treated as coming within the purview of the mining laws." Pacific Coast Marble Co. v. Northern Pacific R. Co., 5 Lans. Ch. D. 33, 44-45 (897). See Letter from Commissioner Drummond to Surveyors-General, Registers, and Receivers (July 5, 873) (reprinted in H. Copp, Mineral Lands 6, 6 (88)). It is important to note that the Department's test had two parts. First, before a substance would cause the Department to characterize land as mineral, it had to be recognized as a mineral by the standard authorities on the subject. See n. Second, the mineral had to appear in sufficient quantity and quality to be commercially exploitable.[5] Under the Department of the Interior's earliest decisions, certain commonplace substances were classified as minerals. See W. H. Hooper, Lans. Ch. D. 560, 56 (88) (gypsum); H. P. Bennet, Jr., 3 Lans. Ch. D. 6, 7 (884) (permitting placer claims for building stone). But the Department soon began to recognize a small group of substances, that were valuable for certain purposes, as not being "minerals" "under all authorities." In Dunluce Placer Mine, 6 Lans. Ch. D. 76, 76 (888), the Secretary held that a deposit of "brick clay" would not warrant classification as a valuable mineral deposit. The Secretary so held despite a finding that the land on which the deposit was found was "undoubtedly more valuable as a `clay placer' than for any other purpose." at 76. The Department followed Dunluce in a number of subsequent cases.[6] An important case under the general mining *64 laws for our purposes in Zimmerman v. Brunson, 39 Lans. Ch. D. 30 (90). It involved sand and gravel, and was decided four years before Congress began consideration of the SRHA. After quoting the rule in Pacific Coast Marble, the Secretary stated: "A search of the standard American authorities has failed to disclose a single one which classifies a deposit such as claimed in this case as mineral, nor is the Department aware of any application to purchase such a deposit under the mining laws. This, taken into consideration with the further fact that deposits of sand and gravel occur with considerable frequency in the public domain, points rather to a general understanding that such deposits, unless they possess a peculiar property or characteristic giving them a special value, were not to be regarded as mineral." 39 Lans. Ch. D., at 3. The Secretary then reviewed the Department's cases on clay and stone,[7] concluding: *65 "From the above resume it follows that the Department, in the absence of specific legislation by Congress, will refuse to classify as mineral land containing a deposit of material not recognized by standard authorities as such, whose sole use is for general building purposes, and whose chief value is its proximity to a town or city, in contradistinction to numerous other like deposits of the same character in the public domain. at 33. The Secretary concluded that gravel was such a material, and this clearly remained the Department's position until 99. The Zimmerman decision was recognized by Department officials in Litch v. Scott, 40 Lans. Ch. D. 467, 469 (9), as foreclosing "the question as to the mineral character of the land," even though "it [did] not appear that the [claimant's] removal of the sand or gravel had any connection with the cultivation of the land and it was removed solely for the purpose of sale." And in Hughes v. Florida, 4 Lans. Ch. D. 40 (93), First Assistant Secretary Andreius A. Jones wrote: "The Department does not concur with the contention that this deposit [of shell rock] is a mineral within the meaning of the general mining laws. It presents features greatly similar to the deposits of sand and gravel considered in the case of Zimmerman v. Brunson." Thus, it was beyond question, when the SRHA was adopted in 96, that the Department had ruled consistently that gravel was not a mineral under the general mining laws.[8] The legislative history is silent on exactly how Congress *66 defined "mineral," but it is equally clear that the Department participated actively in drafting the SRHA and in advising Congress.[9] In light of this record, one must conclude that Congress intended the term "minerals" in the new statute to have the meaning so recently and consistently given it by the Department in construing and applying the general mining laws.[0] As it was the agency authorized to *67 implement the SRHA, its contemporaneous construction should be persuasive as to congressional intention. This Court previously had accorded this respect to the Department of the Interior. See, e. g., (94); Northern Pacific R. 88 U.S. 56, (903). II Despite the absence of "specific legislation by Congress," the Department in Layman v. Ellis, 5 Lans. Ch. D. 74 (99), which did not involve SRHA lands, overruled Zimmerman 3 years after the enactment of the SRHA.[] See 5 Lans. Ch. D., at *68 7. As a result, individuals began staking mining claims on public land containing gravel deposits to obtain land patents, not for "mineral" value, but for such purposes as fishing camps and cabin sites. See H. R. Rep. No. 730, 84th Cong., st Sess., 5-6 (955). Legislation in 955 clarified the confusion that the Department's decisions had created.[] Ultimately, *69 sand and gravel were once again removed from the coverage of the general mining laws;[3] Congress reaffirmed the Zimmerman rule that common gravel is not a mineral under the general mining laws;[4] and Layman was legislatively overruled.[5] *70 It is clear then that Congress never has, as the Court holds, considered all gravel to be a valuable mineral.[6] And I see no basis for inferring congressional intent to classify gravel, contrary to all lay understanding, as mineral.[7] *7 III Congressional interest in stockraising and mineral development was subordinate to the ultimate congressional purpose of settling the West. See H. R. Rep. No. 35, 64th Cong., st Sess., 4 (96); H. R. Rep. No. 66, 63d Cong., d Sess., 0- (94); n. More than cattle and more than minerals, it was the belief of Congress that "the Nation as a unit needs more States like, for instance, Kansas and Iowa, where each citizen is the sovereign of a portion of the soil, the owner of his home and not tenant of some (perhaps) distant landlord, a builder of schools and churches, a voluntary payer of taxes for the support of his local government." H. R. Rep. No. 66, at In recommending "citizen sovereignty" of the soil,[8] Congress surely did not intend to destroy that sovereignty by reserving *7 the commonplace substances that actually constitute much of that soil.[9] The first attempt by the Department of the Interior to acquire ownership of gravel on SRHA lands did not occur until this case began in 975. One would think it is now too late, after a half-century of inaction, for the Department to take action that raises serious questions as to the nature and extent of titles to lands granted under the SRHA.[0] Owners of patented land are entitled to expect fairer treatment from their Government. In my view, the Department should be required to adhere to the clear intent of Congress at the time this legislation was adopted. I would affirm the judgment of the Court of Appeals.

Justice Marshall

dissenting

Fuller v. Oregon

https://www.courtlistener.com/opinion/109043/fuller-v-oregon/

https://www.courtlistener.com/api/rest/v3/clusters/109043/

1973-115

In my view, the Oregon recoupment statute at issue in this case discriminates against indigent defendants in violation of the Equal Protection Clause and the principles established by this Court in James v. Strange, 407 U.S. 128 (1972). In that case we held unconstitutional under the Equal Protection Clause a Kansas recoupment statute because it failed to provide equal treatment between indigent defendants and other civil judgment debtors. We relied on the fact that indigent defendants were not entitled to the protective exemptions Kansas had erected for other civil judgment debtors. The Oregon recoupment statute at issue here similarly provides unequal treatment between indigent defendants *60 and other civil judgment debtors. The majority obfuscates the issue in this case by focusing solely on the question whether the Oregon statute affords an indigent defendant the same protective exemptions provided other civil debtors. True, as construed by the Oregon Court of Appeals, the statute does not discriminate in this regard. But the treatment it affords indigent defendants remains unequal in another, even more fundamental, respect. The important fact which the majority ignores is that under Oregon law, the repayment of the indigent defendant's debt to the State can be made a condition of his probation, as it was in this case. Petitioner's failure to pay his debt can result in his being sent to prison. In this respect the indigent defendant in Oregon, like the indigent defendant in James v. Strange, is treated quite differently from other civil judgment debtors. Petitioner's "predicament under this statute comes into sharper focus when compared with that of one who has hired counsel in his defense." 407 U.S., at 136. Article 1, § 19, of the Oregon Constitution provides that "[t]here shall be no imprisonment for debt, except in case of fraud or absconding debtors." Hence, the nonindigent defendant in a criminal case in Oregon who does not pay his privately retained counsel, even after he obtains the means to do so, cannot be imprisoned for such failure. The lawyer in that instance must enforce his judgment through the normal routes available to a creditor—by attachment, lien, garnishment, or the like. Petitioner, on the other hand, faces five years behind bars if he fails to pay his "debt" arising out of the appointment of counsel. Article 1, § 19, of the Oregon Constitution is representative of a fundamental state policy consistent with the modern rejection of the practice of imprisonment for debt as unnecessarily cruel and essentially counterproductive. *61 Since Oregon chooses not to provide imprisonment for debt for well-heeled defendants who do not pay their retained counsel, I do not believe it can, consistent with the Equal Protection Clause, imprison an indigent defendant for his failure to pay the costs of his appointed counsel.[1] For as we held in James v. Strange, a State may not "impose unduly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor." 407 U.S., at 138. I would therefore hold the Oregon recoupment statute unconstitutional under the Equal Protection Clause insofar as it permits payment of the indigent defendant's debt to be made a condition of his probation.[2] I respectfully dissent.

In my view, the Oregon recoupment statute at issue in this case discriminates against indigent defendants in violation of the Equal Protection Clause and the principles established by this Court in In that case we held unconstitutional under the Equal Protection Clause a Kansas recoupment statute because it failed to provide equal treatment between indigent defendants and other civil judgment debtors. We relied on the fact that indigent defendants were not entitled to the protective exemptions Kansas had erected for other civil judgment debtors. The Oregon recoupment statute at issue here similarly provides unequal treatment between indigent defendants *60 and other civil judgment debtors. The majority obfuscates the issue in this case by focusing solely on the question whether the Oregon statute affords an indigent defendant the same protective exemptions provided other civil debtors. True, as construed by the Oregon Court of Appeals, the statute does not discriminate in this regard. But the treatment it affords indigent defendants remains unequal in another, even more fundamental, respect. The important fact which the majority ignores is that under Oregon law, the repayment of the indigent defendant's debt to the State can be made a condition of his probation, as it was in this case. Petitioner's failure to pay his debt can result in his being sent to prison. In this respect the indigent defendant in Oregon, like the indigent defendant in is treated quite differently from other civil judgment debtors. Petitioner's "predicament under this statute comes into sharper focus when compared with that of one who has hired counsel in his defense." Article 1, 19, of the Oregon Constitution provides that "[t]here shall be no imprisonment for debt, except in case of fraud or absconding debtors." Hence, the nonindigent defendant in a criminal case in Oregon who does not pay his privately retained counsel, even after he obtains the means to do so, cannot be imprisoned for such failure. The lawyer in that instance must enforce his judgment through the normal routes available to a creditor—by attachment, lien, garnishment, or the like. Petitioner, on the other hand, faces five years behind bars if he fails to pay his "debt" arising out of the appointment of counsel. Article 1, 19, of the Oregon Constitution is representative of a fundamental state policy consistent with the modern rejection of the practice of imprisonment for debt as unnecessarily cruel and essentially counterproductive. *61 Since Oregon chooses not to provide imprisonment for debt for well-heeled defendants who do not pay their retained counsel, I do not believe it can, consistent with the Equal Protection Clause, imprison an indigent defendant for his failure to pay the costs of his appointed counsel.[1] For as we held in a State may not "impose unduly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor." I would therefore hold the Oregon recoupment statute unconstitutional under the Equal Protection Clause insofar as it permits payment of the indigent defendant's debt to be made a condition of his probation.[2] I respectfully dissent.

Justice Rehnquist

majority

Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.

https://www.courtlistener.com/opinion/108745/salyer-land-co-v-tulare-lake-basin-water-storage-dist/

https://www.courtlistener.com/api/rest/v3/clusters/108745/

1972-080

This is another in the line of cases in which the Court has had occasion to consider the limits imposed by the Equal Protection Clause of the Fourteenth Amendment on legislation apportioning representation in state and local governing bodies and establishing qualifications for voters in the election of such representatives. Reynolds v. Sims, 377 U.S. 533 (1964), enunciated the constitutional standard for apportionment of state legislatures. Later cases such as Avery v. Midland County, 390 U.S. 474 (1968), and Hadley v. Junior College District, 397 U.S. 50 (1970), extended the Reynolds rule to the governing bodies of a county and of a junior college district, respectively. We are here presented with the issue expressly reserved in Avery, supra: "Were the [county's governing body] a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents *721 more than other constituents, we would have to confront the question whether such a body may be apportioned in ways which give greater influence to the citizens most affected by the organization's functions." 390 U.S., at 483-484. The particular type of local government unit whose organization is challenged on constitutional grounds in this case is a water storage district, organized pursuant to the California Water Storage District Act, Calif. Water Code § 39000 et seq. The peculiar problems of adequate water supplies faced by most of the western third of the Nation have been described by Mr. Justice Sutherland, who was himself intimately familiar with them, in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 156-157 (1935): "These states and territories comprised the western third of the United States—a vast empire in extent, but still sparsely settled. From a line east of the Rocky Mountains almost to the Pacific Ocean, and from the Canadian border to the boundary of Mexico —an area greater than that of the original thirteen states—the lands capable of redemption, in the main, constituted a desert, impossible of agricultural use without artificial irrigation. "In the beginning, the task of reclaiming this area was left to the unaided efforts of the people who found their way by painful effort to its inhospitable solitudes. These western pioneers, emulating the spirit of so many others who had gone before them in similar ventures, faced the difficult problem of wresting a living and creating homes from the raw elements about them, and threw down the gage of battle to the forces of nature. With imperfect tools, they built dams, excavated canals, constructed ditches, plowed and cultivated the soil, and transformed *722 dry and desolate lands into green fields and leafy orchards. . . ." Californians, in common with other residents of the West, found the State's rivers and streams in their natural state to present the familiar paradox of feast or famine. With melting snow in the high mountains in the spring, small streams became roaring freshets, and the rivers they fed carried the potential for destructive floods. But with the end of the rainy season in the early spring, farmers depended entirely upon water from such streams and rivers until the rainy season again began in the fall. Long before that time, however, rivers which ran bank full in the spring had been reduced to a bare trickle of water. It was not enough therefore, for individual farmers or groups of farmers to build irrigation canals and ditches which depended for their operation on the natural flow of these streams. Storage dams had to be constructed to impound in their reservoirs the flow of the rivers at flood stage for later release during the dry season regimen of these streams. For the construction of major dams to facilitate the storage of water for irrigation of large areas, the full resources of the State and frequently of the Federal Government were necessary.[1] But for less costly projects which would benefit a more restricted geographic area, the State was frequently either unable or unwilling to pledge its credit or its resources. The California Legislature, therefore, has authorized a number of instrumentalities, including water storage districts such as the appellee here, to provide a local response to water problems. Some history of the experience of California and the other Western States with the problems of water distribution *723 is contained in Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 151-154 (1896), in which the constitutionality of California's Wright Act was sustained against claims of denial of due process under the Fourteenth Amendment to the United States Constitution. While the irrigation district was apparently the first local governmental unit authorized to deal with water distribution, it is by no means the only one. General legislation in California authorizes the creation, not only of irrigation districts, but of water conservation districts, water storage and conservation districts, flood control districts, and water storage districts such as appellee.[2] Appellee district consists of 193,000 acres of intensively cultivated, highly fertile farm land located in the Tulare Lake Basin. Its population consists of 77 persons, including 18 children, most of whom are employees of one or another of the four corporations that farm 85% of the land in the district. Such districts are authorized to plan projects and execute approved projects "for the acquisition, appropriation, diversion, storage, conservation, and distribution of water . . . ." Calif. Water Code § 42200 et seq.[3] Incidental to this general power, districts may "acquire, improve, and operate" any necessary works for the storage *724 and distribution of water as well as any drainage or reclamation works connected therewith, and the generation and distribution of hydroelectric power may be provided for.[4]Id., §§ 43000, 43025. They may fix tolls and charges for the use of water and collect them from all persons receiving the benefit of the water or other services in proportion to the services rendered. Id., § 43006. The costs of the projects are assessed against district land in accordance with the benefits accruing to each tract held in separate ownership. Id., §§ 46175, 46176. And land that is not benefited may be withdrawn from the district on petition. Id., § 48029. Governance of the districts is undertaken by a board of directors. Id., § 40658. Each director is elected from one of the divisions within the district, id., § 39929, and each must take an official oath and execute a bond. Id., § 40301. General elections for the directors are to be held in odd-numbered years. Id., §§ 39027, 41300 et seq. It is the voter qualification for such elections that appellants claim invidiously discriminates against them and persons similarly situated. Appellants are landowners, a landowner-lessee, and residents within the area included in the appellee's water storage district. They brought this action under 42 U.S. C. § 1983, seeking declaratory and injunctive relief in an effort to prevent appellee from giving effect to certain provisions of the California Water Code. They allege that §§ 41000[5] and 41001[6] unconstitutionally deny to them the equal protection *725 of the laws guaranteed by the Fourteenth Amendment, in that only landowners are permitted to vote in water storage district general elections, and votes in those elections are apportioned according to the assessed valuation of the land. A three-judge court was convened pursuant to 28 U.S. C. § 2284, and the case was submitted on factual statements of the parties and briefs, without testimony or oral argument. A majority of the District Court held that both statutes comported with the dictates of the Equal Protection Clause, and appellants have appealed that judgment directly to this Court under 28 U.S. C. § 1253. In Williams v. Rhodes, 393 U.S. 23 (1968), a case in which the Ohio legislative scheme for regulating the electoral franchise was challenged, the Court said: "[T]his Court has firmly established the principle that the Equal Protection Clause does not make every minor difference in the application of laws to different groups a violation of our Constitution. But we have also held many times that `invidious' distinctions cannot be enacted without a violation of the Equal Protection Clause. In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification." Id., at 30. We therefore turn now to the determination of whether the California statutory scheme establishing water storage districts violates the Equal Protection Clause of the Fourteenth Amendment. *726 I It is first argued that § 41000, limiting the vote to district landowners, is unconstitutional since nonlandowning residents have as much interest in the operations of a district as landowners who may or may not be residents. Particularly, it is pointed out that the homes of residents may be damaged by floods within the district's boundaries, and that floods may, as with appellant Ellison, cause them to lose their jobs. Support for this position is said to come from the recent decisions of this Court striking down various state laws that limited voting to landowners, Phoenix v. Kolodziejski, 399 U.S. 204 (1970), Cipriano v. City of Houma, 395 U.S. 701 (1969), and Kramer v. Union School District, 395 U.S. 621 (1969). In Kramer, the Court was confronted with a voter qualification statute for school district elections that limited the vote to otherwise qualified district residents who were either (1) the owners or lessees of taxable real property located within the district, (2) spouses of persons owning qualifying property, or (3) parents or guardians of children enrolled for a specified time during the preceding year in a local district school. Without reaching the issue of whether or not a State may in some circumstances limit the exercise of the franchise to those primarily interested or primarily affected by a given governmental unit, it was held that the above classifications did not meet that state-articulated goal since they excluded many persons who had distinct and direct interests in school meeting decisions and included many persons who had, at best, remote and indirect interests. Id., at 632-633. Similarly, in Cipriano v. City of Houma, supra, decided the same day, provisions of Louisiana law which gave only property taxpayers the right to vote in elections *727 called to approve the issuance of revenue bonds by a municipal utility were declared violative of the Equal Protection Clause since the operation of the utility systems affected virtually every resident of the city, not just the 40% of the registered voters who were also property taxpayers, and since the bonds were not in any And the rationale of Cipriano was expanded to include general obligation bonds of municipalities in Phoenix v. Kolodziejski, supra. It was there noted that not only did those persons excluded from voting have a great interest in approving or disapproving municipal improvements, but they also contributed both directly through local taxes and indirectly through increased rents and costs to the servicing of the bonds. 399 U.S., at 210-211. Cipriano and Phoenix involved application of the "one person, one vote" principle to residents of units of local governments exercising general governmental power, as that term was defined in Avery v. Midland County, 390 U.S. 474 (1968). Kramer and Hadley v. Junior College District, 397 U.S. 50 (1970), extended the "one person, one vote" principle to school districts exercising powers which. "while not fully as broad as those of the Midland County Commissioners, certainly show that the trustees perform important governmental functions within the districts, and we think these powers are general enough and have sufficient impact throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here." 397 U.S., at 53-54. But the Court was also careful to state that: "It is of course possible that there might be some case in which a State elects certain functionaries whose duties are so far removed from normal governmental *728 activities and so disproportionately affect different groups that a popular election in compliance with Reynolds, supra, might not be required, but certainly we see nothing in the present case that indicates that the activities of these trustees fit in that category. Education has traditionally been a vital governmental function, and these trustees, whose election the State has opened to all qualified voters, are governmental officials in every relevant sense of that term." Id., at 56. We conclude that the appellee water storage district, by reason of its special limited purpose and of the disproportionate effect of its activities on landowners as a group, is the sort of exception to the rule laid down in Reynolds which the quoted language from Hadley, supra, and the decision in Avery, supra, contemplated. The appellee district in this case, although vested with some typical governmental powers,[7] has relatively limited authority. Its primary purpose, indeed the reason for its existence, is to provide for the acquisition, storage, and distribution of water for farming in the Tulare Lake Basin.[8] It provides no other general public *729 services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body. App. 86. There are no towns, shops, hospitals or other facilities designed to improve the quality of life within the district boundaries, and it does not have a fire department, police, buses, or trains. Ibid. Not only does the district not exercise what might be thought of as "normal governmental" authority, but its actions disproportionately affect landowners. All of the costs of district projects are assessed against land by assessors in proportion to the benefits received. Likewise, charges for services rendered are collectible from persons receiving their benefit in proportion to the services. When such persons are delinquent in payment, just as in the case of delinquency in payments of assessments, such charges become a lien on the land. Calif. Water Code §§ 47183, 46280. In short, there is no way that the economic burdens of district operations can fall on residents qua residents, and the operations of the districts primarily affect the land within their boundaries.[9] Under these circumstances, it is quite understandable that the statutory framework for election of directors *730 of the appellee focuses on the land benefited, rather than on people as such. California has not opened the franchise to all residents, as Missouri had in Hadley, supra, nor to all residents with some exceptions, as New York had in Kramer, supra. The franchise is extended to landowners, whether they reside in the district or out of it, and indeed whether or not they are natural persons who would be entitled to vote in a more traditional political election. Appellants do not challenge the enfranchisement of nonresident landowners or of corporate landowners for purposes of election of the directors of appellee. Thus, to sustain their contention that all residents of the district must be accorded a vote would not result merely in the striking down of an exclusion from what was otherwise a delineated class, but would instead engraft onto the statutory scheme a wholly new class of voters in addition to those enfranchised by the statute. We hold, therefore, that the popular election requirements enunciated by Reynolds, supra, and succeeding cases are inapplicable to elections such as the general election of appellee Water Storage District. II Even though appellants derive no benefit from the Reynolds and Kramer lines of cases, they are, of course, entitled to have their equal protection claim assessed to determine whether the State's decision to deny the franchise to residents of the district while granting it to landowners was "wholly irrelevant to achievement of the regulation's objectives," Kotch v. River Port Pilot Comm'rs, 330 U.S. 552, 556 (1947). No doubt residents within the district may be affected by its activities. But this argument proves too much. Since assessments imposed by the district become a cost of doing business for those who farm within it, and that *731 cost must ultimately be passed along to the consumers of the produce, food shoppers in far away metropolitan areas are to some extent likewise "affected" by the activities of the district. Constitutional adjudication cannot rest on any such "house that Jack built" foundation, however. The California Legislature could quite reasonably have concluded that the number of landowners and owners of sufficient amounts of acreage whose consent was necessary to organize the district would not have subjected their land to the lien of its possibly very substantial assessments unless they had a dominant voice in its control. Since the subjection of the owners' lands to such liens was the basis by which the district was to obtain financing, the proposed district had as a practical matter to attract landowner support. Nor, since assessments against landowners were to be the sole means by which the expenses of the district were to be paid, could it be said to be unfair or inequitable to repose the franchise in landowners but not residents. Landowners as a class were to bear the entire burden of the district's costs, and the State could rationally conclude that they, to the exclusion of residents, should be charged with responsibility for its operation. We conclude, therefore, that nothing in the Equal Protection Clause precluded California from limiting the voting for directors of appellee district by totally excluding those who merely reside within the district. III Appellants assert that even if residents may be excluded from the vote, lessees who farm the land have interests that are indistinguishable from those of the landowners. Like landowners, they take an interest in increasing the available water for farming and, because the costs of district projects may be passed on to them *732 either by express agreement or by increased rentals, they have an equal interest in the costs. Lessees undoubtedly do have an interest in the activities of appellee district analogous to that of landowners in many respects. But in the type of special district we now have before us, the question for our determination is not whether or not we would have lumped them together had we been enacting the statute in question, but instead whether "if any state of facts reasonably may be conceived to justify" California's decision to deny the franchise to lessees while granting it to landowners. McGowan v. Maryland, 366 U.S. 420, 426 (1961). The term "lessees" may embrace the holders of a wide spectrum of leasehold interests in land, from the month-to-month tenant holding under an oral lease, on the one hand, to the long-term lessee holding under a carefully negotiated written lease, on the other. The system which permitted a lessee for a very short term to vote might easily lend itself to manipulation on the part of large landowners because of the ease with which such landowners could create short-term interests on the part of loyal employees. And, even apart from the fear of such manipulation, California may well have felt that landowners would be unwilling to join in the forming of a water storage district if short-term lessees whose fortunes were not in the long run tied to the land were to have a major vote in the affairs of the district. The administration of a voting system which allowed short-term lessees to vote could also pose significant difficulties. Apparently, assessment rolls as well as state and federal land lists are used by election boards in determining the qualifications of the voters. Calif. Water Code § 41016. Such lists, obviously, would not ordinarily disclose either long- or short-term leaseholds. *733 While reference could be made to appropriate conveyancing records to determine the existence of leases which had been recorded, leases for terms less than one year need not be recorded under California law in order to preserve the right of the lessee. Calif. Civil Code § 1214. Finally, we note that California has not left the lessee without remedy for his disenfranchised state. Sections 41002 and 41005 of the California Water Code provide for voting in the general election by proxy. To the extent that a lessee entering into a lease of substantial duration, thereby likening his status more to that of a landowner, feels that the right to vote in the election of directors of the district is of sufficient import to him, he may bargain for that right at the time he negotiates his lease. And the longer the term of the lease, and the more the interest of the lessee becomes akin to that of the landowner, presumably the more willing the lessor will be to assign his right. Just as the lessee may by contract be required to reimburse the lessor for the district assessments so he may be contract acquire the right to vote for district directors. Under these circumstances, the exclusion of lessees from voting in general elections for the directors of the district does not violate the Equal Protection Clause. IV The last claim by appellants is that § 41001, which weights the vote according to assessed valuation of the land, is unconstitutional. They point to the fact that several of the smaller landowners have only one vote per person whereas the J. G. Boswell Company has 37,825 votes, and they place reliance on the various decisions of this Court holding that wealth has no relation to resident-voter qualifications and that equality of voting power may not be evaded. See, e. g., Gray v. Sanders, *734 372 U.S. 368 (1963); Harper v. Virginia Board of Elections, 383 U.S. 663 (1966). Appellants' argument ignores the realities of water storage district operation. Since its formation in 1926, appellee district has put into operation four multi-million-dollar projects. The last project involved the construction of two laterals from the Basin to the California State Aqueduct at a capital cost of about $2,500,000. Three small landowners having land aggregating somewhat under four acres with an assessed valuation of under $100 were given one vote each in the special election held for the approval of the project. The J. G. Boswell Company, which owns 61,665.54 acres with an assessed valuation of $3,782,220 was entitled to cast 37.825 votes in the election. By the same token, however, the assessment commissioners determined that the benefits of the project would be uniform as to all of the acres affected, and assessed the project equally as to all acreage. Each acre has to bear $13.26 of cost and the three small landowners, therefore, must pay a total of $46, whereas the company must pay $817,685 for its part.[10] Thus, as the District Court found, "the benefits and burdens to each landowner . . . are in proportion to the assessed value of the land." 342 F. Supp. 144, 146. We cannot say that the California legislative decision to permit voting in the same proportion is not rationally based. Accordingly, we affirm the judgment of the three-judge District Court and hold that the voter qualification statutes for California water storage district elections *735 are rationally based, and therefore do not violate the Equal Protection Clause. Affirmed. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR.

This is another in the line of cases in which the Court has had occasion to consider the limits imposed by the Equal Protection Clause of the Fourteenth Amendment on legislation apportioning representation in state and local governing bodies and establishing qualifications for voters in the election of such representatives. enunciated the constitutional standard for apportionment of state legislatures. Later cases such as and extended the rule to the governing bodies of a county and of a junior college district, respectively. We are here presented with the issue expressly reserved in "Were the [county's governing body] a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents *721 more than other constituents, we would have to confront the question whether such a body may be apportioned in ways which give greater influence to the citizens most affected by the organization's functions." -484. The particular type of local government unit whose organization is challenged on constitutional grounds in this case is a water storage district, organized pursuant to the California Water Storage District Act, Calif. Water Code 39000 et seq. The peculiar problems of adequate water supplies faced by most of the western third of the Nation have been described by Mr. Justice Sutherland, who was himself intimately familiar with them, in California Oregon Power : "These states and territories comprised the western third of the United States—a vast empire in extent, but still sparsely settled. From a line east of the Rocky Mountains almost to the Pacific Ocean, and from the Canadian border to the boundary of Mexico —an area greater than that of the original thirteen states—the lands capable of redemption, in the main, constituted a desert, impossible of agricultural use without artificial irrigation. "In the beginning, the task of reclaiming this area was left to the unaided efforts of the people who found their way by painful effort to its inhospitable solitudes. These western pioneers, emulating the spirit of so many others who had gone before them in similar ventures, faced the difficult problem of wresting a living and creating homes from the raw elements about them, and threw down the gage of battle to the forces of nature. With imperfect tools, they built dams, excavated canals, constructed ditches, plowed and cultivated the soil, and transformed *722 dry and desolate lands into green fields and leafy orchards." Californians, in common with other residents of the West, found the State's rivers and streams in their natural state to present the familiar paradox of feast or famine. With melting snow in the high mountains in the spring, small streams became roaring freshets, and the rivers they fed carried the potential for destructive floods. But with the end of the rainy season in the early spring, farmers depended entirely upon water from such streams and rivers until the rainy season again began in the fall. Long before that time, however, rivers which ran bank full in the spring had been reduced to a bare trickle of water. It was not enough therefore, for individual farmers or groups of farmers to build irrigation canals and ditches which depended for their operation on the natural flow of these streams. Storage dams had to be constructed to impound in their reservoirs the flow of the rivers at flood stage for later release during the dry season regimen of these streams. For the construction of major dams to facilitate the storage of water for irrigation of large areas, the full resources of the State and frequently of the Federal Government were necessary.[1] But for less costly projects which would benefit a more restricted geographic area, the State was frequently either unable or unwilling to pledge its credit or its resources. The California Legislature, therefore, has authorized a number of instrumentalities, including water storage districts such as the appellee here, to provide a local response to water problems. Some history of the experience of California and the other Western States with the problems of water distribution *723 is contained in Fallbrook Irrigation in which the constitutionality of California's Wright Act was sustained against claims of denial of due process under the Fourteenth Amendment to the United States Constitution. While the irrigation district was apparently the first local governmental unit authorized to deal with water distribution, it is by no means the only one. General legislation in California authorizes the creation, not only of irrigation districts, but of water conservation districts, water storage and conservation districts, flood control districts, and water storage districts such as appellee.[2] Appellee district consists of 193,000 acres of intensively cultivated, highly fertile farm land located in the Tulare Lake Basin. Its population consists of 77 persons, including 18 children, most of whom are employees of one or another of the four corporations that farm 85% of the land in the district. Such districts are authorized to plan projects and execute approved projects "for the acquisition, appropriation, diversion, storage, conservation, and distribution of water" Calif. Water Code 42200 et seq.[3] Incidental to this general power, districts may "acquire, improve, and operate" any necessary works for the storage *724 and distribution of water as well as any drainage or reclamation works connected therewith, and the generation and distribution of hydroelectric power may be provided for.[4] 43000, 43025. They may fix tolls and charges for the use of water and collect them from all persons receiving the benefit of the water or other services in proportion to the services rendered. 43006. The costs of the projects are assessed against district land in accordance with the benefits accruing to each tract held in separate ownership. 46175, 46176. And land that is not benefited may be withdrawn from the district on petition. 48029. Governance of the districts is undertaken by a board of directors. 40658. Each director is elected from one of the divisions within the district, 39929, and each must take an official oath and execute a bond. 40301. General elections for the directors are to be held in odd-numbered years. 39027, 41300 et seq. It is the voter qualification for such elections that appellants claim invidiously discriminates against them and persons similarly situated. Appellants are landowners, a landowner-lessee, and residents within the area included in the appellee's water storage district. They brought this action under 42 U.S. C. 1983, seeking declaratory and injunctive relief in an effort to prevent appellee from giving effect to certain provisions of the California Water Code. They allege that 41000[5] and 41001[6] unconstitutionally deny to them the equal protection *725 of the laws guaranteed by the Fourteenth Amendment, in that only landowners are permitted to vote in water storage district general elections, and votes in those elections are apportioned according to the assessed valuation of the land. A three-judge court was convened pursuant to 28 U.S. C. 2284, and the case was submitted on factual statements of the parties and briefs, without testimony or oral argument. A majority of the District Court held that both statutes comported with the dictates of the Equal Protection Clause, and appellants have appealed that judgment directly to this Court under 28 U.S. C. 1253. In a case in which the Ohio legislative scheme for regulating the electoral franchise was challenged, the Court said: "[T]his Court has firmly established the principle that the Equal Protection Clause does not make every minor difference in the application of laws to different groups a violation of our Constitution. But we have also held many times that `invidious' distinctions cannot be enacted without a violation of the Equal Protection Clause. In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification." We therefore turn now to the determination of whether the California statutory scheme establishing water storage districts violates the Equal Protection Clause of the Fourteenth Amendment. *726 I It is first argued that 41000, limiting the vote to district landowners, is unconstitutional since nonlandowning residents have as much interest in the operations of a district as landowners who may or may not be residents. Particularly, it is pointed out that the homes of residents may be damaged by floods within the district's boundaries, and that floods may, as with appellant Ellison, cause them to lose their jobs. Support for this position is said to come from the recent decisions of this Court striking down various state laws that limited voting to landowners, and In the Court was confronted with a voter qualification statute for school district elections that limited the vote to otherwise qualified district residents who were either (1) the owners or lessees of taxable real property located within the district, (2) spouses of persons owning qualifying property, or (3) parents or guardians of children enrolled for a specified time during the preceding year in a local district school. Without reaching the issue of whether or not a State may in some circumstances limit the exercise of the franchise to those primarily interested or primarily affected by a given governmental unit, it was held that the above classifications did not meet that state-articulated goal since they excluded many persons who had distinct and direct interests in school meeting decisions and included many persons who had, at best, remote and indirect interests. Similarly, in decided the same day, provisions of Louisiana law which gave only property taxpayers the right to vote in elections *727 called to approve the issuance of revenue bonds by a municipal utility were declared violative of the Equal Protection Clause since the operation of the utility systems affected virtually every resident of the city, not just the 40% of the registered voters who were also property taxpayers, and since the bonds were not in any And the rationale of Cipriano was expanded to include general obligation bonds of municipalities in It was there noted that not only did those persons excluded from voting have a great interest in approving or disapproving municipal improvements, but they also contributed both directly through local taxes and indirectly through increased rents and costs to the servicing of the -211. Cipriano and Phoenix involved application of the "one person, one vote" principle to residents of units of local governments exercising general governmental power, as that term was defined in and extended the "one person, one vote" principle to school districts exercising powers which. "while not fully as broad as those of the Midland County Commissioners, certainly show that the trustees perform important governmental functions within the districts, and we think these powers are general enough and have sufficient impact throughout the district to justify the conclusion that the principle which we applied in should also be applied here." -54. But the Court was also careful to state that: "It is of course possible that there might be some case in which a State elects certain functionaries whose duties are so far removed from normal governmental *728 activities and so disproportionately affect different groups that a popular election in compliance with might not be required, but certainly we see nothing in the present case that indicates that the activities of these trustees fit in that category. Education has traditionally been a vital governmental function, and these trustees, whose election the State has opened to all qualified voters, are governmental officials in every relevant sense of that term." We conclude that the appellee water storage district, by reason of its special limited purpose and of the disproportionate effect of its activities on landowners as a group, is the sort of exception to the rule laid down in which the quoted language from and the decision in contemplated. The appellee district in this case, although vested with some typical governmental powers,[7] has relatively limited authority. Its primary purpose, indeed the reason for its existence, is to provide for the acquisition, storage, and distribution of water for farming in the Tulare Lake Basin.[8] It provides no other general public *729 services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body. App. 86. There are no towns, shops, hospitals or other facilities designed to improve the quality of life within the district boundaries, and it does not have a fire department, police, buses, or trains. Not only does the district not exercise what might be thought of as "normal governmental" authority, but its actions disproportionately affect landowners. All of the costs of district projects are assessed against land by assessors in proportion to the benefits received. Likewise, charges for services rendered are collectible from persons receiving their benefit in proportion to the services. When such persons are delinquent in payment, just as in the case of delinquency in payments of assessments, such charges become a lien on the land. Calif. Water Code 47183, 46280. In short, there is no way that the economic burdens of district operations can fall on residents qua residents, and the operations of the districts primarily affect the land within their boundaries.[9] Under these circumstances, it is quite understandable that the statutory framework for election of directors *730 of the appellee focuses on the land benefited, rather than on people as such. California has not opened the franchise to all residents, as Missouri had in nor to all residents with some exceptions, as New York had in The franchise is extended to landowners, whether they reside in the district or out of it, and indeed whether or not they are natural persons who would be entitled to vote in a more traditional political election. Appellants do not challenge the enfranchisement of nonresident landowners or of corporate landowners for purposes of election of the directors of appellee. Thus, to sustain their contention that all residents of the district must be accorded a vote would not result merely in the striking down of an exclusion from what was otherwise a delineated class, but would instead engraft onto the statutory scheme a wholly new class of voters in addition to those enfranchised by the statute. We hold, therefore, that the popular election requirements enunciated by and succeeding cases are inapplicable to elections such as the general election of appellee Water Storage District. II Even though appellants derive no benefit from the and lines of cases, they are, of course, entitled to have their equal protection claim assessed to determine whether the State's decision to deny the franchise to residents of the district while granting it to landowners was "wholly irrelevant to achievement of the regulation's objectives," No doubt residents within the district may be affected by its activities. But this argument proves too much. Since assessments imposed by the district become a cost of doing business for those who farm within it, and that *731 cost must ultimately be passed along to the consumers of the produce, food shoppers in far away metropolitan areas are to some extent likewise "affected" by the activities of the district. Constitutional adjudication cannot rest on any such "house that Jack built" foundation, however. The California Legislature could quite reasonably have concluded that the number of landowners and owners of sufficient amounts of acreage whose consent was necessary to organize the district would not have subjected their land to the lien of its possibly very substantial assessments unless they had a dominant voice in its control. Since the subjection of the owners' lands to such liens was the basis by which the district was to obtain financing, the proposed district had as a practical matter to attract landowner support. Nor, since assessments against landowners were to be the sole means by which the expenses of the district were to be paid, could it be said to be unfair or inequitable to repose the franchise in landowners but not residents. Landowners as a class were to bear the entire burden of the district's costs, and the State could rationally conclude that they, to the exclusion of residents, should be charged with responsibility for its operation. We conclude, therefore, that nothing in the Equal Protection Clause precluded California from limiting the voting for directors of appellee district by totally excluding those who merely reside within the district. III Appellants assert that even if residents may be excluded from the vote, lessees who farm the land have interests that are indistinguishable from those of the landowners. Like landowners, they take an interest in increasing the available water for farming and, because the costs of district projects may be passed on to them *732 either by express agreement or by increased rentals, they have an equal interest in the costs. Lessees undoubtedly do have an interest in the activities of appellee district analogous to that of landowners in many respects. But in the type of special district we now have before us, the question for our determination is not whether or not we would have lumped them together had we been enacting the statute in question, but instead whether "if any state of facts reasonably may be conceived to justify" California's decision to deny the franchise to lessees while granting it to landowners. The term "lessees" may embrace the holders of a wide spectrum of leasehold interests in land, from the month-to-month tenant holding under an oral lease, on the one hand, to the long-term lessee holding under a carefully negotiated written lease, on the other. The system which permitted a lessee for a very short term to vote might easily lend itself to manipulation on the part of large landowners because of the ease with which such landowners could create short-term interests on the part of loyal employees. And, even apart from the fear of such manipulation, California may well have felt that landowners would be unwilling to join in the forming of a water storage district if short-term lessees whose fortunes were not in the long run tied to the land were to have a major vote in the affairs of the district. The administration of a voting system which allowed short-term lessees to vote could also pose significant difficulties. Apparently, assessment rolls as well as state and federal land lists are used by election boards in determining the qualifications of the voters. Calif. Water Code 41016. Such lists, obviously, would not ordinarily disclose either long- or short-term leaseholds. *733 While reference could be made to appropriate conveyancing records to determine the existence of leases which had been recorded, leases for terms less than one year need not be recorded under California law in order to preserve the right of the lessee. Calif. Civil Code 1214. Finally, we note that California has not left the lessee without remedy for his disenfranchised state. Sections 41002 and 41005 of the California Water Code provide for voting in the general election by proxy. To the extent that a lessee entering into a lease of substantial duration, thereby likening his status more to that of a landowner, feels that the right to vote in the election of directors of the district is of sufficient import to him, he may bargain for that right at the time he negotiates his lease. And the longer the term of the lease, and the more the interest of the lessee becomes akin to that of the landowner, presumably the more willing the lessor will be to assign his right. Just as the lessee may by contract be required to reimburse the lessor for the district assessments so he may be contract acquire the right to vote for district directors. Under these circumstances, the exclusion of lessees from voting in general elections for the directors of the district does not violate the Equal Protection Clause. IV The last claim by appellants is that 41001, which weights the vote according to assessed valuation of the land, is unconstitutional. They point to the fact that several of the smaller landowners have only one vote per person whereas the J. G. Boswell Company has 37,825 votes, and they place reliance on the various decisions of this Court holding that wealth has no relation to resident-voter qualifications and that equality of voting power may not be evaded. See, e. g., ; Appellants' argument ignores the realities of water storage district operation. Since its formation in 1926, appellee district has put into operation four multi-million-dollar projects. The last project involved the construction of two laterals from the Basin to the California State Aqueduct at a capital cost of about $2,500,000. Three small landowners having land aggregating somewhat under four acres with an assessed valuation of under $100 were given one vote each in the special election held for the approval of the project. The J. G. Boswell Company, which owns 61,665.54 acres with an assessed valuation of $3,782,220 was entitled to cast 37.825 votes in the election. By the same token, however, the assessment commissioners determined that the benefits of the project would be uniform as to all of the acres affected, and assessed the project equally as to all acreage. Each acre has to bear $13.26 of cost and the three small landowners, therefore, must pay a total of $46, whereas the company must pay $817,685 for its part.[10] Thus, as the District Court found, "the benefits and burdens to each landowner are in proportion to the assessed value of the land." We cannot say that the California legislative decision to permit voting in the same proportion is not rationally based. Accordingly, we affirm the judgment of the three-judge District Court and hold that the voter qualification statutes for California water storage district elections *735 are rationally based, and therefore do not violate the Equal Protection Clause. Affirmed. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR.

Justice Marshall

dissenting

Whitley v. Albers

https://www.courtlistener.com/opinion/111610/whitley-v-albers/

https://www.courtlistener.com/api/rest/v3/clusters/111610/

1985-047

I share the majority's concern that prison officials be permitted to respond reasonably to inmate disturbances without unwarranted fear of liability. I agree that the threshold for establishing a constitutional violation under these circumstances is high. I do not agree, however, that the contested existence of a "riot" in the prison lessens the constraints imposed on prison authorities by the Eighth Amendment. The majority has erred, I believe, both in developing its legal analysis and in employing it. First, the especially onerous standard the Court has devised for determining whether a prisoner injured during a prison disturbance has been subjected to cruel and unusual punishment is incorrect and not justified by precedent. That standard is particularly inappropriate because courts deciding whether to apply it must resolve a preliminary issue of fact that will often be disputed and properly left to the jury. Finally, the Court has applied its test improperly to the facts of this case. For these reasons, I must respectfully dissent. I The Court properly begins by acknowledging that, for a prisoner attempting to prove a violation of the Eighth Amendment, "[a]n express intent to inflict unnecessary pain is not required, Estelle v. Gamble, 429 U.S. 97, 104 (1976)." Ante, at 319. Rather, our cases have established that the "unnecessary and wanton" infliction of pain on prisoners constitutes cruel and unusual punishment prohibited by the Eighth Amendment, even in the absence of intent to harm. Ibid.; see also Ingraham v. Wright, 430 U.S. 651, 670 (1977); Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion of *329 Stewart, POWELL, and STEVENS, JJ.). Having correctly articulated the teaching of our cases on this issue, however, the majority inexplicably arrives at the conclusion that a constitutional violation in the context of a prison uprising can be established only if force was used "maliciously and sadistically for the very purpose of causing harm," ante, at 320-321 — thus requiring the very "express intent to inflict unnecessary pain" that it had properly disavowed.[1] The Court imposes its heightened version of the "unnecessary and wanton" standard only when the injury occurred in the course of a "disturbance" that "poses significant risks," ante, at 320. But those very questions — whether a disturbance existed and whether it posed a risk — are likely to be hotly contested. It is inappropriate, to say the least, to condition the choice of a legal standard, the purpose of which is to determine whether to send a constitutional claim to the jury, upon the court's resolution of factual disputes that in many cases should themselves be resolved by the jury. The correct standard for identifying a violation of the Eighth Amendment under our cases is clearly the "unnecessary and wanton" standard, which establishes a high hurdle to be overcome by a prisoner seeking relief for a constitutional violation. The full circumstances of the plaintiff's injury, including whether it was inflicted during an attempt to quell a riot and whether there was a reasonable apprehension of danger, should be considered by the factfinder in determining whether that standard is satisfied in a particular case. There is simply no justification for creating a distinct and more onerous burden for the plaintiff to meet merely because *330 the judge believes that the injury at issue was caused during a disturbance that "pose[d] significant risks to the safety of inmates and prison staff," ante, at 320. Determination of whether there was such a disturbance or risk, when disputed, should be made by the jury when it resolves disputed facts, not by the court in its role as arbiter of law. See Byrd v. Blue Ridge Cooperative, 356 U.S. 525, 537 (1958). II The Court properly begins its application of the law by reciting the principle that the facts must be viewed in the light most favorable to respondent, who won a reversal of a directed verdict below. See Galloway v. United States, 319 U.S. 372, 395 (1943). If, under any reasonable interpretation of the facts, a jury could have found the "unnecessary and wanton" standard to be met, then the directed verdict was improper. The majority opinion, however, resolves factual disputes in the record in petitioners' favor and discounts much of respondent's theory of the case. This it is not entitled to do. The majority pays short shrift to respondent's significant contention that the disturbance had quieted down by the time the lethal force was employed. Ante, at 322-323. Respondent presented substantial testimony to show that the disturbance had subsided, Tr. 112, 165, 188, 193; that only one prisoner, Klenk, remained in any way disruptive, id., at 212; and that even Klenk had calmed down enough at that point to admit that he had " `gone too far.' " Id., at 117. The majority asserts that "a guard was still held hostage, Klenk was armed and threatening, several other inmates were armed with homemade clubs, numerous inmates remained outside their cells, and . . . [t]he situation remained dangerous and volatile." Ante, at 322-323. Respondent's evidence, however, indicated that the guard was not, in fact, in danger. He had been put into a cell by several inmates to prevent Klenk from harming him. Tr. 161. Captain Whitley had *331 been to see the guard, and had observed that the inmates protecting him from Klenk were not armed and had promised to keep Klenk out. Id., at 58 (stipulation), 163. According to respondent's evidence, moreover, no other inmates were assisting Klenk in any way when the riot squad was called in; they were simply "milling around," waiting for Klenk to be taken into custody, or for orders to return to their cells. Id., at 188. Respondent's evidence tended to show not that the "situation remained dangerous and volatile," ante, at 323, but, on the contrary, that it was calm. Although the Court sees fit to emphasize repeatedly "the risks to the life of the hostage and the safety of inmates that demonstrably persisted notwithstanding repeated attempts to defuse the situation," ibid., I can only point out that respondent bitterly disputed that any such risk to guards or inmates had persisted. The Court just does not believe his story. The Court's treatment of the expert testimony is equally insensitive to its obligation to resolve all disputes in favor of respondent. Respondent's experts testified that the use of deadly force under these circumstances was not justified by any necessity to prevent imminent danger to the officers or the inmates, Tr. 266; that the force used was excessive, ibid.; and that even if deadly force had been justified, it would have been unreasonable to unleash such force without a clear warning to allow nonparticipating inmates to return to their cells. Id., at 269. Insofar as expert testimony can ever be useful to show that prison authorities engaged in the "unnecessary and wanton" infliction of pain, even though it will always amount to "after-the-fact opinion" regarding the circumstances of the injury, see ante, at 323, respondent's expert evidence contributed to the creation of a factual issue. The majority characterizes the petitioners' error in using deadly force where it was not justified as an "oversight." Ante, at 325. This is an endorsement of petitioners' rendition of the facts. As portrayed by respondent's evidence, the "error" was made in cold blood. Respondent's involvement *332 started when, at the request of one of the inmates, he approached petitioner Whitley, who was talking to Klenk, to ask if Whitley would supply a key to a gate so that the elderly and sick patients in so-called "medical cells" near the area of disturbance could be removed before any tear gas was used. Tr. 115-116. Captain Whitley said that he would go and get the key, and left the cellblock. Ibid. In two or three minutes, Whitley returned. Id., at 118. Respondent went to the door of the cellblock, and asked Whitley if he had brought the key. Whitley responded " `No,' " turned his head back and yelled: " `Let's go, let's go. Shoot the bastards!' " Ibid. Respondent, afraid, ran from his position by the door and headed for the stairs, the only route back to his cell. Id., at 118-119. He caught some movement out of the corner of his eye, looked in its direction, and saw petitioner Kennicott. According to respondent: " `I froze. I looked at him; we locked eyes, then I looked down and seen the shotgun in his hand, then I seen the flash, and the next thing I know I was sitting down, grabbing my leg.' " Id., at 119. Losing a great deal of blood, respondent crawled up the stairs and fell on his face, trying to get out of range of the shotguns. Ibid. After about 10 minutes, an officer grabbed respondent by the hair and dragged him downstairs. Id., at 194. As he lay there, another officer came and stood over respondent and shoved the barrel of a gun or gas pistol into respondent's face. Id., at 122. Respondent was left lying and bleeding profusely for approximately 10 or 15 more minutes, and was then taken to the prison hospital. Id., at 194. He suffered very severe injury. Meanwhile, Klenk had been subdued with no resistance by Whitley, id., at 164, 234, who was unarmed, id., at 233. Other testimony showed that, although most of the inmates assembled in the area were clearly not participating in the misconduct, they received no warning, instructions, or opportunity to leave the area and return to their cells before the officers started shooting. Id., at 163. Neither respondent *333 nor any other inmate attempted to impede the officers as they entered the cellblock. Id., at 234. The officers were described as "wild," "agitated, excited," not in full control of their emotions. Id., at 192. One officer, prior to entering cellblock "A," told the others to " `shoot their asses off, and if Klenk gets in the way, kill him.' " Ibid. At the time of this assault, the cellblock was described as "quiet." Id., at 193. If a jury credited respondent's testimony and that of his witnesses, it would have believed that there was only one inmate who was temporarily out of control, Klenk — "scared," id., at 165, and "high," id., at 117 — and ready to give up. The disturbance in the block had lasted only 15 or 20 minutes when it subsided, and there appeared to be no lasting danger to anyone. Respondent was shot while he stood motionless on the stairs, and was left to bleed for a perilously long time before receiving any assistance. III Part III of the Court's opinion falls far short of a rendition of the events in the light most favorable to respondent. In that light, the facts present a very close question as to whether the prison officials' infliction of pain on respondent could be said to display the level of wantonness necessary to make out a constitutional violation. At the very least, it is clear that fair-minded people could differ on the response to that question, and that is all it takes to preclude a directed verdict. The majority suggests that the existence of more appropriate alternative measures for controlling prison disturbances is irrelevant to the constitutional inquiry, but surely it cannot mean what it appears to say. For if prison officials were to drop a bomb on a cellblock in order to halt a fistfight between two inmates, for example, I feel confident that the Court would have difficulty concluding, as a matter of law, that such an action was not sufficiently wanton to present a jury question, even though concededly taken in an effort to restore *334 order in the prison. Thus, the question of wantonness in the context of prison disorder, as with other claims of mistreatment under the Eighth Amendment, is a matter of degree. And it is precisely in cases like this one, when shading the facts one way or the other can result in different legal conclusions, that a jury should be permitted to do its job. Properly instructed, a jury would take into account the petitioners' legitimate need to protect security, the extent of the danger presented, and the reasonableness of force used, in assessing liability. Moreover, the jury would know that a prisoner's burden is a heavy one, if he is to establish an Eighth Amendment violation under these circumstances.[2] Whether respondent was able to meet that burden here is a question for the jury. From the Court's usurpation of the jury's function, I dissent. I would affirm the judgment of the Court of Appeals.

I share the majority's concern that prison officials be permitted to respond reasonably to inmate disturbances without unwarranted fear of liability. I agree that the threshold for establishing a constitutional violation under these circumstances is high. I do not agree, however, that the contested existence of a "riot" in the prison lessens the constraints imposed on prison authorities by the Eighth Amendment. The majority has erred, I believe, both in developing its legal analysis and in employing it. First, the especially onerous standard the Court has devised for determining whether a prisoner injured during a prison disturbance has been subjected to cruel and unusual punishment is incorrect and not justified by precedent. That standard is particularly inappropriate because courts deciding whether to apply it must resolve a preliminary issue of fact that will often be disputed and properly left to the jury. Finally, the Court has applied its test improperly to the facts of this case. For these reasons, I must respectfully dissent. I The Court properly begins by acknowledging that, for a prisoner attempting to prove a violation of the Eighth Amendment, "[a]n express intent to inflict unnecessary pain is not required," Ante, at 319. Rather, our cases have established that the "unnecessary and wanton" infliction of pain on prisoners constitutes cruel and unusual punishment prohibited by the Eighth Amendment, even in the absence of intent to harm. ; see also ; Having correctly articulated the teaching of our cases on this issue, however, the majority inexplicably arrives at the conclusion that a constitutional violation in the context of a prison uprising can be established only if force was used "maliciously and sadistically for the very purpose of causing harm," ante, at 320-321 — thus requiring the very "express intent to inflict unnecessary pain" that it had properly disavowed.[1] The Court imposes its heightened version of the "unnecessary and wanton" standard only when the injury occurred in the course of a "disturbance" that "poses significant risks," ante, at 320. But those very questions — whether a disturbance existed and whether it posed a risk — are likely to be hotly contested. It is inappropriate, to say the least, to condition the choice of a legal standard, the purpose of which is to determine whether to send a constitutional claim to the jury, upon the court's resolution of factual disputes that in many cases should themselves be resolved by the jury. The correct standard for identifying a violation of the Eighth Amendment under our cases is clearly the "unnecessary and wanton" standard, which establishes a high hurdle to be overcome by a prisoner seeking relief for a constitutional violation. The full circumstances of the plaintiff's injury, including whether it was inflicted during an attempt to quell a riot and whether there was a reasonable apprehension of danger, should be considered by the factfinder in determining whether that standard is satisfied in a particular case. There is simply no justification for creating a distinct and more onerous burden for the plaintiff to meet merely because *330 the judge believes that the injury at issue was caused during a disturbance that "pose[d] significant risks to the safety of inmates and prison staff," ante, at 320. Determination of whether there was such a disturbance or risk, when disputed, should be made by the jury when it resolves disputed facts, not by the court in its role as arbiter of law. See II The Court properly begins its application of the law by reciting the principle that the facts must be viewed in the light most favorable to respondent, who won a reversal of a directed verdict below. See If, under any reasonable interpretation of the facts, a jury could have found the "unnecessary and wanton" standard to be met, then the directed verdict was improper. The majority opinion, however, resolves factual disputes in the record in petitioners' favor and discounts much of respondent's theory of the case. This it is not entitled to do. The majority pays short shrift to respondent's significant contention that the disturbance had quieted down by the time the lethal force was employed. Ante, at 322-323. Respondent presented substantial testimony to show that the disturbance had subsided, Tr. 112, 165, 188, 193; that only one prisoner, Klenk, remained in any way disruptive, ; and that even Klenk had calmed down enough at that point to admit that he had " `gone too far.' " The majority asserts that "a guard was still held hostage, Klenk was armed and threatening, several other inmates were armed with homemade clubs, numerous inmates remained outside their cells, and [t]he situation remained dangerous and volatile." Ante, at 322-323. Respondent's evidence, however, indicated that the guard was not, in fact, in danger. He had been put into a cell by several inmates to prevent Klenk from harming him. Tr. 161. Captain Whitley had *331 been to see the guard, and had observed that the inmates protecting him from Klenk were not armed and had promised to keep Klenk out. 163. According to respondent's evidence, moreover, no other inmates were assisting Klenk in any way when the riot squad was called in; they were simply "milling around," waiting for Klenk to be taken into custody, or for orders to return to their cells. Respondent's evidence tended to show not that the "situation remained dangerous and volatile," ante, at 323, but, on the contrary, that it was calm. Although the Court sees fit to emphasize repeatedly "the risks to the life of the hostage and the safety of inmates that demonstrably persisted notwithstanding repeated attempts to defuse the situation," ib I can only point out that respondent bitterly disputed that any such risk to guards or inmates had persisted. The Court just does not believe his story. The Court's treatment of the expert testimony is equally insensitive to its obligation to resolve all disputes in favor of respondent. Respondent's experts testified that the use of deadly force under these circumstances was not justified by any necessity to prevent imminent danger to the officers or the inmates, Tr. 266; that the force used was excessive, ibid.; and that even if deadly force had been justified, it would have been unreasonable to unleash such force without a clear warning to allow nonparticipating inmates to return to their cells. Insofar as expert testimony can ever be useful to show that prison authorities engaged in the "unnecessary and wanton" infliction of pain, even though it will always amount to "after-the-fact opinion" regarding the circumstances of the injury, see ante, at 323, respondent's expert evidence contributed to the creation of a factual issue. The majority characterizes the petitioners' error in using deadly force where it was not justified as an "oversight." Ante, at 325. This is an endorsement of petitioners' rendition of the facts. As portrayed by respondent's evidence, the "error" was made in cold blood. Respondent's involvement *332 started when, at the request of one of the inmates, he approached petitioner Whitley, who was talking to Klenk, to ask if Whitley would supply a key to a gate so that the elderly and sick patients in so-called "medical cells" near the area of disturbance could be removed before any tear gas was used. Tr. 115-116. Captain Whitley said that he would go and get the key, and left the cellblock. In two or three minutes, Whitley returned. Respondent went to the door of the cellblock, and asked Whitley if he had brought the key. Whitley responded " `No,' " turned his head back and yelled: " `Let's go, let's go. Shoot the bastards!' " Respondent, afraid, ran from his position by the door and headed for the stairs, the only route back to his cell. -119. He caught some movement out of the corner of his eye, looked in its direction, and saw petitioner Kennicott. According to respondent: " `I froze. I looked at him; we locked eyes, then I looked down and seen the shotgun in his hand, then I seen the flash, and the next thing I know I was sitting down, grabbing my leg.' " Losing a great deal of blood, respondent crawled up the stairs and fell on his face, trying to get out of range of the shotguns. After about 10 minutes, an officer grabbed respondent by the hair and dragged him downstairs. As he lay there, another officer came and stood over respondent and shoved the barrel of a gun or gas pistol into respondent's face. Respondent was left lying and bleeding profusely for approximately 10 or 15 more minutes, and was then taken to the prison hospital. He suffered very severe injury. Meanwhile, Klenk had been subdued with no resistance by Whitley, who was unarmed, Other testimony showed that, although most of the inmates assembled in the area were clearly not participating in the misconduct, they received no warning, instructions, or opportunity to leave the area and return to their cells before the officers started shooting. Neither respondent *333 nor any other inmate attempted to impede the officers as they entered the cellblock. The officers were described as "wild," "agitated, excited," not in full control of their emotions. One officer, prior to entering cellblock "A," told the others to " `shoot their asses off, and if Klenk gets in the way, kill him.' " At the time of this assault, the cellblock was described as "quiet." If a jury credited respondent's testimony and that of his witnesses, it would have believed that there was only one inmate who was temporarily out of control, Klenk — "scared," and "high," — and ready to give up. The disturbance in the block had lasted only 15 or 20 minutes when it subsided, and there appeared to be no lasting danger to anyone. Respondent was shot while he stood motionless on the stairs, and was left to bleed for a perilously long time before receiving any assistance. III Part III of the Court's opinion falls far short of a rendition of the events in the light most favorable to respondent. In that light, the facts present a very close question as to whether the prison officials' infliction of pain on respondent could be said to display the level of wantonness necessary to make out a constitutional violation. At the very least, it is clear that fair-minded people could differ on the response to that question, and that is all it takes to preclude a directed verdict. The majority suggests that the existence of more appropriate alternative measures for controlling prison disturbances is irrelevant to the constitutional inquiry, but surely it cannot mean what it appears to say. For if prison officials were to drop a bomb on a cellblock in order to halt a fistfight between two inmates, for example, I feel confident that the Court would have difficulty concluding, as a matter of law, that such an action was not sufficiently wanton to present a jury question, even though concededly taken in an effort to restore *334 order in the prison. Thus, the question of wantonness in the context of prison disorder, as with other claims of mistreatment under the Eighth Amendment, is a matter of degree. And it is precisely in cases like this one, when shading the facts one way or the other can result in different legal conclusions, that a jury should be permitted to do its job. Properly instructed, a jury would take into account the petitioners' legitimate need to protect security, the extent of the danger presented, and the reasonableness of force used, in assessing liability. Moreover, the jury would know that a prisoner's burden is a heavy one, if he is to establish an Eighth Amendment violation under these circumstances.[2] Whether respondent was able to meet that burden here is a question for the jury. From the Court's usurpation of the jury's function, I dissent. I would affirm the judgment of the Court of Appeals.

Justice Breyer

majority

United States v. Lara

https://www.courtlistener.com/opinion/134732/united-states-v-lara/

https://www.courtlistener.com/api/rest/v3/clusters/134732/

2003-048

This case concerns a congressional statute "recogniz[ing] and affirm[ing]" the "inherent" authority of a tribe to bring a criminal misdemeanor prosecution against an Indian who is not a member of that tribe — authority that this Court previously held a tribe did not possess. Compare 25 U.S. C. § 1301(2) with Duro v. Reina, 495 U.S. 676 (1990). We must decide whether Congress has the constitutional power to relax restrictions that the political branches have, over time, placed on the exercise of a tribe's inherent legal authority. We conclude that Congress does possess this power. I Respondent Billy Jo Lara is an enrolled member of the Turtle Mountain Band of Chippewa Indians in north-central North Dakota. He married a member of a different tribe, the Spirit Lake Tribe, and lived with his wife and children on the Spirit Lake Reservation, also located in North Dakota. See Brief for Spirit Lake Sioux Tribe of North Dakota et al. as Amici Curiae 4-5. After several incidents of serious misconduct, the Spirit Lake Tribe issued an order excluding him from the reservation. Lara ignored the order; federal officers stopped him; and he struck one of the arresting officers. 324 F.3d 635, 636 (CA8 2003) (en banc). The Spirit Lake Tribe subsequently prosecuted Lara in the Spirit Lake Tribal Court for "violence to a policeman." Ibid. Lara pleaded guilty and, in respect to that crime, served 90 days in jail. See ibid.; Tr. of Oral Arg. 28. *197 After Lara's tribal conviction, the Federal Government charged Lara in the Federal District Court for the District of North Dakota with the federal crime of assaulting a federal officer. 324 F.3d, at 636; 18 U.S. C. § 111(a)(1). Key elements of this federal crime mirror elements of the tribal crime of "violence to a policeman." See Brief for United States 7. And this similarity between the two crimes would ordinarily have brought Lara within the protective reach of the Double Jeopardy Clause. U. S. Const., Amdt. 5 (the Government may not "subject" any person "for the same offence to be twice put in jeopardy of life or limb"); 324 F.3d, at 636. But the Government, responding to Lara's claim of double jeopardy, pointed out that the Double Jeopardy Clause does not bar successive prosecutions brought by separate sovereigns, and it argued that this "dual sovereignty" doctrine determined the outcome here. See Heath v. Alabama, 474 U.S. 82, 88 (1985) (the Double Jeopardy Clause reflects the "common-law conception of crime as an offense against the sovereignty of the government"; when "a defendant in a single act violates the `peace and dignity' of two sovereigns by breaking the laws of each, he has committed two distinct `offences'"). The Government noted that this Court has held that an Indian tribe acts as a separate sovereign when it prosecutes its own members. United States v. Wheeler, 435 U.S. 313, 318, 322-323 (1978) (a tribe's "sovereign power to punish tribal offenders," while subject to congressional "defeasance," remains among those "`inherent powers of a limited sovereignty which has never been extinguished'" (emphasis added and deleted)). The Government recognized, of course, that Lara is not one of the Spirit Lake Tribe's own members; it also recognized that, in Duro v. Reina, supra, this Court had held that a tribe no longer possessed inherent or sovereign authority to prosecute a "nonmember Indian." Id., at 682. But it pointed out that, soon after this Court decided Duro, Congress enacted new legislation specifically *198 authorizing a tribe to prosecute Indian members of a different tribe. See Act of Nov. 5, 1990, §§ 8077(b)-(d), 104 Stat. 1892-1893 (temporary legislation until September 30, 1991); Act of Oct. 28, 1991, 105 Stat. 646 (permanent legislation). That new statute, in permitting a tribe to bring certain tribal prosecutions against nonmember Indians, does not purport to delegate the Federal Government's own federal power. Rather, it enlarges the tribes' own "`powers of self-government'" to include "the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians," including nonmembers. 25 U.S. C. § 1301(2) (emphasis added). In the Government's view, given this statute, the Tribe, in prosecuting Lara, had exercised its own inherent tribal authority, not delegated federal authority; hence the "dual sovereignty" doctrine applies, Heath, supra, at 88; and since the two prosecutions were brought by two different sovereigns, the second, federal, prosecution does not violate the Double Jeopardy Clause. The Federal Magistrate Judge accepted the Government's argument and rejected Lara's double jeopardy claim. 324 F.3d, at 636-637. An Eighth Circuit panel agreed with the Magistrate Judge. 294 F.3d 1004 (2002). But the en banc Court of Appeals, by a vote of 7 to 4, reached a different conclusion. 324 F.3d 635 (2003). It held the Tribal Court, in prosecuting Lara, was exercising a federal prosecutorial power; hence the "dual sovereignty" doctrine does not apply; and the Double Jeopardy Clause bars the second prosecution. Id., at 640. The four dissenting judges, agreeing with the Federal Government, concluded that the Tribal Court had exercised inherent tribal power in prosecuting Lara; hence the "dual sovereignty" doctrine applies and allows the second, federal, prosecution. Id., at 641 (opinion of M. Arnold, J.). Because the Eighth Circuit and Ninth Circuit have reached different conclusions about the new statute, we *199 granted certiorari. Cf. United States v. Enas, 255 F.3d 662 (CA9 2001) (en banc), cert. denied, 534 U.S. 1115 (2002). We now reverse the Eighth Circuit. II We assume, as do the parties, that Lara's double jeopardy claim turns on the answer to the "dual sovereignty" question. What is "the source of [the] power to punish" nonmember Indian offenders, "inherent tribal sovereignty" or delegated federal authority? Wheeler, supra, at 322 (emphasis added). We also believe that Congress intended the former answer. The statute says that it "recognize[s] and affirm[s]" in each tribe the "inherent" tribal power (not delegated federal power) to prosecute nonmember Indians for misdemeanors. See supra, at 198; Appendix, infra (emphasis added). And the statute's legislative history confirms that such was Congress' intent. See, e. g., H. R. Conf. Rep. No. 102-261, pp. 3-4 (1991) ("The Committee of the Conference notes that . . . this legislation is not a delegation of this jurisdiction but a clarification of the status of tribes as domestic dependent nations"); accord, H. R. Rep. No. 102-61, p. 7 (1991); see also S. Rep. No. 102-168, p. 4 (1991) ("recogniz[ing] and reaffirm[ing] the inherent authority of tribal governments to exercise criminal jurisdiction over all Indians"); 137 Cong. Rec. 9446 (1991) (remarks of Sen. Inouye) (the "premise [of the legislation] is that the Congress affirms the inherent jurisdiction of tribal governments over nonmember Indians" (emphasis added)); id., at 10712-10714 (remarks of Rep. Miller, House manager of the bill) (the statute "is not a delegation of authority but an affirmation that tribes retain all rights not expressly taken away" and the bill "recognizes an inherent tribal right which always existed"); id., at 10713 (remarks of Rep. Richardson, a sponsor of the amendment) (the legislation "reaffirms" tribes' power). *200 Thus the statute seeks to adjust the tribes' status. It relaxes the restrictions, recognized in Duro, that the political branches had imposed on the tribes' exercise of inherent prosecutorial power. The question before us is whether the Constitution authorizes Congress to do so. Several considerations lead us to the conclusion that Congress does possess the constitutional power to lift the restrictions on the tribes' criminal jurisdiction over nonmember Indians as the statute seeks to do. First, the Constitution grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as "plenary and exclusive." E. g., Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U.S. 463, 470-471 (1979); Negonsott v. Samuels, 507 U.S. 99, 103 (1993); see Wheeler, 435 U. S., at 323; see also W. Canby, American Indian Law 2 (3d ed. 1998) (hereinafter Canby) ("[T]he independence of the tribes is subject to exceptionally great powers of Congress to regulate and modify the status of the tribes"). This Court has traditionally identified the Indian Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, and the Treaty Clause, Art. II, § 2, cl. 2, as sources of that power. E. g., Morton v. Mancari, 417 U.S. 535, 552 (1974); McClanahan v. Arizona Tax Comm'n, 411 U.S. 164, 172, n. 7 (1973); see also Canby 11-12; F. Cohen, Handbook of Federal Indian Law 209-210 (1982 ed.) (hereinafter Cohen) (also mentioning, inter alia, the Property Clause). The "central function of the Indian Commerce Clause," we have said, "is to provide Congress with plenary power to legislate in the field of Indian affairs." Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989); see also, e. g., Ramah Navajo School Bd., Inc. v. Bureau of Revenue of N. M., 458 U.S. 832, 837 (1982) ("broad power" under the Indian Commerce Clause); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980) (same, and citing Wheeler, supra, at 322-323). *201 The treaty power does not literally authorize Congress to act legislatively, for it is an Article II power authorizing the President, not Congress, "to make Treaties." U. S. Const., Art. II, § 2, cl. 2. But, as Justice Holmes pointed out, treaties made pursuant to that power can authorize Congress to deal with "matters" with which otherwise "Congress could not deal." Missouri v. Holland, 252 U.S. 416, 433 (1920); see also L. Henkin, Foreign Affairs and the U. S. Constitution 72 (2d ed. 1996). And for much of the Nation's history, treaties, and legislation made pursuant to those treaties, governed relations between the Federal Government and the Indian tribes. See, e.g., Cohen 109-111; F. Prucha, American Indian Policy in the Formative Years 44-49 (1962). We recognize that in 1871 Congress ended the practice of entering into treaties with the Indian tribes. 25 U.S. C. § 71 (stating that tribes are not entities "with whom the United States may contract by treaty"). But the statute saved existing treaties from being "invalidated or impaired," ibid., and this Court has explicitly stated that the statute "in no way affected Congress' plenary powers to legislate on problems of Indians," Antoine v. Washington, 420 U.S. 194, 203 (1975) (emphasis deleted). Moreover, "at least during the first century of America's national existence . . . Indian affairs were more an aspect of military and foreign policy than a subject of domestic or municipal law." Cohen 208 (footnotes omitted). Insofar as that is so, Congress' legislative authority would rest in part, not upon "affirmative grants of the Constitution," but upon the Constitution's adoption of preconstitutional powers necessarily inherent in any Federal Government, namely, powers that this Court has described as "necessary concomitants of nationality." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-322 (1936); Henkin, supra, at 14-22, 63-72; cf. 2 J. Continental Cong. 174-175 (1775) (W. Ford ed. 1905) (creating departments of Indian affairs, appointing Indian commissioners, and noting the great importance of "securing *202 and preserving the friendship of the Indian Nations"); Worcester v. Georgia, 6 Pet. 515, 557 (1832) ("The treaties and laws of the United States contemplate . . . that all intercourse with [Indians] shall be carried on exclusively by the government of the union"). Second, Congress, with this Court's approval, has interpreted the Constitution's "plenary" grants of power as authorizing it to enact legislation that both restricts and, in turn, relaxes those restrictions on tribal sovereign authority. From the Nation's beginning Congress' need for such legislative power would have seemed obvious. After all, the Government's Indian policies, applicable to numerous tribes with diverse cultures, affecting billions of acres of land, of necessity would fluctuate dramatically as the needs of the Nation and those of the tribes changed over time. See, e.g., Cohen 48. And Congress has in fact authorized at different times very different Indian policies (some with beneficial results but many with tragic consequences). Congressional policy, for example, initially favored "Indian removal," then "assimilation" and the breakup of tribal lands, then protection of the tribal land base (interrupted by a movement toward greater state involvement and "termination" of recognized tribes); and it now seeks greater tribal autonomy within the framework of a "government-to-government relationship" with federal agencies. 59 Fed. Reg. 22951 (1994); see also 19 Weekly Comp. of Pres. Doc. 98 (1983) (President Reagan reaffirming the rejection of termination as a policy and announcing the goal of decreasing tribal dependence on the Federal Government); see 25 U.S. C. § 450a(b) (congressional commitment to "the development of strong and stable tribal governments"). See generally Cohen 78-202 (describing this history); Canby 13-32 (same). Such major policy changes inevitably involve major changes in the metes and bounds of tribal sovereignty. The 1871 statute, for example, changed the status of an Indian tribe from a "powe[r] . . . capable of making treaties" to a *203 "power with whom the United States may [not] contract by treaty." Compare Worcester, supra, at 559, with 25 U.S. C. § 71. One can readily find examples in congressional decisions to recognize, or to terminate, the existence of individual tribes. See United States v. Holliday, 3 Wall. 407, 419 (1866) ("If by [the political branches] those Indians are recognized as a tribe, this court must do the same"); Menominee Tribe v. United States, 391 U.S. 404 (1968) (examining the rights of Menominee Indians following the termination of their Tribe). Indeed, Congress has restored previously extinguished tribal status—by re-recognizing a Tribe whose tribal existence it previously had terminated. 25 U.S. C. §§ 903-903f (restoring the Menominee Tribe); cf. United States v. Long, 324 F.3d 475 (CA7) (upholding against double jeopardy challenge successive prosecutions by the restored Menominee Tribe and the Federal Government), cert. denied, 540 U.S. 822 (2003). Congress has advanced policies of integration by conferring United States citizenship upon all Indians. 8 U.S. C. § 1401(b). Congress has also granted tribes greater autonomy in their inherent law enforcement authority (in respect to tribal members) by increasing the maximum criminal penalties tribal courts may impose. § 4217, 100 Stat. 3207-146, codified at 25 U.S. C. § 1302(7) (raising the maximum from "a term of six months and a fine of $500" to "a term of one year and a fine of $5,000"). Third, Congress' statutory goal—to modify the degree of autonomy enjoyed by a dependent sovereign that is not a State—is not an unusual legislative objective. The political branches, drawing upon analogous constitutional authority, have made adjustments to the autonomous status of other such dependent entities—sometimes making far more radical adjustments than those at issue here. See, e.g., Hawaii— Hawaii v. Mankichi, 190 U.S. 197, 209-211 (1903) (describing annexation of Hawaii by joint resolution of Congress and the maintenance of a "Republic of Hawaii" until formal incorporation *204 by Congress); Northern Mariana Islands—note following 48 U.S. C. § 1801 ("in accordance with the [United Nations] trusteeship agreement . . . [establishing] a self-governing commonwealth . . . in political union with and under the sovereignty of the United States"); the Philippines—22 U. S. C. § 1394 (congressional authorization for the President to "withdraw and surrender all right of . . . sovereignty" and to "recognize the independence of the Philippine Islands as a separate and self-governing nation"); Presidential Proclamation No. 2695, 60 Stat. 1352 (so proclaiming); Puerto Rico—Act of July 3, 1950, 64 Stat. 319 ("[T]his Act is now adopted in the nature of a compact so that people of Puerto Rico may organize a government pursuant to a constitution of their own adoption"); P. R. Const., Art. I, § 1 ("Estado Libre Asociado de Puerto Rico"); see also Cordova & Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank N. A., 649 F.2d 36, 39-41 (CA1 1981) (describing various adjustments to Puerto Rican autonomy through congressional legislation since 1898). Fourth, Lara points to no explicit language in the Constitution suggesting a limitation on Congress' institutional authority to relax restrictions on tribal sovereignty previously imposed by the political branches. But cf. Part III, infra. Fifth, the change at issue here is a limited one. It concerns a power similar in some respects to the power to prosecute a tribe's own members—a power that this Court has called "inherent." Wheeler, 435 U. S., at 322-323. In large part it concerns a tribe's authority to control events that occur upon the tribe's own land. See United States v. Mazurie, 419 U.S. 544, 557 (1975) ("Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory" (emphasis added)); see also, e.g., S. Rep. No. 102-168, at 21 (remarks of P. Hugen). And the tribes' possession of this additional criminal jurisdiction is consistent with our traditional understanding of the tribes' status as "domestic dependent nations." Cherokee *205 Nation v. Georgia, 5 Pet. 1, 17 (1831); see also id., at 16 (describing tribe as "a distinct political society, separated from others, capable of managing its own affairs and governing itself"). Consequently, we are not now faced with a question dealing with potential constitutional limits on congressional efforts to legislate far more radical changes in tribal status. In particular, this case involves no interference with the power or authority of any State. Nor do we now consider the question whether the Constitution's Due Process or Equal Protection Clauses prohibit tribes from prosecuting a nonmember citizen of the United States. See Part III, infra. Sixth, our conclusion that Congress has the power to relax the restrictions imposed by the political branches on the tribes' inherent prosecutorial authority is consistent with our earlier cases. True, the Court held in those cases that the power to prosecute nonmembers was an aspect of the tribes' external relations and hence part of the tribal sovereignty that was divested by treaties and by Congress. Wheeler, supra, at 326; Oliphant v. Suquamish Tribe, 435 U.S. 191, 209-210 (1978); Duro, 495 U. S., at 686. But these holdings reflect the Court's view of the tribes' retained sovereign status as of the time the Court made them. They did not set forth constitutional limits that prohibit Congress from changing the relevant legal circumstances, i. e., from taking actions that modify or adjust the tribes' status. To the contrary, Oliphant and Duro make clear that the Constitution does not dictate the metes and bounds of tribal autonomy, nor do they suggest that the Court should second-guess the political branches' own determinations. In Oliphant, the Court rested its conclusion about inherent tribal authority to prosecute tribe members in large part upon "the commonly shared presumption of Congress, the Executive Branch, and lower federal courts," a presumption which, "[w]hile not conclusive[,] carries considerable weight." 435 U.S., at 206. The Court pointed out that *206 "`Indian law' draws principally upon the treaties drawn and executed by the Executive Branch and legislation passed by Congress." Ibid. (emphasis added). It added that those "instruments . . . form the backdrop for the intricate web of judicially made Indian law." Ibid. (emphasis added). Similarly, in Duro, the Court drew upon a host of different sources in order to reach its conclusion that a tribe does not possess the inherent power to prosecute a nonmember. The Court referred to historic practices, the views of experts, the experience of forerunners of modern tribal courts, and the published opinions of the Solicitor of the Department of the Interior. 495 U.S., at 689-692. See also, e.g., Nevada v. Hicks, 533 U.S. 353, 361, n. 4 (2001) ("Our holding in Worcester must be considered in light of . . . the 1828 treaty" (alterations and internal quotation marks omitted)); South Dakota v. Bourland, 508 U.S. 679, 695 (1993) ("Having concluded that Congress clearly abrogated the Tribe's pre-existing regulatory control over non-Indian hunting and fishing, we find no evidence in the relevant treaties or statutes that Congress intended to allow the Tribes to assert regulatory jurisdiction over these lands pursuant to inherent sovereignty" (emphasis added)); National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 855-856 (1985) ("[T]he existence and extent of a tribal court's jurisdiction will require [inter alia] a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions"); United States v. Kagama, 118 U.S. 375, 382-383 (1886) (characterizing Ex parte Crow Dog, 109 U.S. 556, 570 (1883), as resting on extant treaties and statutes and recognizing congressional overruling of Crow Dog). Thus, the Court in these cases based its descriptions of inherent tribal authority upon the sources as they existed at the time the Court issued its decisions. Congressional legislation constituted one such important source. And that source was subject to change. Indeed Duro itself anticipated *207 change by inviting interested parties to "address the problem [to] Congress." 495 U.S., at 698. We concede that Duro, like several other cases, referred only to the need to obtain a congressional statute that "delegated" power to the tribes. See id., at 686 (emphasis added); Bourland, supra, at 695, n. 15; Montana v. United States, 450 U.S. 544, 564 (1981); Mazurie, 419 U. S., at 556-557. But in so stating, Duro (like the other cases) simply did not consider whether a statute, like the present one, could constitutionally achieve the same end by removing restrictions on the tribes' inherent authority. Consequently we do not read any of these cases as holding that the Constitution forbids Congress to change "judicially made" federal Indian law through this kind of legislation. Oliphant, supra, at 206; cf. County of Oneida v. Oneida Indian Nation of N. Y., 470 U.S. 226, 233-237 (1985) (recognizing the "federal common law" component of Indian rights, which "common law" federal courts develop as "a `necessary expedient' when Congress has not `spoken to a particular issue'" (quoting Milwaukee v. Illinois, 451 U.S. 304, 313-315 (1981))); id., at 313 ("[F]ederal common law is `subject to the paramount authority of Congress'" (quoting New Jersey v. New York, 283 U.S. 336, 348 (1931))). Wheeler, Oliphant, and Duro, then, are not determinative because Congress has enacted a new statute, relaxing restrictions on the bounds of the inherent tribal authority that the United States recognizes. And that fact makes all the difference. III Lara makes several additional arguments. First, he points out that the Indian Civil Rights Act of 1968, 82 Stat. 77, lacks certain constitutional protections for criminal defendants, in particular the right of an indigent defendant to counsel. See 25 U.S. C. § 1302. And he argues that the Due Process Clause forbids Congress to permit a tribe to prosecute a nonmember Indian citizen of the United States *208 in a forum that lacks this protection. See Argersinger v. Hamlin, 407 U.S. 25 (1972) (Constitution guarantees indigents counsel where imprisonment possible). Lara's due process argument, however, suffers from a critical structural defect. To explain the defect, we contrast this argument with Lara's "lack of constitutional power" argument discussed in Part II, supra. Insofar as that "constitutional power" argument might help Lara win his double jeopardy claim, it must proceed in four steps: Step One: Congress does not possess the constitutional power to enact a statute that modifies tribal power by "recogniz[ing] and affirm[ing]" the tribes' "inherent" authority to prosecute nonmember Indians. 25 U.S. C. § 1301(2). Step Two: Consequently, the word "inherent" in the statute's phrase "inherent power" is void. Step Three: The word "inherent" is severable from the rest of the statute (as are related words). The remainder of the statute is valid without those words, but it then delegates federal power to the tribe to conduct the prosecution. Step Four: Consequently, the Tribe's prosecution of Lara was federal. The current, second, prosecution is also federal. Hence Lara wins his Double Jeopardy Clause claim, the subject of the present proceeding. Although the Eighth Circuit accepted this argument, 324 F.3d, at 640, we reject Step One of the argument, Part II, supra. That rejection, without more, invalidates the argument. Lara's due process argument, however, is significantly different. That argument (if valid) would show that any prosecution of a nonmember Indian under the statute is invalid; so Lara's tribal prosecution would be invalid, too. Showing Lara's tribal prosecution was invalid, however, does not show that the source of that tribal prosecution was federal power (showing that a state prosecution violated the Due Process Clause does not make that prosecution federal). *209 But without that "federal power" showing, Lara cannot win his double jeopardy claim here. Hence, we need not, and we shall not, consider the merits of Lara's due process claim. Other defendants in tribal proceedings remain free to raise that claim should they wish to do so. See 25 U.S. C. § 1303 (vesting district courts with jurisdiction over habeas writs from tribal courts). Second, Lara argues that Congress' use of the words "all Indians," in the statutory phrase "inherent power . . . to exercise criminal jurisdiction over all Indians," violates the Equal Protection Clause. He says that insofar as the words include nonmember Indians within the statute's scope (while excluding all non-Indians) the statute is race-based and without justification. Like the due process argument, however, this equal protection argument is simply beside the point, therefore we do not address it. At best for Lara, the argument (if valid) would show, not that Lara's first conviction was federal, but that it was constitutionally defective. And that showing cannot help Lara win his double jeopardy claim. Third, Lara points out that the Duro Court found the absence of certain constitutional safeguards, for example, the guarantee of an indigent's right to counsel, as an important reason for concluding that tribes lacked the "inherent power" to try a "group of citizens" (namely, nonmember Indians) who were not "include[d]" in those "political bodies." 495 U.S., at 693-694. In fact, Duro says the following: "We hesitate to adopt a view of tribal sovereignty that would single out another group of citizens, nonmember Indians, for trial by political bodies that do not include them." Id., at 693. But this argument simply repeats the due process and equal protection arguments rejected above in a somewhat different form. Since precisely the same problem would exist were we to treat the congressional statute as delegating federal power, this argument helps Lara no more than the others. *210 IV For these reasons, we hold, with the reservations set forth in Part III, supra, that the Constitution authorizes Congress to permit tribes, as an exercise of their inherent tribal authority, to prosecute nonmember Indians. We hold that Congress exercised that authority in writing this statute. That being so, the Spirit Lake Tribe's prosecution of Lara did not amount to an exercise of federal power, and the Tribe acted in its capacity of a separate sovereign. Consequently, the Double Jeopardy Clause does not prohibit the Federal Government from proceeding with the present prosecution for a discrete federal offense. Heath, 474 U. S., at 88. The contrary judgment of the Eighth Circuit is Reversed. APPENDIX TO OPINION OF THE COURT Title 25 U.S. C. § 1301(2), as amended by Act of Oct. 28, 1991, 105 Stat. 646, provides: "`[P]owers of self-government' means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians."

This case concerns a congressional statute "recogniz[ing] and affirm[ing]" the "inherent" authority of a tribe to bring a criminal misdemeanor prosecution against an Indian who is not a member of that tribe — authority that this Court previously held a tribe did not possess. Compare 25 U.S. C. 1301(2) with We must decide whether Congress has the constitutional power to relax restrictions that the political branches have, over time, placed on the exercise of a tribe's inherent legal authority. We conclude that Congress does possess this power. I Respondent Billy Jo Lara is an enrolled member of the Turtle Mountain Band of Chippewa Indians in north-central North Dakota. He married a member of a different tribe, the Spirit Lake Tribe, and lived with his wife and children on the Spirit Lake Reservation, also located in North Dakota. See Brief for Spirit Lake Sioux Tribe of North Dakota et al. as Amici Curiae 4-5. After several incidents of serious misconduct, the Spirit Lake Tribe issued an order excluding him from the reservation. Lara ignored the order; federal officers stopped him; and he struck one of the arresting officers. The Spirit Lake Tribe subsequently prosecuted Lara in the Spirit Lake Tribal Court for "violence to a policeman." Lara pleaded guilty and, in respect to that crime, served 90 days in jail. See ibid.; Tr. of Oral Arg. 28. *197 After Lara's tribal conviction, the Federal Government charged Lara in the Federal District Court for the District of North Dakota with the federal crime of assaulting a federal 324 F.3d, at ; 18 U.S. C. 111(a)(1). Key elements of this federal crime mirror elements of the tribal crime of "violence to a policeman." See Brief for United States 7. And this similarity between the two crimes would ordinarily have brought Lara within the protective reach of the Double Jeopardy Clause. U. S. Const., Amdt. 5 (the Government may not "subject" any person "for the same offence to be twice put in jeopardy of life or limb"); 324 F.3d, at But the Government, responding to Lara's claim of double jeopardy, pointed out that the Double Jeopardy Clause does not bar successive prosecutions brought by separate sovereigns, and it argued that this "dual sovereignty" doctrine determined the outcome here. See The Government noted that this Court has held that an Indian tribe acts as a separate sovereign when it prosecutes its own members. United The Government recognized, of course, that Lara is not one of the Spirit Lake Tribe's own members; it also recognized that, in this Court had held that a tribe no longer possessed inherent or sovereign authority to prosecute a "nonmember Indian." But it pointed out that, soon after this Court decided Congress enacted new legislation specifically *198 authorizing a tribe to prosecute Indian members of a different tribe. See Act of Nov. 5, 1990, 8077(b)-(d), -1893 (temporary legislation until September 30, 1991); Act of Oct. 28, 1991, That new statute, in permitting a tribe to bring certain tribal prosecutions against nonmember Indians, does not purport to delegate the Federal Government's own federal power. Rather, it enlarges the tribes' own "`powers of self-government'" to include "the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians," including nonmembers. 25 U.S. C. 1301(2) In the Government's view, given this statute, the Tribe, in prosecuting Lara, had exercised its own inherent tribal authority, not delegated federal authority; hence the "dual sovereignty" doctrine applies, at ; and since the two prosecutions were brought by two different sovereigns, the second, federal, prosecution does not violate the Double Jeopardy Clause. The Federal Magistrate Judge accepted the Government's and rejected Lara's double jeopardy 324 F.3d, at -637. An Eighth Circuit panel agreed with the Magistrate Judge. But the en banc Court of Appeals, by a vote of 7 to 4, reached a different conclusion. It held the Tribal Court, in prosecuting Lara, was exercising a federal prosecutorial power; hence the "dual sovereignty" doctrine does not apply; and the Double Jeopardy Clause bars the second prosecution. The four dissenting judges, agreeing with the Federal Government, concluded that the Tribal Court had exercised inherent tribal power in prosecuting Lara; hence the "dual sovereignty" doctrine applies and allows the second, federal, prosecution. Because the Eighth Circuit and Ninth Circuit have reached different conclusions about the new statute, we *199 granted certiorari. Cf. United cert. denied, We now reverse the Eighth Circuit. We assume, as do the parties, that Lara's double jeopardy claim turns on the answer to the "dual sovereignty" question. What is "the source of [the] power to punish" nonmember Indian offenders, "inherent tribal sovereignty" or delegated federal authority? We also believe that Congress intended the former answer. The statute says that it "recognize[s] and affirm[s]" in each tribe the "inherent" tribal power (not delegated federal power) to prosecute nonmember Indians for misdemeanors. See ; Appendix, infra And the statute's legislative history confirms that such was Congress' intent. See, e. g., H. R. Conf. Rep. No. 102-261, pp. 3-4 (1991) ("The Committee of the Conference notes that this legislation is not a delegation of this jurisdiction but a clarification of the status of tribes as domestic dependent nations"); accord, H. R. Rep. No. 102-61, p. 7 (1991); see also S. Rep. No. 102-168, p. 4 (1991) ("recogniz[ing] and reaffirm[ing] the inherent authority of tribal governments to exercise criminal jurisdiction over all Indians"); 137 Cong. Rec. 9446 (1991) (remarks of Sen. Inouye) (the "premise [of the legislation] is that the Congress affirms the inherent jurisdiction of tribal governments over nonmember Indians" ); (the statute "is not a delegation of authority but an affirmation that tribes retain all rights not expressly taken away" and the bill "recognizes an inherent tribal right which always existed"); (the legislation "reaffirms" tribes' power). *200 Thus the statute seeks to adjust the tribes' status. It relaxes the restrictions, recognized in that the political branches had imposed on the tribes' exercise of inherent prosecutorial power. The question before us is whether the Constitution authorizes Congress to do so. Several considerations lead us to the conclusion that Congress does possess the constitutional power to lift the restrictions on the tribes' criminal jurisdiction over nonmember Indians as the statute seeks to do. First, the Constitution grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as "plenary and exclusive." E. g., ; ; see ; see also W. Canby, American Indian Law 2 (3d ed. 1998) (hereinafter Canby) ("[T]he independence of the tribes is subject to exceptionally great powers of Congress to regulate and modify the status of the tribes"). This Court has traditionally identified the Indian Commerce Clause, U. S. Const., Art. I, 8, cl. 3, and the Treaty Clause, Art. 2, cl. 2, as sources of that power. E. g., ; ; see also Canby 11-12; F. Cohen, Handbook of Federal Indian Law (1982 ed.) (hereinafter Cohen) (also mentioning, inter alia, the Property Clause). The "central function of the Indian Commerce Clause," we have said, "is to provide Congress with plenary power to legislate in the field of Indian affairs." Cotton Petroleum ; see also, e. g., Ramah Navajo School Bd., ; White Mountain Apache (same, and citing -323). *201 The treaty power does not literally authorize Congress to act legislatively, for it is an Article power authorizing the President, not Congress, "to make Treaties." U. S. Const., Art. 2, cl. 2. But, as Justice Holmes pointed out, treaties made pursuant to that power can authorize Congress to deal with "matters" with which otherwise "Congress could not deal." (0); see also L. Foreign Affairs and the U. S. Constitution 72 (2d ed. 1996). And for much of the Nation's history, treaties, and legislation made pursuant to those treaties, governed relations between the Federal Government and the Indian tribes. See, e.g., Cohen 109-111; F. Prucha, American Indian Policy in the Formative Years 44-49 (1962). We recognize that in 1871 Congress ended the practice of entering into treaties with the Indian tribes. 25 U.S. C. 71 (stating that tribes are not entities "with whom the United States may contract by treaty"). But the statute saved existing treaties from being "invalidated or impaired," ib and this Court has explicitly stated that the statute "in no way affected Congress' plenary powers to legislate on problems of Indians," Moreover, "at least during the first century of America's national existence Indian affairs were more an aspect of military and foreign policy than a subject of domestic or municipal law." Cohen 208 (footnotes omitted). Insofar as that is so, Congress' legislative authority would rest in part, not upon "affirmative grants of the Constitution," but upon the Constitution's adoption of preconstitutional powers necessarily inherent in any Federal Government, namely, powers that this Court has described as "necessary concomitants of nationality." United ; ; cf. 2 J. Continental Cong. 4-5 (75) (W. Ford ed. 1905) (creating departments of Indian affairs, appointing Indian commissioners, and noting the great importance of "securing *202 and preserving the friendship of the Indian Nations"); Second, Congress, with this Court's approval, has interpreted the Constitution's "plenary" grants of power as authorizing it to enact legislation that both restricts and, in turn, relaxes those restrictions on tribal sovereign authority. From the Nation's beginning Congress' need for such legislative power would have seemed obvious. After all, the Government's Indian policies, applicable to numerous tribes with diverse cultures, affecting billions of acres of land, of necessity would fluctuate dramatically as the needs of the Nation and those of the tribes changed over time. See, e.g., Cohen 48. And Congress has in fact authorized at different times very different Indian policies (some with beneficial results but many with tragic consequences). Congressional policy, for example, initially favored "Indian removal," then "assimilation" and the breakup of tribal lands, then protection of the tribal land base (interrupted by a movement toward greater state involvement and "termination" of recognized tribes); and it now seeks greater tribal autonomy within the framework of a "government-to-government relationship" with federal agencies. (1994); see also 19 Weekly Comp. of Pres. Doc. 98 (1983) (President Reagan reaffirming the rejection of termination as a policy and announcing the goal of decreasing tribal dependence on the Federal Government); see 25 U.S. C. 450a(b) (congressional commitment to "the development of strong and stable tribal governments"). See generally Cohen 78-202 (describing this history); Canby 13-32 (same). Such major policy changes inevitably involve major changes in the metes and bounds of tribal sovereignty. The 1871 statute, for example, changed the status of an Indian tribe from a "powe[r] capable of making treaties" to a * "power with whom the United States may [not] contract by treaty." Compare Worcester, with 25 U.S. C. 71. One can readily find examples in congressional decisions to recognize, or to terminate, the existence of individual tribes. See United ; Menominee Indeed, Congress has restored previously extinguished tribal status—by re-recognizing a Tribe whose tribal existence it previously had terminated. 25 U.S. C. 903-903f (restoring the Menominee Tribe); cf. United (CA7) (upholding against double jeopardy challenge successive prosecutions by the restored Menominee Tribe and the Federal Government), cert. denied, Congress has advanced policies of integration by conferring United States citizenship upon all Indians. 8 U.S. C. 1401(b). Congress has also granted tribes greater autonomy in their inherent law enforcement authority (in respect to tribal members) by increasing the maximum criminal penalties tribal courts may impose. 42, -146, codified at 25 U.S. C. 1302(7) (raising the maximum from "a term of six months and a fine of $500" to "a term of one year and a fine of $5,000"). Third, Congress' statutory goal—to modify the degree of autonomy enjoyed by a dependent sovereign that is not a State—is not an unusual legislative objective. The political branches, drawing upon analogous constitutional authority, have made adjustments to the autonomous status of other such dependent entities—sometimes making far more radical adjustments than those at issue here. See, e.g., Hawaii— ; Northern Mariana Islands—note following 48 U.S. C. 1801 ("in accordance with the [United Nations] trusteeship agreement [establishing] a self-governing commonwealth in political union with and under the sovereignty of the United States"); the Philippines—22 U. S. C. 1394 ; Presidential Proclamation No. 2, ; Puerto Rico—Act of July 3, 1950, ; P. R. Const., Art. I, 1 ("Estado Libre Asociado de Puerto Rico"); see also Cordova & Simonpietri Ins. Agency Fourth, Lara points to no explicit language in the Constitution suggesting a limitation on Congress' institutional authority to relax restrictions on tribal sovereignty previously imposed by the political branches. But cf. Part I, infra. Fifth, the change at issue here is a limited one. It concerns a power similar in some respects to the power to prosecute a tribe's own members—a power that this Court has called "inherent." 435 U. S., -323. In large part it concerns a tribe's authority to control events that occur upon the tribe's own land. See United U.S. 544, ("Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory" ); see also, e.g., S. Rep. No. 102-168, at 21 (remarks of P. Hugen). And the tribes' possession of this additional criminal jurisdiction is consistent with our traditional understanding of the tribes' status as "domestic dependent nations." Cherokee *205 ; see also Consequently, we are not now faced with a question dealing with potential constitutional limits on congressional efforts to legislate far more radical changes in tribal status. In particular, this case involves no interference with the power or authority of any State. Nor do we now consider the question whether the Constitution's Due Process or Equal Protection Clauses prohibit tribes from prosecuting a nonmember citizen of the United States. See Part I, infra. Sixth, our conclusion that Congress has the power to relax the restrictions imposed by the political branches on the tribes' inherent prosecutorial authority is consistent with our earlier cases. True, the Court held in those cases that the power to prosecute nonmembers was an aspect of the tribes' external relations and hence part of the tribal sovereignty that was divested by treaties and by Congress. ; ; But these holdings reflect the Court's view of the tribes' retained sovereign status as of the time the Court made them. They did not set forth constitutional limits that prohibit Congress from changing the relevant legal circumstances, i. e., from taking actions that modify or adjust the tribes' status. To the contrary, Oliphant and make clear that the Constitution does not dictate the metes and bounds of tribal autonomy, nor do they suggest that the Court should second-guess the political branches' own determinations. In Oliphant, the Court rested its conclusion about inherent tribal authority to prosecute tribe members in large part upon "the commonly shared presumption of Congress, the Executive Branch, and lower federal courts," a presumption which, "[w]hile not conclusive[,] carries considerable weight." The Court pointed out that *206 "`Indian law' draws principally upon the treaties drawn and executed by the Executive Branch and legislation passed by Congress." It added that those "instruments form the backdrop for the intricate web of judicially made Indian law." Similarly, in the Court drew upon a host of different sources in order to reach its conclusion that a tribe does not possess the inherent power to prosecute a nonmember. The Court referred to historic practices, the views of experts, the experience of forerunners of modern tribal courts, and the published opinions of the Solicitor of the Department of the Interior. -692. See also, e.g., ; South ("Having concluded that Congress clearly abrogated the Tribe's pre-existing regulatory control over non-Indian hunting and fishing, we find no evidence in the relevant treaties or statutes that Congress intended to allow the Tribes to assert regulatory jurisdiction over these lands pursuant to inherent sovereignty" ); National Farmers Union Ins. ; United (16) (characterizing Ex parte Crow Dog, (13), as resting on extant treaties and statutes and recognizing congressional overruling of Crow Dog). Thus, the Court in these cases based its descriptions of inherent tribal authority upon the sources as they existed at the time the Court issued its decisions. Congressional legislation constituted one such important source. And that source was subject to change. Indeed itself anticipated *207 change by inviting interested parties to "address the problem [to] Congress." We concede that like several other cases, referred only to the need to obtain a congressional statute that "delegated" power to the tribes. See ; at n. 15; ; U. S., at 556-. But in so stating, (like the other cases) simply did not consider whether a statute, like the present one, could constitutionally achieve the same end by removing restrictions on the tribes' inherent authority. Consequently we do not read any of these cases as holding that the Constitution forbids Congress to change "judicially made" federal Indian law through this kind of legislation. Oliphant, ; cf. County of )); )). Oliphant, and then, are not determinative because Congress has enacted a new statute, relaxing restrictions on the bounds of the inherent tribal authority that the United States recognizes. And that fact makes all the difference. I Lara makes several additional s. First, he points out that the Indian Civil Rights Act of 1968, lacks certain constitutional protections for criminal defendants, in particular the right of an indigent defendant to counsel. See 25 U.S. C. 1302. And he argues that the Due Process Clause forbids Congress to permit a tribe to prosecute a nonmember Indian citizen of the United States *208 in a forum that lacks this protection. See Lara's due process however, suffers from a critical structural defect. To explain the defect, we contrast this with Lara's "lack of constitutional power" discussed in Part Insofar as that "constitutional power" might help Lara win his double jeopardy claim, it must proceed in four steps: Step One: Congress does not possess the constitutional power to enact a statute that modifies tribal power by "recogniz[ing] and affirm[ing]" the tribes' "inherent" authority to prosecute nonmember Indians. 25 U.S. C. 1301(2). Step Two: Consequently, the word "inherent" in the statute's phrase "inherent power" is void. Step Three: The word "inherent" is severable from the rest of the statute (as are related words). The remainder of the statute is valid without those words, but it then delegates federal power to the tribe to conduct the prosecution. Step Four: Consequently, the Tribe's prosecution of Lara was federal. The current, second, prosecution is also federal. Hence Lara wins his Double Jeopardy Clause claim, the subject of the present proceeding. Although the Eighth Circuit accepted this 324 F.3d, we reject Step One of the Part That rejection, without more, invalidates the Lara's due process however, is significantly different. That (if valid) would show that any prosecution of a nonmember Indian under the statute is invalid; so Lara's tribal prosecution would be invalid, too. Showing Lara's tribal prosecution was invalid, however, does not show that the source of that tribal prosecution was federal power (showing that a state prosecution violated the Due Process Clause does not make that prosecution federal). *209 But without that "federal power" showing, Lara cannot win his double jeopardy claim here. Hence, we need not, and we shall not, consider the merits of Lara's due process Other defendants in tribal proceedings remain free to raise that claim should they wish to do so. See 25 U.S. C. 1303 (vesting district courts with jurisdiction over habeas writs from tribal courts). Second, Lara argues that Congress' use of the words "all Indians," in the statutory phrase "inherent power to exercise criminal jurisdiction over all Indians," violates the Equal Protection Clause. He says that insofar as the words include nonmember Indians within the statute's scope (while excluding all non-Indians) the statute is race-based and without justification. Like the due process however, this equal protection is simply beside the point, therefore we do not address it. At best for Lara, the (if valid) would show, not that Lara's first conviction was federal, but that it was constitutionally defective. And that showing cannot help Lara win his double jeopardy Third, Lara points out that the Court found the absence of certain constitutional safeguards, for example, the guarantee of an indigent's right to counsel, as an important reason for concluding that tribes lacked the "inherent power" to try a "group of citizens" (namely, nonmember Indians) who were not "include[d]" in those "political bodies." -694. In fact, says the following: "We hesitate to adopt a view of tribal sovereignty that would single out another group of citizens, nonmember Indians, for trial by political bodies that do not include them." But this simply repeats the due process and equal protection s rejected above in a somewhat different form. Since precisely the same problem would exist were we to treat the congressional statute as delegating federal power, this helps Lara no more than the others. *210 IV For these reasons, we hold, with the reservations set forth in Part I, that the Constitution authorizes Congress to permit tribes, as an exercise of their inherent tribal authority, to prosecute nonmember Indians. We hold that Congress exercised that authority in writing this statute. That being so, the Spirit Lake Tribe's prosecution of Lara did not amount to an exercise of federal power, and the Tribe acted in its capacity of a separate sovereign. Consequently, the Double Jeopardy Clause does not prohibit the Federal Government from proceeding with the present prosecution for a discrete federal offense. 474 U. S., at The contrary judgment of the Eighth Circuit is Reversed. APPENDIX TO OPINION OF THE COURT Title 25 U.S. C. 1301(2), as amended by Act of Oct. 28, 1991, provides: "`[P]owers of self-government' means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians."

Justice Stewart

majority

Cantrell v. Forest City Publishing Co.

https://www.courtlistener.com/opinion/109120/cantrell-v-forest-city-publishing-co/

https://www.courtlistener.com/api/rest/v3/clusters/109120/

1974-012

Margaret Cantrell and four of her minor children brought this diversity action in a Federal District Court for invasion of privacy against the Forest City Publishing Co., publisher of a Cleveland newspaper, the Plain Dealer, and against Joseph Eszterhas, a reporter formerly employed by the Plain Dealer, and Richard Conway, a Plain Dealer photographer. The Cantrells alleged that an article published in the Plain Dealer Sunday Magazine unreasonably placed their family in a false light before the public through its many inaccuracies and untruths. The District Judge struck the claims relating to punitive damages as to all the plaintiffs and dismissed the actions of three of the Cantrell children in their entirety, but allowed the case to go to the jury *247 as to Mrs. Cantrell and her oldest son, William. The jury returned a verdict against all three of the respondents for compensatory money damages in favor of these two plaintiffs. The Court of Appeals for the Sixth Circuit reversed, holding that, in the light of the First and Fourteenth Amendments, the District Judge should have granted the respondents' motion for a directed verdict as to all the Cantrells' claims. 484 F.2d 150. We granted certiorari, 418 U.S. 909. I In December 1967, Margaret Cantrell's husband Melvin was killed along with 43 other people when the Silver Bridge across the Ohio River at Point Pleasant, W. Va., collapsed. The respondent Eszterhas was assigned by the Plain Dealer to cover the story of the disaster. He wrote a "news feature" story focusing on the funeral of Melvin Cantrell and the impact of his death on the Cantrell family. Five months later, after conferring with the Sunday Magazine editor of the Plain Dealer, Eszterhas and photographer Conway returned to the Point Pleasant area to write a follow-up feature. The two men went to the Cantrell residence, where Eszterhas talked with the children and Conway took 50 pictures. Mrs. Cantrell was not at home at any time during the 60 to 90 minutes that the men were at the Cantrell residence. Eszterhas' story appeared as the lead feature in the August 4, 1968, edition of the Plain Dealer Sunday Magazine. The article stressed the family's abject poverty; the children's old, ill-fitting clothes and the deteriorating condition of their home were detailed in both the text and accompanying photographs. As he had done in his original, prize-winning article on the Silver Bridge disaster, Eszterhas used the Cantrell family to *248 illustrate the impact of the bridge collapse on the lives of the people in the Point Pleasant area. It is conceded that the story contained a number of inaccuracies and false statements. Most conspicuously, although Mrs. Cantrell was not present at any time during the reporter's visit to her home, Eszterhas wrote, "Margaret Cantrell will talk neither about what happened nor about how they are doing. She wears the same mask of non-expression she wore at the funeral. She is a proud woman. Her world has changed. She says that after it happened, the people in town offered to help them out with money and they refused to take it."[1] Other significant misrepresentations were contained in details of Eszterhas' descriptions of the poverty in which the Cantrells were living and the dirty and dilapidated conditions of the Cantrell home. The case went to the jury on a so-called "false light" theory of invasion of privacy. In essence, the theory of the case was that by publishing the false feature story about the Cantrells and thereby making them the objects of pity and ridicule, the respondents damaged Mrs. Cantrell and her son William by causing them to suffer outrage, mental distress, shame, and humiliation.[2] *249 II In Time, Inc. v. Hill, 385 U.S. 374, the Court considered a similar false-light, invasion-of-privacy action. The New York Court of Appeals had interpreted New York Civil Rights Law §§ 50-51 to give a "newsworthy person" a right of action when his or her name, picture or portrait was the subject of a "fictitious" report or article. Material and substantial falsification was the test for recovery. 385 U.S., at 384-386. Under this doctrine the New York courts awarded the plaintiff James Hill compensatory damages based on his complaint that Life Magazine had falsely reported that a new Broadway play portrayed the Hill family's experience in being held hostage by three escaped convicts. This Court, guided by its decision in New York Times Co. v. Sullivan, 376 U.S. 254, which recognized constitutional limits on a State's power to award damages for libel in actions brought by public officials, held that the constitutional protections for speech and press precluded the application of the New York statute to allow recovery for "false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth." 385 U.S., at 388. Although the jury could have reasonably concluded from the evidence in the Hill case that Life had engaged in knowing falsehood or had recklessly disregarded the truth in stating in the article that "the story re-enacted" the Hill family's experience, the Court concluded that the trial judge's instructions had not confined the jury to such a finding as a predicate for liability as required by the Constitution. Id., at 394. The District Judge in the case before us, in contrast to the trial judge in Time, Inc. v. Hill, did instruct the jury that liability could be imposed only if it concluded that the false statements in the Sunday Magazine feature *250 article on the Cantrells had been made with knowledge of their falsity or in reckless disregard of the truth.[3] No objection was made by any of the parties to this knowing-or-reckless-falsehood instruction. Consequently, this case presents no occasion to consider whether a State may constitutionally apply a more relaxed standard of liability for a publisher or broadcaster of false statements injurious to a private individual under a false-light theory of invasion of privacy, or whether the constitutional standard *251 announced in Time, Inc. v. Hill applies to all false-light cases. Cf. Gertz v. Robert Welch, Inc., 418 U.S. 323. Rather, the sole question that we need decide is whether the Court of Appeals erred in setting aside the jury's verdict. III At the close of the petitioners' case-in-chief, the District Judge struck the demand for punitive damages. He found that Mrs. Cantrell had failed to present any evidence to support the charges that the invasion of privacy "was done maliciously within the legal definition of that term." The Court of Appeals interpreted this finding to be a determination by the District Judge that there was no evidence of knowing falsity or reckless disregard of the truth introduced at the trial. Having made such a determination, the Court of Appeals held that the District Judge should have granted the motion for a directed verdict for respondents as to all the Cantrells' claims. 484 F.2d, at 155. The Court of Appeals appears to have assumed that the District Judge's finding of no malice "within the legal definition of that term" was a finding based on the definition of "actual malice" established by this Court in New York Times Co. v. Sullivan, 376 U. S., at 280: "with knowledge that [a defamatory statement] was false or with reckless disregard of whether it was false or not." As so defined, of course, "actual malice" is a term of art, created to provide a convenient shorthand expression for the standard of liability that must be established before a State may constitutionally permit public officials to recover for libel in actions brought against publishers.[4] As *252 such, it is quite different from the common-law standard of "malice" generally required under state tort law to support an award of punitive damages. In a false-light case, common-law malice—frequently expressed in terms of either personal ill will toward the plaintiff or reckless or wanton disregard of the plaintiff's rights—would focus on the defendant's attitude toward the plaintiff's privacy, not toward the truth or falsity of the material published. See Time, Inc. v. Hill, 385 U. S., at 396 n. 12. See generally W. Prosser, Law of Torts 9-10 (4th ed.). Although the verbal record of the District Court proceedings is not entirely unambiguous, the conclusion is inescapable that the District Judge was referring to the common-law standard of malice rather than to the New York Times "actual malice" standard when he dismissed the punitive damages claims. For at the same time that he dismissed the demands for punitive damages, the District Judge refused to grant the respondents' motion for directed verdicts as to Mrs. Cantrell's and William's claims for compensatory damages. And, as his instructions to the jury made clear, the District Judge was fully aware that the Time, Inc. v. Hill meaning of the New York Times "actual malice" standard had to be satisfied for the Cantrells to recover actual damages. Thus, the only way to harmonize these two virtually simultaneous rulings by the District Judge is to conclude, contrary to the decision of the Court of Appeals, that in dismissing the punitive damages claims he was not determining that Mrs. Cantrell had failed to introduce any evidence of knowing falsity or reckless disregard of the truth. This conclusion is further fortified by the District Judge's subsequent denial of the respondents' motion for judgment n. o. v. and alternative motion for a new trial. Moreover, the District Judge was clearly correct in believing that the evidence introduced at trial was sufficient *253 to support a jury finding that the respondents Joseph Eszterhas and Forest City Publishing Co. had published knowing or reckless falsehoods about the Cantrells.[5] There was no dispute during the trial that Eszterhas, who did not testify, must have known that a number of the statements in the feature story were untrue. In particular, his article plainly implied that Mrs. Cantrell had been present during his visit to her home and that Eszterhas had observed her "wear[ing] the same mask of nonexpression she wore [at her husband's] funeral." These were "calculated falsehoods," and the jury was plainly justified in finding that Eszterhas had portrayed the Cantrells in a false light through knowing or reckless untruth. The Court of Appeals concluded that there was no evidence that Forest City Publishing Co. had knowledge of any of the inaccuracies contained in Eszterhas' article. However, there was sufficient evidence for the jury to find that Eszterhas' writing of the feature was within the scope of his employment at the Plain Dealer and that Forest City Publishing Co. was therefore liable under traditional doctrines of respondeat superior.[6] Although Eszterhas was not regularly *254 assigned by the Plain Dealer to write for the Sunday Magazine, the editor of the magazine testified that as a staff writer for the Plain Dealer Eszterhas frequently suggested stories he would like to write for the magazine. When Eszterhas suggested the follow-up article on the Silver Bridge disaster, the editor approved the idea and told Eszterhas the magazine would publish the feature if it was good. From this evidence, the jury could reasonably conclude that Forest City Publishing Co., publisher of the Plain Dealer, should be held vicariously liable for the damage caused by the knowing falsehoods contained in Eszterhas' story. For the foregoing reasons, the judgment of the Court of Appeals is reversed and the case is remanded to that court with directions to enter a judgment affirming the judgment of the District Court as to the respondents Forest City Publishing Co. and Joseph Eszterhas. It is so ordered. MR.

Margaret Cantrell and four of her minor children brought this diversity action in a Federal District Court for invasion of privacy against the Forest City Publishing Co., publisher of a Cleveland newspaper, the Plain Dealer, and against Joseph Eszterhas, a reporter formerly employed by the Plain Dealer, and Richard Conway, a Plain Dealer photographer. The Cantrells alleged that an article published in the Plain Dealer Sunday Magazine unreasonably placed their family in a false light before the public through its many inaccuracies and untruths. The District Judge struck the claims relating to punitive damages as to all the plaintiffs and dismissed the actions of three of the Cantrell children in their entirety, but allowed the case to go to the jury *247 as to Mrs. Cantrell and her oldest son, William. The jury returned a verdict against all three of the respondents for compensatory money damages in favor of these two plaintiffs. The Court of Appeals for the Sixth Circuit reversed, holding that, in the light of the First and Fourteenth Amendments, the District Judge should have granted the respondents' motion for a directed verdict as to all the Cantrells' We granted certiorari, I In December 1967, Margaret Cantrell's husband Melvin was killed along with 43 other people when the Silver Bridge across the Ohio River at Point Pleasant, W. Va., collapsed. The respondent Eszterhas was assigned by the Plain Dealer to cover the story of the disaster. He wrote a "news feature" story focusing on the funeral of Melvin Cantrell and the impact of his death on the Cantrell family. Five months later, after conferring with the Sunday Magazine editor of the Plain Dealer, Eszterhas and photographer Conway returned to the Point Pleasant area to write a follow-up feature. The two men went to the Cantrell residence, where Eszterhas talked with the children and Conway took 50 pictures. Mrs. Cantrell was not at home at any time during the 60 to 90 minutes that the men were at the Cantrell residence. Eszterhas' story appeared as the lead feature in the August 4, 1968, edition of the Plain Dealer Sunday Magazine. The article stressed the family's abject poverty; the children's old, ill-fitting clothes and the deteriorating condition of their home were detailed in both the text and accompanying photographs. As he had done in his original, prize-winning article on the Silver Bridge disaster, Eszterhas used the Cantrell family to *248 illustrate the impact of the bridge collapse on the lives of the people in the Point Pleasant area. It is conceded that the story contained a number of inaccuracies and false statements. Most conspicuously, although Mrs. Cantrell was not present at any time during the reporter's visit to her home, Eszterhas wrote, "Margaret Cantrell will talk neither about what happened nor about how they are doing. She wears the same mask of non-expression she wore at the funeral. She is a proud woman. Her world has changed. She says that after it happened, the people in town offered to help them out with money and they refused to take it."[1] Other significant misrepresentations were contained in details of Eszterhas' descriptions of the poverty in which the Cantrells were living and the dirty and dilapidated conditions of the Cantrell home. The case went to the jury on a so-called "false light" theory of invasion of privacy. In essence, the theory of the case was that by publishing the false feature story about the Cantrells and thereby making them the objects of pity and ridicule, the respondents damaged Mrs. Cantrell and her son William by causing them to suffer outrage, mental distress, shame, and humiliation.[2] *249 II In Time, the Court considered a similar false-light, invasion-of-privacy action. The New York Court of Appeals had interpreted New York Civil Rights Law 50-51 to give a "newsworthy person" a right of action when his or her name, picture or portrait was the subject of a "fictitious" report or article. Material and substantial falsification was the test for -386. Under this doctrine the New York courts awarded the plaintiff James compensatory damages based on his complaint that Life Magazine had falsely reported that a new Broadway play portrayed the family's experience in being held hostage by three escaped convicts. This Court, guided by its decision in New York Times which recognized constitutional limits on a State's power to award damages for libel in actions brought by public officials, held that the constitutional protections for speech and press precluded the application of the New York statute to allow recovery for "false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth." Although the jury could have reasonably concluded from the evidence in the case that Life had engaged in knowing falsehood or had recklessly disregarded the truth in stating in the article that "the story re-enacted" the family's experience, the Court concluded that the trial judge's instructions had not confined the jury to such a finding as a predicate for liability as required by the Constitution. The District Judge in the case before us, in contrast to the trial judge in Time, did instruct the jury that liability could be imposed only if it concluded that the false statements in the Sunday Magazine feature *250 article on the Cantrells had been made with knowledge of their falsity or in reckless disregard of the truth.[3] No objection was made by any of the parties to this knowing-or-reckless-falsehood instruction. Consequently, this case presents no occasion to consider whether a State may constitutionally apply a more relaxed standard of liability for a publisher or broadcaster of false statements injurious to a private individual under a false-light theory of invasion of privacy, or whether the constitutional standard *251 announced in Time, applies to all false-light cases. Cf. Rather, the sole question that we need decide is whether the Court of Appeals erred in setting aside the jury's verdict. III At the close of the petitioners' case-in-chief, the District Judge struck the demand for punitive damages. He found that Mrs. Cantrell had failed to present any evidence to support the charges that the invasion of privacy "was done maliciously within the legal definition of that term." The Court of Appeals interpreted this finding to be a determination by the District Judge that there was no evidence of knowing falsity or reckless disregard of the truth introduced at the trial. Having made such a determination, the Court of Appeals held that the District Judge should have granted the motion for a directed verdict for respondents as to all the Cantrells' The Court of Appeals appears to have assumed that the District Judge's finding of no malice "within the legal definition of that term" was a finding based on the definition of "actual malice" established by this Court in New York Times : "with knowledge that [a defamatory statement] was false or with reckless disregard of whether it was false or not." As so defined, of course, "actual malice" is a term of art, created to provide a convenient shorthand expression for the standard of liability that must be established before a State may constitutionally permit public officials to recover for libel in actions brought against publishers.[4] As *252 such, it is quite different from the common-law standard of "malice" generally required under state tort law to support an award of punitive damages. In a false-light case, common-law malice—frequently expressed in terms of either personal ill will toward the plaintiff or reckless or wanton disregard of the plaintiff's rights—would focus on the defendant's attitude toward the plaintiff's privacy, not toward the truth or falsity of the material published. See Time, n. 12. See generally W. Prosser, Law of Torts 9-10 (4th ed.). Although the verbal record of the District Court proceedings is not entirely unambiguous, the conclusion is inescapable that the District Judge was referring to the common-law standard of malice rather than to the New York Times "actual malice" standard when he dismissed the punitive damages For at the same time that he dismissed the demands for punitive damages, the District Judge refused to grant the respondents' motion for directed verdicts as to Mrs. Cantrell's and William's claims for compensatory damages. And, as his instructions to the jury made clear, the District Judge was fully aware that the Time, meaning of the New York Times "actual malice" standard had to be satisfied for the Cantrells to recover actual damages. Thus, the only way to harmonize these two virtually simultaneous rulings by the District Judge is to conclude, contrary to the decision of the Court of Appeals, that in dismissing the punitive damages claims he was not determining that Mrs. Cantrell had failed to introduce any evidence of knowing falsity or reckless disregard of the truth. This conclusion is further fortified by the District Judge's subsequent denial of the respondents' motion for judgment n. o. v. and alternative motion for a new trial. Moreover, the District Judge was clearly correct in believing that the evidence introduced at trial was sufficient *253 to support a jury finding that the respondents Joseph Eszterhas and Forest City Publishing Co. had published knowing or reckless falsehoods about the Cantrells.[5] There was no dispute during the trial that Eszterhas, who did not testify, must have known that a number of the statements in the feature story were untrue. In particular, his article plainly implied that Mrs. Cantrell had been present during his visit to her home and that Eszterhas had observed her "wear[ing] the same mask of nonexpression she wore [at her husband's] funeral." These were "calculated falsehoods," and the jury was plainly justified in finding that Eszterhas had portrayed the Cantrells in a false light through knowing or reckless untruth. The Court of Appeals concluded that there was no evidence that Forest City Publishing Co. had knowledge of any of the inaccuracies contained in Eszterhas' article. However, there was sufficient evidence for the jury to find that Eszterhas' writing of the feature was within the scope of his employment at the Plain Dealer and that Forest City Publishing Co. was therefore liable under traditional doctrines of respondeat superior.[6] Although Eszterhas was not regularly *254 assigned by the Plain Dealer to write for the Sunday Magazine, the editor of the magazine testified that as a staff writer for the Plain Dealer Eszterhas frequently suggested stories he would like to write for the magazine. When Eszterhas suggested the follow-up article on the Silver Bridge disaster, the editor approved the idea and told Eszterhas the magazine would publish the feature if it was good. From this evidence, the jury could reasonably conclude that Forest City Publishing Co., publisher of the Plain Dealer, should be held vicariously liable for the damage caused by the knowing falsehoods contained in Eszterhas' story. For the foregoing reasons, the judgment of the Court of Appeals is reversed and the case is remanded to that court with directions to enter a judgment affirming the judgment of the District Court as to the respondents Forest City Publishing Co. and Joseph Eszterhas. It is so ordered. MR.

Justice Ginsburg

majority

Levin v. Commerce Energy, Inc.

https://www.courtlistener.com/opinion/147528/levin-v-commerce-energy-inc/

https://www.courtlistener.com/api/rest/v3/clusters/147528/

2009-062

This case presents the question whether a federal dis­ trict court may entertain a complaint of allegedly dis­ criminatory state taxation, framed as a request to increase a commercial competitor’s tax burden. Relevant to our inquiry is the Tax Injunction Act (TIA or Act), 28 U.S. C. §1341, which prohibits lower federal courts from restrain­ ing “the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” More embracive than the TIA, the comity doctrine applicable in state taxation cases restrains federal courts from entertaining claims for relief that risk disrupting state tax administration. See Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100 (1981). The comity doctrine, we hold, requires that a claim of the kind here presented proceed originally in state court. In so ruling, we distinguish Hibbs v. Winn, 542 U.S. 88 (2004), in which the Court held that neither the TIA nor the comity doctrine barred a federal district court from adjudicating an Establishment Clause chal­ lenge to a state tax credit that allegedly funneled public 2 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court funds to parochial schools. I A Historically, all natural gas consumers in Ohio pur­ chased gas from the public utility, known as a local distri­ bution company (LDC), serving their geographic area. In addition to selling gas as a commodity, LDCs own and operate networks of distribution pipelines to transport and deliver gas to consumers. LDCs offer customers a single, bundled product comprising both gas and delivery. Today, consumers in Ohio’s major metropolitan areas can alternatively contract with an independent marketer (IM) that competes with LDCs for retail sales of natural gas. IMs do not own or operate distribution pipelines; they use LDCs’ pipelines. When a customer goes with an IM, therefore, she purchases two “unbundled” products: gas (from the IM) and delivery (from the LDC). Ohio treats LDCs and IMs differently for tax purposes. Relevant here, Ohio affords LDCs three tax exemptions that IMs do not receive. First, LDCs’ natural gas sales are exempt from sales and use taxes. Ohio Rev. Code Ann. §5739.02(B)(7) (Lexis Supp. 2010); §§5739.021(E), .023(G), .026(F) (Lexis 2008); §§5741.02(C), .021(A), .022(A), .023(A) (Lexis 2008). LDCs owe instead a gross receipts excise tax, §5727.24, which is lower than the sales and use taxes IMs must collect. Second, LDCs are not subject to the commercial activities tax imposed on IMs’ taxable gross receipts. §§5751.01(E)(2), .02 (Lexis Supp. 2010). Finally, Ohio law excludes inter-LDC natural gas sales from the gross receipts tax, which IMs must pay when they purchase gas from LDCs. §5727.33(B)(4) (Lexis 2008). B Plaintiffs-respondents Commerce Energy, Inc., a Cali­ Cite as: 560 U. S. ____ (2010) 3 Opinion of the Court fornia corporation, and Interstate Gas Supply, Inc., an Ohio company, are IMs that market and sell natural gas to Ohio consumers. Plaintiff-respondent Gregory Slone is an Ohio citizen who has purchased natural gas from In­ terstate Gas Supply since 1999. Alleging discriminatory taxation of IMs and their patrons in violation of the Com­ merce and Equal Protection Clauses, Complaint ¶¶35–39, App. 11–13, respondents sued Richard A. Levin, Tax Commissioner of Ohio (Commissioner), in the U. S. Dis­ trict Court for the Southern District of Ohio. Invoking that court’s federal-question jurisdiction under 28 U.S. C. §1331, Complaint ¶6, App. 3, respondents sought declara­ tory and injunctive relief invalidating the three tax ex­ emptions LDCs enjoy and ordering the Commissioner to stop “recognizing and/or enforcing” the exemptions. Id., at 20–21. Respondents named the Commissioner as sole defendant; they did not extend the litigation to include the LDCs whose tax burden their suit aimed to increase.1 The District Court granted the Commissioner’s motion to dismiss the complaint. The TIA did not block the suit, the District Court initially held, because respondents, like the plaintiffs in Hibbs, were “third-parties challenging the constitutionality of [another’s] tax benefit,” and their requested relief “would not disrupt the flow of tax reve­ nue” to the State. App. to Pet. for Cert. 24a. Nevertheless, the District Court “decline[d] to exercise jurisdiction” as a matter of comity. Id., at 32a. Ohio’s Legislature, the District Court observed, chose to provide the challenged tax exemptions to LDCs. Respondents requested relief that would “requir[e] Ohio to collect taxes which its legislature has not seen fit to impose.” Ibid. —————— 1 In moving to dismiss the complaint, the Commissioner urged, inter alia, that the LDCs were parties necessary to a just adjudication. See Fed. Rule Civ. Proc. 19. Ruling for the Commissioner on comity grounds, the District Court did not reach the question whether the LDCs were indispensable parties. App. to Pet. for Cert. 21a, 32a–33a. 4 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court (internal quotation marks omitted). Such relief, the court said, would draw federal judges into “a particularly inap­ propriate involvement in a state’s management of its fiscal operations.” Ibid. (internal quotation marks omitted). A state court, the District Court recognized, could extend the exemptions to IMs, but the TIA proscribed this revenue­ reducing relief in federal court. “Where there would be two possible remedies,” the Court concluded, a federal court should not “impose its own judgment on the state legislature mandating which remedy is appropriate.” Ibid. The U. S. Court of Appeals for the Sixth Circuit re­ versed. 554 F.3d 1094 (2009). While agreeing that the TIA did not bar respondents’ suit, the Sixth Circuit re­ jected the District Court’s comity ruling. A footnote in Hibbs, the Court of Appeals believed, foreclosed the Dis­ trict Court’s “expansive reading” of this Court’s comity precedents. 554 F.3d, at 1098. The footnote stated that the Court “has relied upon ‘principles of comity’ to pre­ clude original federal-court jurisdiction only when plain­ tiffs have sought district-court aid in order to arrest or countermand state tax collection.” Hibbs, 542 U.S., at 107, n. 9 (citation omitted). A broad view of the comity cases, the Sixth Circuit feared, would render the TIA “effectively superfluous,” and would “sub silentio overrule a series of important cases” presenting challenges to state tax measures. 554 F.3d, at 1099, 1102 (citing Milliken v. Bradley, 433 U.S. 267 (1977); Mueller v. Allen, 463 U.S. 388 (1983)); 554 F.3d, at 1099–1100. In so ruling, the Sixth Circuit agreed with the Seventh and Ninth Circuits, which had similarly read Hibbs to rein in the comity doctrine, see Levy v. Pappas, 510 F.3d 755 (CA7 2007); Wilbur v. Locke, 423 F.3d 1101 (CA9 2005), and it disagreed with the Fourth Circuit, which had con­ cluded that Hibbs left comity doctrine untouched, see DIRECTV, Inc. v. Tolson, 513 F.3d 119 (2008). Noting that respondents “challenge[d] only a few limited exemp­ Cite as: 560 U. S. ____ (2010) 5 Opinion of the Court tions,” and satisfied, therefore, that “[respondents’] suc­ cess would not significantly intrude upon traditional matters of state taxation,” the Sixth Circuit remanded the case for adjudication of the merits. 554 F.3d, at 1102. After unsuccessfully moving for rehearing en banc, App. to Pet. for Cert. 1a–2a, the Commissioner petitioned for certiorari. By then, the First Circuit had joined the Sixth, Seventh, and Ninth Circuits in holding that Hibbs sharply limited the scope of the comity bar. Coors Brewing Co. v. Méndez-Torres, 562 F.3d 3 (2009). We granted the Com­ missioner’s petition, 558 U. S. ___ (2009), to resolve the disagreement among the Circuits. II A Comity considerations, the Commissioner dominantly urges, preclude the exercise of lower federal-court adjudi­ catory authority over this controversy, given that an ade­ quate state-court forum is available to hear and decide respondents’ constitutional claims. We agree. The comity doctrine counsels lower federal courts to resist engagement in certain cases falling within their jurisdiction. The doctrine reflects “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to per­ form their separate functions in separate ways.” Fair Assessment, 454 U.S., at 112 (quoting Younger v. Harris, 401 U.S. 37, 44 (1971)). Comity’s constraint has particular force when lower fed­ eral courts are asked to pass on the constitutionality of state taxation of commercial activity. For “[i]t is upon taxation that the several States chiefly rely to obtain the 6 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible.” Dows v. Chicago, 11 Wall. 108, 110 (1871). “An examination of [our] decisions,” this Court wrote more than a century ago, “shows that a proper reluctance to interfere by prevention with the fiscal operations of the state governments has caused [us] to refrain from so doing in all cases where the Federal rights of the persons could otherwise be preserved unimpaired.” Boise Artesian Hot & Cold Water Co. v. Boise City, 213 U.S. 276, 282 (1909). Accord Matthews v. Rodgers, 284 U.S. 521, 525–526 (1932) (So long as the state remedy was “plain, adequate, and complete,” the “scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such relief should be denied in every case where the asserted federal right may be preserved without it.”).2 —————— 2 Justice Brennan cogently explained, in practical terms, “the special reasons justifying the policy of federal noninterference with state tax collection”: “The procedures for mass assessment and collection of state taxes and for administration and adjudication of taxpayers’ disputes with tax officials are generally complex and necessarily designed to operate according to established rules. State tax agencies are organized to discharge their responsibilities in accordance with the state procedures. If federal declaratory relief were available to test state tax assess­ ments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State’s budget, and perhaps a shift to the State of the risk of taxpayer insolvency. Moreover, federal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts.” Perez v. Cite as: 560 U. S. ____ (2010) 7 Opinion of the Court Statutes conferring federal jurisdiction, we have repeat­ edly cautioned, should be read with sensitivity to “federal­ state relations” and “wise judicial administration.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996) (internal quotation marks omitted). But by 1937, in state tax cases, the federal courts had moved in a different direction: they “had become free and easy with injunc­ tions.” Fair Assessment, 454 U.S., at 129 (Brennan, J., concurring in judgment) (internal quotation marks omit­ ted).3 Congress passed the TIA to reverse this trend. Id., at 109–110 (opinion of the Court). Our post-Act decisions, however, confirm the continuing sway of comity considerations, independent of the Act. Plaintiffs in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943), for example, sought a federal judg­ ment declaring Louisiana’s unemployment compensation tax unconstitutional. Writing six years after the TIA’s passage, we emphasized the Act’s animating concerns: A “federal court of equity,” we reminded, “may in an appro­ priate case refuse to give its special protection to private rights when the exercise of its jurisdiction would be preju­ dicial to the public interest, [and] should stay its hand in the public interest when it reasonably appears that pri­ vate interests will not suffer.” Id., at 297–298 (citations omitted). In enacting the TIA, we noted, “Congress recog­ —————— Ledesma, 401 U.S. 82, 128, n. 17 (1971) (opinion concurring in part and dissenting in part). 3 Two features of federal equity practice accounted for the courts’ willingness to grant injunctive relief. First, the Court had held that, although “equity jurisdiction does not lie where there exists an ade­ quate legal remedy[,] . . . the ‘adequate legal remedy’ must be one cognizable in federal court.” Fair Assessment, 454 U.S., at 129, n. 15 (Brennan, J., concurring in judgment) (emphasis in original). Second, federal courts, “construing strictly the requirement that the remedy available at law be ‘plain, adequate and complete,’ had frequently concluded that the procedures provided by the State were not ade­ quate.” Ibid. (citation omitted). 8 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court nized and gave sanction to this practice.” Id., at 298. We could not have thought Congress intended to cabin the comity doctrine, for we went on to instruct dismissal in Great Lakes on comity grounds without deciding whether the Act reached declaratory judgment actions. Id., at 299, 301–302.4 Decades later, in Fair Assessment, we ruled, based on comity concerns, that 42 U.S. C. §1983 does not permit federal courts to award damages in state taxation cases when state law provides an adequate remedy. 454 U.S., at 116. We clarified in Fair Assessment that “the principle of comity which predated the Act was not restricted by its passage.” Id., at 110. And in National Private Truck Council, Inc. v. Oklahoma Tax Comm’n, 515 U.S. 582, 590 (1995), we said, explicitly, that “the [TIA] may be best understood as but a partial codification of the federal reluctance to interfere with state taxation.” B Although our precedents affirm that the comity doctrine is more embracive than the TIA, several Courts of Ap­ peals, including the Sixth Circuit in the instant case, have comprehended Hibbs to restrict comity’s compass. See supra, at 4–5. Hibbs, however, has a more modest reach. Plaintiffs in Hibbs were Arizona taxpayers who chal­ lenged a state law authorizing tax credits for payments to organizations that disbursed scholarship grants to chil­ dren attending private schools. 542 U.S., at 94–96. These organizations could fund attendance at institutions that provided religious instruction or gave admissions preference on the basis of religious affiliation. Id., at 95. Ranking the credit program as state subsidization of religion, incompatible with the Establishment Clause, —————— 4 We later held that the Act indeed does proscribe suits for declara­ tory relief that would thwart state tax collection. California v. Grace Brethren Church, 457 U.S. 393, 411 (1982). Cite as: 560 U. S. ____ (2010) 9 Opinion of the Court plaintiffs sought declaratory and injunctive relief and an order requiring the organizations to pay sums still in their possession into the State’s general fund. Id., at 96. The Director of Arizona’s Department of Revenue sought to escape suit in federal court by invoking the TIA. We held that the litigation fell outside the TIA’s governance. Our prior decisions holding suits blocked by the TIA, we noted, were tied to the Act’s “state-revenue-protective moorings.” Id., at 106. The Act, we explained, “re­ strain[ed] state taxpayers from instituting federal actions to contest their [own] liability for state taxes,” id., at 108, suits that, if successful, would deplete state coffers. But “third parties” like the Hibbs plaintiffs, we concluded, were not impeded by the TIA “from pursuing constitu­ tional challenges to tax benefits in a federal forum.” Ibid. The case, we stressed, was “not rationally distinguishable” from a procession of pathmarking civil-rights controver­ sies in which federal courts had entertained challenges to state tax credits without conceiving of the TIA as a juris­ dictional barrier. Id., at 93–94, 110–112. See, e.g., Griffin v. School Bd. of Prince Edward Cty., 377 U.S. 218 (1964) (involving, inter alia, tax credits for contributions to pri­ vate segregated schools). Arizona’s Revenue Director also invoked comity as cause for dismissing the action. We dispatched the Director’s comity argument in a spare footnote that moved the Sixth Circuit here to reverse the District Court’s comity-based dismissal. As earlier set out, see supra, at 4, the footnote stated: “[T]his Court has relied upon ‘principles of comity’ to preclude original federal-court jurisdiction only when plaintiffs have sought district-court aid in order to arrest or countermand state tax collection.” 542 U.S., at 107, n. 9 (citation omitted) (citing Fair Assessment, 454 U.S., at 107–108; Great Lakes, 319 U.S., at 296–299). Relying heavily on our footnote in Hibbs, respondents urge that “comity should no more bar this action than it 10 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court did the action in Hibbs.” Brief for Respondents 42. As we explain below, however, the two cases differ markedly in ways bearing on the comity calculus. We have had no prior occasion to consider, under the comity doctrine, a taxpayer’s complaint about allegedly discriminatory state taxation framed as a request to increase a competitor’s tax burden. Now squarely presented with the question, we hold that comity precludes the exercise of original federal­ court jurisdiction in cases of the kind presented here. III A Respondents complain that they are taxed unevenly in comparison to LDCs and their customers. Under either an equal protection or dormant Commerce Clause theory, respondents’ root objection is the same: State action, respondents contend, “selects [them] out for discrimina­ tory treatment by subjecting [them] to taxes not imposed on others of the same class.” Hillsborough v. Cromwell, 326 U.S. 620, 623 (1946) (equal protection); see Dennis v. Higgins, 498 U.S. 439, 447–448 (1991) (dormant Com­ merce Clause). When economic legislation does not employ classifica­ tions subject to heightened scrutiny or impinge on funda­ mental rights,5 courts generally view constitutional chal­ lenges with the skepticism due respect for legislative choices demands. See, e.g., Hodel v. Indiana, 452 U.S. 314, 331–332 (1981); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488–489 (1955). And “in taxation, even more than in other fields, legislatures possess the greatest freedom in classification.” Madden v. Kentucky, —————— 5 Cf., e.g., Loving v. Virginia, 388 U.S. 1 (1967); United States v. Vir­ ginia, 518 U.S. 515 (1996). On the federal courts’ role in safeguarding human rights, see, e.g., Zwickler v. Koota, 389 U.S. 241, 245–248 (1967); McNeese v. Board of Ed. for Community Unit School Dist. 187, 373 U.S. 668, 672–674, and n. 6 (1963). Cite as: 560 U. S. ____ (2010) 11 Opinion of the Court 309 U.S. 83, 88 (1940). Of key importance, when unlawful discrimination in­ fects tax classifications or other legislative prescriptions, the Constitution simply calls for equal treatment. How equality is accomplished—by extension or invalidation of the unequally distributed benefit or burden, or some other measure—is a matter on which the Constitution is silent. See Heckler v. Mathews, 465 U.S. 728, 740 (1984) (“[W]hen the right invoked is that to equal treatment, the appropriate remedy is a mandate of equal treatment, a result that can be accomplished” in more than one way. (quoting Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 247 (1931); internal quotation marks omitted)). On finding unlawful discrimination, we have affirmed, courts may attempt, within the bounds of their institu­ tional competence, to implement what the legislature would have willed had it been apprised of the constitu­ tional infirmity. Mathews, 465 U.S., at 739, n. 5; Califano v. Westcott, 443 U.S. 76, 92–93 (1979); see Stanton v. Stanton, 421 U.S. 7, 17–18 (1975) (how State eliminates unconstitutional discrimination “plainly is an issue of state law”); cf. United States v. Booker, 543 U.S. 220, 246 (2005) (“legislative intent” determines cure for constitu­ tional violation). The relief the complaining party re­ quests does not circumscribe this inquiry. See Westcott, 443 U.S., at 96, n. 2 (Powell, J., concurring in part and dissenting in part) (“This issue should turn on the intent of [the legislature], not the interests of the parties.”). With the State’s legislative prerogative firmly in mind, this Court, upon finding impermissible discrimination in a State’s allocation of benefits or burdens, generally re­ mands the case, leaving the remedial choice in the hands of state authorities. See, e.g., Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 152–153 (1980); Orr v. Orr, 440 U.S. 268, 283–284 (1979); Stanton, 421 U.S., at 17–18; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 12 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court 543 (1942). But see, e.g., Levy v. Louisiana, 391 U.S. 68 (1968). In particular, when this Court—on review of a state high court’s decision—finds a tax measure constitutionally infirm, “it has been our practice,” for reasons of “federal­ state comity,” “to abstain from deciding the remedial effects of such a holding.” American Trucking Assns., Inc. v. Smith, 496 U.S. 167, 176 (1990) (plurality opinion).6 A “State found to have imposed an impermissibly discrimi­ natory tax retains flexibility in responding to this deter­ mination.” McKesson Corp. v. Division of Alcoholic Bever­ ages and Tobacco, Fla. Dept. of Business Regulation, 496 U.S. 18, 39–40 (1990). Our remand leaves the interim solution in state-court hands, subject to subsequent defini­ tive disposition by the State’s legislature. If lower federal courts were to give audience to the merits of suits alleging uneven state tax burdens, how­ ever, recourse to state court for the interim remedial determination would be unavailable. That is so because federal tribunals lack authority to remand to the state court system an action initiated in federal court. Federal judges, moreover, are bound by the TIA; absent certain exceptions, see, e.g., Department of Employment v. United States, 385 U.S. 355, 357–358 (1966), the Act precludes relief that would diminish state revenues, even if such relief is the remedy least disruptive of the state legisla­ ture’s design.7 These limitations on the remedial compe­ —————— 6 See, e.g., Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 100–102 (1993); McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U.S. 18, 51–52 (1990); Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 818 (1989); American Trucking Assns., Inc. v. Scheiner, 483 U.S. 266, 297–298 (1987); Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U.S. 232, 252–253 (1987); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 276– 277 (1984); Exxon Corp. v. Eagerton, 462 U.S. 176, 196–197 (1983); Louis K. Liggett Co. v. Lee, 288 U.S. 517, 540–541 (1933). 7 State courts also have greater leeway to avoid constitutional hold­ Cite as: 560 U. S. ____ (2010) 13 Opinion of the Court tence of lower federal courts counsel that they refrain from taking up cases of this genre, so long as state courts are equipped fairly to adjudicate them.8 B Comity considerations, as the District Court deter­ mined, warrant dismissal of respondents’ suit. Assuming, arguendo, that respondents could prevail on the merits of the suit,9 the most obvious way to achieve parity would be to reduce respondents’ tax liability. Respondents did not seek such relief, for the TIA stands in the way of any decree that would “enjoin . . . collection of [a] tax under State law.” 28 U.S. C. §1341.10 A more ambitious solu­ tion would reshape the relevant provisions of Ohio’s tax code. Were a federal court to essay such relief, however, the court would engage in the very interference in state taxation the comity doctrine aims to avoid. Cf. State Railroad Tax Cases, 92 U.S. 575, 614–615 (1876). Re­ spondents’ requested remedy, an order invalidating the exemptions enjoyed by LDCs, App. 20–21, may be far from —————— ings by adopting “narrowing constructions that might obviate the constitutional problem and intelligently mediate federal constitutional concerns and state interests.” Moore v. Sims, 442 U.S. 415, 429–430 (1979). 8 Any substantial federal question, of course, “could be reviewed when the case [comes to this Court] through the hierarchy of state courts.” McNeese, 373 U.S., at 673. 9 But see General Motors Corp. v. Tracy, 519 U.S. 278, 279–280 (1997) (determining, at a time IMs could not compete with LDCs for the Ohio residential “captive” market, that IMs and LDCs were not “simi­ larly situated”; and rejecting industrial IM customer’s dormant Com­ merce Clause and equal protection challenges to LDCs’ exemption from sales and use taxes). 10 Previous language restricting the district courts’ “jurisdiction” was removed in the 1948 revision of Title 28. Compare 28 U.S. C. §41(1) (1940 ed.) with §1341, 62 Stat. 932. This Court and others have con­ tinued to regard the Act as jurisdictional. See, e.g., post, at 1 (THOMAS, J., concurring in judgment). 14 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court what the Ohio Legislature would have willed. See supra, at 11. In short, if the Ohio scheme is indeed unconstitu­ tional, surely the Ohio courts are better positioned to determine—unless and until the Ohio Legislature weighs in—how to comply with the mandate of equal treatment. See Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 817–818 (1989).11 As earlier noted, our unelaborated footnote on comity in Hibbs, see supra, at 9, led the Sixth Circuit to conclude that we had diminished the force of that doctrine and made it inapplicable here. We intended no such conse­ quential ruling. Hibbs was hardly a run-of-the-mine tax case. It was essentially an attack on the allocation of state resources for allegedly unconstitutional purposes. In Hibbs, the charge was state aid in alleged violation of the Establishment Clause; in other cases of the same genre, the attack was on state allocations to maintain racially segregated schools. See Hibbs, 542 U.S., at 93–94, 110– 112. The plaintiffs in Hibbs were outsiders to the tax expenditure, “third parties” whose own tax liability was not a relevant factor. In this case, by contrast, the very premise of respondents’ suit is that they are taxed differ­ ently from LDCs. Unlike the Hibbs plaintiffs, respondents do object to their own tax situation, measured by the allegedly more favorable treatment accorded LDCs. Hibbs held that the TIA did not preclude a federal chal­ lenge by a third party who objected to a tax credit received —————— 11 Respondents note that “[o]nce the district court grants the minimal relief requested—to disallow the exemptions—it will be up to the Ohio General Assembly to balance its own interests and determine how best to recast the tax laws, within constitutional restraints.” Brief for Respondents 41. But the legislature may not be convened on the spot, and the blunt interim relief respondents ask the District Court to decree “may [immediately] derange the operations of government, and thereby cause serious detriment to the public.” Dows v. Chicago, 11 Wall. 108, 110 (1871). Cite as: 560 U. S. ____ (2010) 15 Opinion of the Court by others, but in no way objected to her own liability under any revenue-raising tax provision. In context, we clarify, the Hibbs footnote comment on comity is most sensibly read to affirm that, just as the case was a poor fit under the TIA, so it was a poor fit for comity. The Court, in other words, did not deploy the footnote to recast the comity doctrine; it intended the note to convey only that the Establishment Clause-grounded case cleared both the TIA and comity hurdles. Respondents steadfastly maintain that this case is fit for federal-court adjudication because of the simplicity of the relief they seek, i.e., invalidation of exemptions accorded the LDCs. But as we just explained, even if respondents’ Commerce Clause and equal protection claims had merit, respondents would have no entitlement to their preferred remedy. See supra, at 11. In Hibbs, however, if the Dis­ trict Court found the Arizona tax credit impermissible under the Establishment Clause, only one remedy would redress the plaintiffs’ grievance: invalidation of the credit, which inevitably would increase the State’s tax receipts. Notably, redress in state court similarly would be limited to an order ending the allegedly impermissible state sup­ port for parochial schools.12 Because state courts would have no greater leeway than federal courts to cure the alleged violation, nothing would be lost in the currency of comity or state autonomy by permitting the Hibbs suit to proceed in a federal forum. Comity, in sum, serves to ensure that “the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always en­ deavors to do so in ways that will not unduly interfere —————— 12 No refund suit (or other taxpayer mechanism) was open to the plaintiffs in Hibbs, who were financially disinterested “third parties”; they did not, therefore, improperly bypass any state procedure. Re­ spondents here, however, could have asserted their federal rights by seeking a reduction in their tax bill in an Ohio refund suit. 16 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court with the legitimate activities of the States.” Younger, 401 U.S., at 44. A confluence of factors in this case, absent in Hibbs, leads us to conclude that the comity doctrine con­ trols here. First, respondents seek federal-court review of commercial matters over which Ohio enjoys wide regula­ tory latitude; their suit does not involve any fundamental right or classification that attracts heightened judicial scrutiny. Second, while respondents portray themselves as third-party challengers to an allegedly unconstitutional tax scheme, they are in fact seeking federal-court aid in an endeavor to improve their competitive position. Third, the Ohio courts are better positioned than their federal coun­ terparts to correct any violation because they are more familiar with state legislative preferences and because the TIA does not constrain their remedial options. Individu­ ally, these considerations may not compel forbearance on the part of federal district courts; in combination, how­ ever, they demand deference to the state adjudicative process. C The Sixth Circuit expressed concern that application of the comity doctrine here would render the TIA “effectively superfluous.” 554 F.3d, at 1099; see id., at 1102. This concern overlooks Congress’ point in enacting the TIA. The Act was passed to plug two large loopholes courts had opened in applying the comity doctrine. See supra, at 7, and n. 3. By closing these loopholes, Congress secured the doctrine against diminishment. Comity, we further note, is a prudential doctrine. “If the State voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the case back into the State’s own system.” Ohio Bureau of Employment Servs. v. Hodory, 431 U.S. 471, 480 (1977). Cite as: 560 U. S. ____ (2010) 17 Opinion of the Court IV Because we conclude that the comity doctrine justifies dismissal of respondents’ federal-court action, we need not decide whether the TIA would itself block the suit. See Great Lakes, 319 U.S., at 299, 301 (reserving judgment on TIA’s application where comity precluded suit). See also Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (federal court has flexibility to choose among threshold grounds for dismissal).13 * * * For the reasons stated, the Sixth Circuit’s judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— 13 The District Court and Court of Appeals concluded that our deci­ sion in Hibbs placed the controversy outside the TIA’s domain. That conclusion, we note, bears reassessment in light of this opinion’s discussion of the significant differences between Hibbs and this case. Cite as: 560 U. S. ____ (2010) 1 KENNEDY, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 09–223 _________________ RICHARD A. LEVIN, TAX COMMISSIONER OF OHIO, PETITIONER v. COMMERCE ENERGY, INC., ET AL.

This case presents the question whether a federal dis­ trict court may entertain a complaint of allegedly dis­ criminatory state taxation, framed as a request to increase a commercial competitor’s tax burden. Relevant to our inquiry is the Tax Injunction Act (TIA or Act), 28 U.S. C. which prohibits lower federal courts from restrain­ ing “the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” More embracive than the TIA, the comity doctrine applicable in state taxation cases restrains federal courts from entertaining claims for relief that risk disrupting state tax administration. See Fair in Real Estate Assn., Inc. v. McNary, 454 U.S. 100 (1981). The comity doctrine, we hold, requires that a claim of the kind here presented proceed originally in state court. In so ruling, we distinguish in which the Court held that neither the TIA nor the comity doctrine barred a federal district court from adjudicating an Establishment Clause chal­ lenge to a state tax credit that allegedly funneled public 2 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court funds to parochial I A Historically, all natural gas consumers in Ohio pur­ chased gas from the public utility, known as a local distri­ bution company (LDC), serving their geographic area. In addition to selling gas as a commodity, LDCs own and operate networks of distribution pipelines to transport and deliver gas to consumers. LDCs offer customers a single, bundled product comprising both gas and delivery. Today, consumers in Ohio’s major metropolitan areas can alternatively contract with an independent marketer (IM) that competes with LDCs for retail sales of natural gas. IMs do not own or operate distribution pipelines; they use LDCs’ pipelines. When a customer goes with an IM, therefore, she purchases two “unbundled” products: gas (from the IM) and delivery (from the LDC). Ohio treats LDCs and IMs differently for tax purposes. Relevant here, Ohio affords LDCs three tax exemptions that IMs do not receive. First, LDCs’ natural gas sales are exempt from sales and use taxes. Ohio Rev. Code Ann. (Lexis Supp. 2010);023(G),026(F) ;021(A),022(A),023(A) LDCs owe instead a gross receipts excise tax, which is lower than the sales and use taxes IMs must collect. Second, LDCs are not subject to the commercial activities tax imposed on IMs’ taxable gross receipts.02 (Lexis Supp. 2010). Finally, Ohio law excludes inter-LDC natural gas sales from the gross receipts tax, which IMs must pay when they purchase gas from LDCs. B Plaintiffs-respondents Commerce Energy, Inc., a Cali­ Cite as: 560 U. S. (2010) 3 Opinion of the Court fornia corporation, and Interstate Gas Supply, Inc., an Ohio company, are IMs that market and sell natural gas to Ohio consumers. Plaintiff-respondent Gregory Slone is an Ohio citizen who has purchased natural gas from In­ terstate Gas Supply since 1999. Alleging discriminatory taxation of IMs and their patrons in violation of the Com­ merce and Equal Protection Clauses, Complaint ¶¶35–39, App. 11–13, respondents sued Richard A. Levin, Tax Commissioner of Ohio (Commissioner), in the U. S. Dis­ trict Court for the Southern District of Ohio. Invoking that court’s federal-question jurisdiction under 28 U.S. C. Complaint ¶6, App. 3, respondents sought declara­ tory and injunctive relief invalidating the three tax ex­ emptions LDCs enjoy and ordering the Commissioner to stop “recognizing and/or enforcing” the exemptions. at 20–21. Respondents named the Commissioner as sole defendant; they did not extend the litigation to include the LDCs whose tax burden their suit aimed to increase.1 The District Court granted the Commissioner’s motion to dismiss the complaint. The TIA did not block the suit, the District Court initially held, because respondents, like the plaintiffs in were “third-parties challenging the constitutionality of [another’s] tax benefit,” and their requested relief “would not disrupt the flow of tax reve­ nue” to the State. App. to Pet. for Cert. 24a. Nevertheless, the District Court “decline[d] to exercise jurisdiction” as a matter of comity. at 32a. Ohio’s Legislature, the District Court observed, chose to provide the challenged tax exemptions to LDCs. Respondents requested relief that would “requir[e] Ohio to collect taxes which its legislature has not seen fit to impose.” —————— 1 In moving to dismiss the complaint, the Commissioner urged, inter alia, that the LDCs were parties necessary to a just adjudication. See Fed. Rule Civ. Proc. 19. Ruling for the Commissioner on comity grounds, the District Court did not reach the question whether the LDCs were indispensable parties. App. to Pet. for Cert. 21a, 32a–33a. 4 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court Such relief, the court said, would draw federal judges into “a particularly inap­ propriate involvement in a state’s management of its fiscal operations.” A state court, the District Court recognized, could extend the exemptions to IMs, but the TIA proscribed this revenue­ reducing relief in federal court. “Where there would be two possible remedies,” the Court concluded, a federal court should not “impose its own judgment on the state legislature mandating which remedy is appropriate.” The U. S. Court of Appeals for the Sixth Circuit re­ versed. While agreeing that the TIA did not bar respondents’ suit, the Sixth Circuit re­ jected the District Court’s comity ruling. A footnote in the Court of Appeals believed, foreclosed the Dis­ trict Court’s “expansive reading” of this Court’s comity The footnote stated that the Court “has relied upon ‘principles of comity’ to pre­ clude original federal-court jurisdiction only when plain­ tiffs have sought district-court aid in order to arrest or countermand state tax collection.” 542 U.S., at 107, n. 9 A broad view of the comity cases, the Sixth Circuit feared, would render the TIA “effectively superfluous,” and would “sub silentio overrule a series of important cases” presenting challenges to state tax 1102 ; Mueller v. Allen, 463 U.S. 3 ); –1100. In so ruling, the Sixth Circuit agreed with the Seventh and Ninth Circuits, which had similarly read to rein in the comity doctrine, see (CA7 2007); and it disagreed with the Fourth Circuit, which had con­ cluded that left comity doctrine untouched, see DIRECTV, Noting that respondents “challenge[d] only a few limited exemp­ Cite as: 560 U. S. (2010) 5 Opinion of the Court tions,” and satisfied, therefore, that “[respondents’] suc­ cess would not significantly intrude upon traditional matters of state taxation,” the Sixth Circuit remanded the case for adjudication of the After unsuccessfully moving for rehearing en banc, App. to Pet. for Cert. 1a–2a, the Commissioner petitioned for certiorari. By then, the First Circuit had joined the Sixth, Seventh, and Ninth Circuits in holding that sharply limited the scope of the comity bar. Coors Brewing Co. v. Méndez-Torres, We granted the Com­ missioner’s petition, 558 U. S. to resolve the disagreement among the Circuits. II A Comity considerations, the Commissioner dominantly urges, preclude the exercise of lower federal-court adjudi­ catory authority over this controversy, given that an ade­ quate state-court forum is available to hear and decide respondents’ constitutional claims. We agree. The comity doctrine counsels lower federal courts to resist engagement in certain cases falling within their jurisdiction. The doctrine reflects “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to per­ form their separate functions in separate ways.” Fair ). Comity’s constraint has particular force when lower fed­ eral courts are asked to pass on the constitutionality of state taxation of commercial activity. For “[i]t is upon taxation that the several States chiefly rely to obtain the 6 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible.” 110 (1871). “An examination of [our] decisions,” this Court wrote more than a century ago, “shows that a proper reluctance to interfere by prevention with the fiscal operations of the state governments has caused [us] to refrain from so doing in all cases where the Federal rights of the persons could otherwise be preserved unimpaired.” Boise Artesian Hot & Cold Water Accord 525–526 (1932) (So long as the state remedy was “plain, adequate, and complete,” the “scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such relief should be denied in every case where the asserted federal right may be preserved without it.”).2 —————— 2 Justice Brennan cogently explained, in practical terms, “the special reasons justifying the policy of federal noninterference with state tax collection”: “The procedures for mass assessment and collection of state taxes and for administration and adjudication of taxpayers’ disputes with tax officials are generally complex and necessarily designed to operate according to established rules. State tax agencies are organized to discharge their responsibilities in accordance with the state procedures. If federal declaratory relief were available to test state tax assess­ ments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State’s budget, and perhaps a shift to the State of the risk of taxpayer insolvency. Moreover, federal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts.” Perez v. Cite as: 560 U. S. (2010) 7 Opinion of the Court Statutes conferring federal jurisdiction, we have repeat­ edly cautioned, should be read with sensitivity to “federal­ state relations” and “wise judicial administration.” But by 1937, in state tax cases, the federal courts had moved in a different direction: they “had become free and easy with injunc­ tions.” Fair (Brennan, J., concurring in judgment) (internal quotation marks omit­ ted).3 Congress passed the TIA to reverse this trend. at 109–110 (opinion of the Court). Our post-Act decisions, however, confirm the continuing sway of comity considerations, independent of the Act. Plaintiffs in Great Dredge & Dock for example, sought a federal judg­ ment declaring Louisiana’s unemployment compensation tax unconstitutional. Writing six years after the TIA’s passage, we emphasized the Act’s animating concerns: A “federal court of equity,” we reminded, “may in an appro­ priate case refuse to give its special protection to private rights when the exercise of its jurisdiction would be preju­ dicial to the public interest, [and] should stay its hand in the public interest when it reasonably appears that pri­ vate interests will not suffer.” at (citations omitted). In enacting the TIA, we noted, “Congress recog­ —————— Ledesma, (opinion concurring in part and dissenting in part). 3 Two features of federal equity practice accounted for the courts’ willingness to grant injunctive relief. First, the Court had held that, although “equity jurisdiction does not lie where there exists an ade­ quate legal remedy[,] the ‘adequate legal remedy’ must be one cognizable in federal court.” Fair n. 15 (Brennan, J., concurring in judgment) (emphasis in original). Second, federal courts, “construing strictly the requirement that the remedy available at law be ‘plain, adequate and complete,’ had frequently concluded that the procedures provided by the State were not ade­ quate.” 8 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court nized and gave sanction to this practice.” We could not have thought Congress intended to cabin the comity doctrine, for we went on to instruct dismissal in Great on comity grounds without deciding whether the Act reached declaratory judgment actions. 301–302.4 Decades later, in Fair we ruled, based on comity concerns, th2 U.S. C. does not permit federal courts to award damages in state taxation cases when state law provides an adequate remedy. 454 U.S., 6. We clarified in Fair that “the principle of comity which predated the Act was not restricted by its passage.” And in National Private Truck Council, (1995), we said, explicitly, that “the [TIA] may be best understood as but a partial codification of the federal reluctance to interfere with state taxation.” B Although our precedents affirm that the comity doctrine is more embracive than the TIA, several Courts of Ap­ peals, including the Sixth Circuit in the instant case, have comprehended to restrict comity’s compass. See –5. however, has a more modest reach. Plaintiffs in were Arizona taxpayers who chal­ lenged a state law authorizing tax credits for payments to organizations that disbursed scholarship grants to chil­ dren attending private –96. These organizations could fund attendance at institutions that provided religious instruction or gave admissions preference on the basis of religious affiliation. Ranking the credit program as state subsidization of religion, incompatible with the Establishment Clause, —————— 4 We later held that the Act indeed does proscribe suits for declara­ tory relief that would thwart state tax collection. Cite as: 560 U. S. (2010) 9 Opinion of the Court plaintiffs sought declaratory and injunctive relief and an order requiring the organizations to pay sums still in their possession into the State’s general fund. The Director of Arizona’s Department of Revenue sought to escape suit in federal court by invoking the TIA. We held that the litigation fell outside the TIA’s governance. Our prior decisions holding suits blocked by the TIA, we noted, were tied to the Act’s “state-revenue-protective moorings.” The Act, we explained, “re­ strain[ed] state taxpayers from instituting federal actions to contest their [own] liability for state taxes,” suits that, if successful, would deplete state coffers. But “third parties” like the plaintiffs, we concluded, were not impeded by the TIA “from pursuing constitu­ tional challenges to tax benefits in a federal forum.” The case, we stressed, was “not rationally distinguishable” from a procession of pathmarking civil-rights controver­ sies in which federal courts had entertained challenges to state tax credits without conceiving of the TIA as a juris­ dictional barrier. 3–94, 110–112. See, e.g., Griffin v. School Bd. of Prince Edward Cty., (involving, inter alia, tax credits for contributions to pri­ vate segregated schools). Arizona’s Revenue Director also invoked comity as cause for dismissing the action. We dispatched the Director’s comity argument in a spare footnote that moved the Sixth Circuit here to reverse the District Court’s comity-based dismissal. As earlier set out, see the footnote stated: “[T]his Court has relied upon ‘principles of comity’ to preclude original federal-court jurisdiction only when plaintiffs have sought district-court aid in order to arrest or countermand state tax collection.” n. 9 (citing Fair 454 U.S., at 107–108; Great –299). Relying heavily on our footnote in respondents urge that “comity should no more bar this action than it 10 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court did the action in” Brief for Respondents 42. As we explain below, however, the two cases differ markedly in ways bearing on the comity calculus. We have had no prior occasion to consider, under the comity doctrine, a taxpayer’s complaint about allegedly discriminatory state taxation framed as a request to increase a competitor’s tax burden. Now squarely presented with the question, we hold that comity precludes the exercise of original federal­ court jurisdiction in cases of the kind presented here. III A Respondents complain that they are taxed unevenly in comparison to LDCs and their customers. Under either an equal protection or dormant Commerce Clause theory, respondents’ root objection is the same: State action, respondents contend, “selects [them] out for discrimina­ tory treatment by subjecting [them] to taxes not imposed on others of the same class.” ; see Dennis v. Higgins, 7–8 (dormant Com­ merce Clause). When economic legislation does not employ classifica­ tions subject to heightened scrutiny or impinge on funda­ mental rights,5 courts generally view constitutional chal­ lenges with the skepticism due respect for legislative choices demands. See, e.g., Hodel v. Indiana, 452 U.S. 314, 331–332 (1981); And “in taxation, even more than in other fields, legislatures possess the greatest freedom in classification.” Madden v. Kentucky, —————— 5 Cf., e.g., ; United On the federal courts’ role in safeguarding human rights, see, e.g., 245–248 ; Cite as: 560 U. S. (2010) 11 Opinion of the Court Of key importance, when unlawful discrimination in­ fects tax classifications or other legislative prescriptions, the Constitution simply calls for equal treatment. How equality is accomplished—by extension or invalidation of the unequally distributed benefit or burden, or some other measure—is a matter on which the Constitution is silent. See (“[W]hen the right invoked is that to equal treatment, the appropriate remedy is a mandate of equal treatment, a result that can be accomplished” in more than one way. (quoting Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 247 (1931); internal quotation marks omitted)). On finding unlawful discrimination, we have affirmed, courts may attempt, within the bounds of their institu­ tional competence, to implement what the legislature would have willed had it been apprised of the constitu­ tional infirmity. n. 5; Califano v. Westcott, 3 U.S. 76, ; see v. (how State eliminates unconstitutional discrimination “plainly is an issue of state law”); cf. United (“legislative intent” determines cure for constitu­ tional violation). The relief the complaining party re­ quests does not circumscribe this inquiry. See Westcott, 3 U.S., n. 2 (Powell, J., concurring in part and dissenting in part) (“This issue should turn on the intent of [the legislature], not the interests of the parties.”). With the State’s legislative prerogative firmly in mind, this Court, upon finding impermissible discrimination in a State’s allocation of benefits or burdens, generally re­ mands the case, leaving the remedial choice in the hands of state authorities. See, e.g., 6 U.S. 142, ; Orr v. Orr, 0 U.S. 268, 283–284 ; 421 U.S., at ; 12 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court 543 (1942). But see, e.g., (1968). In particular, when this Court—on review of a state high court’s decision—finds a tax measure constitutionally infirm, “it has been our practice,” for reasons of “federal­ state comity,” “to abstain from deciding the remedial effects of such a holding.” American Trucking Assns., Inc. v. Smith,6 A “State found to have imposed an impermissibly discrimi­ natory tax retains flexibility in responding to this deter­ mination.” McKesson Corp. v. Division of Alcoholic Bever­ ages and Tobacco, Fla. Dept. of Business Regulation, 496 U.S. 18, 39–40 Our remand leaves the interim solution in state-court hands, subject to subsequent defini­ tive disposition by the State’s legislature. If lower federal courts were to give audience to the merits of suits alleging uneven state tax burdens, how­ ever, recourse to state court for the interim remedial determination would be unavailable. That is so because federal tribunals lack authority to remand to the state court system an action initiated in federal court. Federal judges, moreover, are bound by the TIA; absent certain exceptions, see, e.g., Department of the Act precludes relief that would diminish state revenues, even if such relief is the remedy least disruptive of the state legisla­ ture’s design.7 These limitations on the remedial compe­ —————— 6 See, e.g., 100–102 (1993); McKesson ; Davis v. Michigan Dept. of Treasury, ; American Trucking Assns., ; Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U.S. 232, 252–253 ; Bacchus Imports, 276– 277 ; Exxon 462 U.S. ; Louis K. Liggett 2 U.S. 517, 7 State courts also have greater leeway to avoid constitutional hold­ Cite as: 560 U. S. (2010) 13 Opinion of the Court tence of lower federal courts counsel that they refrain from taking up cases of this genre, so long as state courts are equipped fairly to adjudicate them.8 B Comity considerations, as the District Court deter­ mined, warrant dismissal of respondents’ suit. Assuming, arguendo, that respondents could prevail on the merits of the suit,9 the most obvious way to achieve parity would be to reduce respondents’ tax liability. Respondents did not seek such relief, for the TIA stands in the way of any decree that would “enjoin collection of [a] tax under State law.” 28 U.S. C. A more ambitious solu­ tion would reshape the relevant provisions of Ohio’s tax code. Were a federal court to essay such relief, however, the court would engage in the very interference in state taxation the comity doctrine aims to avoid. Cf. State Railroad Tax Cases, Re­ spondents’ requested remedy, an order invalidating the exemptions enjoyed by LDCs, App. 20–21, may be far from —————— ings by adopting “narrowing constructions that might obviate the constitutional problem and intelligently mediate federal constitutional concerns and state interests.” 2 U.S. 415, 429–430 8 Any substantial federal question, of course, “could be reviewed when the case [comes to this Court] through the hierarchy of state courts.” 9 But see General Motors 279–280 (1997) (determining, at a time IMs could not compete with LDCs for the Ohio residential “captive” market, that IMs and LDCs were not “simi­ larly situated”; and rejecting industrial IM customer’s dormant Com­ merce Clause and equal protection challenges to LDCs’ exemption from sales and use taxes). 10 Previous language restricting the district courts’ “jurisdiction” was removed in the 1948 revision of Title 28. Compare 28 U.S. C. (1940 ed.) with This Court and others have con­ tinued to regard the Act as jurisdictional. See, e.g., post, at 1 (THOMAS, J., concurring in judgment). 14 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court what the Ohio Legislature would have willed. See In short, if the Ohio scheme is indeed unconstitu­ tional, surely the Ohio courts are better positioned to determine—unless and until the Ohio Legislature weighs in—how to comply with the mandate of equal treatment. See 817–11 As earlier noted, our unelaborated footnote on comity in see led the Sixth Circuit to conclude that we had diminished the force of that doctrine and made it inapplicable here. We intended no such conse­ quential ruling. was hardly a run-of-the-mine tax case. It was essentially an attack on the allocation of state resources for allegedly unconstitutional purposes. In the charge was state aid in alleged violation of the Establishment Clause; in other cases of the same genre, the attack was on state allocations to maintain racially segregated See 542 U.S., 3–94, 110– 112. The plaintiffs in were outsiders to the tax expenditure, “third parties” whose own tax liability was not a relevant factor. In this case, by contrast, the very premise of respondents’ suit is that they are taxed differ­ ently from LDCs. Unlike the plaintiffs, respondents do object to their own tax situation, measured by the allegedly more favorable treatment accorded LDCs. held that the TIA did not preclude a federal chal­ lenge by a third party who objected to a tax credit received —————— 11 Respondents note that “[o]nce the district court grants the minimal relief requested—to disallow the exemptions—it will be up to the Ohio General Assembly to balance its own interests and determine how best to recast the tax laws, within constitutional restraints.” Brief for Respondents 41. But the legislature may not be convened on the spot, and the blunt interim relief respondents ask the District Court to decree “may [immediately] derange the operations of government, and thereby cause serious detriment to the public.” 11 Wall. 108, 110 (1871). Cite as: 560 U. S. (2010) 15 Opinion of the Court by others, but in no way objected to her own liability under any revenue-raising tax provision. In context, we clarify, the footnote comment on comity is most sensibly read to affirm that, just as the case was a poor fit under the TIA, so it was a poor fit for comity. The Court, in other words, did not deploy the footnote to recast the comity doctrine; it intended the note to convey only that the Establishment Clause-grounded case cleared both the TIA and comity hurdles. Respondents steadfastly maintain that this case is fit for federal-court adjudication because of the simplicity of the relief they seek, i.e., invalidation of exemptions accorded the LDCs. But as we just explained, even if respondents’ Commerce Clause and equal protection claims had merit, respondents would have no entitlement to their preferred remedy. See In however, if the Dis­ trict Court found the Arizona tax credit impermissible under the Establishment Clause, only one remedy would redress the plaintiffs’ grievance: invalidation of the credit, which inevitably would increase the State’s tax receipts. Notably, redress in state court similarly would be limited to an order ending the allegedly impermissible state sup­ port for parochial 12 Because state courts would have no greater leeway than federal courts to cure the alleged violation, nothing would be lost in the currency of comity or state autonomy by permitting the suit to proceed in a federal forum. Comity, in sum, serves to ensure that “the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always en­ deavors to do so in ways that will not unduly interfere —————— 12 No refund suit (or other taxpayer mechanism) was open to the plaintiffs in who were financially disinterested “third parties”; they did not, therefore, improperly bypass any state procedure. Re­ spondents here, however, could have asserted their federal rights by seeking a reduction in their tax bill in an Ohio refund suit. 16 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court with the legitimate activities of the States.” Younger, 401 U.S., at A confluence of factors in this case, absent in leads us to conclude that the comity doctrine con­ trols here. First, respondents seek federal-court review of commercial matters over which Ohio enjoys wide regula­ tory latitude; their suit does not involve any fundamental right or classification that attracts heightened judicial scrutiny. Second, while respondents portray themselves as third-party challengers to an allegedly unconstitutional tax scheme, they are in fact seeking federal-court aid in an endeavor to improve their competitive position. Third, the Ohio courts are better positioned than their federal coun­ terparts to correct any violation because they are more familiar with state legislative preferences and because the TIA does not constrain their remedial options. Individu­ ally, these considerations may not compel forbearance on the part of federal district courts; in combination, how­ ever, they demand deference to the state adjudicative process. C The Sixth Circuit expressed concern that application of the comity doctrine here would render the TIA “effectively superfluous.” ; see 2. This concern overlooks Congress’ point in enacting the TIA. The Act was passed to plug two large loopholes courts had opened in applying the comity doctrine. See and n. 3. By closing these loopholes, Congress secured the doctrine against diminishment. Comity, we further note, is a prudential doctrine. “If the State voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the case back into the State’s own system.” Ohio Bureau of Employment Servs. v. Hodory, Cite as: 560 U. S. (2010) 17 Opinion of the Court IV Because we conclude that the comity doctrine justifies dismissal of respondents’ federal-court action, we need not decide whether the TIA would itself block the suit. See Great 319 U.S., 301 (reserving judgment on TIA’s application where comity precluded suit). See also Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (federal court has flexibility to choose among threshold grounds for dismissal).13 * * * For the reasons stated, the Sixth Circuit’s judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— 13 The District Court and Court of Appeals concluded that our deci­ sion in placed the controversy outside the TIA’s domain. That conclusion, we note, bears reassessment in light of this opinion’s discussion of the significant differences between and this case. Cite as: 560 U. S. (2010) 1 KENNEDY, J., concurring SUPREME COURT OF THE UNITED STATES No. 09–223 RICHARD A. LEVIN, TAX COMMISSIONER OF OHIO, PETITIONER v. COMMERCE ENERGY, INC., ET AL.

Justice Kavanaugh

majority

Barton v. Barr

https://www.courtlistener.com/opinion/4748672/barton-v-barr/

https://www.courtlistener.com/api/rest/v3/clusters/4748672/

Under the immigration laws, a noncitizen who is author- ized to live permanently in the United States is a lawful permanent resident—also commonly known as a green- card holder. But unlike a U. S. citizen, a lawful permanent resident who commits a serious crime may be removed from the United States. Andre Barton is a Jamaican national and a longtime law- ful permanent resident of the United States. During his time in the United States, Barton has been convicted of state crimes on three separate occasions spanning 12 years. The crimes include a firearms offense, drug offenses, and aggravated assault offenses. By law, the firearms offense and the drug offenses each independently rendered Barton eligible for removal from the United States. In September 2016, the U. S. Government sought to remove Barton, and a U. S. Immigration Judge determined that Barton was removable. Barton applied for cancellation of removal, a form of relief that allows a noncitizen to remain in the United States de- 2 BARTON v. BARR Opinion of the Court spite being found removable. The immigration laws author- ize an immigration judge to cancel removal, but Congress has established strict eligibility requirements. See 8 U.S. C. §§1229b(a), (d)(1)(B). For a lawful permanent res- ident such as Barton, the applicant for cancellation of re- moval (1) must have been a lawful permanent resident for at least five years; (2) must have continuously resided in the United States for at least seven years after lawful ad- mission; (3) must not have been convicted of an aggravated felony as defined in the immigration laws; and (4) during the initial seven years of continuous residence, must not have committed certain other offenses listed in 8 U.S. C. §1182(a)(2). If a lawful permanent resident meets those el- igibility requirements, the immigration judge has discre- tion to (but is not required to) cancel removal and allow the lawful permanent resident to remain in the United States. Under the cancellation-of-removal statute, the immigra- tion judge examines the applicant’s prior crimes, as well as the offense that triggered his removal. If a lawful perma- nent resident has ever been convicted of an aggravated fel- ony, or has committed an offense listed in §1182(a)(2) dur- ing the initial seven years of residence, that criminal record will preclude cancellation of removal.1 In that way, the statute operates like traditional criminal recidivist laws, which ordinarily authorize or impose greater sanctions on offenders who have committed prior crimes. In this case, after finding Barton removable based on his state firearms and drug offenses, the Immigration Judge and the Board of Immigration Appeals (BIA) concluded that —————— 1 As the statute makes clear, and as we discuss below, committing a §1182(a)(2) offense precludes cancellation of removal only if the offense also “renders” the noncitizen inadmissible. See infra, at 10. Section 1182(a)(2) specifies what that means for each of its enumerated offenses. For the offense at issue in this case, the noncitizen must also have been convicted of or admitted the offense. Cite as: 590 U. S. ____ (2020) 3 Opinion of the Court Barton was not eligible for cancellation of removal. Barton had committed offenses listed in §1182(a)(2) during his ini- tial seven years of residence—namely, his state aggravated assault offenses in 1996. Barton’s 1996 aggravated assault offenses were not the offenses that triggered his removal. But according to the BIA, and contrary to Barton’s argu- ment, the offense that precludes cancellation of removal need not be one of the offenses of removal. In re Jurado- Delgado, 24 I. & N. Dec. 29, 31 (BIA 2006). The U. S. Court of Appeals for the Eleventh Circuit agreed with the BIA’s reading of the statute and concluded that Barton was not eligible for cancellation of removal. The Second, Third, and Fifth Circuits have similarly construed the statute; only the Ninth Circuit has disagreed. Barton argues that the BIA and the Eleventh Circuit mis- interpreted the statute. He contends that the §1182(a)(2) offense that precludes cancellation of removal must be one of the offenses of removal. We disagree with Barton, and we affirm the judgment of the U. S. Court of Appeals for the Eleventh Circuit. I Federal immigration law governs the admission of noncitizens to the United States and the deportation of noncitizens previously admitted. See 8 U.S. C. §§1182(a), 1227(a), 1229a.2 The umbrella statutory term for being inadmissible or deportable is “removable.” §1229a(e)(2). A noncitizen who is authorized to live permanently in the United States is a lawful permanent resident, often known as a green-card holder. When a lawful permanent resident commits a crime and is determined by an immigration judge to be removable because of that crime, the Attorney General (usually acting through an immigration judge) may —————— 2 This opinion uses the term “noncitizen” as equivalent to the statutory term “alien.” See 8 U.S. C. §1101(a)(3). 4 BARTON v. BARR Opinion of the Court cancel removal. §1229b(a). But the comprehensive immi- gration law that Congress passed and President Clinton signed in 1996 tightly cabins eligibility for cancellation of removal. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009–546, 8 U.S. C. §1101 note. For a lawful permanent resident, the cancellation-of- removal statute provides that an immigration judge “may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien—(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated fel- ony.” §1229b(a).3 The statute imposes one other requirement known as the “stop-time rule.” As relevant here, the statute provides that a lawful permanent resident, during the initial seven years of residence, also cannot have committed “an offense re- ferred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” §1229b(d)(1)(B). Andre Barton is a Jamaican national and a lawful per- manent resident of the United States. In 1996, he was con- victed in a Georgia court of a firearms offense stemming from an incident where Barton and a friend shot up the house of Barton’s ex-girlfriend. In separate proceedings in 2007 and 2008, he was convicted in Georgia courts of state drug offenses. One case involved methamphetamine, and the other involved cocaine and marijuana. —————— 3 The immigration laws impose a similar but even stricter set of eligi- bility requirements for noncitizens who are not lawful permanent resi- dents. §1229b(b). Cite as: 590 U. S. ____ (2020) 5 Opinion of the Court In 2016, the U. S. Government charged Barton with de- portability under 8 U.S. C. §1227(a)(2) based on the 1996 firearms offense and the 2007 and 2008 drug crimes. See §§1227(a)(2)(B)(i), (C). Barton conceded that he was remov- able based on his criminal convictions for the firearms of- fense and drug offenses, and an Immigration Judge found him removable. Barton applied for cancellation of removal. All agree that Barton meets two of the eligibility requirements for cancel- lation of removal. He has been a lawful permanent resident for more than five years. And he has not been convicted of an “aggravated felony,” as defined by the immigration laws. The Immigration Judge concluded, however, that Barton had committed an offense listed in §1182(a)(2) during his initial seven years of residence. In 1996, 61⁄2 years after his admission to this country, Barton committed aggravated assault offenses for which he was later convicted in a Geor- gia court. The Immigration Judge concluded that those ag- gravated assault offenses were covered by §1182(a)(2) and that Barton was therefore not eligible for cancellation of removal. The Board of Immigration Appeals and the U. S. Court of Appeals for the Eleventh Circuit likewise concluded that Barton was not eligible for cancellation of removal. Barton v. United States Atty. Gen., 904 F.3d 1294, 1302 (2018). The key question was whether the offense that precludes cancellation of removal (here, Barton’s 1996 aggravated assault offenses) must also be one of the offenses of removal.4 The Board of Immigration Appeals has long interpreted the statute to mean that “an alien need not actually be charged and found inadmissible or removable on the applicable ground in order for the criminal conduct —————— 4 The term “offense of removal” describes the offense that was the ground on which the immigration judge, at the removal proceeding, found the noncitizen removable. 6 BARTON v. BARR Opinion of the Court in question to terminate continuous residence in this country” and preclude cancellation of removal. Jurado- Delgado, 24 I. & N. Dec., at 31. In this case, the Eleventh Circuit likewise indicated that the §1182(a)(2) offense that precludes cancellation of removal need not be one of the offenses of removal. 904 F.3d, at 1299–1300. And the Second, Third, and Fifth Circuits have similarly construed the statute. See Heredia v. Sessions, 865 F.3d 60, 68 (CA2 2017); Ardon v. Attorney General of United States, 449 Fed. Appx. 116, 118 (CA3 2011); Calix v. Lynch, 784 F.3d 1000, 1011 (CA5 2015). But in 2018, the Ninth Circuit disagreed with those courts and with the BIA. The Ninth Circuit ruled that a lawful permanent resident’s commission of an offense listed in §1182(a)(2) makes the noncitizen ineligible for cancellation of removal only if that offense was one of the offenses of removal. Nguyen v. Sessions, 901 F.3d 1093, 1097 (2018). Under the Ninth Circuit’s approach, Barton would have been eligible for cancellation of removal because his §1182(a)(2) offenses (his 1996 aggravated assault offenses) were not among the offenses of removal (his 1996 firearms offense and his 2007 and 2008 drug crimes). In light of the division in the Courts of Appeals over how to interpret this statute, we granted certiorari. 587 U. S. ___ (2019). II A Under the immigration laws, when a noncitizen has com- mitted a serious crime, the U. S. Government may seek to remove that noncitizen by initiating removal proceedings before an immigration judge. If the immigration judge de- termines that the noncitizen is removable, the immigration judge nonetheless has discretion to cancel removal. But the immigration laws impose strict eligibility requirements for cancellation of removal. To reiterate, a lawful permanent Cite as: 590 U. S. ____ (2020) 7 Opinion of the Court resident such as Barton who has been found removable be- cause of criminal activity is eligible for cancellation of re- moval “if the alien—(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.” §1229b(a). To be eligible for cancellation of removal, the lawful per- manent resident, during the initial seven years of residence after admission, also must not have committed “an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” §1229b(d)(1)(B). The law therefore fashions two distinct ways in which a lawful permanent resident’s prior crimes may preclude can- cellation of removal. The law precludes cancellation of removal if the lawful permanent resident has been convicted of an “aggravated felony” at any time. The statutory list of aggravated felo- nies is long: murder, rape, drug trafficking, firearms traf- ficking, obstruction of justice, treason, gambling, human trafficking, and tax evasion, among many other crimes. §§1101(a)(43)(A)–(U). In addition, the law precludes cancellation of removal if the lawful permanent resident committed certain other se- rious crimes during the initial seven years of residence. The law defines those offenses by cross-referencing §1182(a)(2), which specifies the offenses that can render a noncitizen “inadmissible” to the United States. Section 1182(a)(2) in- cludes “crime[s] involving moral turpitude,” which is a gen- eral category that covers a wide variety of crimes. Section 1182(a)(2) also expressly encompasses various violations of drug laws, prostitution, money laundering, and certain DUIs involving personal injury, among other crimes. 8 BARTON v. BARR Opinion of the Court §§1182(a)(2)(A)(i), (C), (D), (E), (I); see §1101(h). In specifying when cancellation of removal would be pre- cluded because of prior criminal activity, Congress struck a balance that considers both the nature of the prior crime and the length of time that the noncitizen has resided in the United States. If a lawful permanent resident has been convicted at any time of certain crimes (what the immigra- tion laws refer to as an “aggravated felony”), then the noncitizen is not eligible for cancellation of removal. If dur- ing the initial 7-year period of residence, a lawful perma- nent resident committed certain other offenses referred to in §1182(a)(2), then the noncitizen likewise is not eligible for cancellation of removal. In providing that a noncitizen’s prior crimes (in addition to the offense of removal) can render him ineligible for can- cellation of removal, the cancellation-of-removal statute functions like a traditional recidivist sentencing statute. In an ordinary criminal case, a defendant may be convicted of a particular criminal offense. And at sentencing, the de- fendant’s other criminal offenses may be relevant. So too in the immigration removal context. A noncitizen may be found removable based on a certain criminal offense. In ap- plying for cancellation of removal, the noncitizen must de- tail his entire criminal record on Form EOIR–42A. An im- migration judge then must determine whether the noncitizen has been convicted of an aggravated felony at any time or has committed a §1182(a)(2) offense during the initial seven years of residence. It is entirely ordinary to look beyond the offense of conviction at criminal sentencing, and it is likewise entirely ordinary to look beyond the of- fense of removal at the cancellation-of-removal stage in im- migration cases.5 —————— 5 If the offense of removal itself was an aggravated felony or was an offense listed in §1182(a)(2) that was committed during the initial seven years of residence, then the offense of removal alone precludes cancella- tion of removal, regardless of whether the noncitizen has an additional Cite as: 590 U. S. ____ (2020) 9 Opinion of the Court It is not surprising, moreover, that Congress required im- migration judges considering cancellation of removal to look in part at whether the noncitizen has committed any offenses listed in §1182(a)(2). The offenses listed in §1182(a)(2) help determine whether a noncitizen should be admitted to the United States. Under the cancellation-of- removal statute, immigration judges must look at that same category of offenses to determine whether, after a pre- viously admitted noncitizen has been determined to be de- portable, the noncitizen should nonetheless be allowed to remain in the United States. If a crime is serious enough to deny admission to a noncitizen, the crime can also be se- rious enough to preclude cancellation of removal, at least if committed during the initial seven years of residence. Importantly, the text of the cancellation-of-removal stat- ute does not simply say that cancellation of removal is pre- cluded when, during the initial seven years of residence, the noncitizen was convicted of an offense referred to in §1182(a)(2). Rather, the text says that cancellation of re- moval is precluded when, during the initial seven years of residence, the noncitizen “committed an offense referred to in section 1182(a)(2) . . . that renders the alien inadmissi- ble.” §1229b(d)(1)(B). That language clarifies two points of relevance here. First, cancellation of removal is precluded if a noncitizen committed a §1182(a)(2) offense during the initial seven years of residence, even if (as in Barton’s case) the convic- tion occurred after the seven years elapsed. In other words, as Congress specified in the statute and as the BIA and the Courts of Appeals have recognized, the date of commission of the offense is the key date for purposes of calculating whether the noncitizen committed a §1182(a)(2) offense during the initial seven years of residence. See In re Perez, —————— record of prior crimes. 10 BARTON v. BARR Opinion of the Court 22 I. & N. Dec. 689, 693–694 (BIA 1999) (date of commis- sion is controlling date); see also Heredia, 865 F.3d, at 70– 71 (“the date of the commission of the offense governs the computation of a lawful permanent resident’s continuous residency in the United States”); Calix, 784 F.3d, at 1012 (“Once he was convicted of the offense” referred to in §1182(a)(2), “he was rendered inadmissible to the United States. His accrual of continuous residence was halted as of the date he committed that offense”). Second, the text of the law requires that the noncitizen be rendered “inadmissible” as a result of the offense. For crimes involving moral turpitude, which is the relevant cat- egory of §1182(a)(2) offenses here, §1182(a)(2) provides that a noncitizen is rendered “inadmissible” when he is con- victed of or admits the offense. §1182(a)(2)(A)(i). As the Eleventh Circuit explained, “while only commission is re- quired at step one, conviction (or admission) is required at step two.” 904 F.3d, at 1301. In this case, Barton’s 1996 state aggravated assault of- fenses were crimes involving moral turpitude and therefore “referred to in section 1182(a)(2).” Barton committed those offenses during his initial seven years of residence. He was later convicted of the offenses in a Georgia court and thereby rendered “inadmissible.” Therefore, Barton was in- eligible for cancellation of removal. As a matter of statutory text and structure, that analysis is straightforward. The Board of Immigration Appeals has long interpreted the statute that way. See Jurado-Delgado, 24 I. & N. Dec., at 31. And except for the Ninth Circuit, all of the Courts of Appeals to consider the question have in- terpreted the statute that way. B Barton pushes back on that straightforward statutory in- terpretation and the longstanding position of the Board of Cite as: 590 U. S. ____ (2020) 11 Opinion of the Court Immigration Appeals. Barton says that he may not be de- nied cancellation of removal based on his 1996 aggravated assault offenses because those offenses were not among the offenses of removal found by the Immigration Judge in Bar- ton’s removal proceeding. Rather, his 1996 firearms offense and his 2007 and 2008 drug offenses were the offenses of removal. To succinctly summarize the parties’ different positions (with the difference highlighted in italics below): The Gov- ernment would preclude cancellation of removal under this provision if the lawful permanent resident committed a §1182(a)(2) offense during the initial seven years of resi- dence. Barton would preclude cancellation of removal un- der this provision if the lawful permanent resident commit- ted a §1182(a)(2) offense during the initial seven years of residence and if that §1182(a)(2) offense was one of the of- fenses of removal in the noncitizen’s removal proceeding. To support his “offense of removal” approach, Barton ad- vances three different arguments. A caution to the reader: These arguments are not easy to unpack. First, according to Barton, the statute’s overall structure with respect to removal proceedings demonstrates that a §1182(a)(2) offense may preclude cancellation of removal only if that §1182(a)(2) offense was one of the offenses of removal. We disagree. In removal proceedings, a lawful permanent resident (such as Barton) may be found “deport- able” based on deportability offenses listed in §1227(a)(2). A noncitizen who has not previously been admitted may be found “inadmissible” based on inadmissibility offenses listed in §1182(a)(2). See §§1182(a), 1227(a), 1229a(e)(2). Importantly, then, §1227(a)(2) offenses—not §1182(a)(2) of- fenses—are typically the basis for removal of lawful perma- nent residents. Because the offense of removal for lawful permanent res- idents is ordinarily a §1227(a)(2) offense, Barton’s struc- tural argument falls apart. If Barton were correct that this 12 BARTON v. BARR Opinion of the Court aspect of the cancellation-of-removal statute focused only on the offense of removal, the statute presumably would specify offenses “referred to in section 1182(a)(2) or section 1227(a)(2).” So why does the statute identify only offenses “referred to in section 1182(a)(2)”? Barton has no good an- swer. At oral argument, when directly asked that question, Barton’s able counsel forthrightly acknowledged: “It’s a lit- tle hard to explain.” Tr. of Oral Arg. 27. This point is the Achilles’ heel of Barton’s structural ar- gument. As we see it, Barton cannot explain the omission of §1227(a)(2) offenses in the “referred to” clause for a sim- ple reason: Barton’s interpretation of the statute is incor- rect. Properly read, this is not simply an “offense of re- moval” statute that looks only at whether the offense of removal was committed during the initial seven years of residence. Rather, this is a recidivist statute that uses §1182(a)(2) offenses as a shorthand cross-reference for a category of offenses that will preclude cancellation of re- moval if committed during the initial seven years of residence. By contrast to this cancellation-of-removal provision, some other provisions of the immigration laws do focus only on the offense of removal—for example, provisions govern- ing mandatory detention and jurisdiction. See §§1226(a), (c)(1)(A), (B), 1252(a)(2)(C). But the statutory text and con- text of those provisions support that limitation. Those pro- visions use the phrase “inadmissible by reason of ” a §1182(a)(2) offense, “deportable by reason of ” a §1227(a)(2) offense, or “removable by reason of ” a §1182(a)(2) or §1227(a)(2) offense. And the provisions make contextual sense only if the offense justifying detention or denying ju- risdiction is one of the offenses of removal. The cancellation- of-removal statute does not employ similar language. Second, moving from overall structure to precise text, Barton seizes on the statutory phrase “committed an of- fense referred to in section 1182(a)(2) . . . that renders the Cite as: 590 U. S. ____ (2020) 13 Opinion of the Court alien inadmissible to the United States under section 1182(a)(2).” §1229b(d)(1)(B) (emphasis added). According to Barton, conviction of an offense listed in §1182(a)(2)—for example, conviction in state court of a crime involving moral turpitude—does not itself render the noncitizen “in- admissible.” He argues that a noncitizen is not rendered “inadmissible” unless and until the noncitizen is actually adjudicated as inadmissible and denied admission to the United States. And he further contends that a lawfully ad- mitted noncitizen usually cannot be removed from the United States on the basis of inadmissibility. As Barton puts it (and the dissent echoes the point), how can a law- fully admitted noncitizen be found inadmissible when he has already been lawfully admitted? As a matter of common parlance alone, that argument would of course carry some force. But the argument fails because it disregards the statutory text, which employs the term “inadmissibility” as a status that can result from, for example, a noncitizen’s (including a lawfully admitted noncitizen’s) commission of certain offenses listed in §1182(a)(2). For example, as relevant here, §1182(a)(2) flatly says that a noncitizen such as Barton who commits a crime involving moral turpitude and is convicted of that offense “is inadmis- sible.” §1182(a)(2)(A)(i). Full stop. Similarly, a noncitizen who has two or more convictions, together resulting in ag- gregate sentences of at least five years, “is inadmissible.” §1182(a)(2)(B). A noncitizen who a consular officer or the Attorney General knows or has reason to believe is a drug trafficker “is inadmissible.” §1182(a)(2)(C)(i). A noncitizen who receives the proceeds of prostitution within 10 years of applying for admission “is inadmissible.” §1182(a)(2)(D)(ii). The list goes on. See, e.g., §§1182(a)(2)(C)(ii)–(E), (G)–(I). Those provisions do not say that a noncitizen will become inadmissible if the noncitizen is found inadmissible in a subsequent immigration removal proceeding. Instead, 14 BARTON v. BARR Opinion of the Court those provisions say that the noncitizen “is inadmissible.” Congress has in turn made that status—inadmissibility because of conviction or other proof of commission of §1182(a)(2) offenses—relevant in several statutory contexts that apply to lawfully admitted noncitizens such as Barton. Those contexts include adjustment to permanent resident status; protection from removal because of temporary pro- tected status; termination of temporary resident status; and here cancellation of removal. See, e.g., §§1160(a)(1)(C), (a)(3)(B)(ii), 1254a(a)(1)(A), (c)(1)(A)(iii), 1255(a), (l)(2). In those contexts, the noncitizen faces immigration conse- quences from being convicted of a §1182(a)(2) offense even though the noncitizen is lawfully admitted and is not nec- essarily removable solely because of that offense. Consider how those other proceedings work. A lawfully admitted noncitizen who is convicted of an offense listed in §1182(a)(2) is typically not removable from the United States on that basis (recall that a lawfully admitted noncit- izen is ordinarily removable only for commission of a §1227(a)(2) offense). But the noncitizen is “inadmissible” because of the §1182(a)(2) offense and for that reason may not be able to obtain adjustment to permanent resident sta- tus. §§1255(a), (l)(2). So too, a lawfully admitted noncitizen who is convicted of an offense listed in §1182(a)(2) is “inad- missible” and for that reason may not be able to obtain tem- porary protected status. §§1254a(a)(1)(A), (c)(1)(A)(iii). A lawfully admitted noncitizen who is a temporary resident and is convicted of a §1182(a)(2) offense is “inadmissible” and for that reason may lose temporary resident status. §§1160(a)(1)(C), (a)(3)(B)(ii). Those statutory examples pose a major hurdle for Bar- ton’s textual argument. The examples demonstrate that Congress has employed the concept of “inadmissibility” as a status in a variety of statutes similar to the cancellation- of-removal statute, including for lawfully admitted nonciti- zens. Barton has no persuasive answer to those examples. Cite as: 590 U. S. ____ (2020) 15 Opinion of the Court Barton tries to say that some of those other statutes involve a noncitizen who, although already admitted to the United States, is nonetheless seeking “constructive admission.” Reply Brief 12; Tr. of Oral Arg. 11. But that ginned-up label does not avoid the problem. Put simply, those other stat- utes show that lawfully admitted noncitizens who are, for example, convicted of §1182(a)(2) crimes are “inadmissible” and in turn may suffer certain immigration consequences, even though those lawfully admitted noncitizens cannot necessarily be removed solely because of those §1182(a)(2) offenses. The same is true here. A lawfully admitted noncitizen who was convicted of a crime involving moral turpitude dur- ing his initial seven years of residence is “inadmissible” and for that reason is ineligible for cancellation of removal. In advancing his structural and textual arguments, Bar- ton insists that his interpretation of the statute reflects con- gressional intent regarding cancellation of removal. But if Congress intended that only the offense of removal would preclude cancellation of removal under the 7-year residence provision, it is unlikely that Congress would have employed such a convoluted way to express that intent. Barton can- not explain why, if his view of Congress’ intent is correct, the statute does not simply say something like: “The alien is not eligible for cancellation of removal if the offense of removal was committed during the alien’s initial seven years of residence.” Third, on a different textual tack, Barton argues that the Government’s interpretation cannot be correct because the Government would treat as surplusage the phrase “or re- movable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” Recall that the statute, as relevant here, provides that a lawful permanent resident is not eli- gible for cancellation of removal if, during the initial seven years of residence, he committed “an offense referred to in 16 BARTON v. BARR Opinion of the Court section 1182(a)(2) of this title that renders the alien inad- missible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” §1229b(d)(1)(B) (em- phasis added). To begin with, all agree that under either side’s interpre- tation, the reference to §1227(a)(4)—as distinct from §1227(a)(2)—is redundant surplusage. See §1229b(c)(4); Brief for Petitioner 32–33 & n. 7. Under the Government’s interpretation, it is true that the reference to §1227(a)(2) also appears to be redundant surplusage. Any offense that is both referred to in §1182(a)(2) and an offense that would render the noncitizen deportable under §1227(a)(2) would also render the noncitizen inadmissible under §1182(a)(2). But redundancies are common in statutory drafting—some- times in a congressional effort to be doubly sure, sometimes because of congressional inadvertence or lack of foresight, or sometimes simply because of the shortcomings of human communication. The Court has often recognized: “Some- times the better overall reading of the statute contains some redundancy.” Rimini Street, Inc. v. Oracle USA, Inc., 586 U. S. ___, ___ (2019) (slip op., at 11); see Wisconsin Cen- tral Ltd. v. United States, 585 U. S. ___, ___ (2018) (slip op., at 7); Marx v. General Revenue Corp., 568 U.S. 371, 385 (2013); Lamie v. United States Trustee, 540 U.S. 526, 536 (2004). So it is here. Most importantly for present pur- poses, we do not see why the redundant statutory reference to §1227(a)(2) should cause us to entirely rewrite §1229b so that a noncitizen’s commission of an offense referred to in §1182(a)(2) would preclude cancellation of removal only if it is also the offense of removal. Redundancy in one portion of a statute is not a license to rewrite or eviscerate another portion of the statute contrary to its text, as Barton would have us do. One final point: Barton argues in the alternative that even if inadmissibility is a status, and even if the offense Cite as: 590 U. S. ____ (2020) 17 Opinion of the Court that precludes cancellation of removal need not be one of the offenses of removal, the noncitizen must at least have been capable of being charged with a §1182(a)(2) inadmis- sibility offense as the basis for removal. The dissent seizes on this argument as well. But as we have explained, this cancellation-of-removal statute is a recidivist statute that precludes cancellation of removal if the noncitizen has com- mitted an offense listed in §1182(a)(2) during the initial seven years of residence. Whether the offense that pre- cludes cancellation of removal was charged or could have been charged as one of the offenses of removal is irrelevant to that analysis. * * * Removal of a lawful permanent resident from the United States is a wrenching process, especially in light of the con- sequences for family members. Removal is particularly dif- ficult when it involves someone such as Barton who has spent most of his life in the United States. Congress made a choice, however, to authorize removal of noncitizens— even lawful permanent residents—who have committed certain serious crimes. And Congress also made a choice to categorically preclude cancellation of removal for nonciti- zens who have substantial criminal records. Congress may of course amend the law at any time. In the meantime, the Court is constrained to apply the law as enacted by Con- gress. Here, as the BIA explained in its 2006 Jurado- Delgado decision, and as the Second, Third, Fifth, and Elev- enth Circuits have indicated, the immigration laws enacted by Congress do not allow cancellation of removal when a lawful permanent resident has amassed a criminal record of this kind. We affirm the judgment of the U. S. Court of Appeals for the Eleventh Circuit. It is so ordered. Cite as: 590 U. S. ____ (2020) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 18–725 _________________ ANDRE MARTELLO BARTON, PETITIONER v. WILLIAM P.

Under the immigration laws, a noncitizen who is author- ized to live permanently in the United States is a lawful permanent resident—also commonly known as a green- card holder. But unlike a U. S. citizen, a lawful permanent resident who commits a serious crime may be removed from the United States. Andre Barton is a Jamaican national and a longtime law- ful permanent resident of the United States. During his time in the United States, Barton has been convicted of state crimes on three separate occasions spanning 12 years. The crimes include a firearms offense, drug offenses, and aggravated assault offenses. By law, the firearms offense and the drug offenses each independently rendered Barton eligible for removal from the United States. In September 2016, the U. S. Government sought to remove Barton, and a U. S. Immigration Judge determined that Barton was removable. Barton applied for cancellation of removal, a form of relief that allows a noncitizen to remain in the United States de- 2 spite being found removable. The immigration laws author- ize an immigration judge to cancel removal, but Congress has established strict eligibility requirements. See 8 U.S. C. (d)(1)(B). For a lawful permanent res- ident such as Barton, the applicant for cancellation of re- moval (1) must have been a lawful permanent resident for at least five years; (2) must have continuously resided in the United States for at least seven years after lawful ad- mission; (3) must not have been convicted of an aggravated felony as defined in the immigration laws; and (4) during the initial seven years of continuous residence, must not have committed certain other offenses listed in 8 U.S. C. If a lawful permanent resident meets those el- igibility requirements, the immigration judge has discre- tion to (but is not required to) cancel removal and allow the lawful permanent resident to remain in the United States. Under the cancellation-of-removal statute, the immigra- tion judge examines the applicant’s prior crimes, as well as the offense that triggered his If a lawful perma- nent resident has ever been convicted of an aggravated fel- ony, or has committed an offense listed in dur- ing the initial seven years of residence, that criminal record will preclude cancellation of 1 In that way, the statute operates like traditional criminal recidivist laws, which ordinarily authorize or impose greater sanctions on offenders who have committed prior crimes. In this case, after finding Barton removable based on his state firearms and drug offenses, the Immigration Judge and the Board of Immigration Appeals (BIA) concluded that —————— 1 As the statute makes clear, and as we discuss below, committing a offense precludes cancellation of removal only if the offense also “renders” the noncitizen inadmissible. See infra, at 10. Section 1182(a)(2) specifies what that means for each of its enumerated offenses. For the offense at issue in this case, the noncitizen must also have been convicted of or admitted the offense. Cite as: 590 U. S. (2020) 3 Opinion of the Court Barton was not eligible for cancellation of Barton had committed offenses listed in during his ini- tial seven years of residence—namely, his state aggravated assault offenses in 1996. Barton’s 1996 aggravated assault offenses were not the offenses that triggered his But according to the BIA, and contrary to Barton’s argu- ment, the offense that precludes cancellation of removal need not be one of the offenses of In re Jurado- The U. S. Court of Appeals for the Eleventh Circuit agreed with the BIA’s reading of the statute and concluded that Barton was not eligible for cancellation of The Second, Third, and Fifth Circuits have similarly construed the statute; only the Ninth Circuit has disagreed. Barton argues that the BIA and the Eleventh Circuit mis- interpreted the statute. He contends that the offense that precludes cancellation of removal must be one of the offenses of We disagree with Barton, and we affirm the judgment of the U. S. Court of Appeals for the Eleventh Circuit. I Federal immigration law governs the admission of noncitizens to the United States and the deportation of noncitizens previously admitted. See 8 U.S. C. 1227(a), 1229a.2 The umbrella statutory term for being inadmissible or deportable is “removable.” A noncitizen who is authorized to live permanently in the United States is a lawful permanent resident, often known as a green-card holder. When a lawful permanent resident commits a crime and is determined by an immigration judge to be removable because of that crime, the Attorney General (usually acting through an immigration judge) may —————— 2 This opinion uses the term “noncitizen” as equivalent to the statutory term “alien.” See 8 U.S. C. 4 cancel But the comprehensive immi- gration law that Congress passed and President Clinton signed in 1996 tightly cabins eligibility for cancellation of See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, –546, 8 U.S. C. note. For a lawful permanent resident, the cancellation-of- removal statute provides that an immigration judge “may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien—(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated fel- ony.” 3 The statute imposes one other requirement known as the “stop-time rule.” As relevant here, the statute provides that a lawful permanent resident, during the initial seven years of residence, also cannot have committed “an offense re- ferred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” Andre Barton is a Jamaican national and a lawful per- manent resident of the United States. In 1996, he was con- victed in a Georgia court of a firearms offense stemming from an incident where Barton and a friend shot up the house of Barton’s ex-girlfriend. In separate proceedings in 2007 and 2008, he was convicted in Georgia courts of state drug offenses. One case involved methamphetamine, and the other involved cocaine and marijuana. —————— 3 The immigration laws impose a similar but even stricter set of eligi- bility requirements for noncitizens who are not lawful permanent resi- dents. Cite as: 590 U. S. (2020) 5 Opinion of the Court In 2016, the U. S. Government charged Barton with de- portability under 8 U.S. C. based on the 1996 firearms offense and the 2007 and 2008 drug crimes. See §(B)(i), (C). Barton conceded that he was remov- able based on his criminal convictions for the firearms of- fense and drug offenses, and an Immigration Judge found him removable. Barton applied for cancellation of All agree that Barton meets two of the eligibility requirements for cancel- lation of He has been a lawful permanent resident for more than five years. And he has not been convicted of an “aggravated felony,” as defined by the immigration laws. The Immigration Judge concluded, however, that Barton had committed an offense listed in during his initial seven years of residence. In 1996, 61⁄2 years after his admission to this country, Barton committed aggravated assault offenses for which he was later convicted in a Geor- gia court. The Immigration Judge concluded that those ag- gravated assault offenses were covered by and that Barton was therefore not eligible for cancellation of The Board of Immigration Appeals and the U. S. Court of Appeals for the Eleventh Circuit likewise concluded that Barton was not eligible for cancellation of Barton v. United States Atty. Gen., The key question was whether the offense that precludes cancellation of removal (here, Barton’s 1996 aggravated assault offenses) must also be one of the offenses of 4 The Board of Immigration Appeals has long interpreted the statute to mean that “an alien need not actually be charged and found inadmissible or removable on the applicable ground in order for the criminal conduct —————— 4 The term “offense of removal” describes the offense that was the ground on which the immigration judge, at the removal proceeding, found the noncitizen removable. 6 in question to terminate continuous residence in this country” and preclude cancellation of Jurado- 24 I. & N. Dec., at In this case, the Eleventh Circuit likewise indicated that the offense that precludes cancellation of removal need not be one of the offenses of –1300. And the Second, Third, and Fifth Circuits have similarly construed the statute. See (CA2 2017); Ardon v. Attorney General of United States, 449 Fed. Appx. 116, 118 (CA3 2011); 1011 (CA5 2015). But in the Ninth Circuit disagreed with those courts and with the BIA. The Ninth Circuit ruled that a lawful permanent resident’s commission of an offense listed in makes the noncitizen ineligible for cancellation of removal only if that offense was one of the offenses of 1097 Under the Ninth Circuit’s approach, Barton would have been eligible for cancellation of removal because his offenses (his 1996 aggravated assault offenses) were not among the offenses of removal (his 1996 firearms offense and his 2007 and 2008 drug crimes). In light of the division in the Courts of Appeals over how to interpret this statute, we granted certiorari. 587 U. S. (2019). II A Under the immigration laws, when a noncitizen has com- mitted a serious crime, the U. S. Government may seek to remove that noncitizen by initiating removal proceedings before an immigration judge. If the immigration judge de- termines that the noncitizen is removable, the immigration judge nonetheless has discretion to cancel But the immigration laws impose strict eligibility requirements for cancellation of To reiterate, a lawful permanent Cite as: 590 U. S. (2020) 7 Opinion of the Court resident such as Barton who has been found removable be- cause of criminal activity is eligible for cancellation of re- moval “if the alien—(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.” To be eligible for cancellation of removal, the lawful per- manent resident, during the initial seven years of residence after admission, also must not have committed “an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” The law therefore fashions two distinct ways in which a lawful permanent resident’s prior crimes may preclude can- cellation of The law precludes cancellation of removal if the lawful permanent resident has been convicted of an “aggravated felony” at any time. The statutory list of aggravated felo- nies is long: murder, rape, drug trafficking, firearms traf- ficking, obstruction of justice, treason, gambling, human trafficking, and tax evasion, among many other crimes. §(a)(43)(A)–(U). In addition, the law precludes cancellation of removal if the lawful permanent resident committed certain other se- rious crimes during the initial seven years of residence. The law defines those offenses by cross-referencing which specifies the offenses that can render a noncitizen “inadmissible” to the United States. Section 1182(a)(2) in- cludes “crime[s] involving moral turpitude,” which is a gen- eral category that covers a wide variety of crimes. Section 1182(a)(2) also expressly encompasses various violations of drug laws, prostitution, money laundering, and certain DUIs involving personal injury, among other crimes. 8 §(A)(i), (C), (D), (E), (I); see (h). In specifying when cancellation of removal would be pre- cluded because of prior criminal activity, Congress struck a balance that considers both the nature of the prior crime and the length of time that the noncitizen has resided in the United States. If a lawful permanent resident has been convicted at any time of certain crimes (what the immigra- tion laws refer to as an “aggravated felony”), then the noncitizen is not eligible for cancellation of If dur- ing the initial 7-year period of residence, a lawful perma- nent resident committed certain other offenses referred to in then the noncitizen likewise is not eligible for cancellation of In providing that a noncitizen’s prior crimes (in addition to the offense of removal) can render him ineligible for can- cellation of removal, the cancellation-of-removal statute functions like a traditional recidivist sentencing statute. In an ordinary criminal case, a defendant may be convicted of a particular criminal offense. And at sentencing, the de- fendant’s other criminal offenses may be relevant. So too in the immigration removal context. A noncitizen may be found removable based on a certain criminal offense. In ap- plying for cancellation of removal, the noncitizen must de- tail his entire criminal record on Form EOIR–42A. An im- migration judge then must determine whether the noncitizen has been convicted of an aggravated felony at any time or has committed a offense during the initial seven years of residence. It is entirely ordinary to look beyond the offense of conviction at criminal sentencing, and it is likewise entirely ordinary to look beyond the of- fense of removal at the cancellation-of-removal stage in im- migration cases.5 —————— 5 If the offense of removal itself was an aggravated felony or was an offense listed in that was committed during the initial seven years of residence, then the offense of removal alone precludes cancella- tion of removal, regardless of whether the noncitizen has an additional Cite as: 590 U. S. (2020) 9 Opinion of the Court It is not surprising, moreover, that Congress required im- migration judges considering cancellation of removal to look in part at whether the noncitizen has committed any offenses listed in The offenses listed in help determine whether a noncitizen should be admitted to the United States. Under the cancellation-of- removal statute, immigration judges must look at that same category of offenses to determine whether, after a pre- viously admitted noncitizen has been determined to be de- portable, the noncitizen should nonetheless be allowed to remain in the United States. If a crime is serious enough to deny admission to a noncitizen, the crime can also be se- rious enough to preclude cancellation of removal, at least if committed during the initial seven years of residence. Importantly, the text of the cancellation-of-removal stat- ute does not simply say that cancellation of removal is pre- cluded when, during the initial seven years of residence, the noncitizen was convicted of an offense referred to in Rather, the text says that cancellation of re- moval is precluded when, during the initial seven years of residence, the noncitizen “committed an offense referred to in section 1182(a)(2) that renders the alien inadmissi- ble.” That language clarifies two points of relevance here. First, cancellation of removal is precluded if a noncitizen committed a offense during the initial seven years of residence, even if (as in Barton’s case) the convic- tion occurred after the seven years elapsed. In other words, as Congress specified in the statute and as the BIA and the Courts of Appeals have recognized, the date of commission of the offense is the key date for purposes of calculating whether the noncitizen committed a offense during the initial seven years of residence. See In re Perez, —————— record of prior crimes. 10 22 I. & N. Dec. 9, (date of commis- sion is controlling date); see also – 71 (“the date of the commission of the offense governs the computation of a lawful permanent resident’s continuous residency in the United States”); (“Once he was convicted of the offense” referred to in “he was rendered inadmissible to the United States. His accrual of continuous residence was halted as of the date he committed that offense”). Second, the text of the law requires that the noncitizen be rendered “inadmissible” as a result of the offense. For crimes involving moral turpitude, which is the relevant cat- egory of offenses here, provides that a noncitizen is rendered “inadmissible” when he is con- victed of or admits the offense. (A)(i). As the Eleventh Circuit explained, “while only commission is re- quired at step one, conviction (or admission) is required at step two.” In this case, Barton’s 1996 state aggravated assault of- fenses were crimes involving moral turpitude and therefore “referred to in section 1182(a)(2).” Barton committed those offenses during his initial seven years of residence. He was later convicted of the offenses in a Georgia court and thereby rendered “inadmissible.” Therefore, Barton was in- eligible for cancellation of As a matter of statutory text and structure, that analysis is straightforward. The Board of Immigration Appeals has long interpreted the statute that way. See Jurado-, 24 I. & N. Dec., at And except for the Ninth Circuit, all of the Courts of Appeals to consider the question have in- terpreted the statute that way. B Barton pushes back on that straightforward statutory in- terpretation and the longstanding position of the Board of Cite as: 590 U. S. (2020) 11 Opinion of the Court Immigration Appeals. Barton says that he may not be de- nied cancellation of removal based on his 1996 aggravated assault offenses because those offenses were not among the offenses of removal found by the Immigration Judge in Bar- ton’s removal proceeding. Rather, his 1996 firearms offense and his 2007 and 2008 drug offenses were the offenses of To succinctly summarize the parties’ different positions (with the difference highlighted in italics below): The Gov- ernment would preclude cancellation of removal under this provision if the lawful permanent resident committed a offense during the initial seven years of resi- dence. Barton would preclude cancellation of removal un- der this provision if the lawful permanent resident commit- ted a offense during the initial seven years of residence and if that offense was one of the of- fenses of removal in the noncitizen’s removal proceeding. To support his “offense of removal” approach, Barton ad- vances three different arguments. A caution to the reader: These arguments are not easy to unpack. First, according to Barton, the statute’s overall structure with respect to removal proceedings demonstrates that a offense may preclude cancellation of removal only if that offense was one of the offenses of We disagree. In removal proceedings, a lawful permanent resident (such as Barton) may be found “deport- able” based on deportability offenses listed in A noncitizen who has not previously been admitted may be found “inadmissible” based on inadmissibility offenses listed in See 1227(a), 1229a(e)(2). Importantly, then, offenses—not of- fenses—are typically the basis for removal of lawful perma- nent residents. Because the offense of removal for lawful permanent res- idents is ordinarily a offense, Barton’s struc- tural argument falls apart. If Barton were correct that this 12 aspect of the cancellation-of-removal statute focused only on the offense of removal, the statute presumably would specify offenses “referred to in section 1182(a)(2) or section 1227(a)(2).” So why does the statute identify only offenses “referred to in section 1182(a)(2)”? Barton has no good an- swer. At oral argument, when directly asked that question, Barton’s able counsel forthrightly acknowledged: “It’s a lit- tle hard to explain.” Tr. of Oral Arg. 27. This point is the Achilles’ heel of Barton’s structural ar- gument. As we see it, Barton cannot explain the omission of offenses in the “referred to” clause for a sim- ple reason: Barton’s interpretation of the statute is incor- rect. Properly read, this is not simply an “offense of re- moval” statute that looks only at whether the offense of removal was committed during the initial seven years of residence. Rather, this is a recidivist statute that uses offenses as a shorthand cross-reference for a category of offenses that will preclude cancellation of re- moval if committed during the initial seven years of residence. By contrast to this cancellation-of-removal provision, some other provisions of the immigration laws do focus only on the offense of removal—for example, provisions govern- ing mandatory detention and jurisdiction. See (c)(1)(A), (B), 1252(a)(2)(C). But the statutory text and con- text of those provisions support that limitation. Those pro- visions use the phrase “inadmissible by reason of ” a offense, “deportable by reason of ” a offense, or “removable by reason of ” a or offense. And the provisions make contextual sense only if the offense justifying detention or denying ju- risdiction is one of the offenses of The cancellation- of-removal statute does not employ similar language. Second, moving from overall structure to precise text, Barton seizes on the statutory phrase “committed an of- fense referred to in section 1182(a)(2) that renders the Cite as: 590 U. S. (2020) 13 Opinion of the Court alien inadmissible to the United States under section 1182(a)(2).” (emphasis added). According to Barton, conviction of an offense listed in —for example, conviction in state court of a crime involving moral turpitude—does not itself render the noncitizen “in- admissible.” He argues that a noncitizen is not rendered “inadmissible” unless and until the noncitizen is actually adjudicated as inadmissible and denied admission to the United States. And he further contends that a lawfully ad- mitted noncitizen usually cannot be removed from the United States on the basis of inadmissibility. As Barton puts it (and the dissent echoes the point), how can a law- fully admitted noncitizen be found inadmissible when he has already been lawfully admitted? As a matter of common parlance alone, that argument would of course carry some force. But the argument fails because it disregards the statutory text, which employs the term “inadmissibility” as a status that can result from, for example, a noncitizen’s (including a lawfully admitted noncitizen’s) commission of certain offenses listed in For example, as relevant here, flatly says that a noncitizen such as Barton who commits a crime involving moral turpitude and is convicted of that offense “is inadmis- sible.” (A)(i). Full stop. Similarly, a noncitizen who has two or more convictions, together resulting in ag- gregate sentences of at least five years, “is inadmissible.” (B). A noncitizen who a consular officer or the Attorney General knows or has reason to believe is a drug trafficker “is inadmissible.” (C)(i). A noncitizen who receives the proceeds of prostitution within 10 years of applying for admission “is inadmissible.” (D)(ii). The list goes on. See, e.g., §(C)(ii)–(E), (G)–(I). Those provisions do not say that a noncitizen will become inadmissible if the noncitizen is found inadmissible in a subsequent immigration removal proceeding. Instead, 14 those provisions say that the noncitizen “is inadmissible.” Congress has in turn made that status—inadmissibility because of conviction or other proof of commission of offenses—relevant in several statutory contexts that apply to lawfully admitted noncitizens such as Barton. Those contexts include adjustment to permanent resident status; protection from removal because of temporary pro- tected status; termination of temporary resident status; and here cancellation of See, e.g., (a)(3)(B)(ii), 1254a(a)(1)(A), (c)(1)(A)(iii), 1255(a), (l)(2). In those contexts, the noncitizen faces immigration conse- quences from being convicted of a offense even though the noncitizen is lawfully admitted and is not nec- essarily removable solely because of that offense. Consider how those other proceedings work. A lawfully admitted noncitizen who is convicted of an offense listed in is typically not removable from the United States on that basis (recall that a lawfully admitted noncit- izen is ordinarily removable only for commission of a offense). But the noncitizen is “inadmissible” because of the offense and for that reason may not be able to obtain adjustment to permanent resident sta- tus. (l)(2). So too, a lawfully admitted noncitizen who is convicted of an offense listed in is “inad- missible” and for that reason may not be able to obtain tem- porary protected status. (c)(1)(A)(iii). A lawfully admitted noncitizen who is a temporary resident and is convicted of a offense is “inadmissible” and for that reason may lose temporary resident status. (a)(3)(B)(ii). Those statutory examples pose a major hurdle for Bar- ton’s textual argument. The examples demonstrate that Congress has employed the concept of “inadmissibility” as a status in a variety of statutes similar to the cancellation- of-removal statute, including for lawfully admitted nonciti- zens. Barton has no persuasive answer to those examples. Cite as: 590 U. S. (2020) 15 Opinion of the Court Barton tries to say that some of those other statutes involve a noncitizen who, although already admitted to the United States, is nonetheless seeking “constructive admission.” Reply Brief 12; Tr. of Oral Arg. 11. But that ginned-up label does not avoid the problem. Put simply, those other stat- utes show that lawfully admitted noncitizens who are, for example, convicted of crimes are “inadmissible” and in turn may suffer certain immigration consequences, even though those lawfully admitted noncitizens cannot necessarily be removed solely because of those offenses. The same is true here. A lawfully admitted noncitizen who was convicted of a crime involving moral turpitude dur- ing his initial seven years of residence is “inadmissible” and for that reason is ineligible for cancellation of In advancing his structural and textual arguments, Bar- ton insists that his interpretation of the statute reflects con- gressional intent regarding cancellation of But if Congress intended that only the offense of removal would preclude cancellation of removal under the 7-year residence provision, it is unlikely that Congress would have employed such a convoluted way to express that intent. Barton can- not explain why, if his view of Congress’ intent is correct, the statute does not simply say something like: “The alien is not eligible for cancellation of removal if the offense of removal was committed during the alien’s initial seven years of residence.” Third, on a different textual tack, Barton argues that the Government’s interpretation cannot be correct because the Government would treat as surplusage the phrase “or re- movable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” Recall that the statute, as relevant here, provides that a lawful permanent resident is not eli- gible for cancellation of removal if, during the initial seven years of residence, he committed “an offense referred to in 16 section 1182(a)(2) of this title that renders the alien inad- missible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” (em- phasis added). To begin with, all agree that under either side’s interpre- tation, the reference to distinct from —is redundant surplusage. See Brief for Petitioner 32–33 & n. 7. Under the Government’s interpretation, it is true that the reference to also appears to be redundant surplusage. Any offense that is both referred to in and an offense that would render the noncitizen deportable under would also render the noncitizen inadmissible under But redundancies are common in statutory drafting—some- times in a congressional effort to be doubly sure, sometimes because of congressional inadvertence or lack of foresight, or sometimes simply because of the shortcomings of human communication. The Court has often recognized: “Some- times the better overall reading of the statute contains some redundancy.” Rimini Street, Inc. v. Oracle USA, Inc., 586 U. S. (2019) (slip op., at 11); see Wisconsin Cen- tral Ltd. v. United States, 585 U. S. (slip op., at 7); 5 U.S. 371, (2013); (2004). So it is here. Most importantly for present pur- poses, we do not see why the redundant statutory reference to should cause us to entirely rewrite so that a noncitizen’s commission of an offense referred to in would preclude cancellation of removal only if it is also the offense of Redundancy in one portion of a statute is not a license to rewrite or eviscerate another portion of the statute contrary to its text, as Barton would have us do. One final point: Barton argues in the alternative that even if inadmissibility is a status, and even if the offense Cite as: 590 U. S. (2020) 17 Opinion of the Court that precludes cancellation of removal need not be one of the offenses of removal, the noncitizen must at least have been capable of being charged with a inadmis- sibility offense as the basis for The dissent seizes on this argument as well. But as we have explained, this cancellation-of-removal statute is a recidivist statute that precludes cancellation of removal if the noncitizen has com- mitted an offense listed in during the initial seven years of residence. Whether the offense that pre- cludes cancellation of removal was charged or could have been charged as one of the offenses of removal is irrelevant to that analysis. * * * Removal of a lawful permanent resident from the United States is a wrenching process, especially in light of the con- sequences for family members. Removal is particularly dif- ficult when it involves someone such as Barton who has spent most of his life in the United States. Congress made a choice, however, to authorize removal of noncitizens— even lawful permanent residents—who have committed certain serious crimes. And Congress also made a choice to categorically preclude cancellation of removal for nonciti- zens who have substantial criminal records. Congress may of course amend the law at any time. In the meantime, the Court is constrained to apply the law as enacted by Con- gress. Here, as the BIA explained in its Jurado- decision, and as the Second, Third, Fifth, and Elev- enth Circuits have indicated, the immigration laws enacted by Congress do not allow cancellation of removal when a lawful permanent resident has amassed a criminal record of this kind. We affirm the judgment of the U. S. Court of Appeals for the Eleventh Circuit. It is so ordered. Cite as: 590 U. S. (2020) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES No. 18–725 ANDRE MARTELLO BARTON, PETITIONER v. WILLIAM P.

Justice Scalia

concurring

Mine Workers v. Bagwell

https://www.courtlistener.com/opinion/117872/mine-workers-v-bagwell/

https://www.courtlistener.com/api/rest/v3/clusters/117872/

1993-092

I join the Court's opinion classifying the $52 million in contempt fines levied against petitioners as criminal. As the Court's opinion demonstrates, our cases have employed a variety of not easily reconcilable tests for differentiating between civil and criminal contempts. Since all of those tests *840 would yield the same result here, there is no need to decide which is the correct one—and a case so extreme on its facts is not the best case in which to make that decision. I wish to suggest, however, that when we come to making it, a careful examination of historical practice will ultimately yield the answer. That one and the same person should be able to make the rule, to adjudicate its violation, and to assess its penalty is out of accord with our usual notions of fairness and separation of powers. See ante, at 831; Green v. United States, 356 U.S. 165, 198-199 (1958) (Black, J., dissenting); cf. Bloom v. Illinois, 391 U.S. 194, 202 (1968); Cooke v. United States, 267 U.S. 517, 539 (1925). And it is worse still for that person to conduct the adjudication without affording the protections usually given in criminal trials. Only the clearest of historical practice could establish that such a departure from the procedures that the Constitution normally requires is not a denial of due process of law. See Burnham v. Superior Court of Cal., County of Marin, 495 U.S. 604, 623-625 (1990); cf. Honda Motor Co. v. Oberg, ante, at 430-431. At common law, contempts were divided into criminal contempts, in which a litigant was punished for an affront to the court by a fixed fine or period of incarceration; and civil contempts, in which an uncooperative litigant was incarcerated (and, in later cases, fined[*]) until he complied with a specific order of the court. See Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-444 (1911). Incarceration until compliance was a distinctive sanction, and sheds light upon the nature of the decrees enforced by civil contempt. That sanction makes sense only if the order requires performance *841 of an identifiable act (or perhaps cessation of continuing performance of an identifiable act). A general prohibition for the future does not lend itself to enforcement through conditional incarceration, since no single act (or the cessation of no single act) can demonstrate compliance and justify release. One court has expressed the difference between criminal and civil contempts as follows: "Punishment in criminal contempt cannot undo or remedy the thing which has been done, but in civil contempt punishment remedies the disobedience." In re Fox, 96 F.2d 23, 25 (CA3 1938). As one would expect from this, the orders that underlay civil contempt fines or incarceration were usually mandatory rather than prohibitory, see Gompers, supra, at 442, directing litigants to perform acts that would further the litigation (for example, turning over a document), or give effect to the court's judgment (for example, executing a deed of conveyance). The latter category of order was particularly common, since the jurisdiction of equity courts was generally in personam rather than in rem, and the relief they decreed would almost always be a directive to an individual to perform an act with regard to property at issue. See 4 J. Pomeroy, Equity Jurisprudence § 1433, pp. 3386-3388 (4th ed. 1919). The mandatory injunctions issued upon termination of litigation usually required "a single simple act." H. McClintock, Principles of Equity § 15, pp. 32-33 (2d ed. 1948). Indeed, there was a "historical prejudice of the court of chancery against rendering decrees which called for more than a single affirmative act." Id. , § 61, at 160. And where specific performance of contracts was sought, it was the categorical rule that no decree would issue that required ongoing supervision. See, e. g., Marble Co. v. Ripley, 10 Wall. 339, 358-359 (1870); see also McClintock, supra, § 61, at 160-161; 1 J. Story, Commentaries on Equity Jurisprudence § 778b, p. 782 (Redfield ed.; 10th ed. 1870). Compliance with these "single act" mandates could, in addition to being simple, be *842 quick; and once it was achieved the contemnor's relationship with the court came to an end, at least insofar as the subject of the order was concerned. Once the document was turned over or the land conveyed, the litigant's obligation to the court, and the court's coercive power over the litigant, ceased. See United States v. Mine Workers, 330 U.S. 258, 332 (1947) (Black, J., concurring in part and dissenting in part). The court did not engage in any ongoing supervision of the litigant's conduct, nor did its order continue to regulate his behavior. Even equitable decrees that were prohibitory rather than mandatory were, in earlier times, much less sweeping than their modern counterparts. Prior to the labor injunctions of the late 1800's, injunctions were issued primarily in relatively narrow disputes over property. See, e. g., W. Kerr, Law and Practice of Injunctions *7 (2d Am. Ed. 1880); see also F. Frankfurter & N. Greene, The Labor Injunction 23-24, 87-88 (1930). Contemporary courts have abandoned these earlier limitations upon the scope of their mandatory and injunctive decrees. See G. McDowell, Equity and the Constitution 4, 9 (1982). They routinely issue complex decrees which involve them in extended disputes and place them in continuing supervisory roles over parties and institutions. See, e. g., Missouri v. Jenkins, 495 U.S. 33, 56-58 (1990); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 1, the (1971). Professor Chayes has described the extent of transformation: "[The modern decree] differs in almost every relevant characteristic from relief in the traditional model of adjudication, not the least in that it is the centerpiece. . . . It provides for a complex, on-going regime of performance rather than a simple, one-shot, one-way transfer. Finally, it prolongs and deepens, rather than terminates, the court's involvement with the dispute." Chayes, The *843 Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1298 (1976). The consequences of this change for the point under discussion here are obvious: When an order governs many aspects of a litigant's activities, rather than just a discrete act, determining compliance becomes much more difficult. Credibility issues arise, for which the factfinding protections of the criminal law (including jury trial) become much more important. And when continuing prohibitions or obligations are imposed, the order cannot be complied with (and the contempt "purged") in a single act; it continues to govern the party's behavior, on pain of punishment—not unlike the criminal law. The order at issue here provides a relatively tame example of the modern, complex decree. The amended injunction prohibited, inter alia, rock throwing, the puncturing of tires, threatening, following or interfering with respondents' employees, placing pickets in other than specified locations, and roving picketing; and it required, inter alia, that petitioners provide a list of names of designated supervisors. App. to Pet. for Cert. 113a-116a. Although it would seem quite in accord with historical practice to enforce, by conditional incarceration or per diem fines, compliance with the last provision—a discrete command, observance of which is readily ascertained—using that same means to enforce the remainder of the order would be a novelty. * * * The use of a civil process for contempt sanctions "makes no sense except as a consequence of historical practice." Weiss v. United States, 510 U.S. 163, 198 (1994) (Scalia, J., concurring in part and concurring in judgment). As the scope of injunctions has expanded, they have lost some of the distinctive features that made enforcement through civil process acceptable. It is not that the times, or our perceptions of fairness, have changed (that is in my view no basis *844 for either tightening or relaxing the traditional demands of due process); but rather that the modern judicial order is in its relevant essentials not the same device that in former times could always be enforced by civil contempt. So adjustments will have to be made. We will have to decide at some point which modern injunctions sufficiently resemble their historical namesakes to warrant the same extraordinary means of enforcement. We need not draw that line in the present case, and so I am content to join the opinion of the Court. Justice Ginsburg, with whom The Chief Justice joins, concurring in part and concurring in the judgment. The issue in this case is whether the contempt proceedings brought against the petitioner unions are to be classified as "civil" or "criminal." As the Court explains, if those proceedings were "criminal," then the unions were entitled under our precedents to a jury trial, and the disputed fines, imposed in bench proceedings, could not stand. See ante, at 826-827. I Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911), as the Court notes, see ante, at 827-828, is a pathmarking case in this area. The civil contempt sanction, Gompers instructs, is designed "to coerce the defendant to do the thing required by the order for the benefit of the complainant," rather than "to vindicate the authority of the law." 221 U.S., at 442. The sanction operates coercively because it applies continuously until the defendant performs the discrete, "affirmative act" required by the court's order, for example, production of a document or presentation of testimony. Ibid. The civil contemnor thus "`carries the keys of his prison in his own pocket' ": At any moment, "[h]e can end the sentence and discharge himself . . . by doing what he had previously refused to do." Ibid., quoting In re Nevitt, 117 F. 448, 461 (CA8 1902). *845 The criminal contempt sanction, by contrast, is "punitive, [imposed] to vindicate the authority of the court." Gompers, 221 U. S., at 441. Unlike the civil contemnor, who has refused to perform some discrete, affirmative act commanded by the court, Gompers explains, the criminal contemnor has "do[ne] that which he has been commanded not to do." Id., at 442. The criminal contemnor's disobedience is past, a "completed act," id., at 443, a deed no sanction can undo. See id., at 442. Accordingly, the criminal contempt sanction operates not to coerce a future act from the defendant for the benefit of the complainant, but to uphold the dignity of the law, by punishing the contemnor's disobedience. Id., at 442-443. Because the criminal contempt sanction is determinate and unconditional, the Court said in Gompers, "the defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense." Id., at 442. Even as it outlined these civil and criminal contempt prototypes, however, the Court in Gompers acknowledged that the categories, when filled by actual cases, are not altogether neat and tidy. Civil contempt proceedings, although primarily remedial, also "vindicat[e] . . . the court's authority"; and criminal contempt proceedings, although designed "to vindicate the authority of the law," may bestow "some incidental benefit" upon the complainant, because "such punishment tends to prevent a repetition of the disobedience." Id., at 443. II The classifications described in Gompers have come under strong criticism, particularly from scholars. Many have observed, as did the Court in Gompers itself, that the categories, "civil" and "criminal" contempt, are unstable in theory and problematic in practice. See ante, at 827, n. 3 (citing scholarly criticism); see also Dudley, Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts, 79 Va. L. Rev. 1025, 1025, n. 1 (1993) (citing additional scholarly criticism). *846 Our cases, however, have consistently resorted to the distinction between criminal and civil contempt to determine whether certain constitutional protections, required in criminal prosecutions, apply in contempt proceedings. See, e. g., United States v. Dixon, 509 U.S. 688, 696 (1993) ("We have held that [certain] constitutional protections for criminal defendants . . . apply in nonsummary criminal contempt prosecutions just as they do in other criminal prosecutions.") (citing cases). And the Court has repeatedly relied upon Gompers ` delineation of the distinction between criminal and civil contempt. See, e. g., Hicks v. Feiock, 485 U.S. 624, 631-633, 635-636 (1988). The parties, accordingly, have presented their arguments within the Gompers framework. Two considerations persuade me that the contempt proceedings in this case should be classified as "criminal" rather than "civil." First, were we to accept the logic of Bagwell's argument that the fines here were civil, because "conditional" and "coercive," no fine would elude that categorization. The fines in this case were "conditional," Bagwell says, because they would not have been imposed if the unions had complied with the injunction. The fines would have been "conditional" in this sense, however, even if the court had not supplemented the injunction with its fines schedule; indeed, any fine is "conditional" upon compliance or noncompliance before its imposition. Cf. ante, at 837 (the unions' ability to avoid imposition of the fines was "indistinguishable from the ability of any ordinary citizen to avoid a criminal sanction by conforming his behavior to the law"). Furthermore, while the fines were "coercive," in the sense that one of their purposes was to encourage union compliance with the injunction, criminal contempt sanctions may also "coerce" in this same sense, for they, too, "ten[d] to prevent a repetition of the disobedience." Gompers, 221 U. S., at 443. Bagwell's thesis that the fines were civil, because "conditional" *847 and "coercive," would so broaden the compass of those terms that their line-drawing function would be lost.[*] Second, the Virginia courts' refusal to vacate the fines, despite the parties' settlement and joint motion, see ante, at 825-826, is characteristic of criminal, not civil, proceedings. In explaining why the fines outlived the underlying civil dispute, the Supreme Court of Virginia stated: "Courts of the Commonwealth must have the authority to enforce their orders by employing coercive, civil sanctions if the dignity of the law and public respect for the judiciary are to be maintained." 244 Va. 463, 478, 423 S.E.2d 349, 358 (1992). The Virginia court's references to upholding public authority and maintaining "the dignity of the law" reflect the very purposes Gompers ranked on the criminal contempt side. See supra, at 844-845. Moreover, with the private complainant gone from the scene, and an official appointed by the Commonwealth to collect the fines for the Commonwealth's coffers, it is implausible to invoke the justification of benefiting the civil complainant. The Commonwealth here pursues the fines on its own account, not as the agent of a private party, and without tying the exactions exclusively to a claim for compensation. Cf. Hicks, 485 U. S., at 632 ("[A] fine . . . [is] punitive when it is paid to the court," but "remedial" or "civil" "when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order."). If, as the trial court declared, the proceedings *848 were indeed civil from the outset, then the court should have granted the parties' motions to vacate the fines. * * * Concluding that the fines at issue "are more closely analogous to . . . criminal fines" than to civil fines, ante, at 837, I join the Court's judgment and all but Part II—B of its opinion.

I join the Court's opinion classifying the $52 million in contempt fines levied against petitioners as criminal. As the Court's opinion demonstrates, our cases have employed a variety of not easily reconcilable tests for differentiating between civil and criminal contempts. Since all of those tests *840 would yield the same result here, there is no need to decide which is the correct one—and a case so extreme on its facts is not the best case in which to make that decision. I wish to suggest, however, that when we come to making it, a careful examination of historical practice will ultimately yield the answer. That one and the same person should be able to make the rule, to adjudicate its violation, and to assess its penalty is out of accord with our usual notions of fairness and separation of powers. See ante, at 831; ; cf. ; And it is worse still for that person to conduct the adjudication without affording the protections usually given in criminal trials. Only the clearest of historical practice could establish that such a departure from the procedures that the Constitution normally requires is not a denial of due process of law. See ; cf. Honda Motor Co. v. Oberg, ante, at 430-431. At common law, contempts were divided into criminal contempts, in which a litigant was punished for an affront to the court by a fixed fine or period of incarceration; and civil contempts, in which an uncooperative litigant was incarcerated (and, in later cases, fined[*]) until he complied with a specific order of the court. See Incarceration until compliance was a distinctive sanction, and sheds light upon the nature of the decrees enforced by civil contempt. That sanction makes sense only if the order requires performance *841 of an identifiable act (or perhaps cessation of continuing performance of an identifiable act). A general prohibition for the future does not lend itself to enforcement through conditional incarceration, since no single act (or the cessation of no single act) can demonstrate compliance and justify release. One court has expressed the difference between criminal and civil contempts as follows: "Punishment in criminal contempt cannot undo or remedy the thing which has been done, but in civil contempt punishment remedies the disobedience." In re Fox, As one would expect from this, the orders that underlay civil contempt fines or incarceration were usually mandatory rather than prohibitory, see directing litigants to perform acts that would further the litigation (for example, turning over a document), or give effect to the court's judgment (for example, executing a deed of conveyance). The latter category of order was particularly common, since the jurisdiction of equity courts was generally in personam rather than in rem, and the relief they decreed would almost always be a directive to an individual to perform an act with regard to property at issue. See 4 J. Pomeroy, Equity Jurisprudence 1433, pp. 3386-3388 (4th ed. 1919). The mandatory injunctions issued upon termination of litigation usually required "a single simple act." H. Principles of Equity 15, pp. 32-33 (2d ed. 1948). Indeed, there was a "historical prejudice of the court of chancery against rendering decrees which called for more than a single affirmative act." 61, at 0. And where specific performance of contracts was sought, it was the categorical rule that no decree would issue that required ongoing supervision. See, e. g., Marble ; see also 61, at 0-1; 1 J. Story, Commentaries on Equity Jurisprudence 778b, p. 782 Compliance with these "single act" mandates could, in addition to being simple, be *842 quick; and once it was achieved the contemnor's relationship with the court came to an end, at least insofar as the subject of the order was concerned. Once the document was turned over or the land conveyed, the litigant's obligation to the court, and the court's coercive power over the litigant, ceased. See United 330 U.S. 8, The court did not engage in any ongoing supervision of the litigant's conduct, nor did its order continue to regulate his behavior. Even equitable decrees that were prohibitory rather than mandatory were, in earlier times, much less sweeping than their modern counterparts. Prior to the labor injunctions of the late 1800's, injunctions were issued primarily in relatively narrow disputes over property. See, e. g., W. Kerr, Law and Practice of Injunctions *7 (2d Am. Ed. 1880); see also F. Frankfurter & N. Greene, The Labor Injunction 23-24, 87-88 (1930). Contemporary courts have abandoned these earlier limitations upon the scope of their mandatory and injunctive decrees. See G. McDowell, Equity and the Constitution 4, 9 (2). They routinely issue complex decrees which involve them in extended disputes and place them in continuing supervisory roles over parties and institutions. See, e. g., ; 1, the (1971). Professor Chayes has described the extent of transformation: "[The modern decree] differs in almost every relevant characteristic from relief in the traditional model of adjudication, not the least in that it is the centerpiece. It provides for a complex, on-going regime of performance rather than a simple, one-shot, one-way transfer. Finally, it prolongs and deepens, rather than terminates, the court's involvement with the dispute." Chayes, The *843 Role of the Judge in Public Law Litigation, The consequences of this change for the point under discussion here are obvious: When an order governs many aspects of a litigant's activities, rather than just a discrete act, determining compliance becomes much more difficult. Credibility issues arise, for which the factfinding protections of the criminal law (including jury trial) become much more important. And when continuing prohibitions or obligations are imposed, the order cannot be complied with (and the contempt "purged") in a single act; it continues to govern the party's behavior, on pain of punishment—not unlike the criminal law. The order at issue here provides a relatively tame example of the modern, complex decree. The amended injunction prohibited, inter alia, rock throwing, the puncturing of tires, threatening, following or interfering with respondents' employees, placing pickets in other than specified locations, and roving picketing; and it required, inter alia, that petitioners provide a list of names of designated supervisors. App. to Pet. for Cert. 113a-1a. Although it would seem quite in accord with historical practice to enforce, by conditional incarceration or per diem fines, compliance with the last provision—a discrete command, observance of which is readily ascertained—using that same means to enforce the remainder of the order would be a novelty. * * * The use of a civil process for contempt sanctions "makes no sense except as a consequence of historical practice." 510 U.S. 3, As the scope of injunctions has expanded, they have lost some of the distinctive features that made enforcement through civil process acceptable. It is not that the times, or our perceptions of fairness, have changed (that is in my view no basis *844 for either tightening or relaxing the traditional demands of due process); but rather that the modern judicial order is in its relevant essentials not the same device that in former times could always be enforced by civil contempt. So adjustments will have to be made. We will have to decide at some point which modern injunctions sufficiently resemble their historical namesakes to warrant the same extraordinary means of enforcement. We need not draw that line in the present case, and so I am content to join the opinion of the Court. Justice Ginsburg, with whom The Chief Justice joins, concurring in part and concurring in the judgment. The issue in this case is whether the contempt proceedings brought against the petitioner unions are to be classified as "civil" or "criminal." As the Court explains, if those proceedings were "criminal," then the unions were entitled under our precedents to a jury trial, and the disputed fines, imposed in bench proceedings, could not stand. See ante, at 826-827. I as the Court notes, see ante, at 827-828, is a pathmarking case in this area. The civil contempt sanction, instructs, is designed "to coerce the defendant to do the thing required by the order for the benefit of the complainant," rather than "to vindicate the authority of the law." 221 U.S., The sanction operates coercively because it applies continuously until the defendant performs the discrete, "affirmative act" required by the court's order, for example, production of a document or presentation of testimony. The civil contemnor thus "`carries the keys of his prison in his own pocket' ": At any moment, "[h]e can end the sentence and discharge himself by doing what he had previously refused to do." quoting In re Nevitt, *845 The criminal contempt sanction, by contrast, is "punitive, [imposed] to vindicate the authority of the court." Unlike the civil contemnor, who has refused to perform some discrete, affirmative act commanded by the court, explains, the criminal contemnor has "do[ne] that which he has been commanded not to do." The criminal contemnor's disobedience is past, a "completed act," a deed no sanction can undo. See Accordingly, the criminal contempt sanction operates not to coerce a future act from the defendant for the benefit of the complainant, but to uphold the dignity of the law, by punishing the contemnor's disobedience. -443. Because the criminal contempt sanction is determinate and unconditional, the Court said in "the defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense." Even as it outlined these civil and criminal contempt prototypes, however, the Court in acknowledged that the categories, when filled by actual cases, are not altogether neat and tidy. Civil contempt proceedings, although primarily remedial, also "vindicat[e] the court's authority"; and criminal contempt proceedings, although designed "to vindicate the authority of the law," may bestow "some incidental benefit" upon the complainant, because "such punishment tends to prevent a repetition of the disobedience." II The classifications described in have come under strong criticism, particularly from scholars. Many have observed, as did the Court in itself, that the categories, "civil" and "criminal" contempt, are unstable in theory and problematic in practice. See ante, at 827, n. 3 (citing scholarly criticism); see also Dudley, Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts, 79 Va. L. Rev. 10, 10, n. 1 (citing additional scholarly criticism). *846 Our cases, however, have consistently resorted to the distinction between criminal and civil contempt to determine whether certain constitutional protections, required in criminal prosecutions, apply in contempt proceedings. See, e. g., United (citing cases). And the Court has repeatedly relied upon ` delineation of the distinction between criminal and civil contempt. See, e. g., (8). The parties, accordingly, have presented their arguments within the framework. Two considerations persuade me that the contempt proceedings in this case should be classified as "criminal" rather than "civil." First, were we to accept the logic of Bagwell's argument that the fines here were civil, because "conditional" and "coercive," no fine would elude that categorization. The fines in this case were "conditional," Bagwell says, because they would not have been imposed if the unions had complied with the injunction. The fines would have been "conditional" in this sense, however, even if the court had not supplemented the injunction with its fines schedule; indeed, any fine is "conditional" upon compliance or noncompliance before its imposition. Cf. ante, at 837 (the unions' ability to avoid imposition of the fines was "indistinguishable from the ability of any ordinary citizen to avoid a criminal sanction by conforming his behavior to the law"). Furthermore, while the fines were "coercive," in the sense that one of their purposes was to encourage union compliance with the injunction, criminal contempt sanctions may also "coerce" in this same sense, for they, too, "ten[d] to prevent a repetition of the disobedience." 221 U. S., Bagwell's thesis that the fines were civil, because "conditional" *847 and "coercive," would so broaden the compass of those terms that their line-drawing function would be lost.[*] Second, the Virginia courts' refusal to vacate the fines, despite the parties' settlement and joint motion, see ante, at 8-826, is characteristic of criminal, not civil, proceedings. In explaining why the fines outlived the underlying civil dispute, the Supreme Court of Virginia stated: "Courts of the Commonwealth must have the authority to enforce their orders by employing coercive, civil sanctions if the dignity of the law and public respect for the judiciary are to be maintained." The Virginia court's references to upholding public authority and maintaining "the dignity of the law" reflect the very purposes ranked on the criminal contempt side. See Moreover, with the private complainant gone from the scene, and an official appointed by the Commonwealth to collect the fines for the Commonwealth's coffers, it is implausible to invoke the justification of benefiting the civil complainant. The Commonwealth here pursues the fines on its own account, not as the agent of a private party, and without tying the exactions exclusively to a claim for compensation. Cf. Hicks, If, as the trial court declared, the proceedings *848 were indeed civil from the outset, then the court should have granted the parties' motions to vacate the fines. * * * Concluding that the fines at issue "are more closely analogous to criminal fines" than to civil fines, ante, at 837, I join the Court's judgment and all but Part II—B of its opinion.

Justice Scalia

majority

Kansas v. Carr

https://www.courtlistener.com/opinion/3170728/kansas-v-carr/

https://www.courtlistener.com/api/rest/v3/clusters/3170728/

2015-005

The Supreme Court of Kansas vacated the death sen- tences of Sidney Gleason and brothers Reginald and Jona- than Carr. Gleason killed one of his co-conspirators and her boyfriend to cover up the robbery of an elderly man. The Carrs’ notorious Wichita crime spree culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women. We first consider whether the Constitution required the sentencing courts to instruct the juries that mitigating circumstances “need not be proved beyond a reasonable doubt.” And second, 2 KANSAS v. CARR Opinion of the Court whether the Constitution required severance of the Carrs’ joint sentencing proceedings. I A Less than one month after Sidney Gleason was paroled from his sentence for attempted voluntary manslaughter, he joined a conspiracy to rob an elderly man at knife- point.1 Gleason and a companion “cut up” the elderly man to get $10 to $35 and a box of cigarettes. 299 Kan. 1127, 1136, 329 P.3d 1102, 1115 (2014). Fearing that their female co-conspirators would snitch, Gleason and his cousin, Damien Thompson, set out to kill co-conspirator Mikiala Martinez. Gleason shot and killed Martinez’s boyfriend, and then Gleason and Thompson drove Mar- tinez to a rural location, where Thompson strangled her for five minutes and then shot her in the chest, Gleason standing by and providing the gun for the final shot. The State ultimately charged Gleason with capital murder for killing Martinez and her boyfriend, first-degree premeditated murder of the boyfriend, aggravating kid- naping of Martinez, attempted first-degree murder and aggravated robbery of the elderly man, and criminal pos- session of a firearm. He was convicted on all counts except the attempted first-degree murder charge. Id., at 1134– 1135, 1146, 329 P.3d, at 1114, 1120. The jury also found that the State proved beyond a reasonable doubt the existence of four aggravating circumstances and unani- mously agreed to a sentence of death. Id., at 1146–1147, 329 P. 3d, at 1120–1121. B In December 2000, brothers Reginald and Jonathan —————— 1 The facts for this portion of the opinion come from the Kansas Su- preme Court, 299 Kan. 1127, 1134–1147, 329 P.3d 1102, 1113–1121 (2014), and the parties’ briefs. Cite as: 577 U. S. ____ (2016) 3 Opinion of the Court Carr set out on a crime spree culminating in the Wichita Massacre.2 On the night of December 7, Reginald Carr and an unknown man carjacked Andrew Schreiber, held a gun to his head, and forced him to make cash withdrawals at various ATMs. On the night of December 11, the brothers followed Linda Ann Walenta, a cellist for the Wichita symphony, home from orchestra practice. One of them approached her vehicle and said he needed help. When she rolled down her window, he pointed a gun at her head. When she shifted into reverse to escape, he shot her three times, ran back to his brother’s car, and fled the scene. One of the gunshots severed Walenta’s spine, and she died one month later as a result of her injuries. On the night of December 14, the brothers burst into a triplex at 12727 Birchwood, where roommates Jason, Brad, and Aaron lived. Jason’s girlfriend, Holly, and Heather, a friend of Aaron’s, were also in the house. Armed with handguns and a golf club, the brothers forced all five into Jason’s bedroom. They demanded that they strip naked and later ordered them into the bedroom closet. They took Holly and Heather from the bedroom, demanded that they perform oral sex and digitally pene- trate each other as the Carrs looked on and barked orders. They forced each of the men to have sex with Holly and then with Heather. They yelled that the men would be shot if they could not have sex with the women, so Holly— fearing for Jason’s life—performed oral sex on him in the closet before he was ordered out by the brothers. Jonathan then snatched Holly from the closet. He ordered that she digitally penetrate herself. He set his —————— 2 The facts for this portion of the opinion come from the Kansas Su- preme Court, 300 Kan. 1, 18–38, 331 P.3d 544, 575–586 (2014), and witness testimony. See 21–A Tr. 59–75 (Oct. 7, 2002), 22–B Tr. 39–124 (Oct. 8, 2002), 23–A Tr. 4–118 (Oct. 9, 2002), 23–B Tr. 5–133 (Oct. 9, 2002), and 24–A Tr. 4–93 (Oct. 10, 2002). 4 KANSAS v. CARR Opinion of the Court gun between her knees on the floor. And he raped her. Then he raped Heather. Reginald took Brad, Jason, Holly, and Aaron one-by-one to various ATMs to withdraw cash. When the victims returned to the house, their torture continued. Holly uri- nated in the closet because of fright. Jonathan found an engagement ring hidden in the bedroom that Jason was keeping as a surprise for Holly. Pointing his gun at Jason, he had Jason identify the ring while Holly was sitting nearby in the closet. Then Reginald took Holly from the closet, said he was not going to shoot her yet, and raped her on the dining-room floor strewn with boxes of Christ- mas decorations. He forced her to turn around, ejaculated into her mouth, and forced her to swallow. In a nearby bathroom, Jonathan again raped Heather and then again raped Holly. At 2 a.m.—three hours after the mayhem began—the brothers decided it was time to leave the house. They attempted to put all five victims in the trunk of Aaron’s Honda Civic. Finding that they would not all fit, they jammed the three young men into the trunk. They di- rected Heather to the front of the car and Holly to Jason’s pickup truck, driven by Reginald. Once the vehicles ar- rived at a snow-covered field, they instructed Jason and Brad, still naked, and Aaron to kneel in the snow. Holly cried, “Oh, my God, they’re going to shoot us.” Holly and Heather were then ordered to kneel in the snow. Holly went to Jason’s side; Heather, to Aaron. Holly heard the first shot, heard Aaron plead with the brothers not to shoot, heard the second shot, heard the screams, heard the third shot, and the fourth. She felt the blow of the fifth shot to her head, but remained kneeling. They kicked her so she would fall face-first into the snow and ran her over in the pickup truck. But she survived, because a hair clip she had fastened to her hair that night deflected the bullet. She went to Jason, took off her Cite as: 577 U. S. ____ (2016) 5 Opinion of the Court sweater, the only scrap of clothing the brothers had let her wear, and tied it around his head to stop the bleeding from his eye. She rushed to Brad, then Aaron, and then Heather. Spotting a house with white Christmas lights in the distance, Holly started running toward it for help—naked, skull shattered, and without shoes, through the snow and over barbed-wire fences. Each time a car passed on the nearby road, she feared it was the brothers returning and camouflaged herself by lying down in the snow. She made it to the house, rang the doorbell, knocked. A man opened the door, and she relayed as quickly as she could the events of the night to him, and minutes later to a 911 dispatcher, fearing that she would not live. Holly lived, and retold this play-by-play of the night’s events to the jury. Investigators also testified that the brothers returned to the Birchwood house after leaving the five friends for dead, where they ransacked the place for valuables and (for good measure) beat Holly’s dog, Nikki, to death with a golf club. The State charged each of the brothers with more than 50 counts, including murder, rape, sodomy, kidnaping, burglary, and robbery, and the jury returned separate guilty verdicts. It convicted Reginald of one count of kid- naping, aggravated robbery, aggravated battery, and criminal damage to property for the Schreiber carjacking, and one count of first-degree felony murder for the Walenta shooting. Jonathan was acquitted of all counts related to the Schreiber carjacking but convicted of first-degree felony murder for the Walenta shooting. For the Birch- wood murders, the jury convicted each brother of 4 counts of capital murder, 1 count of attempted first-degree mur- der, 5 counts of aggravated kidnaping, 9 counts of aggra- vated robbery, 20 counts of rape or attempted rape, 3 counts of aggravated criminal sodomy, 1 count each of aggravated burglary and burglary, 1 count of theft, and 1 6 KANSAS v. CARR Opinion of the Court count of cruelty to animals. The jury also convicted Reg- inald of three counts of unlawful possession of a firearm. 300 Kan. 1, 15–16, 331 P.3d 544, 573–574 (2014). The State sought the death penalty for each of the four Birchwood murders, and the brothers were sentenced together. The State relied on the guilt-phase evidence, including Holly’s two days of testimony, as evidence of four aggravating circumstances: that the defendants knowingly or purposely killed or created a great risk of death to more than one person; that they committed the crimes for the purpose of receiving money or items of monetary value; that they committed the crimes to prevent arrest or pro- secution; and that they committed the crimes in an espe- cially heinous, atrocious, or cruel manner. Id., at 258–259, 331 P. 3d, at 708. After hearing each brother’s case for mitigation, the jury issued separate verdicts of death for Reginald and Jonathan. It found unanimously that the State proved the existence of the four aggravating circum- stances beyond a reasonable doubt and that those aggra- vating circumstances outweighed the mitigating circum- stances, justifying four separate verdicts of death for each brother for the murders of Jason, Brad, Aaron, and Heather. App. in No. 14–449 etc., pp. 461–492. C The Kansas Supreme Court vacated the death penalties in both cases. It held that the instructions used in both Gleason’s and the Carrs’ sentencing violated the Eighth Amendment because they “failed to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt.” 299 Kan., at 1196, 329 P. 3d, at 1147 (Gleason); 300 Kan., at 303, 331 P. 3d, at 733 (Reginald Carr); 300 Kan. 340, 369–370, 329 P.3d 1195, 1213 (2014) (Jonathan Carr). Without that instruction, according to the court, Cite as: 577 U. S. ____ (2016) 7 Opinion of the Court the jury “was left to speculate as to the correct burden of proof for mitigating circumstances, and reasonable jurors might have believed they could not consider mitigating circumstances not proven beyond a reasonable doubt.” 299 Kan., at 1197, 329 P. 3d, at 1148. This, the court concluded, might have caused jurors to exclude relevant mitigating evidence from their consideration. Ibid. The Kansas Supreme Court also held that the Carrs’ death sentences had to be vacated because of the trial court’s failure to sever their sentencing proceedings, thereby violating the brothers’ Eighth Amendment right “to an individualized capital sentencing determination.” 300 Kan., at 275, 331 P. 3d, at 717; 300 Kan., at 368, 329 P. 3d, at 1212. According to the court, the joint trial “in- hibited the jury’s individualized consideration of [Jona- than] because of family characteristics tending to demon- strate future dangerousness that he shared with his brother”; and his brother’s visible handcuffs prejudiced the jury’s consideration of his sentence. 300 Kan., at 275, 331 P.3d, at 717. As for Reginald, he was prejudiced, accord- ing to the Kansas Supreme Court, by Jonathan’s portrayal of him as the corrupting older brother. Id., at 276, 331 P. 3d, at 717. Moreover, Reginald was prejudiced by his brother’s cross-examination of their sister, who testified that she thought Reginald had admitted to her that he was the shooter. Id., at 279, 331 P. 3d, at 719. (She later backtracked and testified, “ ‘I don’t remember who was, you know, shot by who[m].’ ” Ibid.) The Kansas Supreme Court opined that the presumption that the jury followed its instructions to consider each defendant separately was “defeated by logic.” Id., at 280, 331 P. 3d, at 719. “[T]he defendants’ joint upbringing in the maelstrom that was their family and their influence on and interactions with one another . . . simply was not amenable to orderly sepa- ration and analysis.” Ibid., 331 P.3d, at 719–720. The Kansas Supreme Court found itself unable to “say that the 8 KANSAS v. CARR Opinion of the Court death verdict was unattributable, at least in part, to this error.” Id., at 282, 331 P. 3d, at 720. We granted certio- rari. 575 U. S. ___ (2015). II We first turn to the Kansas Supreme Court’s contention that the Eighth Amendment required these capital- sentencing courts to instruct the jury that mitigating circumstances need not be proved beyond a reasonable doubt. A Before considering the merits of that contention, we consider Gleason’s challenge to our jurisdiction. According to Gleason, the Kansas Supreme Court’s decision rests on adequate and independent state-law grounds. This argu- ment is a familiar one. We rejected it in Kansas v. Marsh, 548 U.S. 163, 169 (2006). Like the defendant in that case, Gleason urges that the decision below rests only on a rule of Kansas law announced in State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001) (per curiam)—a rule later reiter- ated in State v. Scott, 286 Kan. 54, 183 P.3d 801 (2008) ( per curiam). As we stated in Marsh, “Kleypas, itself, rested on federal law.” 548 U.S., at 169. So too does the relevant passage of Scott, which rested on Kleypas’s dis- cussion of the constitutional rule that jurors need not agree on mitigating circumstances. See Scott, supra, at 106–107, 183 P. 3d, at 837–838. The Kansas Supreme Court’s opinion in this case acknowledged as much, saying that “statements from Kleypas implicate the broader Eighth Amendment principle prohibiting barriers that preclude a sentencer’s consideration of all relevant miti- gating evidence.” 299 Kan., at 1195, 329 P. 3d, at 1147. The Kansas Supreme Court’s opinion leaves no room for doubt that it was relying on the Federal Constitution. It stated that the instruction it required “protects a capital Cite as: 577 U. S. ____ (2016) 9 Opinion of the Court defendant’s Eighth Amendment right to individualized sentencing,” that the absence of the instruction “im- plicat[ed] Gleason’s right to individualized sentencing under the Eighth Amendment,” and that vacatur of Gleason’s death sentence was the “[c]onsequen[ce]” of Eighth Amendment error. Id., at 1196–1197, 329 P. 3d, at 1147–1148 (emphasis added). For this reason, the criticism leveled by the dissent is misdirected. It generally would have been “none of our business” had the Kansas Supreme Court vacated Gleason’s and the Carrs’ death sentences on state-law grounds. Marsh, 548 U.S., at 184 (SCALIA, J., concurring). But it decidedly did not. And when the Kansas Supreme Court time and again invalidates death sentences because it says the Federal Constitution requires it, “review by this Court, far from undermining state autonomy, is the only possible way to vindicate it.” Ibid. “When we correct a state court’s federal errors, we return power to the State, and to its people.” Ibid. The state courts may experiment all they want with their own constitutions, and often do in the wake of this Court’s decisions. See Sutton, San Anto- nio Independent School District v. Rodriguez And Its Aftermath, 94 Va. L. Rev. 1963, 1971–1977 (2008). But what a state court cannot do is experiment with our Fed- eral Constitution and expect to elude this Court’s review so long as victory goes to the criminal defendant. “Turn- ing a blind eye” in such cases “would change the uniform ‘law of the land’ into a crazy quilt.” Marsh, supra, at 185. And it would enable state courts to blame the unpopular death-sentence reprieve of the most horrible criminals upon the Federal Constitution when it is in fact their own doing. B We turn, then, to the merits of the Kansas Supreme Court’s conclusion that the Eighth Amendment requires 10 KANSAS v. CARR Opinion of the Court capital-sentencing courts in Kansas “to affirmatively inform the jury that mitigating circumstances need not be proven beyond a reasonable doubt.” 299 Kan., at 1197, 329 P. 3d, at 1148. Approaching the question in the abstract, and without reference to our capital-sentencing case law, we doubt whether it is even possible to apply a standard of proof to the mitigating-factor determination (the so-called “selec- tion phase” of a capital-sentencing proceeding). It is pos- sible to do so for the aggravating-factor determination (the so-called “eligibility phase”), because that is a purely factual determination. The facts justifying death set forth in the Kansas statute either did or did not exist—and one can require the finding that they did exist to be made beyond a reasonable doubt. Whether mitigation exists, however, is largely a judgment call (or perhaps a value call); what one juror might consider mitigating another might not. And of course the ultimate question whether mitigating circumstances outweigh aggravating circum- stances is mostly a question of mercy—the quality of which, as we know, is not strained. It would mean noth- ing, we think, to tell the jury that the defendants must deserve mercy beyond a reasonable doubt; or must more- likely-than-not deserve it. It would be possible, of course, to instruct the jury that the facts establishing mitigating circumstances need only be proved by a preponderance, leaving the judgment whether those facts are indeed mitigating, and whether they outweigh the aggravators, to the jury’s discretion without a standard of proof. If we were to hold that the Constitution requires the mitigating- factor determination to be divided into its factual compo- nent and its judgmental component, and the former to be accorded a burden-of-proof instruction, we doubt whether that would produce anything but jury confusion. In the last analysis, jurors will accord mercy if they deem it appropriate, and withhold mercy if they do not, which is Cite as: 577 U. S. ____ (2016) 11 Opinion of the Court what our case law is designed to achieve. In any event, our case law does not require capital sentencing courts “to affirmatively inform the jury that mitigating circumstances need not be proved beyond a reasonable doubt.” Ibid. In Buchanan v. Angelone, 522 U.S. 269 (1998), we upheld a death sentence even though the trial court “failed to provide the jury with express guidance on the concept of mitigation.” Id., at 275. Like- wise in Weeks v. Angelone, 528 U.S. 225 (2000), we reaf- firmed that the Court has “never held that the State must structure in a particular way the manner in which juries consider mitigating evidence” and rejected the contention that it was constitutionally deficient to instruct jurors to “ ‘consider a mitigating circumstance if you find there is evidence to support it,’ ” without additional guidance. Id., at 232–233. Equally unavailing is the contention that even if an instruction that mitigating evidence need not be “proven beyond a reasonable doubt” is not always required, it was constitutionally necessary in these cases to avoid confu- sion. Ambiguity in capital-sentencing instructions gives rise to constitutional error only if “there is a reasonable likelihood that the jury has applied the challenged in- struction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380 (1990) (emphasis added). The alleged confusion stemming from the jury instructions used at the defendants’ sentencings does not clear that bar. A meager “possibility” of confusion is not enough. Ibid. As an initial matter, the defendants’ argument rests on the assumption that it would be unconstitutional to re- quire the defense to prove mitigating circumstances be- yond a reasonable doubt. Assuming without deciding that that is the case, the record belies the defendants’ conten- tion that the instructions caused jurors to apply that standard of proof. The defendants focus upon the follow- 12 KANSAS v. CARR Opinion of the Court ing instruction: “The State has the burden to prove beyond a reasonable doubt that there are one or more aggravating circumstances and that they are not outweighed by any mitigating circumstances found to exist.” App. to Pet. for Cert. in No. 14–452, p. 133 (Instr. 8).3 The juxtaposition of aggravating and mitigating circumstances, so goes the argument, caused the jury to speculate that mitigating circumstances must also be proved beyond a reasonable doubt. 299 Kan., at 1197, 329 P.3d, at 1148. It seems to us quite the opposite. The instruction makes clear that both the existence of aggravating circumstances and the conclusion that they outweigh mitigating circumstances must be proved beyond a reasonable doubt; mitigating circumstances themselves, on the other hand, must merely be “found to exist.” That same description, mitigating circumstances “found to exist,” is contained in three other instructions, App. to Pet. for Cert. in No. 14–452, at 133 (Instrs. 7, 9, and 10) (emphasis added)—unsurprisingly, since it recites the Kansas statute, see Kan. Stat. Ann. §21–4624(e) (1995). “Found to exist” certainly does not suggest proof beyond a reasonable doubt. The instructions as a whole distinguish clearly between aggravating and mitigating circumstances: “The State has the burden to prove beyond a reasonable doubt that there are one or more aggravating circumstances . . . ,” and the jury must decide unanimously that the State met that burden. App. to Pet. for Cert. in No. 14–452, at 133 (Instrs. 8 and 10) (emphasis added). “Mitigating circumstances,” on the other hand, “do not need to be found by all members of the jury” to “be considered by an individual juror in arriving at his or her sentencing decision.” Id., at 131 (Instr. 7). Not once do the instructions say that defense counsel bears the —————— 3 The relevant penalty-phase instructions from the Carrs’ sentencing proceedings are materially indistinguishable. See App. to Pet. for Cert. in No. 14–450, pp. 501–510. Cite as: 577 U. S. ____ (2016) 13 Opinion of the Court burden of proving the facts constituting a mitigating circumstance beyond a reasonable doubt—nor would that make much sense, since one of the mitigating circum- stances is (curiously) “mercy,” which simply is not a fac- tual determination. We reject the Kansas Supreme Court’s decision that jurors were “left to speculate as to the correct burden of proof for mitigating circumstances.” 299 Kan., at 1197, 329 P.3d, at 1148. For the reasons we have described, no juror would reasonably have speculated that mitigating circumstances must be proved by any particular standard, let alone beyond a reasonable doubt. The reality is that jurors do not “pars[e] instructions for subtle shades of meaning in the same way that lawyers might.” Boyde, supra, at 381. The instructions repeatedly told the jurors to consider any mitigating factor, meaning any aspect of the defendants’ background or the circumstances of their offense. Jurors would not have misunderstood these instructions to prevent their consideration of constitution- ally relevant evidence. III We turn next to the contention that a joint capital- sentencing proceeding in the Carrs’ cases violated the defendants’ Eighth Amendment right to an “individualized sentencing determination.” 300 Kan., at 276, 331 P.3d, at 717. The Kansas Supreme Court agreed with the defendants that, because of the joint sentencing proceeding, one de- fendant’s mitigating evidence put a thumb on death’s scale for the other, in violation of the other’s Eighth Amend- ment rights. Ibid. It accepted Reginald’s contention that he was prejudiced by his brother’s portrayal of him as the corrupting older brother. And it agreed that Reginald was prejudiced by his brother’s cross-examination of their sister, who equivocated about whether Reginald admitted 14 KANSAS v. CARR Opinion of the Court to her that he was the shooter. (Reginald has all but abandoned that implausible theory of prejudice before this Court and contends only that the State “likely would not have introduced any such testimony” had he been sen- tenced alone. Brief for Respondent in No. 14–450, p. 34, n. 3.) Jonathan asserted that he was prejudiced by evi- dence associating him with his dangerous older brother, which caused the jury to perceive him as an incurable sociopath.4 Both speculate that the evidence assertedly prejudicial to them would have been inadmissible in sev- ered proceedings under Kansas law. The Kansas Supreme Court also launched a broader attack on the joint proceed- ings, contending that the joinder rendered it impossible for the jury to consider the Carrs’ relative moral culpability and to determine individually whether they were entitled to “mercy.” 300 Kan., at 278, 331 P. 3d, at 718–719. Whatever the merits of defendants’ procedural objec- tions, we will not shoehorn them into the Eighth Amend- ment’s prohibition of “cruel and unusual punishments.” As the United States as amicus curiae intimates, the Eighth Amendment is inapposite when each defendant’s claim is, at bottom, that the jury considered evidence that would not have been admitted in a severed proceeding, and that the joint trial clouded the jury’s consideration of mitigating evidence like “mercy.” Brief for United States 24, n. 8. As we held in Romano v. Oklahoma, 512 U.S. 1 (1994), it is not the role of the Eighth Amendment to establish a special “federal code of evidence” governing “the admissibility of evidence at capital sentencing pro- ceedings.” Id., at 11–12. Rather, it is the Due Process —————— 4 Jonathan also alleges that he was prejudiced by the jury’s witness- ing his brother’s handcuffs, which his brother requested remain visible before the penalty phase commenced. That allegation is mystifying. That his brother’s handcuffs were visible (while his own restraints were not) more likely caused the jury to see Jonathan as the less dangerous of the two. Cite as: 577 U. S. ____ (2016) 15 Opinion of the Court Clause that wards off the introduction of “unduly prejudi- cial” evidence that would “rende[r] the trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825 (1991); see also Brown v. Sanders, 546 U.S. 212, 220–221 (2006). The test prescribed by Romano for a constitutional violation attributable to evidence improperly admitted at a capital-sentencing proceeding is whether the evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” 512 U.S., at 12. The mere admission of evidence that might not otherwise have been admitted in a severed proceeding does not demand the automatic vaca- tur of a death sentence. In light of all the evidence presented at the guilt and penalty phases relevant to the jury’s sentencing determi- nation, the contention that the admission of mitigating evidence by one brother could have “so infected” the jury’s consideration of the other’s sentence as to amount to a denial of due process is beyond the pale. To begin with, the court instructed the jury that it “must give separate consideration to each defendant,” that each was “entitled to have his sentence decided on the evidence and law which is applicable to him,” and that any evidence in the penalty phase “limited to only one defendant should not be considered by you as to the other defendant.” App. to Pet. for Cert. in No. 14–450, at 501 (Instr. 3). The court gave defendant-specific instructions for aggravating and miti- gating circumstances. Id., at 502–508 (Instrs. 5, 6, 7, and 8). And the court instructed the jury to consider the “indi- vidual” or “particular defendant” by using four separate verdict forms for each defendant, one for each murdered occupant of the Birchwood house. Id., at 509 (Instr. 10); App. in No. 14–449 etc., at 461–492. We presume the jury followed these instructions and considered each defendant separately when deciding to impose a sentence of death for each of the brutal murders. Romano, supra, at 13. 16 KANSAS v. CARR Opinion of the Court The contrary conclusion of the Kansas Supreme Court— that the presumption that jurors followed these instruc- tions was “defeated by logic,” 300 Kan., at 280, 331 P.3d, at 719—is untenable. The Carrs implausibly liken the prejudice resulting from the joint sentencing proceeding to the prejudice infecting the joint trial in Bruton v. United States, 391 U.S. 123 (1968), where the prosecution admit- ted hearsay evidence of a codefendant’s confession impli- cating the defendant. That particular violation of the defendant’s confrontation rights, incriminating evidence of the most persuasive sort, ineradicable, as a practical matter, from the jury’s mind, justified what we have de- scribed as a narrow departure from the presumption that jurors follow their instructions, Richardson v. Marsh, 481 U.S. 200, 207 (1987). We have declined to extend that exception, id., at 211, and have continued to apply the presumption to instructions regarding mitigating evidence in capital-sentencing proceedings, see, e.g., Weeks, 528 U.S., at 234. There is no reason to think the jury could not follow its instruction to consider the defendants sepa- rately in this case. Joint proceedings are not only permissible but are often preferable when the joined defendants’ criminal conduct arises out of a single chain of events. Joint trial may enable a jury “to arrive more reliably at its conclusions regarding the guilt or innocence of a particular defendant and to assign fairly the respective responsibilities of each defendant in the sentencing.” Buchanan v. Kentucky, 483 U.S. 402, 418 (1987). That the codefendants might have “antagonistic” theories of mitigation, Zafiro v. United States, 506 U.S. 534, 538 (1993), does not suffice to over- come Kansas’s “interest in promoting the reliability and consistency of its judicial process,” Buchanan, supra, at 418. Limiting instructions, like those used in the Carrs’ sentencing proceeding, “often will suffice to cure any risk of prejudice.” Zafiro, supra, at 539 (citing Richardson, Cite as: 577 U. S. ____ (2016) 17 Opinion of the Court supra, at 211). To forbid joinder in capital-sentencing proceedings would, perversely, increase the odds of “wan- to[n] and freakis[h]” imposition of death sentences. Gregg v. Georgia, 428 U.S. 153, 206–207 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). Better that two de- fendants who have together committed the same crimes be placed side-by-side to have their fates determined by a single jury. It is improper to vacate a death sentence based on pure “speculation” of fundamental unfairness, “rather than reasoned judgment,” Romano, supra, at 13–14. Only the most extravagant speculation would lead to the conclusion that the supposedly prejudicial evidence rendered the Carr brothers’ joint sentencing proceeding fundamentally unfair. It is beyond reason to think that the jury’s death verdicts were caused by the identification of Reginald as the “corrupter” or of Jonathan as the “corrupted,” the jury’s viewing of Reginald’s handcuffs, or the sister’s re- tracted statement that Reginald fired the final shots. None of that mattered. What these defendants did—acts of almost inconceivable cruelty and depravity—was de- scribed in excruciating detail by Holly, who relived with the jury, for two days, the Wichita Massacre. The joint sentencing proceedings did not render the sentencing proceedings fundamentally unfair. IV When we granted the State’s petition for a writ of certio- rari for the Carrs’ cases, we declined to review whether the Confrontation Clause, U. S. Const., Amdt. 6, requires that defendants be allowed to cross-examine witnesses whose statements are recorded in police reports referred to by the State in penalty-phase proceedings. The Kansas Supreme Court did not make the admission of those statements a basis for its vacating of the death sentences, but merely “caution[ed]” that in the resentencing proceed- 18 KANSAS v. CARR Opinion of the Court ings these out-of-court testimonial statements should be omitted, 300 Kan., at 288, 331 P. 3d, at 724. We are confi- dent that cross-examination regarding these police reports would not have had the slightest effect upon the sen- tences. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). * * * The judgments of the Supreme Court of Kansas are reversed, and these cases are remanded for further pro- ceedings not inconsistent with this opinion. It is so ordered. Cite as: 577 U. S. ____ (2016) 1 SOTOMAYOR, J., dissenting NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 14–449, 14-450, and 14–452 _________________ KANSAS, PETITIONER 14–449 v. JONATHAN D. CARR KANSAS, PETITIONER 14–450 v. REGINALD DEXTER CARR, JR. KANSAS, PETITIONER 14–452 v. SIDNEY J.

The Supreme Court of Kansas vacated the death sen- tences of Sidney Gleason and brothers Reginald and Jona- than Carr. Gleason killed one of his co-conspirators and her boyfriend to cover up the robbery of an elderly man. The Carrs’ notorious Wichita crime spree culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women. We first consider whether the Constitution required the sentencing courts to instruct the juries that mitigating circumstances “need not be proved beyond a reasonable ” And second, 2 KANSAS v. CARR Opinion of the Court whether the Constitution required severance of the Carrs’ joint sentencing proceedings. I A Less than one month after Sidney Gleason was paroled from his sentence for attempted voluntary manslaughter, he joined a conspiracy to rob an elderly man at knife- point.1 Gleason and a companion “cut up” the elderly man to get $10 to $35 and a box of cigarettes. 1136, Fearing that their female co-conspirators would snitch, Gleason and his cousin, Damien Thompson, set out to kill co-conspirator Mikiala Martinez. Gleason shot and killed Martinez’s boyfriend, and then Gleason and Thompson drove Mar- tinez to a rural location, where Thompson strangled her for five minutes and then shot her in the chest, Gleason standing by and providing the gun for the final shot. The State ultimately charged Gleason with capital murder for killing Martinez and her boyfriend, first-degree premeditated murder of the boyfriend, aggravating kid- naping of Martinez, attempted first-degree murder and aggravated robbery of the elderly man, and criminal pos- session of a firearm. He was convicted on all counts except the attempted first-degree murder charge. at 1134– 1135, 1120. The jury also found that the State proved beyond a reasonable doubt the existence of four aggravating circumstances and unani- mously agreed to a sentence of death. at –1147, –1121. B In December 2000, brothers Reginald and Jonathan —————— 1 The facts for this portion of the opinion come from the Kansas Su- preme Court, 1134–1147, 1113–1121 and the parties’ briefs. Cite as: 577 U. S. (2016) 3 Opinion of the Court Carr set out on a crime spree culminating in the Wichita Massacre.2 On the night of December 7, Reginald Carr and an unknown man carjacked Andrew Schreiber, held a gun to his head, and forced him to make cash withdrawals at various ATMs. On the night of December 11, the brothers followed Linda Ann Walenta, a cellist for the Wichita symphony, home from orchestra practice. One of them approached her vehicle and said he needed help. When she rolled down her window, he pointed a gun at her head. When she shifted into reverse to escape, he shot her three times, ran back to his brother’s car, and fled the scene. One of the gunshots severed Walenta’s spine, and she died one month later as a result of her injuries. On the night of December 14, the brothers burst into a triplex at 12727 Birchwood, where roommates Jason, Brad, and Aaron lived. Jason’s girlfriend, Holly, and Heather, a friend of Aaron’s, were also in the house. Armed with handguns and a golf club, the brothers forced all five into Jason’s bedroom. They demanded that they strip naked and later ordered them into the bedroom closet. They took Holly and Heather from the bedroom, demanded that they perform oral sex and digitally pene- trate each other as the Carrs looked on and barked orders. They forced each of the men to have sex with Holly and then with Heather. They yelled that the men would be shot if they could not have sex with the women, so Holly— fearing for Jason’s life—performed oral sex on him in the closet before he was ordered out by the brothers. Jonathan then snatched Holly from the closet. He ordered that she digitally penetrate herself. He set his —————— 2 The facts for this portion of the opinion come from the Kansas Su- preme Court, and witness testimony. See 21–A Tr. 59–75 (Oct. 7, 2002), 22–B Tr. 39–124 (Oct. 8, 2002), 23–A Tr. 4–118 (Oct. 9, 2002), 23–B Tr. 5–133 (Oct. 9, 2002), and 24–A Tr. 4–93 (Oct. 10, 2002). 4 KANSAS v. CARR Opinion of the Court gun between her knees on the floor. And he raped her. Then he raped Heather. Reginald took Brad, Jason, Holly, and Aaron one-by-one to various ATMs to withdraw cash. When the victims returned to the house, their torture continued. Holly uri- nated in the closet because of fright. Jonathan found an engagement ring hidden in the bedroom that Jason was keeping as a surprise for Holly. Pointing his gun at Jason, he had Jason identify the ring while Holly was sitting nearby in the closet. Then Reginald took Holly from the closet, said he was not going to shoot her yet, and raped her on the dining-room floor strewn with boxes of Christ- mas decorations. He forced her to turn around, ejaculated into her mouth, and forced her to swallow. In a nearby bathroom, Jonathan again raped Heather and then again raped Holly. At 2 a.m.—three hours after the mayhem began—the brothers decided it was time to leave the house. They attempted to put all five victims in the trunk of Aaron’s Honda Civic. Finding that they would not all fit, they jammed the three young men into the trunk. They di- rected Heather to the front of the car and Holly to Jason’s pickup truck, driven by Reginald. Once the vehicles ar- rived at a snow-covered field, they instructed Jason and Brad, still naked, and Aaron to kneel in the snow. Holly cried, “Oh, my God, they’re going to shoot us.” Holly and Heather were then ordered to kneel in the snow. Holly went to Jason’s side; Heather, to Aaron. Holly heard the first shot, heard Aaron plead with the brothers not to shoot, heard the second shot, heard the screams, heard the third shot, and the fourth. She felt the blow of the fifth shot to her head, but remained kneeling. They kicked her so she would fall face-first into the snow and ran her over in the pickup truck. But she survived, because a hair clip she had fastened to her hair that night deflected the bullet. She went to Jason, took off her Cite as: 577 U. S. (2016) 5 Opinion of the Court sweater, the only scrap of clothing the brothers had let her wear, and tied it around his head to stop the bleeding from his eye. She rushed to Brad, then Aaron, and then Heather. Spotting a house with white Christmas lights in the distance, Holly started running toward it for help—naked, skull shattered, and without shoes, through the snow and over barbed-wire fences. Each time a car passed on the nearby road, she feared it was the brothers returning and camouflaged herself by lying down in the snow. She made it to the house, rang the doorbell, knocked. A man opened the door, and she relayed as quickly as she could the events of the night to him, and minutes later to a 911 dispatcher, fearing that she would not live. Holly lived, and retold this play-by-play of the night’s events to the jury. Investigators also testified that the brothers returned to the Birchwood house after leaving the five friends for dead, where they ransacked the place for valuables and (for good measure) beat Holly’s dog, Nikki, to death with a golf club. The State charged each of the brothers with more than 50 counts, including murder, rape, sodomy, kidnaping, burglary, and robbery, and the jury returned separate guilty verdicts. It convicted Reginald of one count of kid- naping, aggravated robbery, aggravated battery, and criminal damage to property for the Schreiber carjacking, and one count of first-degree felony murder for the Walenta shooting. Jonathan was acquitted of all counts related to the Schreiber carjacking but convicted of first-degree felony murder for the Walenta shooting. For the Birch- wood murders, the jury convicted each brother of 4 counts of capital murder, 1 count of attempted first-degree mur- der, 5 counts of aggravated kidnaping, 9 counts of aggra- vated robbery, 20 counts of rape or attempted rape, 3 counts of aggravated criminal sodomy, 1 count each of aggravated burglary and burglary, 1 count of theft, and 1 6 KANSAS v. CARR Opinion of the Court count of cruelty to animals. The jury also convicted Reg- inald of three counts of unlawful possession of a firearm. 15–16, The State sought the death penalty for each of the four Birchwood murders, and the brothers were sentenced together. The State relied on the guilt-phase evidence, including Holly’s two days of testimony, as evidence of four aggravating circumstances: that the defendants knowingly or purposely killed or created a great risk of death to more than one person; that they committed the crimes for the purpose of receiving money or items of monetary value; that they committed the crimes to prevent arrest or pro- secution; and that they committed the crimes in an espe- cially heinous, atrocious, or cruel manner. at 258–259, After hearing each brother’s case for mitigation, the jury issued separate verdicts of death for Reginald and Jonathan. It found unanimously that the State proved the existence of the four aggravating circum- stances beyond a reasonable doubt and that those aggra- vating circumstances outweighed the mitigating circum- stances, justifying four separate verdicts of death for each brother for the murders of Jason, Brad, Aaron, and Heather. App. in No. 14–449 etc., pp. 461–492. C The Kansas Supreme Court vacated the death penalties in both cases. It held that the instructions used in both Gleason’s and the Carrs’ sentencing violated the Eighth Amendment because they “failed to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable ” ; ; 300 Kan. 340, 369–370, (Jonathan Carr). Without that instruction, according to the court, Cite as: 577 U. S. (2016) 7 Opinion of the Court the jury “was left to speculate as to the correct burden of proof for mitigating circumstances, and reasonable jurors might have believed they could not consider mitigating circumstances not proven beyond a reasonable ” This, the court concluded, might have caused jurors to exclude relevant mitigating evidence from their consideration. The Kansas Supreme Court also held that the Carrs’ death sentences had to be vacated because of the trial court’s failure to sever their sentencing proceedings, thereby violating the brothers’ Eighth Amendment right “to an individualized capital sentencing determination.” ; 329 P. 3d, at 1212. According to the court, the joint trial “in- hibited the jury’s individualized consideration of [Jona- than] because of family characteristics tending to demon- strate future dangerousness that he shared with his brother”; and his brother’s visible handcuffs prejudiced the jury’s consideration of his 331 P.3d, at 717. As for Reginald, he was prejudiced, accord- ing to the Kansas Supreme Court, by Jonathan’s portrayal of him as the corrupting older brother. P. 3d, at 717. Moreover, Reginald was prejudiced by his brother’s cross-examination of their sister, who testified that she thought Reginald had admitted to her that he was the shooter. (She later backtracked and testified, “ ‘I don’t remember who was, you know, shot by who[m].’ ” ) The Kansas Supreme Court opined that the presumption that the jury followed its instructions to consider each defendant separately was “defeated by logic.” “[T]he defendants’ joint upbringing in the maelstrom that was their family and their influence on and interactions with one another simply was not amenable to orderly sepa- ration and analysis.” –720. The Kansas Supreme Court found itself unable to “say that the 8 KANSAS v. CARR Opinion of the Court death verdict was unattributable, at least in part, to this error.” We granted certio- rari. 575 U. S. (2015). II We first turn to the Kansas Supreme Court’s contention that the Eighth Amendment required these capital- sentencing courts to instruct the jury that mitigating circumstances need not be proved beyond a reasonable A Before considering the merits of that contention, we consider Gleason’s challenge to our jurisdiction. According to Gleason, the Kansas Supreme Court’s decision rests on adequate and independent state-law grounds. This argu- ment is a familiar one. We rejected it in Like the defendant in that case, Gleason urges that the decision below rests only on a rule of Kansas law announced in —a rule later reiter- ated in ( per curiam). As we stated in “Kleypas, itself, rested on federal law.” 548 U.S., at So too does the relevant passage of which rested on Kleypas’s dis- cussion of the constitutional rule that jurors need not agree on mitigating circumstances. See at 106–, –838. The Kansas Supreme Court’s opinion in this case acknowledged as much, saying that “statements from Kleypas implicate the broader Eighth Amendment principle prohibiting barriers that preclude a sentencer’s consideration of all relevant miti- gating evidence.” The Kansas Supreme Court’s opinion leaves no room for doubt that it was relying on the Federal Constitution. It stated that the instruction it required “protects a capital Cite as: 577 U. S. (2016) 9 Opinion of the Court defendant’s Eighth Amendment right to individualized sentencing,” that the absence of the instruction “im- plicat[ed] Gleason’s right to individualized sentencing under the Eighth Amendment,” and that vacatur of Gleason’s death sentence was the “[c]onsequen[ce]” of Eighth Amendment error. at 1196–1197, 329 P. 3d, at 1147–1148 For this reason, the criticism leveled by the dissent is misdirected. It generally would have been “none of our business” had the Kansas Supreme Court vacated Gleason’s and the Carrs’ death sentences on state-law grounds. But it decidedly did not. And when the Kansas Supreme Court time and again invalidates death sentences because it says the Federal Constitution requires it, “review by this Court, far from undermining state autonomy, is the only possible way to vindicate it.” “When we correct a state court’s federal errors, we return power to the State, and to its people.” The state courts may experiment all they want with their own constitutions, and often do in the wake of this Court’s decisions. See Sutton, San Anto- nio Independent School District v. Rodriguez And Its Aftermath, 1971–1977 But what a state court cannot do is experiment with our Fed- eral Constitution and expect to elude this Court’s review so long as victory goes to the criminal defendant. “Turn- ing a blind eye” in such cases “would change the uniform ‘law of the land’ into a crazy quilt.” And it would enable state courts to blame the unpopular death-sentence reprieve of the most horrible criminals upon the Federal Constitution when it is in fact their own doing. B We turn, then, to the merits of the Kansas Supreme Court’s conclusion that the Eighth Amendment requires 10 KANSAS v. CARR Opinion of the Court capital-sentencing courts in Kansas “to affirmatively inform the jury that mitigating circumstances need not be proven beyond a reasonable ” Approaching the question in the abstract, and without reference to our capital-sentencing case law, we doubt whether it is even possible to apply a standard of proof to the mitigating-factor determination (the so-called “selec- tion phase” of a capital-sentencing proceeding). It is pos- sible to do so for the aggravating-factor determination (the so-called “eligibility phase”), because that is a purely factual determination. The facts justifying death set forth in the Kansas statute either did or did not exist—and one can require the finding that they did exist to be made beyond a reasonable Whether mitigation exists, however, is largely a judgment call (or perhaps a value call); what one juror might consider mitigating another might not. And of course the ultimate question whether mitigating circumstances outweigh aggravating circum- stances is mostly a question of mercy—the quality of which, as we know, is not strained. It would mean noth- ing, we think, to tell the jury that the defendants must deserve mercy beyond a reasonable doubt; or must more- likely-than-not deserve it. It would be possible, of course, to instruct the jury that the facts establishing mitigating circumstances need only be proved by a preponderance, leaving the judgment whether those facts are indeed mitigating, and whether they outweigh the aggravators, to the jury’s discretion without a standard of proof. If we were to hold that the Constitution requires the mitigating- factor determination to be divided into its factual compo- nent and its judgmental component, and the former to be accorded a burden-of-proof instruction, we doubt whether that would produce anything but jury confusion. In the last analysis, jurors will accord mercy if they deem it appropriate, and withhold mercy if they do not, which is Cite as: 577 U. S. (2016) 11 Opinion of the Court what our case law is designed to achieve. In any event, our case law does not require capital sentencing courts “to affirmatively inform the jury that mitigating circumstances need not be proved beyond a reasonable ” In v. Angelone, 522 U.S. 269 (1998), we upheld a death sentence even though the trial court “failed to provide the jury with express guidance on the concept of mitigation.” Like- wise in we reaf- firmed that the Court has “never held that the State must structure in a particular way the manner in which juries consider mitigating evidence” and rejected the contention that it was constitutionally deficient to instruct jurors to “ ‘consider a mitigating circumstance if you find there is evidence to support it,’ ” without additional guidance. at 232–233. Equally unavailing is the contention that even if an instruction that mitigating evidence need not be “proven beyond a reasonable doubt” is not always required, it was constitutionally necessary in these cases to avoid confu- sion. Ambiguity in capital-sentencing instructions gives rise to constitutional error only if “there is a reasonable likelihood that the jury has applied the challenged in- struction in a way that prevents the consideration of constitutionally relevant evidence.” The alleged confusion stemming from the jury instructions used at the defendants’ sentencings does not clear that bar. A meager “possibility” of confusion is not enough. As an initial matter, the defendants’ argument rests on the assumption that it would be unconstitutional to re- quire the defense to prove mitigating circumstances be- yond a reasonable Assuming without deciding that that is the case, the record belies the defendants’ conten- tion that the instructions caused jurors to apply that standard of proof. The defendants focus upon the follow- 12 KANSAS v. CARR Opinion of the Court ing instruction: “The State has the burden to prove beyond a reasonable doubt that there are one or more aggravating circumstances and that they are not outweighed by any mitigating circumstances found to exist.” App. to Pet. for Cert. in No. 14–452, p. 133 (Instr. 8).3 The juxtaposition of aggravating and mitigating circumstances, so goes the argument, caused the jury to speculate that mitigating circumstances must also be proved beyond a reasonable It seems to us quite the opposite. The instruction makes clear that both the existence of aggravating circumstances and the conclusion that they outweigh mitigating circumstances must be proved beyond a reasonable doubt; mitigating circumstances themselves, on the other hand, must merely be “found to exist.” That same description, mitigating circumstances “found to exist,” is contained in three other instructions, App. to Pet. for Cert. in No. 14–452, 3 (Instrs. 7, 9, and 10) —unsurprisingly, since it recites the Kansas statute, see Kan. Stat. Ann. (1995). “Found to exist” certainly does not suggest proof beyond a reasonable The instructions as a whole distinguish clearly between aggravating and mitigating circumstances: “The State has the burden to prove beyond a reasonable doubt that there are one or more aggravating circumstances” and the jury must decide unanimously that the State met that burden. App. to Pet. for Cert. in No. 14–452, 3 (Instrs. 8 and 10) “Mitigating circumstances,” on the other hand, “do not need to be found by all members of the jury” to “be considered by an individual juror in arriving at his or her sentencing decision.” Not once do the instructions say that defense counsel bears the —————— 3 The relevant penalty-phase instructions from the Carrs’ sentencing proceedings are materially indistinguishable. See App. to Pet. for Cert. in No. 14–450, pp. 501–510. Cite as: 577 U. S. (2016) 13 Opinion of the Court burden of proving the facts constituting a mitigating circumstance beyond a reasonable doubt—nor would that make much sense, since one of the mitigating circum- stances is (curiously) “mercy,” which simply is not a fac- tual determination. We reject the Kansas Supreme Court’s decision that jurors were “left to speculate as to the correct burden of proof for mitigating circumstances.” For the reasons we have described, no juror would reasonably have speculated that mitigating circumstances must be proved by any particular standard, let alone beyond a reasonable The reality is that jurors do not “pars[e] instructions for subtle shades of meaning in the same way that lawyers might.” Boyde, The instructions repeatedly told the jurors to consider any mitigating factor, meaning any aspect of the defendants’ background or the circumstances of their offense. Jurors would not have misunderstood these instructions to prevent their consideration of constitution- ally relevant evidence. III We turn next to the contention that a joint capital- sentencing proceeding in the Carrs’ cases violated the defendants’ Eighth Amendment right to an “individualized sentencing determination.” 300 Kan., P.3d, at 717. The Kansas Supreme Court agreed with the defendants that, because of the joint sentencing proceeding, one de- fendant’s mitigating evidence put a thumb on death’s scale for the other, in violation of the other’s Eighth Amend- ment rights. It accepted Reginald’s contention that he was prejudiced by his brother’s portrayal of him as the corrupting older brother. And it agreed that Reginald was prejudiced by his brother’s cross-examination of their sister, who equivocated about whether Reginald admitted 14 KANSAS v. CARR Opinion of the Court to her that he was the shooter. (Reginald has all but abandoned that implausible theory of prejudice before this Court and contends only that the State “likely would not have introduced any such testimony” had he been sen- tenced alone. Brief for Respondent in No. 14–450, p. 34, n. 3.) Jonathan asserted that he was prejudiced by evi- dence associating him with his dangerous older brother, which caused the jury to perceive him as an incurable sociopath.4 Both speculate that the evidence assertedly prejudicial to them would have been inadmissible in sev- ered proceedings under Kansas law. The Kansas Supreme Court also launched a broader attack on the joint proceed- ings, contending that the joinder rendered it impossible for the jury to consider the Carrs’ relative moral culpability and to determine individually whether they were entitled to “mercy.” –719. Whatever the merits of defendants’ procedural objec- tions, we will not shoehorn them into the Eighth Amend- ment’s prohibition of “cruel and unusual punishments.” As the United States as amicus curiae intimates, the Eighth Amendment is inapposite when each defendant’s claim is, at bottom, that the jury considered evidence that would not have been admitted in a severed proceeding, and that the joint trial clouded the jury’s consideration of mitigating evidence like “mercy.” Brief for United States 24, n. 8. As we held in (1994), it is not the role of the Eighth Amendment to establish a special “federal code of evidence” governing “the admissibility of evidence at capital sentencing pro- ceedings.” at 11–12. Rather, it is the Due Process —————— 4 Jonathan also alleges that he was prejudiced by the jury’s witness- ing his brother’s handcuffs, which his brother requested remain visible before the penalty phase commenced. That allegation is mystifying. That his brother’s handcuffs were visible (while his own restraints were not) more likely caused the jury to see Jonathan as the less dangerous of the two. Cite as: 577 U. S. (2016) 15 Opinion of the Court Clause that wards off the introduction of “unduly prejudi- cial” evidence that would “rende[r] the trial fundamentally unfair.” ; see also The test prescribed by for a constitutional violation attributable to evidence improperly admitted at a capital-sentencing proceeding is whether the evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” The mere admission of evidence that might not otherwise have been admitted in a severed proceeding does not demand the automatic vaca- tur of a death In light of all the evidence presented at the guilt and penalty phases relevant to the jury’s sentencing determi- nation, the contention that the admission of mitigating evidence by one brother could have “so infected” the jury’s consideration of the other’s sentence as to amount to a denial of due process is beyond the pale. To begin with, the court instructed the jury that it “must give separate consideration to each defendant,” that each was “entitled to have his sentence decided on the evidence and law which is applicable to him,” and that any evidence in the penalty phase “limited to only one defendant should not be considered by you as to the other defendant.” App. to Pet. for Cert. in No. 14–450, at 501 (Instr. 3). The court gave defendant-specific instructions for aggravating and miti- gating circumstances. at 502–508 (Instrs. 5, 6, 7, and 8). And the court instructed the jury to consider the “indi- vidual” or “particular defendant” by using four separate verdict forms for each defendant, one for each murdered occupant of the Birchwood house. ; App. in No. 14–449 etc., at 461–492. We presume the jury followed these instructions and considered each defendant separately when deciding to impose a sentence of death for each of the brutal murders. 16 KANSAS v. CARR Opinion of the Court The contrary conclusion of the Kansas Supreme Court— that the presumption that jurors followed these instruc- tions was “defeated by logic,” 300 Kan., 331 P.3d, at 719—is untenable. The Carrs implausibly liken the prejudice resulting from the joint sentencing proceeding to the prejudice infecting the joint trial in where the prosecution admit- ted hearsay evidence of a codefendant’s confession impli- cating the defendant. That particular violation of the defendant’s confrontation rights, incriminating evidence of the most persuasive sort, ineradicable, as a practical matter, from the jury’s mind, justified what we have de- scribed as a narrow departure from the presumption that jurors follow their instructions, Richardson v. 481 U.S. 200, 207 (1987). We have declined to extend that exception, and have continued to apply the presumption to instructions regarding mitigating evidence in capital-sentencing proceedings, see, e.g., Weeks, 528 U.S., at 234. There is no reason to think the jury could not follow its instruction to consider the defendants sepa- rately in this case. Joint proceedings are not only permissible but are often preferable when the joined defendants’ criminal conduct arises out of a single chain of events. Joint trial may enable a jury “to arrive more reliably at its conclusions regarding the guilt or innocence of a particular defendant and to assign fairly the respective responsibilities of each defendant in the sentencing.” v. Kentucky, 483 U.S. 402, 418 (1987). That the codefendants might have “antagonistic” theories of mitigation, does not suffice to over- come Kansas’s “interest in promoting the reliability and consistency of its judicial process,” at 418. Limiting instructions, like those used in the Carrs’ sentencing proceeding, “often will suffice to cure any risk of prejudice.” at 539 (citing Richardson, Cite as: 577 U. S. (2016) 17 Opinion of the Court ). To forbid joinder in capital-sentencing proceedings would, perversely, increase the odds of “wan- to[n] and freakis[h]” imposition of death sentences. Gregg v. Georgia, (joint opinion of Stewart, Powell, and Stevens, JJ.). Better that two de- fendants who have together committed the same crimes be placed side-by-side to have their fates determined by a single jury. It is improper to vacate a death sentence based on pure “speculation” of fundamental unfairness, “rather than reasoned judgment,” –14. Only the most extravagant speculation would lead to the conclusion that the supposedly prejudicial evidence rendered the Carr brothers’ joint sentencing proceeding fundamentally unfair. It is beyond reason to think that the jury’s death verdicts were caused by the identification of Reginald as the “corrupter” or of Jonathan as the “corrupted,” the jury’s viewing of Reginald’s handcuffs, or the sister’s re- tracted statement that Reginald fired the final shots. None of that mattered. What these defendants did—acts of almost inconceivable cruelty and depravity—was de- scribed in excruciating detail by Holly, who relived with the jury, for two days, the Wichita Massacre. The joint sentencing proceedings did not render the sentencing proceedings fundamentally unfair. IV When we granted the State’s petition for a writ of certio- rari for the Carrs’ cases, we declined to review whether the Confrontation Clause, U. S. Const., Amdt. 6, requires that defendants be allowed to cross-examine witnesses whose statements are recorded in police reports referred to by the State in penalty-phase proceedings. The Kansas Supreme Court did not make the admission of those statements a basis for its vacating of the death sentences, but merely “caution[ed]” that in the resentencing proceed- 18 KANSAS v. CARR Opinion of the Court ings these out-of-court testimonial statements should be We are confi- dent that cross-examination regarding these police reports would not have had the slightest effect upon the sen- tences. See (1986). * * * The judgments of the Supreme Court of Kansas are reversed, and these cases are remanded for further pro- ceedings not inconsistent with this opinion. It is so ordered. Cite as: 577 U. S. (2016) 1 SOTOMAYOR, J., dissenting NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES Nos. 14–449, 14-450, and 14–452 KANSAS, PETITIONER 14–449 v. JONATHAN D. CARR KANSAS, PETITIONER 14–450 v. REGINALD DEXTER CARR, JR. KANSAS, PETITIONER 14–452 v. SIDNEY J.

Justice White

majority

Zacchini v. Scripps-Howard Broadcasting Co.

https://www.courtlistener.com/opinion/109730/zacchini-v-scripps-howard-broadcasting-co/

https://www.courtlistener.com/api/rest/v3/clusters/109730/

1976-177

Petitioner, Hugo Zacchini, is an entertainer. He performs a "human cannonball" act in which he is shot from a cannon into a net some 200 feet away. Each performance occupies some 15 seconds. In August and September 1972, petitioner was engaged to perform his act on a regular basis at the Geauga County Fair in Burton, Ohio. He performed in a fenced area, surrounded by grandstands, at the fair grounds. Members of the public attending the fair were not charged a separate admission fee to observe his act. On August 30, a freelance reporter for Scripps-Howard Broadcasting Co., the operator of a television broadcasting station and respondent in this case, attended the fair. He *564 carried a small movie camera. Petitioner noticed the reporter and asked him not to film the performance. The reporter did not do so on that day; but on the instructions of the producer of respondent's daily newscast, he returned the following day and videotaped the entire act. This film clip, approximately 15 seconds in length, was shown on the 11 o'clock news program that night, together with favorable commentary.[1] Petitioner then brought this action for damages, alleging that he is "engaged in the entertainment business," that the act he performs is one "invented by his father and . . . performed only by his family for the last fifty years," that respondent "showed and commercialized the film of his act without his consent," and that such conduct was an "unlawful appropriation of plaintiff's professional property." App. 4-5. Respondent answered and moved for summary judgment, which was granted by the trial court. The Court of Appeals of Ohio reversed. The majority held that petitioner's complaint stated a cause of action for conversion and for infringement of a common-law copyright, and one judge concurred in the judgment on the ground that the complaint stated a cause of action for appropriation of petitioner's "right of publicity" in the film of his act. All three judges agreed that the First Amendment did not privilege the press to show the entire performance on a news program without compensating petitioner for any financial injury he could prove at trial. *565 Like the concurring judge in the Court of Appeals, the Supreme Court of Ohio rested petitioner's cause of action under state law on his "right to publicity value of his performance." 47 Ohio St. 2d 224, 351 N.E.2d 454, 455 (1976). The opinion syllabus, to which we are to look for the rule of law used to decide the case,[2] declared first that one may not use for his own benefit the name or likeness of another, whether or not the use or benefit is a commercial one, and second that respondent would be liable for the appropriation, over petitioner's objection and in the absence of license or privilege, of petitioner's right to the publicity value of his performance. Ibid. The court nevertheless gave judgment for respondent because, in the words of the syllabus: "A TV station has a privilege to report in its newscasts matters of legitimate public interest which would otherwise be protected by an individual's right of publicity, unless the actual intent of the TV station was to appropriate the benefit of the publicity for some non-privileged private use, or unless the actual intent was to injure the individual." Ibid. We granted certiorari, 429 U.S. 1037 (1977), to consider an issue unresolved by this Court: whether the First and Fourteenth Amendments immunized respondent from damages for its alleged infringement of petitioner's state-law "right of publicity." Pet. for Cert. 2. Insofar as the Ohio Supreme Court held that the First and Fourteenth Amendments of the *566 United States Constitution required judgment for respondent, we reverse the judgment of that court. I If the judgment below rested on an independent and adequate state ground, the writ of certiorari should be dismissed as improvidently granted, Wilson v. Loew's Inc., 355 U.S. 597 (1958), for "[o]ur only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion." Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945). We are confident, however, that the judgment below did not rest on an adequate and independent state ground and that we have jurisdiction to decide the federal issue presented in this case. There is no doubt that petitioner's complaint was grounded in state law and that the right of publicity which petitioner was held to possess was a right arising under Ohio law. It is also clear that respondent's claim of constitutional privilege was sustained. The source of this privilege was not identified in the syllabus. It is clear enough from the opinion of the Ohio Supreme Court, which we are permitted to consult for understanding of the syllabus, Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 441-443 (1952),[3] that in adjudicating *567 the crucial question of whether respondent had a privilege to film and televise petitioner's performance, the court placed principal reliance on Time, Inc. v. Hill, 385 U.S. 374 (1967), a case involving First Amendment limitations on state tort actions. It construed the principle of that case, along with that of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), to be that "the press has a privilege to report matters of legitimate public interest even though such reports might intrude on matters otherwise private," and concluded, therefore, that the press is also "privileged when an individual seeks to publicly exploit his talents while keeping the benefits private." 47 Ohio St. 2d, at 234, 351 N. E. 2d, at 461. The privilege thus exists in cases "where appropriation of a right of publicity is claimed." The court's opinion also referred to Draft 21 of the relevant portion of Restatement (Second) of Torts (1975), which was understood to make room for reasonable press appropriations by limiting the reach of the right of privacy rather than by creating a privileged invasion. The court preferred the notion of privilege over the Restatement's formulation, however, reasoning that "since the gravamen of the issue in this case is not whether the degree of intrusion is reasonable, but whether First Amendment principles require that the *568 right of privacy give way to the public right to be informed of matters of public interest and concern, the concept of privilege seems the more useful and appropriate one." 47 Ohio St. 2d, at 234 n. 5, 351 N.E.2d, at 461 n. 5. (Emphasis added.) Had the Ohio court rested its decision on both state and federal grounds, either of which would have been dispositive, we would have had no jurisdiction. Fox Film Corp. v. Muller, 296 U.S. 207 (1935); Enterprise Irrigation Dist. v. Farmers Mutual Canal Co., 243 U.S. 157, 164 (1917). But the opinion, like the syllabus, did not mention the Ohio Constitution, citing instead this Court's First Amendment cases as controlling. It appears to us that the decision rested solely on federal grounds. That the Ohio court might have, but did not, invoke state law does not foreclose jurisdiction here. Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 197 n. 1 (1944); Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 98 (1938). Even if the judgment in favor of respondent must nevertheless be understood as ultimately resting on Ohio law, it appears that at the very least the Ohio court felt compelled by what it understood to be federal constitutional considerations to construe and apply its own law in the manner it did. In this event, we have jurisdiction and should decide the federal issue; for if the state court erred in its understanding of our cases and of the First and Fourteenth Amendments, we should so declare, leaving the state court free to decide the privilege issue solely as a matter of Ohio law. Perkins v. Benguet Consolidated Mining Co., supra. If the Supreme Court of Ohio "held as it did because it felt under compulsion of federal law as enunciated by this Court so to hold, it should be relieved of that compulsion. It should be freed to decide . . . these suits according to its own local law." Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1, 5 (1950). *569 II The Ohio Supreme Court held that respondent is constitutionally privileged to include in its newscasts matters of public interest that would otherwise be protected by the right of publicity, absent an intent to injure or to appropriate for some nonprivileged purpose. If under this standard respondent had merely reported that petitioner was performing at the fair and described or commented on his act, with or without showing his picture on television, we would have a very different case. But petitioner is not contending that his appearance at the fair and his performance could not be reported by the press as newsworthy items. His complaint is that respondent filmed his entire act and displayed that film on television for the public to see and enjoy. This, he claimed, was an appropriation of his professional property. The Ohio Supreme Court agreed that petitioner had "a right of publicity" that gave him "personal control over commercial display and exploitation of his personality and the exercise of his talents."[4] This right of "exclusive control over the publicity given to his performances" was said to be such a "valuable part of the benefit which may be attained by his talents and efforts" that it was entitled to legal protection. It was *570 also observed, or at least expressly assumed, that petitioner had not abandoned his rights by performing under the circumstances present at the Geauga County Fair Grounds. The Ohio Supreme Court nevertheless held that the challenged invasion was privileged, saying that the press "must be accorded broad latitude in its choice of how much it presents of each story or incident, and of the emphasis to be given to such presentation. No fixed standard which would bar the press from reporting or depicting either an entire occurrence or an entire discrete part of a public performance can be formulated which would not unduly restrict the `breathing room' in reporting which freedom of the press requires." 47 Ohio St. 2d, at 235, 351 N.E.2d, at 461. Under this view, respondent was thus constitutionally free to film and display petitioner's entire act.[5] The Ohio Supreme Court relied heavily on Time, Inc. v. Hill, 385 U.S. 374 (1967), but that case does not mandate a media privilege to televise a performer's entire act without his consent. Involved in Time, Inc. v. Hill was a claim under the New York "Right of Privacy" statute[6] that Life Magazine, in *571 the course of reviewing a new play, had connected the play with a long-past incident involving petitioner and his family and had falsely described their experience and conduct at that time. The complaint sought damages for humiliation and suffering flowing from these nondefamatory falsehoods that allegedly invaded Hill's privacy. The Court held, however, that the opening of a new play linked to an actual incident was a matter of public interest and that Hill could not recover without showing that the Life report was knowingly false or was published with reckless disregard for the truth—the same rigorous standard that had been applied in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Time, Inc. v. Hill, which was hotly contested and decided by a divided Court, involved an entirely different tort from the "right of publicity" recognized by the Ohio Supreme Court. As the opinion reveals in Time, Inc. v. Hill, the Court was steeped in the literature of privacy law and was aware of the developing distinctions and nuances in this branch of the law. The Court, for example, cited W. Prosser, Law of Torts 831-832 (3d ed. 1964), and the same author's well-known article, Privacy, 48 Calif. L. Rev. 383 (1960), both of which divided privacy into four distinct branches.[7] The Court was aware that it was adjudicating a "false light" privacy case involving a matter of public interest, not a case involving "intrusion," 385 U.S., at 384-385, n. 9, "appropriation" of a *572 name or likeness for the purposes of trade, id., at 381, or "private details" about a non-newsworthy person or event, id., at 383 n. 7. It is also abundantly clear that Time, Inc. v. Hill did not involve a performer, a person with a name having commercial value, or any claim to a "right of publicity." This discrete kind of "appropriation" case was plainly identified in the literature cited by the Court[8] and had been adjudicated in the reported cases.[9] *573 The differences between these two torts are important. First, the State's interests in providing a cause of action in each instance are different. "The interest protected" in permitting recovery for placing the plaintiff in a false light "is clearly that of reputation, with the same overtones of mental distress as in defamation." Prosser, supra, 48 Calif. L. Rev., at 400. By contrast, the State's interest in permitting a "right of publicity" is in protecting the proprietary interest of the individual in his act in part to encourage such entertainment.[10] As we later note, the State's interest is closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation. Second, the two torts differ in the degree to which they intrude on dissemination of information to the public. In "false light" cases the only way to protect the interests involved is to attempt to minimize publication of the damaging matter, while in "right of publicity" cases the only question is who gets to do the publishing. An entertainer such as petitioner usually has no objection to the widespread publication of his act as long as he gets the commercial benefit of such publication. Indeed, in the present case petitioner did not seek to enjoin the broadcast of his act; he simply *574 sought compensation for the broadcast in the form of damages. Nor does it appear that our later cases, such as Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); and Time, Inc. v. Firestone, 424 U.S. 448 (1976), require or furnish substantial support for the Ohio court's privilege ruling. These cases, like New York Times, emphasize the protection extended to the press by the First Amendment in defamation cases, particularly when suit is brought by a public official or a public figure. None of them involve an alleged appropriation by the press of a right of publicity existing under state law. Moreover, Time, Inc. v. Hill, New York Times, Metromedia, Gertz, and Firestone all involved the reporting of events; in none of them was there an attempt to broadcast or publish an entire act for which the performer ordinarily gets paid. It is evident, and there is no claim here to the contrary, that petitioner's state-law right of publicity would not serve to prevent respondent from reporting the newsworthy facts about petitioner's act.[11] Wherever the line in particular situations is to be drawn between media reports that are protected and *575 those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent. The Constitution no more prevents a State from requiring respondent to compensate petitioner for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner, Copyrights Act, 17 U.S. C. App. § 101 et seq. (1976 ed.); cf. Kalem Co. v. Harper Bros., 222 U.S. 55 (1911); Manners v. Morosco, 252 U.S. 317 (1920), or to film and broadcast a prize fight, Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481 (CA3), cert. denied, 351 U.S. 926 (1956); or a baseball game, Pittsburgh Athletic Co. v. KQV Broadcasting Co., 24 F. Supp. 490 (WD Pa. 1938), where the promoters or the participants had other plans for publicizing the event. There are ample reasons for reaching this conclusion. The broadcast of a film of petitioner's entire act poses a substantial threat to the economic value of that performance. As the Ohio court recognized, this act is the product of petitioner's own talents and energy, the end result of much time, effort, and expense. Much of its economic value lies in the "right of exclusive control over the publicity given to his performance"; if the public can see the act free on television, it will be less willing to pay to see it at the fair.[12] The *576 effect of a public broadcast of the performance is similar to preventing petitioner from charging an admission fee. "The rationale for [protecting the right of publicity] is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay." Kalven, Privacy in Tort Law—Were Warren and Brandeis Wrong?, 31 Law & Contemp. Prob. 326, 331 (1966). Moreover, the broadcast of petitioner's entire performance, unlike the unauthorized use of another's name for purposes of trade or the incidental use of a name or picture by the press, goes to the heart of petitioner's ability to earn a living as an entertainer. Thus, in this case, Ohio has recognized what may be the strongest case for a "right of publicity"—involving, not the appropriation of an entertainer's reputation to enhance the attractiveness of a commercial product, but the appropriation of the very activity by which the entertainer acquired his reputation in the first place. Of course, Ohio's decision to protect petitioner's right of publicity here rests on more than a desire to compensate the performer for the time and effort invested in his act; the protection provides an economic incentive for him to make the investment required to produce a performance of interest to the public. This same consideration underlies the patent and copyright laws long enforced by this Court. As the Court stated in Mazer v. Stein, 347 U.S. 201, 219 (1954): "The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in `Science and useful Arts.' Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered." *577 These laws perhaps regard the "reward to the owner [as] a secondary consideration," United States v. Paramount Pictures, 334 U.S. 131, 158 (1948), but they were "intended definitely to grant valuable, enforceable rights" in order to afford greater encouragement to the production of works of benefit to the public. Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 36 (1939). The Constitution does not prevent Ohio from making a similar choice here in deciding to protect the entertainer's incentive in order to encourage the production of this type of work. Cf. Goldstein v. California, 412 U.S. 546 (1973); Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974).[13] *578 There is no doubt that entertainment, as well as news, enjoys First Amendment protection. It is also true that entertainment itself can be important news. Time, Inc. v. Hill. But it is important to note that neither the public nor respondent will be deprived of the benefit of petitioner's performance as long as his commercial stake in his act is appropriately recognized. Petitioner does not seek to enjoin the broadcast of his performance; he simply wants to be paid for it. Nor do we think that a state-law damages remedy against respondent would represent a species of liability without fault contrary to the letter or spirit of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Respondent knew that petitioner objected to televising his act but nevertheless displayed the entire film. We conclude that although the State of Ohio may as a *579 matter of its own law privilege the press in the circumstances of this case, the First and Fourteenth Amendments do not require it to do so. Reversed. MR. JUSTICE POWELL, with whom MR. JUSTICE BRENNAN and MR.

Petitioner, Hugo Zacchini, is an entertainer. He performs a "human cannonball" act in which he is shot from a cannon into a net some 200 feet away. Each performance occupies some 1 seconds. In August and September 1972, petitioner was engaged to perform his act on a regular basis at the Geauga County Fair in Burton, Ohio. He performed in a fenced area, surrounded by grandstands, at the fair grounds. Members of the public attending the fair were not charged a separate admission fee to observe his act. On August 30, a freelance reporter for Scripps-Howard Broadcasting the operator of a television broadcasting station and respondent in this case, attended the fair. He *64 carried a small movie camera. Petitioner noticed the reporter and asked him not to film the performance. The reporter did not do so on that day; but on the instructions of the producer of respondent's daily newscast, he returned the following day and videotaped the entire act. This film clip, approximately 1 seconds in length, was shown on the 11 o'clock news program that night, together with favorable commentary.[1] Petitioner then brought this action for damages, alleging that he is "engaged in the entertainment business," that the act he performs is one "invented by his father and performed only by his family for the last fifty years," that respondent "showed and commercialized the film of his act without his consent," and that such conduct was an "unlawful appropriation of plaintiff's professional property." App. 4-. Respondent answered and moved for summary judgment, which was granted by the trial court. The Court of Appeals of Ohio reversed. The majority held that petitioner's complaint stated a cause of action for conversion and for infringement of a common-law copyright, and one judge concurred in the judgment on the ground that the complaint stated a cause of action for appropriation of petitioner's "right of publicity" in the film of his act. All three judges agreed that the First Amendment did not privilege the press to show the entire performance on a news program without compensating petitioner for any financial injury he could prove at trial. *6 Like the concurring judge in the Court of Appeals, the Supreme Court of Ohio rested petitioner's cause of action under state law on his "right to publicity value of his performance." The opinion syllabus, to which we are to look for the rule of law used to decide the case,[2] declared first that one may not use for his own benefit the name or likeness of another, whether or not the use or benefit is a commercial one, and second that respondent would be liable for the appropriation, over petitioner's objection and in the absence of license or privilege, of petitioner's right to the publicity value of his performance. The court nevertheless gave judgment for respondent because, in the words of the syllabus: "A TV station has a privilege to report in its newscasts matters of legitimate public interest which would otherwise be protected by an individual's right of publicity, unless the actual intent of the TV station was to appropriate the benefit of the publicity for some non-privileged private use, or unless the actual intent was to injure the individual." We granted certiorari, to consider an issue unresolved by this Court: whether the First and Fourteenth Amendments immunized respondent from damages for its alleged infringement of petitioner's state-law "right of publicity." Pet. for Cert. 2. Insofar as the Ohio Supreme Court held that the First and Fourteenth Amendments of the *66 United States Constitution required judgment for respondent, we reverse the judgment of that court. I If the judgment below rested on an independent and adequate state ground, the writ of certiorari should be dismissed as improvidently granted, for "[o]ur only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion." We are confident, however, that the judgment below did not rest on an adequate and independent state ground and that we have jurisdiction to decide the federal issue presented in this case. There is no doubt that petitioner's complaint was grounded in state law and that the right of publicity which petitioner was held to possess was a right arising under Ohio law. It is also clear that respondent's claim of constitutional privilege was sustained. The source of this privilege was not identified in the syllabus. It is clear enough from the opinion of the Ohio Supreme Court, which we are permitted to consult for understanding of the syllabus,[3] that in adjudicating *67 the crucial question of whether respondent had a privilege to film and televise petitioner's performance, the court placed principal reliance on Time, a case involving First Amendment limitations on state tort actions. It construed the principle of that case, along with that of New York Times to be that "the press has a privilege to report matters of legitimate public interest even though such reports might intrude on matters otherwise private," and concluded, therefore, that the press is also "privileged when an individual seeks to publicly exploit his talents while keeping the benefits private." The privilege thus exists in cases "where appropriation of a right of publicity is claimed." The court's opinion also referred to Draft 21 of the relevant portion of Restatement (Second) of Torts (197), which was understood to make room for reasonable press appropriations by limiting the reach of the right of privacy rather than by creating a privileged invasion. The court preferred the notion of privilege over the Restatement's formulation, however, reasoning that "since the gravamen of the issue in this case is not whether the degree of intrusion is reasonable, but whether First Amendment principles require that the *68 right of privacy give way to the public right to be informed of matters of public interest and concern, the concept of privilege seems the more useful and appropriate one." n. n. (Emphasis added.) Had the Ohio court rested its decision on both state and federal grounds, either of which would have been dispositive, we would have had no jurisdiction. Fox Film (193); Enterprise Irrigation 243 U.S. 17, But the opinion, like the syllabus, did not mention the Ohio Constitution, citing instead this Court's First Amendment cases as controlling. It appears to us that the decision rested solely on federal grounds. That the Ohio court might have, but did not, invoke state law does not foreclose jurisdiction here. ; Indiana ex rel. 303 U.S. 9, Even if the judgment in favor of respondent must nevertheless be understood as ultimately resting on Ohio law, it appears that at the very least the Ohio court felt compelled by what it understood to be federal constitutional considerations to construe and apply its own law in the manner it did. In this event, we have jurisdiction and should decide the federal issue; for if the state court erred in its understanding of our cases and of the First and Fourteenth Amendments, we should so declare, leaving the state court free to decide the privilege issue solely as a matter of Ohio law. If the Supreme Court of Ohio "held as it did because it felt under compulsion of federal law as enunciated by this Court so to hold, it should be relieved of that compulsion. It should be freed to decide these suits according to its own local law." Missouri ex rel. Southern R. v. Mayfield, (190). *69 II The Ohio Supreme Court held that respondent is constitutionally privileged to include in its newscasts matters of public interest that would otherwise be protected by the right of publicity, absent an intent to injure or to appropriate for some nonprivileged purpose. If under this standard respondent had merely reported that petitioner was performing at the fair and described or commented on his act, with or without showing his picture on television, we would have a very different case. But petitioner is not contending that his appearance at the fair and his performance could not be reported by the press as newsworthy items. His complaint is that respondent filmed his entire act and displayed that film on television for the public to see and enjoy. This, he claimed, was an appropriation of his professional property. The Ohio Supreme Court agreed that petitioner had "a right of publicity" that gave him "personal control over commercial display and exploitation of his personality and the exercise of his talents."[4] This right of "exclusive control over the publicity given to his performances" was said to be such a "valuable part of the benefit which may be attained by his talents and efforts" that it was entitled to legal protection. It was *70 also observed, or at least expressly assumed, that petitioner had not abandoned his rights by performing under the circumstances present at the Geauga County Fair Grounds. The Ohio Supreme Court nevertheless held that the challenged invasion was privileged, saying that the press "must be accorded broad latitude in its choice of how much it presents of each story or incident, and of the emphasis to be given to such presentation. No fixed standard which would bar the press from reporting or depicting either an entire occurrence or an entire discrete part of a public performance can be formulated which would not unduly restrict the `breathing room' in reporting which freedom of the press requires." 47 Ohio St. 2d, at 23, Under this view, respondent was thus constitutionally free to film and display petitioner's entire act.[] The Ohio Supreme Court relied heavily on Time, but that case does not mandate a media privilege to televise a performer's entire act without his consent. Involved in Time, was a claim under the New York "Right of Privacy" statute[6] that Life Magazine, in *71 the course of reviewing a new play, had connected the play with a long-past incident involving petitioner and his family and had falsely described their experience and conduct at that time. The complaint sought damages for humiliation and suffering flowing from these nondefamatory falsehoods that allegedly invaded Hill's privacy. The Court held, however, that the opening of a new play linked to an actual incident was a matter of public interest and that Hill could not recover without showing that the Life report was knowingly false or was published with reckless disregard for the truth—the same rigorous standard that had been applied in New York Times Time, which was hotly contested and decided by a divided Court, involved an entirely different tort from the "right of publicity" recognized by the Ohio Supreme Court. As the opinion reveals in Time, the Court was steeped in the literature of privacy law and was aware of the developing distinctions and nuances in this branch of the law. The Court, for example, cited W. Prosser, Law of Torts 831-832 and the same author's well-known article, Privacy, both of which divided privacy into four distinct branches.[7] The Court was aware that it was adjudicating a "false light" privacy case involving a matter of public interest, not a case involving "intrusion," 38 U.S., at 384-38, n. 9, "appropriation" of a *72 name or likeness for the purposes of trade, or "private details" about a non-newsworthy person or event, at 383 n. 7. It is also abundantly clear that Time, did not involve a performer, a person with a name having commercial value, or any claim to a "right of publicity." This discrete kind of "appropriation" case was plainly identified in the literature cited by the Court[8] and had been adjudicated in the reported cases.[9] *73 The differences between these two torts are important. First, the State's interests in providing a cause of action in each instance are different. "The interest protected" in permitting recovery for placing the plaintiff in a false light "is clearly that of reputation, with the same overtones of mental distress as in defamation." Prosser, By contrast, the State's interest in permitting a "right of publicity" is in protecting the proprietary interest of the individual in his act in part to encourage such entertainment.[10] As we later note, the State's interest is closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation. Second, the two torts differ in the degree to which they intrude on dissemination of information to the public. In "false light" cases the only way to protect the interests involved is to attempt to minimize publication of the damaging matter, while in "right of publicity" cases the only question is who gets to do the publishing. An entertainer such as petitioner usually has no objection to the widespread publication of his act as long as he gets the commercial benefit of such publication. Indeed, in the present case petitioner did not seek to enjoin the broadcast of his act; he simply *74 sought compensation for the broadcast in the form of damages. Nor does it appear that our later cases, such as ; ; and Time, require or furnish substantial support for the Ohio court's privilege ruling. These cases, like New York Times, emphasize the protection extended to the press by the First Amendment in defamation cases, particularly when suit is brought by a public official or a public figure. None of them involve an alleged appropriation by the press of a right of publicity existing under state law. Moreover, Time, New York Times, Metromedia, Gertz, and Firestone all involved the reporting of events; in none of them was there an attempt to broadcast or publish an entire act for which the performer ordinarily gets paid. It is evident, and there is no claim here to the contrary, that petitioner's state-law right of publicity would not serve to prevent respondent from reporting the newsworthy facts about petitioner's act.[11] Wherever the line in particular situations is to be drawn between media reports that are protected and *7 those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent. The Constitution no more prevents a State from requiring respondent to compensate petitioner for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner, Copyrights Act, 17 U.S. C. App. 101 et seq. ( ed.); cf. Kalem v. Harper Bros., 222 U.S. ; 22 U.S. 317 or to film and broadcast a prize fight, (CA3), cert. denied, 31 U.S. 926 (196); or a baseball game, Pittsburgh Athletic v. KQV Broadcasting where the promoters or the participants had other plans for publicizing the event. There are ample reasons for reaching this conclusion. The broadcast of a film of petitioner's entire act poses a substantial threat to the economic value of that performance. As the Ohio court recognized, this act is the product of petitioner's own talents and energy, the end result of much time, effort, and expense. Much of its economic value lies in the "right of exclusive control over the publicity given to his performance"; if the public can see the act free on television, it will be less willing to pay to see it at the fair.[12] The *76 effect of a public broadcast of the performance is similar to preventing petitioner from charging an admission fee. "The rationale for [protecting the right of publicity] is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay." Kalven, Privacy in Tort Law—Were Warren and Brandeis Wrong?, 31 Law & Contemp. Prob. 326, 331 (1966). Moreover, the broadcast of petitioner's entire performance, unlike the unauthorized use of another's name for purposes of trade or the incidental use of a name or picture by the press, goes to the heart of petitioner's ability to earn a living as an entertainer. Thus, in this case, Ohio has recognized what may be the strongest case for a "right of publicity"—involving, not the appropriation of an entertainer's reputation to enhance the attractiveness of a commercial product, but the appropriation of the very activity by which the entertainer acquired his reputation in the first place. Of course, Ohio's decision to protect petitioner's right of publicity here rests on more than a desire to compensate the performer for the time and effort invested in his act; the protection provides an economic incentive for him to make the investment required to produce a performance of interest to the public. This same consideration underlies the patent and copyright laws long enforced by this Court. As the Court stated in (194): "The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in `Science and useful Arts.' Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered." *77 These laws perhaps regard the "reward to the owner [as] a secondary consideration," United 18 but they were "intended definitely to grant valuable, enforceable rights" in order to afford greater encouragement to the production of works of benefit to the public. Washingtonian Publishing v. Pearson, The Constitution does not prevent Ohio from making a similar choice here in deciding to protect the entertainer's incentive in order to encourage the production of this type of work. Cf. 412 U.S. 46 ; Kewanee Oil v. Bicron Corp.,[13] *78 There is no doubt that entertainment, as well as news, enjoys First Amendment protection. It is also true that entertainment itself can be important news. Time, But it is important to note that neither the public nor respondent will be deprived of the benefit of petitioner's performance as long as his commercial stake in his act is appropriately recognized. Petitioner does not seek to enjoin the broadcast of his performance; he simply wants to be paid for it. Nor do we think that a state-law damages remedy against respondent would represent a species of liability without fault contrary to the letter or spirit of Respondent knew that petitioner objected to televising his act but nevertheless displayed the entire film. We conclude that although the State of Ohio may as a *79 matter of its own law privilege the press in the circumstances of this case, the First and Fourteenth Amendments do not require it to do so. Reversed. MR. JUSTICE POWELL, with whom MR. JUSTICE BRENNAN and MR.

Justice Rehnquist

majority

Doran v. Salem Inn, Inc.

https://www.courtlistener.com/opinion/109314/doran-v-salem-inn-inc/

https://www.courtlistener.com/api/rest/v3/clusters/109314/

1974-153

Appellant is a town attorney in Nassau County, N. Y., who, along with other local law enforcement officials, was preliminary enjoined by the United States District Court for the Eastern District of New York from enforcing a local ordinance of the town of North Hempstead. Salem Inn, Inc. v. Frank, 364 F. Supp. 478 (1973), aff'd, 501 F.2d 18 (CA2 1974). In addition to defending the ordinance on the merits, he contends that the complaint should have been dismissed on the authority of Younger v. Harris, 401 U.S. 37 (1971), and its companion cases. Appellees are three corporations which operate bars at various locations within the town. Prior to enactment of the ordinance in question, each provided topless dancing as entertainment for its customers. On July 17, 1973, the town enacted Local Law No. 1-1973, an ordinance making it unlawful for bar owners and others to permit waitresses, barmaids, and entertainers to appear in their establishments with breasts uncovered or so thinly draped as to appear uncovered. Appellees complied with the ordinance by clothing their dancers in bikini tops, but on August 9, 1973, brought this action in the District Court under 42 U.S. C. § 1983. They alleged that the ordinance violated their rights under the First and Fourteenth Amendments to the United States Constitution. Their pleadings sought a temporary restraining *925 order, a preliminary injunction, and declaratory relief. The prayer for a temporary restraining order was denied instanter, but the motion for a preliminary injunction was set for a hearing on August 22, 1973. On August 10, the day after the appellees' complaint was filed, and their application for a temporary restraining order denied, one of them, M & L Restaurant, Inc., resumed its briefly suspended presentation of topless dancing. On that day, and each of the three succeeding days, M & L and its topless dancers were served with criminal summonses based on violation of the ordinance.[1] These summonses were returnable before the Nassau County Court on September 13, 1973. The other two appellees, Salem Inn, Inc., and Tim-Rob Bar, Inc., did not resume the presentation of topless entertainment in their bars until after the District Court issued its preliminary injunction. On September 5, 1973, appellant filed an answer which alleged that a criminal prosecution had been instituted against at least one of the appellees; the District Court was urged to "refuse to exercise jurisdiction" and to dismiss the complaint. App. 33. On September 6, 1973, on the basis of oral argument and memoranda of law, the District Court entered an opinion and order in which it "[found] that (1) Local Law No. 1-1973 of the Town of North Hempstead is on its face violative of plaintiffs' First Amendment rights in that it prohibits across the board nonobscene conduct in the form of topless dancing, and (2) that the daily penalty of $500 for each violation of the ordinance, the prior state-court decision validating a similar ordinance, *926 the overbreadth of the ordinance, and the potential harm to plaintiffs' business by its enforcement justify federal intervention and injunctive relief." 364 F. Supp., at 483. The court concluded by enjoining appellant "pending the final determination of this action . . . from prosecuting the plaintiffs for any violation of Local Law No. 1-1973 . . . or in any way interfering with their activities which may be prohibited by the text of said Local Law." Ibid. The court did address appellant's Younger contention, but held that the pending prosecution against M & L did not affect the availability of injunctive relief to Salem and Tim-Rob. As for M & L, it concluded that if federal relief were granted to two of the appellees, "it would be anomalous" not to extend it to M & L as well. Id., at 482. The Court of Appeals for the Second Circuit affirmed by a divided vote. It held that the "ordinance would have to fall," 501 F.2d, at 21, and that the claim of deprivation of constitutional rights and diminution of business warranted the issuance of a preliminary injunction. The Court of Appeals rejected appellant's claim that the District Court ought to have dismissed appellees' complaint on the authority of Younger v. Harris, supra, and its companion cases. As to Salem and Tim-Rob, Younger did not present a bar because there had at no time been a pending prosecution against them under the ordinance. As for M & L, the court thought that it posed "a slightly different problem," 501 F.2d, at 22, since the state prosecution was begun only one day after the filing of appellees' complaint in the District Court. The court recognized that this situation was not squarely covered by either Younger or Steffel v. Thompson, 415 U.S. 452 (1974), but concluded that the interests of avoiding contradictory outcomes, of conservation of judicial energy, and of a clearcut method for determining when federal *927 courts should defer to state prosecutions, all militated in favor of granting relief to all three appellees. We deal first with a preliminary jurisdictional matter. This appeal was taken under 28 U.S. C. § 1254 (2), which provides this Court with appellate jurisdiction at the behest of a party relying on a state statute held unconstitutional by a court of appeals.[2] There is authority, questioned but never put to rest, that § 1254 (2) is available only when review is sought of a final judgment. Slaker v. O'Connor, 278 U.S. 188 (1929); South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901 (1956). But see Chicago v. Atchison, T. & S. F. R. Co., 357 U.S. 77, 82-83 (1958). The present appeal, however, seeks review of the affirmance of a preliminary injunction. We also are less than completely certain that the Court of Appeals did in fact hold Local Law 1-1973 to be unconstitutional, since it considered the merits only for the purpose of ruling on the propriety of preliminary injunctive relief. We need not resolve these issues, which have neither been briefed nor argued, because we in any event have certiorari jurisdiction under 28 U.S. C. § 2103. As we have previously done in an identical situation, El Paso v. Simmons, 379 U.S. 497, 502-503 (1965), we dismiss the appeal and, treating the papers as a petition for certiorari, grant the writ of certiorari. Turning to the Younger issues raised by petitioner, we are faced with the necessity of determining whether the holdings of Younger, supra, Steffel, supra, and Samuels v. Mackell, 401 U.S. 66 (1971), must give way before such interests in efficient judicial administration as were relied upon by the Court of Appeals. We think *928 that the interest of avoiding conflicting outcomes in the litigation of similar issues, while entitled to substantial deference in a unitary system, must of necessity be subordinated to the claims of federalism in this particular area of the law. The classic example is the petitioner in Steffel and his companion. Both were warned that failure to cease pamphleteering would result in their arrest, but while the petitioner in Steffel ceased and brought an action in the federal court, his companion did not cease and was prosecuted on a charge of criminal trespass in the state court. 415 U.S., at 455-456. The same may be said of the interest in conservation of judicial manpower. As worthy a value as this is in a unitary system, the very existence of one system of federal courts and 50 systems of state courts, all charged with the responsibility for interpreting the United States Constitution, suggests that on occasion there will be duplicating and overlapping adjudication of cases which are sufficiently similar in content, time, and location to justify being heard before a single judge had they arisen within a unitary system. We do not agree with the Court of Appeals, therefore, that all three plaintiffs should automatically be thrown into the same hopper for Younger purposes, and should thereby each be entitled to injunctive relief. We cannot accept that view, any more than we can accept petitioner's equally Procrustean view that because M & L would have been barred from injunctive relief had it been the sole plaintiff, Salem and Tim-Rob should likewise be barred not only from injunctive relief but from declaratory relief as well. While there plainly may be some circumstances in which legally distinct parties are so closely related that they should all be subject to the Younger considerations which govern any one of them, this is not such a case—while respondents are represented *929 by common counsel, and have similar business activities and problems, they are apparently unrelated in terms of ownership, control, and management. We thus think that each of the respondents should be placed in the position required by our cases as if that respondent stood alone. Respondent M & L could have pursued the course taken by the other respondents after the denial of their request for a temporary restraining order. Had it done so, it would not have subjected itself to prosecution for violation of the ordinance in the state court. When the criminal summonses issued against M & L on the days immediately following the filing of the federal complaint, the federal litigation was in an embryonic stage and no contested matter had been decided. In this posture, M & L's prayer for injunction is squarely governed by Younger. We likewise believe that for the same reasons Samuels v. Mackell bars M & L from obtaining declaratory relief, absent a showing of Younger's special circumstances, even though the state prosecution was commenced the day following the filing of the federal complaint. Having violated the ordinance, rather than awaiting the normal development of its federal lawsuit, M & L cannot now be heard to complain that its constitutional contentions are being resolved in a state court. Thus M & L's prayers for both injunctive and declaratory relief are subject to Younger's restrictions.[3] *930 The rule with regard to the coplaintiffs, Salem and Tim-Rob, is equally clear, insofar as they seek declaratory relief. Salem and Tim-Rob were not subject to state criminal prosecution at any time prior to the issuance of a preliminary injunction by the District Court. Under Steffel they thus could at least have obtained a declaratory judgment upon an ordinary showing of entitlement to that relief. The District Court, however, did not grant declaratory relief to Salem and Tim-Rob, but instead granted them preliminary injunctive relief. Whether injunctions of future criminal prosecutions are governed by Younger standards is a question which we reserved in both Steffel, 415 U. S., at 463, and Younger v. Harris, 401 U. S., at 41. We now hold that on the facts of this case the issuance of a preliminary injunction is not subject to the restrictions of Younger. The principle underlying Younger and Samuels is that state courts are fully competent to adjudicate constitutional claims, and therefore a federal court should, in all but the most exceptional circumstances, refuse to interfere with an ongoing state criminal proceeding. In the absence of such a proceeding, however, as we recognized in Steffel, a plaintiff may challenge the constitutionality of the state statute in federal court, assuming he can satisfy the requirements for federal jurisdiction. See also Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509 (1972). No state proceedings were pending against either Salem or Tim-Rob at the time the District Court issued its preliminary injunction. Nor was there any question that they satisfied the requirements for federal jurisdiction. As we have already stated, they were assuredly entitled to declaratory relief, and since we have previously *931 recognized that "[o]rdinarily . . . the practical effect of [injunctive and declaratory] relief will be virtually identical," Samuels, 401 U. S., at 73, we think that Salem and Tim-Rob were entitled to have their claims for preliminary injunctive relief considered without regard to Younger's restrictions. At the conclusion of a successful federal challenge to a state statute or local ordinance, a district court can generally protect the interests of a federal plaintiff by entering a declaratory judgment, and therefore the stronger injunctive medicine will be unnecessary. But prior to final judgment there is no established declaratory remedy comparable to a preliminary injunction; unless preliminary relief is available upon a proper showing, plaintiffs in some situations may suffer unnecessary and substantial irreparable harm. Moreover, neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute. The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits. It is recognized, however, that a district court must weigh carefully the interests on both sides. Although only temporary, the injunction does prohibit state and local enforcement activities against the federal plaintiff pending final resolution of his case in the federal court. Such a result seriously impairs the State's interest in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of Younger. But while the standard to be applied by the district court in deciding whether a plaintiff is entitled to a preliminary injunction is stringent, the standard of appellate *932 review is simply whether the issuance of the injunction, in the light of the applicable standard, constituted an abuse of discretion. Brown v. Chote, 411 U.S. 452, 457 (1973). While we regard the question as a close one, we believe that the issuance of a preliminary injunction in behalf of respondents Salem and Tim-Rob was not an abuse of the District Court's discretion. As required to support such relief, these respondents alleged (and petitioner did not deny) that absent preliminary relief they would suffer a substantial loss of business and perhaps even bankruptcy. Certainly the latter type of injury sufficiently meets the standards for granting interim relief, for otherwise a favorable final judgment might well be useless. The other inquiry relevant to preliminary relief is whether respondents made a sufficient showing of the likelihood of ultimate success on the merits. Both the District Court and the Court of Appeals found such a likelihood. The order of the District Court spoke in terms of actually holding the ordinance unconstitutional, but in the context of a preliminary injunction the court must have intended to refer only to the likelihood that respondents ultimately would prevail. The Court of Appeals properly clarified this point. 501 F.2d, at 20-21. Although the customary "barroom" type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue, 409 U.S. 109, 118 (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances. In LaRue, however, we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could *933 therefore ban such dancing as a part of its liquor license program. In the present case, the challenged ordinance applies not merely to places which serve liquor, but to many other establishments as well. The District Court observed, we believe correctly: "The local ordinance here attacked not only prohibits topless dancing in bars but also prohibits any female from appearing in `any public place' with uncovered breasts. There is no limit to the interpretation of the term `any public place.' It could include the theater, town hall, opera house, as well as a public market place, street or any place of assembly, indoors or outdoors. Thus, this ordinance would prohibit the performance of the `Ballet Africains' and a number of other works of unquestionable artistic and socially redeeming significance." 364 F. Supp., at 483. We have previously held that even though a statute or ordinance may be constitutionally applied to the activities of a particular defendant, that defendant may challenge it on the basis of overbreadth if it is so drawn as to sweep within its ambit protected speech or expression of other persons not before the Court. As we said in Grayned v. City of Rockford, 408 U.S. 104, 114 (1972): "Because overbroad laws, like vague ones, deter privileged activity, our cases firmly establish appellant's standing to raise an overbreadth challenge." Even if we may assume that the State of New York has delegated its authority under the Twenty-first Amendment to towns such as North Hempstead, and that the ordinance would therefore be constitutionally valid under LaRue, supra, if limited to places dispensing alcoholic beverages, the ordinance in this case is not so *934 limited. Nor does petitioner raise any other legitimate state interest that would counterbalance the constitutional protection presumptively afforded to activities which are plainly within the reach of Local Law 1-1973. See United States v. O'Brien, 391 U.S. 367, 377 (1968). In these circumstances, and in the light of existing case law, we cannot conclude that the District Court abused its discretion by granting preliminary injunctive relief. This is the extent of our appellate inquiry, and we therefore "intimate no view as to the ultimate merits of [respondents'] contentions." Brown v. Chote, supra, at 457. The judgment of the Court of Appeals is reversed as to respondent M & L, and affirmed as to respondents Salem and Tim-Rob. It is so ordered. MR. JUSTICE DOUGLAS, concurring in the judgment in part and dissenting in part. While adhering to my position in Younger v. Harris, 401 U.S. 37, 58 (1971) (dissenting opinion), I join the judgment of the Court insofar as it holds that Salem Inn and Tim-Rob were entitled to a preliminary injunction pending disposition of their request for declaratory relief. I do not condone the conduct of M & L in violating the challenged ordinance without awaiting judicial action on its federal complaint, but like the Court of Appeals, I find no compelling reason to distinguish M & L from the other respondents in terms of the relief which is appropriate. I would therefore affirm the judgment below in all respects.

Appellant is a town attorney in Nassau County, N. Y., who, along with other local law enforcement officials, was preliminary enjoined by the United States District Court for the Eastern District of New York from enforcing a local ordinance of the town of North Hempstead. Salem Inn, aff'd, In addition to defending the ordinance on the merits, he contends that the complaint should have been dismissed on the authority of and its companion cases. Appellees are three corporations which operate bars at various locations within the town. Prior to enactment of the ordinance in question, each provided topless dancing as entertainment for its customers. On July 17, the town enacted Local Law No. 1-, an ordinance making it unlawful for bar owners and others to permit waitresses, barmaids, and entertainers to appear in their establishments with breasts uncovered or so thinly draped as to appear uncovered. Appellees complied with the ordinance by clothing their dancers in bikini tops, but on August 9, brought this action in the District Court under 42 U.S. C. 1983. They alleged that the ordinance violated their rights under the First and Fourteenth Amendments to the United States Constitution. Their pleadings sought a temporary restraining *925 order, a preliminary injunction, and declaratory relief. The prayer for a temporary restraining order was denied instanter, but the motion for a preliminary injunction was set for a hearing on August 22, On August 10, the day after the appellees' complaint was filed, and their application for a temporary restraining order denied, one of them, M & L Restaurant, Inc., resumed its briefly suspended presentation of topless dancing. On that day, and each of the three succeeding days, M & L and its topless dancers were served with criminal summonses based on violation of the ordinance.[1] These summonses were returnable before the Nassau County Court on September 13, The other two appellees, Salem Inn, Inc., and Tim-Rob Bar, Inc., did not resume the presentation of topless entertainment in their bars until after the District Court issued its preliminary injunction. On September 5, appellant filed an answer which alleged that a criminal prosecution had been instituted against at least one of the appellees; the District Court was urged to "refuse to exercise jurisdiction" and to dismiss the complaint. App. 33. On September 6, on the basis of oral argument and memoranda of law, the District Court entered an opinion and order in which it "[found] that (1) Local Law No. 1- of the Town of North Hempstead is on its face violative of plaintiffs' First Amendment rights in that it prohibits across the board nonobscene conduct in the form of topless dancing, and (2) that the daily penalty of $500 for each violation of the ordinance, the prior state-court decision validating a similar ordinance, *926 the overbreadth of the ordinance, and the potential harm to plaintiffs' business by its enforcement justify federal intervention and injunctive relief." The court concluded by enjoining appellant "pending the final determination of this action from prosecuting the plaintiffs for any violation of Local Law No. 1- or in any way interfering with their activities which may be prohibited by the text of said Local Law." The court did address appellant's contention, but held that the pending prosecution against M & L did not affect the availability of injunctive relief to Salem and Tim-Rob. As for M & L, it concluded that if federal relief were granted to two of the appellees, "it would be anomalous" not to extend it to M & L as well. The Court of Appeals for the Second Circuit affirmed by a divided vote. It held that the "ordinance would have to fall," and that the claim of deprivation of constitutional rights and diminution of business warranted the issuance of a preliminary injunction. The Court of Appeals rejected appellant's claim that the District Court ought to have dismissed appellees' complaint on the authority of and its companion cases. As to Salem and Tim-Rob, did not present a bar because there had at no time been a pending prosecution against them under the ordinance. As for M & L, the court thought that it posed "a slightly different problem," since the state prosecution was begun only one day after the filing of appellees' complaint in the District Court. The court recognized that this situation was not squarely covered by either or but concluded that the interests of avoiding contradictory outcomes, of conservation of judicial energy, and of a clearcut method for determining when federal *927 courts should defer to state prosecutions, all militated in favor of granting relief to all three appellees. We deal first with a preliminary jurisdictional matter. This appeal was taken under 28 U.S. C. 1254 (2), which provides this Court with appellate jurisdiction at the behest of a party relying on a state statute held unconstitutional by a court of appeals.[2] There is authority, questioned but never put to rest, that 1254 (2) is available only when review is sought of a final judgment. ; South Carolina Electric & Gas But see The present appeal, however, seeks review of the affirmance of a preliminary injunction. We also are less than completely certain that the Court of Appeals did in fact hold Local Law 1- to be unconstitutional, since it considered the merits only for the purpose of ruling on the propriety of preliminary injunctive relief. We need not resolve these issues, which have neither been briefed nor argued, because we in any event have certiorari jurisdiction under 28 U.S. C. 2103. As we have previously done in an identical situation, El we dismiss the appeal and, treating the papers as a petition for certiorari, grant the writ of certiorari. Turning to the issues raised by petitioner, we are faced with the necessity of determining whether the holdings of and must give way before such interests in efficient judicial administration as were relied upon by the Court of Appeals. We think *928 that the interest of avoiding conflicting outcomes in the litigation of similar issues, while entitled to substantial deference in a unitary system, must of necessity be subordinated to the claims of federalism in this particular area of the law. The classic example is the petitioner in and his companion. Both were warned that failure to cease pamphleteering would result in their arrest, but while the petitioner in ceased and brought an action in the federal court, his companion did not cease and was prosecuted on a charge of criminal trespass in the state court. -456. The same may be said of the interest in conservation of judicial manpower. As worthy a value as this is in a unitary system, the very existence of one system of federal courts and 50 systems of state courts, all charged with the responsibility for interpreting the United States Constitution, suggests that on occasion there will be duplicating and overlapping adjudication of cases which are sufficiently similar in content, time, and location to justify being heard before a single judge had they arisen within a unitary system. We do not agree with the Court of Appeals, therefore, that all three plaintiffs should automatically be thrown into the same hopper for purposes, and should thereby each be entitled to injunctive relief. We cannot accept that view, any more than we can accept petitioner's equally Procrustean view that because M & L would have been barred from injunctive relief had it been the sole plaintiff, Salem and Tim-Rob should likewise be barred not only from injunctive relief but from declaratory relief as well. While there plainly may be some circumstances in which legally distinct parties are so closely related that they should all be subject to the considerations which govern any one of them, this is not such a case—while respondents are represented *929 by common counsel, and have similar business activities and problems, they are apparently unrelated in terms of ownership, control, and management. We thus think that each of the respondents should be placed in the position required by our cases as if that respondent stood alone. Respondent M & L could have pursued the course taken by the other respondents after the denial of their request for a temporary restraining order. Had it done so, it would not have subjected itself to prosecution for violation of the ordinance in the state court. When the criminal summonses issued against M & L on the days immediately following the filing of the federal complaint, the federal litigation was in an embryonic stage and no contested matter had been decided. In this posture, M & L's prayer for injunction is squarely governed by We likewise believe that for the same reasons bars M & L from obtaining declaratory relief, absent a showing of 's special circumstances, even though the state prosecution was commenced the day following the filing of the federal complaint. Having violated the ordinance, rather than awaiting the normal development of its federal lawsuit, M & L cannot now be heard to complain that its constitutional contentions are being resolved in a state court. Thus M & L's prayers for both injunctive and declaratory relief are subject to 's restrictions.[3] *930 The rule with regard to the coplaintiffs, Salem and Tim-Rob, is equally clear, insofar as they seek declaratory relief. Salem and Tim-Rob were not subject to state criminal prosecution at any time prior to the issuance of a preliminary injunction by the District Court. Under they thus could at least have obtained a declaratory judgment upon an ordinary showing of entitlement to that relief. The District Court, however, did not grant declaratory relief to Salem and Tim-Rob, but instead granted them preliminary injunctive relief. Whether injunctions of future criminal prosecutions are governed by standards is a question which we reserved in both and We now hold that on the facts of this case the issuance of a preliminary injunction is not subject to the restrictions of The principle underlying and Samuels is that state courts are fully competent to adjudicate constitutional claims, and therefore a federal court should, in all but the most exceptional circumstances, refuse to interfere with an ongoing state criminal proceeding. In the absence of such a proceeding, however, as we recognized in a plaintiff may challenge the constitutionality of the state statute in federal court, assuming he can satisfy the requirements for federal jurisdiction. See also Lake Carriers' No state proceedings were pending against either Salem or Tim-Rob at the time the District Court issued its preliminary injunction. Nor was there any question that they satisfied the requirements for federal jurisdiction. As we have already stated, they were assuredly entitled to declaratory relief, and since we have previously *931 recognized that "[o]rdinarily the practical effect of [injunctive and declaratory] relief will be virtually identical," Samuels, we think that Salem and Tim-Rob were entitled to have their claims for preliminary injunctive relief considered without regard to 's restrictions. At the conclusion of a successful federal challenge to a state statute or local ordinance, a district court can generally protect the interests of a federal plaintiff by entering a declaratory judgment, and therefore the stronger injunctive medicine will be unnecessary. But prior to final judgment there is no established declaratory remedy comparable to a preliminary injunction; unless preliminary relief is available upon a proper showing, plaintiffs in some situations may suffer unnecessary and substantial irreparable harm. Moreover, neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute. The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits. It is recognized, however, that a district court must weigh carefully the interests on both sides. Although only temporary, the injunction does prohibit state and local enforcement activities against the federal plaintiff pending final resolution of his case in the federal court. Such a result seriously impairs the State's interest in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of But while the standard to be applied by the district court in deciding whether a plaintiff is entitled to a preliminary injunction is stringent, the standard of appellate *932 review is simply whether the issuance of the injunction, in the light of the applicable standard, constituted an abuse of discretion. 411 While we regard the question as a close one, we believe that the issuance of a preliminary injunction in behalf of respondents Salem and Tim-Rob was not an abuse of the District Court's discretion. As required to support such relief, these respondents alleged (and petitioner did not deny) that absent preliminary relief they would suffer a substantial loss of business and perhaps even bankruptcy. Certainly the latter type of injury sufficiently meets the standards for granting interim relief, for otherwise a favorable final judgment might well be useless. The other inquiry relevant to preliminary relief is whether respondents made a sufficient showing of the likelihood of ultimate success on the merits. Both the District Court and the Court of Appeals found such a likelihood. The order of the District Court spoke in terms of actually holding the ordinance unconstitutional, but in the context of a preliminary injunction the court must have intended to refer only to the likelihood that respondents ultimately would prevail. The Court of Appeals properly clarified this point. -21. Although the customary "barroom" type of nude dancing may involve only the barest minimum of protected expression, we recognized in that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances. In however, we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could *933 therefore ban such dancing as a part of its liquor license program. In the present case, the challenged ordinance applies not merely to places which serve liquor, but to many other establishments as well. The District Court observed, we believe correctly: "The local ordinance here attacked not only prohibits topless dancing in bars but also prohibits any female from appearing in `any public place' with uncovered breasts. There is no limit to the interpretation of the term `any public place.' It could include the theater, town hall, opera house, as well as a public market place, street or any place of assembly, indoors or outdoors. Thus, this ordinance would prohibit the performance of the `Ballet Africains' and a number of other works of unquestionable artistic and socially redeeming significance." We have previously held that even though a statute or ordinance may be constitutionally applied to the activities of a particular defendant, that defendant may challenge it on the basis of overbreadth if it is so drawn as to sweep within its ambit protected speech or expression of other persons not before the Court. As we said in : "Because overbroad laws, like vague ones, deter privileged activity, our cases firmly establish appellant's standing to raise an overbreadth challenge." Even if we may assume that the State of New York has delegated its authority under the Twenty-first Amendment to towns such as North Hempstead, and that the ordinance would therefore be constitutionally valid under if limited to places dispensing alcoholic beverages, the ordinance in this case is not so *934 limited. Nor does petitioner raise any other legitimate state interest that would counterbalance the constitutional protection presumptively afforded to activities which are plainly within the reach of Local Law 1-. See United In these circumstances, and in the light of existing case law, we cannot conclude that the District Court abused its discretion by granting preliminary injunctive relief. This is the extent of our appellate inquiry, and we therefore "intimate no view as to the ultimate merits of [respondents'] contentions." at The judgment of the Court of Appeals is reversed as to respondent M & L, and affirmed as to respondents Salem and Tim-Rob. It is so ordered. MR. JUSTICE DOUGLAS, concurring in the judgment in part and dissenting in part. While adhering to my position in I join the judgment of the Court insofar as it holds that Salem Inn and Tim-Rob were entitled to a preliminary injunction pending disposition of their request for declaratory relief. I do not condone the conduct of M & L in violating the challenged ordinance without awaiting judicial action on its federal complaint, but like the Court of Appeals, I find no compelling reason to distinguish M & L from the other respondents in terms of the relief which is appropriate. I would therefore affirm the judgment below in all respects.

Justice Marshall

majority

Austin v. New Hampshire

https://www.courtlistener.com/opinion/109219/austin-v-new-hampshire/

https://www.courtlistener.com/api/rest/v3/clusters/109219/

1974-071

Appellants are residents of Maine who were employed in New Hampshire during the 1970 tax year and as such were subject to the New Hampshire Commuters Income Tax. On behalf of themselves and others similarly situated, they petitioned the New Hampshire Superior Court for a declaration that the tax violates the Privileges and Immunities and Equal Protection Clauses of the Constitutions of New Hampshire and of the United States. The cause was transferred directly to the New Hampshire Supreme Court, which upheld the tax. 114 N. H. 137, 316 A.2d 165 (1974). We noted probable jurisdiction of the federal constitutional claims, 419 U.S. 822 (1974), and on the basis of the Privileges and Immunities Clause of Art. IV, we now reverse. I The New Hampshire Commuters Income Tax imposes a tax on nonresidents' New Hampshire-derived income in *658 excess of $2,000.[1] The tax rate is 4% except that if the nonresident taxpayer's State of residence would impose a lesser tax had the income been earned in that State, the New Hampshire tax is reduced to the amount of the tax that the State of residence would impose. Employers are required to withhold 4% of the nonresident's income, however, even if his home State would tax him at less than the full 4%. Any excess tax withheld is refunded to the nonresident upon his filing a New Hampshire tax return after the close of the tax year showing that he is entitled to be taxed at a rate less than 4%. The Commuters Income Tax initially imposes a tax of 4% as well on the income earned by New Hampshire residents outside the State. It then exempts such income from the tax, however: (1) if it is taxed by the State from which it is derived; (2) if it is exempted from taxation by the State from which it is derived; or (3) if the State from which it is derived does not tax such income.[2]*659 The effect of these imposition and exemption features is that no resident of New Hampshire is taxed on his out-of-state income. Nor is the domestic earned income of New Hampshire residents taxed. In effect, then, the State taxes only the incomes of nonresidents working in New Hampshire;[3] it is on the basis of this disparate treatment of residents and nonresidents that appellants challenge New Hampshire's right to tax their income from employment in that State.[4] *660 II The Privileges and Immunities Clause of Art. IV, § 2, cl. 1, provides: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The Clause thus establishes a norm of comity without specifying the particular subjects as to which citizens of one State coming within the jurisdiction of another are guaranteed equality of treatment. The origins of the Clause do reveal, however, the concerns of central import to the Framers. During the preconstitutional period, the practice of some States denying to outlanders the treatment that its citizens demanded for themselves was widespread. The fourth of the Articles of Confederation was intended to arrest this centrifugal tendency with some particularity. It provided: "The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively." The discriminations at which this Clause was aimed were by no means eradicated during the short life of the Confederation,[5]*661 and the provision was carried over into the comity article of the Constitution in briefer form but with no change of substance or intent,[6] unless it was to strengthen the force of the Clause in fashioning a single nation.[7] Thus, in the first, and long the leading, explication of the Clause, Mr. Justice Washington, sitting as Circuit Justice, deemed the fundamental privileges and immunities protected by the Clause to be essentially coextensive with those calculated to achieve the purpose of forming a more perfect Union, including "an exemption from higher taxes or impositions than are paid by the other citizens of the state." Corfield v. Coryell, 6 F. Cas. 546, 552 (No. 3,230) (CCED Pa. 1825). In resolving constitutional challenges to state tax measures this Court has made it clear that "in taxation, even more than in other fields, legislatures possess the greatest freedom in classification." Madden v. Kentucky, *662 309 U.S. 83, 88 (1940). See Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973). Our review of tax classifications has generally been concomitantly narrow, therefore, to fit the broad discretion vested in the state legislatures. When a tax measure is challenged as an undue burden on an activity granted special constitutional recognition, however, the appropriate degree of inquiry is that necessary to protect the competing constitutional value from erosion. See id., at 359. This consideration applies equally to the protection of individual liberties, see Grosjean v. American Press Co., 297 U.S. 233 (1936), and to the maintenance of our constitutional federalism. See Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 164 (1954). The Privileges and Immunities Clause, by making noncitizenship or nonresidence[8] an improper basis for locating a special burden, implicates not only the individual's right to nondiscriminatory treatment but also, perhaps more so, the structural balance essential to the concept of federalism. Since nonresidents are not represented in the taxing State's legislative halls, cf. Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 532-533 (1959) (BRENNAN, J., concurring), judicial acquiescence in taxation schemes that burden them particularly would remit them to such redress as they could secure through their own State; but "to prevent [retaliation] was one of the chief ends sought to be accomplished by the adoption of the Constitution." *663 Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 82 (1920). Our prior cases, therefore, reflect an appropriately heightened concern for the integrity of the Privileges and Immunities Clause by erecting a standard of review substantially more rigorous than that applied to state tax distinctions among, say, forms of business organizations or different trades and professions. The first such case was Ward v. Maryland, 12 Wall. 418 (1871), challenging a statute under which nonresidents were required to pay $300 per year for a license to trade in goods not manufactured in Maryland, while resident traders paid a fee varying from $12 to $150, depending upon the value of their inventory. The State attempted to justify this disparity as a response to the practice of "runners" from industrial States selling by sample in Maryland, free from local taxation and other overhead expenses incurred by resident merchants. It portrayed the fee as a "tax upon a particular business or trade, carried on in a particular mode," rather than a discrimination against traders from other States. Although the tax may not have been "palpably arbitrary," see Allied Stores of Ohio, Inc. v. Bowers, supra, at 530, the discrimination could not be denied and the Court held that it violated the guarantee of the Privileges and Immunities Clause against "being subjected to any higher tax or excise than that exacted by law of . . . permanent residents."[9] In Travellers' Insurance Co. v. Connecticut, 185 U.S. 364 (1902), the Court considered a tax laid on the value of stock in local insurance corporations. The shares of *664 nonresident stockholders were assessed at their market value, while those owned by residents were assessed at market value less the proportionate value of all real estate held by the corporation and on which it had already paid a local property tax. In analyzing the apparent discrimination thus worked against nonresidents, the Court took account of the overall distribution of the tax burden between resident and nonresident stockholders. Finding that nonresidents paid no local property taxes, while residents paid those taxes at an average rate approximating or exceeding the rate imposed by the State on nonresidents' stock, the Court upheld the scheme. While more precise equality between the two classes could have been obtained, it was "enough that the State has secured a reasonably fair distribution of burdens, and that no intentional discrimination has been made against non-residents." Their contribution to state and local property tax revenues, that is, was no more than the ratable share of their property within the State. The principles of Ward and Travellers' were applied to taxes on nonresidents' local incomes in Shaffer v. Carter, 252 U.S. 37 (1920), and Travis v. Yale & Towne Mfg. Co., supra. Shaffer upheld the Oklahoma tax on income derived from local property and business by a nonresident where the State also taxed the income—from wherever derived—of its own citizens. Putting aside "theoretical distinctions" and looking to "the practical effect and operation" of the scheme, the nonresident was not treated more onerously than the resident in any particular, and in fact was called upon to make no more than his ratable contribution to the support of the state government. The New York tax on residents' and nonresidents' income at issue in Travis, by contrast, could not be sustained when its actual effect was considered. The tax there granted personal exemptions to each resident *665 taxpayer for himself and each dependent, but it made no similar provision for nonresidents. The disparity could not be "deemed to be counterbalanced" by an exemption for nonresidents' interest and dividend income because it was not likely "to benefit non-residents to a degree corresponding to the discrimination against them." Looking to "the concrete, the particular incidence" of the tax, therefore, the Court said of the many New Jersey and Connecticut residents who worked in New York: "They pursue their several occupations side by side with residents of the State of New York—in effect competing with them as to wages, salaries, and other terms of employment. Whether they must pay a tax upon the first $1,000 or $2,000 of income, while their associates and competitors who reside in New York do not, makes a substantial difference. . . . This is not a case of occasional or accidental inequality due to circumstances personal to the taxpayer . . . but a general rule, operating to the disadvantage of all non-residents. . . and favoring all residents . . . ." 252 U.S., at 80-81 (citations omitted). III Against this background establishing a rule of substantial equality of treatment for the citizens of the taxing State and nonresident taxpayers, the New Hampshire Commuters Income Tax cannot be sustained. The overwhelming fact, as the State concedes, is that the tax falls exclusively on the income of nonresidents; and it is not offset even approximately by other taxes imposed upon residents alone.[10] Rather, the argument advanced in favor *666 of the tax is that the ultimate burden it imposes is "not more onerous in effect," Shaffer v. Carter, supra, on nonresidents because their total state tax liability is unchanged once the tax credit they receive from their State of residence is taken into account. See n. 4, supra. While this argument has an initial appeal, it cannot be squared with the underlying policy of comity to which the Privileges and Immunities Clause commits us. According to the State's theory of the case, the only practical effect of the tax is to divert to New Hampshire tax revenues that would otherwise be paid to Maine, an effect entirely within Maine's power to terminate by repeal of its credit provision for income taxes paid to another State. The Maine Legislature could do this, presumably, by amending the provision so as to deny a credit for taxes paid to New Hampshire while retaining it for the other 48 States. Putting aside the acceptability of such a scheme, and the relevance of any increase in appellants' home state taxes that the diversionary effect is said to have,[11] we do not think the possibility that Maine could *667 shield its residents from New Hampshire's tax cures the constitutional defect of the discrimination in that tax. In fact, it compounds it. For New Hampshire in effect invites appellants to induce their representatives, if they can, to retaliate against it. A similar, though much less disruptive, invitation was extended by New York in support of the discriminatory personal exemption at issue in Travis. The statue granted the nonresident a credit for taxes paid to his State of residence on New York-derived income only if that State granted a substantially similar credit to New York residents subject to its income tax. New York contended that it thus "looked forward to the speedy adoption of an income tax by the adjoining States," which would eliminate the discrimination "by providing similar exemptions similarly conditioned." To this the Court responded in terms fully applicable to the present case. Referring to the anticipated legislative response of the neighboring States, it stated: "This, however, is wholly speculative; New York has no authority to legislate for the adjoining States; and we must pass upon its statute with respect to its effect and operation in the existing situation. . . . A State may not barter away the right, conferred upon its citizens by the Constitution of the United States, to enjoy the privileges and immunities of citizens when they go into other States. Nor can discrimination be corrected by retaliation; to prevent this was one of the chief ends sought to be accomplished by the adoption of the Constitution." 252 U.S., at 82.[12] *668 Nor, we may add, can the constitutionality of one State's statues affecting nonresidents depend upon the present configuration of the statutes of another State. Since we dispose of this case under Art. IV, § 2, of the Constitution, we have no occasion to address the equal protection arguments directed at the disparate treatment of residents and nonresidents and at that feature of the statute that causes the rate of taxation imposed upon non-residents to vary among them depending upon the rate established by their State of residence. Reversed. MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case. MR.

Appellants are residents of Maine who were employed in New Hampshire during the 1970 tax year and as such were subject to the New Hampshire Commuters Income Tax On behalf of themselves and others similarly situated, they petitioned the New Hampshire Superior Court for a declaration that the tax violates the Privileges and Immunities and Equal Protection Clauses of the Constitutions of New Hampshire and of the United States The cause was transferred directly to the New Hampshire Supreme Court, which upheld the tax 11 N H 137, We noted probable jurisdiction of the federal constitutional claims, and on the basis of the Privileges and Immunities Clause of Art IV, we now reverse I The New Hampshire Commuters Income Tax imposes a tax on nonresidents' New Hampshire-derived income in *658 excess of $2,000[1] The tax rate is % except that if the nonresident taxpayer's State of residence would impose a lesser tax had the income been earned in that State, the New Hampshire tax is reduced to the amount of the tax that the State of residence would impose Employers are required to withhold % of the nonresident's income, however, even if his home State would tax him at less than the full % Any excess tax withheld is refunded to the nonresident upon his filing a New Hampshire tax return after the close of the tax year showing that he is entitled to be taxed at a rate less than % The Commuters Income Tax initially imposes a tax of % as well on the income earned by New Hampshire residents outside the State It then exempts such income from the tax, however: (1) if it is taxed by the State from which it is derived; (2) if it is exempted from taxation by the State from which it is derived; or (3) if the State from which it is derived does not tax such income[2]*659 The effect of these imposition and exemption features is that no resident of New Hampshire is taxed on his out-of-state income Nor is the domestic earned income of New Hampshire residents taxed In effect, then, the State taxes only the incomes of nonresidents working in New Hampshire;[3] it is on the basis of this disparate treatment of residents and nonresidents that appellants challenge New Hampshire's right to tax their income from employment in that State[] *660 II The Privileges and Immunities Clause of Art IV, 2, cl 1, provides: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States" The Clause thus establishes a norm of comity without specifying the particular subjects as to which citizens of one State coming within the jurisdiction of another are guaranteed equality of treatment The origins of the Clause do reveal, however, the concerns of central import to the Framers During the preconstitutional period, the practice of some States denying to outlanders the treatment that its citizens demanded for themselves was widespread The fourth of the Articles of Confederation was intended to arrest this centrifugal tendency with some particularity It provided: "The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively" The discriminations at which this Clause was aimed were by no means eradicated during the short life of the Confederation,[5]*661 and the provision was carried over into the comity article of the Constitution in briefer form but with no change of substance or intent,[6] unless it was to strengthen the force of the Clause in fashioning a single nation[7] Thus, in the first, and long the leading, explication of the Clause, Mr Justice Washington, sitting as Circuit Justice, deemed the fundamental privileges and immunities protected by the Clause to be essentially coextensive with those calculated to achieve the purpose of forming a more perfect Union, including "an exemption from higher taxes or impositions than are paid by the other citizens of the state" (No 3,230) (CCED Pa 15) In resolving constitutional challenges to state tax measures this Court has made it clear that "in taxation, even more than in other fields, legislatures possess the greatest freedom in classification" See Our review of tax classifications has generally been concomitantly narrow, therefore, to fit the broad discretion vested in the state legislatures When a tax measure is challenged as an undue burden on an activity granted special constitutional recognition, however, the appropriate degree of inquiry is that necessary to protect the competing constitutional value from erosion See This consideration applies equally to the protection of individual liberties, see and to the maintenance of our constitutional federalism See Michigan-Wisconsin Pipe Line The Privileges and Immunities Clause, by making noncitizenship or nonresidence[8] an improper basis for locating a special burden, implicates not only the individual's right to nondiscriminatory treatment but also, perhaps more so, the structural balance essential to the concept of federalism Since nonresidents are not represented in the taxing State's legislative halls, cf Allied Stores of Ohio, judicial acquiescence in taxation schemes that burden them particularly would remit them to such redress as they could secure through their own State; but "to prevent [retaliation] was one of the chief ends sought to be accomplished by the adoption of the Constitution" *663 Our prior cases, therefore, reflect an appropriately heightened concern for the integrity of the Privileges and Immunities Clause by erecting a standard of review substantially more rigorous than that applied to state tax distinctions among, say, forms of business organizations or different trades and professions The first such case was challenging a statute under which nonresidents were required to pay $300 per year for a license to trade in goods not manufactured in Maryland, while resident traders paid a fee varying from $12 to $150, depending upon the value of their inventory The State attempted to justify this disparity as a response to the practice of "runners" from industrial States selling by sample in Maryland, free from local taxation and other overhead expenses incurred by resident merchants It portrayed the fee as a "tax upon a particular business or trade, carried on in a particular mode," rather than a discrimination against traders from other States Although the tax may not have been "palpably arbitrary," see Allied Stores of Ohio, the discrimination could not be denied and the Court held that it violated the guarantee of the Privileges and Immunities Clause against "being subjected to any higher tax or excise than that exacted by law of permanent residents"[9] In Travellers' Insurance the Court considered a tax laid on the value of stock in local insurance corporations The shares of *66 nonresident stockholders were assessed at their market value, while those owned by residents were assessed at market value less the proportionate value of all real estate held by the corporation and on which it had already paid a local property tax In analyzing the apparent discrimination thus worked against nonresidents, the Court took account of the overall distribution of the tax burden between resident and nonresident stockholders Finding that nonresidents paid no local property taxes, while residents paid those taxes at an average rate approximating or exceeding the rate imposed by the State on nonresidents' stock, the Court upheld the scheme While more precise equality between the two classes could have been obtained, it was "enough that the State has secured a reasonably fair distribution of burdens, and that no intentional discrimination has been made against non-residents" Their contribution to state and local property tax revenues, that is, was no more than the ratable share of their property within the State The principles of Ward and Travellers' were applied to taxes on nonresidents' local incomes in and Shaffer upheld the Oklahoma tax on income derived from local property and business by a nonresident where the State also taxed the income—from wherever derived—of its own citizens Putting aside "theoretical distinctions" and looking to "the practical effect and operation" of the scheme, the nonresident was not treated more onerously than the resident in any particular, and in fact was called upon to make no more than his ratable contribution to the support of the state government The New York tax on residents' and nonresidents' income at issue in Travis, by contrast, could not be sustained when its actual effect was considered The tax there granted personal exemptions to each resident *665 taxpayer for himself and each dependent, but it made no similar provision for nonresidents The disparity could not be "deemed to be counterbalanced" by an exemption for nonresidents' interest and dividend income because it was not likely "to benefit non-residents to a degree corresponding to the discrimination against them" Looking to "the concrete, the particular incidence" of the tax, therefore, the Court said of the many New Jersey and Connecticut residents who worked in New York: "They pursue their several occupations side by side with residents of the State of New York—in effect competing with them as to wages, salaries, and other terms of employment Whether they must pay a tax upon the first $1,000 or $2,000 of income, while their associates and competitors who reside in New York do not, makes a substantial difference This is not a case of occasional or accidental inequality due to circumstances personal to the taxpayer but a general rule, operating to the disadvantage of all non-residents and favoring all residents " -81 III Against this background establishing a rule of substantial equality of treatment for the citizens of the taxing State and nonresident taxpayers, the New Hampshire Commuters Income Tax cannot be sustained The overwhelming fact, as the State concedes, is that the tax falls exclusively on the income of nonresidents; and it is not offset even approximately by other taxes imposed upon residents alone[10] Rather, the argument advanced in favor *666 of the tax is that the ultimate burden it imposes is "not more onerous in effect," on nonresidents because their total state tax liability is unchanged once the tax credit they receive from their State of residence is taken into account See n While this argument has an initial appeal, it cannot be squared with the underlying policy of comity to which the Privileges and Immunities Clause commits us According to the State's theory of the case, the only practical effect of the tax is to divert to New Hampshire tax revenues that would otherwise be paid to Maine, an effect entirely within Maine's power to terminate by repeal of its credit provision for income taxes paid to another State The Maine Legislature could do this, presumably, by amending the provision so as to deny a credit for taxes paid to New Hampshire while retaining it for the other 8 States Putting aside the acceptability of such a scheme, and the relevance of any increase in appellants' home state taxes that the diversionary effect is said to have,[11] we do not think the possibility that Maine could *667 shield its residents from New Hampshire's tax cures the constitutional defect of the discrimination in that tax In fact, it compounds it For New Hampshire in effect invites appellants to induce their representatives, if they can, to retaliate against it A similar, though much less disruptive, invitation was extended by New York in support of the discriminatory personal exemption at issue in Travis The statue granted the nonresident a credit for taxes paid to his State of residence on New York-derived income only if that State granted a substantially similar credit to New York residents subject to its income tax New York contended that it thus "looked forward to the speedy adoption of an income tax by the adjoining States," which would eliminate the discrimination "by providing similar exemptions similarly conditioned" To this the Court responded in terms fully applicable to the present case Referring to the anticipated legislative response of the neighboring States, it stated: "This, however, is wholly speculative; New York has no authority to legislate for the adjoining States; and we must pass upon its statute with respect to its effect and operation in the existing situation A State may not barter away the right, conferred upon its citizens by the Constitution of the United States, to enjoy the privileges and immunities of citizens when they go into other States Nor can discrimination be corrected by retaliation; to prevent this was one of the chief ends sought to be accomplished by the adoption of the Constitution" 252 US, at [12] *668 Nor, we may add, can the constitutionality of one State's statues affecting nonresidents depend upon the present configuration of the statutes of another State Since we dispose of this case under Art IV, 2, of the Constitution, we have no occasion to address the equal protection arguments directed at the disparate treatment of residents and nonresidents and at that feature of the statute that causes the rate of taxation imposed upon non-residents to vary among them depending upon the rate established by their State of residence Reversed MR JUSTICE DOUGLAS took no part in the consideration or decision of this case MR

per_curiam

per_curiam

Foreman v. Dallas County

https://www.courtlistener.com/opinion/1515492/foreman-v-dallas-county/

https://www.courtlistener.com/api/rest/v3/clusters/1515492/

1996-096

Texas by statute authorizes counties to appoint election judges, one for each precinct, who supervise voting at the polls on election days. In 1983 and several times thereafter, Dallas County changed its procedures for selecting these officials. Each of the new methods used party-affiliation formulas of one sort or another. After the most recent change in 1996, appellants sued the county and others in the United States District Court, claiming that § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S. C. § 1973c, required that the changes be precleared. A three-judge court held that preclearance was not required because the county was simply exercising, under the state statute, its "discretion to adjust [the procedure for appointing election judges] according to party power." App. to Juris. Statement 4a. The court apparently concluded that this "discretionary" use of political power meant that the various methods for selecting election judges were not covered changes under § 5. The court also concluded that the Justice Department's preclearance of a 1985 submission from the State—the recodification of its entire election code—operated to preclear the county's use of partisan considerations in selecting election judges. The court denied injunctive relief, and later dismissed appellants' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Appellants have brought both of these rulings here. We believe that the decision of the District Court is inconsistent with our precedents. First, in NAACP v. Hampton County Election Comm'n, 470 U.S. 166, 178 (1985), we held that even "an administrative effort to comply with a statute that had already received clearance" may require separate preclearance, because § 5 "reaches informal as well as formal changes." Thus, the fact that the county here was exercising its "discretion" pursuant to a state statute does not shield its actions from § 5. The question is simply whether the county, by its actions, whether taken pursuant to a statute *981 or not, "enact[ed] or [sought] to administer any . . . standard, practice, or procedure with respect to voting different from" the one in place on November 1, 1972. § 5. The fact that the county's new procedures used political party affiliation as the selection criterion does not mean that the methods were exempt from preclearance. Second, the State's 1985 submission (the recodification and a 30-page summary of changes to the old law) indicated that the only change being made to the statute concerning election judges was a change to "the beginning date and duration of [their] appointment." Thus, neither the recodified statute nor the State's explanations said anything about the use of specific, partisan-affiliation methods for selecting election judges. This submission was clearly insufficient under our precedents to put the Justice Department on notice that the State was seeking preclearance of the use of partisan affiliations in selecting election judges. See, e. g., Young v. Fordice, 520 U.S. 273, 286-287 (1997); Lopez v. Monterey County, 519 U.S. 9, 15 (1996); Clark v. Roemer, 500 U.S. 646, 658-659 (1991). Because the parties agree that the record is silent as to the procedure used by Dallas County for appointing election judges as of November 1, 1972, the date on which Texas became a covered jurisdiction under the Voting Rights Act, we cannot make a final determination here as to whether preclearance is in fact required. We therefore vacate the judgment of the District Court in No. 96-1389, dismiss the appeal from the District Court's interlocutory judgment in No. 96— 987, see Shaffer v. Carter, 252 U.S. 37, 44 (1920), and remand the cases for further proceedings. It is so ordered.

Texas by statute authorizes counties to appoint election judges, one for each precinct, who supervise voting at the polls on election days. In 1983 and several times thereafter, Dallas County changed its procedures for selecting these officials. Each of the new methods used party-affiliation formulas of one sort or another. After the most recent change in 1996, appellants sued the county and others in the United States District Court, claiming that 5 of the Voting Rights Act of 1965, as amended, 42 U.S. C. 1973c, required that the changes be precleared. A three-judge court held that preclearance was not required because the county was simply exercising, under the state statute, its "discretion to adjust [the procedure for appointing election judges] according to party power." App. to Juris. Statement 4a. The court apparently concluded that this "discretionary" use of political power meant that the various methods for selecting election judges were not covered changes under 5. The court also concluded that the Justice Department's preclearance of a 1985 submission from the State—the recodification of its entire election code—operated to preclear the county's use of partisan considerations in selecting election judges. The court denied injunctive relief, and later dismissed appellants' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Appellants have brought both of these rulings here. We believe that the decision of the District Court is inconsistent with our precedents. First, in we held that even "an administrative effort to comply with a statute that had already received clearance" may require separate preclearance, because 5 "reaches informal as well as formal changes." Thus, the fact that the county here was exercising its "discretion" pursuant to a state statute does not shield its actions from 5. The question is simply whether the county, by its actions, whether taken pursuant to a statute *981 or not, "enact[ed] or [sought] to administer any standard, practice, or procedure with respect to voting different from" the one in place on November 1, 1972. 5. The fact that the county's new procedures used political party affiliation as the selection criterion does not mean that the methods were exempt from preclearance. Second, the State's 1985 submission (the recodification and a 30-page summary of changes to the old law) indicated that the only change being made to the statute concerning election judges was a change to "the beginning date and duration of [their] appointment." Thus, neither the recodified statute nor the State's explanations said anything about the use of specific, partisan-affiliation methods for selecting election judges. This submission was clearly insufficient under our precedents to put the Justice Department on notice that the State was seeking preclearance of the use of partisan affiliations in selecting election judges. See, e. g., ; ; Because the parties agree that the record is silent as to the procedure used by Dallas County for appointing election judges as of November 1, 1972, the date on which Texas became a covered jurisdiction under the Voting Rights Act, we cannot make a final determination here as to whether preclearance is in fact required. We therefore vacate the judgment of the District Court in No. 96-1389, dismiss the appeal from the District Court's interlocutory judgment in No. 96— 987, see and remand the cases for further proceedings. It is so ordered.

Justice Thomas

concurring

Smith v. Doe

https://www.courtlistener.com/opinion/127899/smith-v-doe/

https://www.courtlistener.com/api/rest/v3/clusters/127899/

2002-030

I join the Court's opinion upholding the Alaska Sex Offender Registration Act (ASORA) against ex post facto challenge. I write separately, however, to reiterate that "there is no place for [an implementation-based] challenge" in our ex post facto jurisprudence. Seling v. Young, 531 U.S. 250, 273 (2001) (THOMAS, J., concurring in judgment). Instead, the determination whether a scheme is criminal or civil must be limited to the analysis of the obligations actually created by statute. See id., at 273-274 ("[T]o the extent that the conditions result from the fact that the statute is not being applied according to its terms, the conditions are not the effect of the statute, but rather the effect of its improper implementation"). As we have stated, the categorization of a proceeding as civil or criminal is accomplished by examining "the statute on its face." Hudson v. United States, 522 U.S. 93, 100 (1997) (internal quotation marks omitted). In this case, ASORA does not specify a means of making registry information available to the public. It states only that "[i]nformation about a sex offender ... that is contained in the central registry ... is confidential and not subject to public disclosure except as to the sex offender's ... name, aliases, address, photograph, physical description, description of motor vehicles, license numbers of motor vehicles, and vehicle identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a *107 statement as to whether the offender ... is in compliance with requirements of AS 12.63 or cannot be located." Alaska Stat. § 18.65.087(b) (2000). By considering whether Internet dissemination renders ASORA punitive, the Court has strayed from the statute. With this qualification, I concur. JUSTICE SOUTER, concurring in the judgment. I agree with the Court that Alaska's Sex Offender Registration Act does not amount to an ex post facto law. But the majority comes to that conclusion by a different path from mine, and I concur only in the judgment. As the Court says, our cases have adopted a two-step enquiry to see whether a law is punitive for purposes of various constitutional provisions including the Ex Post Facto Clause. At the first step in applying the so-called Kennedy-Ward test, we ask whether the legislature intended a civil or criminal consequence; at the second, we look behind the legislature's preferred classification to the law's substance, focusing on its purpose and effects. See United States v. Ward, 448 U.S. 242, 248-249 (1980); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963). We have said that "`only the clearest proof'" that a law is punitive based on substantial factors will be able to overcome the legislative categorization. Ward, supra, at 249 (quoting Flemming v. Nestor, 363 U.S. 603, 617 (1960)). I continue to think, however, that this heightened burden makes sense only when the evidence of legislative intent clearly points in the civil direction. See Hudson v. United States, 522 U.S. 93, 113-114 (1997) (SOUTER, J., concurring in judgment). This means that for me this is a close case, for I not only agree with the Court that there is evidence pointing to an intended civil characterization of the Act, but also see considerable evidence pointing the other way. The Act does not expressly designate the requirements imposed as "civil," a fact that itself makes this different from *108 our past cases, which have relied heavily on the legislature's stated label in finding a civil intent. See Hudson, supra, at 103; Kansas v. Hendricks, 521 U.S. 346, 361 (1997); Allen v. Illinois, 478 U.S. 364, 368 (1986). The placement of the Act in the State's code, another important indicator, see Hendricks, supra, at 361, also leaves matters in the air, for although the section establishing the registry is among the code's health and safety provisions, which are civil, see Alaska Stat. § 18.65.087 (2000), the section requiring registration occurs in the title governing criminal procedure, see § 12.63.010. What is more, the legislature made written notification of the requirement a necessary condition of any guilty plea, see Alaska Rule Crim. Proc. 11(c)(4) (2002), and, perhaps most significant, it mandated a statement of the requirement as an element of the actual judgment of conviction for covered sex offenses, see Alaska Stat. § 12.55.148 (2000); Alaska Rule Crim. Proc. 32(c) (2002). Finally, looking to enforcement, see Hudson, supra, at 103, offenders are obliged, at least initially, to register with state and local police, see §§ 12.63.010(b), (c), although the actual information so obtained is kept by the State's Department of Public Safety, a regulatory agency, see § 18.65.087(a). These formal facts do not force a criminal characterization, but they stand in the way of asserting that the statute's intended character is clearly civil. The substantial indicators relevant at step two of the Kennedy-Ward analysis likewise point in different directions. To start with purpose, the Act's legislative history shows it was designed to prevent repeat sex offenses and to aid the investigation of reported offenses. See 1994 Alaska Sess. Laws ch. 41, § 1; Brief for Petitioners 26, n. 13. Ensuring public safety is, of course, a fundamental regulatory goal, see, e. g., United States v. Salerno, 481 U.S. 739, 747 (1987), and this objective should be given serious weight in the analyses. But, at the same time, it would be naive to look no *109 further, given pervasive attitudes toward sex offenders, see infra this page and 110, n. See Weaver v. Graham, 450 U.S. 24, 29 (1981) (Ex Post Facto Clause was meant to prevent "arbitrary and potentially vindictive legislation"). The fact that the Act uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law's stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones. See Kennedy, supra, at 169. That argument can claim support, too, from the severity of the burdens imposed. Widespread dissemination of offenders' names, photographs, addresses, and criminal history serves not only to inform the public but also to humiliate and ostracize the convicts. It thus bears some resemblance to shaming punishments that were used earlier in our history to disable offenders from living normally in the community. See, e. g., Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880, 1913 (1991). While the Court accepts the State's explanation that the Act simply makes public information available in a new way, ante, at 99, the scheme does much more. Its point, after all, is to send a message that probably would not otherwise be heard, by selecting some conviction information out of its corpus of penal records and broadcasting it with a warning. Selection makes a statement, one that affects common reputation and sometimes carries harsher consequences, such as exclusion from jobs or housing, harassment, and physical harm.[*] *110 To me, the indications of punitive character stated above and the civil indications weighed heavily by the Court are in rough equipoise. Certainly the formal evidence of legislative intent does not justify requiring the "`clearest proof'" of penal substance in this case, see Hudson, 522 U. S., at 113-114 (SOUTER, J., concurring in judgment), and the substantial evidence does not affirmatively show with any clarity that the Act is valid. What tips the scale for me is the presumption of constitutionality normally accorded a State's law. That presumption gives the State the benefit of the doubt in close cases like this one, and on that basis alone I concur in the Court's judgment. JUSTICE STEVENS, dissenting in No. 01-729 and concurring in the judgment in No. 01-1231.[*] These two cases raise questions about statutes that impose affirmative obligations on convicted sex offenders. The question in No. 01-729 is whether the Alaska Sex Offender Registration Act is an ex post facto law, and in No. 01-1231 *111 it is whether Connecticut's similar law violates the Due Process Clause. The Court's opinions in both cases fail to decide whether the statutes deprive the registrants of a constitutionally protected interest in liberty. If no liberty interest were implicated, it seems clear that neither statute would raise a colorable constitutional claim. Cf. Meachum v. Fano, 427 U.S. 215 (1976). Proper analysis of both cases should therefore begin with a consideration of the impact of the statutes on the registrants' freedom. The statutes impose significant affirmative obligations and a severe stigma on every person to whom they apply. In Alaska, an offender who has served his sentence for a single, nonaggravated crime must provide local law enforcement authorities with extensive personal information — including his address, his place of employment, the address of his employer, the license plate number and make and model of any car to which he has access, a current photo, identifying features, and medical treatment — at least once a year for 15 years. If one has been convicted of an aggravated offense or more than one offense, he must report this same information at least quarterly for life. Moreover, if he moves, he has one working day to provide updated information. Registrants may not shave their beards, color their hair, change their employer, or borrow a car without reporting those events to the authorities. Much of this registration information is placed on the Internet. In Alaska, the registrant's face appears on a webpage under the label "Registered Sex Offender." His physical description, street address, employer address, and conviction information are also displayed on this page. The registration and reporting duties imposed on convicted sex offenders are comparable to the duties imposed on other convicted criminals during periods of supervised release or parole. And there can be no doubt that the "[w]idespread public access," ante, at 99 (opinion in No. 01-729), *112 to this personal and constantly updated information has a severe stigmatizing effect. See Brief for the Office of the Public Defender for the State of New Jersey et al. as Amici Curiae 7-21 (providing examples of threats, assaults, loss of housing, and loss of jobs experienced by sex offenders after their registration information was made widely available). In my judgment, these statutes unquestionably affect a constitutionally protected interest in liberty. Cf. Wisconsin v. Constantineau, 400 U.S. 433 (1971). It is also clear beyond peradventure that these unique consequences of conviction of a sex offense are punitive. They share three characteristics, which in the aggregate are not present in any civil sanction. The sanctions (1) constitute a severe deprivation of the offender's liberty, (2) are imposed on everyone who is convicted of a relevant criminal offense, and (3) are imposed only on those criminals. Unlike any of the cases that the Court has cited, a criminal conviction under these statutes provides both a sufficient and a necessary condition for the sanction. To be sure, there are cases in which we have held that it was not punishment and thus not a violation of the Ex Post Facto Clause to deny future privileges to individuals who were convicted of crimes. See, e. g., De Veau v. Braisted, 363 U.S. 144 (1960) (upholding prohibition of convicted felons from working for waterfront unions); Hawker v. New York, 170 U.S. 189 (1898) (upholding prohibition of doctors who had been convicted of a felony from practicing medicine). Those cases are distinguishable because in each the prior conviction was a sufficient condition for the imposition of the burden, but it was not a necessary one. That is, one may be barred from participation in a union because he has not paid fines imposed on him. See NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 191-192 (1967). And a doctor may not be permitted to practice medicine because she is no longer competent to do so. See, e.g., N. J. Stat. Ann. § 45:1-21 (West Supp. 2002). *113 Likewise, in Kansas v. Hendricks, 521 U.S. 346 (1997), the Court held that a law that permitted the civil commitment of persons who had committed or had been charged with a sexually violent offense was not an ex post facto law. But the fact that someone had been convicted was not sufficient to authorize civil commitment under Kansas law because Kansas required another proceeding to determine if such a person suffered from a "`mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.'" Id., at 352. Nor was the conviction even a necessary predicate for the commitment. See ibid. (Kansas' civil commitment procedures also applied to individuals charged with a sexually violent offense but found incompetent to stand for trial, or found not guilty by reason of insanity or by reason of mental disease or defect). While one might disagree in other respects with Hendricks, it is clear that a conviction standing alone did not make anyone eligible for the burden imposed by that statute. No matter how often the Court may repeat and manipulate multifactor tests that have been applied in wholly dissimilar cases involving only one or two of these three aspects of these statutory sanctions, it will never persuade me that the registration and reporting obligations that are imposed on convicted sex offenders and on no one else as a result of their convictions are not part of their punishment. In my opinion, a sanction that (1) is imposed on everyone who commits a criminal offense, (2) is not imposed on anyone else, and (3) severely impairs a person's liberty is punishment. It is therefore clear to me that the Constitution prohibits the addition of these sanctions to the punishment of persons who were tried and convicted before the legislation was enacted. As the Court recognizes, "recidivism is the statutory concern" that provides the supposed justification for the imposition of such retroactive punishment. Ante, at 105 (opinion in No. 01-729). That is the principal rationale that underlies the "three strikes" statute that the Court has upheld *114 in Ewing v. California, ante, p. 11. Reliance on that rationale here highlights the conclusion that the retroactive application of these statutes constitutes a flagrant violation of the protections afforded by the Double Jeopardy and Ex Post Facto Clauses of the Constitution. I think it equally clear, however, that the State may impose registration duties and may publish registration information as a part of its punishment of this category of defendants. Looking to the future, these aspects of their punishment are adequately justified by two of the traditional aims of punishment — retribution and deterrence. Moreover, as a matter of procedural fairness, Alaska requires its judges to include notice of the registration requirements in judgments imposing sentences on convicted sex offenders and in the colloquy preceding the acceptance of a plea of guilty to such an offense. See Alaska Rules Crim. Proc. 11(c)(4) and 32(c) (2002). Thus, I agree with the Court that these statutes are constitutional as applied to postenactment offenses. Accordingly, I would hold that the Alaska statute violates the constitutional prohibition on ex post facto laws. Because I believe registration and publication are a permissible component of the punishment for this category of crimes, however, for those convicted of offenses committed after the effective date of such legislation, there would be no separate procedural due process violation so long as a defendant is provided a constitutionally adequate trial. I therefore concur in the Court's disposition of the Connecticut case, No. 01-1231, and I respectfully dissent from its disposition of the Alaska case, No. 01-729.

I join the Court's opinion upholding the Alaska Sex Offender Registration Act (ASORA) against ex post facto challenge. I write separately, however, to reiterate that "there is no place for [an implementation-based] challenge" in our ex post facto jurisprudence. Instead, the determination whether a scheme is criminal or civil must be limited to the analysis of the obligations actually created by statute. See at -274 As we have stated, the categorization of a proceeding as civil or criminal is accomplished by examining "the statute on its face." In this case, ASORA does not specify a means of making registry information available to the public. It states only that "[i]nformation about a sex offender that is contained in the central registry is confidential and not subject to public disclosure except as to the sex offender's name, aliases, address, photograph, physical description, description of motor vehicles, license numbers of motor vehicles, and vehicle identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a *107 statement as to whether the offender is in compliance with requirements of AS 12.63 or cannot be located." (b) (2000). By considering whether Internet dissemination renders ASORA punitive, the Court has strayed from the statute. With this qualification, I concur. JUSTICE SOUTER, concurring in the judgment. I agree with the Court that Alaska's Sex Offender Registration Act does not amount to an ex post facto law. But the majority comes to that conclusion by a different path from mine, and I concur only in the judgment. As the Court says, our cases have adopted a two-step enquiry to see whether a law is punitive for purposes of various constitutional provisions including the Ex Post Facto Clause. At the first step in applying the so-called - test, we ask whether the legislature intended a civil or criminal consequence; at the second, we look behind the legislature's preferred classification to the law's substance, focusing on its purpose and effects. See United ; We have said that "`only the clearest proof'" that a law is punitive based on substantial factors will be able to overcome the legislative categorization. ). I continue to think, however, that this heightened burden makes sense only when the evidence of legislative intent clearly points in the civil direction. See This means that for me this is a close case, for I not only agree with the Court that there is evidence pointing to an intended civil characterization of the Act, but also see considerable evidence pointing the other way. The Act does not expressly designate the requirements imposed as "civil," a fact that itself makes this different from *108 our past cases, which have relied heavily on the legislature's stated label in finding a civil intent. See ; ; The placement of the Act in the State's code, another important indicator, see at also leaves matters in the air, for although the section establishing the registry is among the code's health and safety provisions, which are civil, see (2000), the section requiring registration occurs in the title governing criminal procedure, see 12.63.010. What is more, the legislature made written notification of the requirement a necessary condition of any guilty plea, see Alaska Rule Crim. Proc. 11(c)(4) (2002), and, perhaps most significant, it mandated a statement of the requirement as an element of the actual judgment of conviction for covered sex offenses, see Alaska Stat. 12.55.148 (2000); Alaska Rule Crim. Proc. 32(c) (2002). Finally, looking to enforcement, see offenders are obliged, at least initially, to register with state and local police, see 12.63.010(b), (c), although the actual information so obtained is kept by the State's Department of Public Safety, a regulatory agency, see 18.65.087(a). These formal facts do not force a criminal characterization, but they stand in the way of asserting that the statute's intended character is clearly civil. The substantial indicators relevant at step two of the - analysis likewise point in different directions. To start with purpose, the Act's legislative history shows it was designed to prevent repeat sex offenses and to aid the investigation of reported offenses. See 1994 Alaska Sess. Laws ch. 41, 1; Brief for Petitioners 26, n. 13. Ensuring public safety is, of course, a fundamental regulatory goal, see, e. g., United and this objective should be given serious weight in the analyses. But, at the same time, it would be naive to look no *109 further, given pervasive attitudes toward sex offenders, see infra this page and 110, n. See The fact that the Act uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law's stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones. See That argument can claim support, too, from the severity of the burdens imposed. Widespread dissemination of offenders' names, photographs, addresses, and criminal history serves not only to inform the public but also to humiliate and ostracize the convicts. It thus bears some resemblance to shaming punishments that were used earlier in our history to disable offenders from living normally in the community. See, e. g., Massaro, Shame, Culture, and American Criminal Law, While the Court accepts the State's explanation that the Act simply makes public information available in a new way, ante, at 99, the scheme does much more. Its point, after all, is to send a message that probably would not otherwise be heard, by selecting some conviction information out of its corpus of penal records and broadcasting it with a warning. Selection makes a statement, one that affects common reputation and sometimes carries harsher consequences, such as exclusion from jobs or housing, harassment, and physical harm.[*] *110 To me, the indications of punitive character stated above and the civil indications weighed heavily by the Court are in rough equipoise. Certainly the formal evidence of legislative intent does not justify requiring the "`clearest proof'" of penal substance in this case, see 522 U. S., at and the substantial evidence does not affirmatively show with any clarity that the Act is valid. What tips the scale for me is the presumption of constitutionality normally accorded a State's law. That presumption gives the State the benefit of the doubt in close cases like this one, and on that basis alone I concur in the Court's judgment. JUSTICE STEVENS, dissenting in No. 01-7 and concurring in the judgment in No. 01-1231.[*] These two cases raise questions about statutes that impose affirmative obligations on convicted sex offenders. The question in No. 01-7 is whether the Alaska Sex Offender Registration Act is an ex post facto law, and in No. 01-1231 *111 it is whether Connecticut's similar law violates the Due Process Clause. The Court's opinions in both cases fail to decide whether the statutes deprive the registrants of a constitutionally protected interest in liberty. If no liberty interest were implicated, it seems clear that neither statute would raise a colorable constitutional claim. Cf. Proper analysis of both cases should therefore begin with a consideration of the impact of the statutes on the registrants' freedom. The statutes impose significant affirmative obligations and a severe stigma on every person to whom they apply. In Alaska, an offender who has served his sentence for a single, nonaggravated crime must provide local law enforcement authorities with extensive personal information — including his address, his place of employment, the address of his employer, the license plate number and make and model of any car to which he has access, a current photo, identifying features, and medical treatment — at least once a year for 15 years. If one has been convicted of an aggravated offense or more than one offense, he must report this same information at least quarterly for life. Moreover, if he moves, he has one working day to provide updated information. Registrants may not shave their beards, color their hair, change their employer, or borrow a car without reporting those events to the authorities. Much of this registration information is placed on the Internet. In Alaska, the registrant's face appears on a webpage under the label "Registered Sex Offender." His physical description, street address, employer address, and conviction information are also displayed on this page. The registration and reporting duties imposed on convicted sex offenders are comparable to the duties imposed on other convicted criminals during periods of supervised release or parole. And there can be no doubt that the "[w]idespread public access," ante, at 99 (opinion in No. 01-7), *112 to this personal and constantly updated information has a severe stigmatizing effect. See Brief for the Office of the Public Defender for the State of New Jersey et al. as Amici Curiae 7-21 (providing examples of threats, assaults, loss of housing, and loss of jobs experienced by sex offenders after their registration information was made widely available). In my judgment, these statutes unquestionably affect a constitutionally protected interest in liberty. Cf. It is also clear beyond peradventure that these unique consequences of conviction of a sex offense are punitive. They share three characteristics, which in the aggregate are not present in any civil sanction. The sanctions (1) constitute a severe deprivation of the offender's liberty, (2) are imposed on everyone who is convicted of a relevant criminal offense, and (3) are imposed only on those criminals. Unlike any of the cases that the Court has cited, a criminal conviction under these statutes provides both a sufficient and a necessary condition for the sanction. To be sure, there are cases in which we have held that it was not punishment and thus not a violation of the Ex Post Facto Clause to deny future privileges to individuals who were convicted of crimes. See, e. g., De ; Those cases are distinguishable because in each the prior conviction was a sufficient condition for the imposition of the burden, but it was not a necessary one. That is, one may be barred from participation in a union because he has not paid fines imposed on him. See And a doctor may not be permitted to practice medicine because she is no longer competent to do so. See, e.g., N. J. Stat. Ann. 45:1-21 (West Supp. 2002). *113 Likewise, in the Court held that a law that permitted the civil commitment of persons who had committed or had been charged with a sexually violent offense was not an ex post facto law. But the fact that someone had been convicted was not sufficient to authorize civil commitment under Kansas law because Kansas required another proceeding to determine if such a person suffered from a "`mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.'" Nor was the conviction even a necessary predicate for the commitment. See While one might disagree in other respects with it is clear that a conviction standing alone did not make anyone eligible for the burden imposed by that statute. No matter how often the Court may repeat and manipulate multifactor tests that have been applied in wholly dissimilar cases involving only one or two of these three aspects of these statutory sanctions, it will never persuade me that the registration and reporting obligations that are imposed on convicted sex offenders and on no one else as a result of their convictions are not part of their punishment. In my opinion, a sanction that (1) is imposed on everyone who commits a criminal offense, (2) is not imposed on anyone else, and (3) severely impairs a person's liberty is punishment. It is therefore clear to me that the Constitution prohibits the addition of these sanctions to the punishment of persons who were tried and convicted before the legislation was enacted. As the Court recognizes, "recidivism is the statutory concern" that provides the supposed justification for the imposition of such retroactive punishment. Ante, at 105 (opinion in No. 01-7). That is the principal rationale that underlies the "three strikes" statute that the Court has upheld *114 in Ewing v. California, ante, p. 11. Reliance on that rationale here highlights the conclusion that the retroactive application of these statutes constitutes a flagrant violation of the protections afforded by the Double Jeopardy and Ex Post Facto Clauses of the Constitution. I think it equally clear, however, that the State may impose registration duties and may publish registration information as a part of its punishment of this category of defendants. Looking to the future, these aspects of their punishment are adequately justified by two of the traditional aims of punishment — retribution and deterrence. Moreover, as a matter of procedural fairness, Alaska requires its judges to include notice of the registration requirements in judgments imposing sentences on convicted sex offenders and in the colloquy preceding the acceptance of a plea of guilty to such an offense. See Alaska Rules Crim. Proc. 11(c)(4) and 32(c) (2002). Thus, I agree with the Court that these statutes are constitutional as applied to postenactment offenses. Accordingly, I would hold that the Alaska statute violates the constitutional prohibition on ex post facto laws. Because I believe registration and publication are a permissible component of the punishment for this category of crimes, however, for those convicted of offenses committed after the effective date of such legislation, there would be no separate procedural due process violation so long as a defendant is provided a constitutionally adequate trial. I therefore concur in the Court's disposition of the Connecticut case, No. 01-1231, and I respectfully dissent from its disposition of the Alaska case, No. 01-7.

Justice Marshall

dissenting

Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp.

https://www.courtlistener.com/opinion/112342/pavelic-leflore-v-marvel-entertainment-group-div-of-cadence-industries/

https://www.courtlistener.com/api/rest/v3/clusters/112342/

1989-010

We have consistently held that a trial judge bears the primary responsibility for managing the cases before him. One of the fundamental purposes of Rule 11 is to strengthen the hand of the trial judge in his efforts to police abusive litigation practices and to provide him sufficient flexibility to craft penalties appropriate to each case. The Court's interpretation of Rule 11, in contrast, is overly restrictive, as it reads into the Rule an absolute immunity for law firms from any sanction for their misconduct. Although the Court recognizes that the relevant phrase in Rule 11 — "the person who signed" the pleading, motion, or paper at issue — could mean a juridical person on whose behalf *128 the document is signed, ante, at 124, it nonetheless finds that the phrase has a more limited meaning in the context of the Rule as a whole. As I cannot acquiesce in such an unnecessary erosion of the discretion of federal trial judges, I dissent. The Court's reading of the "plain meaning" of Rule 11 is based entirely on the connection it perceives between the language at the beginning of the Rule, which refers to an individual " `signer,' " and the crucial language in the last sentence, which allows a court to impose sanctions on " `the person who signed' " a pleading or paper. Ante, at 123-124. Although the text of the Rule does not foreclose the reading the Court finds compelling, that interpretation is by no means the only reasonable one — and certainly is not required by the "plain meaning." Significantly, in three separate places the Rule identifies the person signing a document as the "signer." Yet it uses an entirely different phrase, "the person who signed" the pleading, in its listing of parties who may be sanctioned for violations, thereby drawing an explicit distinction between the two phrases. If the drafters had intended to limit the entity that could be sanctioned under the Rule to the individual signer, they easily could have repeated the word "signer" a fourth time. The use of different phrases may reasonably be viewed as an indication of two different meanings. In the case of "signer," the drafters unambiguously sought to refer to the individual who actually signed the document; in their subsequent use of the phrase "the person who signed," the drafters may have signaled their intent to allow a court to impose sanctions on any juridical person, including the law firm of the individual signer. In the context of the Federal Rules of Civil Procedure, drafted by a committee familiar with traditional legal concepts, one can reasonably assume that the word "person" indicates more than just natural persons, encompassing partnerships and professional corporations as well. See, e. g., 5 U.S. C. § 551(2) (Administrative Procedure Act defines *129 "person" as an "individual, partnership, corporation, association, or public or private organization other than an agency"); N. Y. Partnership Law § 2 (McKinney 1988) (defining "person" to include "individuals, partnerships, corporations, and other associations"). At the least, an interpretation of Rule 11 that gives "person" its legal meaning is no less plausible than the majority's more restrictive reading of the Rule. The purposes of the Rule support this construction of Rule 11. All pleadings, motions, and papers must be signed by an attorney in his individual name. This requirement serves in part the administrative goal of identifying for the court one person who can answer questions about the papers. Because Rule 11 proceedings often occur at the end of litigation, see Advisory Committee's Notes on Fed. Rule Civ. Proc. 11, 28 U.S. C. App., p. 129 (1982 ed., Supp. V), it will often be crucial that the relevant documents, which may have been filed months or even years earlier, identify a specific individual with knowledge of their contents. No such administrative concerns suggest that the phrase "the person who signed" the paper should be restricted to an individual. Furthermore, as the majority emphasizes, ante, at 126, the requirement of an individual signer promotes a measure of individual accountability by ensuring that someone takes direct responsibility for each filing. Yet encouraging individual accountability and firm accountability are not mutually exclusive goals. Indeed, individual accountability may be heightened when an attorney understands that his carelessness or maliciousness may subject both himself and his firm to liability. The concern that a person take direct responsibility for each paper is not disserved by holding the law firm responsible in cases where the district court determines that both are blameworthy. In short, it is not internally inconsistent, nor does it inevitably lead to "puzzling" results, ante, at 125, to allow a trial judge the discretion to impose sanctions on a law firm, a juridical person, for which a signing attorney acts as agent. *130 The policies underlying Rule 11 decisively indicate that "person" should be interpreted broadly so that a court can effectively exercise discretion in formulating appropriate sanctions. Although, as the majority infers from the Rule's text, one purpose of Rule 11 may be "to bring home" to the individual signer his personal responsibility for complying with its dictates, ante, at 126, the Rule is explicitly designed to deter improper pleadings, motions, and papers. Advisory Committee's Notes on Fed. Rule Civ. Proc. 11, 28 U.S. C. App., p. 129 (1982 ed., Supp. V) ("The word `sanctions' in the caption. . . stresses a deterrent orientation in dealing with improper pleadings"). Admittedly, in some cases, sanctions imposed solely on the individual signer may halt abusive practices most effectively. In other cases, however, deterrence might best be served by imposing sanctions on the signer's law firm in an attempt to encourage internal monitoring. The trial judge is in the best position to assess the dynamics of each situation and to act accordingly. Recognizing the need to tailor the sanction to each particular situation, the Advisory Committee emphasized in a related context the need for "flexibility" in dealing with violations. See ibid. (discussing the effect of the words "shall impose" on the trial court's discretion to impose sanctions). Flexibility is no less important when a judge decides whether one, some, or all of the many entities before him should be held responsible for improper pleadings, motions, or papers. Where, as here, the Rule itself does not demand rigidity, it is unwise for the Court to constrict the options available to a trial judge faced with a violation of Rule 11. The judge who observes improper behavior and who is intimately familiar with the facts of a case should be allowed to fashion the penalty that most effectively deters future abuse. Today's decision unwisely ties the hands of trial judges who must deal frequently and immediately with Rule 11 violations and ill serves the goal of administering that Rule justly and efficiently. See Fed. Rule Civ. Proc. 1. *131 The District Court apportioned the sanction here between the signing attorney and his law firm, based on its assessment of the relative culpability of each. Calloway v. Marvel Entertainment Group, Div. of Cadence Industries Corp., 650 F. Supp. 684 (SDNY 1986). I firmly believe that this sort of penalty is precisely what Rule 11 contemplates. I therefore cannot join the Court's reading of the Rule which creates an immunity for law firms from its coverage

We have consistently held that a trial judge bears the primary responsibility for managing the cases before him. One of the fundamental purposes of Rule 11 is to strengthen the hand of the trial judge in his efforts to police abusive litigation practices and to provide him sufficient flexibility to craft penalties appropriate to each case. The Court's interpretation of Rule 11, in contrast, is overly restrictive, as it reads into the Rule an absolute immunity for law firms from any sanction for their misconduct. Although the Court recognizes that the relevant phrase in Rule 11 — "the person who signed" the pleading, motion, or paper at issue — could mean a juridical person on whose behalf *128 the document is signed, ante, at 124, it nonetheless finds that the phrase has a more limited meaning in the context of the Rule as a whole. As I cannot acquiesce in such an unnecessary erosion of the discretion of federal trial judges, I dissent. The Court's reading of the "plain meaning" of Rule 11 is based entirely on the connection it perceives between the language at the beginning of the Rule, which refers to an individual " `signer,' " and the crucial language in the last sentence, which allows a court to impose sanctions on " `the person who signed' " a pleading or paper. Ante, at 123-124. Although the text of the Rule does not foreclose the reading the Court finds compelling, that interpretation is by no means the only reasonable one — and certainly is not required by the "plain meaning." Significantly, in three separate places the Rule identifies the person signing a document as the "signer." Yet it uses an entirely different phrase, "the person who signed" the pleading, in its listing of parties who may be sanctioned for violations, thereby drawing an explicit distinction between the two phrases. If the drafters had intended to limit the entity that could be sanctioned under the Rule to the individual signer, they easily could have repeated the word "signer" a fourth time. The use of different phrases may reasonably be viewed as an indication of two different meanings. In the case of "signer," the drafters unambiguously sought to refer to the individual who actually signed the document; in their subsequent use of the phrase "the person who signed," the drafters may have signaled their intent to allow a court to impose sanctions on any juridical person, including the law firm of the individual signer. In the context of the Federal Rules of Civil Procedure, drafted by a committee familiar with traditional legal concepts, one can reasonably assume that the word "person" indicates more than just natural persons, encompassing partnerships and professional corporations as well. See, e. g., 5 U.S. C. 551(2) (Administrative Procedure Act defines *129 "person" as an "individual, partnership, corporation, association, or public or private organization other than an agency"); N. Y. Partnership Law 2 (McKinney 1988) (defining "person" to include "individuals, partnerships, corporations, and other associations"). At the least, an interpretation of Rule 11 that gives "person" its legal meaning is no less plausible than the majority's more restrictive reading of the Rule. The purposes of the Rule support this construction of Rule 11. All pleadings, motions, and papers must be signed by an attorney in his individual name. This requirement serves in part the administrative goal of identifying for the court one person who can answer questions about the papers. Because Rule 11 proceedings often occur at the end of litigation, see Advisory Committee's Notes on Fed. Rule Civ. Proc. 11, 28 U.S. C. App., p. 129 (1982 ed., Supp. V), it will often be crucial that the relevant documents, which may have been filed months or even years earlier, identify a specific individual with knowledge of their contents. No such administrative concerns suggest that the phrase "the person who signed" the paper should be restricted to an individual. Furthermore, as the majority emphasizes, ante, at 126, the requirement of an individual signer promotes a measure of individual accountability by ensuring that someone takes direct responsibility for each filing. Yet encouraging individual accountability and firm accountability are not mutually exclusive goals. Indeed, individual accountability may be heightened when an attorney understands that his carelessness or maliciousness may subject both himself and his firm to liability. The concern that a person take direct responsibility for each paper is not disserved by holding the law firm responsible in cases where the district court determines that both are blameworthy. In short, it is not internally inconsistent, nor does it inevitably lead to "puzzling" results, ante, at 125, to allow a trial judge the discretion to impose sanctions on a law firm, a juridical person, for which a signing attorney acts as agent. *130 The policies underlying Rule 11 decisively indicate that "person" should be interpreted broadly so that a court can effectively exercise discretion in formulating appropriate sanctions. Although, as the majority infers from the Rule's text, one purpose of Rule 11 may be "to bring home" to the individual signer his personal responsibility for complying with its dictates, ante, at 126, the Rule is explicitly designed to deter improper pleadings, motions, and papers. Advisory Committee's Notes on Fed. Rule Civ. Proc. 11, 28 U.S. C. App., p. 129 (1982 ed., Supp. V) ("The word `sanctions' in the caption. stresses a deterrent orientation in dealing with improper pleadings"). Admittedly, in some cases, sanctions imposed solely on the individual signer may halt abusive practices most effectively. In other cases, however, deterrence might best be served by imposing sanctions on the signer's law firm in an attempt to encourage internal monitoring. The trial judge is in the best position to assess the dynamics of each situation and to act accordingly. Recognizing the need to tailor the sanction to each particular situation, the Advisory Committee emphasized in a related context the need for "flexibility" in dealing with violations. See Flexibility is no less important when a judge decides whether one, some, or all of the many entities before him should be held responsible for improper pleadings, motions, or papers. Where, as here, the Rule itself does not demand rigidity, it is unwise for the Court to constrict the options available to a trial judge faced with a violation of Rule 11. The judge who observes improper behavior and who is intimately familiar with the facts of a case should be allowed to fashion the penalty that most effectively deters future abuse. Today's decision unwisely ties the hands of trial judges who must deal frequently and immediately with Rule 11 violations and ill serves the goal of administering that Rule justly and efficiently. See Fed. Rule Civ. Proc. 1. *131 The District Court apportioned the sanction here between the signing attorney and his law firm, based on its assessment of the relative culpability of each. I firmly believe that this sort of penalty is precisely what Rule 11 contemplates. I therefore cannot join the Court's reading of the Rule which creates an immunity for law firms from its coverage

Justice Stevens

concurring

Maggio v. Williams

https://www.courtlistener.com/opinion/111046/maggio-v-williams/

https://www.courtlistener.com/api/rest/v3/clusters/111046/

1983-006

In my opinion the application to vacate the stay raises a serious question about the propriety of the prosecutor's argument to the jury at the sentencing phase of respondent's trial. In that argument the prosecutor sought to minimize the jury's responsibility for imposing a death sentence by implying that the verdict was merely a threshold determination that would be corrected by the appellate courts if it were not the proper sentence for this offender. I quote some of that argument: *53 "I want to read you some laws because something they [the defense] said, don't sentence this man to death, don't kill this man. You see, you have the last word on the verdict, and it but, by far you don't have the last word on it if you return it. The Louisiana Supreme Court has enacted a series of statutes that I want to read to you. What happens if you return a death penalty in this case. Because the law that's set up is very exacting, detailed and complicated procedure for a review of this court, the Louisiana Supreme Court, and other courts before any death penalty can be imposed. The law states, 905.9, Review on Appeal, The Supreme Court of Louisiana shall review of every sentence of death to determine if it is excessive. The Court, by rule, shall establish such procedures as necessary to satisfy constitutional criteria for review. And, then the statute, they enact it. See, not necessarily, it's mandatory that the Supreme Court review it. There's seven judges on the Supreme Court. The highest judges in this state. For it to be upheld, four of them will have to approve it. Well, what do they review? They state that every sentence of death shall be reviewed by this court to determine if it is excessive, and in determining whether the sentence is excessive, the court shall determine. A. Whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors. If they decide it was, they can reverse it and order a life sentence to be imposed. Whether the evidence supports the jury's findings of a statutory aggravating circumstance. If they find it didn't, they can reverse it and order a life sentence. Where the sentence is disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. If they don't think the crime was heinous enough, they can reverse it and order a life sentence. If they don't think this defendant — if they think the crime was heinous *54 enough and the statutory circumstances were proved but they don't think it ought to be applied to this defendant, they can reverse it and order a life sentence. Whenever the death penalty is imposed, a verbation [sic] transcript of the sentence hearing along with the record required on appeal shall be transferred to the Court. They review everything that went on in this trial. . . . And there is a total and complete investigation done on the defendant to determine whether or not they will let your decision to impose the death penalty stand. And only then does it make it through the Louisiana State Supreme Court, and the defendant has a right, if he wishes — I'm not saying that it's granted in every case. It could be denied. It could be appealed all the way through the United States Supreme Court. ..... "But more important, what is this verdict going to mean? You see, you represent a certain segment of our society, law abiding people, raising families, working for a living, not robbing stores. You're the people that set the standards in this community. The Justices of the Supreme Court will review, and determine their decision whether or not if you decide to give him the death penalty, whether or not you were correct or not, but you see, — it use [sic] to be one." Tr. 290-292, 296 (emphasis supplied). In my view, this argument encouraged the jury to err on the side of imposing the death sentence in order to "send a message" since such an error would be corrected on appeal (while a life sentence could not). I do not believe that argument accurately described the function of appellate review in Louisiana. The Louisiana Supreme Court does not review "everything" that occurred during the trial. If it finds that one aggravating factor supported the jury's verdict, it will not consider the defendant's claim that the jury improperly *55 relied upon other aggravating factors in reaching its verdict. See State v. James, 431 So. 2d 399, 405-406 (La.), cert. denied, post, p. 908. That rule was applied by the Louisiana Supreme Court in this very case. See State v. Williams, 383 So. 2d 369, 374 (La. 1980), cert. denied, 449 U.S. 1103 (1981). While that limitation on appellate review is constitutionally permissible in the context of Louisiana's death penalty statute, see Zant v. Stephens, 462 U.S. 862 (1983), given the state-law premises of Louisiana's capital punishment scheme, see James, supra, at 406, it certainly is a more limited form of appellate review than that described by the prosecutor. In my opinion, the argument was prejudicial to the accused, both because it appears to have misstated the law and because it may have led the jury to discount its grave responsibility in determining the defendant's fate. A prosecutor should never invite a jury to err because the error may be corrected on appeal. That is especially true when the death penalty is at stake. Nevertheless, because the essence of this issue was raised in prior proceedings questioning the competency of trial counsel — who failed to object to the argument when it was made — the Court is justified in applying a strict standard of review to this second federal habeas corpus application. See Sanders v. United States, 373 U.S. 1, 15-17 (1963). I do not find an adequate justification for respondent's failure to raise this argument in his earlier federal habeas action. Since respondent did raise the related argument of ineffectiveness of counsel, he was no doubt aware of this argument and may have deliberately chosen not to raise it in the first habeas corpus petition. See Barefoot v. Estelle, 463 U.S. 880, 895 (1983); Rose v. Lundy, 455 U.S. 509, 520-521 (1982) (plurality opinion); Fay v. Noia, 372 U.S. 391, 438-440 (1963); Townsend v. Sain, 372 U.S. 293, 317 (1963). Moreover, since competent counsel failed to object to the argument at the trial itself, thereby failing to avail himself of the usual *56 procedure for challenging this type of constitutional error, I question whether it can be said that this trial was fundamentally unfair. See Rose v. Lundy, supra, at 543, and n. 8 (STEVENS, J., dissenting). Accordingly, though not without misgivings, I concur in the Court's decision to vacate the stay.

In my opinion the application to vacate the stay raises a serious question about the propriety of the prosecutor's argument to the jury at the sentencing phase of respondent's trial. In that argument the prosecutor sought to minimize the jury's responsibility for imposing a death sentence by implying that the verdict was merely a threshold determination that would be corrected by the appellate courts if it were not the proper sentence for this offender. I quote some of that argument: *53 "I want to read you some laws because something they [the defense] said, don't sentence this man to death, don't kill this man. You see, you have the last word on the verdict, and it but, by far you don't have the last word on it if you return it. The Louisiana Supreme Court has enacted a series of statutes that I want to read to you. What happens if you return a death penalty in this case. Because the law that's set up is very exacting, detailed and complicated procedure for a review of this court, the Louisiana Supreme Court, and other courts before any death penalty can be imposed. The law states, 905.9, Review on Appeal, The Supreme Court of Louisiana shall review of every sentence of death to determine if it is excessive. The Court, by rule, shall establish such procedures as necessary to satisfy constitutional criteria for review. And, then the statute, they enact it. See, not necessarily, it's mandatory that the Supreme Court review it. There's seven judges on the Supreme Court. The highest judges in this state. For it to be upheld, four of them will have to approve it. Well, what do they review? They state that every sentence of death shall be reviewed by this court to determine if it is excessive, and in determining whether the sentence is excessive, the court shall determine. A. Whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors. If they decide it was, they can reverse it and order a life sentence to be imposed. Whether the evidence supports the jury's findings of a statutory aggravating circumstance. If they find it didn't, they can reverse it and order a life sentence. Where the sentence is disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. If they don't think the crime was heinous enough, they can reverse it and order a life sentence. If they don't think this defendant — if they think the crime was heinous *54 enough and the statutory circumstances were proved but they don't think it ought to be applied to this defendant, they can reverse it and order a life sentence. Whenever the death penalty is imposed, a verbation [sic] transcript of the sentence hearing along with the record required on appeal shall be transferred to the Court. They review everything that went on in this trial. And there is a total and complete investigation done on the defendant to determine whether or not they will let your decision to impose the death penalty stand. And only then does it make it through the Louisiana State Supreme Court, and the defendant has a right, if he wishes — I'm not saying that it's granted in every case. It could be denied. It could be appealed all the way through the United States Supreme Court. "But more important, what is this verdict going to mean? You see, you represent a certain segment of our society, law abiding people, raising families, working for a living, not robbing stores. You're the people that set the standards in this community. The Justices of the Supreme Court will review, and determine their decision whether or not if you decide to give him the death penalty, whether or not you were correct or not, but you see, — it use [sic] to be one." Tr. 290-292, 296 (emphasis supplied). In my view, this argument encouraged the jury to err on the side of imposing the death sentence in order to "send a message" since such an error would be corrected on appeal (while a life sentence could not). I do not believe that argument accurately described the function of appellate review in Louisiana. The Louisiana Supreme Court does not review "everything" that occurred during the trial. If it finds that one aggravating factor supported the jury's verdict, it will not consider the defendant's claim that the jury improperly *55 relied upon other aggravating factors in reaching its verdict. See (La.), cert. denied, post, p. 908. That rule was applied by the Louisiana Supreme Court in this very case. See cert. denied, While that limitation on appellate review is constitutionally permissible in the context of Louisiana's death penalty statute, see given the state-law premises of Louisiana's capital punishment scheme, see it certainly is a more limited form of appellate review than that described by the prosecutor. In my opinion, the argument was prejudicial to the accused, both because it appears to have misstated the law and because it may have led the jury to discount its grave responsibility in determining the defendant's fate. A prosecutor should never invite a jury to err because the error may be corrected on appeal. That is especially true when the death penalty is at stake. Nevertheless, because the essence of this issue was raised in prior proceedings questioning the competency of trial counsel — who failed to object to the argument when it was made — the Court is justified in applying a strict standard of review to this second federal habeas corpus application. See I do not find an adequate justification for respondent's failure to raise this argument in his earlier federal habeas action. Since respondent did raise the related argument of ineffectiveness of counsel, he was no doubt aware of this argument and may have deliberately chosen not to raise it in the first habeas corpus petition. See ; ; ; Moreover, since competent counsel failed to object to the argument at the trial itself, thereby failing to avail himself of the usual *56 procedure for challenging this type of constitutional error, I question whether it can be said that this trial was fundamentally unfair. See and n. 8 (STEVENS, J., dissenting). Accordingly, though not without misgivings, I concur in the Court's decision to vacate the stay.

Justice Ginsburg

majority

Bravo-Fernandez v. United States

https://www.courtlistener.com/opinion/4325538/bravo-fernandez-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4325538/

2016-016

This case concerns the issue-preclusion component of the Double Jeopardy Clause.1 In criminal prosecutions, as in civil litigation, the issue-preclusion principle means that “when an issue of ultimate fact has once been deter­ mined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 (1970). Does issue preclusion apply when a jury returns incon­ sistent verdicts, convicting on one count and acquitting on another count, where both counts turn on the very same issue of ultimate fact? In such a case, this Court has held, both verdicts stand. The Government is barred by the Double Jeopardy Clause from challenging the acquittal, —————— 1 The parties use the expression “collateral estoppel component,” but as this Court has observed, “issue preclusion” is the more descriptive term. Yeager v. United States, 557 U.S. 110, 120, n. 4 (2009); see Restatement (Second) of Judgments §27, Comment b, pp. 251–252 (1980). 2 BRAVO-FERNANDEZ v. UNITED STATES Opinion of the Court see Green v. United States, 355 U.S. 184, 188 (1957), but because the verdicts are rationally irreconcilable, the acquittal gains no preclusive effect, United States v. Pow- ell, 469 U.S. 57, 68 (1984). Does issue preclusion attend a jury’s acquittal verdict if the same jury in the same proceeding fails to reach a verdict on a different count turning on the same critical issue? This Court has answered yes, in those circum­ stances, the acquittal has preclusive force. Yeager v. United States, 557 U.S. 110, 121–122 (2009). As “there is no way to decipher what a hung count represents,” we reasoned, a jury’s failure to decide “has no place in the issue-preclusion analysis.” Ibid.; see id., at 125 (“[T]he fact that a jury hangs is evidence of nothing—other than, of course, that it has failed to decide anything.”). In the case before us, the jury returned irreconcilably inconsistent verdicts of conviction and acquittal. Without more, Powell would control. There could be no retrial of charges that yielded acquittals but, in view of the incon­ sistent verdicts, the acquittals would have no issue­ preclusive effect on charges that yielded convictions. In this case, however, unlike Powell, the guilty verdicts were vacated on appeal because of error in the judge’s instruc­ tions unrelated to the verdicts’ inconsistency. Petitioners urge that, just as a jury’s failure to decide has no place in issue-preclusion analysis, so vacated guilty verdicts should not figure in that analysis. We hold otherwise. One cannot know from the jury’s report why it returned no verdict. “A host of reasons” could account for a jury’s failure to decide—“sharp dis­ agreement, confusion about the issues, exhaustion after a long trial, to name but a few.” Yeager, 557 U.S., at 121. But actual inconsistency in a jury’s verdicts is a reality; vacatur of a conviction for unrelated legal error does not reconcile the jury’s inconsistent returns. We therefore bracket this case with Powell, not Yeager, and affirm the Cite as: 580 U. S. ____ (2016) 3 Opinion of the Court judgment of the Court of Appeals, which held that issue preclusion does not apply when verdict inconsistency renders unanswerable “what the jury necessarily decided.” 790 F.3d 41, 47 (CA1 2015). I A The doctrine of claim preclusion instructs that a final judgment on the merits “foreclos[es] successive litigation of the very same claim.” New Hampshire v. Maine, 532 U.S. 742, 748 (2001); see Restatement (Second) of Judg­ ments §19, p. 161 (1980) (hereinafter Restatement). So instructing, the doctrine serves to “avoid multiple suits on identical entitlements or obligations between the same parties.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4402, p. 9 (2d ed. 2002) (herein­ after Wright & Miller). Long operative in civil litigation, Restatement, at 2, claim preclusion is also essential to the Constitution’s prohibition against successive criminal prosecutions. No person, the Double Jeopardy Clause states, shall be “subject for the same offense to be twice put in jeopardy of life or limb.” Amdt. 5. The Clause “protects against a second prosecution for the same offense after conviction”; as well, “[i]t protects against a second prosecution for the same offense after acquittal.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969). “[A] verdict of acquittal [in our justice system] is final,” the last word on a criminal charge, and therefore operates as “a bar to a subsequent prosecution for the same offense.” Green v. United States, 355 U.S. 184, 188 (1957). The allied doctrine of issue preclusion ordinarily bars relitigation of an issue of fact or law raised and necessarily resolved by a prior judgment. See Restatement §§17, 27, at 148, 250; Wright & Miller §4416, at 386. It applies in both civil and criminal proceedings, with an important distinction. In civil litigation, where issue preclusion and 4 BRAVO-FERNANDEZ v. UNITED STATES Opinion of the Court its ramifications first developed, the availability of appel­ late review is a key factor. Restatement §28, Comment a, at 274; see id., §28, Reporter’s Note, at 284 (noting “the pervasive importance of reviewability in the application of preclusion doctrine”). In significant part, preclusion doc­ trine is premised on “an underlying confidence that the result achieved in the initial litigation was substantially correct.” Standefer v. United States, 447 U.S. 10, 23, n. 18 (1980); see Restatement §29, Comment f, at 295. “In the absence of appellate review,” we have observed, “such confidence is often unwarranted.” Standefer, 447 U.S., at 23, n. 18. In civil suits, inability to obtain review is exceptional; it occurs typically when the controversy has become moot. In criminal cases, however, only one side (the defendant) has recourse to an appeal from an adverse judgment on the merits. The Government “cannot secure appellate review” of an acquittal, id., at 22, even one “based upon an egregiously erroneous foundation,” Arizona v. Washington, 434 U.S. 497, 503 (1978). Juries enjoy an “unreviewable power . . . to return a verdict of not guilty for impermissi­ ble reasons,” for “the Government is precluded from ap­ pealing or otherwise upsetting such an acquittal by the Constitution’s Double Jeopardy Clause.” United States v. Powell, 469 U.S. 57, 63, 65 (1984). The absence of appel­ late review of acquittals, we have cautioned, calls for guarded application of preclusion doctrine in criminal cases. See Standefer, 447 U.S., at 22–23, and n. 18. Particularly where it appears that a jury’s verdict is the result of compromise, compassion, lenity, or misunder­ standing of the governing law, the Government’s inability to gain review “strongly militates against giving an ac­ quittal [issue] preclusive effect.” Id., at 23. See also Re­ statement §29, Comment g, at 295 (Where circumstances suggest that an issue was resolved on erroneous consider­ ations, “taking the prior determination at face value for Cite as: 580 U. S. ____ (2016) 5 Opinion of the Court purposes of the second action would [impermissibly] ex­ tend the . . . imperfections in the adjudicative process.”); id., §28, Comment j, at 283 (Issue preclusion may be de­ nied where it is “evident from the jury’s verdict that the verdict was the result of compromise.”); Wright & Miller §4423, at 617 (same). B This case requires us to determine whether an appellate court’s vacatur of a conviction alters issue-preclusion analysis under the Double Jeopardy Clause. Three prior decisions guide our disposition. This Court first interpreted the Double Jeopardy Clause to incorporate the principle of issue preclusion in Ashe v. Swenson, 397 U.S. 436 (1970).2 Ashe involved a robbery of six poker players by a group of masked men. Ashe was charged with robbing one of the players, but a jury acquit­ ted him “due to insufficient evidence.” Id., at 439. The State then tried Ashe again, this time for robbing another of the poker players. Aided by “substantially stronger” testimony from “witnesses [who] were for the most part the same,” id., at 439–440, the State secured a conviction. We held that the second prosecution violated the Double Jeopardy Clause. Because the sole issue in dispute in the first trial was whether Ashe had been one of the robbers, the jury’s acquittal verdict precluded the State from trying to convince a different jury of that very same fact in a second trial. Id., at 445. —————— 2 Though we earlier recognized that res judicata (which embraces both claim and issue preclusion) applies in criminal as well as civil proceedings, we did not link the issue-preclusion inquiry to the Double Jeopardy Clause. See Sealfon v. United States, 332 U.S. 575, 578 (1948); Frank v. Mangum, 237 U.S. 309, 334 (1915) (The principle that “a question of fact or of law distinctly put in issue and directly deter­ mined by a court of competent jurisdiction cannot afterwards be dis­ puted between the same parties” applies to “the decisions of criminal courts.”). 6 BRAVO-FERNANDEZ v. UNITED STATES Opinion of the Court Our decision in Ashe explained that issue preclusion in criminal cases must be applied with “realism and rational­ ity.” Id., at 444. To identify what a jury in a previous trial necessarily decided, we instructed, a court must “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter.” Ibid. (quoting Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L. Rev. 1, 38 (1960)). This inquiry, we explained, “must be set in a practical frame and viewed with an eye to all the circum­ stances of the proceedings.” 397 U.S., at 444 (quoting Sealfon v. United States, 332 U.S. 575, 579 (1948)). We have also made clear that “[t]he burden is on the defend­ ant to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided” by a prior jury’s verdict of acquittal. Schiro v. Farley, 510 U.S. 222, 233 (1994) (internal quotation marks omitted); accord Dowling v. United States, 493 U.S. 342, 350 (1990). In United States v. Powell, 469 U.S. 57, we held that a defendant cannot meet this burden when the same jury returns irreconcilably inconsistent verdicts on the ques­ tion she seeks to shield from reconsideration. Powell’s starting point was our holding in Dunn v. United States, 284 U.S. 390 (1932), that a criminal defendant may not attack a jury’s finding of guilt on one count as inconsistent with the jury’s verdict of acquittal on another count. Powell, 469 U.S., at 58–59. The Court’s opinion in Dunn stated no exceptions to this rule, and after Dunn the Court had several times “alluded to [the] rule as an established principle,” 469 U.S., at 63. Nevertheless, several Courts of Appeals had “recogniz[ed] exceptions to the rule,” id., at 62, and Powell sought an exception for the verdicts of guilt she faced. At trial, a jury had acquitted Powell of various substan­ tive drug charges but convicted her of using a telephone in “causing and facilitating” those same offenses. Id., at 59– Cite as: 580 U. S. ____ (2016) 7 Opinion of the Court 60. She appealed, arguing that “the verdicts were incon­ sistent, and that she therefore was entitled to reversal of the telephone facilitation convictions.” Id., at 60. Issue preclusion, she maintained, barred “acceptance of [the] guilty verdict[s]” on the auxiliary offenses because the same jury had acquitted her of the predicate felonies. Id., at 64. Rejecting Powell’s argument, we noted that issue pre­ clusion is “predicated on the assumption that the jury acted rationally.” Id., at 68. When a jury returns irrecon­ cilably inconsistent verdicts, we said, one can glean no more than that “either in the acquittal or the conviction the jury did not speak their real conclusions.” Id., at 64 (quoting Dunn, 284 U.S., at 393). Although it is impos­ sible to discern which verdict the jurors arrived at ration­ ally, we observed, “that does not show that they were not convinced of the defendant’s guilt.” Powell, 469 U.S., at 64–65 (quoting Dunn, 284 U.S., at 393). In the event of inconsistent verdicts, we pointed out, it is just as likely that “the jury, convinced of guilt, properly reached its conclusion on [one count], and then through mistake, compromise, or lenity, arrived at an inconsistent conclu­ sion on the [related] offense.” Powell, 469 U.S., at 65. Because a court would be at a loss to know which verdict the jury “really meant,” we reasoned, principles of issue preclusion are not useful, for they are “predicated on the assumption that the jury acted rationally and found cer­ tain facts in reaching its verdict.” Id., at 68. Holding that the acquittals had no preclusive effect on the counts of conviction, we reaffirmed Dunn’s rule, under which both Powell’s convictions and her acquittals, albeit inconsistent, remained undisturbed. 469 U.S., at 69. Finally, in Yeager v. United States, 557 U.S. 110 (2009), we clarified that Powell’s holding on inconsistent verdicts does not extend to an apparent inconsistency between a jury’s verdict of acquittal on one count and its inability to 8 BRAVO-FERNANDEZ v. UNITED STATES Opinion of the Court reach a verdict on another count. See 557 U.S., at 124 (“[I]nconsistent verdicts” present an “entirely different context” than one involving “both verdicts and seemingly inconsistent hung counts.”). Yeager was tried on charges of fraud and insider trading. Id., at 114. The jury acquit­ ted him of the fraud offenses, which the Court of Appeals concluded must have reflected a finding that he “did not have any insider information that contradicted what was presented to the public.” Id., at 116. Yet the jury failed to reach a verdict on the insider-trading charges, as to which “the possession of insider information was [likewise] a critical issue of ultimate fact.” Id., at 123. Arguing that the jury had therefore acted inconsistently, the Govern­ ment sought to retry Yeager on the hung counts. We ruled that retrial was barred by the Double Jeopardy Clause. A jury “speaks only through its verdict,” we noted. Id., at 121. Any number of reasons—including confusion about the issues and sheer exhaustion, we observed— could cause a jury to hang. Ibid. Accordingly, we said, only “a jury’s decisions, not its failures to decide,” identify “what a jury necessarily determined at trial.” Id., at 122. Because a hung count reveals nothing more than a jury’s failure to reach a decision, we further reasoned, it supplies no evidence of the jury’s irrationality. Id., at 124–125. Hung counts, we therefore held, “ha[ve] no place in the issue-preclusion analysis,” id., at 122: When a jury acquits on one count while failing to reach a verdict on another count concerning the same issue of ultimate fact, the acquittal, and only the acquittal, counts for preclusion purposes. Given the preclusive effect of the acquittal, the Court concluded, Yeager could not be retried on the hung count. Id., at 122–125. C With our controlling precedent in view, we turn to the inconsistent verdicts rendered in this case. The prosecu­ Cite as: 580 U. S. ____ (2016) 9 Opinion of the Court tion stemmed from an alleged bribe paid by petitioner Juan Bravo-Fernandez (Bravo), an entrepreneur, to peti­ tioner Hector Martínez-Maldonado (Martínez), then a senator serving the Commonwealth of Puerto Rico. The alleged bribe took the form of an all-expenses-paid trip to Las Vegas, including a $1,000 seat at a professional box­ ing match featuring a popular Puerto Rican contender. United States v. Fernandez, 722 F.3d 1, 6 (CA1 2013). According to the Government, Bravo intended the bribe to secure Martínez’ help in shepherding legislation through the Puerto Rico Senate that, if enacted, would “provid[e] substantial financial benefits” to Bravo’s enterprise. Ibid. In the leadup to the Las Vegas trip, Martínez submitted the legislation for the Senate’s consideration and issued a committee report supporting it; within a week of returning from Las Vegas, Martínez issued another favorable report and voted to enact the legislation. Id., at 6–7. Based on these events, a federal grand jury in Puerto Rico indicted petitioners for, inter alia, federal-program bribery, in violation of 18 U.S. C. §666; conspiracy to violate §666, in violation of §371; and traveling in inter­ state commerce to further violations of §666, in violation of the Travel Act, §1952(a)(3)(A).3 Following a three-week trial, a jury convicted Bravo and Martínez of the standalone §666 bribery offense, but acquitted them of the related conspiracy and Travel Act charges. Fernandez, 722 F.3d, at 7. Each received a sentence of 48 months in prison. Id., at 8. The Court of Appeals for the First Circuit vacated the §666 convictions for instructional error. Id., at 27. In the First Circuit’s view, the jury had been erroneously charged on what constitutes criminal conduct under that statute. Id., at 22–27. The charge permitted the jury to find Bravo —————— 3 Petitioners were indicted on several other charges not relevant here. See United States v. Fernandez, 722 F.3d 1, 7 (CA1 2013). 10 BRAVO-FERNANDEZ v. UNITED STATES Opinion of the Court and Martínez “guilty of offering and receiving a gratuity,” id., at 16, but, the appeals court held, §666 proscribes only quid pro quo bribes, and not gratuities, id., at 6, 22.4 True, the court acknowledged, the jury was instructed on both theories of bribery, and the evidence at trial sufficed to support a guilty verdict on either theory. Id., at 19–20. But the Court of Appeals could not say with confidence that the erroneous charge was harmless, so it vacated the §666 convictions and remanded for further proceedings. Id., at 27, 39. On remand, relying on the issue-preclusion component of the Double Jeopardy Clause, Bravo and Martínez moved for judgments of acquittal on the standalone §666 charges. 988 F. Supp. 2d 191 (PR 2013). They could not be retried on the bribery offense, they insisted, because the jury necessarily determined that they were not guilty of violating §666 when it acquitted them of conspiring to violate §666 and traveling in interstate commerce to fur­ ther violations of §666. Id., at 193. That was so, petition­ ers maintained, because the only contested issue at trial was whether Bravo had offered, and Martínez had accepted, a bribe within the meaning of §666. Id., at 196; see Tr. of Oral Arg. 4 (“There was no dispute that they agreed to go to a boxing match together”; nor was there any dispute “that to get to Las Vegas from Puerto Rico, you have to travel” across state lines.). The District Court denied the motions for acquittal. 988 F. Supp. 2d, at 196–198. If the sole issue disputed at trial was whether Bravo and Mar­ tínez had violated §666, the court explained, then “the jury —————— 4 As the First Circuit acknowledged, this holding is contrary to the rulings of “most circuits to have addressed th[e] issue.” Id., at 6. Three other Federal Courts of Appeals have considered the question; each has held that §666 prohibits gratuities as well as quid pro quo bribes. See United States v. Bahel, 662 F.3d 610, 636 (CA2 2011); United States v. Hawkins, 777 F.3d 880, 881 (CA7 2015); United States v. Zimmerman, 509 F.3d 920, 927 (CA8 2007). Cite as: 580 U. S. ____ (2016) 11 Opinion of the Court [had] acted irrationally.” Id., at 196. Because the same jury had simultaneously convicted Bravo and Martínez on the standalone §666 charges, “the verdict simply was inconsistent.” Ibid. The First Circuit affirmed the denial of petitioners’ motions for acquittal, agreeing that the jury’s inconsistent returns were fatal to petitioners’ issue-preclusion plea. 790 F.3d 41. The jury received the same bribery instruc­ tions for each count involving §666, the court noted, so the §666-based verdicts—convicting on the standalone bribery charges but acquitting on the related Travel Act and conspiracy counts—could not be reconciled. Id., at 54–55.5 The Court of Appeals rejected petitioners’ argument that the eventual invalidation of the bribery convictions rendered Powell’s inconsistent-verdicts rule inapplicable. Ashe, the court reminded, calls for a practical appraisal based on the complete record of the prior proceeding; the §666 bribery convictions, like the §666-based acquittals, were part of that record. See 790 F.3d, at 50. Nor are vacated convictions like hung counts for issue-preclusion purposes, the court continued. Informed by our decision in Yeager, the First Circuit recognized that a hung count reveals only a jury’s failure to decide, and therefore cannot evidence actual inconsistency with a jury’s decision. 790 F.3d, at 50–51. In contrast, the court said, vacated con­ victions “are jury decisions, through which the jury has spoken.” Id., at 51. The later upset of a conviction on an unrelated ground, the court reasoned, does not undermine Powell’s recognition that “inconsistent verdicts make it —————— 5 As just observed, see supra, at 10, petitioners urge that §666 bribery was the sole issue in controversy, and that there was no dispute on other elements of the Travel Act and conspiracy counts. See Tr. of Oral Arg. 4. See also Brief for United States 13 (accepting that the jury “returned irreconcilably inconsistent verdicts”). If another element could explain the acquittals, then there would be no inconsistency and no argument against a new trial on bribery. See infra, at 12–13. 12 BRAVO-FERNANDEZ v. UNITED STATES Opinion of the Court impossible to determine what a jury necessarily decided.” 790 F.3d, at 51. The First Circuit therefore concluded that “vacated convictions, unlike hung counts, are relevant to the Ashe [issue-preclusion] inquiry.” Ibid. We granted certiorari to resolve a conflict among courts on this question: Does the issue-preclusion component of the Double Jeopardy Clause bar the Government from retrying defendants, like Bravo and Martínez, after a jury has returned irreconcilably inconsistent verdicts of convic­ tion and acquittal, and the convictions are later vacated for legal error unrelated to the inconsistency?6 557 U. S. ___ (2016). Holding that the Double Jeopardy Clause does not bar retrial in these circumstances, we affirm the First Circuit’s judgment. II When a conviction is overturned on appeal, “[t]he gen­ eral rule is that the [Double Jeopardy] Clause does not bar reprosecution.” Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 308 (1984). The ordinary conse­ quence of vacatur, if the Government so elects, is a new trial shorn of the error that infected the first trial. This —————— 6 Compare United States v. Citron, 853 F.2d 1055, 1058–1061 (CA2 1988) (holding that retrial does not violate Double Jeopardy Clause under these circumstances); United States v. Price, 750 F.2d 363, 366 (CA5 1985) (same); Evans v. United States, 987 A.2d 1138, 1141–1142 (D. C. 2010) (same); and State v. Kelly, 201 N. J. 471, 493–494, 992 A. 2d 776, 789 (2010) (same), with People v. Wilson, 496 Mich. 91, 105– 107, 852 N.W.2d 134, 141–142 (2014) (holding that Double Jeopardy Clause bars retrial in this situation). As the First Circuit explained, “[a]lthough Citron and Price predate Yeager, both the Second and Fifth Circuits decided that vacated counts are relevant to the Ashe analysis at a time when those circuits had already ruled that hung counts should be disregarded for purposes of the Ashe inquiry.” 790 F.3d 41, 51, n. 7 (2015) (citing United States v. Mespoulede, 597 F.2d 329, 332, 335–336 (CA2 1979); United States v. Nelson, 599 F.2d 714, 716–717 (CA5 1979)). The Second Circuit, moreover, has adhered to Citron since Yeager. See United States v. Bruno, 531 Fed. Appx. 47, 49 (2013). Cite as: 580 U. S. ____ (2016) 13 Opinion of the Court “continuing jeopardy” rule neither gives effect to the va­ cated judgment nor offends double jeopardy principles. Rather, it reflects the reality that the “criminal proceed­ ings against an accused have not run their full course.” Ibid. And by permitting a new trial post vacatur, the continuing-jeopardy rule serves both society’s and criminal defendants’ interests in the fair administration of justice. “It would be a high price indeed for society to pay,” we have recognized, “were every accused granted immunity from punishment because of any defect sufficient to consti­ tute reversible error in the proceedings leading to convic­ tion.” United States v. Tateo, 377 U.S. 463, 466 (1964). And the rights of criminal defendants would suffer too, for “it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevo­ cably beyond the reach of further prosecution.” Ibid. Bravo and Martínez ask us to deviate from the general rule that, post vacatur of a conviction, a new trial is in order. When a conviction is vacated on appeal, they main­ tain, an acquittal verdict simultaneously returned should preclude the Government from retrying the defendant on the vacated count. Our precedent, harmonious with issue- preclusion doctrine, opposes the foreclosure petitioners seek. A Bravo and Martínez bear the burden of demonstrating that the jury necessarily resolved in their favor the ques­ tion whether they violated §666. Schiro, 510 U.S., at 233. But, as we have explained, see supra, at 7, a defendant cannot meet that burden where the trial yielded incompat­ ible jury verdicts on the issue the defendant seeks to insulate from relitigation. Here, the jury convicted Bravo and Martínez of violating §666 but acquitted them of 14 BRAVO-FERNANDEZ v. UNITED STATES Opinion of the Court conspiring, and traveling with the intent, to violate §666. The convictions and acquittals are irreconcilable because other elements of the Travel Act and conspiracy counts were not disputed. See supra, at 10–11, and n. 5. It is unknowable “which of the inconsistent verdicts—the acquittal[s] or the conviction[s]—‘the jury really meant.’ ” 790 F.3d, at 47 (quoting Powell, 469 U.S., at 68); see Restatement §29, Comment f, at 295 (“Where a determi­ nation relied on as preclusive is itself inconsistent with some other adjudication of the same issue, . . . confidence [in that determination] is generally unwarranted.”). In view of the Government’s inability to obtain review of the acquittals, Powell, 469 U.S., at 68, the inconsistent jury findings weigh heavily against according those acquittals issue-preclusive effect. See Standefer, 447 U.S., at 23, n. 17. That petitioners’ bribery convictions were later vacated for trial error does not alter our analysis. The critical inquiry is whether the jury actually decided that Bravo and Martínez did not violate §666. Ashe counsels us to approach that task with “realism and rationality,” 397 U.S., at 444, in particular, to examine the trial record “with an eye to all the circumstances of the proceedings,” ibid. As the Court of Appeals explained, “the fact [that] the jury . . . convicted [Bravo and Martínez] of violating §666 would seem to be of quite obvious relevance” to this practical inquiry, “even though the convictions were later vacated.” 790 F.3d, at 50. Because issue preclusion “depends on the jury’s assessment of the facts in light of the charges as presented at trial,” a conviction overturned on appeal is “appropriately considered in our assessment of [an acquittal] verdict’s preclusive effect.” United States v. Citron, 853 F.2d 1055, 1061 (CA2 1988). Indeed, the jurors in this case might not have acquitted on the Travel Act and conspiracy counts absent their belief that the §666 bribery convictions would stand. See ibid. Cite as: 580 U. S. ____ (2016) 15 Opinion of the Court Bravo and Martínez could not be retried on the bribery counts, of course, if the Court of Appeals had vacated their §666 convictions because there was insufficient evidence to support those convictions. For double jeopardy purposes, a court’s evaluation of the evidence as insufficient to con­ vict is equivalent to an acquittal and therefore bars a second prosecution for the same offense. See Burks v. United States, 437 U.S. 1, 10–11 (1978); cf. Powell, 469 U.S., at 67 (noting that defendants are “afforded protec­ tion against jury irrationality or error by [courts’] inde­ pendent review of the sufficiency of the evidence”). But this is scarcely a case in which the prosecution “failed to muster” sufficient evidence in the first proceeding. Burks, 437 U.S., at 11. Quite the opposite. The evidence pre­ sented at petitioners’ trial, the Court of Appeals deter­ mined, supported a guilty verdict on the gratuity theory (which the First Circuit ruled impermissible) as well as the quid pro quo theory (which the First Circuit ap­ proved). 790 F.3d, at 44. Vacatur was compelled for the sole reason that the First Circuit found the jury charge erroneous to the extent that it encompassed gratuities. See supra, at 9–10, and n. 4. Therefore, the general rule of “allowing a new trial to rectify trial error” applied. Burks, 437 U.S., at 14 (emphasis deleted). Nor, as the Government acknowledges, would retrial be tolerable if the trial error could resolve the apparent in­ consistency in the jury’s verdicts. See Brief for United States 30 (If, for example, “a jury receives an erroneous instruction on the count of conviction but the correct in­ struction on the charge on which it acquits, the instruc­ tional error may reconcile the verdicts.”). But the instruc­ tional error here cannot account for the jury’s contradictory determinations because the error applied equally to every §666-related count. See supra, at 11. As in Powell, so in this case, “[t]he problem is that the same jury reached inconsistent results.” 469 U.S., at 68. 16 BRAVO-FERNANDEZ v. UNITED STATES Opinion of the Court The convictions’ later invalidation on an unrelated ground does not erase or reconcile that inconsistency: It does not bear on “the factual determinations actually and neces­ sarily made by the jury,” nor does it “serv[e] to turn the jury’s otherwise inconsistent and irrational verdict into a consistent and rational verdict.” People v. Wilson, 496 Mich. 91, 125, 852 N.W.2d 134, 151 (2014) (Markman, J., dissenting). Bravo and Martínez, therefore, cannot estab­ lish the factual predicate necessary to preclude the Gov­ ernment from retrying them on the standalone §666 charges—namely, that the jury in the first proceeding actually decided that they did not violate the federal brib­ ery statute. B To support their argument for issue preclusion, Bravo and Martínez highlight our decision in Yeager. In Yeager, they point out, we recognized that hung counts “have never been accorded respect as a matter of law or history.” 557 U.S., at 124. That is also true of vacated convictions, they urge, so vacated convictions, like hung counts, should be excluded from the Ashe inquiry into what the jury necessarily determined. Brief for Petitioners 20–24. Asserting that we have “never held an invalid conviction . . . relevant to or evidence of anything,” Tr. of Oral Arg. 5, Bravo and Martínez argue that taking account of a vacated conviction in our issue-preclusion analysis would im­ permissibly give effect to “a legal nullity,” Brief for Peti­ tioners 39; see Wilson, 496 Mich., at 107, 852 N. W. 2d, at 142 (majority opinion) (considering a vacated count would impermissibly “bring that legally vacated conviction back to life”). This argument misapprehends the Ashe inquiry. It is undisputed that petitioners’ convictions are invalid judg­ ments that may not be used to establish their guilt. The question is whether issue preclusion stops the Govern­ Cite as: 580 U. S. ____ (2016) 17 Opinion of the Court ment from prosecuting them anew. On that question, Bravo and Martínez bear the burden of showing that the issue whether they violated §666 has been “determined by a valid and final judgment of acquittal.” Yeager, 557 U.S., at 119 (internal quotation marks omitted). To judge whether they carried that burden, a court must realisti­ cally examine the record to identify the ground for the §666-based acquittals. Ashe, 397 U.S., at 444. A conviction that contradicts those acquittals is plainly relevant to that determination, no less so simply because it is later over­ turned on appeal for unrelated legal error: The split ver­ dict—finding §666 violated on the standalone counts, but not violated on the related Travel Act and conspiracy counts—tells us that, on one count or the other, “the jury [did] not follo[w] the court’s instructions,” whether because of “mistake, compromise, or lenity.” Powell, 469 U.S., at 65; see supra, at 7. Petitioners’ acquittals therefore do not support the application of issue preclusion here.7 Further relying on Yeager, Bravo and Martínez contend that their vacated convictions should be ignored because, as with hung counts, “there is no way to decipher” what they represent. Brief for Petitioners 28 (quoting Yeager, 557 U.S., at 121). The §666 convictions are meaningless, they maintain, because the jury was allowed to convict on the basis of conduct not criminal in the First Circuit— payment of a gratuity. Brief for Petitioners 24. This argument trips on Yeager’s reasoning. Yeager did —————— 7 Nor is this the first time we have looked to a vacated conviction to ascertain what a jury decided in a prior proceeding. Our holding in Morris v. Mathews, 475 U.S. 237 (1986), that a conviction vacated on double jeopardy grounds may be “reduced to a conviction for a lesser included offense which is not jeopardy barred,” id., at 246–247, rested on exactly that rationale. See id., at 247 (relying on a jeopardy-barred vacated conviction for aggravated murder to conclude that the jury “necessarily found that the defendant’s conduct satisfie[d] the elements of the lesser included offense” of simple murder). 18 BRAVO-FERNANDEZ v. UNITED STATES Opinion of the Court not rest on a court’s inability to detect the basis for a jury’s decision. Rather, this Court reasoned that, when a jury hangs, there is no decision, hence no evidence of irration­ ality. 557 U.S., at 124–125. A verdict of guilt, by con­ trast, is a jury decision, even if subsequently vacated on appeal. It therefore can evince irrationality. That is the case here. Petitioners do not dispute that the Government’s evidence at trial supported a guilty verdict on the quid pro quo theory, or that the gratuity instruction held erroneous by the Court of Appeals applied to every §666-based offense. Because no rational jury could have reached conflicting verdicts on those counts, petitioners’ §666 convictions “reveal the jury’s inconsis­ tency—which is the relevant issue here—even if they do not reveal which theory of liability jurors relied upon in reach­ ing those inconsistent verdicts.” Brief for United States 31. In other words, because we do not know what the jury would have concluded had there been no instructional error, Brief for Petitioners 28–29, a new trial on the counts of conviction is in order. Bravo and Martínez have suc­ ceeded on appeal to that extent, but they are entitled to no more. The split verdict does not impede the Government from renewing the prosecution.8 —————— 8 A number of lower courts have reached the same conclusion. See Citron, 853 F.2d, at 1059 (If the defendant “was convicted of the offense that is the subject of the retrial,” the case is materially different from one with “an acquittal accompanied by a failure to reach a ver­ dict.”); Price, 750 F.2d, at 366 (a case in which “the jury returned no verdict of conviction” on the compound count, “but only a verdict of acquittal on the substantive count,” is not instructive on whether the Government may retry a defendant after an inconsistent verdict has been vacated); Evans, 987 A.2d, at 1142 (“Yeager does nothing to undermine” the conclusion that a defendant may be retried after an inconsistent verdict is overturned.); Kelly, 201 N. J., at 494, 992 A. 2d, at 789 (explaining in the context of retrial following vacatur that “Yeager has no application to a case . . . involving an inconsistent verdict of acquittals and convictions returned by the same jury”). Cite as: 580 U. S. ____ (2016) 19 Opinion of the Court The Double Jeopardy Clause, as the First Circuit ex­ plained, forever bars the Government from again prosecut­ ing Bravo and Martínez on the §666-based conspiracy and Travel Act offenses; “the acquittals themselves remain inviolate.” 790 F.3d, at 51, n. 6. Bravo and Martínez have also gained “the benefit of their appellate victory,” ibid.: a second trial on the standalone bribery charges, in which the Government may not invoke a gratuity theory. But issue preclusion is not a doctrine they can comman­ deer when inconsistent verdicts shroud in mystery what the jury necessarily decided. * * * For the reasons stated, the judgment of the Court of Appeals for the First Circuit is Affirmed. Cite as: 580 U. S. ____ (2016) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 15–537 _________________ JUAN BRAVO-FERNANDEZ AND HECTOR MARTINEZ- MALDONADO, PETITIONERS v.

This case concerns the issue-preclusion component of the Double Jeopardy Clause1 In criminal prosecutions, as in civil litigation, the issue-preclusion principle means that “when an issue of ultimate fact has once been deter­ mined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit” Does issue preclusion apply when a jury returns incon­ sistent verdicts, convicting on one count and acquitting on another count, where both counts turn on the very same issue of ultimate fact? In such a case, this Court has held, both verdicts stand The Government is barred by the Double Jeopardy Clause from challenging the acquittal, —————— 1 The parties use the expression “collateral estoppel component,” but as this Court has observed, “issue preclusion” is the more descriptive term ; see Restatement (Second) of Judgments Comment b, pp 251–252 (1980) 2 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court see but because the verdicts are rationally irreconcilable, the acquittal gains no preclusive effect, United Does issue preclusion attend a jury’s acquittal verdict if the same jury in the same proceeding fails to reach a verdict on a different count turning on the same critical issue? This Court has answered yes, in those circum­ stances, the acquittal has preclusive force v United States, As “there is no way to decipher what a hung count represents,” we reasoned, a jury’s failure to decide “has no place in the issue-preclusion analysis” ; see (“[T]he fact that a jury hangs is evidence of nothing—other than, of course, that it has failed to decide anything”) In the case before us, the jury returned irreconcilably inconsistent verdicts of conviction and Without more, would control There could be no retrial of charges that yielded acquittals but, in view of the incon­ sistent verdicts, the acquittals would have no issue­ preclusive effect on charges that yielded convictions In this case, however, unlike the guilty verdicts were vacated on appeal because of error in the judge’s instruc­ tions unrelated to the verdicts’ inconsistency Petitioners urge that, just as a jury’s failure to decide has no place in issue-preclusion analysis, so vacated guilty verdicts should not figure in that analysis We hold otherwise One cannot know from the jury’s report why it returned no verdict “A host of reasons” could account for a jury’s failure to decide—“sharp dis­ agreement, confusion about the issues, exhaustion after a long trial, to name but a few” But actual inconsistency in a jury’s verdicts is a reality; vacatur of a conviction for unrelated legal error does not reconcile the jury’s inconsistent returns We therefore bracket this case with not and affirm the Cite as: 580 U S (201) 3 Opinion of the Court judgment of the Court of Appeals, which held that issue preclusion does not apply when verdict inconsistency renders unanswerable “what the jury necessarily decided” I A The doctrine of claim preclusion instructs that a final judgment on the merits “foreclos[es] successive litigation of the very same claim” New Hampshire v Maine, 532 US 42, 48 (2001); see Restatement (Second) of Judg­ ments p 11 (1980) (hereinafter Restatement) So instructing, the doctrine serves to “avoid multiple suits on identical entitlements or obligations between the same parties” 18 C Wright, A Miller, & E Cooper, Federal Practice and Procedure p 9 (2d ed 2002) (herein­ after Wright & Miller) Long operative in civil litigation, Restatement, at 2, claim preclusion is also essential to the Constitution’s prohibition against successive criminal prosecutions No person, the Double Jeopardy Clause states, shall be “subject for the same offense to be twice put in jeopardy of life or limb” Amdt 5 The Clause “protects against a second prosecution for the same offense after conviction”; as well, “[i]t protects against a second prosecution for the same offense after ” North “[A] verdict of acquittal [in our justice system] is final,” the last word on a criminal charge, and therefore operates as “a bar to a subsequent prosecution for the same offense” Green v United States, The allied doctrine of issue preclusion ordinarily bars relitigation of an issue of fact or law raised and necessarily resolved by a prior judgment See Restatement 2, at 148, 250; Wright & Miller at It applies in both civil and criminal proceedings, with an important distinction In civil litigation, where issue preclusion and 4 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court its ramifications first developed, the availability of appel­ late review is a key factor Restatement Comment a, 4; see Reporter’s Note, at 284 (noting “the pervasive importance of reviewability in the application of preclusion doctrine”) In significant part, preclusion doc­ trine is premised on “an underlying confidence that the result achieved in the initial litigation was substantially correct” 4 US 10, (1980); see Restatement Comment f, at 295 “In the absence of appellate review,” we have observed, “such confidence is often unwarranted” 4 US, at In civil suits, inability to obtain review is exceptional; it occurs typically when the controversy has become moot In criminal cases, however, only one side (the defendant) has recourse to an appeal from an adverse judgment on the merits The Government “cannot secure appellate review” of an acquittal, even one “based upon an egregiously erroneous foundation,” Juries enjoy an “unreviewable power to return a verdict of not guilty for impermissi­ ble reasons,” for “the Government is precluded from ap­ pealing or otherwise upsetting such an acquittal by the Constitution’s Double Jeopardy Clause” United States v The absence of appel­ late review of acquittals, we have cautioned, calls for guarded application of preclusion doctrine in criminal cases See 4 US, –23, and n 18 Particularly where it appears that a jury’s verdict is the result of compromise, compassion, lenity, or misunder­ standing of the governing law, the Government’s inability to gain review “strongly militates against giving an ac­ quittal [issue] preclusive effect” See also Re­ statement Comment g, at 295 (Where circumstances suggest that an issue was resolved on erroneous consider­ ations, “taking the prior determination at face value for Cite as: 580 U S (201) 5 Opinion of the Court purposes of the second action would [impermissibly] ex­ tend the imperfections in the adjudicative process”); Comment j, at 283 (Issue preclusion may be de­ nied where it is “evident from the jury’s verdict that the verdict was the result of compromise”); Wright & Miller at 1 (same) B This case requires us to determine whether an appellate court’s vacatur of a conviction alters issue-preclusion analysis under the Double Jeopardy Clause Three prior decisions guide our disposition This Court first interpreted the Double Jeopardy Clause to incorporate the principle of issue preclusion in v Swenson, 2 involved a robbery of six poker players by a group of masked men was charged with robbing one of the players, but a jury acquit­ ted him “due to insufficient evidence” The State then tried again, this time for robbing another of the poker players Aided by “substantially stronger” testimony from “witnesses [who] were for the most part the same,” –440, the State secured a conviction We held that the second prosecution violated the Double Jeopardy Clause Because the sole issue in dispute in the first trial was whether had been one of the robbers, the jury’s acquittal verdict precluded the State from trying to convince a different jury of that very same fact in a second trial —————— 2 Though we earlier recognized that res judicata (which embraces both claim and issue preclusion) applies in criminal as well as civil proceedings, we did not link the issue-preclusion inquiry to the Double Jeopardy Clause See ; (The principle that “a question of fact or of law distinctly put in issue and directly deter­ mined by a court of competent jurisdiction cannot afterwards be dis­ puted between the same parties” applies to “the decisions of criminal courts”) BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court Our decision in explained that issue preclusion in criminal cases must be applied with “realism and rational­ ity” To identify what a jury in a previous trial necessarily decided, we instructed, a court must “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter” (quoting Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, (190)) This inquiry, we explained, “must be set in a practical frame and viewed with an eye to all the circum­ stances of the proceedings” 39 US, ) We have also made clear that “[t]he burden is on the defend­ ant to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided” by a prior jury’s verdict of (1994) (internal quotation marks omitted); accord Dowling v United States, In United we held that a defendant cannot meet this burden when the same jury returns irreconcilably inconsistent verdicts on the ques­ tion she seeks to shield from reconsideration ’s starting point was our holding in that a criminal defendant may not attack a jury’s finding of guilt on one count as inconsistent with the jury’s verdict of acquittal on another count –59 The Court’s opinion in stated no exceptions to this rule, and after the Court had several times “alluded to [the] rule as an established principle,” Nevertheless, several Courts of Appeals had “recogniz[ed] exceptions to the rule,” at 2, and sought an exception for the verdicts of guilt she faced At trial, a jury had acquitted of various substan­ tive drug charges but convicted her of using a telephone in “causing and facilitating” those same offenses at 59– Cite as: 580 U S (201) Opinion of the Court 0 She appealed, arguing that “the verdicts were incon­ sistent, and that she therefore was entitled to reversal of the telephone facilitation convictions” Issue preclusion, she maintained, barred “acceptance of [the] guilty verdict[s]” on the auxiliary offenses because the same jury had acquitted her of the predicate felonies Rejecting ’s argument, we noted that issue pre­ clusion is “predicated on the assumption that the jury acted rationally” at When a jury returns irrecon­ cilably inconsistent verdicts, we said, one can glean no more than that “either in the acquittal or the conviction the jury did not speak their real conclusions” (quoting ) Although it is impos­ sible to discern which verdict the jurors arrived at ration­ ally, we observed, “that does not show that they were not convinced of the defendant’s guilt” US, at 4–5 (quoting ) In the event of inconsistent verdicts, we pointed out, it is just as likely that “the jury, convinced of guilt, properly reached its conclusion on [one count], and then through mistake, compromise, or lenity, arrived at an inconsistent conclu­ sion on the [related] offense” Because a court would be at a loss to know which verdict the jury “really meant,” we reasoned, principles of issue preclusion are not useful, for they are “predicated on the assumption that the jury acted rationally and found cer­ tain facts in reaching its verdict” at Holding that the acquittals had no preclusive effect on the counts of conviction, we reaffirmed ’s rule, under which both ’s convictions and her acquittals, albeit inconsistent, remained Finally, in we clarified that ’s holding on inconsistent verdicts does not extend to an apparent inconsistency between a jury’s verdict of acquittal on one count and its inability to 8 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court reach a verdict on another count See (“[I]nconsistent verdicts” present an “entirely different context” than one involving “both verdicts and seemingly inconsistent hung counts”) was tried on charges of fraud and insider trading The jury acquit­ ted him of the fraud offenses, which the Court of Appeals concluded must have reflected a finding that he “did not have any insider information that contradicted what was presented to the public” Yet the jury failed to reach a verdict on the insider-trading charges, as to which “the possession of insider information was [likewise] a critical issue of ultimate fact” Arguing that the jury had therefore acted inconsistently, the Govern­ ment sought to retry on the hung counts We ruled that retrial was barred by the Double Jeopardy Clause A jury “speaks only through its verdict,” we noted at 121 Any number of reasons—including confusion about the issues and sheer exhaustion, we observed— could cause a jury to hang Accordingly, we said, only “a jury’s decisions, not its failures to decide,” identify “what a jury necessarily determined at trial” Because a hung count reveals nothing more than a jury’s failure to reach a decision, we further reasoned, it supplies no evidence of the jury’s irrationality at 124–125 Hung counts, we therefore held, “ha[ve] no place in the issue-preclusion analysis,” : When a jury acquits on one count while failing to reach a verdict on another count concerning the same issue of ultimate fact, the acquittal, and only the acquittal, counts for preclusion purposes Given the preclusive effect of the acquittal, the Court concluded, could not be retried on the hung count –125 C With our controlling precedent in view, we turn to the inconsistent verdicts rendered in this case The prosecu­ Cite as: 580 U S (201) 9 Opinion of the Court tion stemmed from an alleged bribe paid by petitioner Juan Bravo-Fernandez (Bravo), an entrepreneur, to peti­ tioner Hector Martínez-Maldonado (Martínez), then a senator serving the Commonwealth of Puerto Rico The alleged bribe took the form of an all-expenses-paid trip to Las Vegas, including a $1,000 seat at a professional box­ ing match featuring a popular Puerto Rican contender United According to the Government, Bravo intended the bribe to secure Martínez’ help in shepherding legislation through the Puerto Rico Senate that, if enacted, would “provid[e] substantial financial benefits” to Bravo’s enterprise In the leadup to the Las Vegas trip, Martínez submitted the legislation for the Senate’s consideration and issued a committee report supporting it; within a week of returning from Las Vegas, Martínez issued another favorable report and voted to enact the legislation at – Based on these events, a federal grand jury in Puerto Rico indicted petitioners for, inter alia, federal-program bribery, in violation of 18 US C §; conspiracy to violate §, in violation of and traveling in inter­ state commerce to further violations of §, in violation of the Travel Act, Following a three-week trial, a jury convicted Bravo and Martínez of the standalone § bribery offense, but acquitted them of the related conspiracy and Travel Act charges Fernandez, Each received a sentence of 48 months in prison The Court of Appeals for the First Circuit vacated the § convictions for instructional error In the First Circuit’s view, the jury had been erroneously charged on what constitutes criminal conduct under that statute –2 The charge permitted the jury to find Bravo —————— 3 Petitioners were indicted on several other charges not relevant here See United 10 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court and Martínez “guilty of offering and receiving a gratuity,” at 1, but, the appeals court held, § proscribes only quid pro quo bribes, and not gratuities, at 224 True, the court acknowledged, the jury was instructed on both theories of bribery, and the evidence at trial sufficed to support a guilty verdict on either theory at 19–20 But the Court of Appeals could not say with confidence that the erroneous charge was harmless, so it vacated the § convictions and remanded for further proceedings 39 On remand, relying on the issue-preclusion component of the Double Jeopardy Clause, Bravo and Martínez moved for judgments of acquittal on the standalone § charges They could not be retried on the bribery offense, they insisted, because the jury necessarily determined that they were not guilty of violating § when it acquitted them of conspiring to violate § and traveling in interstate commerce to fur­ ther violations of § That was so, petition­ ers maintained, because the only contested issue at trial was whether Bravo had offered, and Martínez had accepted, a bribe within the meaning of § at 19; see Tr of Oral Arg 4 (“There was no dispute that they agreed to go to a boxing match together”; nor was there any dispute “that to get to Las Vegas from Puerto Rico, you have to travel” across state lines) The District Court denied the motions for 988 F Supp 2d, at 19–198 If the sole issue disputed at trial was whether Bravo and Mar­ tínez had violated §, the court explained, then “the jury —————— 4 As the First Circuit acknowledged, this holding is contrary to the rulings of “most circuits to have addressed th[e] issue” at Three other Federal Courts of Appeals have considered the question; each has held that § prohibits gratuities as well as quid pro quo bribes See United 2 F3d 10, 3 ; United States v Hawkins, F3d 880, ; United 92 (CA8 200) Cite as: 580 U S (201) 11 Opinion of the Court [had] acted irrationally” at 19 Because the same jury had simultaneously convicted Bravo and Martínez on the standalone § charges, “the verdict simply was inconsistent” The First Circuit affirmed the denial of petitioners’ motions for acquittal, agreeing that the jury’s inconsistent returns were fatal to petitioners’ issue-preclusion plea The jury received the same bribery instruc­ tions for each count involving §, the court noted, so the §-based verdicts—convicting on the standalone bribery charges but acquitting on the related Travel Act and conspiracy counts—could not be reconciled at 54–555 The Court of Appeals rejected petitioners’ argument that the eventual invalidation of the bribery convictions rendered ’s inconsistent-verdicts rule inapplicable the court reminded, calls for a practical appraisal based on the complete record of the prior proceeding; the § bribery convictions, like the §-based acquittals, were part of that record See 90 F3d, at 50 Nor are vacated convictions like hung counts for issue-preclusion purposes, the court continued Informed by our decision in the First Circuit recognized that a hung count reveals only a jury’s failure to decide, and therefore cannot evidence actual inconsistency with a jury’s decision 90 F3d, at 50–51 In contrast, the court said, vacated con­ victions “are jury decisions, through which the jury has spoken” The later upset of a conviction on an unrelated ground, the court reasoned, does not undermine ’s recognition that “inconsistent verdicts make it —————— 5 As just observed, see petitioners urge that § bribery was the sole issue in controversy, and that there was no dispute on other elements of the Travel Act and conspiracy counts See Tr of Oral Arg 4 See also Brief for United States 13 (accepting that the jury “returned irreconcilably inconsistent verdicts”) If another element could explain the acquittals, then there would be no inconsistency and no argument against a new trial on bribery See infra, at 12–13 12 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court impossible to determine what a jury necessarily decided” 90 F3d, The First Circuit therefore concluded that “vacated convictions, unlike hung counts, are relevant to the [issue-preclusion] inquiry” We granted certiorari to resolve a conflict among courts on this question: Does the issue-preclusion component of the Double Jeopardy Clause bar the Government from retrying defendants, like Bravo and Martínez, after a jury has returned irreconcilably inconsistent verdicts of convic­ tion and acquittal, and the convictions are later vacated for legal error unrelated to the inconsistency? 55 U S (201) Holding that the Double Jeopardy Clause does not bar retrial in these circumstances, we affirm the First Circuit’s judgment II When a conviction is overturned on appeal, “[t]he gen­ eral rule is that the [Double Jeopardy] Clause does not bar reprosecution” Justices of Boston Municipal Court v Lydon, 4 US 294, The ordinary conse­ quence of vacatur, if the Government so elects, is a new trial shorn of the error that infected the first trial This —————— Compare United 1058–101 (holding that retrial does not violate Double Jeopardy Clause under these circumstances); United 50 F2d 33, 3 (CA5 1985) (same); 98 A2d 11, 1141–1142 (D C 2010) (same); and State v Kelly, 201 N J 1, 3–4, 992 A 2d 89 (2010) (same), with Mich 91, 105– 10, (holding that Double Jeopardy Clause bars retrial in this situation) As the First Circuit explained, “[a]lthough and predate both the Second and Fifth Circuits decided that vacated counts are relevant to the analysis at a time when those circuits had already ruled that hung counts should be disregarded for purposes of the inquiry” 51, n (citing United 59 F2d 329, 335–33 (CA2 199); United 599 F2d 14, 1– (CA5 199)) The Second Circuit, moreover, has adhered to since See United 531 Fed Appx Cite as: 580 U S (201) 13 Opinion of the Court “continuing jeopardy” rule neither gives effect to the va­ cated judgment nor offends double jeopardy principles Rather, it reflects the reality that the “criminal proceed­ ings against an accused have not run their full course” And by permitting a new trial post vacatur, the continuing-jeopardy rule serves both society’s and criminal defendants’ interests in the fair administration of justice “It would be a high price indeed for society to pay,” we have recognized, “were every accused granted immunity from punishment because of any defect sufficient to consti­ tute reversible error in the proceedings leading to convic­ tion” United 3 US 43, 4 (194) And the rights of criminal defendants would suffer too, for “it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevo­ cably beyond the reach of further prosecution” Bravo and Martínez ask us to deviate from the general rule that, post vacatur of a conviction, a new trial is in order When a conviction is vacated on appeal, they main­ tain, an acquittal verdict simultaneously returned should preclude the Government from retrying the defendant on the vacated count Our precedent, harmonious with issue- preclusion doctrine, opposes the foreclosure petitioners seek A Bravo and Martínez bear the burden of demonstrating that the jury necessarily resolved in their favor the ques­ tion whether they violated § 510 US, 3 But, as we have explained, see at a defendant cannot meet that burden where the trial yielded incompat­ ible jury verdicts on the issue the defendant seeks to insulate from relitigation Here, the jury convicted Bravo and Martínez of violating § but acquitted them of 14 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court conspiring, and traveling with the intent, to violate § The convictions and acquittals are irreconcilable because other elements of the Travel Act and conspiracy counts were not disputed See –11, and n 5 It is unknowable “which of the inconsistent verdicts—the acquittal[s] or the conviction[s]—‘the jury really meant’ ” 90 F3d, at (quoting US, at ); see Restatement Comment f, at 295 (“Where a determi­ nation relied on as preclusive is itself inconsistent with some other adjudication of the same issue, confidence [in that determination] is generally unwarranted”) In view of the Government’s inability to obtain review of the acquittals, US, at the inconsistent jury findings weigh heavily against according those acquittals issue-preclusive effect See 4 US, n 1 That petitioners’ bribery convictions were later vacated for trial error does not alter our analysis The critical inquiry is whether the jury actually decided that Bravo and Martínez did not violate § counsels us to approach that task with “realism and rationality,” 39 US, in particular, to examine the trial record “with an eye to all the circumstances of the proceedings,” As the Court of Appeals explained, “the fact [that] the jury convicted [Bravo and Martínez] of violating § would seem to be of quite obvious relevance” to this practical inquiry, “even though the convictions were later vacated” 90 F3d, at 50 Because issue preclusion “depends on the jury’s assessment of the facts in light of the charges as presented at trial,” a conviction overturned on appeal is “appropriately considered in our assessment of [an acquittal] verdict’s preclusive effect” United States v 101 Indeed, the jurors in this case might not have acquitted on the Travel Act and conspiracy counts absent their belief that the § bribery convictions would stand See Cite as: 580 U S (201) 15 Opinion of the Court Bravo and Martínez could not be retried on the bribery counts, of course, if the Court of Appeals had vacated their § convictions because there was insufficient evidence to support those convictions For double jeopardy purposes, a court’s evaluation of the evidence as insufficient to con­ vict is equivalent to an acquittal and therefore bars a second prosecution for the same offense See v United States, 43 US 1, ; cf US, at (noting that defendants are “afforded protec­ tion against jury irrationality or error by [courts’] inde­ pendent review of the sufficiency of the evidence”) But this is scarcely a case in which the prosecution “failed to muster” sufficient evidence in the first proceeding 43 US, Quite the opposite The evidence pre­ sented at petitioners’ trial, the Court of Appeals deter­ mined, supported a guilty verdict on the gratuity theory (which the First Circuit ruled impermissible) as well as the quid pro quo theory (which the First Circuit ap­ proved) 90 F3d, at 44 Vacatur was compelled for the sole reason that the First Circuit found the jury charge erroneous to the extent that it encompassed gratuities See at 9–10, and n 4 Therefore, the general rule of “allowing a new trial to rectify trial error” applied 43 US, at 14 Nor, as the Government acknowledges, would retrial be tolerable if the trial error could resolve the apparent in­ consistency in the jury’s verdicts See Brief for United States 30 (If, for example, “a jury receives an erroneous instruction on the count of conviction but the correct in­ struction on the charge on which it acquits, the instruc­ tional error may reconcile the verdicts”) But the instruc­ tional error here cannot account for the jury’s contradictory determinations because the error applied equally to every §-related count See As in so in this case, “[t]he problem is that the same jury reached inconsistent results” US, at 1 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court The convictions’ later invalidation on an unrelated ground does not erase or reconcile that inconsistency: It does not bear on “the factual determinations actually and neces­ sarily made by the jury,” nor does it “serv[e] to turn the jury’s otherwise inconsistent and irrational verdict into a consistent and rational verdict” Mich 91, 125, (Markman, J, dissenting) Bravo and Martínez, therefore, cannot estab­ lish the factual predicate necessary to preclude the Gov­ ernment from retrying them on the standalone § charges—namely, that the jury in the first proceeding actually decided that they did not violate the federal brib­ ery statute B To support their argument for issue preclusion, Bravo and Martínez highlight our decision in In they point out, we recognized that hung counts “have never been accorded respect as a matter of law or history” That is also true of vacated convictions, they urge, so vacated convictions, like hung counts, should be excluded from the inquiry into what the jury necessarily determined Brief for Petitioners 20–24 Asserting that we have “never held an invalid conviction relevant to or evidence of anything,” Tr of Oral Arg 5, Bravo and Martínez argue that taking account of a vacated conviction in our issue-preclusion analysis would im­ permissibly give effect to “a legal nullity,” Brief for Peti­ tioners 39; see Mich, 852 N W 2d, at 142 (majority opinion) (considering a vacated count would impermissibly “bring that legally vacated conviction back to life”) This argument misapprehends the inquiry It is undisputed that petitioners’ convictions are invalid judg­ ments that may not be used to establish their guilt The question is whether issue preclusion stops the Govern­ Cite as: 580 U S (201) 1 Opinion of the Court ment from prosecuting them anew On that question, Bravo and Martínez bear the burden of showing that the issue whether they violated § has been “determined by a valid and final judgment of ” 55 US, 9 (internal quotation marks omitted) To judge whether they carried that burden, a court must realisti­ cally examine the record to identify the ground for the §-based acquittals 39 US, A conviction that contradicts those acquittals is plainly relevant to that determination, no less so simply because it is later over­ turned on appeal for unrelated legal error: The split ver­ dict—finding § violated on the standalone counts, but not violated on the related Travel Act and conspiracy counts—tells us that, on one count or the other, “the jury [did] not follo[w] the court’s instructions,” whether because of “mistake, compromise, or lenity” US, at 5; see at Petitioners’ acquittals therefore do not support the application of issue preclusion here Further relying on Bravo and Martínez contend that their vacated convictions should be ignored because, as with hung counts, “there is no way to decipher” what they represent Brief for Petitioners 28 (quoting ) The § convictions are meaningless, they maintain, because the jury was allowed to convict on the basis of conduct not criminal in the First Circuit— payment of a gratuity Brief for Petitioners 24 This argument trips on ’s reasoning did —————— Nor is this the first time we have looked to a vacated conviction to ascertain what a jury decided in a prior proceeding Our holding in Morris v Mathews, 5 US 23 (198), that a conviction vacated on double jeopardy grounds may be “reduced to a conviction for a lesser included offense which is not jeopardy barred,” at 24–2, rested on exactly that rationale See at 2 (relying on a jeopardy-barred vacated conviction for aggravated murder to conclude that the jury “necessarily found that the defendant’s conduct satisfie[d] the elements of the lesser included offense” of simple murder) 18 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court not rest on a court’s inability to detect the basis for a jury’s decision Rather, this Court reasoned that, when a jury hangs, there is no decision, hence no evidence of irration­ ality –125 A verdict of guilt, by con­ trast, is a jury decision, even if subsequently vacated on appeal It therefore can evince irrationality That is the case here Petitioners do not dispute that the Government’s evidence at trial supported a guilty verdict on the quid pro quo theory, or that the gratuity instruction held erroneous by the Court of Appeals applied to every §-based offense Because no rational jury could have reached conflicting verdicts on those counts, petitioners’ § convictions “reveal the jury’s inconsis­ tency—which is the relevant issue here—even if they do not reveal which theory of liability jurors relied upon in reach­ ing those inconsistent verdicts” Brief for United States 31 In other words, because we do not know what the jury would have concluded had there been no instructional error, Brief for Petitioners 28–29, a new trial on the counts of conviction is in order Bravo and Martínez have suc­ ceeded on appeal to that extent, but they are entitled to no more The split verdict does not impede the Government from renewing the prosecution8 —————— 8 A number of lower courts have reached the same conclusion See 853 F2d, 59 (If the defendant “was convicted of the offense that is the subject of the retrial,” the case is materially different from one with “an acquittal accompanied by a failure to reach a ver­ dict”); 50 F2d, at 3 (a case in which “the jury returned no verdict of conviction” on the compound count, “but only a verdict of acquittal on the substantive count,” is not instructive on whether the Government may retry a defendant after an inconsistent verdict has been vacated); 98 A2d, 2 (“ does nothing to undermine” the conclusion that a defendant may be retried after an inconsistent verdict is overturned); Kelly, 201 N J, at 4, 992 A 2d, at 89 (explaining in the context of retrial following vacatur that “ has no application to a case involving an inconsistent verdict of acquittals and convictions returned by the same jury”) Cite as: 580 U S (201) 19 Opinion of the Court The Double Jeopardy Clause, as the First Circuit ex­ plained, forever bars the Government from again prosecut­ ing Bravo and Martínez on the §-based conspiracy and Travel Act offenses; “the acquittals themselves remain inviolate” 90 F3d, n Bravo and Martínez have also gained “the benefit of their appellate victory,” : a second trial on the standalone bribery charges, in which the Government may not invoke a gratuity theory But issue preclusion is not a doctrine they can comman­ deer when inconsistent verdicts shroud in mystery what the jury necessarily decided * * * For the reasons stated, the judgment of the Court of Appeals for the First Circuit is Affirmed Cite as: 580 U S (201) 1 THOMAS, J, concurring SUPREME COURT OF THE UNITED STATES No 15–53 JUAN BRAVO-FERNANDEZ AND HECTOR MARTINEZ- MALDONADO, PETITIONERS v

Justice Breyer

concurring

Zivotofsky v. Kerry

https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/

https://www.courtlistener.com/api/rest/v3/clusters/2808294/

2014-011

I continue to believe that this case presents a political question inappropriate for judicial resolution. See Zivo- tofsky v. Clinton, 566 U. S. ___, ___ (2012) (BREYER, J., dissenting). But because precedent precludes resolving this case on political question grounds, see id., at ___ (majority opinion) (slip op., at 1), I join the Court’s opinion. Cite as: 576 U. S. ____ (2015) 1 Opinion of THOMAS, J. SUPREME COURT OF THE UNITED STATES _________________ No. 13–628 _________________ MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY, PETITIONER v. JOHN KERRY, SECRETARY OF STATE ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [June 8, 2015] JUSTICE THOMAS, concurring in the judgment in part and dissenting in part. Our Constitution allocates the powers of the Federal Government over foreign affairs in two ways. First, it expressly identifies certain foreign affairs powers and vests them in particular branches, either individually or jointly. Second, it vests the residual foreign affairs powers of the Federal Government—i.e., those not specifically enumerated in the Constitution—in the President by way of Article II’s Vesting Clause. Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, ignores that constitutional alloca- tion of power insofar as it directs the President, contrary to his wishes, to list “Israel” as the place of birth of Jerusalem- born citizens on their passports. The President has long regulated passports under his residual foreign affairs power, and this portion of §214(d) does not fall within any of Congress’ enumerated powers. By contrast, §214(d) poses no such problem insofar as it regulates consular reports of birth abroad. Unlike pass- ports, these reports were developed to effectuate the natu- ralization laws, and they continue to serve the role of identifying persons who need not be naturalized to obtain 2 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. U. S. citizenship. The regulation of these reports does not fall within the President’s foreign affairs powers, but within Congress’ enumerated powers under the Naturali- zation and Necessary and Proper Clauses. Rather than adhere to the Constitution’s division of powers, the Court relies on a distortion of the President’s recognition power to hold both of these parts of §214(d) unconstitutional. Because I cannot join this faulty analy- sis, I concur only in the portion of the Court’s judgment holding §214(d) unconstitutional as applied to passports. I respectfully dissent from the remainder of the Court’s judgment. I A The Constitution specifies a number of foreign affairs powers and divides them between the political branches. Among others, Article I allocates to Congress the powers “[t]o regulate Commerce with foreign Nations,” “[t]o estab- lish an uniform Rule of Naturalization,” “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations,” and “[t]o de- clare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Art. I, §8. For his part, the President has certain express powers relating to foreign affairs, including the powers, “by and with the Advice and Consent of the Senate,” to “appoint Ambassadors,” and “to make Treaties, provided two thirds of the Senators present concur.” Art. II, §2. He is also assigned certain duties with respect to foreign affairs, including serving as “Commander in Chief of the Army and Navy of the United States,” ibid., and “receiv[ing] Ambassadors and other public Ministers,” Art. II, §3. These specific allocations, however, cannot account for the entirety of the foreign affairs powers exercised by the Cite as: 576 U. S. ____ (2015) 3 Opinion of THOMAS, J. Federal Government. Neither of the political branches is expressly authorized, for instance, to communicate with foreign ministers, to issue passports, or to repel sudden attacks. Yet the President has engaged in such conduct, with the support of Congress, since the earliest days of the Republic. Prakash & Ramsey, The Executive Power Over Foreign Affairs, 111 Yale L. J. 231, 298–346 (2001) (Pra- kash & Ramsey). The President’s longstanding practice of exercising unenumerated foreign affairs powers reflects a constitu- tional directive that “the President ha[s] primary respon- sibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations.” Hamdi v. Rumsfeld, 542 U.S. 507, 580 (2004) (THOMAS, J., dissenting). Specifically, the Vesting Clause of Article II provides that “[t]he executive Power shall be vested in a President of the United States.” Art. II, §1. This Clause is notably different from the Vesting Clause of Article I, which provides only that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” Art. I, §1 (emphasis added). By omitting the words “herein granted” in Article II, the Constitution indicates that the “executive Power” vested in the Presi- dent is not confined to those powers expressly identified in the document. Instead, it includes all powers originally understood as falling within the “executive Power” of the Federal Government. B Founding-era evidence reveals that the “executive Power” included the foreign affairs powers of a sovereign State. See Prakash & Ramsey 253. John Locke’s 17th- century writings laid the groundwork for this understand- ing of executive power. Locke described foreign affairs powers—including the powers of “war and peace, leagues and alliances, and all the transactions with all persons 4 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. and communities without the commonwealth”—as “federa- tive” power. Second Treatise of Civil Government §146, p. 73 (J. Gough ed. 1947). He defined the “executive” power as “comprehending the execution of the municipal laws of the society within itself upon all that are parts of it.” Id., §147, at 73. Importantly, however, Locke explained that the federative and executive powers must be lodged to- gether, lest “disorder and ruin” erupt from the division of the “force of the public.” Id., §148, at 73–74. Subsequent thinkers began to refer to both of these powers as aspects of “executive power.” William Black- stone, for example, described the executive power in Eng- land as including foreign affairs powers, such as the “power of sending embassadors to foreign states, and receiv- ing embassadors at home”; making “treaties, leagues, and alliances with foreign states and princes”; “making war and peace”; and “issu[ing] letters of marque and reprisal.” 1 Commentaries on the Laws of England 245, 249, 250, 242–252 (1765) (Blackstone). Baron de Montesquieu similarly described executive power as including the power to “mak[e] peace or war, sen[d] or receiv[e] embassies, establis[h] the public security, and provid[e] against inva- sions.” The Spirit of the Laws bk. XI, ch. 6, p. 151 (O. Piest ed., T. Nugent transl. 1949). In fact, “most writers of [Montesquieu’s] tim[e] w[ere] inclined to think of the executive branch of government as being concerned nearly entirely with foreign affairs.” W. Gwyn, The Meaning of the Separation of Powers 103 (1965). That understanding of executive power prevailed in America. Following independence, Congress assumed control over foreign affairs under the Articles of Confeder- ation. See, e.g., Articles of Confederation, Art. IX, cl. 1. At that time, many understood that control to be an exercise of executive power. See Prakash & Ramsey 272, 275–278. Letters among Members of the Continental Congress, for instance, repeatedly referred to the Department of Foreign Cite as: 576 U. S. ____ (2015) 5 Opinion of THOMAS, J. Affairs, established under the control of the Continental Congress, as an “Executive departmen[t]” and to its offic- ers as “ ‘Executives or Ministers.’ ” Id., at 276, and nn. 194–196. Similarly, the Essex Result of 1778—an influen- tial report on the proposed Constitution for Massachu- setts—described executive power as including both “exter- nal” and “internal” powers: The external executive power “comprehends war, peace, the sending and receiving am- bassadors, and whatever concerns the transactions of the state with any other independent state,” while the inter- nal executive power “is employed in the peace, security and protection of the subject and his property.” Essex Result, in The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, pp. 324, 337 (O. Handlin & M. Handlin eds. 1966). This view of executive power was widespread at the time of the framing of the Constitution. Thomas Ruther- forth’s Institutes of Natural Law—a treatise routinely cited by the Founders, McDowell, The Limits of Natural Law: Thomas Rutherforth and the American Legal Tradi- tion, 37 Am. J. Juris. 57, 59, and n. 10 (1992)—explained that “external executive power” includes “not only what is properly called military power, but the power likewise of making war or peace, the power of engaging in alliances for an encrease of strength, . . . the power of entering into treaties, and of making leagues to restore peace . . . and the power of adjusting the rights of a nation in respect of navigation, trade, etc.,” 2 Institutes of Natural Law 55–56, 54–61 (1756). During the ratification debates, James Wilson likewise referred to the “executive powers of gov- ernment” as including the external powers of a nation. 2 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 500–502 (1863). And Alexander Hamilton, writing as Publius, asserted that “[t]he actual conduct of foreign negotiations,” “the arrangement of the army and navy, the directions of the 6 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. operations of war . . . and other matters of a like nature” are “executive details” that “fal[l] peculiarly within the province of the executive department.” The Federalist No. 72, pp. 435–436 (C. Rossiter ed. 1961). Given this pervasive view of executive power, it is un- surprising that those who ratified the Constitution under- stood the “executive Power” vested by Article II to include those foreign affairs powers not otherwise allocated in the Constitution. James Iredell, for example, told the North Carolina ratifying convention that, under the new Consti- tution, the President would “regulate all intercourse with foreign powers” and act as the “primary agent” of the United States, though no specific allocation of foreign affairs powers in the document so provided. 4 Elliot, supra, at 127, 128. And Alexander Hamilton presumed as much when he argued that the “[e]nergy” created in the Constitution’s Executive would be “essential to the protec- tion of the community against foreign attacks,” even though no specific allocation of foreign affairs powers provided for the Executive to repel such assaults. See The Federalist No. 70, p. 423. These statements confirm that the “executive Power” vested in the President by Article II includes the residual foreign affairs powers of the Federal Government not otherwise allocated by the Constitution.1 C Early practice of the founding generation also supports this understanding of the “executive Power.” Upon taking office, President Washington assumed the role of chief diplomat; began to direct the Secretary of Foreign Affairs who, under the Articles of Confederation, had reported to —————— 1 This discussion of the allocation of federal foreign affairs powers should not be understood to address the allocation of foreign affairs powers between the Federal Government and the States. The extent to which the States retained foreign affairs powers following ratification is not before us today. Cite as: 576 U. S. ____ (2015) 7 Opinion of THOMAS, J. the Congress; and established the foreign policy of the United States. Prakash & Ramsey 296–297. At the same time, he respected Congress’ prerogatives to declare war, regulate foreign commerce, and appropriate funds. Id., at 296. For its part, Congress recognized a broad Presidential role in foreign affairs. Id., at 297–298. It created an “Executive department” called the “Department of Foreign Affairs,” with a Secretary wholly subordinate to the Presi- dent. An Act for Establishing an Executive Department, to be denominated the Department of Foreign Affairs, 1 Stat. 28. The enabling Act provided that the Secretary was to “perform and execute such duties as shall from time to time be enjoined on or intrusted to him by the President,” including those “relative to correspondences, commissions or instructions to or with public ministers or consuls, from the United States, or to negotiations with public ministers from foreign states or princes, or to me- morials or other applications from foreign public ministers or other foreigners, or to such other matters respecting foreign affairs.” §1, id., at 29. By referring to those duties as those “the President of the United States shall assign to the said department,” ibid., the Act presumed the Presi- dent inherently possessed power to engage in those tasks. Subsequent interactions between President Washington and Congress indicated that the parties involved believed the Constitution vested the President with authority to regulate dealings with foreign nations. In his first State of the Union Address, President Washington told Congress that “[t]he interests of the United States require, that our intercourse with other nations should be facilitated by such provisions as will enable me to fulfil my duty in that respect.” First Annual Message (Jan. 8, 1790), in George Washington: A Collection 467, 468 (W. Allen ed. 1988). To that end, he asked for compensation for employees and a fund designated for “defraying the expenses incident to 8 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. the conduct of our foreign affairs.” Ibid. Congress re- sponded by passing “An Act providing the means of inter- course between the United States and foreign nations.” Ch. 22, 1 Stat. 128. During the congressional debate over that bill, the President sought an opinion from Thomas Jefferson—at that time, Secretary of State—about the scope of the Sen- ate’s power in this area. Jefferson responded that “[t]he transaction of business with foreign nations is executive altogether.” Opinion on the Powers of the Senate (Apr. 24, 1790), in 5 Writings of Thomas Jefferson 161 (P. Ford ed. 1895). As such, Jefferson concluded that it properly be- longed “to the head” of the executive department, “except as to such portions of it as are specially submitted to the senate.” Ibid. According to Washington’s diaries, he received similar advice from John Jay and James Madison about “the propriety of consulting the Senate on the places to which it would be necessary to send persons in the Diplomatic line, and Consuls.” 6 The Diaries of George Washington 68 (D. Jackson & D. Twohig eds. 1979). All agreed that the Senate lacked a “Constitutional right to interfere with either, & that it might be impolitic to draw it into a precedent their powers extending no farther than to an approbation or disapprobation of the person nomi- nated by the President all the rest being Executive and vested in the President by the Constitution.” Ibid. Washington followed this advice. He corresponded directly with U. S. ministers, moved them among coun- tries, and removed them from their positions at will. Prakash & Ramsey 308–309. He also corresponded with foreign leaders, representing that his role as the “ ‘su- preme executive authority’ ” authorized him to receive and respond to their letters on behalf of the United States. Id., at 317. When foreign ministers addressed their communi- cations to Congress, he informed them of their error. Id., at 321. Cite as: 576 U. S. ____ (2015) 9 Opinion of THOMAS, J. Washington’s control over foreign affairs extended beyond communications with other governments. When confronted with the question whether to recognize the French Republic as the lawful government of France, he received the French Republic’s emissary without the in- volvement of Congress. Id., at 312. When he later con- cluded that the emissary had acted inappropriately, he again acted without the involvement of Congress to ask the French executive to recall him. Id., at 314–315. Washington also declared neutrality on behalf of the United States during the war between England and France in 1793, see Proclamation of Neutrality (Apr. 22, 1793), an action Hamilton pseudonymously defended as a proper exercise of the power vested in the President by the “general grant” of executive power in the Vesting Clause. Pacificus No. 1 (June 29, 1793), Letters of Pacificus and Helvidius 10 (1845); id., at 3. For its part, Congress ap- plauded the President’s decision. 4 Annals of Cong. 18, 138 (1793). In short, the practices of the Washington administration and First Congress confirm that Article II’s Vesting Clause was originally understood to include a grant of residual foreign affairs power to the Executive. II The statutory provision at issue implicates the Presi- dent’s residual foreign affairs power. Section 214(d) in- structs the Secretary of State, upon request of a citizen born in Jerusalem (or that citizen’s legal guardian), to list that citizen’s place of birth as Israel on his passport and consular report of birth abroad, even though it is the undisputed position of the United States that Jerusalem is not a part of Israel. The President argues that this provi- sion violates his foreign affairs powers generally and his recognition power specifically. Zivotofsky rejoins that Congress passed §214(d) pursuant to its enumerated 10 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. powers and its action must therefore take precedence. Neither has it quite right. The President is not consti- tutionally compelled to implement §214(d) as it applies to passports because passport regulation falls squarely within his residual foreign affairs power and Zivotofsky has identified no source of congressional power to require the President to list Israel as the place of birth for a citizen born in Jerusalem on that citizen’s passport. Section 214(d) can, however, be constitutionally applied to con- sular reports of birth abroad because those documents do not fall within the President’s foreign affairs authority but do fall within Congress’ enumerated powers over naturalization.2 A 1 In the Anglo-American legal tradition, passports have consistently been issued and controlled by the body exer- cising executive power—in England, by the King; in the colonies, by the Continental Congress; and in the United States, by President Washington and every President since. Historically, “passports were classed with those docu- ments known as safe conducts or letters of protection, by —————— 2 The majority asserts that Zivotofsky “waived any argument that his consular report of birth abroad should be treated differently than his passport” in the court below and in this Court because he “fail[ed] to differentiate between the two documents.” Ante, at 5. But at every stage of the proceedings, Zivotofsky has pressed his claim that he is entitled to have his place of birth listed as “Israel” on both his passport and his consular report of birth abroad, and the consular report issue is fairly included in the question presented. Parties cannot waive the correct interpretation of the law simply by failing to invoke it. See, e.g., EEOC v. FLRA, 476 U.S. 19, 23 (1986) ( per curiam). That the parties have argued the case as if the same analysis should apply to both documents does not relieve this Court of its responsibility to interpret the law correctly. Cite as: 576 U. S. ____ (2015) 11 Opinion of THOMAS, J. which the person of an enemy might be rendered safe and inviolable.” G. Hunt, U. S. Dept. of State, The American Passport: Its History 3 (1898). Letters of safe conduct and passports performed different functions in England, but both grew out of the King’s prerogative to regulate the “nation’s intercourse with foreign nations,” see 1 Black- stone 251–253. The King issued letters of safe conduct during times of war, id., at 252, whereas passports were heirs to a tradition of requiring the King’s license to de- part the country, see, e.g., Richard II, Feb. 26, 1383, 2 Calendar of Close Rolls, pp. 281–282 (1920); 1 E. Turner, The Privy Council of England in the Seventeenth and Eighteenth Centuries 1603–1784, p. 151 (1927); see also K. Diplock, Passports and Protection in International Law, in 32 The Grotius Society, Transactions for the Year 1946, Problems of Public and Private International Law 42, 44 (1947). Both safe conducts and passports were in use at the time of the founding. Passports were given “for greater security” “on ordinary occasions [to] persons who meet with no special interference in going and coming,” whereas “safe-conduct[s]” were “given to persons who could not otherwise enter with safety the dominions of the sovereign granting it.” 3 E. de Vattel, The Law of Nations §265, p. 331 (1758 ed. C. Fenwick transl. 1916) (emphasis deleted). Both were issued by the person exercising the external sovereign power of a state. See id., §§162, 275, at 69, 332. In the absence of a separate executive branch of govern- ment, the Continental Congress issued passports during the American Revolution, see, e.g., Resolution (May 9, 1776), in 4 Journals of the Continental Congress 340–341; Resolution (May 24, 1776), in id., at 385; as did the Con- gress under the Articles of Confederation, see, e.g., 25 id., at 859 (Jan. 24, 1783) (discussing its authority to issue passports under the war power). After the ratification of the Constitution, President 12 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. Washington immediately took responsibility for issuing passports. Hunt, supra, at 3. Although “ ‘[ p]ast practice does not, by itself, create power,’ ” “a governmental prac- tice [that] has been open, widespread, and unchallenged since the early days of the Republic . . . should guide our interpretation of an ambiguous constitutional provision.” NLRB v. Noel Canning, 573 U. S. ___, ___ (2014) (SCALIA, J., concurring in judgment) (slip op., at 5) (alteration in original; some internal quotation marks omitted). The history of the President’s passport regulation in this coun- try is one such practice. From the ratification until the end of the Civil War, the President issued passports with- out any authorization from Congress. As the Department of State later remarked, “In the absence of any law upon the subject, the issuing of passports to Americans going abroad naturally fell to the Department of State, as one of its manifestly proper functions.” Hunt, supra, at 37. To that end, the Secretary’s authority was “entirely discre- tionary.” Urtetiqui v. D’Arcy, 9 Pet. 692, 699 (1835). Congress acted in support of that authority by criminaliz- ing the “violat[ion] [of ] any safe-conduct or passport duly obtained and issued under the authority of the United States.” An Act for the Punishment of certain Crimes against the United States, §28, 1 Stat. 118.3 Congress only purported to authorize the President to issue such passports in 1856 and, even under that statute, it provided that passports should be issued “under such rules as the President shall designate and prescribe for and on behalf of the United States.” An Act to regulate the Diplomatic and Consular Systems of the United States, §23, 11 Stat. 60. The President has continued to designate and pre- scribe the rules for passports ever since. —————— 3 Until 1978, passports were not generally required to enter or exit the country except during wartime. §707, 92 Stat. 993. Cite as: 576 U. S. ____ (2015) 13 Opinion of THOMAS, J. 2 That the President has the power to regulate passports under his residual foreign affairs powers does not, however, end the matter, for Congress has repeatedly legislated on the subject of passports. These laws have always been narrow in scope. For example, Congress enacted laws prohibiting the issuance of passports to noncitizens, id., at 61, created an exception to that rule for “persons liable to military duty,” Act of Mar. 3, 1863, §23, 12 Stat. 754, and then eliminated that exception, Act of May 30, 1866, ch. 102, 14 Stat. 54. It passed laws regulating the fees that the State Department should impose for issuance of the passports. Act of May 16, 1932, ch. 187, 47 Stat. 157; Act of June 4, 1920, §1, 41 Stat. 750; Act of June 15, 1917, ch. 30, Title IX, §1, 40 Stat. 227; Act of Aug. 18, 1856, §23, 11 Stat. 60; Act of Mar. 1, 1855, §12, 10 Stat. 624. It also enacted legislation addressing the duration for which passports may remain valid. §116, 96 Stat. 279; Pub. L. 90–428, 82 Stat. 446; Pub. L. 86–267, 73 Stat. 552; Act of July 3, 1926, 44 Stat. 887. And it passed laws imposing criminal penalties for false statements made when apply- ing for passports, along with misuse of passports and counterfeiting or forgery of them. Act of June 25, 1948, 62 Stat. 771; Act of Mar. 28, 1940, §7, 54 Stat. 80; 40 Stat. 227.4 As with any congressional action, however, such legisla- tion is constitutionally permissible only insofar as it is promulgated pursuant to one of Congress’ enumerated powers. I must therefore address whether Congress had constitutional authority to enact §214(d)’s regulation of passports. —————— 4 JUSTICE SCALIA, in his dissent, faults me for failing to identify the enumerated power under which these laws were permissible, but the question presented in this case is whether §214(d) is a constitutional exercise of Congress’ power, and that is the question I address. 14 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. a Zivotofsky and congressional amici identify three poten- tial sources of congressional power to enact the portion of §214(d) dealing with passports. Zivotofsky first argues that it falls within Congress’ power “to regulate the issu- ance and content of United States passports.” Brief for Petitioner 17. The U. S. Senate, as amicus curiae, like- wise contends that it can be justified under Congress’ “plenary authority over passports,” which it derives from the penumbras of its powers “ ‘[t]o regulate Commerce with foreign Nations’ ” and “ ‘[t]o establish an uniform Rule of Naturalization.’ ” Brief for United States Senate 3 (quoting U. S. Const., Art. I, §8, cls. 3, 4). None of these arguments withstands scrutiny. The Constitution contains no Passport Clause, nor does it explicitly vest Congress with “plenary authority over passports.” Because our Government is one of enumerated powers, “Congress has no power to act unless the Consti- tution authorizes it to do so.” United States v. Comstock, 560 U.S. 126, 159 (2010) (THOMAS, J., dissenting). And “[t]he Constitution plainly sets forth the ‘few and defined’ powers that Congress may exercise.” Ibid. A “passport power” is not one of them. Section 214(d)’s passport directive fares no better under those powers actually included in Article I. To start, it does not fall within the power “[t]o regulate Commerce with foreign Nations.” “At the time the original Constitu- tion was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” United States v. Lopez, 514 U.S. 549, 585 (1995) (THOMAS, J., concurring). The listing of the place of birth of an applicant—whether born in Jerusalem or not—does not involve selling, buying, bartering, or transporting for those purposes. Cf. United States v. Morrison, 529 U.S. 598, 613 (2000) (“[O]ur cases have upheld Commerce Clause regulation of intrastate activity [under the power to regu- Cite as: 576 U. S. ____ (2015) 15 Opinion of THOMAS, J. late commerce among the several States] only where that activity is economic in nature”). True, a passport is frequently used by persons who may intend to engage in commerce abroad, but that use is insufficient to bring §214(d)’s passport directive within the scope of this power. The specific conduct at issue here— the listing of the birthplace of a U. S. citizen born in Jeru- salem on a passport by the President—is not a commercial activity. Any commercial activities subsequently under- taken by the bearer of a passport are yet further removed from that regulation. The power “[t]o establish an uniform Rule of Naturaliza- tion” is similarly unavailing. At the founding, the word “naturalization” meant “[t]he act of investing aliens with the privileges of native subjects.” 2 S. Johnson, A Diction- ary of the English Language 1293 (4th ed. 1773); see also T. Dyche & W. Pardon, A New General English Dictionary (1771) (“the making a foreigner or alien, a denizen or freeman of any kingdom or city, and so becoming, as it were, both a subject and a native of a king or country, that by nature he did not belong to”). A passport has never been issued as part of the naturalization process. It is— and has always been—a “travel document,” Dept. of State, 7 Foreign Affairs Manual (or FAM) §1311(b) (2013), issued for the same purpose it has always served: a request from one sovereign to another for the protection of the bearer. See supra, at 10–12. b For similar reasons, the Necessary and Proper Clause gives Congress no authority here. That Clause provides, “The Congress shall have Power . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” 16 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. U. S. Const., Art. I, §8, cl. 18. As an initial matter, “Con- gress lacks authority to legislate [under this provision] if the objective is anything other than ‘carrying into Execu- tion’ one or more of the Federal Government’s enumerated powers.” Comstock, supra, at 161 (THOMAS, J., dissent- ing). The “end [must] be legitimate” under our constitu- tional structure. McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). But even if the objective of a law is carrying into execu- tion one of the Federal Government’s enumerated powers, the law must be both necessary and proper to that objec- tive. The “Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power.” Gonzales v. Raich, 545 U.S. 1, 60 (2005) (THOMAS, J., dissenting). Instead, “there must be a necessary and proper fit between the ‘means’ (the federal law) and the ‘end’ (the enumerated power or powers) it is designed to serve.” Comstock, supra, at 160 (THOMAS, J., dissenting). The “means” chosen by Con- gress “will be deemed ‘necessary’ if they are ‘appropriate’ and ‘plainly adapted’ to the exercise of an enumerated power, and ‘proper’ if they are not otherwise ‘prohibited’ by the Constitution and not ‘[in]consistent’ with its ‘letter and spirit.’ ” Id., at 160–161 (alteration in original). The argument that §214(d), as applied to passports, could be an exercise of Congress’ power to carry into exe- cution its foreign commerce or naturalization powers falters because this aspect of §214(d) is directed at neither of the ends served by these powers. Although at a high level of generality, a passport could be related to foreign commerce and naturalization, that attenuated relation- ship is insufficient. The law in question must be “directly link[ed]” to the enumerated power. Id., at 169, n. 8. As applied to passports, §214(d) fails that test because it does not “ ‘carr[y] into Execution’ ” Congress’ foreign commerce or naturalization powers. Id., at 160. At most, it bears a Cite as: 576 U. S. ____ (2015) 17 Opinion of THOMAS, J. tertiary relationship to an activity Congress is permitted to regulate: It directs the President’s formulation of a document, which, in turn, may be used to facilitate travel, which, in turn, may facilitate foreign commerce. And the distinctive history of the passport as a travel rather than citizenship document makes its connection to naturaliza- tion even more tenuous. Nor can this aspect of §214(d) be justified as an exercise of Congress’ power to enact laws to carry into execution the President’s residual foreign affairs powers. Simply put, §214(d)’s passport directive is not a “proper” means of carrying this power into execution. To be “proper,” a law must fall within the peculiar com- petence of Congress under the Constitution. Though “proper” was susceptible of several definitions at the time of the founding, only two are plausible candidates for use in the Necessary and Proper Clause—(1) “[f ]it; accommo- dated; adapted; suitable; qualified” and (2) “[ p]eculiar; not belonging to more; not common.” See 2 Johnson, supra, at 1537. Because the former would render the word “neces- sary” superfluous, McCulloch, supra, at 413, and we ordi- narily attempt to give effect “to each word of the Constitu- tion,” Knowlton v. Moore, 178 U.S. 41, 87 (1900), the latter is the more plausible. That is particularly true because the Constitution elsewhere uses the term “proper” by itself, Art. I, §9, Art. II, §§2, 3; the term “necessary” by itself, Art. I, §7; Art. V; and the term “necessary” as part of the phrase “necessary and expedient,” Art. II, §3. Thus, the best interpretation of “proper” is that a law must fall within the peculiar jurisdiction of Congress. Our constitutional structure imposes three key limita- tions on that jurisdiction: It must conform to (1) the alloca- tion of authority within the Federal Government, (2) the allocation of power between the Federal Government and the States, and (3) the protections for retained individual rights under the Constitution. See Lawson & Granger, 18 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 291, 297 (1993). In other words, to be “proper,” a law “must be consistent with principles of separation of pow- ers, principles of federalism, and individual rights.” Id., at 297. Commentators during the ratification debates treated “proper” as having this meaning. Writing as Publius, Hamilton posed the question who would “judge . . . the necessity and propriety of the laws to be passed for execut- ing the powers of the Union” and responded that “[t]he propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded.” The Federalist, No. 33, pp. 203–204. For example, a law that “exceeded [Congress’] jurisdiction” and invaded the authority of the States would not meet that standard. Id., at 204. Similarly, an “impartial citi- zen” wrote in a Virginia newspaper that, even if the gov- ernmental powers could not “be executed without the aid of a law, granting commercial monopolies, inflicting un- usual punishments, creating new crimes, or commanding any unconstitutional act,” thus making the law necessary to the execution of a power, “such a law would be mani- festly not proper,” and not “warranted by this clause, without absolutely departing from the usual acceptation of words.” An Impartial Citizen V, Petersburg Va. Gazette, Feb. 28, 1788, in 8 Documentary History of the Ratifica- tion of the Constitution 428, 431 (J. Kaminski & G. Sala- dino eds. 1988) (emphasis deleted). Early interpretations of the Clause following ratification largely confirm that view. Lawson & Granger, supra, at 298–308. During debate on the Bank of the United States in the First Congress, for example, Representative Ames declared that the correct construction of the Necessary and Proper Clause “promotes the good of the society, and the ends for which the Government was adopted, without Cite as: 576 U. S. ____ (2015) 19 Opinion of THOMAS, J. impairing the rights of any man, or the powers of any State.” 2 Annals of Cong. 1906 (1791). During the Second Congress, Representative Niles railed against a bill that would have authorized federal mail carriers to transport passengers for hire in order to reduce the cost of the mails. He said that such a law would not be “proper” to the power to establish post offices and post roads because some States had “an exclusive right of carrying passengers for hire” and an interpretation of the word “proper” that would allow the bill would render “as nugatory, all [the States’] deliberations on the Constitution” and effectively vest Congress with “general authority to legislate on every subject.” 3 id., at 308–310 (1792) (emphasis deleted). Each of these comments presumed that the word “proper” imposed a jurisdictional limit on congressional activity. This evidence makes sense in light of the Framers’ efforts to ensure a separation of powers, reinforced by checks and balances, as “practical and real protectio[n] for individual liberty in the new Constitution.” Perez v. Mort- gage Bankers Assn., 575 U. S. ___, ___ (2015) (THOMAS, J., concurring in judgment) (slip op., at 8). If Congress could rely on the Necessary and Proper Clause to exercise power expressly allocated to the other branches or to prevent the exercise of such power by other branches, it could under- mine the constitutional allocation of powers. That the evidence thus points to a definition of “proper” that protects the separation of powers does not fully ex- plain the way that the “proper” requirement operates when Congress seeks to facilitate the exercise of a power allocated to another branch. I can see two potential mech- anisms, either or both of which may accurately reflect the original understanding of the Clause. First, a law could be “improper” if it purports to direct another branch’s exer- cise of its power. See Calabresi & Prakash, The Presi- dent’s Power to Execute the Laws, 104 Yale L. J. 541, 591 (1994) (“[T]he Clause . . . does [not] allow Congress to tell 20 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. constitutionally empowered actors how they can imple- ment their exclusive powers”). Second, a law could be “improper” if it takes one of those actions and the branch to which the power is allocated objects to the action. See Prakash & Ramsey 255–256 (“Congress has the general power to legislate in support of the President’s foreign policy goals. But . . . [s]ince it is derivative of the Presi- dent’s power, it must be exercised in coordination with, and not in opposition to, the President”). I need not resolve that question today, as the applica- tion of §214(d) to passports would be improper under either approach. The President has made a determination that the “place of birth” on a passport should list the country of present sovereignty. 7 FAM, §1300, App. D, §1330 (2014). And the President has determined that no country is presently exercising sovereignty over the area of Jerusalem. Thus, the President has provided that passports for persons born in Jerusalem should list “Jeru- salem” as the place of birth in the passport. Id., §1360(f ). Section 214(d) directs the President to exercise his power to issue and regulate the content of passports in a particu- lar way, and the President has objected to that direction. Under either potential mechanism for evaluating the propriety of a law under the separation-of-powers limita- tion, this law would be improper.5 c In support of his argument that the President must enforce §214(d), Zivotofsky relies heavily on a similar statute addressing the place of birth designation for per- sons born in Taiwan. See Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, §132, 108 Stat. 395. That statute provided, “For purposes of the registration of —————— 5 Because §214(d) is not proper, I need not resolve whether such a law could be understood to “carry into execution” the President’s power. Cite as: 576 U. S. ____ (2015) 21 Opinion of THOMAS, J. birth or certification of nationality of a United States citizen born in Taiwan, the Secretary of State shall permit the place of birth to be recorded as Taiwan.” Ibid. The President has adopted that practice. The President’s decision to adopt that practice, however, says nothing about the constitutionality of the Taiwan provision in the first place. The constitutional allocation of powers “does not depend on the views of individual Presidents, nor on whether the encroached upon branch approves the encroachment.” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 497 (2010) (citation and internal quotation marks omit- ted).6 And the argument from Presidential acquiescence here is particularly weak, given that the Taiwan statute is consistent with the President’s longstanding policy on Taiwan. At the time Congress enacted the statute, the Foreign Affairs Manual permitted consular officials to list “the city or area of birth” on a passport “[w]here the birth- place of the applicant is located in territory disputed by another country,” 7 FAM §1383.5–2 (1987), and to list “the city or town, rather than the country” of an applicant’s birth “when there are objections to the listing shown on the birthplace guide,” id., §1383.6. Because the President otherwise treats Taiwan as a geographical area within the People’s Republic of China, listing Taiwan as the place of birth did not directly conflict with the President’s prevail- ing practices. Section 214(d) does so conflict, as it requires the President to list citizens born in Jerusalem as born in “Israel,” even though the Foreign Affairs Manual has long —————— 6 This principle is not necessarily inconsistent with the second mech- anism for evaluating congressional action under the Necessary and Proper Clause discussed above. Although that mechanism would tie the propriety of congressional action to the objection (or nonobjection) of another branch, the point of that tying feature is to determine whether, in fact, Congress has encroached upon another branch, not whether such encroachment is acceptable. 22 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. prohibited that action. d JUSTICE SCALIA would locate Congress’ power to enact the passport directive of §214(d) in Congress’ power under the Necessary and Proper Clause to bring into effect its enumerated power over naturalization. Post, at 3–4 (dis- senting opinion). As an initial matter, he asserts that “[t]he naturalization power . . . enables Congress to fur- nish the people it makes citizens with papers verifying their citizenship,” post, at 3, yet offers no support for this interpretation of a clause that, by its terms, grants Con- gress only the “Power . . . To establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4. He then concludes that, if Congress can grant such documents, “it may also require these [documents] to record his birth- place as ‘Israel’ ” pursuant to its power under the Neces- sary and Proper Clause, post, at 3. But this theory does not account for the President’s power to act in this area, nor does it confront difficult questions about the applica- tion of the Necessary and Proper Clause in the case of conflict among the branches. JUSTICE SCALIA disapproves of my “assertion of broad, unenumerated ‘residual powers’ in the President,” post, at 19, but offers no response to my interpretation of the words “executive Power” in the Constitution. Instead, he claims that I have argued for “Presidential primacy over passports” and then rejects that position based on two postratification English statutes, the early practice of nonfederal actors issuing passports in this country, and the same congressional statutes that I have already dis- cussed, most of which were enacted after the Civil War. Post, at 16–17; supra, at 13, and n. 4. But I do not argue that the President possesses primary power over pass- ports. I need not argue that. I argue only that Congress did not act according to any of the powers granted to it in Cite as: 576 U. S. ____ (2015) 23 Opinion of THOMAS, J. the Constitution and, in such circumstances, the question of primacy does not arise. In any event, the historical evidence cited in JUSTICE SCALIA’s dissent does not conflict with my analysis of the President’s power in this area. The two postratification English statutes implicitly acknowledged that passports are issued by executive officers in the exercise of executive power, see 38 Geo. III, ch. 50, §8, in 41 Eng. Stat. at Large 684; 33 Geo. III, ch. 4, §8, in 39 Eng. Stat. at Large 12, and the practice of executive officials in the States of this country confirms that relationship. In addition, neither piece of historical evidence speaks to the scope of Congress’ power to regulate passports under our federal system. JUSTICE SCALIA’s final piece of historical support—the increased congressional regulation of passports following the Civil War—is perhaps more on point from an institu- tional perspective, but still does not resolve the issue. Those regulations were, as I have already described, nar- row in scope and continued to leave primary regulation of the content of passports to the President. To draw an inference from these “late-arising historical practices that are ambiguous at best”—and that might conflict with the original meaning of the “executive Power” and the “proper” requirement in the Necessary and Proper Clause—is a dubious way to undertake constitutional analysis. See Noel Canning, 573 U. S., at ___ (SCALIA, J., concurring in judgment) (slip op., at 2). Even more dubious, however, is the cursory treatment of the Necessary and Proper Clause in JUSTICE SCALIA’s dissent. He asserts that, in acting pursuant to that Clause, “Congress . . . may not transcend boundaries upon legislative authority stated or implied elsewhere in the Constitution.” Post, at 4. But he offers no explanation for what those implied limits might be or how they would operate. Does he, for example, agree that the word “proper” requires Congress to act in a manner “ ‘consistent with 24 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. principles of separation of powers, principles of federalism, and individual rights’ ”? Supra, at 18 (quoting Lawson & Grainger, 43 Duke L. J., at 297). If so, then why does he find that requirement satisfied in this case? Is it because he views the President as having no constitutional author- ity to act in this area? Or is it because he views Congress’ directive to the President as consistent with the separa- tion of powers, irrespective of the President’s authority? If the latter, is that because he perceives no separation-of- powers limitations on Congress when it acts to carry into execution one of its enumerated powers, as opposed to the enumerated powers of another branch? And if that is the case, what textual, structural, or historical evidence exists for that interpretation? JUSTICE SCALIA’s dissent raises more questions than it answers. JUSTICE SCALIA’s dissent does at least answer how, in his view, the Constitution would resolve a conflict between the political branches, each acting pursuant to the powers granted them under the Constitution. He believes that congressional power should trump in any such conflict. Post, at 18. I see nothing in the Constitution that clearly mandates that solution to a difficult separation-of-powers question, and I need not opine on it. I find no power under which Congress could lawfully have enacted the passport directive of §214(d), apart from its power under the Neces- sary and Proper Clause to carry into effect the President’s powers. And I have offered textual and historical support for my conclusion that the Clause does not include the power to direct the President’s exercise of his passport power. Finally, JUSTICE SCALIA faults me for failing to consider a number of potential sources of congressional power for §214(d) not argued by any of the parties, ranging from the Fourteenth Amendment; to the Migration or Importation Clause, Art. I, §9, cl. 1; to the Territories Clause, Art. IV, §3, cl. 2. Post, at 15. But no one—not even JUSTICE Cite as: 576 U. S. ____ (2015) 25 Opinion of THOMAS, J. SCALIA—has seriously contended that those provisions would afford a basis for the passport provision of §214(d). In the end, JUSTICE SCALIA characterizes my interpreta- tion of the executive power, the naturalization power, and the Necessary and Proper Clause as producing “a presi- dency more reminiscent of George III than George Wash- ington.” Post, at 19. But he offers no competing interpre- tation of either the Article II Vesting Clause or the Necessary and Proper Clause. And his decision about the Constitution’s resolution of conflict among the branches could itself be criticized as creating a supreme legislative body more reminiscent of the Parliament in England than the Congress in America. * * * Because the President has residual foreign affairs au- thority to regulate passports and because there appears to be no congressional power that justifies §214(d)’s applica- tion to passports, Zivotofsky’s challenge to the Executive’s designation of his place of birth on his passport must fail. B Although the consular report of birth abroad shares some features with a passport, it is historically associated with naturalization, not foreign affairs. In order to estab- lish a “uniform Rule of Naturalization,” Congress must be able to identify the categories of persons who are eligible for naturalization, along with the rules for that process. Congress thus has always regulated the “acquisition of citizenship by being born abroad of American parents . . . in the exercise of the power conferred by the Constitution to establish a uniform rule of naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 688 (1898); see also Miller v. Albright, 523 U.S. 420, 456 (1998) (SCALIA, J., concurring in judgment) (recognizing that “Congress has the power to set the requirements for acquisition of 26 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. citizenship by persons not born within the territory of the United States”). It has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process. 8 U.S. C. §§ 1401(c), (d), (g). The consular report of birth abroad is well suited to carrying into execution the power conferred on Congress in the Naturalization Clause. The report developed in response to Congress’ requirement that children born abroad to U. S. citizens register with the consulate or lose their citizenship. And it continues to certify the acquisi- tion of U. S. citizenship at birth by a person born abroad to a U. S. citizen. See 22 U.S. C. §2705(2). Although such persons have possessed a statutory right to citizenship at birth for much of this country’s history,7 the process by which that citizenship is evidenced has varied over time. Under the 1870 consular regulations, for instance, children born abroad to U. S. citizens were is- sued no certificates. If they applied for a U. S. passport, then they were issued one “qualified by the obligations and duties” that attached to those citizens by virtue of their residence in a foreign nation. Regulations Prescribed For The Use Of The Consular Service of the United States App. No. IV, p. 288 (1870); see also id., §109, at 38–39. Congress acted in 1907 to require children resid- ing abroad to register with their local consulate at the age of 18. Act of Mar. 2, 1907, §6, 34 Stat. 1229. Because of the importance of this registration requirement, consular —————— 7 The First Congress passed a law recognizing citizenship at birth for children born abroad to U. S. citizens. Act of Mar. 26, 1790, ch. 3, §1, 1 Stat. 104. An 1802 amendment to the provision rendered the availabil- ity of this citizenship uncertain. Binney, The Alienigenae of the United States, 2 Am. L. Reg. 193, 193 (1854). But Congress acted to clarify the availability of such citizenship in 1855, Act of Feb. 10, 1855, ch. 71, 10 Stat. 604, and it continues to exist to this day, see Immigration and Nationality Act, §301(a), 66 Stat. 235. Cite as: 576 U. S. ____ (2015) 27 Opinion of THOMAS, J. officials began to issue reports to citizens confirming their registration. See generally National Archives, General Records of the Dept. of State, Record Group 59, Passport Office, Decimal File, 1910–1949. In 1919, the Department of State acted to standardize the consular registration of children born abroad. Report of Birth of Children to American Citizens Residing Abroad, General Instruction No. 652. It urged consulates to impress upon U. S. citizens abroad the need to record the birth of their children within two years. Id., at 2. To encourage that effort, the Department permitted consular officials to issue reports attesting that the parents of U. S. citizens born abroad had presented sufficient evidence of citizenship for their children. Ibid. The 1960’s brought additional regulations of consular reports of birth abroad, 31 Fed. Reg. 13538 (1966), which continue in a substantially similar form to this day. See 22 CFR §§50.5, 50.7 (2014). As currently issued, the consular report of birth abroad includes the applicant’s name, sex, place of birth, date of birth, and parents. It has had the “same force and effect as proof of United States citizenship as [a] certificat[e] of naturalization” since 1982. §117, 96 Stat. 279. Thus, although registration is no longer required to maintain birthright citizenship, the consular report of birth abroad remains the primary means by which chil- dren born abroad may obtain official acknowledgement of their citizenship. See 22 CFR §51.43. Once acknowledged as U. S. citizens, they need not pursue the naturalization process to obtain the rights and privileges of citizenship in this country. Regulation of the report is thus “appropri- ate” and “plainly adapted” to the exercise of the naturali- zation power. See Comstock, 560 U.S., at 161 (THOMAS, J., dissenting). By contrast, regulation of the report bears no relation- ship to the President’s residual foreign affairs power. It 28 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. has no historical pedigree uniquely associated with the President, contains no communication directed at a for- eign power, and is primarily used for domestic purposes. To the extent that a citizen born abroad seeks a document to use as evidence of his citizenship abroad, he must ob- tain a passport. See generally 7 FAM §1311. Because regulation of the consular report of birth abroad is justified as an exercise of Congress’ powers under the Naturalization and Necessary and Proper Clauses and does not fall within the President’s foreign affairs powers, §214(d)’s treatment of that document is constitutional.8 III The majority does not perform this analysis, but instead relies on a variation of the recognition power. That power is among the foreign affairs powers vested in the President by Article II’s Vesting Clause, as is confirmed by Article II’s express assignment to the President of the duty of receiving foreign Ambassadors, Art. II, §3. But I cannot join the majority’s analysis because no act of recognition is implicated here.9 —————— 8 As the issue is not presented, I need not decide how a direct conflict between action pursuant to an enumerated power of Congress and action pursuant to the residual foreign affairs power of the President should be resolved. 9 I assume, as the majority does, that the recognition power conferred on the President by the Constitution is the power to accomplish the act of recognition as that act is defined under international law. It is possible, of course, that the Framers had a fixed understanding of the act of recognition that is at odds with the definition of that act under international law. But the majority does not make that argument, nor does the majority even specifically address how consular reports of birth abroad are related to recognition. Lacking any evidence that the modern practice of recognition deviates in any relevant way from the historical practice, or that the original understanding of the recognition power was something other than the power to take part in that prac- tice, I proceed on the same assumption as the majority. Cite as: 576 U. S. ____ (2015) 29 Opinion of THOMAS, J. Under international law, “recognition of a state signifies acceptance of its position within the international commu- nity and the possession by it of the full range of rights and obligations which are the normal attributes of statehood.” 1 Oppenheim’s International Law §47, 158 (R. Jennings & A. Watts eds., 9th ed. 1992) (footnote omitted) (Oppen- heim).10 It can be accomplished expressly or implicitly, but the key is to discern a clear intention on the part of one state to recognize another. Id., §50, at 169. Important consequences are understood to flow from one state’s recognition of another: The new state, for instance, ac- quires the capacity to engage in diplomatic relations, including the negotiation of treaties, with the recognizing state. Id., §47, at 158. The new state is also entitled to sue in, invoke sovereign immunity from, and demand acceptance of official acts in the courts of the recognizing state. Ibid.; see also I. Brownlie, Principles of Public International Law 95–96 (7th ed. 2008). Changes in territory generally do not affect the status of a state as an international person. Oppenheim §57, at 204–205. France, for example, “has over the centuries retained its identity although it acquired, lost and re- gained parts of its territory, changed its dynasty, was a kingdom, a republic, an empire, again a kingdom, again a republic, again an empire, and is now once more a repub- lic.” Ibid. “Even such loss of territory as occasions the reduction of a major power to a lesser status does not affect the state as an international person.” Id., §57, at 205. Changes that would affect the status as an interna- tional person include the union of two separate interna- —————— 10 Scholars have long debated the extent to which official recognition by the sovereign states that make up the international community is necessary to bring a new “state” into the international community and thereby subject it to international law. Oppenheim §39, at 128–129. Resolving this debate is not necessary to resolve the issue at hand, so I describe the modern view of recognition without endorsing it. 30 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. tional persons or a partial loss of independence. Id., §58, at 206. Assuming for the sake of argument that listing a non- recognized foreign sovereign as a citizen’s place of birth on a U. S. passport could have the effect of recognizing that sovereign under international law, no such recognition would occur under the circumstances presented here. The United States has recognized Israel as a foreign sovereign since May 14, 1948. Statement by the President Announc- ing the Recognition of the State of Israel, Public Papers of the Presidents, Harry S. Truman, p. 258 (1964). That the United States has subsequently declined to acknowledge Israel’s sovereignty over Jerusalem has not changed its recognition of Israel as a sovereign state. And even if the United States were to acknowledge Israel’s sovereignty over Jerusalem, that action would not change its recogni- tion of Israel as a sovereign state. That is because the United States has already afforded Israel the rights and responsibilities attendant to its status as a sovereign State. Taking a different position on the Jerusalem ques- tion will have no effect on that recognition.11 Perhaps recognizing that a formal recognition is not implicated here, the majority reasons that, if the Execu- tive’s exclusive recognition power “is to mean anything, it must mean that the President not only makes the initial, formal recognition determination but also that he may maintain that determination in his and his agent’s state- ments.” Ante, at 26. By “alter[ing] the President’s state- ments on matters of recognition or forc[ing] him to contra- dict them,” the majority reasons, “Congress in effect would exercise the recognition power.” Ante, at 27. This argu- ment stretches the recognition power beyond all recogni- —————— 11 The analysis might look different if §214(d) required the President to list as a “place of birth” a country that the United States has never officially recognized. That is not the case here. Cite as: 576 U. S. ____ (2015) 31 Opinion of THOMAS, J. tion. Listing a Jerusalem-born citizen’s place of birth as “Israel” cannot amount to recognition because the United States already recognizes Israel as an international per- son. Rather than adopt a novel definition of the recogni- tion power, the majority should have looked to other for- eign affairs powers in the Constitution to resolve this dispute. * * * Adhering to the Constitution’s allocation of powers leads me to reach a different conclusion in this case from my colleagues: Section 214(d) can be constitutionally applied to consular reports of birth abroad, but not passports. I therefore respectfully concur in the judgment in part and dissent in part. Cite as: 576 U. S. ____ (2015) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 13–628 _________________ MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY, PETITIONER v.

I continue to believe that this case presents a political question inappropriate for judicial resolution. See Zivo- tofsky v. Clinton, 566 U. S. (2012) (BREYER, J., dissenting). But because precedent precludes resolving this case on political question grounds, see at (majority opinion) (slip op., at 1), I join the Court’s opinion. Cite as: 576 U. S. (2015) 1 Opinion of THOMAS, J. SUPREME COURT OF THE UNITED STATES No. 13–628 MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY, PETITIONER v. JOHN KERRY, SECRETARY OF STATE ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [June 8, 2015] JUSTICE THOMAS, concurring in the judgment in part and dissenting in part. Our Constitution allocates the powers of the Federal Government over foreign affairs in two ways. First, it expressly identifies certain foreign affairs powers and vests them in particular branches, either individually or jointly. Second, it vests the residual foreign affairs powers of the Federal Government—i.e., those not specifically enumerated in the Constitution—in the President by way of Article II’s Vesting Clause. Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, ignores that constitutional alloca- tion of power insofar as it directs the President, contrary to his wishes, to list “Israel” as the place of birth of Jerusalem- born citizens on their passports. The President has long regulated passports under his residual foreign affairs power, and this portion of does not fall within any of Congress’ enumerated powers. By contrast, poses no such problem insofar as it regulates consular reports of birth abroad. Unlike pass- ports, these reports were developed to effectuate the natu- ralization laws, and they continue to serve the role of identifying persons who need not be naturalized to obtain 2 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. U. S. citizenship. The regulation of these reports does not fall within the President’s foreign affairs powers, but within Congress’ enumerated powers under the Naturali- zation and Necessary and Proper Clauses. Rather than adhere to the Constitution’s division of powers, the Court relies on a distortion of the President’s recognition power to hold both of these parts of unconstitutional. Because I cannot join this faulty analy- sis, I concur only in the portion of the Court’s judgment holding unconstitutional as applied to passports. I respectfully dissent from the remainder of the Court’s judgment. I A The Constitution specifies a number of foreign affairs powers and divides them between the political branches. Among others, Article I allocates to Congress the powers “[t]o regulate Commerce with foreign Nations,” “[t]o estab- lish an uniform Rule of Naturalization,” “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations,” and “[t]o de- clare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Art. I, For his part, the President has certain express powers relating to foreign affairs, including the powers, “by and with the Advice and Consent of the Senate,” to “appoint Ambassadors,” and “to make Treaties, provided two thirds of the Senators present concur.” Art. II, He is also assigned certain duties with respect to foreign affairs, including serving as “Commander in Chief of the Army and Navy of the United States,” ib and “receiv[ing] Ambassadors and other public Ministers,” Art. II, These specific allocations, however, cannot account for the entirety of the foreign affairs powers exercised by the Cite as: 576 U. S. (2015) 3 Opinion of THOMAS, J. Federal Government. Neither of the political branches is expressly authorized, for instance, to communicate with foreign ministers, to issue passports, or to repel sudden attacks. Yet the President has engaged in such conduct, with the support of Congress, since the earliest days of the Republic. Prakash & Ramsey, The Executive Power Over Foreign Affairs, 111 Yale L. J. 1, 298–346 (2001) (Pra- kash & Ramsey). The President’s longstanding practice of exercising unenumerated foreign affairs powers reflects a constitu- tional directive that “the President ha[s] primary respon- sibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations.” Specifically, the Vesting Clause of Article II provides that “[t]he executive Power shall be vested in a President of the United States.” Art. II, This Clause is notably different from the Vesting Clause of Article I, which provides only that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” Art. I, (emphasis added). By omitting the words “herein granted” in Article II, the Constitution indicates that the “executive Power” vested in the Presi- dent is not confined to those powers expressly identified in the document. Instead, it includes all powers originally understood as falling within the “executive Power” of the Federal Government. B Founding-era evidence reveals that the “executive Power” included the foreign affairs powers of a sovereign State. See Prakash & Ramsey 253. John Locke’s 17th- century writings laid the groundwork for this understand- ing of executive power. Locke described foreign affairs powers—including the powers of “war and peace, leagues and alliances, and all the transactions with all persons 4 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. and communities without the commonwealth”—as “federa- tive” power. Second Treatise of Civil Government 46, p. 73 (J. Gough ed. 1947). He defined the “executive” power as “comprehending the execution of the municipal laws of the society within itself upon all that are parts of it.” 47, at 73. Importantly, however, Locke explained that the federative and executive powers must be lodged to- gether, lest “disorder and ruin” erupt from the division of the “force of the public.” 48, at 73–74. Subsequent thinkers began to refer to both of these powers as aspects of “executive power.” William Black- stone, for example, described the executive power in Eng- land as including foreign affairs powers, such as the “power of sending embassadors to foreign states, and receiv- ing embassadors at home”; making “treaties, leagues, and alliances with foreign states and princes”; “making war and peace”; and “issu[ing] letters of marque and reprisal.” 1 Commentaries on the Laws of England 245, 249, 250, 242–252 (1765) (Blackstone). Baron de Montesquieu similarly described executive power as including the power to “mak[e] peace or war, sen[d] or receiv[e] embassies, establis[h] the public security, and provid[e] against inva- sions.” The Spirit of the Laws bk. XI, ch. 6, p. 151 (O. Piest ed., T. Nugent transl. 1949). In fact, “most writers of [Montesquieu’s] tim[e] w[ere] inclined to think of the executive branch of government as being concerned nearly entirely with foreign affairs.” W. Gwyn, The Meaning of the Separation of Powers 103 (1965). That understanding of executive power prevailed in America. Following independence, Congress assumed control over foreign affairs under the Articles of Confeder- ation. See, e.g., Articles of Confederation, Art. IX, cl. 1. At that time, many understood that control to be an exercise of executive power. See Prakash & Ramsey 272, 275–278. Letters among Members of the Continental Congress, for instance, repeatedly referred to the Department of Foreign Cite as: 576 U. S. (2015) 5 Opinion of THOMAS, J. Affairs, established under the control of the Continental Congress, as an “Executive departmen[t]” and to its offic- ers as “ ‘Executives or Ministers.’ ” and nn. 194–196. Similarly, the Essex Result of 1778—an influen- tial report on the proposed Constitution for Massachu- setts—described executive power as including both “exter- nal” and “internal” powers: The external executive power “comprehends war, peace, the sending and receiving am- bassadors, and whatever concerns the transactions of the state with any other independent state,” while the inter- nal executive power “is employed in the peace, security and protection of the subject and his property.” Essex Result, in The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, pp. 324, 337 (O. Handlin & M. Handlin eds. 1966). This view of executive power was widespread at the time of the framing of the Constitution. Thomas Ruther- forth’s Institutes of Natural Law—a treatise routinely cited by the Founders, McDowell, The Limits of Natural Law: Thomas Rutherforth and the American Legal Tradi- tion, and n. 10 (1992)—explained that “external executive power” includes “not only what is properly called military power, but the power likewise of making war or peace, the power of engaging in alliances for an encrease of strength, the power of entering into treaties, and of making leagues to restore peace and the power of adjusting the rights of a nation in respect of navigation, trade, etc.,” 2 Institutes of Natural Law 55–56, 54–61 (1756). During the ratification debates, James Wilson likewise referred to the “executive powers of gov- ernment” as including the external powers of a nation. 2 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 500–502 (1863). And Alexander Hamilton, writing as Publius, asserted that “[t]he actual conduct of foreign negotiations,” “the arrangement of the army and navy, the directions of the 6 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. operations of war and other matters of a like nature” are “executive details” that “fal[l] peculiarly within the province of the executive department.” The Federalist No. 72, pp. 435–436 (C. Rossiter ed. 1961). Given this pervasive view of executive power, it is un- surprising that those who ratified the Constitution under- stood the “executive Power” vested by Article II to include those foreign affairs powers not otherwise allocated in the Constitution. James Iredell, for example, told the North Carolina ratifying convention that, under the new Consti- tution, the President would “regulate all intercourse with foreign powers” and act as the “primary agent” of the United States, though no specific allocation of foreign affairs powers in the document so provided. 4 Elliot, And Alexander Hamilton presumed as much when he argued that the “[e]nergy” created in the Constitution’s Executive would be “essential to the protec- tion of the community against foreign attacks,” even though no specific allocation of foreign affairs powers provided for the Executive to repel such assaults. See The Federalist No. 70, p. 4. These statements confirm that the “executive Power” vested in the President by Article II includes the residual foreign affairs powers of the Federal Government not otherwise allocated by the Constitution.1 C Early practice of the founding generation also supports this understanding of the “executive Power.” Upon taking office, President Washington assumed the role of chief diplomat; began to direct the Secretary of Foreign Affairs who, under the Articles of Confederation, had reported to —————— 1 This discussion of the allocation of federal foreign affairs powers should not be understood to address the allocation of foreign affairs powers between the Federal Government and the States. The extent to which the States retained foreign affairs powers following ratification is not before us today. Cite as: 576 U. S. (2015) 7 Opinion of THOMAS, J. the Congress; and established the foreign policy of the United States. Prakash & Ramsey 296–297. At the same time, he respected Congress’ prerogatives to declare war, regulate foreign commerce, and appropriate funds. 6. For its part, Congress recognized a broad Presidential role in foreign affairs. 7–298. It created an “Executive department” called the “Department of Foreign Affairs,” with a Secretary wholly subordinate to the Presi- dent. An Act for Establishing an Executive Department, to be denominated the Department of Foreign Affairs, 1 Stat. 28. The enabling Act provided that the Secretary was to “perform and execute such duties as shall from time to time be enjoined on or intrusted to him by the President,” including those “relative to correspondences, commissions or instructions to or with public ministers or consuls, from the United States, or to negotiations with public ministers from foreign states or princes, or to me- morials or other applications from foreign public ministers or other foreigners, or to such other matters respecting foreign affairs.” By referring to those duties as those “the President of the United States shall assign to the said department,” ib the Act presumed the Presi- dent inherently possessed power to engage in those tasks. Subsequent interactions between President Washington and Congress indicated that the parties involved believed the Constitution vested the President with authority to regulate dealings with foreign nations. In his first State of the Union Address, President Washington told Congress that “[t]he interests of the United States require, that our intercourse with other nations should be facilitated by such provisions as will enable me to fulfil my duty in that respect.” First Annual Message (Jan. 8, 1790), in George Washington: A Collection 467, 468 (W. Allen ed. 1988). To that end, he asked for compensation for employees and a fund designated for “defraying the expenses incident to 8 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. the conduct of our foreign affairs.” Congress re- sponded by passing “An Act providing the means of inter- course between the United States and foreign nations.” Ch. 22, During the congressional debate over that bill, the President sought an opinion from Thomas Jefferson—at that time, Secretary of State—about the scope of the Sen- ate’s power in this area. Jefferson responded that “[t]he transaction of business with foreign nations is executive altogether.” Opinion on the Powers of the Senate (Apr. 24, 1790), in 5 Writings of Thomas Jefferson 161 (P. Ford ed. 1895). As such, Jefferson concluded that it properly be- longed “to the head” of the executive department, “except as to such portions of it as are specially submitted to the senate.” According to Washington’s diaries, he received similar advice from John Jay and James Madison about “the propriety of consulting the Senate on the places to which it would be necessary to send persons in the Diplomatic line, and Consuls.” 6 The Diaries of George Washington 68 (D. Jackson & D. Twohig eds. 1979). All agreed that the Senate lacked a “Constitutional right to interfere with either, & that it might be impolitic to draw it into a precedent their powers extending no farther than to an approbation or disapprobation of the person nomi- nated by the President all the rest being Executive and vested in the President by the Constitution.” Washington followed this advice. He corresponded directly with U. S. ministers, moved them among coun- tries, and removed them from their positions at will. Prakash & Ramsey 308–309. He also corresponded with foreign leaders, representing that his role as the “ ‘su- preme executive authority’ ” authorized him to receive and respond to their letters on behalf of the United States. 17. When foreign ministers addressed their communi- cations to Congress, he informed them of their error. 21. Cite as: 576 U. S. (2015) 9 Opinion of THOMAS, J. Washington’s control over foreign affairs extended beyond communications with other governments. When confronted with the question whether to recognize the French Republic as the lawful government of France, he received the French Republic’s emissary without the in- volvement of Congress. When he later con- cluded that the emissary had acted inappropriately, he again acted without the involvement of Congress to ask the French executive to recall him. 14–315. Washington also declared neutrality on behalf of the United States during the war between England and France in 1793, see Proclamation of Neutrality (Apr. 22, 1793), an action Hamilton pseudonymously defended as a proper exercise of the power vested in the President by the “general grant” of executive power in the Vesting Clause. Pacificus No. 1 (June 29, 1793), Letters of Pacificus and Helvidius 10 (1845); For its part, Congress ap- plauded the President’s decision. 4 Annals of Cong. 18, 138 (1793). In short, the practices of the Washington administration and First Congress confirm that Article II’s Vesting Clause was originally understood to include a grant of residual foreign affairs power to the Executive. II The statutory provision at issue implicates the Presi- dent’s residual foreign affairs power. Section 214(d) in- structs the Secretary of State, upon request of a citizen born in Jerusalem (or that citizen’s legal guardian), to list that citizen’s place of birth as Israel on his passport and consular report of birth abroad, even though it is the undisputed position of the United States that Jerusalem is not a part of Israel. The President argues that this provi- sion violates his foreign affairs powers generally and his recognition power specifically. Zivotofsky rejoins that Congress passed pursuant to its enumerated 10 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. powers and its action must therefore take precedence. Neither has it quite right. The President is not consti- tutionally compelled to implement as it applies to passports because passport regulation falls squarely within his residual foreign affairs power and Zivotofsky has identified no source of congressional power to require the President to list Israel as the place of birth for a citizen born in Jerusalem on that citizen’s passport. Section 214(d) can, however, be constitutionally applied to con- sular reports of birth abroad because those documents do not fall within the President’s foreign affairs authority but do fall within Congress’ enumerated powers over naturalization.2 A 1 In the Anglo-American legal tradition, passports have consistently been issued and controlled by the body exer- cising executive power—in England, by the King; in the colonies, by the Continental Congress; and in the United States, by President Washington and every President since. Historically, “passports were classed with those docu- ments known as safe conducts or letters of protection, by —————— 2 The majority asserts that Zivotofsky “waived any argument that his consular report of birth abroad should be treated differently than his passport” in the court below and in this Court because he “fail[ed] to differentiate between the two documents.” Ante, at 5. But at every stage of the proceedings, Zivotofsky has pressed his claim that he is entitled to have his place of birth listed as “Israel” on both his passport and his consular report of birth abroad, and the consular report issue is fairly included in the question presented. Parties cannot waive the correct interpretation of the law simply by failing to invoke it. See, e.g., That the parties have argued the case as if the same analysis should apply to both documents does not relieve this Court of its responsibility to interpret the law correctly. Cite as: 576 U. S. (2015) 11 Opinion of THOMAS, J. which the person of an enemy might be rendered safe and inviolable.” G. U. S. Dept. of State, The American Passport: Its History 3 Letters of safe conduct and passports performed different functions in England, but both grew out of the King’s prerogative to regulate the “nation’s intercourse with foreign nations,” see 1 Black- stone 251–253. The King issued letters of safe conduct during times of war, whereas passports were heirs to a tradition of requiring the King’s license to de- part the country, see, e.g., Richard II, Feb. 26, 1383, 2 Calendar of Close Rolls, pp. 281–282 (1920); 1 E. Turner, The Privy Council of England in the Seventeenth and Eighteenth Centuries 1603–1784, p. 151 (1927); see also K. Diplock, Passports and Protection in International Law, in 32 The Grotius Society, Transactions for the Year 1946, Problems of Public and Private International Law 42, 44 (1947). Both safe conducts and passports were in use at the time of the founding. Passports were given “for greater security” “on ordinary occasions [to] persons who meet with no special interference in going and coming,” whereas “safe-conduct[s]” were “given to persons who could not otherwise enter with safety the dominions of the sovereign granting it.” 3 E. de Vattel, The Law of Nations p. 331 (1758 ed. C. Fenwick transl. 1916) (emphasis deleted). Both were issued by the person exercising the external sovereign power of a state. See §62, 275, at 69, 332. In the absence of a separate executive branch of govern- ment, the Continental Congress issued passports during the American Revolution, see, e.g., Resolution (May 9, 1776), in 4 Journals of the Continental Congress 340–341; Resolution (May 24, 1776), in 85; as did the Con- gress under the Articles of Confederation, see, e.g., 25 at 8 (Jan. 24, 1783) (discussing its authority to issue passports under the war power). After the ratification of the Constitution, President 12 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. Washington immediately took responsibility for issuing passports. Although “ ‘[ p]ast practice does not, by itself, create power,’ ” “a governmental prac- tice [that] has been open, widespread, and unchallenged since the early days of the Republic should guide our interpretation of an ambiguous constitutional provision.” NLRB v. Noel Canning, 573 U. S. (2014) (SCALIA, J., concurring in judgment) (slip op., at 5) (alteration in original; some internal quotation marks omitted). The history of the President’s passport regulation in this coun- try is one such practice. From the ratification until the end of the Civil War, the President issued passports with- out any authorization from Congress. As the Department of State later remarked, “In the absence of any law upon the subject, the issuing of passports to Americans going abroad naturally fell to the Department of State, as one of its manifestly proper functions.” 7. To that end, the Secretary’s authority was “entirely discre- tionary.” Congress acted in support of that authority by criminaliz- ing the “violat[ion] [of ] any safe-conduct or passport duly obtained and issued under the authority of the United States.” An Act for the Punishment of certain Crimes against the United States,3 Congress only purported to authorize the President to issue such passports in 1856 and, even under that statute, it provided that passports should be issued “under such rules as the President shall designate and prescribe for and on behalf of the United States.” An Act to regulate the Diplomatic and Consular Systems of the United States, §, 11 Stat. 60. The President has continued to designate and pre- scribe the rules for passports ever since. —————— 3 Until 1978, passports were not generally required to enter or exit the country except during wartime. Cite as: 576 U. S. (2015) 13 Opinion of THOMAS, J. 2 That the President has the power to regulate passports under his residual foreign affairs powers does not, however, end the matter, for Congress has repeatedly legislated on the subject of passports. These laws have always been narrow in scope. For example, Congress enacted laws prohibiting the issuance of passports to noncitizens, at 61, created an exception to that rule for “persons liable to military duty,” Act of Mar. 3, 1863, §, and then eliminated that exception, Act of May 30, 1866, ch. 102, It passed laws regulating the fees that the State Department should impose for issuance of the passports. Act of May 16, 1932, ch. 1, ; Act of June 4, 1920, ; Act of June 15, 1917, ch. 30, Title IX, ; Act of Aug. 18, 1856, §, 11 Stat. 60; Act of Mar. 1, 1855, 2, It also enacted legislation addressing the duration for which passports may remain valid. 16, ; Pub. L. 90–428, ; Pub. L. 86–267, ; Act of July 3, 1926, And it passed laws imposing criminal penalties for false statements made when apply- ing for passports, along with misuse of passports and counterfeiting or forgery of them. Act of June 25, 1948, 62 Stat. 771; Act of Mar. 28, 1940, ; 40 Stat. 227.4 As with any congressional action, however, such legisla- tion is constitutionally permissible only insofar as it is promulgated pursuant to one of Congress’ enumerated powers. I must therefore address whether Congress had constitutional authority to enact ’s regulation of passports. —————— 4 JUSTICE SCALIA, in his dissent, faults me for failing to identify the enumerated power under which these laws were permissible, but the question presented in this case is whether is a constitutional exercise of Congress’ power, and that is the question I address. 14 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. a Zivotofsky and congressional amici identify three poten- tial sources of congressional power to enact the portion of dealing with passports. Zivotofsky first argues that it falls within Congress’ power “to regulate the issu- ance and content of United States passports.” Brief for Petitioner 17. The U. S. Senate, as amicus curiae, like- wise contends that it can be justified under Congress’ “plenary authority over passports,” which it derives from the penumbras of its powers “ ‘[t]o regulate Commerce with foreign Nations’ ” and “ ‘[t]o establish an uniform Rule of Naturalization.’ ” Brief for United States Senate 3 (quoting U. S. Const., Art. I, cls. 3, 4). None of these arguments withstands scrutiny. The Constitution contains no Passport Clause, nor does it explicitly vest Congress with “plenary authority over passports.” Because our Government is one of enumerated powers, “Congress has no power to act unless the Consti- tution authorizes it to do so.” United 1 And “[t]he Constitution plainly sets forth the ‘few and defined’ powers that Congress may exercise.” A “passport power” is not one of them. Section 214(d)’s passport directive fares no better under those powers actually included in Article I. To start, it does not fall within the power “[t]o regulate Commerce with foreign Nations.” “At the time the original Constitu- tion was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” United (THOMAS, J., concurring). The listing of the place of birth of an applicant—whether born in Jerusalem or not—does not involve selling, buying, bartering, or transporting for those purposes. Cf. United 529 U.S. 8, 613 (2000) (“[O]ur cases have upheld Commerce Clause regulation of intrastate activity [under the power to regu- Cite as: 576 U. S. (2015) 15 Opinion of THOMAS, J. late commerce among the several States] only where that activity is economic in nature”). True, a passport is frequently used by persons who may intend to engage in commerce abroad, but that use is insufficient to bring ’s passport directive within the scope of this power. The specific conduct at issue here— the listing of the birthplace of a U. S. citizen born in Jeru- salem on a passport by the President—is not a commercial activity. Any commercial activities subsequently under- taken by the bearer of a passport are yet further removed from that regulation. The power “[t]o establish an uniform Rule of Naturaliza- tion” is similarly unavailing. At the founding, the word “naturalization” meant “[t]he act of investing aliens with the privileges of native subjects.” 2 S. A Diction- ary of the English Language 1293 (4th ed. 1773); see also T. Dyche & W. Pardon, A New General English Dictionary (1771) (“the making a foreigner or alien, a denizen or freeman of any kingdom or city, and so becoming, as it were, both a subject and a native of a king or country, that by nature he did not belong to”). A passport has never been issued as part of the naturalization process. It is— and has always been—a “travel document,” Dept. of State, 7 Foreign Affairs Manual (or FAM) 311(b) (2013), issued for the same purpose it has always served: a request from one sovereign to another for the protection of the bearer. See at 10–12. b For similar reasons, the Necessary and Proper Clause gives Congress no authority here. That Clause provides, “The Congress shall have Power [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” 16 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. U. S. Const., Art. I, cl. 18. As an initial matter, “Con- gress lacks authority to legislate [under this provision] if the objective is anything other than ‘carrying into Execu- tion’ one or more of the Federal Government’s enumerated powers.” (THOMAS, J., dissent- ing). The “end [must] be legitimate” under our constitu- tional structure. 421 (1819). But even if the objective of a law is carrying into execu- tion one of the Federal Government’s enumerated powers, the law must be both necessary and proper to that objec- tive. The “Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power.” Gonzales v. Raich, 545 U.S. 1, 60 (2005) Instead, “there must be a necessary and proper fit between the ‘means’ (the federal law) and the ‘end’ (the enumerated power or powers) it is designed to serve.” The “means” chosen by Con- gress “will be deemed ‘necessary’ if they are ‘appropriate’ and ‘plainly adapted’ to the exercise of an enumerated power, and ‘proper’ if they are not otherwise ‘prohibited’ by the Constitution and not ‘[in]consistent’ with its ‘letter and spirit.’ ” –161 (alteration in original). The argument that as applied to passports, could be an exercise of Congress’ power to carry into exe- cution its foreign commerce or naturalization powers falters because this aspect of is directed at neither of the ends served by these powers. Although at a high level of generality, a passport could be related to foreign commerce and naturalization, that attenuated relation- ship is insufficient. The law in question must be “directly link[ed]” to the enumerated power. As applied to passports, fails that test because it does not “ ‘carr[y] into Execution’ ” Congress’ foreign commerce or naturalization powers. At most, it bears a Cite as: 576 U. S. (2015) 17 Opinion of THOMAS, J. tertiary relationship to an activity Congress is permitted to regulate: It directs the President’s formulation of a document, which, in turn, may be used to facilitate travel, which, in turn, may facilitate foreign commerce. And the distinctive history of the passport as a travel rather than citizenship document makes its connection to naturaliza- tion even more tenuous. Nor can this aspect of be justified as an exercise of Congress’ power to enact laws to carry into execution the President’s residual foreign affairs powers. Simply put, ’s passport directive is not a “proper” means of carrying this power into execution. To be “proper,” a law must fall within the peculiar com- petence of Congress under the Constitution. Though “proper” was susceptible of several definitions at the time of the founding, only two are plausible candidates for use in the Necessary and Proper Clause—(1) “[f ]it; accommo- dated; adapted; suitable; qualified” and (2) “[ p]eculiar; not belonging to more; not common.” See 2 at 1537. Because the former would render the word “neces- sary” superfluous, and we ordi- narily attempt to give effect “to each word of the Constitu- tion,” the latter is the more plausible. That is particularly true because the Constitution elsewhere uses the term “proper” by itself, Art. I, Art. II, 3; the term “necessary” by itself, Art. I, Art. V; and the term “necessary” as part of the phrase “necessary and expedient,” Art. II, Thus, the best interpretation of “proper” is that a law must fall within the peculiar jurisdiction of Congress. Our constitutional structure imposes three key limita- tions on that jurisdiction: It must conform to (1) the alloca- tion of authority within the Federal Government, (2) the allocation of power between the Federal Government and the States, and (3) the protections for retained individual rights under the Constitution. See Lawson & 18 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 291, 297 (1993). In other words, to be “proper,” a law “must be consistent with principles of separation of pow- ers, principles of federalism, and individual rights.” 7. Commentators during the ratification debates treated “proper” as having this meaning. Writing as Publius, Hamilton posed the question who would “judge the necessity and propriety of the laws to be passed for execut- ing the powers of the Union” and responded that “[t]he propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded.” The Federalist, No. 33, pp. 203–204. For example, a law that “exceeded [Congress’] jurisdiction” and invaded the authority of the States would not meet that standard. Similarly, an “impartial citi- zen” wrote in a Virginia newspaper that, even if the gov- ernmental powers could not “be executed without the aid of a law, granting commercial monopolies, inflicting un- usual punishments, creating new crimes, or commanding any unconstitutional act,” thus making the law necessary to the execution of a power, “such a law would be mani- festly not proper,” and not “warranted by this clause, without absolutely departing from the usual acceptation of words.” An Impartial Citizen V, Petersburg Va. Gazette, Feb. 28, 1788, in 8 Documentary History of the Ratifica- tion of the Constitution 428, 431 (J. Kaminski & G. Sala- dino eds. 1988) (emphasis deleted). Early interpretations of the Clause following ratification largely confirm that view. Lawson & at 298–308. During debate on the Bank of the United States in the First Congress, for example, Representative Ames declared that the correct construction of the Necessary and Proper Clause “promotes the good of the society, and the ends for which the Government was adopted, without Cite as: 576 U. S. (2015) 19 Opinion of THOMAS, J. impairing the rights of any man, or the powers of any State.” 2 Annals of Cong. 1906 (1791). During the Second Congress, Representative Niles railed against a bill that would have authorized federal mail carriers to transport passengers for hire in order to reduce the cost of the mails. He said that such a law would not be “proper” to the power to establish post offices and post roads because some States had “an exclusive right of carrying passengers for hire” and an interpretation of the word “proper” that would allow the bill would render “as nugatory, all [the States’] deliberations on the Constitution” and effectively vest Congress with “general authority to legislate on every subject.” 3 08–310 (1792) (emphasis deleted). Each of these comments presumed that the word “proper” imposed a jurisdictional limit on congressional activity. This evidence makes sense in light of the Framers’ efforts to ensure a separation of powers, reinforced by checks and balances, as “practical and real protectio[n] for individual liberty in the new Constitution.” Perez v. Mort- gage Bankers Assn., 575 U. S. (2015) (THOMAS, J., concurring in judgment) (slip op., at 8). If Congress could rely on the Necessary and Proper Clause to exercise power expressly allocated to the other branches or to prevent the exercise of such power by other branches, it could under- mine the constitutional allocation of powers. That the evidence thus points to a definition of “proper” that protects the separation of powers does not fully ex- plain the way that the “proper” requirement operates when Congress seeks to facilitate the exercise of a power allocated to another branch. I can see two potential mech- anisms, either or both of which may accurately reflect the original understanding of the Clause. First, a law could be “improper” if it purports to direct another branch’s exer- cise of its power. See Calabresi & Prakash, The Presi- dent’s Power to Execute the Laws, 104 Yale L. J. 541, 1 (1994) (“[T]he Clause does [not] allow Congress to tell 20 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. constitutionally empowered actors how they can imple- ment their exclusive powers”). Second, a law could be “improper” if it takes one of those actions and the branch to which the power is allocated objects to the action. See Prakash & Ramsey 255–256 (“Congress has the general power to legislate in support of the President’s foreign policy goals. But [s]ince it is derivative of the Presi- dent’s power, it must be exercised in coordination with, and not in opposition to, the President”). I need not resolve that question today, as the applica- tion of to passports would be improper under either approach. The President has made a determination that the “place of birth” on a passport should list the country of present sovereignty. 7 FAM, 300, App. D, 330 (2014). And the President has determined that no country is presently exercising sovereignty over the area of Jerusalem. Thus, the President has provided that passports for persons born in Jerusalem should list “Jeru- salem” as the place of birth in the passport. 360(f ). Section 214(d) directs the President to exercise his power to issue and regulate the content of passports in a particu- lar way, and the President has objected to that direction. Under either potential mechanism for evaluating the propriety of a law under the separation-of-powers limita- tion, this law would be improper.5 c In support of his argument that the President must enforce Zivotofsky relies heavily on a similar statute addressing the place of birth designation for per- sons born in Taiwan. See Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, 32, That statute provided, “For purposes of the registration of —————— 5 Because is not proper, I need not resolve whether such a law could be understood to “carry into execution” the President’s power. Cite as: 576 U. S. (2015) 21 Opinion of THOMAS, J. birth or certification of nationality of a United States citizen born in Taiwan, the Secretary of State shall permit the place of birth to be recorded as Taiwan.” The President has adopted that practice. The President’s decision to adopt that practice, however, says nothing about the constitutionality of the Taiwan provision in the first place. The constitutional allocation of powers “does not depend on the views of individual Presidents, nor on whether the encroached upon branch approves the encroachment.” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 497 (citation and internal quotation marks omit- ted).6 And the argument from Presidential acquiescence here is particularly weak, given that the Taiwan statute is consistent with the President’s longstanding policy on Taiwan. At the time Congress enacted the statute, the Foreign Affairs Manual permitted consular officials to list “the city or area of birth” on a passport “[w]here the birth- place of the applicant is located in territory disputed by another country,” 7 FAM 383.5–2 (19), and to list “the city or town, rather than the country” of an applicant’s birth “when there are objections to the listing shown on the birthplace guide,” 383.6. Because the President otherwise treats Taiwan as a geographical area within the People’s Republic of China, listing Taiwan as the place of birth did not directly conflict with the President’s prevail- ing practices. Section 214(d) does so conflict, as it requires the President to list citizens born in Jerusalem as born in “Israel,” even though the Foreign Affairs Manual has long —————— 6 This principle is not necessarily inconsistent with the second mech- anism for evaluating congressional action under the Necessary and Proper Clause discussed above. Although that mechanism would tie the propriety of congressional action to the objection (or nonobjection) of another branch, the point of that tying feature is to determine whether, in fact, Congress has encroached upon another branch, not whether such encroachment is acceptable. 22 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. prohibited that action. d JUSTICE SCALIA would locate Congress’ power to enact the passport directive of in Congress’ power under the Necessary and Proper Clause to bring into effect its enumerated power over naturalization. Post, –4 (dis- senting opinion). As an initial matter, he asserts that “[t]he naturalization power enables Congress to fur- nish the people it makes citizens with papers verifying their citizenship,” post, yet offers no support for this interpretation of a clause that, by its terms, grants Con- gress only the “Power To establish an uniform Rule of Naturalization,” U. S. Const., Art. I, cl. 4. He then concludes that, if Congress can grant such documents, “it may also require these [documents] to record his birth- place as ‘Israel’ ” pursuant to its power under the Neces- sary and Proper Clause, post, But this theory does not account for the President’s power to act in this area, nor does it confront difficult questions about the applica- tion of the Necessary and Proper Clause in the case of conflict among the branches. JUSTICE SCALIA disapproves of my “assertion of broad, unenumerated ‘residual powers’ in the President,” post, at 19, but offers no response to my interpretation of the words “executive Power” in the Constitution. Instead, he claims that I have argued for “Presidential primacy over passports” and then rejects that position based on two postratification English statutes, the early practice of nonfederal actors issuing passports in this country, and the same congressional statutes that I have already dis- cussed, most of which were enacted after the Civil War. Post, at 16–17; and n. 4. But I do not argue that the President possesses primary power over pass- ports. I need not argue that. I argue only that Congress did not act according to any of the powers granted to it in Cite as: 576 U. S. (2015) Opinion of THOMAS, J. the Constitution and, in such circumstances, the question of primacy does not arise. In any event, the historical evidence cited in JUSTICE SCALIA’s dissent does not conflict with my analysis of the President’s power in this area. The two postratification English statutes implicitly acknowledged that passports are issued by executive officers in the exercise of executive power, see 38 Geo. III, ch. 50, in 41 Eng. Stat. at Large 684; 33 Geo. III, ch. 4, in 39 Eng. Stat. at Large 12, and the practice of executive officials in the States of this country confirms that relationship. In addition, neither piece of historical evidence speaks to the scope of Congress’ power to regulate passports under our federal system. JUSTICE SCALIA’s final piece of historical support—the increased congressional regulation of passports following the Civil War—is perhaps more on point from an institu- tional perspective, but still does not resolve the issue. Those regulations were, as I have already described, nar- row in scope and continued to leave primary regulation of the content of passports to the President. To draw an inference from these “late-arising historical practices that are ambiguous at best”—and that might conflict with the original meaning of the “executive Power” and the “proper” requirement in the Necessary and Proper Clause—is a dubious way to undertake constitutional analysis. See Noel Canning, 573 U. S., at (SCALIA, J., concurring in judgment) (slip op., ). Even more dubious, however, is the cursory treatment of the Necessary and Proper Clause in JUSTICE SCALIA’s dissent. He asserts that, in acting pursuant to that Clause, “Congress may not transcend boundaries upon legislative authority stated or implied elsewhere in the Constitution.” Post, at 4. But he offers no explanation for what those implied limits might be or how they would operate. Does he, for example, agree that the word “proper” requires Congress to act in a manner “ ‘consistent with 24 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. principles of separation of powers, principles of federalism, and individual rights’ ”? (quoting Lawson & Grainger, 43 Duke L. J., 7). If so, then why does he find that requirement satisfied in this case? Is it because he views the President as having no constitutional author- ity to act in this area? Or is it because he views Congress’ directive to the President as consistent with the separa- tion of powers, irrespective of the President’s authority? If the latter, is that because he perceives no separation-of- powers limitations on Congress when it acts to carry into execution one of its enumerated powers, as opposed to the enumerated powers of another branch? And if that is the case, what textual, structural, or historical evidence exists for that interpretation? JUSTICE SCALIA’s dissent raises more questions than it answers. JUSTICE SCALIA’s dissent does at least answer how, in his view, the Constitution would resolve a conflict between the political branches, each acting pursuant to the powers granted them under the Constitution. He believes that congressional power should trump in any such conflict. Post, I see nothing in the Constitution that clearly mandates that solution to a difficult separation-of-powers question, and I need not opine on it. I find no power under which Congress could lawfully have enacted the passport directive of apart from its power under the Neces- sary and Proper Clause to carry into effect the President’s powers. And I have offered textual and historical support for my conclusion that the Clause does not include the power to direct the President’s exercise of his passport power. Finally, JUSTICE SCALIA faults me for failing to consider a number of potential sources of congressional power for not argued by any of the parties, ranging from the Fourteenth Amendment; to the Migration or Importation Clause, Art. I, cl. 1; to the Territories Clause, Art. IV, cl. 2. Post, at 15. But no one—not even JUSTICE Cite as: 576 U. S. (2015) 25 Opinion of THOMAS, J. SCALIA—has seriously contended that those provisions would afford a basis for the passport provision of In the end, JUSTICE SCALIA characterizes my interpreta- tion of the executive power, the naturalization power, and the Necessary and Proper Clause as producing “a presi- dency more reminiscent of George III than George Wash- ington.” Post, at 19. But he offers no competing interpre- tation of either the Article II Vesting Clause or the Necessary and Proper Clause. And his decision about the Constitution’s resolution of conflict among the branches could itself be criticized as creating a supreme legislative body more reminiscent of the Parliament in England than the Congress in America. * * * Because the President has residual foreign affairs au- thority to regulate passports and because there appears to be no congressional power that justifies ’s applica- tion to passports, Zivotofsky’s challenge to the Executive’s designation of his place of birth on his passport must fail. B Although the consular report of birth abroad shares some features with a passport, it is historically associated with naturalization, not foreign affairs. In order to estab- lish a “uniform Rule of Naturalization,” Congress must be able to identify the categories of persons who are eligible for naturalization, along with the rules for that process. Congress thus has always regulated the “acquisition of citizenship by being born abroad of American parents in the exercise of the power conferred by the Constitution to establish a uniform rule of naturalization.” United ; see also 5 U.S. 420, (SCALIA, J., concurring in judgment) (recognizing that “Congress has the power to set the requirements for acquisition of 26 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. citizenship by persons not born within the territory of the United States”). It has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process. 8 U.S. C. 1401(c), (d), (g). The consular report of birth abroad is well suited to carrying into execution the power conferred on Congress in the Naturalization Clause. The report developed in response to Congress’ requirement that children born abroad to U. S. citizens register with the consulate or lose their citizenship. And it continues to certify the acquisi- tion of U. S. citizenship at birth by a person born abroad to a U. S. citizen. See 22 U.S. C. Although such persons have possessed a statutory right to citizenship at birth for much of this country’s history,7 the process by which that citizenship is evidenced has varied over time. Under the 10 consular regulations, for instance, children born abroad to U. S. citizens were is- sued no certificates. If they applied for a U. S. passport, then they were issued one “qualified by the obligations and duties” that attached to those citizens by virtue of their residence in a foreign nation. Regulations Prescribed For The Use Of The Consular Service of the United States App. No. IV, p. 288 (10); see also 09, at 38–39. Congress acted in 1907 to require children resid- ing abroad to register with their local consulate at the age of 18. Act of Mar. 2, 1907, Because of the importance of this registration requirement, consular —————— 7 The First Congress passed a law recognizing citizenship at birth for children born abroad to U. S. citizens. Act of Mar. 26, 1790, ch. 3, 1 Stat. 104. An 1802 amendment to the provision rendered the availabil- ity of this citizenship uncertain. Binney, The Alienigenae of the United States, 2 Am. L. Reg. 193, 193 (1854). But Congress acted to clarify the availability of such citizenship in 1855, Act of Feb. 10, 1855, ch. 71, 10 Stat. 604, and it continues to exist to this day, see Immigration and Nationality Act, 66 Stat. 5. Cite as: 576 U. S. (2015) 27 Opinion of THOMAS, J. officials began to issue reports to citizens confirming their registration. See generally National Archives, General Records of the Dept. of State, Record Group Passport Office, Decimal File, 1910–1949. In 1919, the Department of State acted to standardize the consular registration of children born abroad. Report of Birth of Children to American Citizens Residing Abroad, General Instruction No. 652. It urged consulates to impress upon U. S. citizens abroad the need to record the birth of their children within two years. To encourage that effort, the Department permitted consular officials to issue reports attesting that the parents of U. S. citizens born abroad had presented sufficient evidence of citizenship for their children. The 1960’s brought additional regulations of consular reports of birth abroad, (1966), which continue in a substantially similar form to this day. See 22 CFR 50.5, 50.7 (2014). As currently issued, the consular report of birth abroad includes the applicant’s name, sex, place of birth, date of birth, and parents. It has had the “same force and effect as proof of United States citizenship as [a] certificat[e] of naturalization” since 1982. 17, Thus, although registration is no longer required to maintain birthright citizenship, the consular report of birth abroad remains the primary means by which chil- dren born abroad may obtain official acknowledgement of their citizenship. See Once acknowledged as U. S. citizens, they need not pursue the naturalization process to obtain the rights and privileges of citizenship in this country. Regulation of the report is thus “appropri- ate” and “plainly adapted” to the exercise of the naturali- zation power. See 560 U.S., (THOMAS, J., dissenting). By contrast, regulation of the report bears no relation- ship to the President’s residual foreign affairs power. It 28 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. has no historical pedigree uniquely associated with the President, contains no communication directed at a for- eign power, and is primarily used for domestic purposes. To the extent that a citizen born abroad seeks a document to use as evidence of his citizenship abroad, he must ob- tain a passport. See generally 7 FAM 311. Because regulation of the consular report of birth abroad is justified as an exercise of Congress’ powers under the Naturalization and Necessary and Proper Clauses and does not fall within the President’s foreign affairs powers, ’s treatment of that document is constitutional.8 III The majority does not perform this analysis, but instead relies on a variation of the recognition power. That power is among the foreign affairs powers vested in the President by Article II’s Vesting Clause, as is confirmed by Article II’s express assignment to the President of the duty of receiving foreign Ambassadors, Art. II, But I cannot join the majority’s analysis because no act of recognition is implicated here.9 —————— 8 As the issue is not presented, I need not decide how a direct conflict between action pursuant to an enumerated power of Congress and action pursuant to the residual foreign affairs power of the President should be resolved. 9 I assume, as the majority does, that the recognition power conferred on the President by the Constitution is the power to accomplish the act of recognition as that act is defined under international law. It is possible, of course, that the Framers had a fixed understanding of the act of recognition that is at odds with the definition of that act under international law. But the majority does not make that argument, nor does the majority even specifically address how consular reports of birth abroad are related to recognition. Lacking any evidence that the modern practice of recognition deviates in any relevant way from the historical practice, or that the original understanding of the recognition power was something other than the power to take part in that prac- tice, I proceed on the same assumption as the majority. Cite as: 576 U. S. (2015) 29 Opinion of THOMAS, J. Under international law, “recognition of a state signifies acceptance of its position within the international commu- nity and the possession by it of the full range of rights and obligations which are the normal attributes of statehood.” 1 Oppenheim’s International Law 158 (R. Jennings & A. Watts eds., 9th ed. 1992) (footnote omitted) (Oppen- heim).10 It can be accomplished expressly or implicitly, but the key is to discern a clear intention on the part of one state to recognize another. at 169. Important consequences are understood to flow from one state’s recognition of another: The new state, for instance, ac- quires the capacity to engage in diplomatic relations, including the negotiation of treaties, with the recognizing state. at 158. The new state is also entitled to sue in, invoke sovereign immunity from, and demand acceptance of official acts in the courts of the recognizing state. ; see also I. Brownlie, Principles of Public International Law 95–96 (7th ed. 2008). Changes in territory generally do not affect the status of a state as an international person. Oppenheim at 204–205. France, for example, “has over the centuries retained its identity although it acquired, lost and re- gained parts of its territory, changed its dynasty, was a kingdom, a republic, an empire, again a kingdom, again a republic, again an empire, and is now once more a repub- lic.” “Even such loss of territory as occasions the reduction of a major power to a lesser status does not affect the state as an international person.” at 205. Changes that would affect the status as an interna- tional person include the union of two separate interna- —————— 10 Scholars have long debated the extent to which official recognition by the sovereign states that make up the international community is necessary to bring a new “state” into the international community and thereby subject it to international law. Oppenheim at 128–129. Resolving this debate is not necessary to resolve the issue at hand, so I describe the modern view of recognition without endorsing it. 30 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. tional persons or a partial loss of independence. 06. Assuming for the sake of argument that listing a non- recognized foreign sovereign as a citizen’s place of birth on a U. S. passport could have the effect of recognizing that sovereign under international law, no such recognition would occur under the circumstances presented here. The United States has recognized Israel as a foreign sovereign since May 14, 1948. Statement by the President Announc- ing the Recognition of the State of Israel, Public Papers of the Presidents, Harry S. Truman, p. 258 (1964). That the United States has subsequently declined to acknowledge Israel’s sovereignty over Jerusalem has not changed its recognition of Israel as a sovereign state. And even if the United States were to acknowledge Israel’s sovereignty over Jerusalem, that action would not change its recogni- tion of Israel as a sovereign state. That is because the United States has already afforded Israel the rights and responsibilities attendant to its status as a sovereign State. Taking a different position on the Jerusalem ques- tion will have no effect on that recognition.11 Perhaps recognizing that a formal recognition is not implicated here, the majority reasons that, if the Execu- tive’s exclusive recognition power “is to mean anything, it must mean that the President not only makes the initial, formal recognition determination but also that he may maintain that determination in his and his agent’s state- ments.” Ante, 6. By “alter[ing] the President’s state- ments on matters of recognition or forc[ing] him to contra- dict them,” the majority reasons, “Congress in effect would exercise the recognition power.” Ante, 7. This argu- ment stretches the recognition power beyond all recogni- —————— 11 The analysis might look different if required the President to list as a “place of birth” a country that the United States has never officially recognized. That is not the case here. Cite as: 576 U. S. (2015) 31 Opinion of THOMAS, J. tion. Listing a Jerusalem-born citizen’s place of birth as “Israel” cannot amount to recognition because the United States already recognizes Israel as an international per- son. Rather than adopt a novel definition of the recogni- tion power, the majority should have looked to other for- eign affairs powers in the Constitution to resolve this dispute. * * * Adhering to the Constitution’s allocation of powers leads me to reach a different conclusion in this case from my colleagues: Section 214(d) can be constitutionally applied to consular reports of birth abroad, but not passports. I therefore respectfully concur in the judgment in part and dissent in part. Cite as: 576 U. S. (2015) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES No. 13–628 MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY, PETITIONER v.

Justice O'Connor

majority

United States v. Clark

https://www.courtlistener.com/opinion/110601/united-states-v-clark/

https://www.courtlistener.com/api/rest/v3/clusters/110601/

1981-028

The issue in this case is whether 5 U.S. C. § 5334(b), which requires a two-step pay increase for federal employees "promoted . . . to a position in a higher grade," applies to prevailing wage rate employees promoted to General Schedule positions. We hold that it does not apply, and reverse the judgment of the Court of Claims. I This case involves the relationship between the two principal pay systems for federal employees and the pay treatment to which an employee moving from one system to another is entitled. Both systems are governed by Title 5, United States Code. One of the pay systems, the General Schedule (GS), 5 U.S. C. § 5331 et seq. (1976 ed. and Supp. V), applies to federal "white-collar" employees. See R. Vaughn, Principles *557 of Civil Service Law § 6.2(a), p. 6-4 (1976) (hereinafter Vaughn). The GS is divided into 18 numbered grades; as the number of the grade increases, so do pay and responsibilities. §§ 5104 and 5332 (1976 ed. and Supp. V). The grades are subdivided into rates of pay or "steps." § 5332. The salary for each step of each grade in the GS is uniform nationwide.[1] The second principal pay system is the prevailing rate wage system (WS), 5 U.S. C. § 5341 et seq. (1976 ed. and Supp. V), which primarily applies to those federal "blue-collar" employees specifically excluded from the GS. See §§ 5102(b), (c)(7), 5331, and 5342(a)(2)(A); Vaughn § 6.2(b), p. 6-17. The WS also is divided into grades and subdivided into "steps." The rate of pay for each step within each grade is based upon wage surveys of prevailing rates for comparable work in local wage areas. § 5343 (1976 ed. and Supp. V); Office of Personnel Management, Federal Personnel Manual, Supp. 532-1, 56 (Apr. 14, 1980) (hereinafter FPM). Pay rates for positions within the WS thus vary from one locale to another. Salary treatment for GS employees who change their employment status and employees shifted or hired into the GS system is governed by 5 U.S. C. § 5334 (1976 ed. and Supp. V) and regulations promulgated pursuant thereto. Under the statute, an employee's salary after promotion is determined by reference either to the "highest previous rate" rule[2] or to the "two-step increase" rule.[3] *558 Prior to July 1973, all six respondents worked as federal civilian employees for the Supervisor of Shipbuilding, Department of the Navy. In those positions, they were paid pursuant to the WS. Between July 1973 and October 1974, all were promoted to positions covered by the GS.[4] After his promotion, Libretto learned that the other respondents received a salary increase equivalent to a two-step pay increase on their appointment to the GS positions.[5] Since Libretto's *559 increase was based upon the "highest previous rate" rule and was much smaller, he filed a claim with the Department of the Navy. As a result, the Navy reexamined the salary treatment afforded respondents. Concluding the salaries of all should have been determined by applying the "highest previous rate" rule, the Navy denied Libretto's claim and notified the other respondents their salaries would be reduced accordingly. Respondents unsuccessfully pursued their administrative remedies and then filed this action in the Court of Claims under the Tucker Act, 28 U.S. C. § 1491, and the Back Pay Act of 1966, 5 U.S. C. § 5596. Respondents contended they were entitled to a two-step increase in pay pursuant to 5 U.S. C. § 5334(b) (1976 ed., Supp. V) The Government opposed the claims on the ground that § 5334(b) applies only to promotions within the GS and not to shifts or promotions between the WS and the GS, which are governed by § 5334(a). The Court of Claims, reasoning that respondents had been "promoted" within the meaning of 5 CFR § 531.202(h)(2) *560 (1969),[6] determined they were entitled to a two-step increase under § 5334(b). Accordingly, the court invalidated, as inconsistent with the statute, 5 CFR § 531.204(a) (1969), which construed § 5334(b) as limited to transfers or promotions within the GS. 220 Ct. Cl. 278, 599 F.2d 411 (1979). After remand, the parties stipulated to the amount of respondent's recovery, and the court entered final judgment on August 8, 1980. We granted the Government's petition for writ of certiorari to the United States Court of Claims. 450 U.S. 993 (1981). We have jurisdiction based upon 28 U.S. C. § 1255. II We look first to the language and organization of the statutes governing General Schedule pay rates and the prevailing rate wage system. If the statutory language is clear, it is ordinarily conclusive. See Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S., 102 (1980). Section 5334 is part of subchapter III, chapter 53 of Title 5, entitled "General Schedule Pay Rates." Subsection 5334(a) describes the general conditions, including promotions, under which a GS employee is entitled to a change in basic pay. It directs simply that the rate is "governed by regulations prescribed by the [Civil Service Commission]. . ." Following that direction, the Civil Service Commission promulgated the "highest previous rate" rule.[7] *561 In subsection 5334(b), on the other hand, Congress restricted the Commission's discretion in one limited situation: "An employees who is promoted or transferred to a position in a higher grade is entitled to basic pay at the lowest rate of the higher grade which exceeds his existing rate of basic pay by not less than two step-increases of the grade from which he is promoted or transferred." For purposes of subchapter III, 5 U.S. C. § 5331 assigns the word "grade" the meaning given the term by 5 U.S. C. § 5102(a)(5). That section, in turn, defines a grade as those positions sufficiently similar to warrant their inclusion within one range of rates of basic pay "in the General Schedule." Giving § 5334(b) its plain meaning, then, when an employee is promoted to a position in a higher grade "in the General Schedule," he is entitled to pay which exceeds by two step-increase his pay in the grade "in the General Schedule" from which he was promoted. The Wage System, on the other hand, is governed by subchapter IV of chapter 53, Title 5. No express statutory provision in subchapter IV defines how an employee's salary should be set when a WS employee is promoted to a GS position. Thus, the only applicable statutory provisions are those found in subchapter III and its accompanying regulations, which specifically limit the two-step increase to promotions within the GS. Nothing in the statutory language indicates Congress intended to include employees promoted from WS to GS within the two-step requirement of § 5334(b). Absent such language, the statute and the accompanying regulations reveal a congressional intend to apply the two-step increase provision of § 5334(b) only to promotions or transfers of employees already within the GS system. III Although the language of the statute is clear, any lingering doubt as to its proper construction may be resolved by examining the legislative history of the statute and by according *562 due deference to the longstanding interpretation given the statute by the agencies charged with its interpretation. See NLRB v. Bell Aerospace Co,. 416 U.S. 267 (1974). The legislative history of § 5334(b) reinforces the apparent intent of the statutory language. The predecessor to § 5334(b) was § 802(b) of the Classification Act of 1949, 63 Stat. 954, 5 U.S. C. § 1071 et seq. (1946 ed. and Supp. IV) (1949 Act).[8] Through the 1949 Act, Congress completely revised the Classification Act of 1923, Pub. L. 516, 42 Stat. 1488, 5 U.S. C. § 661 et seq. (1925-1926 ed). Under the latter statute, an employee who was at the top step of the his grade could receive little or no salary increase upon promotion to a higher grade. That inequity resulted because the salary for the higher steps in one grade could equal or exceed the salary for the lower steps in the next higher grade. Congress' 1949 revision plainly undertook to correct this problem: the 1949 Act numbered among its stated purposes the need "to permit the solution of certain troublesome problems or to avoid unintentional pay inequities in the conduct of various personnel transactions." S. Rep. No. 847, 81st Cong. 1st, Sess., 4 (1949). Congress, moreover, understood the precise nature of the salary overlap problem. The Committee Reports which accompanied the proposed revisions explained: "At present, a promoted employee receives no immediate increase if he is already receiving a rate in the lower grade that also occurs in the higher grade. If he is receiving a rate in the lower grade that falls between two rates of the higher grade, he is promoted at the higher of these two rates. "In too many cases, accordingly, an employee who is promoted to greater responsibilities or more difficult duties receives no immediate increase in pay. This is not in accord with the commonly accepted principle that a promotion in pay should [concurrently] accompany a promotion in duties and responsibilities. *563 "Subsection (b) of section 802 corrects this situation." Id., at 38; H. R. Rep. No. 1264, 81st Cong., 1st Sess., 12-13 (1949). Examination of the history of the prevailing wage system dispels any notion that Congress intended the corrective measure of § 802(b) to apply to movement between the prevailing wage and Classification Act systems. In 1949, each federal agency had its own pay system for blue-collar workers. As a result, employees holding the same federal position in the same locale often received different wages if they worked for different agencies. In addition, each agency had its own job grading system for prevailing wage employees, which resulted in widely varying numbers of grades and wage steps.[9] Nothing in the legislative history suggests that Congress was even aware of — much less was attempting to adjust — the varied results that might occur if a prevailing wage worker moved into a Classification Act position. The 1949 legislative history suggests only that Congress was concerned with inequities that might occur through application of the Classification Act system to movement within that system. Moreover, in 1972, approximately one year before respondents' promotions, Congress undertook a comprehensive examination of the prevailing wage statutes and amended existing laws to declare congressional policy for the payment of prevailing wage employees. See S. Rep. No. 92-791, p. 1 (1972). Congress' stated purpose was to codify existing law. Ibid. As part of the 1972 amendments, Congress for the first time directed that a grading system be established and maintained for prevailing wage employees.[10] 5 U.S. C. *564 § 5346 (1976 ed. and Supp. V). Even then, Congress made no effect to correlate the WS grades with those used in the GS. By that time, the agency practice of specifically limiting § 5334(b) and its predecessor to transfers between Classification Act, or GS, positions had been followed for nearly 25 years.[11] Congress' failure to correct that practice, if it did not correspond with congressional intend, at the very time Congress was revamping the laws applicable to pay for prevailing wage positions provides further evidence of its intent that § 802(b) and, later, § 5334(b) apply only to GS employees. See United States v. Bergh, 532 U.S. 40 (1956). The absence of any indication that Congress intended § 5334(b) to apply to promotions into the GS from the WS is hardly surprising, since the two systems have no necessary or obvious relationship. First, because the WS involves an entirely separate pay structure based on prevailing rates in local wage areas, no necessary overlap occurs between WS and GS salaries. In fact, since WS rates vary by locale, an employee changing from a WS position to a GS position could receive a greater salary, a lesser salary, or the same salary as another employee making the identical change in another part of the country. Moreover, although by definition a change to a higher grade within the GS system involves a change to a position with greater responsibility (see 5 U.S. C. § 5102(a)(5) (1076 ed. Supp. V)), no similar relationship necessarily exists between a WS grade and a GS Grade.[12] *565 Although the legislative history does not expressly indicate that Congress intended to limit § 5334(b) and its predecessor to GS employees, the history provides ample indication that such was Congress' intent. Moreover, the reasons for enactment of the provision are consistent with such a limitation. IV Although not determinative, the construction of a statute by those charged with its administration is entitled to great deference, particularly when that interpretation has been followed consistently over a long period of time. See Piper v. Chris-Craft Industries, Inc., 430 U.S. 1 (1977). In this instance, the agency responsible for proposing and administering § 5334(b) has consistently construed it to apply only to promotions within the GS. Section 802(b) of the 1949 Act was drafted and submitted to the Congress by the Civil Service Commission.[13] Soon after its enactment, the Civil Service Commission promulgated regulations interpreting the section. The first regulations guaranteed a pay increase to one promoted "to a higher grade between Classification Act [GS] positions . . . ." 15 Feb. Reg. 7868 (1950), 5 CFR § 25.104(a) (Supp. 1951).[14] In contrast, an employee promoted or transferred from another *566 pay system into the Classification Act system was subject to the "higher previous rate" rule. 15 Feb. Reg. 1235 (1950), 5 CFR § 25.103(b) (Supp. 1951). Subsequent versions of the regulations continued to apply the automatic salary increase of § 802(b) and, later, of § 5334(b), only to promotions or transfers within the Classification Act, or GS, System.[15] In fact, the regulation in effect when respondents were promoted expressly provided that the two-step pay increase provision of § 5334(b) applied "only (i) to a transfer from one General Schedule position to a higher General Schedule position, and (ii) to a promotion from one General Schedule grade to a higher General Schedule grade." 33 Feb. Reg. 12450 (1968), 5 CFR § 531.204(a)(1) (1969).[16] V The language of the statute, the entire statutory scheme, the legislative history, and consistent administrative interpretation *567 all demonstrate the soundness of the Government's position that § 5334(b) is inapplicable to promotions from the Wage System to the General Schedule. The judgment of the Court of Claims is reversed. It is so ordered.

The issue in this case is whether 5 U.S. C. 5334(b), which requires a two-step pay increase for federal employees "promoted to a position in a higher grade," applies to prevailing wage rate employees promoted to General Schedule positions. We hold that it does not apply, and reverse the judgment of the Court of Claims. I This case involves the relationship between the two principal pay systems for federal employees and the pay treatment to which an employee moving from one system to another is entitled. Both systems are governed by Title 5, United States Code. One of the pay systems, the General Schedule (GS), 5 U.S. C. 5331 et seq. (1976 ed. and Supp. V), applies to federal "white-collar" employees. See R. Vaughn, Principles *557 of Civil Service Law 6.2(a), p. 6-4 (1976) (hereinafter Vaughn). The GS is divided into 18 numbered grades; as the number of the grade increases, so do pay and responsibilities. 5104 and 5332 (1976 ed. and Supp. V). The grades are subdivided into rates of pay or "steps." 5332. The salary for each step of each grade in the GS is uniform nationwide.[1] The second principal pay system is the prevailing rate wage system (WS), 5 U.S. C. 5341 et seq. (1976 ed. and Supp. V), which primarily applies to those federal "blue-collar" employees specifically excluded from the GS. See 5102(b), (c)(7), 5331, and 5342(a)(2)(A); Vaughn 6.2(b), p. 6-17. The WS also is divided into grades and subdivided into "steps." The rate of pay for each step within each grade is based upon wage surveys of prevailing rates for comparable work in local wage areas. 5343 (1976 ed. and Supp. V); Office of Personnel Management, Federal Personnel Manual, Supp. 532-1, 56 (hereinafter FPM). Pay rates for positions within the WS thus vary from one locale to another. Salary treatment for GS employees who change their employment status and employees shifted or hired into the GS system is governed by 5 U.S. C. 5334 (1976 ed. and Supp. V) and regulations promulgated pursuant thereto. Under the statute, an employee's salary after promotion is determined by reference either to the "highest previous rate" rule[2] or to the "two-step increase" rule.[3] *558 Prior to July 1973, all six respondents worked as federal civilian employees for the Supervisor of Shipbuilding, Department of the Navy. In those positions, they were paid pursuant to the WS. Between July 1973 and October 1974, all were promoted to positions covered by the GS.[4] After his promotion, Libretto learned that the other respondents received a salary increase equivalent to a two-step pay increase on their appointment to the GS positions.[5] Since Libretto's *559 increase was based upon the "highest previous rate" rule and was much smaller, he filed a claim with the Department of the Navy. As a result, the Navy reexamined the salary treatment afforded respondents. Concluding the salaries of all should have been determined by applying the "highest previous rate" rule, the Navy denied Libretto's claim and notified the other respondents their salaries would be reduced accordingly. Respondents unsuccessfully pursued their administrative remedies and then filed this action in the Court of Claims under the Tucker Act, 28 U.S. C. 1491, and the Back Pay Act of 1966, 5 U.S. C. 5596. Respondents contended they were entitled to a two-step increase in pay pursuant to 5 U.S. C. 5334(b) (1976 ed., Supp. V) The Government opposed the claims on the ground that 5334(b) applies only to promotions within the GS and not to shifts or promotions between the WS and the GS, which are governed by 5334(a). The Court of Claims, reasoning that respondents had been "promoted" within the meaning of 5 CFR 531.202(h)(2) *560 (1969),[6] determined they were entitled to a two-step increase under 5334(b). Accordingly, the court invalidated, as inconsistent with the statute, 5 CFR 531.204(a) (1969), which construed 5334(b) as limited to transfers or promotions within the GS. After remand, the parties stipulated to the amount of respondent's recovery, and the court entered final judgment on August 8, 1980. We granted the Government's petition for writ of certiorari to the United States Court of Claims. We have jurisdiction based upon 28 U.S. C. 1255. II We look first to the language and organization of the statutes governing General Schedule pay rates and the prevailing rate wage system. If the statutory language is clear, it is ordinarily conclusive. See Consumer Product Safety Section 5334 is part of subchapter III, chapter 53 of Title 5, entitled "General Schedule Pay Rates." Subsection 5334(a) describes the general conditions, including promotions, under which a GS employee is entitled to a change in basic pay. It directs simply that the rate is "governed by regulations prescribed by the [Civil Service Commission]." Following that direction, the Civil Service Commission promulgated the "highest previous rate" rule.[7] *561 In subsection 5334(b), on the other hand, Congress restricted the Commission's discretion in one limited situation: "An employees who is promoted or transferred to a position in a higher grade is entitled to basic pay at the lowest rate of the higher grade which exceeds his existing rate of basic pay by not less than two step-increases of the grade from which he is promoted or transferred." For purposes of subchapter III, 5 U.S. C. 5331 assigns the word "grade" the meaning given the term by 5 U.S. C. 5102(a)(5). That section, in turn, defines a grade as those positions sufficiently similar to warrant their inclusion within one range of rates of basic pay "in the General Schedule." Giving 5334(b) its plain meaning, then, when an employee is promoted to a position in a higher grade "in the General Schedule," he is entitled to pay which exceeds by two step-increase his pay in the grade "in the General Schedule" from which he was promoted. The Wage System, on the other hand, is governed by subchapter IV of chapter 53, Title 5. No express statutory provision in subchapter IV defines how an employee's salary should be set when a WS employee is promoted to a GS position. Thus, the only applicable statutory provisions are those found in subchapter III and its accompanying regulations, which specifically limit the two-step increase to promotions within the GS. Nothing in the statutory language indicates Congress intended to include employees promoted from WS to GS within the two-step requirement of 5334(b). Absent such language, the statute and the accompanying regulations reveal a congressional intend to apply the two-step increase provision of 5334(b) only to promotions or transfers of employees already within the GS system. III Although the language of the statute is clear, any lingering doubt as to its proper construction may be resolved by examining the legislative history of the statute and by according *562 due deference to the longstanding interpretation given the statute by the agencies charged with its interpretation. See The legislative history of 5334(b) reinforces the apparent intent of the statutory language. The predecessor to 5334(b) was 802(b) of the Classification Act of 1949, 5 U.S. C. 1071 et seq. (1946 ed. and Supp. IV) (1949 Act).[8] Through the 1949 Act, Congress completely revised the Classification Act of 1923, Pub. L. 516, 5 U.S. C. 661 et seq. (1925-1926 ed). Under the latter statute, an employee who was at the top step of the his grade could receive little or no salary increase upon promotion to a higher grade. That inequity resulted because the salary for the higher steps in one grade could equal or exceed the salary for the lower steps in the next higher grade. Congress' 1949 revision plainly undertook to correct this problem: the 1949 Act numbered among its stated purposes the need "to permit the solution of certain troublesome problems or to avoid unintentional pay inequities in the conduct of various personnel transactions." S. Rep. No. 847, 81st Cong. 1st, Sess., 4 (1949). Congress, moreover, understood the precise nature of the salary overlap problem. The Committee Reports which accompanied the proposed revisions explained: "At present, a promoted employee receives no immediate increase if he is already receiving a rate in the lower grade that also occurs in the higher grade. If he is receiving a rate in the lower grade that falls between two rates of the higher grade, he is promoted at the higher of these two rates. "In too many cases, accordingly, an employee who is promoted to greater responsibilities or more difficult duties receives no immediate increase in pay. This is not in accord with the commonly accepted principle that a promotion in pay should [concurrently] accompany a promotion in duties and responsibilities. *563 "Subsection (b) of section 802 corrects this situation." ; H. R. Rep. No. 1264, 81st Cong., 1st Sess., 12-13 (1949). Examination of the history of the prevailing wage system dispels any notion that Congress intended the corrective measure of 802(b) to apply to movement between the prevailing wage and Classification Act systems. In 1949, each federal agency had its own pay system for blue-collar workers. As a result, employees holding the same federal position in the same locale often received different wages if they worked for different agencies. In addition, each agency had its own job grading system for prevailing wage employees, which resulted in widely varying numbers of grades and wage steps.[9] Nothing in the legislative history suggests that Congress was even aware of — much less was attempting to adjust — the varied results that might occur if a prevailing wage worker moved into a Classification Act position. The 1949 legislative history suggests only that Congress was concerned with inequities that might occur through application of the Classification Act system to movement within that system. Moreover, in 1972, approximately one year before respondents' promotions, Congress undertook a comprehensive examination of the prevailing wage statutes and amended existing laws to declare congressional policy for the payment of prevailing wage employees. See S. Rep. No. 92-791, p. 1 (1972). Congress' stated purpose was to codify existing law. As part of the 1972 amendments, Congress for the first time directed that a grading system be established and maintained for prevailing wage employees.[10] 5 U.S. C. *564 5346 (1976 ed. and Supp. V). Even then, Congress made no effect to correlate the WS grades with those used in the GS. By that time, the agency practice of specifically limiting 5334(b) and its predecessor to transfers between Classification Act, or GS, positions had been followed for nearly 25 years.[11] Congress' failure to correct that practice, if it did not correspond with congressional intend, at the very time Congress was revamping the laws applicable to pay for prevailing wage positions provides further evidence of its intent that 802(b) and, later, 5334(b) apply only to GS employees. See United The absence of any indication that Congress intended 5334(b) to apply to promotions into the GS from the WS is hardly surprising, since the two systems have no necessary or obvious relationship. First, because the WS involves an entirely separate pay structure based on prevailing rates in local wage areas, no necessary overlap occurs between WS and GS salaries. In fact, since WS rates vary by locale, an employee changing from a WS position to a GS position could receive a greater salary, a lesser salary, or the same salary as another employee making the identical change in another part of the country. Moreover, although by definition a change to a higher grade within the GS system involves a change to a position with greater responsibility (see 5 U.S. C. 5102(a)(5) (1076 ed. Supp. V)), no similar relationship necessarily exists between a WS grade and a GS Grade.[12] *565 Although the legislative history does not expressly indicate that Congress intended to limit 5334(b) and its predecessor to GS employees, the history provides ample indication that such was Congress' intent. Moreover, the reasons for enactment of the provision are consistent with such a limitation. IV Although not determinative, the construction of a statute by those charged with its administration is entitled to great deference, particularly when that interpretation has been followed consistently over a long period of time. See In this instance, the agency responsible for proposing and administering 5334(b) has consistently construed it to apply only to promotions within the GS. Section 802(b) of the 1949 Act was drafted and submitted to the Congress by the Civil Service Commission.[13] Soon after its enactment, the Civil Service Commission promulgated regulations interpreting the section. The first regulations guaranteed a pay increase to one promoted "to a higher grade between Classification Act [GS] positions" 15 Feb. Reg. 7868 (1950), 5 CFR 25.104(a) (Supp. 1951).[14] In contrast, an employee promoted or transferred from another *566 pay system into the Classification Act system was subject to the "higher previous rate" rule. 15 Feb. Reg. 1235 (1950), 5 CFR 25.103(b) (Supp. 1951). Subsequent versions of the regulations continued to apply the automatic salary increase of 802(b) and, later, of 5334(b), only to promotions or transfers within the Classification Act, or GS, System.[15] In fact, the regulation in effect when respondents were promoted expressly provided that the two-step pay increase provision of 5334(b) applied "only (i) to a transfer from one General Schedule position to a higher General Schedule position, and (ii) to a promotion from one General Schedule grade to a higher General Schedule grade." 33 Feb. Reg. 12450 (1968), 5 CFR 531.204(a)(1) (1969).[16] V The language of the statute, the entire statutory scheme, the legislative history, and consistent administrative interpretation *567 all demonstrate the soundness of the Government's position that 5334(b) is inapplicable to promotions from the Wage System to the General Schedule. The judgment of the Court of Claims is reversed. It is so ordered.

Justice Kennedy

majority

FTC v. Ticor Title Ins. Co.

https://www.courtlistener.com/opinion/112749/ftc-v-ticor-title-ins-co/

https://www.courtlistener.com/api/rest/v3/clusters/112749/

1991-087

The Federal Trade Commission filed an administrative complaint against six of the Nation's largest title insurance *625 companies, alleging horizontal price fixing in their fees for title searches and title examinations. One company settled by consent decree, while five other firms continue to contest the matter. The Commission charged the title companies with violating § 5(a)(1) of the Federal Trade Commission Act, 38 Stat. 719, 15 U.S. C. § 45(a)(1), which prohibits "[u]nfair methods of competition in or affecting commerce." One of the principal defenses the companies assert is state-action immunity from antitrust prosecution, as contemplated in the line of cases beginning with Parker v. Brown, 317 U.S. 341 (1943). The Commission rejected this defense, In re Ticor Title Ins. Co., 112 F. T. C. 344 (1989), and the firms sought review in the United States Court of Appeals for the Third Circuit. Ruling that state-action immunity was available under the state regulatory schemes in question, the Court of Appeals reversed. 922 F.2d 1122 (1991). We granted certiorari. 502 U.S. 806 (1991). I Title insurance is the business of insuring the record title of real property for persons with some interest in the estate, including owners, occupiers, and lenders. A title insurance policy insures against certain losses or damages sustained by reason of a defect in title not shown on the policy or title report to which it refers. Before issuing a title insurance *626 policy, the insurance company or one of its agents performs a title search and examination. The search produces a chronological list of the public documents in the chain of title to the real property. The examination is a critical analysis or interpretation of the condition of title revealed by the documents disclosed through this search. The title search and examination are major components of the insurance company's services. There are certain variances from State to State and from policy to policy, but a brief summary of the functions performed by the title companies can be given. The insurance companies exclude from coverage defects uncovered during the search; that is, the insurers conduct searches in order to inform the insured and to reduce their own liability by identifying and excluding known risks. The insured is protected from some losses resulting from title defects not discoverable from a search of the public records, such as forgery, missing heirs, previous marriages, impersonation, or confusion in names. They are protected also against errors or mistakes in the search and examination. Negligence need not be proved in order to recover. Title insurance also includes the obligation to defend in the event that an insured is sued by reason of some defect within the scope of the policy's guarantee. The title insurance industry earned $1.35 billion in gross revenues in 1982, and respondents accounted for 57 percent of that amount. Four of respondents are the nation's largest title insurance companies: Ticor Title Insurance Co., with 16.5 percent of the market; Chicago Title Insurance Co., with 12.8 percent; Lawyers Title Insurance Co., with 12 percent; and SAFECO Title Insurance Co. (now operating under the name Security Union Title Insurance Co.), with 10.3 percent. Stewart Title Guarantee Co., with 5.4 percent of the market, is the country's eighth largest title insurer, with a strong position in the West and Southwest. App. to Pet. for Cert. 145a. *627 The Commission issued an administrative complaint in 1985. Horizontal price fixing was alleged in these terms: "`Respondents have agreed on the prices to be charged for title search and examination services or settlement services through rating bureaus in various states. Examples of states in which one or more of the respondents have fixed prices with other respondents or other competitors for all or part of their search and examination services or settlement services are Arizona, Connecticut, Idaho, Louisiana, Montana, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Wisconsin and Wyoming.' " 112 F. T. C., at 346. The Commission did not challenge the insurers' practice of setting uniform rates for insurance against the risk of loss from defective titles, but only the practice of setting uniform rates for the title search, examination, and settlement, aspects of the business which, the Commission alleges, do not involve insurance. Before the Administrative Law Judge (ALJ), respondents defended against liability on three related grounds. First, they maintained that the challenged conduct is exempt from antitrust scrutiny under the McCarran-Ferguson Act, 59 Stat. 34, 15 U.S. C. § 1012(b), which confers antitrust immunity over the "business of insurance" to the extent regulated by state law. Second, they argued that their collective ratemaking activities are exempt under the NoerrPennington doctrine, which places certain "[j]oint efforts to influence public officials" beyond the reach of the antitrust laws. Mine Workers v. Pennington, 381 U.S. 657, 670 (1965); Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136 (1961). Third, respondents contended their activities are entitled to stateaction immunity, which permits anticompetitive conduct if authorized and supervised by state officials. See California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 *628 U. S. 97 (1980); Parker v. Brown, 317 U.S. 341 (1943). App. to Pet. for Cert. 218a. As to one State, Ohio, respondents contended that the rates for title search, examination, and settlement had not been set by a rating bureau. Title insurance company rates and practices in 13 States were the subject of the initial complaint. Before the matter was decided by the ALJ, the Commission declined to pursue its complaint with regard to fees in five of these States: Louisiana, New Mexico, New York, Oregon, and Wyoming. Upon the recommendation of the ALJ, the Commission did not pursue its complaint with regard to fees in two additional States, Idaho and Ohio. This left six States in which the Commission found antitrust violations, but in two of these States, New Jersey and Pennsylvania, the Commission conceded the issue on which certiorari was sought here, so the regulatory regimes in these two States are not before us. Four States remain in which violations were alleged: Connecticut, Wisconsin, Arizona, and Montana. The ALJ held that the rates for search and examination services had been fixed in these four States. For reasons we need not pause to examine, the ALJ rejected the McCarranFerguson and Noerr-Pennington defenses. The ALJ then turned his attention to the question of state-action immunity. A summary of the ALJ's extensive findings on this point is necessary for a full understanding of the decisions reached at each level of the proceedings in the case. Rating bureaus are private entities organized by title insurance companies to establish uniform rates for their members. The ALJ found no evidence that the collective setting of title insurance rates through rating bureaus is a way of pooling risk information. Indeed, he found no evidence that any title insurer sets rates according to actuarial loss experience. Instead, the ALJ found that the usual practice is for rating bureaus to set rates according to profitability studies that focus on the costs of conducting searches and examinations. Uniform rates are set notwithstanding differences in *629 efficiencies and costs among individual members. App. to Pet. for Cert. 183a—184a. The ALJ described the regulatory regimes for title insurance rates in the four States still at issue. In each one, the title insurance rating bureau was licensed by the State and authorized to establish joint rates for its members. Each of the four States used what has come to be called a "negative option" system to approve rate filings by the bureaus. Under a negative option system, the rating bureau filed rates for title searches and title examinations with the state insurance office. The rates became effective unless the State rejected them within a specified period, such as 30 days. Although the negative option system provided a theoretical mechanism for substantive review, the ALJ determined, after making detailed findings regarding the operation of each regulatory regime, that the rate filings were subject to minimal scrutiny by state regulators. In Connecticut the State Insurance Department has the authority to audit the rating bureau and hold hearings regarding rates, but it has not done so. The Connecticut rating bureau filed only two major rate increases, in 1966 and in 1981. The circumstances behind the 1966 rate increase are somewhat obscure. The ALJ found that the Insurance Department asked the rating bureau to submit additional information justifying the increase, and later approved the rate increase although there is no evidence the additional information was provided. In 1981 the Connecticut rating bureau filed for a 20 percent rate increase. The factual background for this rate increase is better developed though the testimony was somewhat inconsistent. A state insurance official testified that he reviewed the rate increase with care and discussed various components of the increase with the rating bureau. The same official testified, however, that he lacked the authority to question certain expense data he considered quite high. Id., at 189a—195a. *630 In Wisconsin the State Insurance Commissioner is required to examine the rating bureau at regular intervals and authorized to reject rates through a process of hearings. Neither has been done. The Wisconsin rating bureau made major rate filings in 1971, 1981, and 1982. The 1971 rate filing was approved in 1971 although supporting justification, which had been requested by the State Insurance Commissioner, was not provided until 1978. The 1981 rate filing requested an 11 percent rate increase. The increase was approved after the office of the Insurance Commissioner checked the supporting data for accuracy. No one in the agency inquired into insurer expenses, though an official testified that substantive scrutiny would not be possible without that inquiry. The 1982 rate increase received but a cursory reading at the office of the Insurance Commissioner. The supporting materials were not checked for accuracy, though in the absence of an objection by the agency, the rate increase went into effect. Id., at 196a—200a. In Arizona the Insurance Director was required to examine the rating bureau at least once every five years. It was not done. In 1980 the State Insurance Department announced a comprehensive investigation of the rating bureau. It was not conducted. The rating bureau spent most of its time justifying its escrow rates. Following conclusion in 1981 of a federal civil suit challenging the joint fixing of escrow rates, the rating bureau went out of business without having made any major rate filings, though it had proposed minor rate adjustments. Id., at 200a—205a. In Montana the rating bureau made its only major rate filing in 1983. In connection with it, a representative of the rating bureau met with officials of the State Insurance Department. He was told that the filed rates could go into immediate effect though further profit data would have to be provided. The ALJ found no evidence that the additional data were furnished. Id., at 211a—214a. *631 To complete the background, the ALJ observed that none of the rating bureaus are now active. The respondents abandoned them between 1981 and 1985 in response to numerous private treble-damages suits, so by the time the Commission filed its formal complaint in 1985, the rating bureaus had been dismantled. Id., at 195a, 200a, 205a, 208a. The ALJ held that the case is not moot, though, because nothing would preclude respondents from resuming the conduct challenged by the Commission. Id., at 246a—247a. See United States v. W. T. Grant Co., 345 U.S. 629, 632-633 (1953). These factual determinations established, the ALJ addressed the two-part test that must be satisfied for stateaction immunity under the antitrust laws, the test we set out in California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 (1980). A state law or regulatory scheme cannot be the basis for antitrust immunity unless, first, the State has articulated a clear and affirmative policy to allow the anticompetitive conduct, and second, the State provides active supervision of anticompetitive conduct undertaken by private actors. Id., at 105. The Commission having conceded that the first part of the test was satisfied in the four States still at issue, the immunity question, beginning with the hearings before the ALJ and in all later proceedings, has turned upon the proper interpretation and application of Midcal `s active supervision requirement. The ALJ found the active supervision test was met in Arizona and Montana but not in Connecticut or Wisconsin. App. to Pet. for Cert. 248a. On review of the ALJ's decision, the Commission held that none of the four States had conducted sufficient supervision, so that the title companies were not entitled to immunity in any of those jurisdictions. Id., at 47a. The Court of Appeals for the Third Circuit disagreed with the Commission, adopting the approach of the First Circuit in New England Motor Rate Bureau, Inc. v. FTC, 908 F.2d 1064 (1990), which *632 had held that the existence of a state regulatory program, if staffed, funded, and empowered by law, satisfied the requirement of active supervision. Id., at 1071. Under this standard, the Court of Appeals for the Third Circuit ruled that the active state supervision requirement was met in all four States and held that the respondents' conduct was entitled to state-action immunity in each of them. 922 F.2d, at 1140. We granted certiorari to consider two questions: First, whether the Third Circuit was correct in its statement of the law and in its application of law to fact, and second, whether the Third Circuit exceeded its authority by departing from the factual findings entered by the ALJ and adopted by the Commission. Before this Court, the parties have confined their briefing on the first of these questions to the regulatory regimes of Wisconsin and Montana, and focused on the regulatory regimes of Connecticut and Arizona in briefing on the second question. We now reverse the Court of Appeals under the first question and remand for further proceedings under the second. II The preservation of the free market and of a system of free enterprise without price fixing or cartels is essential to economic freedom. United States v. Topco Associates, Inc., 405 U.S. 596, 610 (1972). A national policy of such a pervasive and fundamental character is an essential part of the economic and legal system within which the separate States administer their own laws for the protection and advancement of their people. Continued enforcement of the national antitrust policy grants the States more freedom, not less, in deciding whether to subject discrete parts of the economy to additional regulations and controls. Against this background, in Parker v. Brown, 317 U.S. 341 (1943), we upheld a state-supervised, market sharing scheme against a Sherman Act challenge. We announced the doctrine that federal antitrust laws are subject to supersession by state regulatory *633 programs. Our decision was grounded in principles of federalism. Id., at 350-352. The principle of freedom of action for the States, adopted to foster and preserve the federal system, explains the later evolution and application of the Parker doctrine in our decisions in Midcal, supra, and Patrick v. Burget, 486 U.S. 94 (1988). In Midcal we invalidated a California statute forbidding licensees in the wine trade to sell below prices set by the producer. There we announced the two-part test applicable to instances where private parties participate in a price-fixing regime. "First, the challenged restraint must be one clearly articulated and affirmatively expressed as state policy; second, the policy must be actively supervised by the State itself." 445 U.S., at 105 (internal quotation marks omitted). Midcal confirms that while a State may not confer antitrust immunity on private persons by fiat, it may displace competition with active state supervision if the displacement is both intended by the State and implemented in its specific details. Actual state involvement, not deference to private price-fixing arrangements under the general auspices of state law, is the precondition for immunity from federal law. Immunity is conferred out of respect for ongoing regulation by the State, not out of respect for the economics of price restraint. In Midcal we found that the intent to restrain prices was expressed with sufficient precision so that the first part of the test was met, but that the absence of state participation in the mechanics of the price posting was so apparent that the requirement of active supervision had not been met. Ibid. The rationale was further elaborated in Patrick v. Burget. In Patrick it had been alleged that private physicians participated in the State's peer review system in order to injure or destroy competition by denying hospital privileges to a physician who had begun a competing clinic. We referred to the purpose of preserving the State's own administrative *634 policies, as distinct from allowing private parties to foreclose competition, in the following passage: "The active supervision requirement stems from the recognition that where a private party is engaging in the anticompetitive activity, there is a real danger that he is acting to further his own interests, rather than the governmental interests of the State. . . .The requirement is designed to ensure that the state-action doctrine will shelter only the particular anticompetitive acts of private parties that, in the judgment of the State, actually further state regulatory policies. To accomplish this purpose, the active supervision requirement mandates that the State exercise ultimate control over the challenged anticompetitive conduct. . . . The mere presence of some state involvement or monitoring does not suffice. . . . The active supervision prong of the Midcal test requires that state officials have and exercise power to review particular anticompetitive acts of private parties and disapprove those that fail to accord with state policy. Absent such a program of supervision, there is no realistic assurance that a private party's anticompetitive conduct promotes state policy, rather than merely the party's individual interests." 486 U.S., at 100-101 (internal quotation marks and citations omitted). Because the particular anticompetitive conduct at issue in Patrick had not been supervised by governmental actors, we decided that the actions of the peer review committee were not entitled to state-action immunity. Id., at 106. Our decisions make clear that the purpose of the active supervision inquiry is not to determine whether the State has met some normative standard, such as efficiency, in its regulatory practices. Its purpose is to determine whether the State has exercised sufficient independent judgment and control so that the details of the rates or prices have been established as a product of deliberate state intervention, not *635 simply by agreement among private parties. Much as in causation inquiries, the analysis asks whether the State has played a substantial role in determining the specifics of the economic policy. The question is not how well state regulation works but whether the anticompetitive scheme is the State's own. Although the point bears but brief mention, we observe that our prior cases considered state-action immunity against actions brought under the Sherman Act, and this case arises under the Federal Trade Commission Act. The Commission has argued at other times that state-action immunity does not apply to Commission action under § 5 of the Federal Trade Commission Act, 15 U.S. C. § 45. See U. S. Bureau of Consumer Protection, Staff Report to the Federal Trade Commission on Prescription Drug Price Disclosures, Chs. VI(B) and (C) (1975); see also Note, The State Action Exemption and Antitrust Enforcement under the Federal Trade Commission Act, 89 Harv. L. Rev. 715 (1976). A leading treatise has expressed its skepticism of this view. See 1 P. Areeda & D. Turner, Antitrust Law ¶ 218 (1978). We need not determine whether the antitrust statutes can be distinguished on this basis, because the Commission does not assert any superior pre-emption authority in the instant matter. We apply our prior cases to the one before us. Respondents contend that principles of federalism justify a broad interpretation of state-action immunity, but there is a powerful refutation of their viewpoint in the briefs that were filed in this case. The State of Wisconsin, joined by Montana and 34 other States, has filed a brief as amici curiae on the precise point. These States deny that respondents' broad immunity rule would serve the States' best interests. We are in agreement with the amici submission. If the States must act in the shadow of state-action immunity whenever they enter the realm of economic regulation, then our doctrine will impede their freedom of action, not advance it. The fact of the matter is that the States regulate *636 their economies in many ways not inconsistent with the antitrust laws. For example, Oregon may provide for peer review by its physicians without approving anticompetitive conduct by them. See Patrick, 486 U. S., at 105. Or Michigan may regulate its public utilities without authorizing monopolization in the market for electric light bulbs. See Cantor v. Detroit Edison Co., 428 U.S. 579, 596 (1976). So we have held that state-action immunity is disfavored, much as are repeals by implication. Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 398-399 (1978). By adhering in most cases to fundamental and accepted assumptions about the benefits of competition within the framework of the antitrust laws, we increase the States' regulatory flexibility. States must accept political responsibility for actions they intend to undertake. It is quite a different matter, however, for federal law to compel a result that the States do not intend but for which they are held to account. Federalism serves to assign political responsibility, not to obscure it. Neither federalism nor political responsibility is well served by a rule that essential national policies are displaced by state regulations intended to achieve more limited ends. For States which do choose to displace the free market with regulation, our insistence on real compliance with both parts of the Midcal test will serve to make clear that the State is responsible for the price fixing it has sanctioned and undertaken to control. Respondents contend that these concerns are better addressed by the requirement that the States articulate a clear policy to displace the antitrust laws with their own forms of economic regulation. This contention misapprehends the close relation between Midcal `s two elements. Both are directed at ensuring that particular anticompetitive mechanisms operate because of a deliberate and intended state policy. See Patrick, supra, at 100. In the usual case, Midcal `s requirement that the State articulate a clear policy shows little more than that the State has not acted through inadvertence; *637 it cannot alone ensure, as required by our precedents, that particular anticompetitive conduct has been approved by the State. It seems plain, moreover, in light of the amici curiae brief to which we have referred, that sole reliance on the requirement of clear articulation will not allow the regulatory flexibility that these States deem necessary. For States whose object it is to benefit their citizens through regulation, a broad doctrine of state-action immunity may serve as nothing more than an attractive nuisance in the economic sphere. To oppose these pressures, sole reliance on the requirement of clear articulation could become a rather meaningless formal constraint. III In the case before us, the Court of Appeals relied upon a formulation of the active supervision requirement articulated by the First Circuit: "`Where . . . the state's program is in place, is staffed and funded, grants to the state officials ample power and the duty to regulate pursuant to declared standards of state policy, is enforceable in the state's courts, and demonstrates some basic level of activity directed towards seeing that the private actors carry out the state's policy and not simply their own policy, more need not be established.' " 922 F.2d, at 1136, quoting New England Motor Rate Bureau, Inc. v. FTC, 908 F. 2d, at 1071. Based on this standard, the Third Circuit ruled that the active supervision requirement was met in all four States, and held that the respondents' conduct was entitled to stateaction immunity from antitrust liability. 922 F.2d, at 1140. While in theory the standard articulated by the First Circuit might be applied in a manner consistent with our precedents, it seems to us insufficient to establish the requisite level of active supervision. The criteria set forth by the First Circuit may have some relevance as the beginning *638 point of the active state supervision inquiry, but the analysis cannot end there. Where prices or rates are set as an initial matter by private parties, subject only to a veto if the State chooses to exercise it, the party claiming the immunity must show that state officials have undertaken the necessary steps to determine the specifics of the price-fixing or ratesetting scheme. The mere potential for state supervision is not an adequate substitute for a decision by the State. Under these standards, we must conclude that there was no active supervision in either Wisconsin or Montana. Respondents point out that in Wisconsin and Montana the rating bureaus filed rates with state agencies and that in both States the so-called negative option rule prevailed. The rates became effective unless they were rejected within a set time. It is said that as a matter of law in those States inaction signified substantive approval. This proposition cannot be reconciled, however, with the detailed findings, entered by the ALJ and adopted by the Commission, which demonstrate that the potential for state supervision was not realized in fact. The ALJ found, and the Commission agreed, that at most the rate filings were checked for mathematical accuracy. Some were unchecked altogether. In Montana, a rate filing became effective despite the failure of the rating bureau to provide additional requested information. In Wisconsin, additional information was provided after a lapse of seven years, during which time the rate filing remained in effect. These findings are fatal to respondents' attempts to portray the state regulatory regimes as providing the necessary component of active supervision. The findings demonstrate that, whatever the potential for state regulatory review in Wisconsin and Montana, active state supervision did not occur. In the absence of active supervision in fact, there can be no state-action immunity for what were otherwise private price-fixing arrangements. And as in Patrick, the availability of state judicial review could not fill the void. Because of the state agencies' limited role and *639 participation, state judicial review was likewise limited. See Patrick, 486 U. S., at 103-105. Our decision in Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48 (1985), though it too involved a negative option regime, is not to the contrary. The question there was whether the first part of the Midcal test was met, the Government's contention being that a pricing policy is not an articulated one unless the practice is compelled. We rejected that assertion and undertook no real examination of the active supervision aspect of the case, for the Government conceded that the second part of the test had been met. Id., at 62, 66. The concession was against the background of a District Court determination that, although submitted rates could go into effect without further state activity, the State had ordered and held ratemaking hearings on a consistent basis, using the industry submissions as the beginning point. See United States v. Southern Motor Carriers Rate Conference, Inc., 467 F. Supp. 471, 476— 477 (ND Ga. 1979). In the case before us, of course, the Commission concedes the first part of the Midcal requirement and litigates the second; and there is no finding of substantial state participation in the ratesetting scheme. This case involves horizontal price fixing under a vague imprimatur in form and agency inaction in fact. No antitrust offense is more pernicious than price fixing. FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411, 434, n. 16 (1990). In this context, we decline to formulate a rule that would lead to a finding of active state supervision where in fact there was none. Our decision should be read in light of the gravity of the antitrust offense, the involvement of private actors throughout, and the clear absence of state supervision. We do not imply that some particular form of state or local regulation is required to achieve ends other than the establishment of uniform prices. Cf. Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (1991) (city billboard zoning ordinance entitled to state-action immunity). We do *640 not have before us a case in which governmental actors made unilateral decisions without participation by private actors. Cf. Fisher v. Berkeley, 475 U.S. 260 (1986) (private actors not liable without private action). And we do not here call into question a regulatory regime in which sampling techniques or a specified rate of return allow state regulators to provide comprehensive supervision without complete control, or in which there was an infrequent lapse of state supervision. Cf. 324 Liquor Corp. v. Duffy, 479 U.S. 335, 344, n. 6 (1987) (a statute specifying the margin between wholesale and retail prices may satisfy the active supervision requirement). In the circumstances of this case, however, we conclude that the acts of respondents in the States of Montana and Wisconsin are not immune from antitrust liability. IV In granting certiorari we undertook to review the further contention by the Commission that the Court of Appeals was incorrect in disregarding the Commission's findings as to the extent of state supervision. The parties have focused their briefing on this question on the regulatory schemes of Connecticut and Arizona. We think the Court of Appeals should have the opportunity to reexamine its determinations with respect to these latter two States in light of the views we have expressed. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

The Federal Trade Commission filed an administrative complaint against six of the Nation's largest title insurance *625 companies, alleging horizontal price fixing in their fees for title searches and title examinations. One company settled by consent decree, while five other firms continue to contest the matter. The Commission charged the title companies with violating 5(a)(1) of the Federal Trade Commission Act, 15 U.S. C. 45(a)(1), which prohibits "[u]nfair methods of competition in or affecting commerce." One of the principal defenses the companies assert is state-action immunity from antitrust prosecution, as contemplated in the line of cases beginning with The Commission rejected this defense, In re Ticor Title Ins. Co., 112 F. T. C. 344 (1989), and the firms sought review in the United States Court of Appeals for the Third Circuit. Ruling that state-action immunity was available under the state regulatory schemes in question, the Court of Appeals reversed. We granted certiorari. I Title insurance is the business of insuring the record title of real property for persons with some interest in the estate, including owners, occupiers, and lenders. A title insurance policy insures against certain losses or damages sustained by reason of a defect in title not shown on the policy or title report to which it refers. Before issuing a title insurance *626 policy, the insurance company or one of its agents performs a title search and examination. The search produces a chronological list of the public documents in the chain of title to the real property. The examination is a critical analysis or interpretation of the condition of title revealed by the documents disclosed through this search. The title search and examination are major components of the insurance company's services. There are certain variances from State to State and from policy to policy, but a brief summary of the functions performed by the title companies can be given. The insurance companies exclude from coverage defects uncovered during the search; that is, the insurers conduct searches in order to inform the insured and to reduce their own liability by identifying and excluding known risks. The insured is protected from some losses resulting from title defects not discoverable from a search of the public records, such as forgery, missing heirs, previous marriages, impersonation, or confusion in names. They are protected also against errors or mistakes in the search and examination. Negligence need not be proved in order to recover. Title insurance also includes the obligation to defend in the event that an insured is sued by reason of some defect within the scope of the policy's guarantee. The title insurance industry earned $1.35 billion in gross revenues in 1982, and respondents accounted for 57 percent of that amount. Four of respondents are the nation's largest title insurance companies: Ticor Title Insurance Co., with 16.5 percent of the market; Chicago Title Insurance Co., with 12.8 percent; Lawyers Title Insurance Co., with 12 percent; and SAFECO Title Insurance Co. (now operating under the name Security Union Title Insurance Co.), with 10.3 percent. Stewart Title Guarantee Co., with 5.4 percent of the market, is the country's eighth largest title insurer, with a strong position in the West and Southwest. App. to Pet. for Cert. 145a. *627 The Commission issued an administrative complaint in 1985. Horizontal price fixing was alleged in these terms: "`Respondents have agreed on the prices to be charged for title search and examination services or settlement services through rating bureaus in various states. Examples of states in which one or more of the respondents have fixed prices with other respondents or other competitors for all or part of their search and examination services or settlement services are Arizona, Connecticut, Idaho, Louisiana, Montana, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Wisconsin and Wyoming.' " 112 F. T. C., at 346. The Commission did not challenge the insurers' practice of setting uniform rates for insurance against the risk of loss from defective titles, but only the practice of setting uniform rates for the title search, examination, and settlement, aspects of the business which, the Commission alleges, do not involve insurance. Before the Administrative Law Judge (ALJ), respondents defended against liability on three related grounds. First, they maintained that the challenged conduct is exempt from antitrust scrutiny under the McCarran-Ferguson Act, 15 U.S. C. 1012(b), which confers antitrust immunity over the "business of insurance" to the extent regulated by state law. Second, they argued that their collective ratemaking activities are exempt under the NoerrPennington doctrine, which places certain "[j]oint efforts to influence public officials" beyond the reach of the antitrust laws. Mine ; Eastern Railroad Presidents Third, respondents contended their activities are entitled to stateaction immunity, which permits anticompetitive conduct if authorized and supervised by state officials. See California Retail Liquor Dealers ; App. to Pet. for Cert. 218a. As to one State, Ohio, respondents contended that the rates for title search, examination, and settlement had not been set by a rating bureau. Title insurance company rates and practices in 13 States were the subject of the initial complaint. Before the matter was decided by the ALJ, the Commission declined to pursue its complaint with regard to fees in five of these States: Louisiana, New Mexico, New York, Oregon, and Wyoming. Upon the recommendation of the ALJ, the Commission did not pursue its complaint with regard to fees in two additional States, Idaho and Ohio. This left six States in which the Commission found antitrust violations, but in two of these States, New Jersey and Pennsylvania, the Commission conceded the issue on which certiorari was sought here, so the regulatory regimes in these two States are not before us. Four States remain in which violations were alleged: Connecticut, Wisconsin, Arizona, and Montana. The ALJ held that the rates for search and examination services had been fixed in these four States. For reasons we need not pause to examine, the ALJ rejected the McCarranFerguson and Noerr-Pennington defenses. The ALJ then turned his attention to the question of state-action immunity. A summary of the ALJ's extensive findings on this point is necessary for a full understanding of the decisions reached at each level of the proceedings in the case. Rating bureaus are private entities organized by title insurance companies to establish uniform rates for their members. The ALJ found no evidence that the collective setting of title insurance rates through rating bureaus is a way of pooling risk information. Indeed, he found no evidence that any title insurer sets rates according to actuarial loss experience. Instead, the ALJ found that the usual practice is for rating bureaus to set rates according to profitability studies that focus on the costs of conducting searches and examinations. Uniform rates are set notwithstanding differences in *629 efficiencies and costs among individual members. App. to Pet. for Cert. 183a—184a. The ALJ described the regulatory regimes for title insurance rates in the four States still at issue. In each one, the title insurance rating bureau was licensed by the State and authorized to establish joint rates for its members. Each of the four States used what has come to be called a "negative option" system to approve rate filings by the bureaus. Under a negative option system, the rating bureau filed rates for title searches and title examinations with the state insurance office. The rates became effective unless the State rejected them within a specified period, such as 30 days. Although the negative option system provided a theoretical mechanism for substantive review, the ALJ determined, after making detailed findings regarding the operation of each regulatory regime, that the rate filings were subject to minimal scrutiny by state regulators. In Connecticut the State Insurance Department has the authority to audit the rating bureau and hold hearings regarding rates, but it has not done so. The Connecticut rating bureau filed only two major rate increases, in 1966 and in 1981. The circumstances behind the 1966 rate increase are somewhat obscure. The ALJ found that the Insurance Department asked the rating bureau to submit additional information justifying the increase, and later approved the rate increase although there is no evidence the additional information was provided. In 1981 the Connecticut rating bureau filed for a 20 percent rate increase. The factual background for this rate increase is better developed though the testimony was somewhat inconsistent. A state insurance official testified that he reviewed the rate increase with care and discussed various components of the increase with the rating bureau. The same official testified, however, that he lacked the authority to question certain expense data he considered quite high. at 189a—195a. *630 In Wisconsin the State Insurance Commissioner is required to examine the rating bureau at regular intervals and authorized to reject rates through a process of hearings. Neither has been done. The Wisconsin rating bureau made major rate filings in 1971, 1981, and 1982. The 1971 rate filing was approved in 1971 although supporting justification, which had been requested by the State Insurance Commissioner, was not provided until 1978. The 1981 rate filing requested an 11 percent rate increase. The increase was approved after the office of the Insurance Commissioner checked the supporting data for accuracy. No one in the agency inquired into insurer expenses, though an official testified that substantive scrutiny would not be possible without that inquiry. The 1982 rate increase received but a cursory reading at the office of the Insurance Commissioner. The supporting materials were not checked for accuracy, though in the absence of an objection by the agency, the rate increase went into effect. at 196a—200a. In Arizona the Insurance Director was required to examine the rating bureau at least once every five years. It was not done. In 1980 the State Insurance Department announced a comprehensive investigation of the rating bureau. It was not conducted. The rating bureau spent most of its time justifying its escrow rates. Following conclusion in 1981 of a federal civil suit challenging the joint fixing of escrow rates, the rating bureau went out of business without having made any major rate filings, though it had proposed minor rate adjustments. at 200a—205a. In Montana the rating bureau made its only major rate filing in 1983. In connection with it, a representative of the rating bureau met with officials of the State Insurance Department. He was told that the filed rates could go into immediate effect though further profit data would have to be provided. The ALJ found no evidence that the additional data were furnished. at 211a—214a. *631 To complete the background, the ALJ observed that none of the rating bureaus are now active. The respondents abandoned them between 1981 and 1985 in response to numerous private treble-damages suits, so by the time the Commission filed its formal complaint in 1985, the rating bureaus had been dismantled. at 195a, 200a, 205a, 208a. The ALJ held that the case is not moot, though, because nothing would preclude respondents from resuming the conduct challenged by the Commission. at 246a—247a. See United These factual determinations established, the ALJ addressed the two-part test that must be satisfied for stateaction immunity under the antitrust laws, the test we set out in California Retail Liquor Dealers A state law or regulatory scheme cannot be the basis for antitrust immunity unless, first, the State has articulated a clear and affirmative policy to allow the anticompetitive conduct, and second, the State provides active supervision of anticompetitive conduct undertaken by private actors. The Commission having conceded that the first part of the test was satisfied in the four States still at issue, the immunity question, beginning with the hearings before the ALJ and in all later proceedings, has turned upon the proper interpretation and application of `s active supervision requirement. The ALJ found the active supervision test was met in Arizona and Montana but not in Connecticut or Wisconsin. App. to Pet. for Cert. 248a. On review of the ALJ's decision, the Commission held that none of the four States had conducted sufficient supervision, so that the title companies were not entitled to immunity in any of those jurisdictions. at 47a. The Court of Appeals for the Third Circuit disagreed with the Commission, adopting the approach of the First Circuit in New England Motor Rate Bureau, which *632 had held that the existence of a state regulatory program, if staffed, funded, and empowered by law, satisfied the requirement of active supervision. Under this standard, the Court of Appeals for the Third Circuit ruled that the active state supervision requirement was met in all four States and held that the respondents' conduct was entitled to state-action immunity in each of We granted certiorari to consider two questions: First, whether the Third Circuit was correct in its statement of the law and in its application of law to fact, and second, whether the Third Circuit exceeded its authority by departing from the factual findings entered by the ALJ and adopted by the Commission. Before this Court, the parties have confined their briefing on the first of these questions to the regulatory regimes of Wisconsin and Montana, and focused on the regulatory regimes of Connecticut and Arizona in briefing on the second question. We now reverse the Court of Appeals under the first question and remand for further proceedings under the second. II The preservation of the free market and of a system of free enterprise without price fixing or cartels is essential to economic freedom. United A national policy of such a pervasive and fundamental character is an essential part of the economic and legal system within which the separate States administer their own laws for the protection and advancement of their people. Continued enforcement of the national antitrust policy grants the States more freedom, not less, in deciding whether to subject discrete parts of the economy to additional regulations and controls. Against this background, in we upheld a state-supervised, market sharing scheme against a Sherman Act challenge. We announced the doctrine that federal antitrust laws are subject to supersession by state regulatory *633 programs. Our decision was grounded in principles of federalism. The principle of freedom of action for the States, adopted to foster and preserve the federal system, explains the later evolution and application of the Parker doctrine in our decisions in and In we invalidated a California statute forbidding licensees in the wine trade to sell below prices set by the producer. There we announced the two-part test applicable to instances where private parties participate in a price-fixing regime. "First, the challenged restraint must be one clearly articulated and affirmatively expressed as state policy; second, the policy must be actively supervised by the State itself." 445 U.S., confirms that while a State may not confer antitrust immunity on private persons by fiat, it may displace competition with active state supervision if the displacement is both intended by the State and implemented in its specific details. Actual state involvement, not deference to private price-fixing arrangements under the general auspices of state law, is the precondition for immunity from federal law. Immunity is conferred out of respect for ongoing regulation by the State, not out of respect for the economics of price restraint. In we found that the intent to restrain prices was expressed with sufficient precision so that the first part of the test was met, but that the absence of state participation in the mechanics of the price posting was so apparent that the requirement of active supervision had not been met. The rationale was further elaborated in In it had been alleged that private physicians participated in the State's peer review system in order to injure or destroy competition by denying hospital privileges to a physician who had begun a competing clinic. We referred to the purpose of preserving the State's own administrative *634 policies, as distinct from allowing private parties to foreclose competition, in the following passage: "The active supervision requirement stems from the recognition that where a private party is engaging in the anticompetitive activity, there is a real danger that he is acting to further his own interests, rather than the governmental interests of the State.The requirement is designed to ensure that the state-action doctrine will shelter only the particular anticompetitive acts of private parties that, in the judgment of the State, actually further state regulatory policies. To accomplish this purpose, the active supervision requirement mandates that the State exercise ultimate control over the challenged anticompetitive conduct. The mere presence of some state involvement or monitoring does not suffice. The active supervision prong of the test requires that state officials have and exercise power to review particular anticompetitive acts of private parties and disapprove those that fail to accord with state policy. Absent such a program of supervision, there is no realistic assurance that a private party's anticompetitive conduct promotes state policy, rather than merely the party's individual interests." -101 Because the particular anticompetitive conduct at issue in had not been supervised by governmental actors, we decided that the actions of the peer review committee were not entitled to state-action immunity. Our decisions make clear that the purpose of the active supervision inquiry is not to determine whether the State has met some normative standard, such as efficiency, in its regulatory practices. Its purpose is to determine whether the State has exercised sufficient independent judgment and control so that the details of the rates or prices have been established as a product of deliberate state intervention, not *635 simply by agreement among private parties. Much as in causation inquiries, the analysis asks whether the State has played a substantial role in determining the specifics of the economic policy. The question is not how well state regulation works but whether the anticompetitive scheme is the State's own. Although the point bears but brief mention, we observe that our prior cases considered state-action immunity against actions brought under the Sherman Act, and this case arises under the Federal Trade Commission Act. The Commission has argued at other times that state-action immunity does not apply to Commission action under 5 of the Federal Trade Commission Act, 15 U.S. C. 45. See U. S. Bureau of Consumer Protection, Staff Report to the Federal Trade Commission on Prescription Drug Price Disclosures, Chs. VI(B) and (C) (1975); see also Note, The State Action Exemption and Antitrust Enforcement under the Federal Trade Commission Act, A leading treatise has expressed its skepticism of this view. See 1 P. Areeda & D. Turner, Antitrust Law ¶ 218 We need not determine whether the antitrust statutes can be distinguished on this basis, because the Commission does not assert any superior pre-emption authority in the instant matter. We apply our prior cases to the one before us. Respondents contend that principles of federalism justify a broad interpretation of state-action immunity, but there is a powerful refutation of their viewpoint in the briefs that were filed in this case. The State of Wisconsin, joined by Montana and 34 other States, has filed a brief as amici curiae on the precise point. These States deny that respondents' broad immunity rule would serve the States' best interests. We are in agreement with the amici submission. If the States must act in the shadow of state-action immunity whenever they enter the realm of economic regulation, then our doctrine will impede their freedom of action, not advance it. The fact of the matter is that the States regulate *636 their economies in many ways not inconsistent with the antitrust laws. For example, Oregon may provide for peer review by its physicians without approving anticompetitive conduct by See 486 U. S., Or Michigan may regulate its public utilities without authorizing monopolization in the market for electric light bulbs. See So we have held that state-action immunity is disfavored, much as are repeals by implication. By adhering in most cases to fundamental and accepted assumptions about the benefits of competition within the framework of the antitrust laws, we increase the States' regulatory flexibility. States must accept political responsibility for actions they intend to undertake. It is quite a different matter, however, for federal law to compel a result that the States do not intend but for which they are held to account. Federalism serves to assign political responsibility, not to obscure it. Neither federalism nor political responsibility is well served by a rule that essential national policies are displaced by state regulations intended to achieve more limited ends. For States which do choose to displace the free market with regulation, our insistence on real compliance with both parts of the test will serve to make clear that the State is responsible for the price fixing it has sanctioned and undertaken to control. Respondents contend that these concerns are better addressed by the requirement that the States articulate a clear policy to displace the antitrust laws with their own forms of economic regulation. This contention misapprehends the close relation between `s two elements. Both are directed at ensuring that particular anticompetitive mechanisms operate because of a deliberate and intended state policy. See In the usual case, `s requirement that the State articulate a clear policy shows little more than that the State has not acted through inadvertence; *637 it cannot alone ensure, as required by our precedents, that particular anticompetitive conduct has been approved by the State. It seems plain, moreover, in light of the amici curiae brief to which we have referred, that sole reliance on the requirement of clear articulation will not allow the regulatory flexibility that these States deem necessary. For States whose object it is to benefit their citizens through regulation, a broad doctrine of state-action immunity may serve as nothing more than an attractive nuisance in the economic sphere. To oppose these pressures, sole reliance on the requirement of clear articulation could become a rather meaningless formal constraint. III In the case before us, the Court of Appeals relied upon a formulation of the active supervision requirement articulated by the First Circuit: "`Where the state's program is in place, is staffed and funded, grants to the state officials ample power and the duty to regulate pursuant to declared standards of state policy, is enforceable in the state's courts, and demonstrates some basic level of activity directed towards seeing that the private actors carry out the state's policy and not simply their own policy, more need not be established.' " 922 F.2d, at 1, quoting New England Motor Rate Bureau, 908 F. 2d, Based on this standard, the Third Circuit ruled that the active supervision requirement was met in all four States, and held that the respondents' conduct was entitled to stateaction immunity from antitrust While in theory the standard articulated by the First Circuit might be applied in a manner consistent with our precedents, it seems to us insufficient to establish the requisite level of active supervision. The criteria set forth by the First Circuit may have some relevance as the beginning *638 point of the active state supervision inquiry, but the analysis cannot end there. Where prices or rates are set as an initial matter by private parties, subject only to a veto if the State chooses to exercise it, the party claiming the immunity must show that state officials have undertaken the necessary steps to determine the specifics of the price-fixing or ratesetting scheme. The mere potential for state supervision is not an adequate substitute for a decision by the State. Under these standards, we must conclude that there was no active supervision in either Wisconsin or Montana. Respondents point out that in Wisconsin and Montana the rating bureaus filed rates with state agencies and that in both States the so-called negative option rule prevailed. The rates became effective unless they were rejected within a set time. It is said that as a matter of law in those States inaction signified substantive approval. This proposition cannot be reconciled, however, with the detailed findings, entered by the ALJ and adopted by the Commission, which demonstrate that the potential for state supervision was not realized in fact. The ALJ found, and the Commission agreed, that at most the rate filings were checked for mathematical accuracy. Some were unchecked altogether. In Montana, a rate filing became effective despite the failure of the rating bureau to provide additional requested information. In Wisconsin, additional information was provided after a lapse of seven years, during which time the rate filing remained in effect. These findings are fatal to respondents' attempts to portray the state regulatory regimes as providing the necessary component of active supervision. The findings demonstrate that, whatever the potential for state regulatory review in Wisconsin and Montana, active state supervision did not occur. In the absence of active supervision in fact, there can be no state-action immunity for what were otherwise private price-fixing arrangements. And as in the availability of state judicial review could not fill the void. Because of the state agencies' limited role and *639 participation, state judicial review was likewise limited. See -105. Our decision in Southern Motor Carriers Rate Conference, though it too involved a negative option regime, is not to the contrary. The question there was whether the first part of the test was met, the Government's contention being that a pricing policy is not an articulated one unless the practice is compelled. We rejected that assertion and undertook no real examination of the active supervision aspect of the case, for the Government conceded that the second part of the test had been met. The concession was against the background of a District Court determination that, although submitted rates could go into effect without further state activity, the State had ordered and held ratemaking hearings on a consistent basis, using the industry submissions as the beginning point. See United In the case before us, of course, the Commission concedes the first part of the requirement and litigates the second; and there is no finding of substantial state participation in the ratesetting scheme. This case involves horizontal price fixing under a vague imprimatur in form and agency inaction in fact. No antitrust offense is more pernicious than price fixing. In this context, we decline to formulate a rule that would lead to a finding of active state supervision where in fact there was none. Our decision should be read in light of the gravity of the antitrust offense, the involvement of private actors throughout, and the clear absence of state supervision. We do not imply that some particular form of state or local regulation is required to achieve ends other than the establishment of uniform prices. Cf. We do *640 not have before us a case in which governmental actors made unilateral decisions without participation by private actors. Cf. And we do not here call into question a regulatory regime in which sampling techniques or a specified rate of return allow state regulators to provide comprehensive supervision without complete control, or in which there was an infrequent lapse of state supervision. Cf. 324 Liquor In the circumstances of this case, however, we conclude that the acts of respondents in the States of Montana and Wisconsin are not immune from antitrust IV In granting certiorari we undertook to review the further contention by the Commission that the Court of Appeals was incorrect in disregarding the Commission's findings as to the extent of state supervision. The parties have focused their briefing on this question on the regulatory schemes of Connecticut and Arizona. We think the Court of Appeals should have the opportunity to reexamine its determinations with respect to these latter two States in light of the views we have expressed. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Thomas

concurring

Byrd v. United States

https://www.courtlistener.com/opinion/4497658/byrd-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4497658/

2017-033

Although I have serious doubts about the “reasonable expectation of privacy” test from Katz v. United States, 389 U.S. 347, 360–361 (1967) (Harlan, J., concurring), I join the Court’s opinion because it correctly navigates our precedents, which no party has asked us to reconsider. As the Court notes, Byrd also argued that he should prevail under the original meaning of the Fourth Amendment because the police interfered with a property interest that he had in the rental car. I agree with the Court’s decision not to review this argument in the first instance. In my view, it would be especially “unwise” to reach that issue, ante, at 7, because the parties fail to adequately address several threshold questions. The Fourth Amendment guarantees the people’s right to be secure from unreasonable searches of “their persons, houses, papers, and effects.” With this language, the Fourth Amendment gives “each person . . . the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.” Minnesota v. Carter, 525 U.S. 83, 92 (1998) (Scalia, J., concurring). The issue, then, is whether Byrd can prove that the rental car was his effect. That issue seems to turn on at least three threshold questions. First, what kind of property interest do indi- 2 BYRD v. UNITED STATES THOMAS, J., concurring viduals need before something can be considered “their . . . effec[t]” under the original meaning of the Fourth Amendment? Second, what body of law determines whether that property interest is present—modern state law, the common law of 1791, or something else? Third, is the unauthorized use of a rental car illegal or otherwise wrongful under the relevant law, and, if so, does that illegality or wrongfulness affect the Fourth Amendment analysis? The parties largely gloss over these questions, but the answers seem vitally important to assessing whether Byrd can claim that the rental car is his effect. In an appropri- ate case, I would welcome briefing and argument on these questions. Cite as: 584 U. S. ____ (2018) 1 ALITO, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 16–1371 _________________ TERRENCE BYRD, PETITIONER v.

Although I have serious doubts about the “reasonable expectation of privacy” test from I join the Court’s opinion because it correctly navigates our precedents, which no party has asked us to reconsider. As the Court notes, Byrd also argued that he should prevail under the original meaning of the Fourth Amendment because the police interfered with a property interest that he had in the rental car. I agree with the Court’s decision not to review this argument in the first instance. In my view, it would be especially “unwise” to reach that issue, ante, at 7, because the parties fail to adequately address several threshold questions. The Fourth Amendment guarantees the people’s right to be secure from unreasonable searches of “their persons, houses, papers, and effects.” With this language, the Fourth Amendment gives “each person the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.” Minnesota v. Carter, The issue, then, is whether Byrd can prove that the rental car was his effect. That issue seems to turn on at least three threshold questions. First, what kind of property interest do indi- 2 BYRD v. UNITED STATES THOMAS, J., concurring viduals need before something can be considered “their effec[t]” under the original meaning of the Fourth Amendment? Second, what body of law determines whether that property interest is present—modern state law, the common law of 1791, or something else? Third, is the unauthorized use of a rental car illegal or otherwise wrongful under the relevant law, and, if so, does that illegality or wrongfulness affect the Fourth Amendment analysis? The parties largely gloss over these questions, but the answers seem vitally important to assessing whether Byrd can claim that the rental car is his effect. In an appropri- ate case, I would welcome briefing and argument on these questions. Cite as: 584 U. S. (2018) 1 ALITO, J., concurring SUPREME COURT OF THE UNITED STATES No. 16–1371 TERRENCE BYRD, PETITIONER v.

Justice Burger

majority

Xerox Corp. v. County of Harris

https://www.courtlistener.com/opinion/110816/xerox-corp-v-county-of-harris/

https://www.courtlistener.com/api/rest/v3/clusters/110816/

1982-012

We noted probable jurisdiction to decide whether a state may impose nondiscriminatory ad valorem personal property taxes on imported goods stored under bond in a customs warehouse and destined for foreign markets. The Texas Court of Civil Appeals held such taxes constitutional. I Appellant Xerox Corp. is a New York corporation engaged in the business of manufacturing and selling business machines. Its operations span the globe, and it has established *147 affiliates in foreign countries to facilitate foreign sales. It has assembly plants and production facilities in Mexico. Xerox manufactured parts for copying machines in Colorado and New York which were shipped to Mexico City, Mexico, for assembly by its affiliate there. The copiers assembled in Mexico were designed for sale in the Latin American market, and all printing on the machines and instructions accompanying them were in Spanish or Portuguese. Most of the copiers operated on electric current of 50 cycles per second, rather than the 60 cycles per second that is standard in the United States. Many of the copiers assembled by appellant's affiliate in Mexico City were not approved by either United Laboratories or the Canadian Standards Association, as required for sale in the United States. To convert the copiers for domestic sale would have cost approximately $100 per copier. After assembly in Mexico, the copiers were transported by a customs bonded trucking company to the Houston Terminal Warehouse in Houston, Tex.,[1] a Class 3 customs bonded warehouse. There they were stored for periods ranging from a few days to three years while awaiting sale and shipment to Xerox affiliates in Latin America. The copiers remained in the warehouse, segregated from other merchandise, until a shipment order was received. When Xerox received an order, it would transport the copiers under bond to either the Port of Houston or the Port of Miami, where they were loaded on board vessels for shipment to Latin America. The copiers remained under the continuous control and supervision of the United States Customs Service from the time they entered the bonded warehouse until they cleared *148 United States Customs at the Port of Houston or the Port of Miami for export.[2] None of the copiers assembled in Mexico and stored in Houston were ever sold to customers for domestic use; all were ultimately sold abroad. Consequently, Xerox paid no import duties on them.[3] The local authorities did not assess any taxes on the copiers stored under customs bond in 1974 and 1975. In 1977, the city of Houston[4] assessed ad valorem personal property taxes of $156,728 on the copiers stored in the Houston warehouse during 1977.[5] The County of Harris[6] followed suit, assessing $55,969 in taxes for 1977 and also assessing $48,426 in back taxes for 1976, for a total of $104,395. As soon as Xerox learned that the local authorities intended to tax its Mexican-assembled copiers, it shipped all the machines to a foreign trade zone in Buffalo, N. Y., from which it continued to fill orders for shipment to Latin America. *149 Declaratory and injunctive relief was sought in state court both from the taxes already assessed and such taxes as appellees might impose in the future. Xerox claimed that the taxes in question were unconstitutional because they violated the Import-Export Clause and the Commerce Clause of the Constitution. Art. I., § 10, cl. 2; Art. I, § 8, cl. 3. Appellees counterclaimed for the taxes assessed. The trial court held that the taxes assessed by appellees violated both the Import-Export and Commerce Clauses, and it granted judgment to Xerox. The Texas Court of Civil Appeals, First District, reversed, holding that the taxes violated neither the Import-Export Clause nor the Commerce Clause. 619 S.W.2d 402 (1981). Alternatively, it held that the trial court had violated Texas Rule of Civil Procedure 683 in granting injunctive relief. Finally, it granted judgment to appellees on their counterclaims in the amount of $131,311 plus penalties and interest to Harris County and $156,728 plus penalties and interest to the city of Houston. The Texas Supreme Court denied Xerox's application for a writ of error and this appeal followed. We noted probable jurisdiction, 456 U.S. 913 (1982), and we reverse. II A A preliminary question is whether this Court has jurisdiction over the appeal. Appellees argue that this Court lacks jurisdiction since the decision of the Texas court reversing the grant of an injunction rested on an independent and adequate state ground. However, an indispensable predicate to an award of judgment to the appellees on their counterclaims was a determination that the taxes at issue were permissible under the United States Constitution; the Texas Court of Civil Appeals so held. It is not claimed that any independent and adequate state-law ground supports that holding. We therefore have jurisdiction to review that judgment. 28 U.S. C. § 1257(2). *150 B Pursuant to its powers under the Commerce Clause, Congress established a comprehensive customs system which includes provisions for Government-supervised bonded warehouses houses where imports may be stored duty free for prescribed periods. At any time during that period the goods may be withdrawn and reexported without payment of duty. Only if the goods are withdrawn for domestic sale or stored beyond the prescribed period does any duty become due. 19 U.S. C. § 1557(a) (1976 ed., Supp. V). While the goods are in bonded warehouses they are in the joint custody of the United States Customs Service and the warehouse proprietor and under the continuous control and supervision of the local customs officers. 19 U.S. C. § 1555. Detailed regulations control every aspect of the manner in which the warehouses are to be operated. 19 CFR §§ 19.1-19.6 (1982). Government-regulated, bonded warehouses have been a link in the chain of foreign commerce since "a very early period in our history." Fabbri v. Murphy, 95 U.S. 191, 197 (1877). A forerunner of the present statute was the Warehousing Act of 1846, 9 Stat. 53. A major objective of the warehousing system was to allow importers to defer payment of duty until the goods entered the domestic market or were exported. The legislative history explains that Congress sought to reinstate. "the sound though long neglected maxim of Adam Smith, `That every tax ought to be levied at the time and in the manner most convenient for the contributor to pay it;' [by providing] that the tax shall only be paid when the imports are entered for consumption . . . ." H. R. Rep. No. 411, 29th Cong., 1st Sess., 3 (1846). The Act stimulated foreign commerce by allowing goods in transit in foreign commerce to remain in secure storage, duty free, until they resumed their journey in export. The geographic location of the country made it a convenient place for *151 transshipment of goods within the Western Hemisphere and across both the Atlantic and the Pacific. A consequence of making the United States a center of world commerce was that "our carrying trade would be vastly increased; that ship-building would be stimulated; that many foreign markets would be supplied, wholly or in part, by us with merchandise now furnished from the warehouses of Europe; that the industry of our seaports would be put in greater activity; [and] that the commercial transactions of the country would be facilitated . . . ." Cong. Globe, 29th Cong., 1st Sess., App. 792 (1846) (remarks of Sen. Dix). To these ends, Congress was willing to waive all duty on goods that were reexported from the warehouse, and to defer, for a prescribed period, the duty on goods destined for American consumption. This was no small sacrifice at a time when customs duties made up the greater part of federal revenues,[7] but its objective was to stimulate business for American industry and work for Americans. In short, Congress created secure and duty-free enclaves under federal control in order to encourage merchants here and abroad to make use of American ports. The question is whether it would be compatible with the comprehensive scheme Congress enacted to effect these goals if the states were free to tax such goods while they were lodged temporarily in Government-regulated bonded storage in this country. In McGoldrick v. Gulf Oil Corp., 309 U.S. 414 (1940), the City of New York sought to impose a sales tax on imported petroleum that was refined into fuel oil in New York and sold as ships' stores to vessels bound abroad. The crude oil was *152 imported under bond and refined in a customs bonded manufacturing warehouse and was free from all duties. We struck down the state tax, finding it pre-empted by the congressional scheme. Id., at 429. The Court determined that the purpose of the exemption from the tax normally laid upon importation of crude petroleum was "to encourage importation of the crude oil for [refinement into ships' stores] and thus to enable American refiners to meet foreign competition and to recover trade which had been lost by the imposition of the tax." Id., at 427; see also id., at 428. The Court went on to note that, in furtherance of this purpose, "Congress provided for the segregation of the imported merchandise from the mass of goods within the state, prescribed the procedure to insure its use for the intended purpose, and by reference confirmed and adopted customs regulations prescribing that the merchandise, while in bonded warehouse, should be free from state taxation." Id., at 428-429. The Court concluded that "the purpose of the Congressional regulation of the commerce would fail if the state were free at any stage of the transaction to impose a tax which would lessen the competitive advantage conferred on the importer by Congress, and which might equal or exceed the remitted import duty." Id., at 429. In so deciding, the Court expressly declined to rely on the customs regulation "prescribing the exemption from state taxation," holding that the regulation merely stated "what is implicit in the Congressional regulation of commerce presently involved." Ibid.[8] *153 The analysis in McGoldrick applies with full force here. First, Congress sought, in the statutory scheme reviewed in McGoldrick, to benefit American industry by remitting duties otherwise due. The import tax on crude oil was remitted to benefit oil refiners employing labor at refineries within the United States, whose products would not be sold in domestic commerce. Here, the remission of duties benefited those shippers using American ports as transshipment centers. Second, the system of customs regulation is as pervasive for the stored goods in the present case as it was in McGoldrick for the refined petroleum. In both cases, the imported goods were segregated in warehouses under continual federal custody and supervision. Finally, the state tax was large enough in each case to offset substantially the very benefits Congress intended to confer by remitting the duty.[9] In short, freedom from state taxation is as necessary to the congressional scheme here as it was in McGoldrick. Although there are factual distinctions between this case and McGoldrick, they are distinctions without a legal difference. We can discern no relevance to the issue of congressional intent in the fact that the fuel oil in McGoldrick could be sold only as ships' stores whereas Xerox had the option to pay the duty and withdraw the copiers for domestic sale, or that in McGoldrick the city sought to impose a sales tax and here appellees assessed a property tax. A similar conclusion was reached in District of Columbia v. International Distributing Corp., 118 U. S. App. D. C. 71, 331 F.2d 817 (1964). There, the Court of Appeals held that a wholesaler of imported alcoholic beverages was not liable *154 for District of Columbia excise taxes on the sale of such beverages to foreign embassies while the beverages were stored in a customs bonded warehouse. The court reasoned that Congress intended to make customs bonded warehouses federal enclaves free of state taxation and that although the imported goods were physically within the District of Columbia, they were not subject to its taxing jurisdiction until they were removed from the warehouse. Since the sales took place prior to removal, the District could not tax those sales. The Court of Appeals quoted with approval the following language of the Tax Court: " `The idea of bonded warehouses and their use by the United States custom authorities negatives the proposition that at the time of sale the alcoholic beverages were in the possession of the petitioner [the corporation]. True it is that the private bonded warehouse was physically in the District of Columbia; and the liquors were stored therein; and in that sense they were in the District. In law, however, they were still without that jurisdiction, and did not become subject thereto until they had been withdrawn from the private bonded warehouse and removed from the control of the customs official.' " Id., at 73-74, 331 F.2d, at 819-820. International Distributing Corp. merely confirms what this Court said in 1877 in Fabbri v. Murphy, 95 U. S., at 197-198: "Congress did not regard the importation as complete while the goods remained in the custody of the proper officers of customs." Accordingly, we hold that state property taxes on goods stored under bond in a customs warehouse are pre-empted by Congress' comprehensive regulation of customs duties. III It is unnecessary for us to consider whether, absent congressional regulation, the taxes here would pass muster under the Import-Export Clause or the Commerce Clause. *155 The judgment of the Texas Court of Civil Appeals is reversed, and the case is remanded for proceedings not inconsistent with this opinion. Reversed and remanded.

We noted probable jurisdiction to decide whether a state may impose nondiscriminatory ad valorem personal property taxes on imported goods stored under bond in a customs warehouse and destined for foreign markets. The Texas Court of Civil Appeals held such taxes constitutional. I Appellant Xerox Corp. is a New York corporation engaged in the business of manufacturing and selling business machines. Its operations span the globe, and it has established *147 affiliates in foreign countries to facilitate foreign sales. It has assembly plants and production facilities in Mexico. Xerox manufactured parts for copying machines in Colorado and New York which were shipped to Mexico City, Mexico, for assembly by its affiliate there. The copiers assembled in Mexico were designed for sale in the Latin American market, and all printing on the machines and instructions accompanying them were in Spanish or Portuguese. Most of the copiers operated on electric current of 50 cycles per second, rather than the 60 cycles per second that is standard in the United States. Many of the copiers assembled by appellant's affiliate in Mexico City were not approved by either United Laboratories or the Canadian Standards Association, as required for sale in the United States. To convert the copiers for domestic sale would have cost approximately $100 per copier. After assembly in Mexico, the copiers were transported by a customs bonded trucking company to the Houston Terminal Warehouse in Houston, Tex.,[1] a Class 3 customs bonded warehouse. There they were stored for periods ranging from a few days to three years while awaiting sale and shipment to Xerox affiliates in Latin America. The copiers remained in the warehouse, segregated from other merchandise, until a shipment order was received. When Xerox received an order, it would transport the copiers under bond to either the Port of Houston or the Port of Miami, where they were loaded on board vessels for shipment to Latin America. The copiers remained under the continuous control and supervision of the United States Customs Service from the time they entered the bonded warehouse until they cleared *148 United States Customs at the Port of Houston or the Port of Miami for export.[2] None of the copiers assembled in Mexico and stored in Houston were ever sold to customers for domestic use; all were ultimately sold abroad. Consequently, Xerox paid no import duties on them.[3] The local authorities did not assess any taxes on the copiers stored under customs bond in 4 and 5. In 7, the city of Houston[4] assessed ad valorem personal property taxes of $156,728 on the copiers stored in the Houston warehouse during 7.[5] The County of Harris[6] followed suit, assessing $55,969 in taxes for 7 and also assessing $48,426 in back taxes for 6, for a total of $104,395. As soon as Xerox learned that the local authorities intended to tax its Mexican-assembled copiers, it shipped all the machines to a foreign trade zone in Buffalo, N. Y., from which it continued to fill orders for shipment to Latin America. *149 Declaratory and injunctive relief was sought in state court both from the taxes already assessed and such taxes as appellees might impose in the future. Xerox claimed that the taxes in question were unconstitutional because they violated the Import-Export Clause and the Commerce Clause of the Constitution. Art. I., 10, cl. 2; Art. I, 8, cl. 3. Appellees counterclaimed for the taxes assessed. The trial court held that the taxes assessed by appellees violated both the Import-Export and Commerce Clauses, and it granted judgment to Xerox. The Texas Court of Civil Appeals, First District, reversed, holding that the taxes violated neither the Import-Export Clause nor the Commerce Clause. Alternatively, it held that the trial court had violated Texas Rule of Civil Procedure 683 in granting injunctive relief. Finally, it granted judgment to appellees on their counterclaims in the amount of $131,311 plus penalties and interest to Harris County and $156,728 plus penalties and interest to the city of Houston. The Texas Supreme Court denied Xerox's application for a writ of error and this appeal followed. We noted probable jurisdiction, and we reverse. II A A preliminary question is whether this Court has jurisdiction over the appeal. Appellees argue that this Court lacks jurisdiction since the decision of the Texas court reversing the grant of an injunction rested on an independent and adequate state ground. However, an indispensable predicate to an award of judgment to the appellees on their counterclaims was a determination that the taxes at issue were permissible under the United States Constitution; the Texas Court of Civil Appeals so held. It is not claimed that any independent and adequate state-law ground supports that holding. We therefore have jurisdiction to review that judgment. 28 U.S. C. 1257(2). *150 B Pursuant to its powers under the Commerce Clause, Congress established a comprehensive customs system which includes provisions for Government-supervised bonded warehouses houses where imports may be stored duty free for prescribed periods. At any time during that period the goods may be withdrawn and reexported without payment of duty. Only if the goods are withdrawn for domestic sale or stored beyond the prescribed period does any duty become due. 19 U.S. C. 1557(a) (6 ed., Supp. V). While the goods are in bonded warehouses they are in the joint custody of the United States Customs Service and the warehouse proprietor and under the continuous control and supervision of the local customs officers. 19 U.S. C. 1555. Detailed regulations control every aspect of the manner in which the warehouses are to be operated. 19 CFR 19.1-19.6 Government-regulated, bonded warehouses have been a link in the chain of foreign commerce since "a very early period in our history." A forerunner of the present statute was the Warehousing Act of 1846, A major objective of the warehousing system was to allow importers to defer payment of duty until the goods entered the domestic market or were exported. The legislative history explains that Congress sought to reinstate. "the sound though long neglected maxim of Adam Smith, `That every tax ought to be levied at the time and in the manner most convenient for the contributor to pay it;' [by providing] that the tax shall only be paid when the imports are entered for consumption" H. R. Rep. No. 411, 29th Cong., 1st Sess., 3 (1846). The Act stimulated foreign commerce by allowing goods in transit in foreign commerce to remain in secure storage, duty free, until they resumed their journey in export. The geographic location of the country made it a convenient place for *151 transshipment of goods within the Western Hemisphere and across both the Atlantic and the Pacific. A consequence of making the United States a center of world commerce was that "our carrying trade would be vastly increased; that ship-building would be stimulated; that many foreign markets would be supplied, wholly or in part, by us with merchandise now furnished from the warehouses of Europe; that the industry of our seaports would be put in greater activity; [and] that the commercial transactions of the country would be facilitated" Cong. Globe, 29th Cong., 1st Sess., App. 792 (1846) (remarks of Sen. Dix). To these ends, Congress was willing to waive all duty on goods that were reexported from the warehouse, and to defer, for a prescribed period, the duty on goods destined for American consumption. This was no small sacrifice at a time when customs duties made up the greater part of federal revenues,[7] but its objective was to stimulate business for American industry and work for Americans. In short, Congress created secure and duty-free enclaves under federal control in order to encourage merchants here and abroad to make use of American ports. The question is whether it would be compatible with the comprehensive scheme Congress enacted to effect these goals if the states were free to tax such goods while they were lodged temporarily in Government-regulated bonded storage in this country. In the City of New York sought to impose a sales tax on imported petroleum that was refined into fuel oil in New York and sold as ships' stores to vessels bound abroad. The crude oil was *152 imported under bond and refined in a customs bonded manufacturing warehouse and was free from all duties. We struck down the state tax, finding it pre-empted by the congressional scheme. The Court determined that the purpose of the exemption from the tax normally laid upon importation of crude petroleum was "to encourage importation of the crude oil for [refinement into ships' stores] and thus to enable American refiners to meet foreign competition and to recover trade which had been lost by the imposition of the tax." ; see also The Court went on to note that, in furtherance of this purpose, "Congress provided for the segregation of the imported merchandise from the mass of goods within the state, prescribed the procedure to insure its use for the intended purpose, and by reference confirmed and adopted customs regulations prescribing that the merchandise, while in bonded warehouse, should be free from state taxation." -429. The Court concluded that "the purpose of the Congressional regulation of the commerce would fail if the state were free at any stage of the transaction to impose a tax which would lessen the competitive advantage conferred on the importer by Congress, and which might equal or exceed the remitted import duty." In so deciding, the Court expressly declined to rely on the customs regulation "prescribing the exemption from state taxation," holding that the regulation merely stated "what is implicit in the Congressional regulation of commerce presently involved." Ibid.[8] *153 The analysis in McGoldrick applies with full force here. First, Congress sought, in the statutory scheme reviewed in McGoldrick, to benefit American industry by remitting duties otherwise due. The import tax on crude oil was remitted to benefit oil refiners employing labor at refineries within the United States, whose products would not be sold in domestic commerce. Here, the remission of duties benefited those shippers using American ports as transshipment centers. Second, the system of customs regulation is as pervasive for the stored goods in the present case as it was in McGoldrick for the refined petroleum. In both cases, the imported goods were segregated in warehouses under continual federal custody and supervision. Finally, the state tax was large enough in each case to offset substantially the very benefits Congress intended to confer by remitting the duty.[9] In short, freedom from state taxation is as necessary to the congressional scheme here as it was in McGoldrick. Although there are factual distinctions between this case and McGoldrick, they are distinctions without a legal difference. We can discern no relevance to the issue of congressional intent in the fact that the fuel oil in McGoldrick could be sold only as ships' stores whereas Xerox had the option to pay the duty and withdraw the copiers for domestic sale, or that in McGoldrick the city sought to impose a sales tax and here appellees assessed a property tax. A similar conclusion was reached in District of There, the Court of Appeals held that a wholesaler of imported alcoholic beverages was not liable *154 for District of Columbia excise taxes on the sale of such beverages to foreign embassies while the beverages were stored in a customs bonded warehouse. The court reasoned that Congress intended to make customs bonded warehouses federal enclaves free of state taxation and that although the imported goods were physically within the District of Columbia, they were not subject to its taxing jurisdiction until they were removed from the warehouse. Since the sales took place prior to removal, the District could not tax those sales. The Court of Appeals quoted with approval the following language of the Tax Court: " `The idea of bonded warehouses and their use by the United States custom authorities negatives the proposition that at the time of sale the alcoholic beverages were in the possession of the petitioner [the corporation]. True it is that the private bonded warehouse was physically in the District of Columbia; and the liquors were stored therein; and in that sense they were in the District. In law, however, they were still without that jurisdiction, and did not become subject thereto until they had been withdrawn from the private bonded warehouse and removed from the control of the customs official.' " -820. International Distributing Corp. merely confirms what this Court said in 1877 in 95 U. S., at -198: "Congress did not regard the importation as complete while the goods remained in the custody of the proper officers of customs." Accordingly, we hold that state property taxes on goods stored under bond in a customs warehouse are pre-empted by Congress' comprehensive regulation of customs duties. III It is unnecessary for us to consider whether, absent congressional regulation, the taxes here would pass muster under the Import-Export Clause or the Commerce Clause. *155 The judgment of the Texas Court of Civil Appeals is reversed, and the case is remanded for proceedings not inconsistent with this opinion. Reversed and remanded.

Justice Souter

concurring

National Organization for Women, Inc. v. Scheidler

https://www.courtlistener.com/opinion/112923/national-organization-for-women-inc-v-scheidler/

https://www.courtlistener.com/api/rest/v3/clusters/112923/

1993-016

I join the Court's opinion and write separately to explain why the First Amendment does not require reading an economic-motive requirement into the Racketeer Influenced and Corrupt Organizations Act (RICO or statute), and to stress that the Court's opinion does not bar First Amendment challenges to RICO's application in particular cases. Several respondents and amici argue that we should avoid the First Amendment issues that could arise from allowing RICO to be applied to protest organizations by construing the statute to require economic motivation, just as we have previously interpreted other generally applicable statutes so as to avoid First Amendment problems. See, e. g., Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 138 (1961) (holding that antitrust laws do not apply to businesses combining to lobby the government, even where such conduct has an anticompetitive purpose and an anticompetitive effect, because the alternative "would raise important constitutional questions" under the First Amendment); see also Lucas v. Alexander, 279 U.S. 573, 577 (1929) (a law "must be construed with an eye to possible constitutional limitations so as to avoid doubts as to its validity"). The argument is meritless in this case, though, for this principle of statutory construction applies only when the meaning of a statute is in doubt, see Noerr, supra, and here "the statutory language is unambiguous," ante, at 261. Even if the meaning of RICO were open to debate, however, it would not follow that the statute ought to be read to include an economic-motive requirement, since such a requirement would correspond only poorly to free-speech concerns. Respondents and amici complain that, unless so limited, the statute permits an ideological organization's opponents to label its vigorous expression as RICO predicate acts, thereby availing themselves of powerful remedial provisions that could destroy the organization. But an economic-motive requirement would protect too much with respect to First Amendment interests, since it would keep RICO from reaching ideological entities whose members commit acts of violence we need not fear chilling. An economic-motive requirement might also prove to be under-protective, in that entities engaging in vigorous but fully protected expression might fail the proposed economic-motive test (for even protest movements need money) and so be left exposed to harassing RICO suits. An economic-motive requirement is, finally, unnecessary, because legitimate free-speech claims may be raised and addressed in individual RICO cases as they arise. Accordingly, it is important to stress that nothing in the Court's opinion precludes a RICO defendant from raising the First Amendment in its defense in a particular case. Conduct alleged to amount to Hobbs Act extortion, for example, or one of the other, somewhat elastic RICO predicate acts may turn out to be fully protected First Amendment activity, entitling the defendant to dismissal on that basis. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 917 (1982) (holding that a state common-law prohibition on malicious interference with business could not, under the circumstances, be constitutionally applied to a civil-rights boycott of white merchants). And even in a case where a RICO violation has been validly established, the First Amendment may limit the relief that can be granted against an organization otherwise engaging in protected expression. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (invalidating under the First Amendment a court order compelling production of the NAACP's membership lists, issued to enforce Alabama's requirements for out-of-state corporations doing business in the State). See also NAACP v. Claiborne Hardware Co., supra, at 930-932 (discussing First Amendment limits on the assessment of derivative liability against ideological organizations); Oregon Natural Resources Council v. Mohla, 944 F.2d 531 (CA9 1991) (applying a heightened pleading standard to a complaint based on presumptively protected First Amendment conduct). This is not the place to catalog the speech issues that could arise in a RICO action against a protest group, and I express no view on the possibility of a First Amendment claim by the respondents in this case (since, as the Court observes, such claims are outside the question presented, see ante, at 262, n. 6). But I think it prudent to notice that RICO actions could deter protected advocacy and to caution courts applying RICO to bear in mind the First Amendment interests that could be at stake

I join the Court's opinion and write separately to explain why the First Amendment does not require reading an economic-motive requirement into the Racketeer Influenced and Corrupt Organizations Act (RICO or statute), and to stress that the Court's opinion does not bar First Amendment challenges to RICO's application in particular cases. Several respondents and amici argue that we should avoid the First Amendment issues that could arise from allowing RICO to be applied to protest organizations by construing the statute to require economic motivation, just as we have previously interpreted other generally applicable statutes so as to avoid First Amendment problems. See, e. g., Eastern Railroad Presidents ; see also The argument is meritless in this case, though, for this principle of statutory construction applies only when the meaning of a statute is in doubt, see and here "the statutory language is unambiguous," ante, at 261. Even if the meaning of RICO were open to debate, however, it would not follow that the statute ought to be read to include an economic-motive requirement, since such a requirement would correspond only poorly to free-speech concerns. Respondents and amici complain that, unless so limited, the statute permits an ideological organization's opponents to label its vigorous expression as RICO predicate acts, thereby availing themselves of powerful remedial provisions that could destroy the organization. But an economic-motive requirement would protect too much with respect to First Amendment interests, since it would keep RICO from reaching ideological entities whose members commit acts of violence we need not fear chilling. An economic-motive requirement might also prove to be under-protective, in that entities engaging in vigorous but fully protected expression might fail the proposed economic-motive test (for even protest movements need money) and so be left exposed to harassing RICO suits. An economic-motive requirement is, finally, unnecessary, because legitimate free-speech claims may be raised and addressed in individual RICO cases as they arise. Accordingly, it is important to stress that nothing in the Court's opinion precludes a RICO defendant from raising the First Amendment in its defense in a particular case. Conduct alleged to amount to Hobbs Act extortion, for example, or one of the other, somewhat elastic RICO predicate acts may turn out to be fully protected First Amendment activity, entitling the defendant to dismissal on that basis. See And even in a case where a RICO violation has been validly established, the First Amendment may limit the relief that can be granted against an organization otherwise engaging in protected expression. See See also ; Oregon Natural Resources This is not the place to catalog the speech issues that could arise in a RICO action against a protest group, and I express no view on the possibility of a First Amendment claim by the respondents in this case (since, as the Court observes, such claims are outside the question presented, see ante, at 262, n. 6). But I think it prudent to notice that RICO actions could deter protected advocacy and to caution courts applying RICO to bear in mind the First Amendment interests that could be at stake

Justice Douglas

concurring

Department of Agriculture v. Moreno

https://www.courtlistener.com/opinion/108856/department-of-agriculture-v-moreno/

https://www.courtlistener.com/api/rest/v3/clusters/108856/

1972-176

Appellee Jacinta Moreno is a 56-year-old diabetic who lives with Ermina Sanchez and the latter's three children. The two share common living expenses, Mrs. Sanchez helping to care for this appellee. Appellee's monthly income is $75, derived from public assistance, and Mrs. Sanchez' is $133, also derived from public assistance. This household pays $95 a month for rent, of which appellee pays $40, and $40 a month for gas and electricity, of which appellee pays $10. Appellee spends $10 a month for transportation to a hospital for regular visits and $5 a month for laundry. That leaves her $10 a month for food and other necessities. Mrs. Sanchez and the three children received $108 worth of food stamps per month for $18. But under the "unrelated" person *539 provision of the Act,[1] she will be cut off if appellee Moreno continues to live with her. Appellee Sheilah Hejny is married and has three children, ages two to five. She and her husband took in a 20-year-old girl who is unrelated to them. She shares in the housekeeping. The Hejnys pay $14 a month and receive $144 worth of food stamps. The Hejnys comprise an indigent household. But if they allow the 20-year-old girl to live with them, they too will be cut off from food stamps by reason of the "unrelated" person provision. *540 Appellee Keppler has a daughter with an acute hearing deficiency who requires instruction in a school for the deaf. The school is in an area where the mother cannot afford to live. So she and her two minor children moved into a nearby apartment with a woman who, like appellee' Keppler, is on public assistance but who is not related to her. As a result appellee Keppler's food stamps have been cut off because of the "unrelated" person provision. These appellees instituted a class action to enjoin the enforcement of the "unrelated" person provision of the Act. The "unrelated" person provision of the Act creates two classes of persons for food stamp purposes: one class is composed of people who are all related to each other and all in dire need; and the other class is composed of households that have one or more persons unrelated to the others but have the same degree of need as those in the first class. The first type of household qualifies for relief, the second cannot qualify, no matter the need. It is that application of the Act which is said to violate the conception of equal protection that is implicit in the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 499. The test of equal protection is whether the legislative line that is drawn bears "some rational relationship to a legitimate" governmental purpose.[2]Weber v. Aetna *541 Casualty & Surety Co., 406 U.S. 164, 172. The requirement of equal protection denies government "the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective" of the enactment. Reed v. Reed, 404 U.S. 71, 75-76. This case involves desperately poor people with acute problems who, though unrelated, come together for mutual help and assistance. The choice of one's associates for social, political, race, or religious purposes is basic in our constitutional scheme. NAACP v. Alabama, 357 U.S. 449, 460; De Jonge v. Oregon, 299 U.S. 353, 363; NAACP v. Button, 371 U.S. 415, 429-431; Gibson v. Florida Legislative Committee, 372 U.S. 539; NAACP v. Alabama, 377 U.S. 288. It extends to "the associational rights of the members" of a trade union. Brotherhood of Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 8. I suppose no one would doubt that an association of people working in the poverty field would be entitled to the same constitutional protection as those working in the racial, banking, or agricultural field. I suppose poor people holding a meeting or convention would be under the same constitutional umbrella as others. The dimensions of the "unrelated" person problem under the Food Stamp Act are in that category. As the facts of this case show, the poor are congregating in households where they can better meet the adversities of poverty. This banding together is an expression of the right of freedom of association that is very deep in our traditions. *542 Other like rights have been recognized that are only peripheral First Amendment rights—the right to send one's child to a religious school, the right to study the German language in a private school, the protection of the entire spectrum of learning, teaching, and communicating ideas, the marital right of privacy. Griswold v. Connecticut, 381 U.S. 479, 482-483. As the examples indicate, these peripheral constitutional rights are exercised not necessarily in assemblies that congregate in halls or auditoriums but in discrete individual actions such as parents placing a child in the school of their choice. Taking a person into one's home because he is poor or needs help or brings happiness to the household is of the same dignity. Congress might choose to deal only with members of a family of one or two or three generations, treating it all as a unit. Congress, however, has not done that here. Concededly an individual living alone is not disqualified from the receipt of food stamp aid, even though there are other members of the family with whom he might theoretically live. Nor are common-law couples disqualified: they, like individuals living alone, may qualify under the Act if they are poor—whether they have abandoned their wives and children and however antifamily their attitudes may be. In other words, the "unrelated" person provision was not aimed at the maintenance of normal family ties. It penalizes persons or families who have brought under their roof an "unrelated" needy person. It penalizes the poorest of the poor for doubling up against the adversities of poverty. But for the constitutional aspects of the problem, the "unrelated" person provision of the Act might well be sustained as a means to prevent fraud. Fraud is a concern of the Act. 7 U.S. C. §§ 2023 (b) and (c). Able-bodied persons must register and accept work or lose their food stamp rights. 7 U.S. C. § 2014 (c). I *543 could not say that this "unrelated" person provision has no "rational" relation to control of fraud. We deal here, however, with the right of association, protected by the First Amendment. People who are desperately poor but unrelated come together and join hands with the aim better to combat the crises of poverty. The need of those living together better to meet those crises is denied, while the need of households made up of relatives that is no more acute is serviced. Problems of the fisc, as we stated in Shapiro v. Thompson, 394 U.S. 618, 633, are legitimate concerns of government. But government "may not accomplish such a purpose by invidious distinctions between classes of its citizens." Ibid. The legislative history of the Act indicates that the "unrelated" person provision of the Act was to prevent "essentially unrelated individuals who voluntarily chose to cohabit and live off food stamps"[3]—so-called "hippies" or "hippy communes"—from participating in the food stamp program. As stated in the Conference Report,[4] the definition of household was "designed to prohibit food stamp assistance to communal `families' of unrelated individuals." The right of association, the right to invite the stranger into one's home is too basic in our constitutional regime to deal with roughshod. If there are abuses inherent in that pattern of living against which the food stamp program should be protected, the Act must be "narrowly drawn," Cantwell v. Connecticut, 310 U.S. 296, 307, to meet the precise end. The method adopted and applied to these cases makes § 3 (e) of the Act unconstitutional by reason of the invidious discrimination between the two classes of needy persons. *544 Dandridge v. Williams, 397 U.S. 471, is not opposed. It sustained a Maryland grant of welfare, against the claim of violation of equal protection, which placed an upper limit on the monthly amount any single family could receive. The claimants had large families so that their standard of need exceeded the actual grants. Their claim was that the grants of aid considered in light of the size of their families created an invidious discrimination against them and in favor of small needy families. The claim was rejected on the basis that state economic or social legislation had long been judged by a less strict standard than comes into play when constitutionally protected rights are involved. Id., at 484-485. Laws touching social and economic matters can pass muster under the Equal Protection Clause though they are imperfect, the test being whether the classification has some "reasonable basis." Ibid. Dandridge held that "the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy." Id., at 486. But for the First Amendment aspect of the case, Dandridge would control here. Dandridge, however, did not reach classifications touching on associational rights that lie in the penumbra of the First Amendment. Since the "unrelated" person provision is not directed to the maintenance of the family as a unit but treats impoverished households composed of relatives more favorably than impoverished households having a single unrelated person, it draws a line that can be sustained only on a showing of a "compelling" governmental interest. The "unrelated" person provision of the present Act has an impact on the rights of people to associate for lawful purposes with whom they choose. When state action "may have the effect of curtailing the freedom to *545 associate" it "is subject to the closest scrutiny." NAACP v. Alabama, 357 U. S., at 460-461. The "right of the people peaceably to assemble" guaranteed by the First Amendment covers a wide spectrum of human interests— including, as stated in id., at 460, "political, economic, religious, or cultural matters." Banding together to combat the common foe of hunger is in that category. The case therefore falls within the zone represented by Shapiro v. Thompson, supra, which held that a waiting period on welfare imposed by a State on the "inmigration of indigents" penalizing the constitutional right to travel could not be sustained absent a "compelling governmental interest." Id., at 631, 634. MR.

Appellee Jacinta Moreno is a 56-year-old diabetic who lives with Ermina Sanchez and the latter's three children. The two share common living expenses, Mrs. Sanchez helping to care for this appellee. Appellee's monthly income is $75, derived from public assistance, and Mrs. Sanchez' is $133, also derived from public assistance. This household pays $95 a month for rent, of which appellee pays $40, and $40 a month for gas and electricity, of which appellee pays $10. Appellee spends $10 a month for transportation to a hospital for regular visits and $5 a month for laundry. That leaves her $10 a month for food and other necessities. Mrs. Sanchez and the three children received $10 worth of food stamps per month for $1. But under the "unrelated" person *539 provision of the Act,[1] she will be cut off if appellee Moreno continues to live with her. Appellee Sheilah Hejny is married and has three children, ages two to five. She and her husband took in a 20-year-old girl who is unrelated to them. She shares in the housekeeping. The Hejnys pay $14 a month and receive $144 worth of food stamps. The Hejnys comprise an indigent household. But if they allow the 20-year-old girl to live with them, they too will be cut off from food stamps by reason of the "unrelated" person provision. *540 Appellee Keppler has a daughter with an acute hearing deficiency who requires instruction in a school for the deaf. The school is in an area where the mother cannot afford to live. So she and her two minor children moved into a nearby apartment with a woman who, like appellee' Keppler, is on public assistance but who is not related to her. As a result appellee Keppler's food stamps have been cut off because of the "unrelated" person provision. These appellees instituted a class action to enjoin the enforcement of the "unrelated" person provision of the Act. The "unrelated" person provision of the Act creates two classes of persons for food stamp purposes: one class is composed of people who are all related to each other and all in dire need; and the other class is composed of households that have one or more persons unrelated to the others but have the same degree of need as those in the first class. The first type of household qualifies for relief, the second cannot qualify, no matter the need. It is that application of the Act which is said to violate the conception of equal protection that is implicit in the Due Process Clause of the Fifth Amendment. The test of equal protection is whether the legislative line that is drawn bears "some rational relationship to a legitimate" governmental The requirement of equal protection denies government "the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective" of the enactment. This case involves desperately poor people with acute problems who, though unrelated, come together for mutual help and assistance. The choice of one's associates for social, political, race, or religious purposes is basic in our constitutional scheme. ; De ; ; ; It extends to "the associational rights of the members" of a trade union. Brotherhood of Railroad I suppose no one would doubt that an association of people working in the poverty field would be entitled to the same constitutional protection as those working in the racial, banking, or agricultural field. I suppose poor people holding a meeting or convention would be under the same constitutional umbrella as others. The dimensions of the "unrelated" person problem under the Food Stamp Act are in that category. As the facts of this case show, the poor are congregating in households where they can better meet the adversities of poverty. This banding together is an expression of the right of freedom of association that is very deep in our traditions. *542 Other like rights have been recognized that are only peripheral First Amendment rights—the right to send one's child to a religious school, the right to study the German language in a private school, the protection of the entire spectrum of learning, teaching, and communicating ideas, the marital right of privacy. 31 U.S. 479, 42-43. As the examples indicate, these peripheral constitutional rights are exercised not necessarily in assemblies that congregate in halls or auditoriums but in discrete individual actions such as parents placing a child in the school of their choice. Taking a person into one's home because he is poor or needs help or brings happiness to the household is of the same dignity. Congress might choose to deal only with members of a family of one or two or three generations, treating it all as a unit. Congress, however, has not done that here. Concededly an individual living alone is not disqualified from the receipt of food stamp aid, even though there are other members of the family with whom he might theoretically live. Nor are common-law couples disqualified: they, like individuals living alone, may qualify under the Act if they are poor—whether they have abandoned their wives and children and however antifamily their attitudes may be. In other words, the "unrelated" person provision was not aimed at the maintenance of normal family ties. It penalizes persons or families who have brought under their roof an "unrelated" needy person. It penalizes the poorest of the poor for doubling up against the adversities of poverty. But for the constitutional aspects of the problem, the "unrelated" person provision of the Act might well be sustained as a means to prevent fraud. Fraud is a concern of the Act. 7 U.S. C. 2023 (b) and (c). Able-bodied persons must register and accept work or lose their food stamp rights. 7 U.S. C. 2014 (c). I *543 could not say that this "unrelated" person provision has no "rational" relation to control of fraud. We deal here, however, with the right of association, protected by the First Amendment. People who are desperately poor but unrelated come together and join hands with the aim better to combat the crises of poverty. The need of those living together better to meet those crises is denied, while the need of households made up of relatives that is no more acute is serviced. Problems of the fisc, as we stated in U.S. 61, 633, are legitimate concerns of government. But government "may not accomplish such a purpose by invidious distinctions between classes of its citizens." The legislative history of the Act indicates that the "unrelated" person provision of the Act was to prevent "essentially unrelated individuals who voluntarily chose to cohabit and live off food stamps"[3]—so-called "hippies" or "hippy communes"—from participating in the food stamp program. As stated in the Conference Report,[4] the definition of household was "designed to prohibit food stamp assistance to communal `families' of unrelated individuals." The right of association, the right to invite the stranger into one's home is too basic in our constitutional regime to deal with roughshod. If there are abuses inherent in that pattern of living against which the food stamp program should be protected, the Act must be "narrowly drawn," to meet the precise end. The method adopted and applied to these cases makes 3 (e) of the Act unconstitutional by reason of the invidious discrimination between the two classes of needy persons. *544 is not opposed. It sustained a Maryland grant of welfare, against the claim of violation of equal protection, which placed an upper limit on the monthly amount any single family could receive. The claimants had large families so that their standard of need exceeded the actual grants. Their claim was that the grants of aid considered in light of the size of their families created an invidious discrimination against them and in favor of small needy families. The claim was rejected on the basis that state economic or social legislation had long been judged by a less strict standard than comes into play when constitutionally protected rights are involved. at 44-45. Laws touching social and economic matters can pass muster under the Equal Protection Clause though they are imperfect, the test being whether the classification has some "reasonable basis." Dandridge held that "the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy." at 46. But for the First Amendment aspect of the case, Dandridge would control here. Dandridge, however, did not reach classifications touching on associational rights that lie in the penumbra of the First Amendment. Since the "unrelated" person provision is not directed to the maintenance of the family as a unit but treats impoverished households composed of relatives more favorably than impoverished households having a single unrelated person, it draws a line that can be sustained only on a showing of a "compelling" governmental interest. The "unrelated" person provision of the present Act has an impact on the rights of people to associate for lawful purposes with whom they choose. When state action "may have the effect of curtailing the freedom to *545 associate" it "is subject to the closest scrutiny." 357 U. S., at -461. The "right of the people peaceably to assemble" guaranteed by the First Amendment covers a wide spectrum of human interests— including, as stated in at "political, economic, religious, or cultural matters." Banding together to combat the common foe of hunger is in that category. The case therefore falls within the zone represented by which held that a waiting period on welfare imposed by a State on the "inmigration of indigents" penalizing the constitutional right to travel could not be sustained absent a "compelling governmental interest." MR.

Justice Stevens

majority

Yates v. Aiken

https://www.courtlistener.com/opinion/111976/yates-v-aiken/

https://www.courtlistener.com/api/rest/v3/clusters/111976/

1987-016

Petitioner and an accomplice robbed a country store in South Carolina in 1981. After petitioner left the store, a fight occurred in which the accomplice and the storekeeper's mother were both killed. Petitioner was convicted of murder and armed robbery and sentenced to death. His conviction and sentence were affirmed by the South Carolina Supreme Court in 1982. State v. Yates, 280 S. C. 29, 310 S.E.2d 805, cert. denied, 462 U.S. 1124 (1983). At his trial, petitioner testified that the victim had not even entered the store before he left and that he had not intended to kill or to harm anyone. The jury, however, was instructed "that malice is implied or presumed from the use of a deadly weapon."[1] A few months after petitioner's conviction was affirmed, the South Carolina Supreme Court held that it was error to give such an instruction. See State v. Elmore, 279 S. C. 417, 308 S.E.2d 781 (1983). Thereafter, petitioner sought a writ of habeas corpus from the South Carolina Supreme Court, arguing that the burden-shifting instruction given at his trial was unconstitutional under the state court's reasoning in Elmore and under our decision in Sandstrom v. Montana, 442 U.S. 510 (1979). While the application for habeas corpus was pending, we decided another *213 case involving a burden-shifting instruction, Francis v. Franklin, 471 U.S. 307 (1985), and petitioner promptly called that decision to the attention of the State Supreme Court. The court denied the writ without opinion. Petitioner then sought a writ of certiorari in this Court. We summarily vacated the judgment of the South Carolina Supreme Court and remanded the case "for further consideration in light of Francis v. Franklin." Yates v. Aiken, 474 U.S. 896 (1985). On remand, the state court determined that the jury instruction at petitioner's trial "suffered from the same infirmities present in Elmore and addressed in Francis v. Franklin." 290 S. C. 231, 233, 349 S.E.2d 84, 85 (1986). Nevertheless, the court held that petitioner was not entitled to relief. As an explanation for its holding, the court stated that its decision in Elmore should not be applied retroactively to invalidate a conviction that was final when Elmore was decided. The opinion did not consider whether the decision in Francis v. Franklin might apply retroactively and also did not discuss our decision in Sandstrom v. Montana, on which petitioner had relied. In dissent, Justice Finney reasoned that Elmore and Francis v. Franklin should be applied retroactively because an instruction that shifts the burden of proof on an element of the offense — particularly in a capital case — substantially impairs the truth-finding function of the jury. Moreover, he reasoned, given our decision in Sandstrom v. Montana in 1979, the case did not represent a significant change in the law.[2] *214 We granted certiorari because we were concerned that the South Carolina Supreme Court had not fully complied with our mandate. 480 U.S. 945 (1987). We now reverse. I Our order remanding the case for further consideration in the light of Francis v. Franklin was predicated entirely on the fact that petitioner's challenge to the jury instruction asserted a substantial federal question. Our opinion in Francis explained why a challenge of this kind is supported by the Federal Constitution: "The Due Process Clause of the Fourteenth Amendment `protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' In re Winship, [397 U.S. 358, 364 (1970)]. This `bedrock, "axiomatic and elementary" [constitutional] principle,' id., at 363, prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. Sandstrom v. Montana, supra, at 520-524; Patterson v. New York, 432 U.S. 197, 210, 215 (1977); Mullaney v. Wilbur, 421 U.S. 684, 698-701 (1975); see also Morissette v. United States, 342 U.S. 246, 274-275 (1952). The prohibition protects the `fundamental value determination of our society,' given voice in Justice Harlan's concurrence in Winship, that `it is far worse to convict an innocent man than to let a guilty man go free.' 397 U.S., at 372. See Speiser v. Randall, 357 U.S. 513, 525-526 (1958)." 471 U.S., at 313. The portion of the state court's opinion concluding that the instruction in petitioner's case was infirm for the reasons "addressed *215 in Francis" was responsive to our mandate, but the discussion of the question whether the decision in Elmore should be applied retroactively was not. Our mandate contemplated that the state court would consider whether, as a matter of federal law, petitioner's conviction could stand in the light of Francis. Since the state court did not decide that question, we shall do so. II The South Carolina Attorney General submits that we should adopt Justice Harlan's theory that a newly announced constitutional rule should not be applied retroactively to cases pending on collateral review unless the rule places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in part and dissenting in part), or enunciates a procedural rule that is "implicit in the concept of ordered liberty," id., at 693. Under this theory, the Attorney General argues, petitioner would not be entitled to the benefit of our ruling in Franklin. We have already endorsed Justice Harlan's retroactivity analysis for cases pending on direct appeal, see Griffith v. Kentucky, 479 U.S. 314, 322 (1987); United States v. Johnson, 457 U.S. 537 (1982), and we have noted, as Justice Harlan did, Mackey, supra, at 682-687; Desist v. United States, 394 U.S. 244, 260 (1969) (Harlan, J., dissenting), the important distinction between direct review and collateral review. Compare Allen v. Hardy, 478 U.S. 255 (1986) (holding that Batson v. Kentucky, 476 U.S. 79 (1986) does not apply retroactively to cases on collateral review), with Griffith, supra, at 322-323 (holding that Batson does apply retroactively to cases pending on direct review); see, e. g., Pennsylvania v. Finley, 481 U.S. 551 (1987) (right to appointed counsel on direct appeal not applicable in collateral proceedings). To decide this case, however, it is not necessary *216 to determine whether we should go further and adopt Justice Harlan's reasoning as to the retroactivity of cases announcing new constitutional rules to cases pending on collateral review. Although Justice Harlan believed that most collateral attacks on final judgments should be resolved by reference to the state of the law at the time of the petitioner's conviction, he emphasized the proposition that many "new" holdings are merely applications of principles that were well settled at the time of conviction. As he explained in Desist: "The theory that the habeas petitioner is entitled to the law prevailing at the time of his conviction is, however, one which is more complex than the Court has seemingly recognized. First, it is necessary to determine whether a particular decision has really announced a `new' rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law. . . . One need not be a rigid partisan of Blackstone to recognize that many, though not all, of this Court's constitutional decisions are grounded upon fundamental principles whose content does not change dramatically from year to year, but whose meanings are altered slowly and subtly as generation succeeds generation. In such a context it appears very difficult to argue against the application of the `new' rule in all habeas cases since one could never say with any assurance that this Court would have ruled differently at the time the petitioner's conviction became final." 394 U.S., at 263-264. This reasoning, which we previously have endorsed,[3] is controlling in this case because our decision in Francis was *217 merely an application of the principle that governed our decision in Sandstrom v. Montana, which had been decided before petitioner's trial took place. We explicitly so held in Francis itself: "The question before the Court in this case is almost identical to that before the Court in Sandstrom: whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of . . . state of mind,' 442 U.S., at 521, by creating a mandatory presumption of intent upon proof by the State of other elements of the offense." 471 U.S., at 313. "Sandstrom v. Montana made clear that the Due Process Clause of the Fourteenth Amendment prohibits the State from making use of jury instructions that have the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of intent in a criminal prosecution. 442 U.S., at 521. Today we reaffirm the rule of Sandstrom and the wellspring due process principle from which it was drawn. The Court of Appeals faithfully and correctly applied this rule, and the court's judgment is therefore affirmed." Id., at 326-327. III Respondents also argue that South Carolina has the authority to establish the scope of its own habeas corpus proceedings and to refuse to apply a new rule of federal constitutional law retroactively in such a proceeding. We reject this argument for two reasons. First, as we have just explained, *218 Francis did not announce a new rule. Second, we do not read the South Carolina Supreme Court's opinion as having placed any limit on the issues that it will entertain in collateral proceedings. Since it has considered the merits of the federal claim, it has a duty to grant the relief that federal law requires. The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Petitioner and an accomplice robbed a country store in South Carolina in 1981. After petitioner left the store, a fight occurred in which the accomplice and the storekeeper's mother were both killed. Petitioner was convicted of murder and armed robbery and sentenced to death. His conviction and sentence were affirmed by the South Carolina Supreme Court in 1982. At his trial, petitioner testified that the victim had not even entered the store before he left and that he had not intended to kill or to harm anyone. The jury, however, was instructed "that malice is implied or presumed from the use of a deadly weapon."[1] A few months after petitioner's conviction was affirmed, the South Carolina Supreme Court held that it was error to give such an instruction. See Thereafter, petitioner sought a writ of habeas corpus from the South Carolina Supreme Court, arguing that the burden-shifting instruction given at his trial was unconstitutional under the state court's reasoning in Elmore and under our decision in While the application for habeas corpus was pending, we decided another *213 case involving a burden-shifting instruction, and petitioner promptly called that decision to the attention of the State Supreme Court. The court denied the writ without opinion. Petitioner then sought a writ of certiorari in this Court. We summarily vacated the judgment of the South Carolina Supreme Court and remanded the case "for further consideration in light of" On remand, the state court determined that the jury instruction at petitioner's trial "suffered from the same infirmities present in Elmore and addressed in" 290 S. C. 231, 233, Nevertheless, the court held that petitioner was not entitled to relief. As an explanation for its holding, the court stated that its decision in Elmore should not be applied retroactively to invalidate a conviction that was final when Elmore was decided. The opinion did not consider whether the decision in might apply retroactively and also did not discuss our decision in on which petitioner had relied. In dissent, Justice Finney reasoned that Elmore and should be applied retroactively because an instruction that shifts the burden of proof on an element of the offense — particularly in a capital case — substantially impairs the truth-finding function of the jury. Moreover, he reasoned, given our decision in in 1979, the case did not represent a significant change in the law.[2] *214 We granted certiorari because we were concerned that the South Carolina Supreme Court had not fully complied with our mandate. We now reverse. I Our order remanding the case for further consideration in the light of was predicated entirely on the fact that petitioner's challenge to the jury instruction asserted a substantial federal question. Our opinion in Francis explained why a challenge of this kind is supported by the Federal Constitution: "The Due Process Clause of the Fourteenth Amendment `protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' In re Winship, [, ]. This `bedrock, "axiomatic and elementary" [constitutional] principle,' prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. ; ; ; see also The prohibition protects the `fundamental value determination of our society,' given voice in Justice Harlan's concurrence in Winship, that `it is far worse to convict an innocent man than to let a guilty man go free.' See" The portion of the state court's opinion concluding that the instruction in petitioner's case was infirm for the reasons "addressed *215 in Francis" was responsive to our mandate, but the discussion of the question whether the decision in Elmore should be applied retroactively was not. Our mandate contemplated that the state court would consider whether, as a matter of federal law, petitioner's conviction could stand in the light of Francis. Since the state court did not decide that question, we shall do so. II The South Carolina Attorney General submits that we should adopt Justice Harlan's theory that a newly announced constitutional rule should not be applied retroactively to cases pending on collateral review unless the rule places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," or enunciates a procedural rule that is "implicit in the concept of ordered liberty," Under this theory, the Attorney General argues, petitioner would not be entitled to the benefit of our ruling in Franklin. We have already endorsed Justice Harlan's retroactivity analysis for cases pending on direct appeal, see ; United and we have noted, as Justice Harlan did, ; the important distinction between direct review and collateral review. Compare does not apply retroactively to cases on collateral review), with at -323 ; see, e. g., To decide this case, however, it is not necessary *216 to determine whether we should go further and adopt Justice Harlan's reasoning as to the retroactivity of cases announcing new constitutional rules to cases pending on collateral review. Although Justice Harlan believed that most collateral attacks on final judgments should be resolved by reference to the state of the law at the time of the petitioner's conviction, he emphasized the proposition that many "new" holdings are merely applications of principles that were well settled at the time of conviction. As he explained in Desist: "The theory that the habeas petitioner is entitled to the law prevailing at the time of his conviction is, however, one which is more complex than the Court has seemingly recognized. First, it is necessary to determine whether a particular decision has really announced a `new' rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law. One need not be a rigid partisan of Blackstone to recognize that many, though not all, of this Court's constitutional decisions are grounded upon fundamental principles whose content does not change dramatically from year to year, but whose meanings are altered slowly and subtly as generation succeeds generation. In such a context it appears very difficult to argue against the application of the `new' rule in all habeas cases since one could never say with any assurance that this Court would have ruled differently at the time the petitioner's conviction became final." -264. This reasoning, which we previously have endorsed,[3] is controlling in this case because our decision in Francis was *217 merely an application of the principle that governed our decision in which had been decided before petitioner's trial took place. We explicitly so held in Francis itself: "The question before the Court in this case is almost identical to that before the Court in Sandstrom: whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of state of mind,' by creating a mandatory presumption of intent upon proof by the State of other elements of the offense." " made clear that the Due Process Clause of the Fourteenth Amendment prohibits the State from making use of jury instructions that have the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of intent in a criminal Today we reaffirm the rule of Sandstrom and the wellspring due process principle from which it was drawn. The Court of Appeals faithfully and correctly applied this rule, and the court's judgment is therefore affirmed." III Respondents also argue that South Carolina has the authority to establish the scope of its own habeas corpus proceedings and to refuse to apply a new rule of federal constitutional law retroactively in such a proceeding. We reject this argument for two reasons. First, as we have just explained, *218 Francis did not announce a new rule. Second, we do not read the South Carolina Supreme Court's opinion as having placed any limit on the issues that it will entertain in collateral proceedings. Since it has considered the merits of the federal claim, it has a duty to grant the relief that federal law requires. The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Justice Roberts

dissenting

Alleyne v. United States

https://www.courtlistener.com/opinion/903985/alleyne-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/903985/

2012-062

Suppose a jury convicts a defendant of a crime carrying a sentence of five to ten years. And suppose the judge says he would sentence the defendant to five years, but because he finds that the defendant used a gun during the crime, he is going to add two years and sentence him to seven. No one thinks that this violates the defendant’s right to a jury trial in any way. Now suppose the legislature says that two years should be added to the five year minimum, if the judge finds that the defendant used a gun during the crime. Such a provi- sion affects the role of the judge—limiting his discretion— but has no effect on the role of the jury. And because it does not affect the jury’s role, it does not violate the jury trial guarantee of the Sixth Amendment. The Framers envisioned the Sixth Amendment as a pro- tection for defendants from the power of the Government. The Court transforms it into a protection for judges from the power of the legislature. For that reason, I respect- fully dissent. I In a steady stream of cases decided over the last 15 years, this Court has sought to identify the historical 2 ALLEYNE v. UNITED STATES ROBERTS, C. J., dissenting understanding of the Sixth Amendment jury trial right and determine how that understanding applies to modern sentencing practice. Our key sources in this task have been 19th-century treatises and common law cases identi- fying which facts qualified as “elements” of a crime, and therefore had to be alleged in the indictment and proved to a jury beyond a reasonable doubt. See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 476–483, 489–490, n. 15 (2000) (collecting sources); id., at 501–518 (THOMAS, J., concur- ring) (same). With remarkable uniformity, those author- ities provided that an element was “whatever is in law essential to the punishment sought to be inflicted.” 1 J. Bishop, Criminal Procedure 50 (2d ed. 1872); see also Apprendi, supra, at 489, n. 15 (“ ‘[T]he indictment must contain an allegation of every fact which is legally essen- tial to the punishment to be inflicted’ ” (quoting United States v. Reese, 92 U.S. 214, 232 (1876) (Clifford, J., dis- senting))); 1 Bishop, supra, §87, at 55 (an indictment must include “any particular fact which the law makes essential to the punishment”). Judging that this common law rule best reflects what the Framers understood the Sixth Amendment jury right to protect, we have struck down sentencing schemes that were inconsistent with the rule. In Apprendi, for example, the defendant pleaded guilty to a crime that carried a maximum sentence of ten years. After his plea, however, the trial judge determined that the defendant had commit- ted the crime with a biased purpose. Under a New Jersey law, that finding allowed the judge to impose up to ten additional years in prison. Exercising that authority, the judge sentenced the defendant to 12 years. 530 U. S., at 469–471. Because the sentence was two years longer than would have been possible without the finding of bias, that find- ing was “essential to the punishment” imposed. 1 Bishop, supra, at 50; see Apprendi, 530 U. S., at 491–492. Thus, Cite as: 570 U. S. ____ (2013) 3 ROBERTS, C. J., dissenting in line with the common law rule, we held the New Jersey procedure unconstitutional. Id., at 497. Subsequent cases have worked out how this principle applies in other contexts, such as capital sentencing re- gimes, state and federal sentencing guidelines, or criminal fines. See Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, 542 U.S. 296 (2004); United States v. Booker, 543 U.S. 220 (2005); Southern Union Co. v. United States, 567 U. S. ___ (2012). Through all of them, we have adhered to the rule, rooted in the common law under- standing described above, that we laid down in Apprendi: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U. S., at 490; see Blakely, supra, at 301 (quoting above statement); Booker, supra, at 231 (same); Southern Union Co., supra, at ___ (slip op., at 3) (same); see also Ring, supra, at 588–589 (Sixth Amendment “does not permit a defendant to be ‘expose[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone’ ” (quoting Apprendi, supra, at 483; alterations in original). We have embraced this 19th-century common law rule based not only on a judgment that it reflects the under- standing in place when the Sixth Amendment was rati- fied, but also on the “need to give intelligible content to the right of jury trial.” Blakely, supra, at 305. As JUSTICE SCALIA wrote in Apprendi, it is unclear “what the right to trial by jury does guarantee if . . . it does not guarantee . . . the right to have a jury determine those facts that deter- mine the maximum sentence the law allows.” 530 U. S., at 498–499 (concurring opinion). After all, if a judge’s factfinding could authorize a sen- tence beyond that allowed by the jury’s verdict alone, the jury trial would be “a mere preliminary to a judicial inqui- 4 ALLEYNE v. UNITED STATES ROBERTS, C. J., dissenting sition into the facts of the crime the State actually seeks to punish.” Blakely, supra, at 306–307. The Framers clearly envisioned a more robust role for the jury. They appreci- ated the danger inherent in allowing “justices . . . named by the crown” to “imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declara- tion, that such is their will and pleasure.” 4 W. Black- stone, Commentaries on the Laws of England 343 (1769). To guard against this “violence and partiality of judges appointed by the crown,” the common law “wisely placed th[e] strong . . . barrier, of . . . trial by jury, between the liberties of the people, and the prerogative of the crown.” Ibid. The Sixth Amendment therefore provided for trial by jury as a “double security, against the prejudices of judges, who may partake of the wishes and opinions of the government, and against the passions of the multitude, who may demand their victim with a clamorous precipi- tancy.” J. Story, Commentaries on the Constitution of the United States §924, p. 657 (Abr. 1833); see also The Fed- eralist No. 83, p. 499 (C. Rossiter ed. 1961) (A. Hamilton) (discussing criminal jury trial as a protection against “judicial despotism”). Our holdings that a judge may not sentence a defendant to more than the jury has authorized properly preserve the jury right as a guard against judicial overreaching. II There is no such risk of judicial overreaching here. Under 18 U.S. C. §924(c)(1)(A)(i), the jury’s verdict fully authorized the judge to impose a sentence of anywhere from five years to life in prison. No additional finding of fact was “essential” to any punishment within the range. After rendering the verdict, the jury’s role was completed, it was discharged, and the judge began the process of determining where within that range to set Alleyne’s sentence. Cite as: 570 U. S. ____ (2013) 5 ROBERTS, C. J., dissenting Everyone agrees that in making that determination, the judge was free to consider any relevant facts about the of- fense and offender, including facts not found by the jury beyond a reasonable doubt. “[B]oth before and since the American colonies became a nation, courts . . . practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.” Williams v. New York, 337 U.S. 241, 246 (1949). As Apprendi itself recognized, “nothing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judg- ment within the range prescribed by statute.” 530 U. S., at 481 (emphasis deleted); see also Dillon v. United States, 560 U.S. __, __ (2010) (slip op., at 11). And the majority does not dispute the point. Ante, at 15 (“Our ruling today does not mean that any fact that influences judicial discre- tion must be found by a jury.”). Thus, under the majority’s rule, in the absence of a statutory mandatory minimum, there would have been no constitutional problem had the judge, exercising the discretion given him by the jury’s verdict, decided that seven years in prison was the appro- priate penalty for the crime because of his finding that the firearm had been brandished during the offense. In my view, that is enough to resolve this case. The jury’s verdict authorized the judge to impose the precise sentence he imposed for the precise factual reason he imposed it. As we have recognized twice before, the Sixth Amendment demands nothing more. See Harris v. United States, 536 U.S. 545, 568–569 (2002); McMillan v. Penn- sylvania, 477 U.S. 79, 93 (1986). 6 ALLEYNE v. UNITED STATES ROBERTS, C. J., dissenting III This approach is entirely consistent with Apprendi. As I have explained, Apprendi’s constraint on the normal legislative control of criminal procedure draws its legiti- macy from two primary principles: (1) common law under- standings of the “elements” of a crime, and (2) the need to preserve the jury as a “strong barrier” between defendants and the State. Neither of those principles supports the rule the majority adopts today. First, there is no body of historical evidence supporting today’s new rule. The majority does not identify a single case holding that a fact affecting only the sentencing floor qualified as an element or had to be found by a jury, nor does it point to any treatise language to that effect. Ante, at 8–10. To be sure, the relatively recent vintage of man- datory minimum sentencing enhancements means that few, if any, 19th-century courts would have encountered such a fact pattern. So I do not mean to suggest that the absence of historical condemnation of the practice con- clusively establishes its constitutionality today. But given that Apprendi’s rule rests heavily on affirmative historical evidence about the practices to which we have previously applied it, the lack of such evidence on statutory mini- mums is a good reason not to extend it here. Nor does the majority’s extension of Apprendi do any- thing to preserve the role of the jury as a safeguard be- tween the defendant and the State. That is because even if a jury does not find that the firearm was brandished, a judge can do so and impose a harsher sentence because of his finding, so long as that sentence remains under the statutory maximum. The question here is about the power of judges, not juries. Under the rule in place until today, a legislature could tell judges that certain facts carried certain weight, and require the judge to devise a sentence based on that weight—so long as the sentence remained within the range authorized by the jury. Now, in the Cite as: 570 U. S. ____ (2013) 7 ROBERTS, C. J., dissenting name of the jury right that formed a barrier between the defendant and the State, the majority has erected a bar- rier between judges and legislatures, establishing that discretionary sentencing is the domain of judges. Legisla- tures must keep their respectful distance. I find this new rule impossible to square with the histor- ical understanding of the jury right as a defense from judges, not a defense of judges. See Apprendi, supra, at 498 (SCALIA, J., concurring) (“Judges, it is sometimes necessary to remind ourselves, are part of the State”). Just as the Sixth Amendment “limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury,” Blakely, 542 U. S., at 308, so too it limits legislative power only to the extent that power infringes on the province of the jury. Because the claimed infringement here is on the province of the judge, not the jury, the jury right has no work to do. IV The majority offers several arguments to the contrary. I do not find them persuasive. First, the majority asserts that “because the legally prescribed range is the penalty affixed to the crime, it follows that a fact increasing either end of the range pro- duces a new penalty and constitutes an ingredient of the offense.” Ante, at 11 (citation omitted). The syllogism trips out of the gate, for its first premise—that the consti- tutionally relevant “penalty” includes the bottom end of the statutory range—simply assumes the answer to the question presented. Neither of the historical sources to which the majority points gives an answer: The Bishop treatise speaks only to situations in which “a statute prescribes a particular punishment,” not a range of possi- ble punishments. 1 Bishop, Criminal Procedure §598, at 360–361. The Wharton treatise is similarly unhelpful, focusing on statutes that change the maximum or alter the 8 ALLEYNE v. UNITED STATES ROBERTS, C. J., dissenting nature of the common law crime. See 1 F. Wharton, Crim- inal Law §371, p. 291 (rev. 7th ed. 1874). The sources provided in the Apprendi concurrence offer no support, for as already discussed, we lack historical evidence about the treatment of facts that altered only the floor of a sentenc- ing range. Second, the majority observes that “criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evidence that both define the legally prescribed penalty.” Ante, at 11. Again, though, this simply assumes the core premise: That the constitution- ally relevant “penalty” involves both the statutory minimum and the maximum. Unless one accepts that premise on faith, the fact that statutes have long specified both floor and ceiling is evidence of nothing more than that stat- utes have long specified both the floor and the ceiling. Nor does it help to say that “the floor of a mandatory range is as relevant to wrongdoers as the ceiling.” Ante, at 12. The meaning of the Sixth Amendment does not turn on what wrongdoers care about most. More importantly, legal rules frequently focus on the maximum sentence while ignoring the minimum, even though both are “relevant” to punishment. Closest to this case, the question whether the jury right applies at all turns on whether the maximum sentence exceeds six months—not, say, whether the minimum punishment involves time in prison. Blanton v. North Las Vegas, 489 U.S. 538, 543 (1989); see also Lewis v. United States, 518 U.S. 322, 326 (1996) (“In evaluating the seriousness of the offense, we place primary emphasis on the maximum prison term authorized”). Likewise, the rights to vote and to bear arms are typically denied to felons—that is, those convicted of a crime with a maximum sentence of more than one year in prison. See Richardson v. Ramirez, 418 U.S. 24, 48 (1974); District of Columbia v. Heller, 554 U.S. 570, 626 (2008); Black’s Law Dictionary 694 (9th ed. Cite as: 570 U. S. ____ (2013) 9 ROBERTS, C. J., dissenting 2009). Examples of other distinctions turning only on max- imum penalties abound, as in cases of recidivism en- hancements that apply only to prior convictions with a maximum sentence of more than a specified number of years. See, e.g., 18 U.S. C. §924(e)(2). That a minimum sentence is “relevant” to punishment, and that a statute defines it, does not mean it must be treated the same as the maximum sentence the law allows. Third, the majority offers that “it is impossible to dis- pute that facts increasing the legally prescribed floor aggravate the punishment.” Ante, at 12. This argument proves too much, for it would apply with equal force to any fact which leads the judge, in the exercise of his own dis- cretion, to choose a penalty higher than he otherwise would have chosen. The majority nowhere explains what it is about the jury right that bars a determination by Congress that brandishing (or any other fact) makes an offense worth two extra years, but not an identical deter- mination by a judge. Simply calling one “aggravation” and the other “discretion” does not do the trick. Fourth, the majority argues that “[i]t is no answer to say that the defendant could have received the same sentence with or without” a particular factual finding, pointing out “that a defendant could not be convicted and sentenced for assault, if the jury only finds the facts for larceny, even if the punishments prescribed for each crime are identical.” Ante, at 14. In that hypothetical case, the legislature has chosen to define two crimes with two different sets of elements. Courts must, of course, respect that legislative judgment. But that tells us nothing about when courts can override the legislature’s decision not to create sepa- rate crimes, and instead to treat a particular fact as a trigger for a minimum sentence within the already- authorized range. 10 ALLEYNE v. UNITED STATES ROBERTS, C. J., dissenting * * * I will not quibble with the majority’s application of our stare decisis precedents. But because I believe the major- ity’s new rule—safeguarding the power of judges, not juries—finds no support in the history or purpose of the Sixth Amendment, I respectfully dissent. Cite as: 570 U. S. ____ (2013) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 11–9335 _________________ ALLEN RYAN ALLEYNE, PETITIONER v.

Suppose a jury convicts a defendant of a crime carrying a sentence of five to ten years. And suppose the judge says he would sentence the defendant to five years, but because he finds that the defendant used a gun during the crime, he is going to add two years and sentence him to seven. No one thinks that this violates the defendant’s right to a jury trial in any way. Now suppose the legislature says that two years should be added to the five year minimum, if the judge finds that the defendant used a gun during the crime. Such a provi- sion affects the role of the judge—limiting his discretion— but has no effect on the role of the jury. And because it does not affect the jury’s role, it does not violate the jury trial guarantee of the Sixth Amendment. The Framers envisioned the Sixth Amendment as a pro- tection for defendants from the power of the Government. The Court transforms it into a protection for judges from the power of the legislature. For that reason, I respect- fully dissent. I In a steady stream of cases decided over the last 15 years, this Court has sought to identify the historical 2 ALLEYNE v. UNITED STATES ROBERTS, C. J., dissenting understanding of the Sixth Amendment jury trial right and determine how that understanding applies to modern sentencing practice. Our key sources in this task have been 19th-century treatises and common law cases identi- fying which facts qualified as “elements” of a crime, and therefore had to be alleged in the indictment and proved to a jury beyond a reasonable doubt. See, e.g., v. New Jersey, (collecting sources); 1–518 (THOMAS, J., concur- ring) With remarkable uniformity, those author- ities provided that an element was “whatever is in law essential to the punishment sought to be inflicted.” 1 J. Criminal Procedure 50 (2d ed. 1872); see also (Clifford, J., dis- senting))); 1 at 55 (an indictment must include “any particular fact which the law makes essential to the punishment”). Judging that this common law rule best reflects what the Framers understood the Sixth Amendment jury right to protect, we have struck down sentencing schemes that were inconsistent with the rule. In for example, the defendant pleaded guilty to a crime that carried a maximum sentence of ten years. After his plea, however, the trial judge determined that the defendant had commit- ted the crime with a biased purpose. Under a New Jersey law, that finding allowed the judge to impose up to ten additional years in prison. Exercising that authority, the judge sentenced the defendant to 12 years. 530 U. S., at 469–471. Because the sentence was two years longer than would have been possible without the finding of bias, that find- ing was “essential to the punishment” imposed. 1 ; see –492. Thus, Cite as: 570 U. S. (2013) 3 ROBERTS, C. J., dissenting in line with the common law rule, we held the New Jersey procedure unconstitutional. Subsequent cases have worked out how this principle applies in other contexts, such as capital sentencing re- gimes, state and federal sentencing guidelines, or criminal fines. See ; v. Washington, ; United ; Southern Union v. United States, 567 U. S. (2012). Through all of them, we have adhered to the rule, rooted in the common law under- standing described above, that we laid down in : “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” ; see ; Booker, ; Southern Union at (slip op., at 3) ; see also at 588–589 (Sixth Amendment “does not permit a defendant to be ‘expose[d] to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone’ ” (quoting at 483; alterations in original). We have embraced this 19th-century common law rule based not only on a judgment that it reflects the under- standing in place when the Sixth Amendment was rati- fied, but also on the “need to give intelligible content to the right of jury trial.” As JUSTICE SCALIA wrote in it is unclear “what the right to trial by jury does guarantee if it does not guarantee the right to have a jury determine those facts that deter- mine the maximum sentence the law allows.” 530 U. S., at 498–499 (concurring opinion). After all, if a judge’s factfinding could authorize a sen- tence beyond that allowed by the jury’s verdict alone, the jury trial would be “a mere preliminary to a judicial inqui- 4 ALLEYNE v. UNITED STATES ROBERTS, C. J., dissenting sition into the facts of the crime the State actually seeks to punish.” at 306–307. The Framers clearly envisioned a more robust role for the jury. They appreci- ated the danger inherent in allowing “justices named by the crown” to “imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declara- tion, that such is their will and pleasure.” 4 W. Black- stone, Commentaries on the Laws of England 343 (1769). To guard against this “violence and partiality of judges appointed by the crown,” the common law “wisely placed th[e] strong barrier, of trial by jury, between the liberties of the people, and the prerogative of the crown.” The Sixth Amendment therefore provided for trial by jury as a “double security, against the prejudices of judges, who may partake of the wishes and opinions of the government, and against the passions of the multitude, who may demand their victim with a clamorous precipi- tancy.” J. Story, Commentaries on the Constitution of the United States p. 657 (Abr. 1833); see also The Fed- eralist No. 83, p. 499 (C. Rossiter ed. 1961) (A. Hamilton) (discussing criminal jury trial as a protection against “judicial despotism”). Our holdings that a judge may not sentence a defendant to more than the jury has authorized properly preserve the jury right as a guard against judicial overreaching. II There is no such risk of judicial overreaching here. Under 18 U.S. C. the jury’s verdict fully authorized the judge to impose a sentence of anywhere from five years to life in prison. No additional finding of fact was “essential” to any punishment within the range. After rendering the verdict, the jury’s role was completed, it was discharged, and the judge began the process of determining where within that range to set Alleyne’s sentence. Cite as: 570 U. S. (2013) 5 ROBERTS, C. J., dissenting Everyone agrees that in making that determination, the judge was free to consider any relevant facts about the of- fense and offender, including facts not found by the jury beyond a reasonable doubt. “[B]oth before and since the American colonies became a nation, courts practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.” As itself recognized, “nothing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judg- ment within the range prescribed by statute.” 530 U. S., at 481 (emphasis deleted); see also Dillon v. United States, 560 U.S. (2010) (slip op., at 11). And the majority does not dispute the point. Ante, at 15 (“Our ruling today does not mean that any fact that influences judicial discre- tion must be found by a jury.”). Thus, under the majority’s rule, in the absence of a statutory mandatory minimum, there would have been no constitutional problem had the judge, exercising the discretion given him by the jury’s verdict, decided that seven years in prison was the appro- priate penalty for the crime because of his finding that the firearm had been brandished during the offense. In my view, that is enough to resolve this case. The jury’s verdict authorized the judge to impose the precise sentence he imposed for the precise factual reason he imposed it. As we have recognized twice before, the Sixth Amendment demands nothing more. See ; 6 ALLEYNE v. UNITED STATES ROBERTS, C. J., dissenting III This approach is entirely consistent with As I have explained, ’s constraint on the normal legislative control of criminal procedure draws its legiti- macy from two primary principles: (1) common law under- standings of the “elements” of a crime, and (2) the need to preserve the jury as a “strong barrier” between defendants and the State. Neither of those principles supports the rule the majority adopts today. First, there is no body of historical evidence supporting today’s new rule. The majority does not identify a single case holding that a fact affecting only the sentencing floor qualified as an element or had to be found by a jury, nor does it point to any treatise language to that effect. Ante, at 8–10. To be sure, the relatively recent vintage of man- datory minimum sentencing enhancements means that few, if any, 19th-century courts would have encountered such a fact pattern. So I do not mean to suggest that the absence of historical condemnation of the practice con- clusively establishes its constitutionality today. But given that ’s rule rests heavily on affirmative historical evidence about the practices to which we have previously applied it, the lack of such evidence on statutory mini- mums is a good reason not to extend it here. Nor does the majority’s extension of do any- thing to preserve the role of the jury as a safeguard be- tween the defendant and the State. That is because even if a jury does not find that the firearm was brandished, a judge can do so and impose a harsher sentence because of his finding, so long as that sentence remains under the statutory maximum. The question here is about the power of judges, not juries. Under the rule in place until today, a legislature could tell judges that certain facts carried certain weight, and require the judge to devise a sentence based on that weight—so long as the sentence remained within the range authorized by the jury. Now, in the Cite as: 570 U. S. (2013) 7 ROBERTS, C. J., dissenting name of the jury right that formed a barrier between the defendant and the State, the majority has erected a bar- rier between judges and legislatures, establishing that discretionary sentencing is the domain of judges. Legisla- tures must keep their respectful distance. I find this new rule impossible to square with the histor- ical understanding of the jury right as a defense from judges, not a defense of judges. See at 498 (SCALIA, J., concurring) (“Judges, it is sometimes necessary to remind ourselves, are part of the State”). Just as the Sixth Amendment “limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury,” so too it limits legislative power only to the extent that power infringes on the province of the jury. Because the claimed infringement here is on the province of the judge, not the jury, the jury right has no work to do. IV The majority offers several arguments to the contrary. I do not find them persuasive. First, the majority asserts that “because the legally prescribed range is the penalty affixed to the crime, it follows that a fact increasing either end of the range pro- duces a new penalty and constitutes an ingredient of the offense.” Ante, at 11 (citation omitted). The syllogism trips out of the gate, for its first premise—that the consti- tutionally relevant “penalty” includes the bottom end of the statutory range—simply assumes the answer to the question presented. Neither of the historical sources to which the majority points gives an answer: The treatise speaks only to situations in which “a statute prescribes a particular punishment,” not a range of possi- ble punishments. 1 Criminal Procedure at 360–361. The Wharton treatise is similarly unhelpful, focusing on statutes that change the maximum or alter the 8 ALLEYNE v. UNITED STATES ROBERTS, C. J., dissenting nature of the common law crime. See 1 F. Wharton, Crim- inal Law p. 291 (rev. 7th ed. 1874). The sources provided in the concurrence offer no support, for as already discussed, we lack historical evidence about the treatment of facts that altered only the floor of a sentenc- ing range. Second, the majority observes that “criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evidence that both define the legally prescribed penalty.” Ante, at 11. Again, though, this simply assumes the core premise: That the constitution- ally relevant “penalty” involves both the statutory minimum and the maximum. Unless one accepts that premise on faith, the fact that statutes have long specified both floor and ceiling is evidence of nothing more than that stat- utes have long specified both the floor and the ceiling. Nor does it help to say that “the floor of a mandatory range is as relevant to wrongdoers as the ceiling.” Ante, at 12. The meaning of the Sixth Amendment does not turn on what wrongdoers care about most. More importantly, legal rules frequently focus on the maximum sentence while ignoring the minimum, even though both are “relevant” to punishment. Closest to this case, the question whether the jury right applies at all turns on whether the maximum sentence exceeds six months—not, say, whether the minimum punishment involves time in prison. Blanton v. North Las Vegas, 489 U.S. 538, 543 (1989); see also Lewis v. United States, 518 U.S. 322, 326 (1996) (“In evaluating the seriousness of the offense, we place primary emphasis on the maximum prison term authorized”). Likewise, the rights to vote and to bear arms are typically denied to felons—that is, those convicted of a crime with a maximum sentence of more than one year in prison. See Richardson v. Ramirez, 418 U.S. 24, 48 (1974); District of Columbia v. Heller, 554 U.S. 570, 626 (2008); Black’s Law Dictionary 694 (9th ed. Cite as: 570 U. S. (2013) 9 ROBERTS, C. J., dissenting 2009). Examples of other distinctions turning only on max- imum penalties abound, as in cases of recidivism en- hancements that apply only to prior convictions with a maximum sentence of more than a specified number of years. See, e.g., 18 U.S. C. That a minimum sentence is “relevant” to punishment, and that a statute defines it, does not mean it must be treated the same as the maximum sentence the law allows. Third, the majority offers that “it is impossible to dis- pute that facts increasing the legally prescribed floor aggravate the punishment.” Ante, at 12. This argument proves too much, for it would apply with equal force to any fact which leads the judge, in the exercise of his own dis- cretion, to choose a penalty higher than he otherwise would have chosen. The majority nowhere explains what it is about the jury right that bars a determination by Congress that brandishing (or any other fact) makes an offense worth two extra years, but not an identical deter- mination by a judge. Simply calling one “aggravation” and the other “discretion” does not do the trick. Fourth, the majority argues that “[i]t is no answer to say that the defendant could have received the same sentence with or without” a particular factual finding, pointing out “that a defendant could not be convicted and sentenced for assault, if the jury only finds the facts for larceny, even if the punishments prescribed for each crime are identical.” Ante, at 14. In that hypothetical case, the legislature has chosen to define two crimes with two different sets of elements. Courts must, of course, respect that legislative judgment. But that tells us nothing about when courts can override the legislature’s decision not to create sepa- rate crimes, and instead to treat a particular fact as a trigger for a minimum sentence within the already- authorized range. 10 ALLEYNE v. UNITED STATES ROBERTS, C. J., dissenting * * * I will not quibble with the majority’s application of our stare decisis precedents. But because I believe the major- ity’s new rule—safeguarding the power of judges, not juries—finds no support in the history or purpose of the Sixth Amendment, I respectfully dissent. Cite as: 570 U. S. (2013) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 11–35 ALLEN RYAN ALLEYNE, PETITIONER v.

Justice Harlan

majority

United States v. Sisson

https://www.courtlistener.com/opinion/108195/united-states-v-sisson/

https://www.courtlistener.com/api/rest/v3/clusters/108195/

1969-129

[*] The Government seeks to appeal to this Court a decision by a District Court in Massachusetts holding that appellee Sisson could not be criminally convicted for refusing induction into the Armed Forces. The District Court's opinion was bottomed on what that court understood *270 to be Sisson's rights of conscience as a nonreligious objector to the Vietnam war, but not wars in general, under the Free Exercise and Establishment Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment to the Constitution of the United States. The District Court's primary conclusion, reached after a full trial, was that the Constitution prohibited "the application of the 1967 draft act to Sisson to require him to render combat service in Vietnam" because as a "sincerely conscientious man," Sisson's interest in not killing in the Vietnam conflict outweighed "the country's present need for him to be so employed," 297 F. Supp. 902, 910 (1969). The District Court characterized its own decision as an arrest of judgment, and the Government seeks review here pursuant to the "arresting judgment" provision of the Criminal Appeals Act, 18 U.S. C. § 3731, an Act that narrowly limits the Government's right to appeal in criminal cases to certain types of decisions. On October 13, 1969, this Court entered an order postponing further consideration of the question of jurisdiction to the hearing of the case on the merits, 396 U.S. 812 (1969). For reasons that we elaborate in what follows, we conclude that the decision below, depending as it does on facts developed at Sisson's trial, is not an arrest of judgment but instead is a directed acquittal. As such, it is not a decision that the Government can appeal. Consequently, this appeal must be dismissed for lack of jurisdiction without our considering the merits of this case. We, of course, intimate no view concerning the correctness of the legal theory by which the District Court evaluated the facts developed at the trial.[1] *271 As a predicate for our conclusion that we have no jurisdiction to entertain the Government's appeal, a full statement of the proceedings below is desirable. I A single-count indictment charged that Sisson "did unlawfully, knowingly and wilfully fail and neglect and refuse to perform a duty" imposed by the Military Selective Service Act of 1967 and its regulations, in violation of § 12 of the Act, 81 Stat. 105, 50 U.S. C. App. § 462 (a) (1964 ed., Supp. IV), because he failed to obey an order by his local draft board to submit to induction. Prior to trial, Sisson's attorney moved to dismiss the indictment on three grounds. It was claimed that Sisson's refusal to submit to induction was justified first, because "the government's military involvement in Vietnam violates international law"; and, second, because Sisson "reasonably believed the government's military involvement in Vietnam to be illegal." As a third ground, Sisson claimed that the Selective Service Act and its regulations were unconstitutional (a) because the procedures followed by local boards lacked due process; and (b) because compulsory conscription during peacetime was unnecessary and stifled fundamental personal liberties. In support of the motion to dismiss, appellee stated: "At the time I refused to submit to induction into the armed forces I believed, as I believe today, that the United States military involvement in Vietnam is illegal under international law as well as under the Constitution and treaties of the United States. I believed then, and still believe, that my participation in that war would violate the spirit and the letter of the Nuremberg Charter. On the basis of my knowledge of that war, I could not participate in it without doing violence to the dictates of my conscience." *272 At the hearing on appellee's motion to dismiss, the District Judge said that he had "an open mind" concerning appellee's first and third grounds. However, the court said there was "nothing to" the second ground, noting that what "the defendant reasonably believes . . . cannot be raised in the way that you propose . . . because that does not appear on the face of the indictment." (App. 49.) The District Court later amplified this conclusion by saying: "Point 2 is plainly premature because nobody can test the issue as to whether defendant reasonably believes the government's military involvement in Vietnam is illegal without knowing what he reasonably believed, and what he believed is a question of evidence and not a question which appears on the face of the indictment." (App. 52.) (Emphasis supplied.) Defense counsel did not dispute the District Court's analysis, and noted that he had raised the issue in his motion to dismiss only "in the interest of economy," because "[i]t was not clear at the time I filed the motion that the government would challenge this fact." (App. 52.) The court expressed doubts concerning the Government's willingness to concede this fact, and, when asked by the court, the government counsel specifically stated his opposition to the motion to dismiss. The court thereupon found the "second ground" of the motion to dismiss without merit. A short time after this hearing, the District Court issued two written opinions, 294 F. Supp. 511 and 515 (1968), that denied the other grounds of the motion to dismiss. After determining that appellee had the requisite standing to raise the issues involved, the court held that the political question doctrine foreclosed consideration of whether Congress could constitutionally draft for *273 an undeclared war, or could order Sisson to fight in the allegedly "genocidal war." An order accompanying the second pretrial opinion also dealt with various offers of proof that defense counsel had made in an informal letter to the court, not part of the record. From the order it appears that appellee's counsel stated he would "offer evidence to show that [Sisson] properly refused to be inducted on the basis of his right of conscience, both statutory and constitutional." Not understanding the scope of this rather ambiguous offer of proof, the District Court in its order ruled that if Sisson wished to make a conscientious objector claim based on religious objections not to wars in general but to the Vietnam war in particular, Sisson should make his offer of proof initially to the judge "to elicit a ruling whether the First Amendment precludes the Congress from requiring one who has religious conscientious objections to the Vietnam war to respond to the induction order he received. If the Court rules favorably to defendant on the Constitutional issue of law, then both defense and prosecution are entitled to submit to the trier of fact evidence relevant to the question whether defendant indeed is a religious conscientious objector to the Vietnam war." 294 F. Supp., at 519. At the trial, however, it appears that defense counsel did not try to prove that Sisson should have received a conscientious objector exemption, nor did he request a ruling on the First Amendment issues referred to by the trial court. Instead it seems that the defense strategy was to prove that Sisson believed the Vietnam war to be illegal under domestic and international law, and that this belief was reasonable. If unable to get a direct adjudication of the legality of the war, the defense at least *274 hoped to convince the jury that Sisson lacked the requisite intent to "wilfully" refuse induction.[2] There was evidence submitted at the trial that did bear on the conscientious objector issue, however. When asked why he had refused induction, Sisson emphasized that he thought the war illegal. He also said that he felt the Vietnam war was "immoral," "illegal," and "unjust," and went against "my principles and my best sense of what was right." The court asked Sisson what the basis for his conclusions was, particularly what Sisson meant when he said the war was immoral. Sisson said that the war violated his feelings about (1) respect for human life, (2) value of man's freedom, and (3) the scale of destruction and killing consonant with the stated purposes of American intervention. Sisson also stated, in response to the trial judge's question, that his "moral values come from the same sources [the trial court had] mentioned, religious writings, philosophical beliefs." The prosecution did not allow Sisson's testimony to stand without cross-examination. In apparent reliance *275 on the court's pretrial ruling that Sisson's beliefs concerning the war were irrelevant to the question of whether his refusal to submit to induction was wilful,[3] the government counsel concentrated on showing that Sisson had refused induction deliberately, of his own free will, and knowing the consequences. The prosecution also brought out that Sisson had failed to appeal his I-A classification when it had been issued, and that he had accepted, as an undergraduate, a II-S student classification. In the final arguments to the jury, just as in the opening statements, neither counsel mentioned a religious or nonreligious conscientious objector issue. The defense argued that the key to the case was whether Sisson had "wilfully" refused to submit to induction, and tried to suggest his beliefs about the war were relevant to this. The government lawyer simply pointed out the operative facts of Sisson's refusal. He also attacked Sisson's sincerity by pointing out the inconsistency between Sissons' broad statements that he opposed deferments because they discriminated against the poor, *276 see n. 2, supra, and his willingness to accept a II-S deferment while he was at Harvard College. (See App. 187-188.) The instructions to the jury made no reference to a conscientious objector claim, and the jury was not asked to find whether Sisson was "sincere" in his moral beliefs concerning the war. Instead the trial court told the jury that the crux of the case was whether Sisson's refusal to submit to induction was "unlawfully, knowingly and wilfully" done.[4] The jury, after deliberating about 20 minutes, brought in a verdict of guilty. After the trial, the defendant made a timely motion under Fed. Rule Crim. Proc. 34 to arrest the judgment on the ground that the District Court lacked jurisdiction.[5] Pointing to the fact that the District Court had ruled before the trial that the political question doctrine prevented its consideration of defenses requiring an adjudication of the legality of the Vietnam war, the defense *277 argued that the court therefore lacked jurisdiction under Article III and the Due Process Clause to try the defendant for an offense to which the illegality of the war might provide a defense. The District Court, in granting what it termed a motion in arrest of judgment, did not rule on the jurisdictional argument raised in the defense motion. Instead, the court ruled on what it termed defendant's "older contention"[6] that the indictment did not charge an offense based on defendant's "never-abandoned" Establishment, Free Exercise, and Due Process Clause arguments relating to conscientious objections to the Vietnam war. The court first stated the facts of the case, in effect making findings essential to its decision. The opinion *278 describes how Sisson's demeanor on the stand convinced the court of his sincerity. The court stated that "Sisson's table of ultimate values is moral and ethical . . . [and] reflects quite as real, pervasive, durable, and commendable a marshalling of priorities as a formal religion." The critical finding for what followed was that: "What another derives from the discipline of a church, Sisson derives from the discipline of conscience. ". . . Sisson bore the burden of proving by objective evidence that he was sincere. He was as genuinely and profoundly governed by his conscience as would have been a martyr obedient to an orthodox religion." 297 F. Supp., at 905. Building on these findings, the court first held that the Free Exercise and Due Process Clauses "prohibit the application of the 1967 draft act to Sisson to require him to render combat service in Vietnam" because as a "sincerely conscientious man," Sisson's interest in not killing in the Vietnam conflict outweighed "the country's present need for him to be so employed." The District Court also ruled that § 6 (j) of the Selective Service Act, 50 U.S. C. App. § 456 (j) (1964 ed., Supp. IV), offends the Establishment Clause because it "unconstitutionally discriminated against atheists, agnostics, and men, like Sisson, who, whether they be religious or not, are motivated in their objection to the draft by profound moral beliefs which constitute the central convictions of their beings." 297 F. Supp., at 911. II The Government bases its claim that this Court has jurisdiction to review the District Court's decision exclusively on the "arresting judgment" provision of the *279 Criminal Appeals Act, 18 U.S. C. § 3731.[7] The relevant statutory language provides: "An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances: ..... "From a decision arresting a judgment of conviction for insufficiency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded." Thus, three requirements must be met for this Court to have jurisdiction under this provision. First, the decision of the District Court must be one "arresting a judgment of conviction." Second, the arrest of judgment *280 must be for the "insufficiency of the indictment or information." And third, the decision must be "based upon the invalidity or construction of the statute upon which the indictment or information is founded."[8] Because the District Court's decision rests on facts not alleged in the indictment but instead inferred by the court from the evidence adduced at trial, we conclude that neither the first nor second requirement is met.[9] A We begin with the first requirement: was the decision below one "arresting a judgment of conviction"? In using that phrase in the Criminal Appeals Act, Congress did not, of course, invent a new procedural classification. Instead, Congress acted against a common-law background that gave the statutory phrase a well-defined and limited meaning. An arrest of judgment was the technical term describing the act of a trial judge refusing to enter judgment on the verdict because of an error appearing on the face of the record that rendered the judgment *281 invalid. 3 W. Blackstone, Commentaries *393; 3 H. Stephen, New Commentaries on the Laws of England 628 (1st Am. ed. 1845); 2 J. Bishop, New Criminal Procedure § 1285 (2d ed. 1913). For the purpose of this case the critical requirement is that a judgment can be arrested only on the basis of error appearing on the "face of the record," and not on the basis of proof offered at trial.[10] This requirement can be found in early English common-law cases. In Sutton v. Bishop, 4 Burr. 2283, 2287, 98 Eng. Rep. 191, 193 (K. B. 1769), it was stated: "[T]he Court ought not to arrest judgments upon matters not appearing upon the face of the record; but are to judge upon the record itself." Once transported to the United States,[11] this essential limitation of arrests of judgment was explicitly acknowledged by this Court. In United States v. Klintock, 5 Wheat. 144, 149 (1820), the Court stated that "judgment can be arrested only for errors apparent on the record." And later in Bond v. Dustin, 112 U.S. 604 (1884), the Court said, "[A] motion in arrest of judgment can only be maintained for a defect apparent upon the face of the record, and the evidence is no part of the record for this purpose," id., at 608. See Carter v. Bennett, 15 How. 354, 356-357 (1854); United States v. Norris, 281 U.S. 619 (1930). This venerable requirement of the common law has been preserved under the Federal Rules of Criminal Procedure, for the courts have uniformly held that in granting *282 a motion in arrest of judgment under Rule 34,[12] a district court must not look beyond the face of the record. E. g., United States v. Zisblatt, 172 F.2d 740 (C. A. 2d Cir.), appeal dismissed on Government's motion, 336 U.S. 934 (1949); United States v. Lias, 173 F.2d 685 (C. A. 4th Cir. 1949); United States v. Bradford, 194 F.2d 197 (C. A. 2d Cir. 1952). See 2 C. Wright, Federal Practice and Procedure § 571 (1969); 5 L. Orfield, Criminal Procedure Under the Federal Rules § 34:7 (1967). Therefore, whether we interpret the statutory phrase "decision arresting a judgment" as speaking "to the law, as it then was [in 1907] . . . as it had come down from the past,"[13] or do no more than interpret it as simply imposing the standards of Fed. Rule Crim. Proc. 34,[14] a decision based on evidence adduced at trial cannot be one arresting judgment.[15] *283 The court below clearly went beyond the "face of the record" in reaching its decision. As noted earlier, the opinion explicitly relies upon the evidence adduced at the trial, including demeanor evidence, for its findings that Sisson was "sincere" and that he was "as genuinely and profoundly governed by his conscience" as a religious conscientious objector. To avoid the inescapable conclusion that the District Court's opinion was not an arrest of judgment, the Government makes two arguments. First, the Government suggests that these factual findings of the District Court, based on the evidence presented at trial, were not essential to its constitutional rulings, but instead only part of "the circumstantial framework" of the opinion below. (Jurisdictional Statement 9; see Brief 8.) This *284 cannot withstand analysis, however, for the factual findings were absolutely essential, under the District Court's own legal theory, to its disposition of the case. Without a finding that Sisson was sincerely and fundamentally opposed to participation in the Vietnam conflict, the District Court could not have ruled that under the Due Process and Free Exercise Clauses Sisson's interest in not serving in Vietnam outweighed the Government's need to draft him for such service.[16] Second, the Government argues that even though the District Court made findings on evidence adduced at trial, the facts relied on were "undisputed." Adopting the language used by the court below, the Government claims that "in substance the case arises upon an agreed statement of facts." 297 F. Supp., at 904. The Government then goes on to argue that decisions of this Court have "recognized that a stipulation of facts by the parties in a criminal case" can be relied on by the District Court without affecting the jurisdiction for an appeal, citing United States v. Halseth, 342 U.S. 277 (1952), and United States v. Fruehauf, 365 U. S. *285 146 (1961). The Government then concludes that it would be exalting form over substance to hold there was no appeal in a case where the Government has not contested the facts, and yet allow an appeal to lie from a motion to dismiss resting upon a stipulation of the parties. Preliminarily, it should be noted that this Court has never held that an appeal lies from a decision which depends, not upon the sufficiency of the indictment alone, but also on a stipulation of the parties. In Halseth the parties did enter into a stipulation for purposes of a motion to dismiss. But the facts in the stipulation were irrelevant to the legal issue of whether the federal anti-lottery statute reached a game not yet in existence. Therefore, neither the District Court in dismissing the indictment, nor this Court in affirming its decision, had to rely on the stipulation. And, for purposes of deciding whether jurisdiction for an appeal under § 3731 existed, the Court obviously did not have to decide—and it did not discuss—whether reliance on a stipulation would make any difference. Insofar as United States v. Fruehauf, supra, the other case cited by the Government, is relevant at all it seems to point away from the Government's contention. In Fruehauf this Court refused to consider the merits of an appeal under § 3731 from a District Court decision dismissing an indictment on the basis of a " `judicial admission' culled from a pretrial memorandum" of the Government by the District Judge. Rather than penalizing the Government by dismissing the appeal, however, the Court simply exercised its discretion under 28 U.S. C. § 2106 by setting aside the ruling below, and remanding the case for a new trial on the existing indictment. Not only do the cases cited by the Government fail to establish its contention, but other authority points strongly in the opposite direction. In United States v. Norris, 281 U.S. 619 (1930), this Court said that a "stipulation *286 was ineffective to import an issue as to the sufficiency of the indictment, or an issue of fact upon the question of guilt or innocence," because of "the rule that nothing can be added to an indictment without the concurrence of the grand jury." id., at 622. While it is true that Norris is complicated by the fact that the defendant had entered a guilty plea, the Court said that even "[i]f [the stipulation had been] filed before plea and [had been] given effect, such a stipulation would oust the jurisdiction of the court," id., at 622-623. Norris, together with the policy, often expressed by this Court, that the Criminal Appeals Act should be strictly construed against the Government's right to appeal, see, e. g., United States v. Borden Co., 308 U.S. 188, 192 (1939), makes it at least very doubtful whether the parties should, on the basis of a stipulation, be able to secure review under the motion-in-arrest provisions of § 3731. We do not decide that issue, however, for there was nothing even approaching a stipulation here. Before the court's final ruling below, the parties did not in any way, formally or informally, agree on the factual findings made in its opinion. It is relevant to recall that before the trial the government attorney specifically refused to stipulate whether Sisson sincerely believed the war to be illegal, and, if so, whether such a belief was reasonable. Moreover, given that the government attorney cross-examined Sisson, and later pointed out the inconsistency between Sisson's acceptance of a II-S student deferment and his claim that he disapproved of deferments as unfair, it hardly seems the Government accepted Sisson's sincerity insofar as it was an issue in the case. Therefore, far from being like a case with a formal stipulation between the parties, the most that can be said is that after the District Court's decision the Government chose to accept the opinion's findings of fact. Even assuming reliance on a formal stipulation were permissible, *287 it would still be intolerable to allow direct review whenever the District Court labels its decision a motion in arrest, and the Government merely accepts the lower court's factual findings made after a trial—for this would mean the parties and the lower court simply could foist jurisdiction upon this Court. B The second statutory requirement, that the decision arresting judgment be "for insufficiency of the indictment," is also not met in this case. Senator Nelson, one of the sponsors of the Criminal Appeals Act, made it plain during the debates that this second element was an important limitation. He said: "The arrest of judgment . . . on which an appeal lies, is not a general motion covering all the grounds on which a judgment may be arrested. It is simply for arrest of judgment because of the insufficiency of the indictment—that is, the failure of the indictment to charge a criminal offense." 41 Cong. Rec. 2756. (Emphasis supplied.) See also 40 Cong. Rec. 9033. Although the District Court's opinion recites as a conclusion that the indictment in this case did "not charge an offense" for purposes of Rule 34, surely the indictment alleged the necessary elements of an offense.[17] The decision *288 below rests on affirmative defenses which the court thought Sisson could claim because of his beliefs. It has never been thought that an indictment, in order to be sufficient, need anticipate affirmative defenses, United States v. Fargas, 267 F. Supp. 452, 455 (D. C. S. D. N. Y. 1967) ("Any questions as to the validity of the local board's refusal to grant conscientious objector exemption are matters of defense . . . [that] [t]here is no necessity for the indictment to negate . . ."). Moreover, even assuming, arguendo, the correctness of the District Court's constitutional theory that sincere nonreligious objectors to particular wars have a constitutional privilege that bars conviction, the facts essential to Sisson's claim of this privilege do not appear from any recitals in the indictment. As the District Court itself said before trial, "[W]hat [Sisson] believed is a question of evidence and not a question which appears on the face of the indictment." (App. 52.) In short, this indictment cannot be taken as insufficient for, on the one hand, it recites the necessary elements of an offense, and on the other hand, it does not allege facts that themselves demonstrate the availability of a constitutional privilege. C The same reason underlying our conclusion that this was not a decision arresting judgment—i.e., that the disposition is bottomed on factual conclusions not found in the indictment but instead made on the basis of evidence adduced at the trial—convinces us that the decision was in fact an acquittal rendered by the trial court after the jury's verdict of guilty. *289 For purposes of analysis it is helpful to compare this case to one in which a jury was instructed as follows: "If you find defendant Sisson to be sincere, and if you find that he was as genuinely and profoundly governed by conscience as a martyr obedient to an orthodox religion, you must acquit him because the government's interest in having him serve in Vietnam is outweighed by his interest in obeying the dictates of his conscience. On the other hand, if you do not so find, you must convict if you find that petitioner did wilfully refuse induction." If a jury had been so instructed, there can be no doubt that its verdict of acquittal could not be appealed under § 3731 no matter how erroneous the constitutional theory underlying the instructions. As Senator Knox said of the bill that was to become the Criminal Appeals Act: "Mark this: It is not proposed to give the Government any appeal under any circumstances when the defendant is acquitted for any error whatever committed by the court. ..... "The Government takes the risks of all the mistakes of its prosecuting officers and of the trial judge in the trial, and it is only proposed to give it an appeal upon questions of law raised by the defendant to defeat the trial and if it defeats the trial. "The defendant gets the benefit of all errors in the trial which are in his favor, and can challenge all errors in the trial which are against him." 41 Cong. Rec. 2752. Quite apart from the statute, it is, of course, well settled that an acquittal can "not be reviewed, on error or otherwise, without putting [the defendant] twice in jeopardy, and thereby violating the Constitution. . . . [I]n this country a verdict of acquittal, although not followed by *290 any judgment, is a bar to a subsequent prosecution for the same offence," United States v. Ball, 163 U.S. 662, 671 (1896).[18] There are three differences between the hypothetical case just suggested and the case at hand. First, in this case it was the judge—not the jury—who made the factual determinations. This difference alone does not support a legal distinction, however, for judges, like juries, can acquit defendants, see Fed. Rule Crim. Proc. 29. Second, the judge in this case made his decision after the jury had brought in a verdict of guilty. Rules 29 (b) and (c) of the Federal Rules of Criminal Procedure, however, expressly allow a federal judge to acquit a criminal defendant after the jury "returns a verdict of guilty." And third, in this case the District Judge labeled his post-verdict opinion an arrest of judgment, not an acquittal. This characterization alone, however, neither confers jurisdiction on this Court, see n. 7, supra, nor makes the opinion any less dependent upon evidence adduced at the trial. In short, we see no distinction between what the court below did, and a post-verdict directed acquittal.[19] *291 III The dissenting opinions of both THE CHIEF JUSTICE and MR. JUSTICE WHITE suggest that we are too niggardly in our interpretation of the Criminal Appeals Act, and each contends that the Act should be more broadly construed to give effect to an underlying policy that is said to favor review. This Court has frequently stated that the "exceptional right of appeal given to the Government by the Criminal Appeals Act is strictly limited to the instances specified," United States v. Borden Co., 308 U.S. 188, 192 (1939), and that such appeals "are something unusual, exceptional, not favored," Carroll v. United States, 354 U.S. 394, 400 (1957); see United States v. Keitel, 211 U.S. 370, 399 (1908); United States v. Dickinson, 213 U.S. 92, 103 (1909); cf. Will v. United States, 389 U.S. 90, 96 (1967). The approach suggested by our Brothers seems inconsistent with these notions. Moreover, the background and legislative history of the Criminal Appeals Act demonstrate the compromise origins of the Act that justify the principle of strict construction this Court has always said should be placed on its provisions. Because the Criminal Appeals Act, *292 now 18 U.S. C. § 3731 (1964 ed., Supp. IV),[20] has descended unchanged in substance from the original Criminal Appeals Act, which was enacted on March 2, 1907, 34 Stat. 1246,[21] the crucial focus for this inquiry must be the legislative history of the 1907 Act.[22] *293 A Beginning in 1892—15 years before the enactment of the Criminal Appeals Act—the Attorneys General of the United States regularly recommended passage of legislation allowing the Government to appeal in criminal cases.[23] Their primary purpose was perhaps best expressed by Attorney General Miller in his 1892 report: "As the law now stands . . . it is in the power of a single district judge, by quashing an indictment, to defeat any criminal prosecution instituted by the Government."[24] There was no progress, however, until President Theodore Roosevelt, outraged by a decision of *294 Judge Humphrey preventing the prosecution of the Beef Trust,[25] made this proposed reform into a "major political issue,"[26] and demanded the enactment of legislation in his 1906 annual message to Congress.[27] The House, as one commentator has written, "was obedient to the presidential command."[28] It passed, without debate,[29] a very broad bill giving the Government the same right to appeal legal issues decided adversely to it as had earlier been accorded a criminal defendant.[30] The Senate would not accept any such sweeping change of the traditional common-law rule giving the Government no appeal at all. The substitute bill that the Senate Judiciary Committee reported out[31] narrowed the House bill substantially, and limited the Government's right to appeal to writs of error from decisions (1) quashing an indictment or sustaining a demurrer to an indictment; (2) arresting judgment of conviction because of the insufficiency of the indictment; and (3) sustaining special pleas in bar when the defendant had not been put in jeopardy. Even as narrowed, *295 the bill met opposition on the floor,[32] and the session closed without Senate action.[33] The next session, after the bill was again reported out of the Senate Judiciary Committee,[34] it was debated for three days on the floor and again met strong opposition.[35] Reflecting the deep concern that the legislation not jeopardize interests of defendants whose cases were appealed by the Government, amendments were adopted requiring the Government to appeal within 30 days and to prosecute its cases with diligence;[36] and allowing defendants whose cases were appealed to be released on their own recognizance in the discretion of the presiding judge.[37] Various Senators were particularly concerned lest there be any possibility that a defendant who had already been through one trial be subjected to another trial after a successful appeal by the Government.[38] In response to this concern, an amendment was then adopted requiring that a verdict in favor of the defendant not be set aside on appeal[39] no matter how erroneous the legal theory upon which it might be based.[40] For these purposes, it was made plain that it made no difference whether the verdict be the result of the jury's decision or that of the judge.[41] Moreover, as we explore in more detail later, *296 the debates suggest that apart from decisions arresting judgment, there were to be no appeals taken in any case in which jeopardy had attached by the impaneling of the jury.[42] Finally, to limit further the scope of the Act to cases of public importance, the Government's right to appeal (under all but the special plea in bar provision) was confined to cases in which the ground of the District Court's decision was the "invalidity or construction of the statute upon which the indictment is founded."[43] With all these amendments the Senate passed the bill without division on February 13, 1907,[44] but the House, after referring the Senate's version to its Judiciary Committee,[45] disagreed with the Senate bill and proposed a conference.[46] The conference committee, apart from divesting the courts of appeals of jurisdiction to hear any government appeals, adopted the Senate version of the bill with merely formal changes.[47] Both the Senate and the House approved the bill reported out by the committee[48] and with the President's signature the Criminal Appeals Act became law. B With this perspective, we now examine the arguments made in opposition to our conclusion. It is argued in *297 dissent that § 3731 "contemplates that an arrest of judgment is appropriate in other than a closed category of cases defined by legal history," and concludes that "evidence adduced at trial can be considered by a district court as the basis for a motion in arrest of judgment when that evidence is used solely for the purpose of testing the constitutionality of the charging statute as applied," post, at 314 (dissenting opinion of THE CHIEF JUSTICE). The dissenters propose in effect to create a new procedure —label it a decision arresting judgment—in order to conclude that this Court has jurisdiction to hear this appeal by the Government. The statutory phrase "decision arresting a judgment" is not an empty vessel into which this Court is free to pour a vintage that we think better suits present-day tastes. As we have shown, Congress defined our jurisdiction in the Criminal Appeals Act in terms of procedures existing in 1907. As a matter of interpretation, this Court has no right to give the statutory language a meaning inconsistent with its common-law antecedents, and alien to the limitations that today govern motions in arrest of judgment under Rule 34.[49] Radical reinterpretations of the statutory phrase "decision arresting a judgment" are said to be necessary in order to effectuate a broad policy, found to be underlying the Criminal Appeals Act, that this Court review important legal issues. The axiom that courts should endeavor to give statutory language that meaning that nurtures the policies underlying legislation is one that *298 guides us when circumstances not plainly covered by the terms of a statute are subsumed by the underlying policies to which Congress was committed. Care must be taken, however, to respect the limits up to which Congress was prepared to enact a particular policy, especially when the boundaries of a statute are drawn as a compromise resulting from the countervailing pressures of other policies. Our disagreeing Brothers, in seeking to energize the congressional commitment to review, ignore the subtlety of the compromise that limited our jurisdiction, thereby garnering the votes necessary to enact the Criminal Appeals Act.[50] In this regard, the legislative history reveals a strong current of congressional solicitude for the plight of a criminal defendant exposed to additional expense and anxiety by a government appeal and the incumbent possibility of multiple trials. Criminal appeals by the Government "always threaten to offend the policies behind the double-jeopardy prohibition," Will v. United States, supra, at 96, even in circumstances where the Constitution itself does not bar retrial. Out of a collision between this policy concern, and the competing policy favoring review, Congress enacted a bill that fully satisfied neither the Government nor the bill's opponents.[51] For the Criminal Appeals Act, thus born of compromise, manifested a congressional policy to provide review *299 in certain instances but no less a congressional policy to restrict it to the enumerated circumstances. Were we to throw overboard the ballast provided by the statute's language and legislative history, we would cast ourselves adrift, blind to the risks of collision with other policies that are the buoys marking the safely navigable zone of our jurisdiction. As we have shown, what the District Court did in this case cannot be distinguished from a post-verdict acquittal entered on the ground that the Government did not present evidence sufficient to prove that Sisson was insincere. A primary concern of the bill that emerged into law was that no appeal be taken by the Government from an acquittal no matter how erroneous the legal theory underlying the decision. Moreover, going beyond the present case, the theory of those in disagreement would allow a trial judge to reserve to himself the resolution of disputes concerning facts underlying a claim that in particular circumstances a speech or protest march were privileged under the First Amendment, a practice plainly inconsistent with a criminal defendant's jury trial rights. C Quite apart from the arresting judgment provision, it is also argued that we have jurisdiction under the "motion in bar" provision of the Criminal Appeals Act. We think it appropriate to address ourselves to this contention, particularly in light of the fact that we asked the parties to brief that issue,[52] even though our holding that the decision below was an acquittal is sufficient to dispose of the case. *300 The case law under the motion-in-bar provision is very confused,[53] and this Court has not settled on a general approach to be taken in interpreting this provision.[54]*301 Even under the most expansive view, however, a motion in bar cannot be granted on the basis of facts that would necessarily be tried with the general issue in the case.[55] In this case, there can be no doubt that the District Court based its findings on evidence presented in the trial of the general issue. As we have shown earlier, the court's findings were based on Sisson's testimony and demeanor at the trial itself. Moreover, a defense based on Sisson's asserted constitutional privilege not to be required to fight in a particular war would, we think, necessarily be part of the "general issue" of a suit over a registrant's refusal to submit to induction. AS THE CHIEF JUSTICE says in his dissenting opinion, "establishing the appropriate classification is actually an element of the Government's case," post, at 324, once a defendant raises a defense challenging it. We think a defense to a pre-induction suit based on conscientious objections that require factual determinations is so intertwined with the general issue that it must be tried with the general issue, United States v. Fargas, 267 F. Supp. 452, 455 (1967) (pretrial motion to dismiss under Rule 12 (b) (1) on the basis of an affidavit, denied because "the validity of the [conscientious objector] defense which Fargas now raises . . . will require the consideration of factual questions which are embraced in the general issue"); see United States v. Ramos, 413 F.2d 743, 744 n. 1 (C. A. 1st Cir. 1969) (evidentiary hearing for pretrial motion to dismiss indictment not appropriate means to consider validity of defense based on conscientious objection because "[q]uestions regarding the validity of *302 appellant's classification should have been raised as a defense at the trial," citing Fargas with approval).[56] There is, in our view, still another reason no appeal can lie in this case under the motion-in-bar provision. We construe the Criminal Appeals Act as confining the *303 Government's right to appeal—except for motions in arrest of judgment—to situations in which a jury has not been impaneled, even though there are cases in which a defendant might constitutionally be retried if appeals were allowed after jeopardy had attached. Because the court below rendered its decision here after the trial began, and because that decision was not, as we have shown, an arrest of judgment, we therefore conclude there can be no appeal under the other provisions of § 3731. *304 We reach this conclusion for several reasons. First, although the legislative history is far from clear, we think it was the congressional expectation that except for motions in arrest—which as we have shown could never be based on evidence adduced at trial—the rulings to which the bill related would occur before the trial began.[57] The language of the motion-in-bar provision *305 itself limits appeals to those granted "when the defendant has not been put in jeopardy." We read that limitation to mean exactly what it says—i. e., no appeal from a motion in bar is to be granted after jeopardy attaches. Although the legislative history shows much disagreement and confusion concerning the meaning of the constitutional prohibition against subjecting a defendant to double jeopardy[58] there was little dispute over the then-settled notion that a defendant was put into jeopardy once the jury was sworn.[59] To read this limitation as no more than a restatement of the constitutional prohibition, as suggested by MR. JUSTICE WHITE, renders it completely superfluous. No Senator thought that Congress had the power under the Constitution to provide for an appeal in circumstances in which that would violate the Constitution.[60] Our conclusion draws strength from the fact that the Government itself has placed exactly this same interpretation *306 on the Act. The Department of Justice, the agency for whose benefit the original bill was enacted, first placed this construction on the statute shortly after the bill was enacted, and has consistently abided by it in the more than 60 years that have since passed. As the Solicitor General stated in his brief: "The Department of Justice has consistently taken the view that the plea in bar section limits the government's right of appeal to the granting of such pleas before a jury has been sworn. Soon after passage of the original Act, the 1907 Report of the Attorney General urged that the omission in the Act of a governmental right to appeal from post-jeopardy rulings be remedied by revising the Act so as to require counsel for the defendant to raise and argue questions of law prior to the time when jeopardy attached," Brief 17. Later, after describing the opinion in Zisblatt, supra, in which the Second Circuit certified an appeal to this Court to determine whether the phrase "not been put in jeopardy" merely incorporated the constitutional limitation, or instead should be taken literally, the Government's brief states: "The then Solicitor General, being of the view that the statute barred appeals from the granting of motions in bar after jeopardy had attached, moved to dismiss the appeal, and the appeal was dismissed (336 U.S. 934). The Department of Justice has thereafter adhered to that position, and the government has never sought to appeal in these circumstances."[61] This interpretation in our view deserves great weight. *307 In light of (1) the compromise origins of the statute, (2) the concern with which some Senators viewed the retrial of any defendant whose trial terminated after the jury was impaneled, and (3) the interpretation placed on the Act shortly after its passage[62] that has been consistently followed for more than 60 years by the Government, we think that the correct course is to construe the statute to provide a clear, easily administered test: except for decisions arresting judgment, there can be no government appeals from decisions rendered after the trial begins. IV Clarity is to be desired in any statute, but in matters of jurisdiction it is especially important. Otherwise the courts and the parties must expend great energy, not on the merits of dispute settlement, but on simply deciding whether a court has the power to hear a case. When judged in these terms, the Criminal Appeals Act is a failure. Born of compromise, and reflecting no coherent allocation of appellate responsibility,[63] the Criminal Appeals Act proved a most unruly child that has not improved with age. The statute's roots are grounded in pleading distinctions that existed at common law but *308 which, in most instances, fail to coincide with the procedural categories of the Federal Rules of Criminal Procedure. Not only does the statute create uncertainty by its requirement that one analyze the nature of the decision of the District Court in order to determine whether it falls within the class of common-law distinctions for which an appeal is authorized,[64] but it has also engendered confusion over the court to which an appealable decision should be brought.[65] The Solicitor General, at oral argument in this case, forthrightly stated that "there are few problems which occur so frequently or present such extreme technical difficulty in the Solicitor General's office [as] in the proper construction of the Criminal Appeals Act."[66] We share his dissatisfaction with this statute. Nevertheless, until such time as Congress decides to amend the statute, this Court must abide by the limitations imposed by this awkward and ancient Act. We conclude that the appeal in this case must be dismissed for lack of jurisdiction. It is so ordered. MR. JUSTICE BLACK concurs in the judgment of the Court and Part II C of the opinion. MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE DOUGLAS and MR.

[*] The Government seeks to appeal to this Court a decision by a District Court in Massachusetts holding that appellee Sisson could not be criminally convicted for refusing induction into the Armed Forces. The District Court's opinion was bottomed on what that court understood *0 to be Sisson's rights of conscience as a nonreligious objector to the Vietnam war, but not wars in general, under the Free Exercise and Establishment Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment to the Constitution of the United The District Court's primary conclusion, reached after a full trial, was that the Constitution prohibited "the application of the draft act to Sisson to require him to render combat service in Vietnam" because as a "sincerely conscientious man," Sisson's interest in not killing in the Vietnam conflict outweighed "the country's present need for him to be so employed," The District Court characterized its own decision as an arrest of judgment, and the Government seeks review here pursuant to the "arresting judgment" provision of the Criminal Appeals Act, 18 U.S. C. 331, an Act that narrowly limits the Government's right to appeal in criminal cases to certain types of decisions. On October 13, this Court entered an order postponing further consideration of the question of jurisdiction to the hearing of the case on the merits, For reasons that we elaborate in what follows, we conclude that the decision below, depending as it does on facts developed at Sisson's trial, is not an arrest of judgment but instead is a directed acquittal. As such, it is not a decision that the Government can appeal. Consequently, this appeal must be dismissed for lack of jurisdiction without our considering the merits of this case. We, of course, intimate no view concerning the correctness of the legal theory by which the District Court evaluated the facts developed at the trial.[1] *1 As a predicate for our conclusion that we have no jurisdiction to entertain the Government's appeal, a full statement of the proceedings below is desirable. I A single-count indictment charged that Sisson "did unlawfully, knowingly and wilfully fail and neglect and refuse to perform a duty" imposed by the Military Selective Service Act of and its regulations, in violation of 1 of the Act, 50 U.S. C. App. 46 (a) (14 ed., Supp. IV), because he failed to obey an order by his local draft board to submit to induction. Prior to trial, Sisson's attorney moved to dismiss the indictment on three grounds. It was claimed that Sisson's refusal to submit to induction was justified first, because "the government's military involvement in Vietnam violates international law"; and, second, because Sisson "reasonably believed the government's military involvement in Vietnam to be illegal." As a third ground, Sisson claimed that the Selective Service Act and its regulations were unconstitutional (a) because the procedures followed by local boards lacked due process; and (b) because compulsory conscription during peacetime was unnecessary and stifled fundamental personal liberties. In support of the motion to dismiss, appellee stated: "At the time I refused to submit to induction into the armed forces I believed, as I believe today, that the United military involvement in Vietnam is illegal under international law as well as under the Constitution and treaties of the United I believed then, and still believe, that my participation in that war would violate the spirit and the letter of the Nuremberg Charter. On the basis of my knowledge of that war, I could not participate in it without doing violence to the dictates of my conscience." * At the hearing on appellee's motion to dismiss, the District Judge said that he had "an open mind" concerning appellee's first and third grounds. However, the court said there was "nothing to" the second ground, noting that what "the defendant reasonably believes cannot be raised in the way that you propose because that does not appear on the face of the indictment." (App. 49.) The District Court later amplified this conclusion by saying: "Point is plainly premature because nobody can test the issue as to whether defendant reasonably believes the government's military involvement in Vietnam is illegal without knowing what he reasonably believed, and what he believed is a question of evidence and not a question which appears on the face of the indictment." (App. 5.) (Emphasis supplied.) Defense counsel did not dispute the District Court's analysis, and noted that he had raised the issue in his motion to dismiss only "in the interest of economy," because "[i]t was not clear at the time I filed the motion that the government would challenge this fact." (App. 5.) The court expressed doubts concerning the Government's willingness to concede this fact, and, when asked by the court, the government counsel specifically stated his opposition to the motion to dismiss. The court thereupon found the "second ground" of the motion to dismiss without merit. A short time after this hearing, the District Court issued two written opinions, that denied the other grounds of the motion to dismiss. After determining that appellee had the requisite standing to raise the issues involved, the court held that the political question doctrine foreclosed consideration of whether Congress could constitutionally draft for *3 an undeclared war, or could order Sisson to fight in the allegedly "genocidal war." An order accompanying the second pretrial opinion also dealt with various offers of proof that defense counsel had made in an informal letter to the court, not part of the record. From the order it appears that appellee's counsel stated he would "offer evidence to show that [Sisson] properly refused to be inducted on the basis of his right of conscience, both statutory and constitutional." Not understanding the scope of this rather ambiguous offer of proof, the District Court in its order ruled that if Sisson wished to make a conscientious objector claim based on religious objections not to wars in general but to the Vietnam war in particular, Sisson should make his offer of proof initially to the judge "to elicit a ruling whether the First Amendment precludes the Congress from requiring one who has religious conscientious objections to the Vietnam war to respond to the induction order he received. If the Court rules favorably to defendant on the Constitutional issue of law, then both defense and prosecution are entitled to submit to the trier of fact evidence relevant to the question whether defendant indeed is a religious conscientious objector to the Vietnam war." At the trial, however, it appears that defense counsel did not try to prove that Sisson should have received a conscientious objector exemption, nor did he request a ruling on the First Amendment issues referred to by the trial court. Instead it seems that the defense strategy was to prove that Sisson believed the Vietnam war to be illegal under domestic and international law, and that this belief was reasonable. If unable to get a direct adjudication of the legality of the war, the defense at least *4 hoped to convince the jury that Sisson lacked the requisite intent to "wilfully" refuse induction.[] There was evidence submitted at the trial that did bear on the conscientious objector issue, however. When asked why he had refused induction, Sisson emphasized that he thought the war illegal. He also said that he felt the Vietnam war was "immoral," "illegal," and "unjust," and went against "my principles and my best sense of what was right." The court asked Sisson what the basis for his conclusions was, particularly what Sisson meant when he said the war was immoral. Sisson said that the war violated his feelings about (1) respect for human life, () value of man's freedom, and (3) the scale of destruction and killing consonant with the stated purposes of American intervention. Sisson also stated, in response to the trial judge's question, that his "moral values come from the same sources [the trial court had] mentioned, religious writings, philosophical beliefs." The prosecution did not allow Sisson's testimony to stand without cross-examination. In apparent reliance *5 on the court's pretrial ruling that Sisson's beliefs concerning the war were irrelevant to the question of whether his refusal to submit to induction was wilful,[3] the government counsel concentrated on showing that Sisson had refused induction deliberately, of his own free will, and knowing the consequences. The prosecution also brought out that Sisson had failed to appeal his I-A classification when it had been issued, and that he had accepted, as an undergraduate, a II-S student classification. In the final arguments to the jury, just as in the opening statements, neither counsel mentioned a religious or nonreligious conscientious objector issue. The defense argued that the key to the case was whether Sisson had "wilfully" refused to submit to induction, and tried to suggest his beliefs about the war were relevant to this. The government lawyer simply pointed out the operative facts of Sisson's refusal. He also attacked Sisson's sincerity by pointing out the inconsistency between Sissons' broad statements that he opposed deferments because they discriminated against the poor, *6 see n. and his willingness to accept a II-S deferment while he was at Harvard College. (See App. 18-188.) The instructions to the jury made no reference to a conscientious objector claim, and the jury was not asked to find whether Sisson was "sincere" in his moral beliefs concerning the war. Instead the trial court told the jury that the crux of the case was whether Sisson's refusal to submit to induction was "unlawfully, knowingly and wilfully" done.[4] The jury, after deliberating about 0 minutes, brought in a verdict of guilty. After the trial, the defendant made a timely motion under Fed. Rule Crim. Proc. 34 to arrest the judgment on the ground that the District Court lacked jurisdiction.[5] Pointing to the fact that the District Court had ruled before the trial that the political question doctrine prevented its consideration of defenses requiring an adjudication of the legality of the Vietnam war, the defense * argued that the court therefore lacked jurisdiction under Article III and the Due Process Clause to try the defendant for an offense to which the illegality of the war might provide a defense. The District Court, in granting what it termed a motion in arrest of judgment, did not rule on the jurisdictional argument raised in the defense motion. Instead, the court ruled on what it termed defendant's "older contention"[6] that the indictment did not charge an offense based on defendant's "never-abandoned" Establishment, Free Exercise, and Due Process Clause arguments relating to conscientious objections to the Vietnam war. The court first stated the facts of the case, in effect making findings essential to its decision. The opinion *8 describes how Sisson's demeanor on the stand convinced the court of his sincerity. The court stated that "Sisson's table of ultimate values is moral and ethical [and] reflects quite as real, pervasive, durable, and commendable a marshalling of priorities as a formal religion." The critical finding for what followed was that: "What another derives from the discipline of a church, Sisson derives from the discipline of conscience. ". Sisson bore the burden of proving by objective evidence that he was sincere. He was as genuinely and profoundly governed by his conscience as would have been a martyr obedient to an orthodox religion." 9 F. Supp., at 905. Building on these findings, the court first held that the Free Exercise and Due Process Clauses "prohibit the application of the draft act to Sisson to require him to render combat service in Vietnam" because as a "sincerely conscientious man," Sisson's interest in not killing in the Vietnam conflict outweighed "the country's present need for him to be so employed." The District Court also ruled that 6 (j) of the Selective Service Act, 50 U.S. C. App. 456 (j) (14 ed., Supp. IV), offends the Establishment Clause because it "unconstitutionally discriminated against atheists, agnostics, and men, like Sisson, who, whether they be religious or not, are motivated in their objection to the draft by profound moral beliefs which constitute the central convictions of their beings." 9 F. Supp., at 911. II The Government bases its claim that this Court has jurisdiction to review the District Court's decision exclusively on the "arresting judgment" provision of the *9 Criminal Appeals Act, 18 U.S. C. 331.[] The relevant statutory language provides: "An appeal may be taken by and on behalf of the United from the district courts direct to the Supreme Court of the United in all criminal cases in the following instances: "From a decision arresting a judgment of conviction for insufficiency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded." Thus, three requirements must be met for this Court to have jurisdiction under this provision. First, the decision of the District Court must be one "arresting a judgment of conviction." Second, the arrest of judgment *80 must be for the "insufficiency of the indictment or information." And third, the decision must be "based upon the invalidity or construction of the statute upon which the indictment or information is founded."[8] Because the District Court's decision rests on facts not alleged in the indictment but instead inferred by the court from the evidence adduced at trial, we conclude that neither the first nor second requirement is met.[9] A We begin with the first requirement: was the decision below one "arresting a judgment of conviction"? In using that phrase in the Criminal Appeals Act, Congress did not, of course, invent a new procedural classification. Instead, Congress acted against a common-law background that gave the statutory phrase a well-defined and limited meaning. An arrest of judgment was the technical term describing the act of a trial judge refusing to enter judgment on the verdict because of an error appearing on the face of the record that rendered the judgment *81 invalid. 3 W. Blackstone, Commentaries *393; 3 H. Stephen, New Commentaries on the Laws of England 68 (1st Am. ed. 1845); J. Bishop, New Criminal Procedure 185 (d ed. 1913). For the purpose of this case the critical requirement is that a judgment can be arrested only on the basis of error appearing on the "face of the record," and not on the basis of proof offered at trial.[10] This requirement can be found in early English common-law cases. In Sutton v. Bishop, 4 Burr. 83, 8, 98 Eng. Rep. 191, 193 (K. B. 169), it was stated: "[T]he Court ought not to arrest judgments upon matters not appearing upon the face of the record; but are to judge upon the record itself." Once transported to the United[11] this essential limitation of arrests of judgment was explicitly acknowledged by this Court. In United (180), the Court stated that "judgment can be arrested only for errors apparent on the record." And later in 11 U.S. 604 the Court said, "[A] motion in arrest of judgment can only be maintained for a defect apparent upon the face of the record, and the evidence is no part of the record for this purpose," See ; United 81 U.S. 619 This venerable requirement of the common law has been preserved under the Federal Rules of Criminal Procedure, for the courts have uniformly held that in granting *8 a motion in arrest of judgment under Rule 34,[1] a district court must not look beyond the face of the record. E. g., United 1 F.d 40 (C. A. d Cir.), appeal dismissed on Government's motion, ; United 13 F.d 685 ; United 194 F.d 19 (C. A. d Cir. 195). See C. Wright, Federal Practice and Procedure 51 ; 5 L. Orfield, Criminal Procedure Under the Federal Rules 34: Therefore, whether we interpret the statutory phrase "decision arresting a judgment" as speaking "to the law, as it then was [in 190] as it had come down from the past,"[13] or do no more than interpret it as simply imposing the standards of Fed. Rule Crim. Proc. 34,[14] a decision based on evidence adduced at trial cannot be one arresting judgment.[15] *83 The court below clearly went beyond the "face of the record" in reaching its decision. As noted earlier, the opinion explicitly relies upon the evidence adduced at the trial, including demeanor evidence, for its findings that Sisson was "sincere" and that he was "as genuinely and profoundly governed by his conscience" as a religious conscientious objector. To avoid the inescapable conclusion that the District Court's opinion was not an arrest of judgment, the Government makes two arguments. First, the Government suggests that these factual findings of the District Court, based on the evidence presented at trial, were not essential to its constitutional rulings, but instead only part of "the circumstantial framework" of the opinion below. (Jurisdictional Statement 9; see Brief 8.) This *84 cannot withstand analysis, however, for the factual findings were absolutely essential, under the District Court's own legal theory, to its disposition of the case. Without a finding that Sisson was sincerely and fundamentally opposed to participation in the Vietnam conflict, the District Court could not have ruled that under the Due Process and Free Exercise Clauses Sisson's interest in not serving in Vietnam outweighed the Government's need to draft him for such service.[16] Second, the Government argues that even though the District Court made findings on evidence adduced at trial, the facts relied on were "undisputed." Adopting the language used by the court below, the Government claims that "in substance the case arises upon an agreed statement of facts." 9 F. Supp., at 904. The Government then goes on to argue that decisions of this Court have "recognized that a stipulation of facts by the parties in a criminal case" can be relied on by the District Court without affecting the jurisdiction for an appeal, citing United 34 U.S. (195), and United v. 365 U. S. *85 146 (11). The Government then concludes that it would be exalting form over substance to hold there was no appeal in a case where the Government has not contested the facts, and yet allow an appeal to lie from a motion to dismiss resting upon a stipulation of the parties. Preliminarily, it should be noted that this Court has never held that an appeal lies from a decision which depends, not upon the sufficiency of the indictment alone, but also on a stipulation of the parties. In Halseth the parties did enter into a stipulation for purposes of a motion to dismiss. But the facts in the stipulation were irrelevant to the legal issue of whether the federal anti-lottery statute reached a game not yet in existence. Therefore, neither the District Court in dismissing the indictment, nor this Court in affirming its decision, had to rely on the stipulation. And, for purposes of deciding whether jurisdiction for an appeal under 331 existed, the Court obviously did not have to decide—and it did not discuss—whether reliance on a stipulation would make any difference. Insofar as United v. the other case cited by the Government, is relevant at all it seems to point away from the Government's contention. In this Court refused to consider the merits of an appeal under 331 from a District Court decision dismissing an indictment on the basis of a " `judicial admission' culled from a pretrial memorandum" of the Government by the District Judge. Rather than penalizing the Government by dismissing the appeal, however, the Court simply exercised its discretion under 8 U.S. C. 106 by setting aside the ruling below, and remanding the case for a new trial on the existing indictment. Not only do the cases cited by the Government fail to establish its contention, but other authority points strongly in the opposite direction. In United 81 U.S. 619 this Court said that a "stipulation *86 was ineffective to import an issue as to the sufficiency of the indictment, or an issue of fact upon the question of guilt or innocence," because of "the rule that nothing can be added to an indictment without the concurrence of the grand jury." at 6. While it is true that Norris is complicated by the fact that the defendant had entered a guilty plea, the Court said that even "[i]f [the stipulation had been] filed before plea and [had been] given effect, such a stipulation would oust the jurisdiction of the court," at 6-63. Norris, together with the policy, often expressed by this Court, that the Criminal Appeals Act should be strictly construed against the Government's right to appeal, see, e. g., United 19 makes it at least very doubtful whether the parties should, on the basis of a stipulation, be able to secure review under the motion-in-arrest provisions of 331. We do not decide that issue, however, for there was nothing even approaching a stipulation here. Before the court's final ruling below, the parties did not in any way, formally or informally, agree on the factual findings made in its opinion. It is relevant to recall that before the trial the government attorney specifically refused to stipulate whether Sisson sincerely believed the war to be illegal, and, if so, whether such a belief was reasonable. Moreover, given that the government attorney cross-examined Sisson, and later pointed out the inconsistency between Sisson's acceptance of a II-S student deferment and his claim that he disapproved of deferments as unfair, it hardly seems the Government accepted Sisson's sincerity insofar as it was an issue in the case. Therefore, far from being like a case with a formal stipulation between the parties, the most that can be said is that after the District Court's decision the Government chose to accept the opinion's findings of fact. Even assuming reliance on a formal stipulation were permissible, *8 it would still be intolerable to allow direct review whenever the District Court labels its decision a motion in arrest, and the Government merely accepts the lower court's factual findings made after a trial—for this would mean the parties and the lower court simply could foist jurisdiction upon this Court. B The second statutory requirement, that the decision arresting judgment be "for insufficiency of the indictment," is also not met in this case. Senator Nelson, one of the sponsors of the Criminal Appeals Act, made it plain during the debates that this second element was an important limitation. He said: "The arrest of judgment on which an appeal lies, is not a general motion covering all the grounds on which a judgment may be arrested. It is simply for arrest of judgment because of the insufficiency of the indictment—that is, the failure of the indictment to charge a criminal offense." 41 Cong. Rec. 56. (Emphasis supplied.) See also 40 Cong. Rec. 9033. Although the District Court's opinion recites as a conclusion that the indictment in this case did "not charge an offense" for purposes of Rule 34, surely the indictment alleged the necessary elements of an offense.[1] The decision *88 below rests on affirmative defenses which the court thought Sisson could claim because of his beliefs. It has never been thought that an indictment, in order to be sufficient, need anticipate affirmative defenses, United 6 F. Supp. 45, Moreover, even assuming, arguendo, the correctness of the District Court's constitutional theory that sincere nonreligious objectors to particular wars have a constitutional privilege that bars conviction, the facts essential to Sisson's claim of this privilege do not appear from any recitals in the indictment. As the District Court itself said before trial, "[W]hat [Sisson] believed is a question of evidence and not a question which appears on the face of the indictment." (App. 5.) In short, this indictment cannot be taken as insufficient for, on the one hand, it recites the necessary elements of an offense, and on the other hand, it does not allege facts that themselves demonstrate the availability of a constitutional privilege. C The same reason underlying our conclusion that this was not a decision arresting judgment—i.e., that the disposition is bottomed on factual conclusions not found in the indictment but instead made on the basis of evidence adduced at the trial—convinces us that the decision was in fact an acquittal rendered by the trial court after the jury's verdict of guilty. *89 For purposes of analysis it is helpful to compare this case to one in which a jury was instructed as follows: "If you find defendant Sisson to be sincere, and if you find that he was as genuinely and profoundly governed by conscience as a martyr obedient to an orthodox religion, you must acquit him because the government's interest in having him serve in Vietnam is outweighed by his interest in obeying the dictates of his conscience. On the other hand, if you do not so find, you must convict if you find that petitioner did wilfully refuse induction." If a jury had been so instructed, there can be no doubt that its verdict of acquittal could not be appealed under 331 no matter how erroneous the constitutional theory underlying the instructions. As Senator Knox said of the bill that was to become the Criminal Appeals Act: "Mark this: It is not proposed to give the Government any appeal under any circumstances when the defendant is acquitted for any error whatever committed by the court. "The Government takes the risks of all the mistakes of its prosecuting officers and of the trial judge in the trial, and it is only proposed to give it an appeal upon questions of law raised by the defendant to defeat the trial and if it defeats the trial. "The defendant gets the benefit of all errors in the trial which are in his favor, and can challenge all errors in the trial which are against him." 41 Cong. Rec. 5. Quite apart from the statute, it is, of course, well settled that an acquittal can "not be reviewed, on error or otherwise, without putting [the defendant] twice in jeopardy, and thereby violating the Constitution. [I]n this country a verdict of acquittal, although not followed by *90 any judgment, is a bar to a subsequent prosecution for the same offence," United 163 U.S. 66,[18] There are three differences between the hypothetical case just suggested and the case at hand. First, in this case it was the judge—not the jury—who made the factual determinations. This difference alone does not support a legal distinction, however, for judges, like juries, can acquit defendants, see Fed. Rule Crim. Proc. 9. Second, the judge in this case made his decision after the jury had brought in a verdict of guilty. Rules 9 (b) and (c) of the Federal Rules of Criminal Procedure, however, expressly allow a federal judge to acquit a criminal defendant after the jury "returns a verdict of guilty." And third, in this case the District Judge labeled his post-verdict opinion an arrest of judgment, not an acquittal. This characterization alone, however, neither confers jurisdiction on this Court, see n. nor makes the opinion any less dependent upon evidence adduced at the trial. In short, we see no distinction between what the court below did, and a post-verdict directed acquittal.[19] *91 III The dissenting opinions of both THE CHIEF JUSTICE and MR. JUSTICE WHITE suggest that we are too niggardly in our interpretation of the Criminal Appeals Act, and each contends that the Act should be more broadly construed to give effect to an underlying policy that is said to favor review. This Court has frequently stated that the "exceptional right of appeal given to the Government by the Criminal Appeals Act is strictly limited to the instances specified," United 19 and that such appeals "are something unusual, exceptional, not favored," (195); see United 11 U.S. 30, ; United 13 U.S. 9, ; cf. The approach suggested by our Brothers seems inconsistent with these notions. Moreover, the background and legislative history of the Criminal Appeals Act demonstrate the compromise origins of the Act that justify the principle of strict construction this Court has always said should be placed on its provisions. Because the Criminal Appeals Act, *9 now 18 U.S. C. 331 (14 ed., Supp. IV),[0] has descended unchanged in substance from the original Criminal Appeals Act, which was enacted on March 190, 34 Stat. 146,[1] the crucial focus for this inquiry must be the legislative history of the 190 Act.[] *93 A Beginning in 189—15 years before the enactment of the Criminal Appeals Act—the Attorneys General of the United regularly recommended passage of legislation allowing the Government to appeal in criminal cases.[3] Their primary purpose was perhaps best expressed by Attorney General Miller in his 189 report: "As the law now stands it is in the power of a single district judge, by quashing an indictment, to defeat any criminal prosecution instituted by the Government."[4] There was no progress, however, until President Theodore Roosevelt, outraged by a decision of *94 Judge Humphrey preventing the prosecution of the Beef Trust,[5] made this proposed reform into a "major political issue,"[6] and demanded the enactment of legislation in his 1906 annual message to Congress.[] The House, as one commentator has written, "was obedient to the presidential command."[8] It passed, without debate,[9] a very broad bill giving the Government the same right to appeal legal issues decided adversely to it as had earlier been accorded a criminal defendant.[30] The Senate would not accept any such sweeping change of the traditional common-law rule giving the Government no appeal at all. The substitute bill that the Senate Judiciary Committee reported out[31] narrowed the House bill substantially, and limited the Government's right to appeal to writs of error from decisions (1) quashing an indictment or sustaining a demurrer to an indictment; () arresting judgment of conviction because of the insufficiency of the indictment; and (3) sustaining special pleas in bar when the defendant had not been put in jeopardy. Even as narrowed, *95 the bill met opposition on the floor,[3] and the session closed without Senate action.[33] The next session, after the bill was again reported out of the Senate Judiciary Committee,[34] it was debated for three days on the floor and again met strong opposition.[35] Reflecting the deep concern that the legislation not jeopardize interests of defendants whose cases were appealed by the Government, amendments were adopted requiring the Government to appeal within 30 days and to prosecute its cases with diligence;[36] and allowing defendants whose cases were appealed to be released on their own recognizance in the discretion of the presiding judge.[3] Various Senators were particularly concerned lest there be any possibility that a defendant who had already been through one trial be subjected to another trial after a successful appeal by the Government.[38] In response to this concern, an amendment was then adopted requiring that a verdict in favor of the defendant not be set aside on appeal[39] no matter how erroneous the legal theory upon which it might be based.[40] For these purposes, it was made plain that it made no difference whether the verdict be the result of the jury's decision or that of the judge.[41] Moreover, as we explore in more detail later, * the debates suggest that apart from decisions arresting judgment, there were to be no appeals taken in any case in which jeopardy had attached by the impaneling of the jury.[4] Finally, to limit further the scope of the Act to cases of public importance, the Government's right to appeal (under all but the special plea in bar provision) was confined to cases in which the ground of the District Court's decision was the "invalidity or construction of the statute upon which the indictment is founded."[43] With all these amendments the Senate passed the bill without division on February 13, 190,[44] but the House, after referring the Senate's version to its Judiciary Committee,[45] disagreed with the Senate bill and proposed a conference.[46] The conference committee, apart from divesting the courts of appeals of jurisdiction to hear any government appeals, adopted the Senate version of the bill with merely formal changes.[4] Both the Senate and the House approved the bill reported out by the committee[48] and with the President's signature the Criminal Appeals Act became law. B With this perspective, we now examine the arguments made in opposition to our conclusion. It is argued in *9 dissent that 331 "contemplates that an arrest of judgment is appropriate in other than a closed category of cases defined by legal history," and concludes that "evidence adduced at trial can be considered by a district court as the basis for a motion in arrest of judgment when that evidence is used solely for the purpose of testing the constitutionality of the charging statute as applied," post, at 314 (dissenting opinion of THE CHIEF JUSTICE). The dissenters propose in effect to create a new procedure —label it a decision arresting judgment—in order to conclude that this Court has jurisdiction to hear this appeal by the Government. The statutory phrase "decision arresting a judgment" is not an empty vessel into which this Court is free to pour a vintage that we think better suits present-day tastes. As we have shown, Congress defined our jurisdiction in the Criminal Appeals Act in terms of procedures existing in 190. As a matter of interpretation, this Court has no right to give the statutory language a meaning inconsistent with its common-law antecedents, and alien to the limitations that today govern motions in arrest of judgment under Rule 34.[49] Radical reinterpretations of the statutory phrase "decision arresting a judgment" are said to be necessary in order to effectuate a broad policy, found to be underlying the Criminal Appeals Act, that this Court review important legal issues. The axiom that courts should endeavor to give statutory language that meaning that nurtures the policies underlying legislation is one that *98 guides us when circumstances not plainly covered by the terms of a statute are subsumed by the underlying policies to which Congress was committed. Care must be taken, however, to respect the limits up to which Congress was prepared to enact a particular policy, especially when the boundaries of a statute are drawn as a compromise resulting from the countervailing pressures of other policies. Our disagreeing Brothers, in seeking to energize the congressional commitment to review, ignore the subtlety of the compromise that limited our jurisdiction, thereby garnering the votes necessary to enact the Criminal Appeals Act.[50] In this regard, the legislative history reveals a strong current of congressional solicitude for the plight of a criminal defendant exposed to additional expense and anxiety by a government appeal and the incumbent possibility of multiple trials. Criminal appeals by the Government "always threaten to offend the policies behind the double-jeopardy prohibition," at even in circumstances where the Constitution itself does not bar retrial. Out of a collision between this policy concern, and the competing policy favoring review, Congress enacted a bill that fully satisfied neither the Government nor the bill's opponents.[51] For the Criminal Appeals Act, thus born of compromise, manifested a congressional policy to provide review *99 in certain instances but no less a congressional policy to restrict it to the enumerated circumstances. Were we to throw overboard the ballast provided by the statute's language and legislative history, we would cast ourselves adrift, blind to the risks of collision with other policies that are the buoys marking the safely navigable zone of our jurisdiction. As we have shown, what the District Court did in this case cannot be distinguished from a post-verdict acquittal entered on the ground that the Government did not present evidence sufficient to prove that Sisson was insincere. A primary concern of the bill that emerged into law was that no appeal be taken by the Government from an acquittal no matter how erroneous the legal theory underlying the decision. Moreover, going beyond the present case, the theory of those in disagreement would allow a trial judge to reserve to himself the resolution of disputes concerning facts underlying a claim that in particular circumstances a speech or protest march were privileged under the First Amendment, a practice plainly inconsistent with a criminal defendant's jury trial rights. C Quite apart from the arresting judgment provision, it is also argued that we have jurisdiction under the "motion in bar" provision of the Criminal Appeals Act. We think it appropriate to address ourselves to this contention, particularly in light of the fact that we asked the parties to brief that issue,[5] even though our holding that the decision below was an acquittal is sufficient to dispose of the case. *300 The case law under the motion-in-bar provision is very confused,[53] and this Court has not settled on a general approach to be taken in interpreting this provision.[54]*301 Even under the most expansive view, however, a motion in bar cannot be granted on the basis of facts that would necessarily be tried with the general issue in the case.[55] In this case, there can be no doubt that the District Court based its findings on evidence presented in the trial of the general issue. As we have shown earlier, the court's findings were based on Sisson's testimony and demeanor at the trial itself. Moreover, a defense based on Sisson's asserted constitutional privilege not to be required to fight in a particular war would, we think, necessarily be part of the "general issue" of a suit over a registrant's refusal to submit to induction. AS THE CHIEF JUSTICE says in his dissenting opinion, "establishing the appropriate classification is actually an element of the Government's case," post, at 34, once a defendant raises a defense challenging it. We think a defense to a pre-induction suit based on conscientious objections that require factual determinations is so intertwined with the general issue that it must be tried with the general issue, United 6 F. Supp. 45, (pretrial motion to dismiss under Rule 1 (b) (1) on the basis of an affidavit, denied because "the validity of the [conscientious objector] defense which Fargas now raises will require the consideration of factual questions which are embraced in the general issue"); see United v. Ramos, 413 F.d 43, 44 n. 1 (evidentiary hearing for pretrial motion to dismiss indictment not appropriate means to consider validity of defense based on conscientious objection because "[q]uestions regarding the validity of *30 appellant's classification should have been raised as a defense at the trial," citing Fargas with approval).[56] There is, in our view, still another reason no appeal can lie in this case under the motion-in-bar provision. We construe the Criminal Appeals Act as confining the *303 Government's right to appeal—except for motions in arrest of judgment—to situations in which a jury has not been impaneled, even though there are cases in which a defendant might constitutionally be retried if appeals were allowed after jeopardy had attached. Because the court below rendered its decision here after the trial began, and because that decision was not, as we have shown, an arrest of judgment, we therefore conclude there can be no appeal under the other provisions of 331. *304 We reach this conclusion for several reasons. First, although the legislative history is far from clear, we think it was the congressional expectation that except for motions in arrest—which as we have shown could never be based on evidence adduced at trial—the rulings to which the bill related would occur before the trial began.[5] The language of the motion-in-bar provision *305 itself limits appeals to those granted "when the defendant has not been put in jeopardy." We read that limitation to mean exactly what it says—i. e., no appeal from a motion in bar is to be granted after jeopardy attaches. Although the legislative history shows much disagreement and confusion concerning the meaning of the constitutional prohibition against subjecting a defendant to double jeopardy[58] there was little dispute over the then-settled notion that a defendant was put into jeopardy once the jury was sworn.[59] To read this limitation as no more than a restatement of the constitutional prohibition, as suggested by MR. JUSTICE WHITE, renders it completely superfluous. No Senator thought that Congress had the power under the Constitution to provide for an appeal in circumstances in which that would violate the Constitution.[60] Our conclusion draws strength from the fact that the Government itself has placed exactly this same interpretation *306 on the Act. The Department of Justice, the agency for whose benefit the original bill was enacted, first placed this construction on the statute shortly after the bill was enacted, and has consistently abided by it in the more than 60 years that have since passed. As the Solicitor General stated in his brief: "The Department of Justice has consistently taken the view that the plea in bar section limits the government's right of appeal to the granting of such pleas before a jury has been sworn. Soon after passage of the original Act, the 190 Report of the Attorney General urged that the omission in the Act of a governmental right to appeal from post-jeopardy rulings be remedied by revising the Act so as to require counsel for the defendant to raise and argue questions of law prior to the time when jeopardy attached," Brief 1. Later, after describing the opinion in in which the Second Circuit certified an appeal to this Court to determine whether the phrase "not been put in jeopardy" merely incorporated the constitutional limitation, or instead should be taken literally, the Government's brief states: "The then Solicitor General, being of the view that the statute barred appeals from the granting of motions in bar after jeopardy had attached, moved to dismiss the appeal, and the appeal was dismissed (). The Department of Justice has thereafter adhered to that position, and the government has never sought to appeal in these circumstances."[61] This interpretation in our view deserves great weight. *30 In light of (1) the compromise origins of the statute, () the concern with which some Senators viewed the retrial of any defendant whose trial terminated after the jury was impaneled, and (3) the interpretation placed on the Act shortly after its passage[6] that has been consistently followed for more than 60 years by the Government, we think that the correct course is to construe the statute to provide a clear, easily administered test: except for decisions arresting judgment, there can be no government appeals from decisions rendered after the trial begins. IV Clarity is to be desired in any statute, but in matters of jurisdiction it is especially important. Otherwise the courts and the parties must expend great energy, not on the merits of dispute settlement, but on simply deciding whether a court has the power to hear a case. When judged in these terms, the Criminal Appeals Act is a failure. Born of compromise, and reflecting no coherent allocation of appellate responsibility,[63] the Criminal Appeals Act proved a most unruly child that has not improved with age. The statute's roots are grounded in pleading distinctions that existed at common law but *308 which, in most instances, fail to coincide with the procedural categories of the Federal Rules of Criminal Procedure. Not only does the statute create uncertainty by its requirement that one analyze the nature of the decision of the District Court in order to determine whether it falls within the class of common-law distinctions for which an appeal is authorized,[64] but it has also engendered confusion over the court to which an appealable decision should be brought.[65] The Solicitor General, at oral argument in this case, forthrightly stated that "there are few problems which occur so frequently or present such extreme technical difficulty in the Solicitor General's office [as] in the proper construction of the Criminal Appeals Act."[66] We share his dissatisfaction with this statute. Nevertheless, until such time as Congress decides to amend the statute, this Court must abide by the limitations imposed by this awkward and ancient Act. We conclude that the appeal in this case must be dismissed for lack of jurisdiction. It is so ordered. MR. JUSTICE BLACK concurs in the judgment of the Court and Part II C of the opinion. MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE DOUGLAS and MR.

Justice Ginsburg

majority

Babbitt v. Youpee

https://www.courtlistener.com/opinion/118078/babbitt-v-youpee/

https://www.courtlistener.com/api/rest/v3/clusters/118078/

1996-017

In this case, we consider for a second time the constitutionality of an escheat-to-tribe provision of the Indian Land Consolidation Act (ILCA). 96 Stat. 2519, as amended, 25 U.S. C. § 2206. Specifically, we address § 207 of the ILCA, as amended in 1984. Congress enacted the original provision *237 in 1983 to ameliorate the extreme fractionation problem attending a century-old allotment policy that yielded multiple ownership of single parcels of Indian land. Pub. L. 97-459, § 207, 96 Stat. 2519. Amended § 207 provides that certain small interests in Indian lands will transfer—or "escheat"—to the tribe upon the death of the owner of the interest. Pub. L. 98-608, 98 Stat. 3173. In Hodel v. Irving, 481 U.S. 704 (1987), this Court held that the original version of § 207 of the ILCA effected a taking of private property without just compensation, in violation of the Fifth Amendment to the United States Constitution. Id., at 716-718. We now hold that amended § 207 does not cure the constitutional deficiency this Court identified in the original version of § 207. I In the late Nineteenth Century, Congress initiated an Indian land program that authorized the division of communal Indian property. Pursuant to this allotment policy, some Indian land was parcelled out to individual tribal members. Lands not allotted to individual Indians were opened to nonIndians for settlement. See Indian General Allotment Act of 1887, ch. 119, 24 Stat. 388. Allotted lands were held in trust by the United States or owned by the allottee subject to restrictions on alienation. On the death of the allottee, the land descended according to the laws of the State or Territory in which the land was located. 24 Stat. 389. In 1910, Congress also provided that allottees could devise their interests in allotted land. Act of June 25, 1910, ch. 431, § 2, 36 Stat. 856, codified as amended, 25 U.S. C. § 373. The allotment policy "quickly proved disastrous for the Indians." Irving, 481 U. S., at 707. The program produced a dramatic decline in the amount of land in Indian hands. F. Cohen, Handbook of Federal Indian Law 138 (1982) (hereinafter Cohen). And as allottees passed their interests on to multiple heirs, ownership of allotments became increasingly fractionated, with some parcels held by dozens of owners. *238 Lawson, Heirship: The Indian Amoeba, reprinted in Hearing on S. 2480 and S. 2663 before the Senate Select Committee on Indian Affairs, 98th Cong., 2d Sess., 77 (1984) (hereinafter Lawson). A number of factors augmented the problem: Because Indians often died without wills, many interests passed to multiple heirs, H. R. Rep. No. 97-908, p. 10 (1982); Congress' allotment Acts subjected trust lands to alienation restrictions that impeded holders of small interests from transferring those interests, Lawson 78-79; Indian lands were not subject to state real estate taxes, Cohen 406, which ordinarily serve as a strong disincentive to retaining small fractional interests in land. The fractionation problem proliferated with each succeeding generation as multiple heirs took undivided interests in allotments. The administrative difficulties and economic inefficiencies associated with multiple undivided ownership in allotted lands gained official attention as early as 1928. See L. Meriam, Institute for Government Research, The Problem of Indian Administration 40-41 (1928). Governmental administration of these fractionated interests proved costly, and individual owners of small undivided interests could not make productive use of the land. Congress ended further allotment in 1934. See Indian Reorganization Act, ch. 576, 48 Stat. 984, 25 U.S. C. § 461 et seq. But that action left the legacy in place. As most owners had more than one heir, interests in lands already allotted continued to splinter with each generation. In the 1960's, congressional studies revealed that approximately half of all allotted trust lands were held in fractionated ownership; for over a quarter of allotted trust lands, individual allotments were held by more than six owners to a parcel. See Irving, 481 U. S., at 708— 709 (citing Senate Committee on Interior and Insular Affairs, Indian Heirship Land Survey, 86th Cong., 2d Sess., pt. 2, p. x (Comm. Print 1960-1961)). In 1983, Congress adopted the ILCA in part to reduce fractionated ownership of allotted lands. Pub. L. 97-459, tit. *239 II, 96 Stat. 2517. Section 207 of the ILCA—the "escheat" provision—prohibited the descent or devise of small fractional interests in allotments. 96 Stat. 2519.[1] Instead of passing to heirs, such fractional interests would escheat to the tribe, thereby consolidating the ownership of Indian lands. Congress defined the targeted fractional interest as one that both constituted 2 percent or less of the total acreage in an allotted tract and had earned less than $100 in the preceding year. Section 207 made no provision for the payment of compensation to those who held such interests. In Hodel v. Irving, this Court invalidated § 207 on the ground that it effected a taking of property without just compensation, in violation of the Fifth Amendment. 481 U.S., at 716-718. The appellees in Irving were, or represented, heirs or devisees of members of the Oglala Sioux Tribe. But for § 207, the appellees would have received 41 fractional interests in allotments; under § 207, those interests would escheat to the Tribe. Id., at 709-710. This Court tested the legitimacy of § 207 by considering its economic impact, its effect on investment-backed expectations, and the essential character of the measure. See id., at 713-718; see also Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). Turning first to the economic impact of § 207, the Court in Irving observed that the provision's income-generation test might fail to capture the actual economic value of the land. 481 U.S., at 714. The Court next indicated that § 207 likely did not interfere with investmentbacked expectations. Id., at 715. Key to the decision in Irving, however, was the "extraordinary" character of the *240 Government regulation. Id., at 716. As this Court noted, § 207 amounted to the "virtua[l] abrogation of the right to pass on a certain type of property." Ibid. Such a complete abrogation of the rights of descent and devise could not be upheld. Id., at 716-717. II In 1984, while Irving was still pending in the Court of Appeals for the Eighth Circuit, Congress amended § 207. Pub. L. 96-608, § 1(4), 98 Stat. 3173.[2] Amended § 207 differs from the original escheat provision in three relevant respects. First, an interest is considered fractional if it both *241 constitutes 2 percent or less of the total acreage of the parcel and "is incapable of earning $100 in any one of the five years [following the] decedent's death"—as opposed to one year before the decedent's death in the original § 207. 25 U.S. C. § 2206(a). If the interest earned less than $100 in any one of five years prior to the decedent's death, "there shall be a rebuttable presumption that such interest is incapable of earning $100 in any one of the five years following the death of the decedent." Ibid. Second, in lieu of a total ban on devise and descent of fractional interests, amended § 207 permits devise of an otherwise escheatable interest to "any other owner of an undivided fractional interest in such parcel or tract" of land. 25 U.S. C. § 2206(b). Finally, tribes are authorized to override the provisions of amended § 207 through the adoption of their own codes governing the disposition of fractional interests; these codes are subject to the approval of the Secretary of the Interior. 25 U.S. C. § 2206(c). In Irving, "[w]e express[ed] no opinion on the constitutionality of § 207 as amended." 481 U.S., at 710, n. 1. Under amended § 207, the interests in this case would escheat to tribal governments. The initiating plaintiffs, respondents here, are the children and potential heirs of William Youpee. An enrolled member of the Sioux and Assiniboine Tribes of the Fort Peck Reservation in Montana, William Youpee died testate in October 1990. His will devised to respondents, all of them enrolled tribal members, his several undivided interests in allotted trust lands on various reservations in Montana and North Dakota. These interests, as the Ninth Circuit reported, were valued together at $1,239. 67 F.3d 194, 199 (1995). Each interest was devised to a single descendant. Youpee's will thus perpetuated existing fractionation, but it did not splinter ownership further by bequeathing any single fractional interest to multiple devisees. In 1992, in a proceeding to determine the heirs to, and claims against, William Youpee's estate, an Administrative *242 Law Judge (ALJ) in the Department of the Interior found that interests devised to each of the respondents fell within the compass of amended § 207 and should therefore escheat to the tribal governments of the Fort Peck, Standing Rock, and Devils Lake Sioux Reservations. App. to Pet. for Cert. 27a—40a. Respondents, asserting the unconstitutionality of amended § 207, appealed the ALJ's order to the Department of the Interior Board of Indian Appeals. The Board, stating that it did not have jurisdiction to consider respondents' constitutional claim, dismissed the appeal. Respondents then filed suit in the United States District Court for the District of Montana, naming the Secretary of the Interior as defendant, and alleging that amended § 207 of the ILCA violates the Just Compensation Clause of the Fifth Amendment. The District Court agreed with respondents and granted their request for declaratory and injunctive relief. 857 F. Supp. 760, 766 (1994). The Court of Appeals for the Ninth Circuit affirmed. 67 F.3d 194 (1995). That court carefully inspected the 1984 revisions to § 207. Hewing closely to the reasoning of this Court in Irving, the Ninth Circuit determined that amended § 207 did not cure the deficiencies that rendered the original provision unconstitutional. In particular, the Ninth Circuit observed that amended § 207 "continue[d] to completely abolish one of the sticks in the bundle of rights [constituting property] for a class of Indian landowners." 67 F.3d, at 200. The Ninth Circuit noted that "Congress may pursue other options to achieve consolidation of . . . fractional interests," including Government purchase of the land, condemnation for a public purpose attended by payment of just compensation, or regulation to impede further fractionation. Ibid. But amended § 207 could not stand, the Ninth Circuit concluded, for the provision remained "an extraordinary and impermissible regulation of Indian lands and effect[ed] an unconstitutional taking without just compensation." Ibid. *243 On the petition of the United States, we granted certiorari, 517 U.S. 1232 (1996), and now affirm. III In determining whether the 1984 amendments to § 207 render the provision constitutional, we are guided by Irving.[3] The United States maintains that the amendments, though enacted three years prior to the Irving decision, effectively anticipated the concerns expressed in the Court's opinion. As already noted, amended § 207 differs from the original in three relevant respects: It looks back five years instead of one to determine the income produced from a small interest, and creates a rebuttable presumption that this income stream will continue; it permits devise of otherwise escheatable interests to persons who already own an interest in the same parcel; and it authorizes tribes to develop their own codes governing the disposition of fractional interests. These modifications, according to the United States, rescue amended § 207 from the fate of its predecessor. The Government maintains that the revisions moderate the economic impact of the provision and temper the character of the Government's regulation; the latter factor weighed most heavily against the constitutionality of the original version of § 207. The narrow revisions Congress made to § 207, without benefit of our ruling in Irving, do not warrant a disposition different from the one this Court announced and explained in Irving. Amended § 207 permits a five-year window rather than a one-year window to assess the income-generating capacity of the interest. As the Ninth Circuit observed, however, argument that this change substantially mitigates the economic impact of § 207 "misses the point." 67 F. 3d, at *244 199. Amended § 207 still trains on income generated from the land, not on the value of the parcel. The Court observed in Irving that "[e]ven if . . . the income generated by such parcels may be properly thought of as de minimis," the value of the land may not fit that description. 481 U.S., at 714. The parcels at issue in Irving were valued by the Bureau of Indian Affairs at $2,700 and $1,816, amounts we found "not trivial." Ibid. The value of the disputed parcels in this case is not of a different order; as the Ninth Circuit reported, the value of decedent Youpee's fractional interests was $1,239. 67 F.3d, at 199. In short, the economic impact of amended § 207 might still be palpable. Even if the economic impact of amended § 207 is not significantly less than the impact of the original provision, the United States correctly comprehends that Irving rested primarily on the "extraordinary" character of the governmental regulation. Irving stressed that the original § 207 "amount[ed] to virtually the abrogation of the right to pass on a certain type of property—the small undivided interest—to one's heirs." 481 U.S., at 716; see also id., at 717 ("both descent and devise are completely abolished"). The Irving Court further noted that the original § 207 "effectively abolish[ed] both descent and devise [of fractional interests] even when the passing of the property to the heir might result in consolidation of property." Id., at 716. As the United States construes Irving, Congress cured the fatal infirmity in § 207 when it revised the section to allow transmission of fractional interests to successors who already own an interest in the allotment. Congress' creation of an ever-so-slight class of individuals equipped to receive fractional interests by devise does not suffice, under a fair reading of Irving, to rehabilitate the measure. Amended § 207 severely restricts the right of an individual to direct the descent of his property. Allowing a decedent to leave an interest only to a current owner in the *245 same parcel shrinks drastically the universe of possible successors. And, as the Ninth Circuit observed, the "very limited group [of permissible devisees] is unlikely to contain any lineal descendants." 67 F.3d, at 199-200. Moreover, amended § 207 continues to restrict devise "even in circumstances when the governmental purpose sought to be advanced, consolidation of ownership of Indian lands, does not conflict with the further descent of the property." Irving, 481 U. S., at 718. William Youpee's will, the United States acknowledges, bequeathed each fractional interest to one heir. Giving effect to Youpee's directive, therefore, would not further fractionate Indian land holdings. The United States also contends that amended § 207 satisfies the Constitution's demand because it does not diminish the owner's right to use or enjoy property during his lifetime, and does not affect the right to transfer property at death through nonprobate means. These arguments did not persuade us in Irving and they are no more persuasive today. See id., at 716-718. The third alteration made in amended § 207 also fails to bring the provision outside the reach of this Court's holding in Irving. Amended § 207 permits tribes to establish their own codes to govern the disposition of fractional interests; if approved by the Secretary of the Interior, these codes would govern in lieu of amended § 207. See 25 U.S. C. § 2206(c). The United States does not rely on this new provision to defend the statute. Nor does it appear that the United States could do so at this time: Tribal codes governing disposition of escheatable interests have apparently not been developed. See Tr. of Oral Arg. 42-43. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is Affirmed.

In this case, we consider for a second time the constitutionality of an escheat-to-tribe provision of the Indian Land Consolidation Act (ILCA). as amended, 25 U.S. C. 2206. Specifically, we address 207 of the ILCA, as amended in 1984. Congress enacted the original provision *237 in 1983 to ameliorate the extreme fractionation problem attending a century-old allotment policy that yielded multiple ownership of single parcels of Indian 207, Amended 207 provides that certain small interests in Indian lands will transfer—or "escheat"—to the tribe upon the death of the owner of the interest. Stat. 3173. In this Court held that the original version of 207 of the ILCA effected a taking of private property without just compensation, in violation of the Fifth Amendment to the United States Constitution. We now hold that amended 207 does not cure the constitutional deficiency this Court identified in the original version of 207. I In the late Nineteenth Century, Congress initiated an Indian land program that authorized the division of communal Indian property. Pursuant to this allotment policy, some Indian land was parcelled out to individual tribal members. Lands not allotted to individual Indians were opened to nonIndians for settlement. See Indian General Allotment Act of 1887, ch. 119, Allotted lands were held in trust by the United States or owned by the allottee subject to restrictions on alienation. On the death of the allottee, the land descended according to the laws of the State or Territory in which the land was located. In 1910, Congress also provided that allottees could devise their interests in allotted Act of June 25, 1910, ch. 431, 2, codified as amended, 25 U.S. C. 373. The allotment policy "quickly proved disastrous for the Indians." The program produced a dramatic decline in the amount of land in Indian hands. F. Cohen, Handbook of Federal Indian Law 138 (1982) (hereinafter Cohen). And as allottees passed their interests on to multiple heirs, ownership of allotments became increasingly fractionated, with some parcels held by dozens of owners. *238 Lawson, Heirship: The Indian Amoeba, reprinted in Hearing on S. 2480 and S. 2663 before the Senate Select Committee on Indian Affairs, 98th Cong., 2d Sess., 77 (1984) (hereinafter Lawson). A number of factors augmented the problem: Because Indians often died without wills, many interests passed to multiple heirs, H. R. Rep. No. 97-908, p. 10 (1982); Congress' allotment Acts subjected trust lands to alienation restrictions that impeded holders of small interests from transferring those interests, Lawson 78-79; Indian lands were not subject to state real estate taxes, Cohen 406, which ordinarily serve as a strong disincentive to retaining small fractional interests in The fractionation problem proliferated with each succeeding generation as multiple heirs took undivided interests in allotments. The administrative difficulties and economic inefficiencies associated with multiple undivided ownership in allotted lands gained official attention as early as 1928. See L. Meriam, Institute for Government Research, The Problem of Indian Administration 40-41 (1928). Governmental administration of these fractionated interests proved costly, and individual owners of small undivided interests could not make productive use of the Congress ended further allotment in 1934. See Indian Reorganization Act, ch. 576, 25 U.S. C. 461 et seq. But that action left the legacy in place. As most owners had more than one heir, interests in lands already allotted continued to splinter with each generation. In the 1960's, congressional studies revealed that approximately half of all allotted trust lands were held in fractionated ownership; for over a quarter of allotted trust lands, individual allotments were held by more than six owners to a parcel. See — 709 (citing Senate Committee on Interior and Insular Affairs, Indian Heirship Land Survey, 86th Cong., 2d Sess., pt. 2, p. x (Comm. Print 1960-1961)). In 1983, Congress adopted the ILCA in part to reduce fractionated ownership of allotted lands. tit. *239 II, Section 207 of the ILCA—the "escheat" provision—prohibited the descent or devise of small fractional interests in allotments.[1] Instead of passing to heirs, such fractional interests would escheat to the tribe, thereby consolidating the ownership of Indian lands. Congress defined the targeted fractional interest as one that both constituted 2 percent or less of the total acreage in an allotted tract and had earned less than $100 in the preceding year. Section 207 made no provision for the payment of compensation to those who held such interests. In this Court invalidated 207 on the ground that it effected a taking of property without just compensation, in violation of the Fifth 481 U.S., The appellees in were, or represented, heirs or devisees of members of the Oglala Sioux Tribe. But for 207, the appellees would have received 41 fractional interests in allotments; under 207, those interests would escheat to the Tribe. This Court tested the legitimacy of 207 by considering its economic impact, its effect on investment-backed expectations, and the essential character of the measure. See ; see also Penn Central Transp. Turning first to the economic impact of 207, the Court in observed that the provision's income-generation test might fail to capture the actual economic value of the The Court next indicated that 207 likely did not interfere with investmentbacked expectations. Key to the decision in however, was the "extraordinary" character of the *240 Government regulation. As this Court noted, 207 amounted to the "virtua[l] abrogation of the right to pass on a certain type of property." Such a complete abrogation of the rights of descent and devise could not be upheld. -717. II In 1984, while was still pending in the Court of Appeals for the Eighth Circuit, Congress amended 207. Pub. L. 96-608, 1(4),[2] Amended 207 differs from the original escheat provision in three relevant respects. First, an interest is considered fractional if it both *241 constitutes 2 percent or less of the total acreage of the parcel and "is incapable of earning $100 in any one of the five years [following the] decedent's death"—as opposed to one year before the decedent's death in the original 207. 25 U.S. C. 2206(a). If the interest earned less than $100 in any one of five years prior to the decedent's death, "there shall be a rebuttable presumption that such interest is incapable of earning $100 in any one of the five years following the death of the decedent." Second, in lieu of a total ban on devise and descent of fractional interests, amended 207 permits devise of an otherwise escheatable interest to "any other owner of an undivided fractional interest in such parcel or tract" of 25 U.S. C. 2206(b). Finally, tribes are authorized to override the provisions of amended 207 through the adoption of their own codes governing the disposition of fractional interests; these codes are subject to the approval of the Secretary of the Interior. 25 U.S. C. 2206(c). In "[w]e express[ed] no opinion on the constitutionality of 207 as amended." n. 1. Under amended 207, the interests in this case would escheat to tribal governments. The initiating plaintiffs, respondents here, are the children and potential heirs of William Youpee. An enrolled member of the Sioux and Assiniboine Tribes of the Fort Peck Reservation in Montana, William Youpee died testate in October 0. His will devised to respondents, all of them enrolled tribal members, his several undivided interests in allotted trust lands on various reservations in Montana and North Dakota. These interests, as the Ninth Circuit reported, were valued together at $1, Each interest was devised to a single descendant. Youpee's will thus perpetuated existing fractionation, but it did not splinter ownership further by bequeathing any single fractional interest to multiple devisees. In 2, in a proceeding to determine the heirs to, and claims against, William Youpee's estate, an Administrative *242 Law Judge (ALJ) in the Department of the Interior found that interests devised to each of the respondents fell within the compass of amended 207 and should therefore escheat to the tribal governments of the Fort Peck, Standing Rock, and Devils Lake Sioux Reservations. App. to Pet. for Cert. 27a—40a. Respondents, asserting the unconstitutionality of amended 207, appealed the ALJ's order to the Department of the Interior Board of Indian Appeals. The Board, stating that it did not have jurisdiction to consider respondents' constitutional claim, dismissed the appeal. Respondents then filed suit in the United States District Court for the District of Montana, naming the Secretary of the Interior as defendant, and alleging that amended 207 of the ILCA violates the Just Compensation Clause of the Fifth The District Court agreed with respondents and granted their request for declaratory and injunctive relief. (4). The Court of Appeals for the Ninth Circuit affirmed. That court carefully inspected the 1984 revisions to 207. Hewing closely to the reasoning of this Court in the Ninth Circuit determined that amended 207 did not cure the deficiencies that rendered the original provision unconstitutional. In particular, the Ninth Circuit observed that amended 207 "continue[d] to completely abolish one of the sticks in the bundle of rights [constituting property] for a class of Indian landowners." The Ninth Circuit noted that "Congress may pursue other options to achieve consolidation of fractional interests," including Government purchase of the land, condemnation for a public purpose attended by payment of just compensation, or regulation to impede further fractionation. But amended 207 could not stand, the Ninth Circuit concluded, for the provision remained "an extraordinary and impermissible regulation of Indian lands and effect[ed] an unconstitutional taking without just compensation." *243 On the petition of the United States, we granted certiorari, (6), and now affirm. III In determining whether the 1984 amendments to 207 render the provision constitutional, we are guided by[3] The United States maintains that the amendments, though enacted three years prior to the decision, effectively anticipated the concerns expressed in the Court's opinion. As already noted, amended 207 differs from the original in three relevant respects: It looks back five years instead of one to determine the income produced from a small interest, and creates a rebuttable presumption that this income stream will continue; it permits devise of otherwise escheatable interests to persons who already own an interest in the same parcel; and it authorizes tribes to develop their own codes governing the disposition of fractional interests. These modifications, according to the United States, rescue amended 207 from the fate of its predecessor. The Government maintains that the revisions moderate the economic impact of the provision and temper the character of the Government's regulation; the latter factor weighed most heavily against the constitutionality of the original version of 207. The narrow revisions Congress made to 207, without benefit of our ruling in do not warrant a disposition different from the one this Court announced and explained in Amended 207 permits a five-year window rather than a one-year window to assess the income-generating capacity of the interest. As the Ninth Circuit observed, however, argument that this change substantially mitigates the economic impact of 207 "misses the point." 67 F. 3d, at *244 Amended 207 still trains on income generated from the land, not on the value of the parcel. The Court observed in that "[e]ven if the income generated by such parcels may be properly thought of as de minimis," the value of the land may not fit that The parcels at issue in were valued by the Bureau of Indian Affairs at $2,700 and $1,816, amounts we found "not trivial." The value of the disputed parcels in this case is not of a different order; as the Ninth Circuit reported, the value of decedent Youpee's fractional interests was $1, 67 F.3d, at In short, the economic impact of amended 207 might still be palpable. Even if the economic impact of amended 207 is not significantly less than the impact of the original provision, the United States correctly comprehends that rested primarily on the "extraordinary" character of the governmental regulation. stressed that the original 207 "amount[ed] to virtually the abrogation of the right to pass on a certain type of property—the small undivided interest—to one's heirs." ; see also The Court further noted that the original 207 "effectively abolish[ed] both descent and devise [of fractional interests] even when the passing of the property to the heir might result in consolidation of property." As the United States construes Congress cured the fatal infirmity in 207 when it revised the section to allow transmission of fractional interests to successors who already own an interest in the allotment. Congress' creation of an ever-so-slight class of individuals equipped to receive fractional interests by devise does not suffice, under a fair reading of to rehabilitate the measure. Amended 207 severely restricts the right of an individual to direct the descent of his property. Allowing a decedent to leave an interest only to a current owner in the *245 same parcel shrinks drastically the universe of possible successors. And, as the Ninth Circuit observed, the "very limited group [of permissible devisees] is unlikely to contain any lineal descendants." 67 F.3d, at -200. Moreover, amended 207 continues to restrict devise "even in circumstances when the governmental purpose sought to be advanced, consolidation of ownership of Indian lands, does not conflict with the further descent of the property." William Youpee's will, the United States acknowledges, bequeathed each fractional interest to one heir. Giving effect to Youpee's directive, therefore, would not further fractionate Indian land holdings. The United States also contends that amended 207 satisfies the Constitution's demand because it does not diminish the owner's right to use or enjoy property during his lifetime, and does not affect the right to transfer property at death through nonprobate means. These arguments did not persuade us in and they are no more persuasive today. See The third alteration made in amended 207 also fails to bring the provision outside the reach of this Court's holding in Amended 207 permits tribes to establish their own codes to govern the disposition of fractional interests; if approved by the Secretary of the Interior, these codes would govern in lieu of amended 207. See 25 U.S. C. 2206(c). The United States does not rely on this new provision to defend the statute. Nor does it appear that the United States could do so at this time: Tribal codes governing disposition of escheatable interests have apparently not been developed. See Tr. of Oral Arg. 42-43. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is Affirmed.

Justice Ginsburg

concurring

Reeves v. Sanderson Plumbing Products, Inc.

https://www.courtlistener.com/opinion/1087667/reeves-v-sanderson-plumbing-products-inc/

https://www.courtlistener.com/api/rest/v3/clusters/1087667/

1999-072

The Court today holds that an employment discrimination plaintiff may survive judgment as a matter of law by submitting two categories of evidence: first, evidence establishing a "prima facie case," as that term is used in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); and second, evidence from which a rational factfinder could conclude that the employer's proffered explanation for its actions was false. Because the Court of Appeals in this case plainly, and erroneously, required the plaintiff to offer some evidence beyond those two categories, no broader holding is necessary to support reversal. I write separately to note that it may be incumbent on the Court, in an appropriate case, to define more precisely the circumstances in which plaintiffs will be required to submit evidence beyond these two categories in order to survive a motion for judgment as a matter of law. I anticipate that such circumstances will be uncommon. As the Court notes, it is a principle of evidence law that the jury is entitled to treat a party's dishonesty about a material fact as evidence of culpability. Ante, at 147. Under this commonsense principle, evidence suggesting that a defendant accused of illegal discrimination has chosen to give a false explanation for its actions gives rise to a rational inference that the defendant could be masking its actual, illegal motivation. Ibid. Whether the defendant was in fact motivated by discrimination is of course for the finder of fact to decide; that is the lesson of St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). But the inference remains—unless it is conclusively *155 demonstrated, by evidence the district court is required to credit on a motion for judgment as a matter of law, see ante, at 151, that discrimination could not have been the defendant's true motivation. If such conclusive demonstrations are (as I suspect) atypical, it follows that the ultimate question of liability ordinarily should not be taken from the jury once the plaintiff has introduced the two categories of evidence described above. Because the Court's opinion leaves room for such further elaboration in an appropriate case, I join it in full.

The Court today holds that an employment discrimination plaintiff may survive judgment as a matter of law by submitting two categories of evidence: first, evidence establishing a "prima facie case," as that term is used in McDonnell Douglas ; and second, evidence from which a rational factfinder could conclude that the employer's proffered explanation for its actions was false. Because the Court of Appeals in this case plainly, and erroneously, required the plaintiff to offer some evidence beyond those two categories, no broader holding is necessary to support reversal. I write separately to note that it may be incumbent on the Court, in an appropriate case, to define more precisely the circumstances in which plaintiffs will be required to submit evidence beyond these two categories in order to survive a motion for judgment as a matter of law. I anticipate that such circumstances will be uncommon. As the Court notes, it is a principle of evidence law that the jury is entitled to treat a party's dishonesty about a material fact as evidence of culpability. Ante, at 147. Under this commonsense principle, evidence suggesting that a defendant accused of illegal discrimination has chosen to give a false explanation for its actions gives rise to a rational inference that the defendant could be masking its actual, illegal motivation. Whether the defendant was in fact motivated by discrimination is of course for the finder of fact to decide; that is the lesson of St. Mary's Honor But the inference remains—unless it is conclusively *155 demonstrated, by evidence the district court is required to credit on a motion for judgment as a matter of law, see ante, at 151, that discrimination could not have been the defendant's true motivation. If such conclusive demonstrations are (as I suspect) atypical, it follows that the ultimate question of liability ordinarily should not be taken from the jury once the plaintiff has introduced the two categories of evidence described above. Because the Court's opinion leaves room for such further elaboration in an appropriate case, I join it in full.

Justice Stewart

concurring

North Ga. Finishing, Inc. v. Di-Chem, Inc.

https://www.courtlistener.com/opinion/109137/north-ga-finishing-inc-v-di-chem-inc/

https://www.courtlistener.com/api/rest/v3/clusters/109137/

1974-029

It is gratifying to note that my report of the demise of Fuentes v. Shevin, 407 U.S. 67, see Mitchell v. W. T. Grant Co., 416 U.S. 600, 629-636 (dissenting opinion), seems to have been greatly exaggerated. Cf. S. Clemens, cable from Europe to the Associated Press, quoted in 2 A. Paine, Mark Twain: A Biography 1039 (1912). *609 MR. JUSTICE POWELL, concurring in the judgment. I join in the Court's judgment, but I cannot concur in the opinion as I think it sweeps more broadly than is necessary and appears to resuscitate Fuentes v. Shevin, 407 U.S. 67 (1972). Only last term in Mitchell v. W. T. Grant, Co. 416 U.S. 600 (1974), the Court significantly narrowed the precedential scope of Fuentes. In my concurrence in Mitchell, I noted: "The Court's decision today withdraws significantly from the full reach of [Fuentes'] principle, and to this extent I think it fair to say that the Fuentes opinion is overruled." 416 U.S., at 623 (POWELL, J., concurring). Three dissenting Justices, including the author of Fuentes, went further in their description of the impact of Mitchell: "[T]he Court today has unmistakably overruled a considered decision of this Court that is barely two years old, without pointing to any change . . . that might justify this total disregard of stare decisis." 416 U.S., at 635 (STEWART, J., joined by DOUGLAS and MARSHALL, JJ., dissenting). The Court's opinion in this case, relying substantially on Fuentes, suggests that that decision will again be read as calling into question much of the previously settled law governing commercial transactions. I continue to doubt whether Fuentes strikes a proper balance, especially in cases where the creditor's interest in the property may be as significant or even greater than that of the debtor. Nor do I find it necessary to relegate Mitchell to its narrow factual setting in order to determine that the Georgia garnishment statutes fail to satisfy the requirements of procedural due process. As we observed in Mitchell, the traditional view of procedural due process had been that " `[w]here only *610 property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate.' " Id., at 611, quoting Phillips v. Commissioner, 283 U.S. 589, 596-597 (1931). Consistent with this view, the Court in the past unanimously approved prejudgment attachment liens similar to those at issue in this case. McKay v. McInnes, 279 U.S. 820 (1929); Coffin Bros. v. Bennett, 277 U.S. 29 (1928); Ownbey v. Morgan, 256 U.S. 94 (1921). See generally Mitchell, supra, at 613-614. But the recent expansion of concepts of procedural due process requires a more careful assessment of the nature of the governmental function served by the challenged procedure and of the costs the procedure exacts of private interests. See, e. g., Goldberg v. Kelly, 397 U.S. 254, 263-266 (1970); Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961). Under this analysis, the Georgia provisions cannot stand. Garnishment and attachment remedies afford the actual or potential judgment creditor a means of assuring, under appropriate circumstances, that the debtor will not remove from the jurisdiction, encumber, or otherwise dispose of certain assets then available to satisfy the creditor's claim.[1] Garnishment may have a seriously adverse impact on the debtor, depriving him of the use of his assets during the period that it applies. But this fact alone does not give rise to constitutional objection. The State's legitimate interest in facilitating creditor recovery through the provision of garnishment remedies has never been seriously questioned. *611 Pregarnishment notice and a prior hearing have not been constitutionally mandated in the past. Despite the ambiguity engendered by the Court's reliance on Fuentes, I do not interpret its opinion today as imposing these requirements for the future.[2] Such restrictions, antithetical to the very purpose of the remedy, would leave little efficacy to the garnishment and attachment laws of the 50 States. In my view, procedural due process would be satisfied where state law requires that the garnishment be preceded by the garnishor's provision of adequate security and by his establishment before a neutral officer[3] of a factual basis of the need to resort to the remedy as a means of preventing removal or dissipation of assets required to satisfy the claim. Due process further requires that the State afford an opportunity for a prompt post-garnishment judicial hearing in which the garnishor has *612 the burden of showing probable cause to believe there is a need to continue the garnishment for a sufficient period of time to allow proof and satisfaction of the alleged debt. Since the garnished assets may bear no relation to the controversy giving rise to the alleged debt, the State also should provide the debtor an opportunity to free those assets by posting adequate security in their place. The Georgia provisions fall short of these requirements. Garnishment may issue on the basis of a simple and conclusory affidavit that the garnishor has reason to apprehend the loss of money allegedly owed. See Ga. Code Ann. § 46-101, set forth in full in the Court's opinion, ante, at 602 n. 1. As shown by the affidavit filed in this case, see ante, at 604 n. 2, an unrevealing assertion of apprehension of loss suffices to invoke the issuance of garnishment.[4] This is insufficient to enable a neutral officer to make even the most superficial preliminary assessment of the creditor's asserted need.[5] *613 The most compelling deficiency in the Georgia procedure is its failure to provide a prompt and adequate postgarnishment hearing. Under Georgia law, garnishment is a separate proceeding between the garnishor and the garnishee. The debtor is not a party and can intervene only by filing a dissolution bond and substituting himself for the garnishee. Leake v. Tyner, 112 Ga. 919, 38 S.E. 343 (1901); Powell v. Powell, 95 Ga. App. 122, 97 S.E.2d 193 (1957). As noted above, the issuance of the garnishment may impose serious hardship on the debtor. In this context, due process precludes imposing the additional burden of conditioning the debtor's ability to question the validity of its issuance or continuation on the filing of a bond. Moreover, the Georgia statute contains no provision enabling the debtor to obtain prompt dissolution of the garnishment upon a showing of fact,[6] nor any indication that the garnishor bears the burden of proving entitlement to the garnishment. I consider the combination of these deficiencies to be fatal to the Georgia statute. Quite simply, the Georgia *614 provisions fail to afford fundamental fairness in their accommodation of the respective interests of creditor and debtor. For these reasons, I join in the judgment of the Court. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE REHNQUIST joins, dissenting. The Court once again—for the third time in less than three years—struggles with what it regards as the due process aspects of a State's old and long-unattacked commercial statutes designed to afford a way for relief to a creditor against a delinquent debtor. On this third occasion, the Court, it seems to me, does little more than make very general and very sparse comparisons of the present case with Fuentes v. Shevin, 407 U.S. 67 (1972), on the one hand, and with Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974), on the other; concludes that this case resembles Fuentes more than it does Mitchell; and then strikes down the Georgia statutory structure as offensive to due process. One gains the impression, particularly from the final paragraph of its opinion, that the Court is endeavoring to say as little as possible in explaining just why the Supreme Court of Georgia is being reversed. And, as a result, the corresponding commercial statutes of all other States, similar to but not exactly like those of Florida or Pennsylvania or Louisiana or Georgia, are left in questionable constitutional status, with little or no applicable standard by which to measure and determine their validity under the Fourteenth Amendment. This, it seems to me, is an undesirable state of affairs, and I dissent. I do so for a number of reasons: 1. Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), mentioned in passing by the Court in its present opinion, ante, at 605-606, was correctly regarded by the Georgia Supreme Court, 231 Ga. 260, 263-264, 201 S. E. *615 2d 321, 323 (1973), as a case relating to the garnishment of wages. The opinion in Sniadach makes this emphasis: "We deal here with wages—a specialized type of property presenting distinct problems in our economic system. We turn then to the nature of that property and problems of procedural due process." 395 U.S., at 340. It goes on to speak of possible "tremendous hardship on wage earners with families to support," ibid., and the "enormous" leverage of the creditor "on the wage earner," id., at 341. Sniadach should be allowed to remain in its natural environment—wages—and not be expanded to arm's-length relationships between business enterprises of such financial consequence as North Georgia Finishing and Di-Chem. 2. The Court, ante, at 606, regards the narrow limitations of Sniadach as affected by Fuentes. It also bows to Morrow Electric Co. v. Cruse, 370 F. Supp. 639 (ND Ga. 1974), and the three-judge holding there that the Georgia statutes before us are unconstitutional. Ante, at 605 n. 4. Indeed, perhaps Sniadach for a time was so expanded (somewhat surprisingly, I am sure, to the Sniadach Court) by the implications and overtones of Fuentes. But Mitchell came along and Morrow was more than three months pre-Mitchell. Sniadach's expansion was surely less under Mitchell than it might have appeared to be under Fuentes. 3. I would have thought that, whatever Fuentes may have stood for in this area of debtor-creditor commercial relationships, with its 4-3 vote by a bobtailed Court, it was substantially cut back by Mitchell. Certainly, MR. JUSTICE STEWART, the author of Fuentes and the writer of the dissenting opinion in Mitchell, thought so: "The deprivation of property in this case is identical *616 to that at issue in Fuentes, and the Court does not say otherwise." 416 U.S., at 631. "In short, this case is constitutionally indistinguishable from Fuentes v. Shevin, and the Court today has simply rejected the reasoning of that case and adopted instead the analysis of the Fuentes dissent." Id., at 634. "Yet the Court today has unmistakably overruled a considered decision of this Court that is barely two years old . . . . The only perceivable change that has occurred since the Fuentes case is in the makeup of this Court." Id., at 635. Surely, MR. JUSTICE BRENNAN thought so when he asserted in dissent that he was "in agreement that Fuentes. . . requires reversal" of the Louisiana judgment. Id., at 636. And surely, MR. JUSTICE POWELL thought so, substantially, when, in his concurrence, he observed: "The Court's decision today withdraws significantly from the full reach of [the Fuentes] principle, and to this extent I think it fair to say that the Fuentes opinion is overruled." Id., at 623. I accept the views of these dissenting and concurring Justices in Mitchell that Fuentes at least was severely limited by Mitchell, and I cannot regard Fuentes as of much influence or precedent for the present case. 4. Fuentes, a constitutional decision, obviously should not have been brought down and decided by a 4-3 vote when there were two vacancies on the Court at the time of argument. It particularly should not have been decided by a 4-3 vote when Justices filling the vacant seats had qualified and were on hand and available to participate on reargument.[1] Announcing the constitutional *617 decision, with a four-Justice majority of a seven-Justice shorthanded Court, did violence to Mr. Chief Justice Marshall's wise assurance, in Briscoe v. Commonwealth's Bank of Kentucky, 8 Pet. 118, 122 (1834), that the practice of the Court "except in cases of absolute necessity" is not to decide a constitutional question unless there is a majority "of the whole court." The Court encountered the same situation a century ago with respect to the Legal Tender Cases; mishandled the decisional process similarly; and came to regret the error. Originally, in Hepburn v. Griswold, 8 Wall. 603 (1870),[2] the Court, assertedly by a 5-3 vote, with one vacancy, held the Legal Tender Act of 1862, 12 Stat. 345, to be unconstitutional with respect to prior debts.

It is gratifying to note that my report of the demise of see (dissenting opinion), seems to have been greatly exaggerated. Cf. S. Clemens, cable from Europe to the Associated Press, quoted in 2 A. Paine, Mark Twain: A Biography 1039 (1912). *609 MR. JUSTICE POWELL, concurring in the judgment. I join in the Court's judgment, but I cannot concur in the opinion as I think it sweeps more broadly than is necessary and appears to resuscitate Only last term in the Court significantly narrowed the precedential scope of Fuentes. In my concurrence in I noted: "The Court's decision today withdraws significantly from the full reach of [Fuentes'] principle, and to this extent I think it fair to say that the Fuentes opinion is overruled." Three dissenting Justices, including the author of Fuentes, went further in their description of the impact of : "[T]he Court today has unmistakably overruled a considered decision of this Court that is barely two years old, without pointing to any change that might justify this total disregard of stare decisis." The Court's opinion in this case, relying substantially on Fuentes, suggests that that decision will again be read as calling into question much of the previously settled law governing commercial transactions. I continue to doubt whether Fuentes strikes a proper balance, especially in cases where the creditor's interest in the property may be as significant or even greater than that of the debtor. Nor do I find it necessary to relegate to its narrow factual setting in order to determine that the Georgia garnishment statutes fail to satisfy the requirements of procedural due process. As we observed in the traditional view of procedural due process had been that " `[w]here only *610 property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate.' " quoting Consistent with this view, the Court in the past unanimously approved prejudgment attachment liens similar to those at issue in this case. ; Coffin ; See generally But the recent expansion of concepts of procedural due process requires a more careful assessment of the nature of the governmental function served by the challenged procedure and of the costs the procedure exacts of private interests. See, e. g., ; Cafeteria Under this analysis, the Georgia provisions cannot stand. Garnishment and attachment remedies afford the actual or potential judgment creditor a means of assuring, under appropriate circumstances, that the debtor will not remove from the jurisdiction, encumber, or otherwise dispose of certain assets then available to satisfy the creditor's claim.[1] Garnishment may have a seriously adverse impact on the debtor, depriving him of the use of his assets during the period that it applies. But this fact alone does not give rise to constitutional objection. The State's legitimate interest in facilitating creditor recovery through the provision of garnishment remedies has never been seriously questioned. *611 Pregarnishment notice and a prior hearing have not been constitutionally mandated in the past. Despite the ambiguity engendered by the Court's reliance on Fuentes, I do not interpret its opinion today as imposing these requirements for the future.[2] Such restrictions, antithetical to the very purpose of the remedy, would leave little efficacy to the garnishment and attachment laws of the 50 States. In my view, procedural due process would be satisfied where state law requires that the garnishment be preceded by the garnishor's provision of adequate security and by his establishment before a neutral officer[3] of a factual basis of the need to resort to the remedy as a means of preventing removal or dissipation of assets required to satisfy the claim. Due process further requires that the State afford an opportunity for a prompt post-garnishment judicial hearing in which the garnishor has *612 the burden of showing probable cause to believe there is a need to continue the garnishment for a sufficient period of time to allow proof and satisfaction of the alleged debt. Since the garnished assets may bear no relation to the controversy giving rise to the alleged debt, the State also should provide the debtor an opportunity to free those assets by posting adequate security in their place. The Georgia provisions fall short of these requirements. Garnishment may issue on the basis of a simple and conclusory affidavit that the garnishor has reason to apprehend the loss of money allegedly owed. See set forth in full in the Court's opinion, ante, at 602 n. 1. As shown by the affidavit filed in this case, see ante, at 604 n. 2, an unrevealing assertion of apprehension of loss suffices to invoke the issuance of garnishment.[4] This is insufficient to enable a neutral officer to make even the most superficial preliminary assessment of the creditor's asserted need.[5] *613 The most compelling deficiency in the Georgia procedure is its failure to provide a prompt and adequate postgarnishment hearing. Under Georgia law, garnishment is a separate proceeding between the garnishor and the garnishee. The debtor is not a party and can intervene only by filing a dissolution bond and substituting himself for the garnishee. ; As noted above, the issuance of the garnishment may impose serious hardship on the debtor. In this context, due process precludes imposing the additional burden of conditioning the debtor's ability to question the validity of its issuance or continuation on the filing of a bond. Moreover, the Georgia statute contains no provision enabling the debtor to obtain prompt dissolution of the garnishment upon a showing of fact,[6] nor any indication that the garnishor bears the burden of proving entitlement to the garnishment. I consider the combination of these deficiencies to be fatal to the Georgia statute. Quite simply, the Georgia *614 provisions fail to afford fundamental fairness in their accommodation of the respective interests of creditor and debtor. For these reasons, I join in the judgment of the Court. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE REHNQUIST joins, dissenting. The Court once again—for the third time in less than three years—struggles with what it regards as the due process aspects of a State's old and long-unattacked commercial statutes designed to afford a way for relief to a creditor against a delinquent debtor. On this third occasion, the Court, it seems to me, does little more than make very general and very sparse comparisons of the present case with on the one hand, and with on the other; concludes that this case resembles Fuentes more than it does ; and then strikes down the Georgia statutory structure as offensive to due process. One gains the impression, particularly from the final paragraph of its opinion, that the Court is endeavoring to say as little as possible in explaining just why the Supreme Court of Georgia is being reversed. And, as a result, the corresponding commercial statutes of all other States, similar to but not exactly like those of Florida or Pennsylvania or Louisiana or Georgia, are left in questionable constitutional status, with little or no applicable standard by which to measure and determine their validity under the Fourteenth Amendment. This, it seems to me, is an undesirable state of affairs, and I dissent. I do so for a number of reasons: 1. mentioned in passing by the Court in its present opinion, ante, at 605-606, was correctly regarded by the Georgia Supreme Court, as a case relating to the garnishment of wages. The opinion in Sniadach makes this emphasis: "We deal here with wages—a specialized type of property presenting distinct problems in our economic system. We turn then to the nature of that property and problems of procedural due process." It goes on to speak of possible "tremendous hardship on wage earners with families to support," ib and the "enormous" leverage of the creditor "on the wage earner," Sniadach should be allowed to remain in its natural environment—wages—and not be expanded to arm's-length relationships between business enterprises of such financial consequence as North Georgia Finishing and Di-Chem. 2. The Court, ante, at 606, regards the narrow limitations of Sniadach as affected by Fuentes. It also bows to Morrow Electric and the three-judge holding there that the Georgia statutes before us are unconstitutional. Ante, at 605 n. 4. Indeed, perhaps Sniadach for a time was so expanded (somewhat surprisingly, I am sure, to the Sniadach Court) by the implications and overtones of Fuentes. But came along and Morrow was more than three months pre-. Sniadach's expansion was surely less under than it might have appeared to be under Fuentes. 3. I would have thought that, whatever Fuentes may have stood for in this area of debtor-creditor commercial relationships, with its 4-3 vote by a bobtailed Court, it was substantially cut back by Certainly, MR. JUSTICE STEWART, the author of Fuentes and the writer of the dissenting opinion in thought so: "The deprivation of property in this case is identical *616 to that at issue in Fuentes, and the Court does not say otherwise." "In short, this case is constitutionally indistinguishable from and the Court today has simply rejected the reasoning of that case and adopted instead the analysis of the Fuentes dissent." "Yet the Court today has unmistakably overruled a considered decision of this Court that is barely two years old The only perceivable change that has occurred since the Fuentes case is in the makeup of this Court." Surely, MR. JUSTICE BRENNAN thought so when he asserted in dissent that he was "in agreement that Fuentes. requires reversal" of the Louisiana judgment. And surely, MR. JUSTICE POWELL thought so, substantially, when, in his concurrence, he observed: "The Court's decision today withdraws significantly from the full reach of [the Fuentes] principle, and to this extent I think it fair to say that the Fuentes opinion is overruled." I accept the views of these dissenting and concurring Justices in that Fuentes at least was severely limited by and I cannot regard Fuentes as of much influence or precedent for the present case. 4. Fuentes, a constitutional decision, obviously should not have been brought down and decided by a 4-3 vote when there were two vacancies on the Court at the time of argument. It particularly should not have been decided by a 4-3 vote when Justices filling the vacant seats had qualified and were on hand and available to participate on reargument.[1] Announcing the constitutional *617 decision, with a four-Justice majority of a seven-Justice shorthanded Court, did violence to Mr. Chief Justice Marshall's wise assurance, in that the practice of the Court "except in cases of absolute necessity" is not to decide a constitutional question unless there is a majority "of the whole court." The Court encountered the same situation a century ago with respect to the Legal Tender Cases; mishandled the decisional process similarly; and came to regret the error. Originally, in[2] the Court, assertedly by a 5-3 vote, with one vacancy, held the Legal Tender Act of 1862, to be unconstitutional with respect to prior debts.

Justice Brennan

dissenting

Wainwright v. Witt

https://www.courtlistener.com/opinion/111303/wainwright-v-witt/

https://www.courtlistener.com/api/rest/v3/clusters/111303/

1984-024

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227 (1976), I would affirm the judgment of the Court of Appeals for the Eleventh Circuit to the extent it vacates respondent Johnny Paul Witt's sentence of death. Even if I thought otherwise, however, I would vote to affirm the decision below in this case. If the presently prevailing view of the Constitution is to permit the State to exact the awesome punishment of taking a life, then basic justice demands that juries with the power to decide whether a capital defendant lives or dies not be poisoned against the defendant. The Sixth Amendment jury guarantee "reflect[s] a profound judgment about the way in which law should be enforced and justice administered. . . . Providing an accused with the right to be tried by a jury of his peers [gives] him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Duncan v. Louisiana, 391 U.S. 145, 155-156 (1968). In Witherspoon v. Illinois, 391 U.S. 510, 521 (1968), the Court recognized that the voir dire practice of "death qualification" — the exclusion for cause, in capital cases, of jurors opposed to capital punishment — can dangerously erode this "inestimable safeguard" by creating unrepresentative juries "uncommonly willing to condemn a man to die." See also Adams v. Texas, 448 U.S. 38, 44-45, 48-50 (1980). To protect against this risk, Witherspoon and its progeny have required the State to make an exceptionally strong showing that a prospective juror's views about the death penalty will result in actual bias toward the defendant before permitting exclusion of the juror for cause. The Court of Appeals below correctly applied the stringent Witherspoon standards to the voir dire colloquy between the prosecutor and prospective juror Colby. Reversing this decision, the Court today abandons Witherspoon's strict *440 limits on death-qualification and holds instead that death-qualification exclusions be evaluated under the same standards as exclusions for any other cause.[1] Championing the right of the State to a jury purged of all possibility of partiality toward a capital defendant, the Court today has shown itself willing to ignore what the Court in Witherspoon and its progeny thought crucial: the inevitable result of the quest for such purity in the jury room in a capital case is not a neutral jury drawn from a fair cross section of the community but a jury biased against the defendant, at least with respect to penalty,[2] and a jury from which an identifiable segment of the community has been excluded. Until today it had been constitutionally impermissible for the State to require a defendant to place his life in the hands of such a jury; our fundamental notions of criminal justice were thought to demand that the State, not the defendant, bear the risk of a less than wholly neutral jury when perfect neutrality cannot, as in this situation it most assuredly cannot,[3] be achieved. Today the State's right to ensure exclusion of any juror who might fail *441 to vote the death penalty when the State's capital punishment scheme permits such a verdict vanquishes the defendant's right to a jury that assuredly will not impose the death penalty when that penalty would be inappropriate. I A Because the Court is not forthright about the extent to which today's decision departs from Witherspoon and its progeny, and because the Court does not even acknowledge the constitutional rights Witherspoon is meant to protect, a detailed exposition of Witherspoon v. Illinois is in order. In the typical case not involving the possibility of a death penalty, the State is given significant leeway to exclude for cause those jurors who indicate that various circumstances might affect their impartiality.[4] Broad exclusion is generally permitted even though some such jurors, if pressed further on voir dire, might be discovered to possess the ability to lay aside their prejudices and judge impartially. Although, as we held in Witherspoon, exclusion on "any broader basis" than a juror's unambiguously expressed inability to follow instructions and abide by an oath serves no legitimate state interest, 391 U.S., at 522, n. 21, such broader exclusion is typically permitted for the sake of convenience because it disserves no interest of the defendant. The Court's crucial perception in Witherspoon was that such broad exclusion of prospective jurors on the basis of the possible effect of their views about capital punishment infringes the rights of a capital defendant in a way that broad exclusion for indicia of other kinds of bias does not. No systemic skew in the nature of jury composition results from exclusion of individuals for random idiosyncratic traits likely *442 to lead to bias. Exclusion of those opposed to capital punishment, by contrast, keeps an identifiable class of people off the jury in capital cases and is likely systemically to bias juries. Such juries are more likely to be hanging juries, tribunals more disposed in any given case to impose a sentence of death. Id., at 523. These juries will be unlikely to represent a fair cross section of the community, and their verdicts will thus be unlikely to reflect fairly the community's judgment whether a particular defendant has been shown beyond a reasonable doubt to be guilty and deserving of death. For a community in which a significant segment opposes capital punishment, "proof beyond a reasonable doubt" in a capital case might be a stricter threshold than "proof beyond a reasonable doubt" in a noncapital case. A jury unlikely to reflect such community views is not a jury that comports with the Sixth Amendment. Adams v. Texas, supra, at 50. See Witherspoon, 391 U. S., at 519-520. Cf. Peters v. Kiff, 407 U.S. 493, 503-504 (1972) (opinion of MARSHALL, J.) ("It is not necessary to conclude that the excluded group will consistently vote as a class in order to conclude . . . that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance"); Ballard v. United States, 329 U.S. 187, 193-194 (1946) (discussing "subtle interplay of influence one on the other" among jurors of varying perspectives). This perception did not, however, lead us to ban all inquiry into a prospective juror's views about capital punishment. We also acknowledged, as the Court today correctly points out, that the State's legitimate interest in an impartial jury encompasses the right to exclude jurors whose views about capital punishment would so distort their judgment that they could not follow the law. Witherspoon accommodated both the defendant's constitutionally protected rights and the State's legitimate interests by permitting the State to exclude jurors whose views about capital punishment would *443 prevent them from being impartial but requiring strict standards of proof for exclusion. In particular, Witherspoon precluded any speculative presumption that a juror opposed to capital punishment would for that reason lack the ability to be impartial in a particular case; "[a] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror." Witherspoon, supra, at 519. Accord, Maxwell v. Bishop, 398 U.S. 262, 265 (1970); Boulden v. Holman, 394 U.S. 478, 483-484 (1969). Beyond prohibiting any presumption of bias, Witherspoon imposed, as the Court today recognizes, an "extremely high burden of proof" of actual bias. Ante, at 421. The State may exclude only those jurors who make it "unambiguous" or "unmistakably clear," Witherspoon, supra, at 515-516, n. 9, 522, n. 21, that their views about capital punishment would prevent or substantially impair them from following the law.[5] Three important consequences flow from Witherspoon's stringent standard for exclusion. First, it permits exclusion only of jurors whose views would prevent or substantially impair them from following instructions or abiding by an oath, and not those whose views would simply make these tasks more psychologically or emotionally difficult, nor those whose views would in good faith color their judgment of what a "reasonable doubt" is in a capital case. Adams v. Texas, 448 U. S., at 48-51. Second, it precludes exclusion of jurors *444 whose voir dire responses to death-qualification inquiries are ambiguous or vacillating. Witherspoon, supra, at 515-516, n. 9, 522, n. 21. Third, it precludes exclusion of jurors who do not know at voir dire whether their views about the death penalty will prevent them abiding by their oaths at trial. Adams, supra, at 50. See generally Schnapper, Taking Witherspoon Seriously: The Search for Death-Qualified Jurors, 62 Texas L. Rev. 977, 981-993 (1984). These restrictions not only trace narrowly the compass of permissible exclusion but also allocate to the State the cost of unavoidable uncertainty with respect to whether a prospective juror with scruples about capital punishment should be excluded. They do so in much the same way, and for much the same reason, that the "proof beyond a reasonable doubt" standard of guilt allocates to the State the cost of uncertainty with respect to whether a particular defendant committed a crime. See In re Winship, 397 U.S. 358, 370-373 (1970) (Harlan, J. concurring). At voir dire some prospective jurors may make clear that their opposition to capital punishment will color their judgment but may not make clear whether the effect will rise to the level of "conscious distortion or bias." Adams v. Texas, supra, at 46. Many others will not bring to the voir dire a considered position about capital punishment and thus may respond with uncertainty, ambiguity, evasion, or even self-contradiction during the death-qualification process. When the time for decision arrives such jurors might or might not turn out to be so affected by the prospect of a death sentence in the case before them that they render a biased judgment; typically neither eventuality can be divined at the voir dire stage. If under our Constitution we viewed the disadvantage to the defendant from exclusion of unbiased prospective jurors opposed to the death penalty as equivalent to the disadvantage to the prosecution from inclusion of a biased prospective juror, then the law would impose no particular burden favoring or disfavoring exclusion. Because — at least until *445 today — we viewed the risks to a defendant's Sixth Amendment rights from a jury from which those who oppose capital punishment have been excluded as far more serious than the risk to the State from inclusion of particular jurors whose views about the death penalty might turn out to predispose them toward the defendant, we placed on the State an extremely high burden to justify exclusion. Cf. In re Winship, supra, at 370-373 (Harlan, J., concurring); Speiser v. Randall, 357 U.S. 513, 525-526 (1958) ("There is always in litigation a margin of error . . . . Where one party has at stake an interest of transcending value — as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden . . ."). To protect the rights of the capital defendant Witherspoon prohibits exclusion of the ambiguous, evasive, or uncertain juror. Later cases came to see the essence of Witherspoon as being embedded in the language of footnote 21 of that case. See Adams v. Texas, supra; Boulden v. Holman, supra; Maxwell v. Bishop, supra. The crucial portion of the footnote reads: "[N]othing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." Witherspoon, 391 U. S., at 522-523, n. 21 (emphasis in original). This particular two-part inquiry, as the Court today correctly notes, ante, at 419, carries no talismanic significance. Its purpose is to expose the ability vel non of a juror to follow *446 instructions and abide by an oath with respect to both sentencing (the first prong) and determining guilt or innocence (the second prong).[6] We have held that different forms of inquiry passed muster under Witherspoon so long as they were similarly directed at ascertaining whether a juror could follow instructions and abide by an oath. E. g., Adams v. Texas, 448 U. S., at 44-45; Lockett v. Ohio, 438 U.S. 586, 595-596 (1978). That permissible Witherspoon inquiries may depart from the language of footnote 21 does not mean, however, that the State may ignore Witherspoon's strict standards of proof for exclusion when a different form of inquiry is put to the prospective juror. We have repeatedly stressed that the essence of Witherspoon is its requirement that only jurors who make it unmistakably clear that their views about capital punishment would prevent or substantially impair them from following the law may be excluded. Maxwell v. Bishop, 398 U.S. 262 (1970); Boulden v. Holman, 394 U.S. 478 (1969). Thus in summarily reversing several state-court decisions, this Court invalidated death sentences imposed by juries from which jurors had been excluded because their voir dire responses indicated ambiguity or uncertainty as to whether their views about capital punishment would affect their ability to be impartial. Pruett v. Ohio, 403 U.S. 946 (1971), rev'g 18 Ohio St. 2d 167, 248 N.E.2d 605 (1969); Adams v. Washington, 403 U.S. 947 (1971), rev'g 76 Wash. 2d 650, 458 P.2d 558 (1969); Mathis v. New Jersey, 403 U.S. 946 (1971), rev'g 52 N. J. 238, 245 A.2d 20 (1968). And in Lockett v. Ohio, supra, we approved exclusions because the excused prospective jurors had made it " `unmistakably clear' " that *447 they could not take an oath to be impartial. 438 U.S., at 596 (quoting Witherspoon, supra, at 522-523, n. 21). Most recently, in Adams v. Texas, this Court reaffirmed that exclusion absent a juror's unambiguously stated inability to follow the law and abide by an oath was constitutionally impermissible. 448 U.S., at 50. B A comprehensive understanding of the principles of Witherspoon makes clear that the decision of the Court of Appeals below was correct. The court below faithfully sought to implement Witherspoon's accommodation of the interests of the defendant in avoiding a jury " `uncommonly willing to condemn a man to die,' " 714 F.2d 1069, 1076-1080 (1984) (quoting Witherspoon, supra, at 521), and of the State in "the necessity of excusing for cause those prospective jurors who, because of their lack of impartiality from holding unusually strong views against the death penalty, would frustrate a state's legitimate effort to administer an otherwise constitutionally valid death penalty scheme." 714 F.2d, at 1076-1080. Following Adams v. Texas, supra, the court below articulated an accurate understanding of the stringent burdens of proof Witherspoon places on the State: "[A] prospective juror must be permitted great leeway in expressing opposition to the death penalty before he or she qualifies for dismissal for cause. A prospective juror may even concede that his or her feelings about the death penalty would possibly color an objective determination of the facts of a case without admitting of the necessary partiality to justify excusal." 714 F.2d, at 1076-1080. See Adams v. Texas, supra, at 49-50. Applying this correct understanding of the law to the colloquy between the prosecutor and prospective juror Colby, the court held that Colby's "statements fall far short of the certainty *448 required by Witherspoon to justify for cause excusal." 714 F.2d, at 1082. The court traced this lack of certainty in part to "the State's failure to frame its questions in an appropriately unambiguous manner," given the standard of proof the State had to meet to justify exclusion. Ibid. Specifically, the court criticized the State's use of the word "interfere" in its examination: "The word `interfere' admits of a great variety of interpretations, and we would find it quite unnatural for a person, who has already expressed her concern about the death penalty, to respond otherwise than that her feelings would `interfere' with, `color,' or `affect' her determinations. Such a response does not indicate an inability, in all cases, to apply the death sentence or to find the defendant guilty where such a finding could lead to capital punishment because it fails to reflect the profundity of any such `interference.' " Ibid. Though critical of the prosecutor's decision to fashion his questioning around the word "interfere," the court below did not base its decision on this divergence from the precise inquiry of Witherspoon's footnote 21. 714 F.2d, at 1083.[7] Rather, the court relied on Witherspoon's stringent standards of proof in deciding that the exclusion of Colby was improper. Colby's statement that she thought her personal views about capital punishment might interfere with "judging *449 [the] guilt or innocence [of the defendant]," 714 F.2d, at 1083, was, the court held, not a sufficiently unambiguous statement of inability to follow instructions or abide by an oath to justify exclusion under applicable principles. This decision is perfectly congruent with our recent holding in Adams. 448 U. S., at 49-50. The court therefore ordered resentencing — not retrial — for Witt in accord with Sixth and Fourteenth Amendment requirements.[8] *450 II A Adams v. Texas, supra, is, ironically, precisely the authority the Court today invokes to reverse the Court of Appeals below. In what must under the circumstances be taken as a tacit admission that application of Witherspoon's stringent standards of proof would validate the decision of the Court of Appeals, the Court casts Adams as a substantial retrenchment; "the standard applied in Adams," claims the Court, "differs markedly from the language of footnote 21 [of Witherspoon]." Ante, at 421. To the extent the Court reads Adams as eschewing unthinking adherence to the particular two-part inquiry propounded in footnote 21, I have no quarrel. See supra, at 445-446. The Court, however, purports to find in Adams a renunciation of Witherspoon's stringent standards of proof. Ante, at 421 ("[G]one too is the extremely high burden of proof"). In essence the Court reads Adams as saying that there is no constitutional distinction between exclusion for death penalty bias and exclusion for other types of bias. See Patton v. Yount, 467 U.S. 1025 (1984). Had the Court of Appeals understood that this more lenient exclusion standard governed, today's opinion asserts, it would have realized that the state trial court's voir dire excusal of Colby should not be disturbed. Adams did not, however, desert the principles of Witherspoon. It is the Court's brazenly revisionist reading of Adams today that leaves Witherspoon behind. JUSTICE REHNQUIST, dissenting from Adams, thought the opinion of the Court "expand[ed]" the scope of Witherspoon's restrictions. 448 U.S., at 52. Virtually all federal and state *451 appellate courts considering Witherspoon claims in light of Adams have read the case as a clear endorsement of the Witherspoon approach encapsulated in footnote 21. See, e. g., Darden v. Wainwright, 725 F.2d 1526, 1528-1529 (CA11 1984) (en banc); Davis v. Zant, 721 F.2d 1478, 1486 (CA11 1983); Spencer v. Zant, 715 F.2d 1562, 1576 (CA11 1983); Hance v. Zant, 696 F.2d 940, 954 (CA11 1983); O'Bryan v. Estelle, 691 F.2d 706, 709 (CA5 1982); Burns v. Estelle, 626 F.2d 396, 397-398 (CA5 1980); Herring v. State, 446 So. 2d 1049, 1055 (Fla. 1984); People v. Velasquez, 28 Cal. 3d 461, 622 P.2d 952 (1980); People v. Gaines, 88 Ill. 2d 342, 351-352, 430 N.E.2d 1046, 1051 (1981); State v. Mercer, 618 S.W.2d 1, 6 (Mo. 1981) (en banc). One need look no further than the text of Adams to understand why it has been perceived until today as consistent with Witherspoon. Adams quoted Witherspoon's footnote 21 with approval and stated that the test in that footnote was "clearly designed" to accommodate both the State's interest and the defendant's interest. Adams, supra, at 44. Reaffirming that Witherspoon must be seen as "a limitation on the State's power to exclude," Adams held that "if prospective jurors are barred from jury service because of their views about capital punishment on `any broader basis' than inability to follow the law or abide by their oaths, the death sentence cannot be carried out. Witherspoon v. Illinois, 391 U. S., at 522, n. 21." 448 U.S., at 48. In holding that the State may exclude only those whose views about capital punishment "would prevent or substantially impair" their ability to follow instructions and abide by an oath, id., at 45, the Court made clear that the State may exclude only jurors whose views would lead to "conscious distortion or bias." Id., at 46 (emphasis added). Nothing in Adams suggests that the Court intended to abandon Witherspoon's strict standards of proof. The Court's intent to reaffirm these standards is evident in its approving quotation of the "unmistakably clear" language of *452 footnote 21, Adams, supra, at 44, and, more importantly, in its delineation of the circumstances in which exclusion is impermissible. Adams explicitly prohibited exclusion of jurors whose views about capital punishment might invest their deliberations with greater seriousness, 448 U.S., at 49-50, those views would make it emotionally more difficult for them to follow their oaths, ibid., and those who cannot affirmatively say whether or not their views would distort their determinations, id., at 50. Even those "who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt" may not be excluded if "they aver that they will honestly find the facts . . . if they are convinced beyond [a] reasonable doubt." Ibid. Adams was true to Witherspoon's recognition that the Constitution prohibits imposition of a death sentence by a jury from which a juror was excluded on any broader basis than an unambiguous affirmatively stated inability to follow instructions and abide by an oath. The Court today establishes an entirely new standard significantly more lenient than that of Witherspoon. The difference does not lie in the freedom of the State to depart from the precise inquiry of Witherspoon's footnote 21; that freedom, as I have made clear, has long been established. See supra, at 445-446; Lockett v. Ohio, 438 U. S., at 595-596. The crucial departure is the decision to discard Witherspoon's stringent standards of proof. The Court no longer prohibits exclusion of uncertain, vacillating, or ambiguous prospective jurors. It no longer requires an unmistakably clear showing that a prospective juror will be prevented or substantially impaired from following instructions and abiding by an oath. Instead the trial judge at voir dire is instructed to evaluate juror uncertainty, ambiguity, or vacillation to decide whether the juror's views about capital punishment "might frustrate administration of a State's death penalty scheme." Ante, *453 at 416 (emphasis added).[9] If so, that juror may be excluded. In essence, the Court has shifted to the capital defendant the risk of a biased and unrepresentative jury. This result debases the Sixth Amendment's jury guarantees. B Rewriting Adams to suit present purposes, the Court has of course relieved itself of much of its burden of justification; invoking precedent, the Court dodges the obligation to provide support for its decision to deprive the capital defendant of protections long recognized as fundamental. Nonetheless, perhaps in tacit recognition that today's departure calls for an explanation, the Court has offered three reasons for preferring what it misleadingly calls the "Adams test." Ante, at 421. Stripped of their false lustre of precedential force, these justifications neither jointly nor severally support the Court's abandonment of Witherspoon. The Court's first justification is linked to changes in the role of juries in capital cases. Because jurors no longer have the unfettered discretion to impose or withhold capital punishment that they had in Illinois and other States at the time of Witherspoon, the Court asserts, there is no longer any reason to require empaneling of jurors who will merely consider a sentence of death under some circumstances. The State *454 should be permitted to exclude all jurors unable to follow the guided discretion procedures that, as a result of the Court's Eighth Amendment decisions, now govern capital sentencing. Ante, at 422. In the interest of candor, the Court might have mentioned that precisely this analysis prompted JUSTICE REHNQUIST's dissent in Adams. 448 U. S., at 52 ("[A]t a time when this Court should be re-examining the doctrinal underpinnings of Witherspoon in light of our intervening decisions in capital cases, it instead expands that precedent as if those underpinnings had remained wholly static"). It is most curious that the identical reasoning is now marshaled to justify a "test" purportedly derived from the Court's holding in that case. More to the point, this reasoning does not in any way justify abandonment of the restrictions Witherspoon has placed on the exclusion of prospective jurors. Without a doubt, a State may inquire whether a particular juror will be able to follow his or her oath to abide by the particulars of a guided discretion sentencing approach, and upon receiving an unmistakably clear negative response the State may properly move to exclude that juror. Lockett v. Ohio, supra, at 595-596. But the existence of a guided discretion scheme in no way diminishes the defendant's interest in a jury composed of a fair cross section of the community and a jury not "uncommonly willing to condemn a man to die." Witherspoon v. Illinois, 391 U. S., at 521. Even under a guided discretion proceeding a juror must have the opportunity to consider all available mitigating evidence, Eddings v. Oklahoma, 455 U.S. 104 (1982), and to decide against imposition of the death sentence in any individual case, Woodson v. North Carolina, 428 U.S. 280 (1976). Under our Constitution, the capital sentencer must undertake a sensitive " `consideration of the character and record of the individual offender and the circumstances of the particular offense as a[n] . . . indispensable part of the process of inflicting the penalty of death.' " Eddings, supra, at 112 (quoting Woodson, supra, at 304). As *455 Adams recognizes, making such judgments "is not an exact science, and the jurors . . . unavoidably exercise a range of judgment and discretion while remaining true to their instructions and their oaths." 448 U.S., at 46. That is why the State may not exclude jurors "who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected . . . would be to deprive the defendant of the impartial jury to which he or she is entitled under the law." Id., at 50. The risks that Witherspoon sought to minimize through defining high standards of proof for exclusions based on death penalty scruples are, we correctly held in Adams, equally prevalent in the context of guided discretion sentencing schemes. As a second justification for the so-called "Adams test" the Court serves up the claim that Witherspoon's footnote 21 approach was dictum. That footnote 21 might have been dictum is not, of course, an affirmative reason for adopting the particular alternative the Court advances today. Were the claim correct it would merely leave more leeway to depart from the Witherspoon restrictions. More importantly, the label "dictum" does not begin to convey the status that the restrictions embodied in footnote 21 have achieved in this Court and state and federal courts over the last decade and a half. See supra, at 445, 450-451. From Boulden v. Holman, 394 U.S. 478 (1969), and Maxwell v. Bishop, 398 U.S. 262 (1970), through Adams, supra, this Court has applied the strict burdens of proof of Witherspoon's footnote 21 to invalidate sentences imposed by juries from which scrupled jurors had been too readily excluded. The Court concedes as much at another point in its opinion when it *456 acknowledges that footnote 21 "se[t] the standard" for subsequent cases. Ante, at 418. The Court's third proffered justification is that the socalled "Adams standard . . . is in accord with the traditional reasons for excluding jurors and with the circumstances under which such determinations are made." Ante, at 423. In essence, the Court argues that the so-called Adams standard should be followed because it excludes jurors for bias on the same grounds and using the same standards as would be used for exclusion based on any other type of bias: "exclu[sion of] jurors because of their opposition to capital punishment is no different from excluding jurors for innumerable other reasons which result in bias . . . ." Ante, at 429. This position is at the core of the Court's holding in this case, but between this position and the basic principles of Witherspoon lies an unbridgeable chasm. The crux of Witherspoon was its recognition of a constitutionally significant distinction between exclusion of jurors opposed to capital punishment and exclusion of jurors for the "innumerable other reasons which result in bias." Ante, at 429. The very nature of a Witherspoon challenge illuminates the difference. In typical cases involving an allegation of juror bias unrelated to death penalty scruples, the convicted defendant challenges the inclusion of particular jurors. E. g., Patton v. Yount, 467 U.S. 1025 (1984); Smith v. Phillips, 455 U.S. 209 (1982). In a Witherspoon case the convicted defendant challenges the exclusion of particular jurors. If, as the Court suggests, the only interest at stake in a Witherspoon case is the equivalent right of the defendant and the State to impartial individual jurors, ante, at 423, then the entire thrust of the Witherspoon inquiry makes no sense. To be relevant to the right the Court claims is at stake, the inquiry would have to focus on whether the individual jurors who replaced the excluded prospective jurors were impartial; if so, then no harm would result from the exclusion of particular prospective jurors, whatever the reason for the exclusion. *457 Witherspoon, of course, focused on the very different sort of injury that might result from systematic exclusion of those opposed to capital punishment: the risk of hanging juries, 391 U.S., at 521, n. 20, from which a distinct segment of the community has been excluded. Id., at 520. Witherspoon's prohibition against presuming bias and its requirement of an unmistakably clear showing of actual bias sufficient to prevent or substantially impair a juror's ability to abide by an oath are the means by which the risk of constitutional injury is minimized. The Court today eliminates both protections. It rejects the rule that stricter standards govern death-qualification, and as a justification for doing so indulges precisely the presumption of bias Witherspoon prohibited: "we do not think, simply because a defendant is being tried for a capital crime, that he is entitled to a legal presumption or standard that allows jurors to be seated who quite likely will be biased in his favor." Ante, at 423 (emphasis added). The trick in the majority opinion should by now be clear. The Court simply refuses to recognize the constitutional rights Witherspoon's stringent standards of proof were designed to safeguard. The Court limits the Sixth Amendment to the partiality vel non of individual jurors; "[h]ere, as elsewhere, the quest is for jurors who will conscientiously apply the law and find the facts." Ante, at 423 (emphasis added). As today's opinion would have it, the Sixth Amendment has nothing to say about the overall composition of the jury, and in particular about the capital defendant's right to a jury not predisposed toward the death sentence and representative of a fair cross section of the community. A defendant's established right to a jury that reflects the community's judgment about whether the evidence supporting conviction and execution for a particular crime crosses the "reasonable doubt" threshold has been made to disappear. This bit of legerdemain permits the Court to offer an easy analogy to exclusion for other types of bias and argue that *458 death-qualification should be evaluated under the same lenient standards. Ante, at 423-424. Because the Court never acknowledges the constitutional rights Witherspoon was meant to protect, it need not explain why Witherspoon's protections are no longer needed. It is bad enough that the Court is so eager to discard well-established Sixth Amendment rights of a capital defendant for the sake of efficient capital punishment. But if the Court is to take such a precipitate step, at the very least it should acknowledge having done so and explain why these consistently recognized rights should be recognized no longer. III Witherspoon, as the foregoing discussion makes clear, is best understood in the context of our cases preserving the integrity of the jury both as an impartial factfinder and as the voice of the community. As such the protection of Witherspoon's stringent standards of proof could not be more important to the capital defendant: "The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.. . . Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one *459 judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence." Duncan v. Louisiana, 391 U.S. 145, 155-156 (1968) (footnote omitted). Crucial to the jury right is the requirement that "the jury be a body truly representative of the community." Smith v. Texas, 311 U.S. 128, 130 (1940). As we said in Taylor v. Louisiana, 419 U.S. 522 (1975), "[t]his prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool." Id., at 530. The death-qualification process is fraught with threats to these constitutional guarantees.[10] The risk of the "overzealous prosecutor and . . . the compliant, biased, or eccentric judge," Duncan v. Louisiana, supra, at 156, is particularly acute in the context of a capital case. Passions, as we all know, can run to the extreme when the State tries one accused of a barbaric act against society, or one accused of a crime that — for whatever reason — inflames the community. Pressures on the government to secure a conviction, to "do something," can overwhelm even those of good conscience. See Patton v. Yount, 467 U. S., at 1053 (STEVENS, J., dissenting). When prosecutors and judges are elected, or when they harbor political ambitions, such pressures are particularly dangerous. Cf. Spaziano v. Florida, 468 U.S. 447, 467 (1984) (STEVENS, J., concurring in part and dissenting in part). With such pressures invariably being brought to bear, strict controls on the death-qualification *460 process are imperative. Death-qualification works to the advantage of only the prosecutor; if not carefully controlled, it is tool with which the prosecutor can create a jury perhaps predisposed to convict[11] and certainly predisposed to impose the ultimate sanction. Broad death-qualification threatens the requirement that juries be drawn from a fair cross section of the community and thus undermines both the defendant's interest in a representative body and society's interest in full community participation in capital sentencing. "One of the most important *461 functions any jury can perform in making such a selection [of life or death] is to maintain a link between contemporary community values and the penal system — a link without which the determination of punishment could hardly reflect `the evolving standards of decency that mark the progress of a maturing society.' " Witherspoon, 391 U. S., at 519, n. 15 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (opinion of WARREN, C. J.)). AS JUSTICE STEVENS wrote last Term, "if the decision that capital punishment is the appropriate sanction in extreme cases is justified because it expresses the community's moral sensibility — its demand that a given affront to humanity requires retribution — it follows . . . that a representative cross section of the community must be given the responsibility for making that decision." Spaziano v. Florida, supra, at 481 (concurring in part and dissenting in part). That the Court would be willing to place the life of this capital defendant, and all others, in the hands of a skewed jury is unpardonable. Of perhaps equal gravity are the implications of today's opinion for the established right of every criminal defendant to a jury drawn from a fair cross section of the community. Taylor v. Louisiana, supra. If, as the Court suggests, the Sixth Amendment jury right requires only a "quest . . . for jurors who will conscientiously apply the law and find the facts," ante, at 423 — if, in other words, the only pertinent question is whether the individual jurors are impartial, see Duren v. Missouri, 439 U.S. 357, 371, n. (1979) (REHNQUIST, J., dissenting); Taylor v. Louisiana, supra, at 538 (REHNQUIST, J., dissenting) — then the right to a jury drawn from a fair cross section of the community is lost. IV Though the unexplained evisceration of Witherspoon's protections of a capital defendant's Sixth Amendment rights is the most troubling accomplishment of the opinion for the Court, its discussion of the proper standard of review of *462 state-court Witherspoon determinations cannot pass without some comment. One evident purpose of the Court's redefinition of the standards governing death-qualification is to bring review of death-qualification questions within the scope of the presumption of correctness of state-court factual findings on federal collateral review. 28 U.S. C. § 2254(d). In recent cases the Court has held that the question whether a juror is biased is a question of fact and therefore review of a trial court's voir dire decision to exclude or not exclude receives a presumption of correctness under § 2254(d). E. g., Patton v. Yount, 467 U.S. 1025 (1984). Had the Court maintained Witherspoon's strict standards for death-qualification, there would be no question that trial-court decisions to exclude scrupled jurors would not be questions of fact subject to the presumption of correctness. Whether a prospective juror with qualms about the death penalty expressed an inability to abide by an oath with sufficient strength and clarity to justify exclusion is certainly a "mixed question" — an application of a legal standard to undisputed historical fact. Even if one were to accept the Court's redefinition of the proper standards for death-qualification, it would not follow that the Court's holding with respect to the applicability of § 2254(d) is correct. JUSTICE STEVENS, dissenting in Patton v. Yount, supra, has persuasively demonstrated that "the question whether a juror has an opinion that disqualifies is a mixed one of law and fact," id., at 1052, because the question is " `whether the nature and strength of the opinion formed are such as in law necessarily. . . raise the presumption of partiality.' " Ibid., (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)). V Today's opinion for the Court is the product of a saddening confluence of three of the most disturbing trends in our constitutional jurisprudence respecting the fundamental rights of our people. The first is the Court's unseemly eagerness to *463 recognize the strength of the State's interest in efficient law enforcement and to make expedient sacrifices of the constitutional rights of the criminal defendant to such interests. United States v. Leon, 468 U.S. 897, 929-930 (1984) (BRENNAN, J., dissenting). The second is the Court's increasing disaffection with the previously unquestioned principle, endorsed by every Member of this Court, that "because of its severity and irrevocability, the death penalty is qualitatively different from any other punishment, and hence must be accompanied by unique safeguards . . . ." Spaziano v. Florida, 468 U. S., at 468 (STEVENS, J., concurring in part and dissenting in part). E. g., Pulley v. Harris, 465 U.S. 37 (1984); Spaziano v. Florida, supra, at 461-464 (opinion of the Court); Barclay v. Florida, 463 U.S. 939 (1983). The third is the Court's increasingly expansive definition of "questions of fact" calling for application of the presumption of correctness of 28 U.S. C. § 2254(d) to thwart vindication of fundamental rights in the federal courts. E. g., Patton v. Yount, supra; Rushen v. Spain, 464 U.S. 114 (1983); Marshall v. Lonberger, 459 U.S. 422 (1983). These trends all reflect the same desolate truth: we have lost our sense of the transcendent importance of the Bill of Rights to our society. See United States v. Leon, supra, at 980 (STEVENS, J., dissenting) ("[I]t is the very purpose of a Bill of Rights to identify values that may not be sacrificed to expediency"). We have lost too our sense of our own role as Madisonian "guardians" of these rights. See 1 Annals of Cong. 439 (1789) (remarks of James Madison). Like the death-qualified juries that the prosecution can now mold to its will to enhance the chances of victory, this Court increasingly acts as the adjunct of the State and its prosecutors in facilitating efficient and expedient conviction and execution irrespective of the Constitution's fundamental guarantees. One can only hope that this day too will soon pass.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, I would affirm the judgment of the Court of Appeals for the Eleventh Circuit to the extent it vacates respondent Johnny Paul Witt's sentence of death. Even if I thought otherwise, however, I would vote to affirm the decision below in this case. If the presently prevailing view of the Constitution is to permit the State to exact the awesome punishment of taking a life, then basic justice demands that with the power to decide whether a capital defendant lives or dies not be poisoned against the defendant. The Sixth Amendment jury guarantee "reflect[s] a profound judgment about the way in which law should be enforced and justice administered. Providing an accused with the right to be tried by a jury of his peers [gives] him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." In the Court recognized that the voir dire practice of "death qualification" — the exclusion for cause, in capital cases, of jurors opposed to capital punishment — can dangerously erode this "inestimable safeguard" by creating unrepresentative "uncommonly willing to condemn a man to die." See also To protect against this risk, and its progeny have required the State to make an exceptionally strong showing that a prospective juror's views about the death penalty will result in actual bias toward the defendant before permitting exclusion of the juror for cause. The Court of Appeals below correctly applied the stringent standards to the voir dire colloquy between the prosecutor and prospective juror Colby. Reversing this decision, the Court today abandons 's strict *440 limits on death-qualification and holds instead that death-qualification exclusions be evaluated under the same standards as exclusions for any other cause.[1] Championing the right of the State to a jury purged of all possibility of partiality toward a capital defendant, the Court today has shown itself willing to ignore what the Court in and its progeny thought crucial: the inevitable result of the quest for such purity in the jury room in a capital case is not a neutral jury drawn from a fair cross section of the community but a jury biased against the defendant, at least with respect to penalty,[2] and a jury from which an identifiable segment of the community has been excluded. Until today it had been constitutionally impermissible for the State to require a defendant to place his life in the hands of such a jury; our fundamental notions of criminal justice were thought to demand that the State, not the defendant, bear the risk of a less than wholly neutral jury when perfect neutrality cannot, as in this situation it most assuredly cannot,[3] be achieved. Today the State's right to ensure exclusion of any juror who might fail *441 to vote the death penalty when the State's capital punishment scheme permits such a verdict vanquishes the defendant's right to a jury that assuredly will not impose the death penalty when that penalty would be inappropriate. I A Because the Court is not forthright about the extent to which today's decision departs from and its progeny, and because the Court does not even acknowledge the constitutional rights is meant to protect, a detailed exposition of is in order. In the typical case not involving the possibility of a death penalty, the State is given significant leeway to exclude for cause those jurors who indicate that various circumstances might affect their impartiality.[4] Broad exclusion is generally permitted even though some such jurors, if pressed further on voir dire, might be discovered to possess the ability to lay aside their prejudices and judge impartially. Although, as we held in exclusion on "any broader basis" than a juror's unambiguously expressed inability to follow instructions and abide by an oath serves no legitimate state interest, 21, such broader exclusion is typically permitted for the sake of convenience because it disserves no interest of the defendant. The Court's crucial perception in was that such broad exclusion of prospective jurors on the basis of the possible effect of their views about capital punishment infringes the rights of a capital defendant in a way that broad exclusion for indicia of other kinds of bias does not. No systemic skew in the nature of jury composition results from exclusion of individuals for random idiosyncratic traits likely *442 to lead to bias. Exclusion of those opposed to capital punishment, by contrast, keeps an identifiable class of people off the jury in capital cases and is likely systemically to bias Such are more likely to be hanging tribunals more disposed in any given case to impose a sentence of death. These will be unlikely to represent a fair cross section of the community, and their verdicts will thus be unlikely to reflect fairly the community's judgment whether a particular defendant has been shown beyond a reasonable doubt to be guilty and deserving of death. For a community in which a significant segment opposes capital punishment, "proof beyond a reasonable doubt" in a capital case might be a stricter threshold than "proof beyond a reasonable doubt" in a noncapital case. A jury unlikely to reflect such community views is not a jury that comports with the Sixth Amendment. See -520. Cf. ("It is not necessary to conclude that the excluded group will consistently vote as a class in order to conclude that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance"); This perception did not, however, lead us to ban all inquiry into a prospective juror's views about capital punishment. We also acknowledged, as the Court today correctly points out, that the State's legitimate interest in an impartial jury encompasses the right to exclude jurors whose views about capital punishment would so distort their judgment that they could not follow the law. accommodated both the defendant's constitutionally protected rights and the State's legitimate interests by permitting the State to exclude jurors whose views about capital punishment would *443 prevent them from being impartial but requiring strict standards of proof for exclusio In particular, precluded any speculative presumption that a juror opposed to capital punishment would for that reason lack the ability to be impartial in a particular case; "[a] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror." Accord, ; Beyond prohibiting any presumption of bias, imposed, as the Court today recognizes, an "extremely high burden of proof" of actual bias. Ante, at 4 The State may exclude only those jurors who make it "unambiguous" or "unmistakably clear," that their views about capital punishment would prevent or substantially impair them from following the law.[5] Three important consequences flow from 's stringent standard for exclusio First, it permits exclusion only of jurors whose views would prevent or substantially impair them from following instructions or abiding by an oath, and not those whose views would simply make these tasks more psychologically or emotionally difficult, nor those whose views would in good faith color their judgment of what a "reasonable doubt" is in a capital case. -51. Second, it precludes exclusion of jurors *444 whose voir dire responses to death-qualification inquiries are ambiguous or vacillating. Third, it precludes exclusion of jurors who do not know at voir dire whether their views about the death penalty will prevent them abiding by their oaths at trial. See generally Schnapper, Taking Seriously: The Search for Death-Qualified Jurors, 2 L. Rev. 977, 981-993 These restrictions not only trace narrowly the compass of permissible exclusion but also allocate to the State the cost of unavoidable uncertainty with respect to whether a prospective juror with scruples about capital punishment should be excluded. They do so in much the same way, and for much the same reason, that the "proof beyond a reasonable doubt" standard of guilt allocates to the State the cost of uncertainty with respect to whether a particular defendant committed a crime. See In re At voir dire some prospective jurors may make clear that their opposition to capital punishment will color their judgment but may not make clear whether the effect will rise to the level of "conscious distortion or bias." Many others will not bring to the voir dire a considered position about capital punishment and thus may respond with uncertainty, ambiguity, evasion, or even self-contradiction during the death-qualification process. When the time for decision arrives such jurors might or might not turn out to be so affected by the prospect of a death sentence in the case before them that they render a biased judgment; typically neither eventuality can be divined at the voir dire stage. If under our Constitution we viewed the disadvantage to the defendant from exclusion of unbiased prospective jurors opposed to the death penalty as equivalent to the disadvantage to the prosecution from inclusion of a biased prospective juror, then the law would impose no particular burden favoring or disfavoring exclusio Because — at least until *445 today — we viewed the risks to a defendant's Sixth Amendment rights from a jury from which those who oppose capital punishment have been excluded as far more serious than the risk to the State from inclusion of particular jurors whose views about the death penalty might turn out to predispose them toward the defendant, we placed on the State an extremely high burden to justify exclusio Cf. In re at ; To protect the rights of the capital defendant prohibits exclusion of the ambiguous, evasive, or uncertain juror. Later cases came to see the essence of as being embedded in the language of footnote 21 of that case. See The crucial portion of the footnote reads: "[N]othing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." -523, 21 This particular two-part inquiry, as the Court today correctly notes, ante, at 419, carries no talismanic significance. Its purpose is to expose the ability vel non of a juror to follow *44 instructions and abide by an oath with respect to both sentencing (the first prong) and determining guilt or innocence (the second prong).[] We have held that different forms of inquiry passed muster under so long as they were similarly directed at ascertaining whether a juror could follow instructions and abide by an oath. E. g., -45; That permissible inquiries may depart from the language of footnote 21 does not mean, however, that the State may ignore 's strict standards of proof for exclusion when a different form of inquiry is put to the prospective juror. We have repeatedly stressed that the essence of is its requirement that only jurors who make it unmistakably clear that their views about capital punishment would prevent or substantially impair them from following the law may be excluded. ; Thus in summarily reversing several state-court decisions, this Court invalidated death sentences imposed by from which jurors had been excluded because their voir dire responses indicated ambiguity or uncertainty as to whether their views about capital punishment would affect their ability to be rev'g ; v. Washington, rev'g ; rev'g 52 N. J. 238, And in we approved exclusions because the excused prospective jurors had made it " `unmistakably clear' " that *447 they could not take an oath to be (quoting ). Most recently, in this Court reaffirmed that exclusion absent a juror's unambiguously stated inability to follow the law and abide by an oath was constitutionally 448 U.S., B A comprehensive understanding of the principles of makes clear that the decision of the Court of Appeals below was correct. The court below faithfully sought to implement 's accommodation of the interests of the defendant in avoiding a jury " `uncommonly willing to condemn a man to die,' " (quoting at ), and of the State in "the necessity of excusing for cause those prospective jurors who, because of their lack of impartiality from holding unusually strong views against the death penalty, would frustrate a state's legitimate effort to administer an otherwise constitutionally valid death penalty scheme." 714 F.2d, at Following the court below articulated an accurate understanding of the stringent burdens of proof places on the State: "[A] prospective juror must be permitted great leeway in expressing opposition to the death penalty before he or she qualifies for dismissal for cause. A prospective juror may even concede that his or her feelings about the death penalty would possibly color an objective determination of the facts of a case without admitting of the necessary partiality to justify excusal." 714 F.2d, at See Applying this correct understanding of the law to the colloquy between the prosecutor and prospective juror Colby, the court held that Colby's "statements fall far short of the certainty *448 required by to justify for cause excusal." The court traced this lack of certainty in part to "the State's failure to frame its questions in an appropriately unambiguous manner," given the standard of proof the State had to meet to justify exclusio Specifically, the court criticized the State's use of the word "interfere" in its examination: "The word `interfere' admits of a great variety of interpretations, and we would find it quite unnatural for a person, who has already expressed her concern about the death penalty, to respond otherwise than that her feelings would `interfere' with, `color,' or `affect' her determinations. Such a response does not indicate an inability, in all cases, to apply the death sentence or to find the defendant guilty where such a finding could lead to capital punishment because it fails to reflect the profundity of any such `interference.' " Though critical of the prosecutor's decision to fashion his questioning around the word "interfere," the court below did not base its decision on this divergence from the precise inquiry of 's footnote[7] Rather, the court relied on 's stringent standards of proof in deciding that the exclusion of Colby was improper. Colby's statement that she thought her personal views about capital punishment might interfere with "judging *449 [the] guilt or innocence [of the defendant]," was, the court held, not a sufficiently unambiguous statement of inability to follow instructions or abide by an oath to justify exclusion under applicable principles. This decision is perfectly congruent with our recent holding in 448 U. S., The court therefore ordered resentencing — not retrial — for Witt in accord with Sixth and Fourteenth Amendment requirements.[8] *450 II A is, ironically, precisely the authority the Court today invokes to reverse the Court of Appeals below. In what must under the circumstances be taken as a tacit admission that application of 's stringent standards of proof would validate the decision of the Court of Appeals, the Court casts as a substantial retrenchment; "the standard applied in" claims the Court, "differs markedly from the language of footnote 21 [of ]." Ante, at 4 To the extent the Court reads as eschewing unthinking adherence to the particular two-part inquiry propounded in footnote 21, I have no quarrel. See The Court, however, purports to find in a renunciation of 's stringent standards of proof. Ante, at 421 ("[G]one too is the extremely high burden of proof"). In essence the Court reads as saying that there is no constitutional distinction between exclusion for death penalty bias and exclusion for other types of bias. See Had the Court of Appeals understood that this more lenient exclusion standard governed, today's opinion asserts, it would have realized that the state trial court's voir dire excusal of Colby should not be disturbed. did not, however, desert the principles of It is the Court's brazenly revisionist reading of today that leaves behind. JUSTICE REHNQUIST, dissenting from thought the opinion of the Court "expand[ed]" the scope of 's Virtually all federal and state *451 appellate courts considering claims in light of have read the case as a clear endorsement of the approach encapsulated in footnote See, e. g., ; ; ; ; ; ; ; ; ; One need look no further than the text of to understand why it has been perceived until today as consistent with quoted 's footnote 21 with approval and stated that the test in that footnote was "clearly designed" to accommodate both the State's interest and the defendant's interest. Reaffirming that must be seen as "a limitation on the State's power to exclude," held that "if prospective jurors are barred from jury service because of their views about capital punishment on `any broader basis' than inability to follow the law or abide by their oaths, the death sentence cannot be carried out. " In holding that the State may exclude only those whose views about capital punishment "would prevent or substantially impair" their ability to follow instructions and abide by an oath, the Court made clear that the State may exclude only jurors whose views would lead to "conscious distortion or bias." Nothing in suggests that the Court intended to abandon 's strict standards of proof. The Court's intent to reaffirm these standards is evident in its approving quotation of the "unmistakably clear" language of *452 footnote 21, and, more importantly, in its delineation of the circumstances in which exclusion is explicitly prohibited exclusion of jurors whose views about capital punishment might invest their deliberations with greater 448 U.S., those views would make it emotionally more difficult for them to follow their oaths, ib and those who cannot affirmatively say whether or not their views would distort their determinations, Even those "who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt" may not be excluded if "they aver that they will honestly find the facts if they are convinced beyond [a] reasonable doubt." was true to 's recognition that the Constitution prohibits imposition of a death sentence by a jury from which a juror was excluded on any broader basis than an unambiguous affirmatively stated inability to follow instructions and abide by an oath. The Court today establishes an entirely new standard significantly more lenient than that of The difference does not lie in the freedom of the State to depart from the precise inquiry of 's footnote 21; that freedom, as I have made clear, has long been established. See ; 438 U. S., at The crucial departure is the decision to discard 's stringent standards of proof. The Court no longer prohibits exclusion of uncertain, vacillating, or ambiguous prospective jurors. It no longer requires an unmistakably clear showing that a prospective juror will be prevented or substantially impaired from following instructions and abiding by an oath. Instead the trial judge at voir dire is instructed to evaluate juror uncertainty, ambiguity, or vacillation to decide whether the juror's views about capital punishment "might frustrate administration of a State's death penalty scheme." Ante, *453 at 41[9] If so, that juror may be excluded. In essence, the Court has shifted to the capital defendant the risk of a biased and unrepresentative jury. This result debases the Sixth Amendment's jury guarantees. B Rewriting to suit present purposes, the Court has of course relieved itself of much of its burden of justification; invoking precedent, the Court dodges the obligation to provide support for its decision to deprive the capital defendant of protections long recognized as fundamental. Nonetheless, perhaps in tacit recognition that today's departure calls for an explanation, the Court has offered three reasons for preferring what it misleadingly calls the " test." Ante, at 4 Stripped of their false lustre of precedential force, these justifications neither jointly nor severally support the Court's abandonment of The Court's first justification is linked to changes in the role of in capital cases. Because jurors no longer have the unfettered discretion to impose or withhold capital punishment that they had in and other States at the time of the Court asserts, there is no longer any reason to require empaneling of jurors who will merely consider a sentence of death under some circumstances. The State *454 should be permitted to exclude all jurors unable to follow the guided discretion procedures that, as a result of the Court's Eighth Amendment decisions, now govern capital sentencing. Ante, at 422. In the interest of candor, the Court might have mentioned that precisely this analysis prompted JUSTICE REHNQUIST's dissent in ("[A]t a time when this Court should be re-examining the doctrinal underpinnings of in light of our intervening decisions in capital cases, it instead expands that precedent as if those underpinnings had remained wholly static"). It is most curious that the identical reasoning is now marshaled to justify a "test" purportedly derived from the Court's holding in that case. More to the point, this reasoning does not in any way justify abandonment of the restrictions has placed on the exclusion of prospective jurors. Without a doubt, a State may inquire whether a particular juror will be able to follow his or her oath to abide by the particulars of a guided discretion sentencing approach, and upon receiving an unmistakably clear negative response the State may properly move to exclude that juror. at But the existence of a guided discretion scheme in no way diminishes the defendant's interest in a jury composed of a fair cross section of the community and a jury not "uncommonly willing to condemn a man to die." 391 U. S., at Even under a guided discretion proceeding a juror must have the opportunity to consider all available mitigating evidence, and to decide against imposition of the death sentence in any individual case, Under our Constitution, the capital sentencer must undertake a sensitive " `consideration of the character and record of the individual offender and the circumstances of the particular offense as a[n] indispensable part of the process of inflicting the penalty of death.' " (quoting ). As *455 recognizes, making such judgments "is not an exact science, and the jurors unavoidably exercise a range of judgment and discretion while remaining true to their instructions and their oaths." 448 U.S., That is why the State may not exclude jurors "who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected would be to deprive the defendant of the impartial jury to which he or she is entitled under the law." The risks that sought to minimize through defining high standards of proof for exclusions based on death penalty scruples are, we correctly held in equally prevalent in the context of guided discretion sentencing schemes. As a second justification for the so-called " test" the Court serves up the claim that 's footnote 21 approach was dictum. That footnote 21 might have been dictum is not, of course, an affirmative reason for adopting the particular alternative the Court advances today. Were the claim correct it would merely leave more leeway to depart from the More importantly, the label "dictum" does not begin to convey the status that the restrictions embodied in footnote 21 have achieved in this Court and state and federal courts over the last decade and a half. See 5, 450-451. From and through this Court has applied the strict burdens of proof of 's footnote 21 to invalidate sentences imposed by from which scrupled jurors had been too readily excluded. The Court concedes as much at another point in its opinion when it *45 acknowledges that footnote 21 "se[t] the standard" for subsequent cases. Ante, at 418. The Court's third proffered justification is that the socalled " standard is in accord with the traditional reasons for excluding jurors and with the circumstances under which such determinations are made." Ante, at 423. In essence, the Court argues that the so-called standard should be followed because it excludes jurors for bias on the same grounds and using the same standards as would be used for exclusion based on any other type of bias: "exclu[sion of] jurors because of their opposition to capital punishment is no different from excluding jurors for innumerable other reasons which result in bias" Ante, at 429. This position is at the core of the Court's holding in this case, but between this position and the basic principles of lies an unbridgeable chasm. The crux of was its recognition of a constitutionally significant distinction between exclusion of jurors opposed to capital punishment and exclusion of jurors for the "innumerable other reasons which result in bias." Ante, at 429. The very nature of a challenge illuminates the difference. In typical cases involving an allegation of juror bias unrelated to death penalty scruples, the convicted defendant challenges the inclusion of particular jurors. E. g., ; In a case the convicted defendant challenges the exclusion of particular jurors. If, as the Court suggests, the only interest at stake in a case is the equivalent right of the defendant and the State to impartial individual jurors, ante, at 423, then the entire thrust of the inquiry makes no sense. To be relevant to the right the Court claims is at stake, the inquiry would have to focus on whether the individual jurors who replaced the excluded prospective jurors were impartial; if so, then no harm would result from the exclusion of particular prospective jurors, whatever the reason for the exclusio *457 of course, focused on the very different sort of injury that might result from systematic exclusion of those opposed to capital punishment: the risk of hanging 391 U.S., at 20, from which a distinct segment of the community has been excluded. 's prohibition against presuming bias and its requirement of an unmistakably clear showing of actual bias sufficient to prevent or substantially impair a juror's ability to abide by an oath are the means by which the risk of constitutional injury is minimized. The Court today eliminates both protections. It rejects the rule that stricter standards govern death-qualification, and as a justification for doing so indulges precisely the presumption of bias prohibited: "we do not think, simply because a defendant is being tried for a capital crime, that he is entitled to a legal presumption or standard that allows jurors to be seated who quite likely will be biased in his favor." Ante, at 423 The trick in the majority opinion should by now be clear. The Court simply refuses to recognize the constitutional rights 's stringent standards of proof were designed to safeguard. The Court limits the Sixth Amendment to the partiality vel non of individual jurors; "[h]ere, as elsewhere, the quest is for jurors who will conscientiously apply the law and find the facts." Ante, at 423 As today's opinion would have it, the Sixth Amendment has nothing to say about the overall composition of the jury, and in particular about the capital defendant's right to a jury not predisposed toward the death sentence and representative of a fair cross section of the community. A defendant's established right to a jury that reflects the community's judgment about whether the evidence supporting conviction and execution for a particular crime crosses the "reasonable doubt" threshold has been made to disappear. This bit of legerdemain permits the Court to offer an easy analogy to exclusion for other types of bias and argue that *458 death-qualification should be evaluated under the same lenient standards. Ante, at 423-424. Because the Court never acknowledges the constitutional rights was meant to protect, it need not explain why 's protections are no longer needed. It is bad enough that the Court is so eager to discard well-established Sixth Amendment rights of a capital defendant for the sake of efficient capital punishment. But if the Court is to take such a precipitate step, at the very least it should acknowledge having done so and explain why these consistently recognized rights should be recognized no longer. III as the foregoing discussion makes clear, is best understood in the context of our cases preserving the integrity of the jury both as an impartial factfinder and as the voice of the community. As such the protection of 's stringent standards of proof could not be more important to the capital defendant: "The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one *459 judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence." Crucial to the jury right is the requirement that "the jury be a body truly representative of the community." Smith v. As we said in "[t]his prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool." The death-qualification process is fraught with threats to these constitutional guarantees.[10] The risk of the "overzealous prosecutor and the compliant, biased, or eccentric judge," at 15, is particularly acute in the context of a capital case. Passions, as we all know, can run to the extreme when the State tries one accused of a barbaric act against society, or one accused of a crime that — for whatever reason — inflames the community. Pressures on the government to secure a conviction, to "do something," can overwhelm even those of good conscience. See 47 U. S., at 1053 When prosecutors and judges are elected, or when they harbor political ambitions, such pressures are particularly dangerous. Cf. 48 U.S. 447, 47 With such pressures invariably being brought to bear, strict controls on the death-qualification *40 process are imperative. Death-qualification works to the advantage of only the prosecutor; if not carefully controlled, it is tool with which the prosecutor can create a jury perhaps predisposed to convict[11] and certainly predisposed to impose the ultimate sanctio Broad death-qualification threatens the requirement that be drawn from a fair cross section of the community and thus undermines both the defendant's interest in a representative body and society's interest in full community participation in capital sentencing. "One of the most important *41 functions any jury can perform in making such a selection [of life or death] is to maintain a link between contemporary community values and the penal system — a link without which the determination of punishment could hardly reflect `the evolving standards of decency that mark the progress of a maturing society.' " 15 ). AS JUSTICE STEVENS wrote last Term, "if the decision that capital punishment is the appropriate sanction in extreme cases is justified because it expresses the community's moral sensibility — its demand that a given affront to humanity requires retribution — it follows that a representative cross section of the community must be given the responsibility for making that decisio" That the Court would be willing to place the life of this capital defendant, and all others, in the hands of a skewed jury is unpardonable. Of perhaps equal gravity are the implications of today's opinion for the established right of every criminal defendant to a jury drawn from a fair cross section of the community. If, as the Court suggests, the Sixth Amendment jury right requires only a "quest for jurors who will conscientiously apply the law and find the facts," ante, at 423 — if, in other words, the only pertinent question is whether the individual jurors are impartial, see ; — then the right to a jury drawn from a fair cross section of the community is lost. IV Though the unexplained evisceration of 's protections of a capital defendant's Sixth Amendment rights is the most troubling accomplishment of the opinion for the Court, its discussion of the proper standard of review of *42 state-court determinations cannot pass without some comment. One evident purpose of the Court's redefinition of the standards governing death-qualification is to bring review of death-qualification questions within the scope of the presumption of correctness of state-court factual findings on federal collateral review. 28 U.S. C. 2254(d). In recent cases the Court has held that the question whether a juror is biased is a question of fact and therefore review of a trial court's voir dire decision to exclude or not exclude receives a presumption of correctness under 2254(d). E. g., Had the Court maintained 's strict standards for death-qualification, there would be no question that trial-court decisions to exclude scrupled jurors would not be questions of fact subject to the presumption of correctness. Whether a prospective juror with qualms about the death penalty expressed an inability to abide by an oath with sufficient strength and clarity to justify exclusion is certainly a "mixed question" — an application of a legal standard to undisputed historical fact. Even if one were to accept the Court's redefinition of the proper standards for death-qualification, it would not follow that the Court's holding with respect to the applicability of 2254(d) is correct. JUSTICE STEVENS, dissenting in has persuasively demonstrated that "the question whether a juror has an opinion that disqualifies is a mixed one of law and fact," because the question is " `whether the nature and strength of the opinion formed are such as in law necessarily. raise the presumption of partiality.' " (quoting 3 U.S. 717, (191)). V Today's opinion for the Court is the product of a saddening confluence of three of the most disturbing trends in our constitutional jurisprudence respecting the fundamental rights of our people. The first is the Court's unseemly eagerness to *43 recognize the strength of the State's interest in efficient law enforcement and to make expedient sacrifices of the constitutional rights of the criminal defendant to such interests. United 48 U.S. 897, The second is the Court's increasing disaffection with the previously unquestioned principle, endorsed by every Member of this Court, that "because of its severity and irrevocability, the death penalty is qualitatively different from any other punishment, and hence must be accompanied by unique safeguards" 48 U. S., 8 E. g., 45 U.S. 37 ; 1-44 ; Barclay v. 43 U.S. 939 The third is the Court's increasingly expansive definition of "questions of fact" calling for application of the presumption of correctness of 28 U.S. C. 2254(d) to thwart vindication of fundamental rights in the federal courts. E. g., 44 U.S. 114 ; These trends all reflect the same desolate truth: we have lost our sense of the transcendent importance of the Bill of Rights to our society. See United ("[I]t is the very purpose of a Bill of Rights to identify values that may not be sacrificed to expediency"). We have lost too our sense of our own role as Madisonian "guardians" of these rights. See 1 Annals of Cong. 439 (1789) (remarks of James Madison). Like the death-qualified that the prosecution can now mold to its will to enhance the chances of victory, this Court increasingly acts as the adjunct of the State and its prosecutors in facilitating efficient and expedient conviction and execution irrespective of the Constitution's fundamental guarantees. One can only hope that this day too will soon pass.

Justice Roberts

concurring

Scialabba v. Cuellar De Osorio

https://www.courtlistener.com/opinion/2678135/scialabba-v-cuellar-de-osorio/

https://www.courtlistener.com/api/rest/v3/clusters/2678135/

2013-056

I agree with much of the plurality’s opinion and with its conclusion that the Board of Immigration Appeals reason- ably interpreted 8 U.S. C. §1153(h)(3). I write separately because I take a different view of what makes this provi- sion “ambiguous” under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). As the plurality reads section 1153(h)(3), the statute’s two clauses address the issue before the Court “in diver- gent ways” and “do not easily cohere with each other.” Ante, at 14. For the plurality, the first clause looks “to- ward the sweeping relief the respondents propose, which would reach every aged-out beneficiary of a family prefer- ence petition,” while the second clause offers narrower relief that can help “only a subset of those beneficiaries.” Ibid. Such “ill-fitting clauses,” the plurality says, “left the Board with a choice—essentially of how to reconcile the statute’s different commands.” Ante, at 21. To the extent the plurality’s opinion could be read to suggest that deference is warranted because of a direct conflict between these clauses, that is wrong. Courts defer to an agency’s reasonable construction of an ambiguous 2 SCIALABBA v. CUELLAR DE OSORIO ROBERTS, C. J., concurring in judgment statute because we presume that Congress intended to assign responsibility to resolve the ambiguity to the agency. Chevron, supra, at 843–844. But when Congress assigns to an agency the responsibility for deciding whether a particular group should get relief, it does not do so by simultaneously saying that the group should and that it should not. Direct conflict is not ambiguity, and the reso- lution of such a conflict is not statutory construction but legislative choice. Chevron is not a license for an agency to repair a statute that does not make sense.1 I see no conflict, or even “internal tension,” ante, at 14, in section 1153(h)(3). See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (we must “inter- pret the statute ‘as a symmetrical and coherent regulatory scheme,’ and ‘fit, if possible, all parts into a[ ] harmonious whole’ ” (citation omitted)). The statute reads: “If the age of an alien is determined under [section 1153(h)(1)] to be 21 years of age or older for the pur- poses of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the origi- nal petition.” §1153(h)(3). The first clause states a condition—one that beneficiar- ies from any preference category can meet—and thereby —————— 1 National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007), is not to the contrary. There the Court confronted two different statutes, enacted to address different problems, that pre- sented “seemingly categorical—and, at first glance, irreconcilable— legislative commands.” Id., at 661. We deferred to an agency’s reason- able interpretation, which “harmonize[d] the statutes,” in large part because of our strong presumption that one statute does not impliedly repeal another. Id., at 662–669. Home Builders did not address the consequences of a single statutory provision that appears to give divergent commands. Cite as: 573 U. S. ____ (2014) 3 ROBERTS, C. J., concurring in judgment defines the persons potentially affected by this provision. But the clause does not grant anything to anyone. I disa- gree with the plurality that the first clause “points toward broad-based relief,” ante, at 21, because I do not think the first clause points toward any relief at all.2 Imagine a provision of the Tax Code that read: “If a student is determined to be enrolled at an accredited university, the student’s cost of off-campus housing shall be deductible on her tax return.” It would be immediately apparent from that provision that an enrolled student who lives on campus is not entitled to the deduction, even though the student falls within the conditional first clause. And yet no one would describe the two clauses as being in tension. If the Internal Revenue Service then interpreted the term “cost of off-campus housing” to ex- clude payments by a student who rents a home from his parents, a court would determine whether that interpreta- tion was reasonable. The same is true in this case.3 The particular benefit provided by section 1153(h)(3) is found exclusively in the second clause—the only operative —————— 2 For the same reason, I do not agree with the contention in JUSTICE SOTOMAYOR’s dissent that the first clause of section 1153(h)(3) unam- biguously “answers the precise question in this case.” Post, at 6. 3 JUSTICE SOTOMAYOR’s dissent accuses me of “ignor[ing]” the first clause of section 1153(h)(3), “treating [that] clause as a nullity,” and denying the clause “effect.” Post, at 20–21. But that point is correct only if the reader adopts JUSTICE SOTOMAYOR’s own premise, that the first clause has operative effect on its own. I give the statute’s first clause precisely the (limited) effect it is meant to have: it defines who is potentially affected by section 1153(h)(3). JUSTICE SOTOMAYOR’s re- sponse to the campus housing example proves my point by acknowledg- ing that who gets relief under a statute depends entirely on the mean- ing of the statute’s operative provision, not on the reach of the introductory clause. See post, at 21. The Court would not reject a reasonable interpretation of the term “cost of off-campus housing,” as JUSTICE SOTOMAYOR’s dissent would, simply because the IRS could have interpreted the term to cover more students who fall within the prefa- tory clause. 4 SCIALABBA v. CUELLAR DE OSORIO ROBERTS, C. J., concurring in judgment provision. There we are told what an aged-out beneficiary (from whatever preference category) is entitled to: His petition “shall automatically be converted to the appropri- ate category and the alien shall retain the original priority date.” §1153(h)(3). But automatic conversion is not possi- ble for every beneficiary in every preference category, as the plurality convincingly demonstrates. Ante, at 15–19. Automatic conversion requires, at minimum, that the beneficiary have his own sponsor, who demonstrates that he is eligible to act as a sponsor, and who commits to providing financial support for the beneficiary. Ante, at 18. Some aged-out children will not meet those prerequi- sites, and they cannot benefit from automatic conversion even under respondents’ interpretation of the statute.4 Beyond those requirements, however, Congress did not speak clearly to which petitions can “automatically be converted.” §1153(h)(3). Whatever other interpretations of that provision might be possible, it was reasonable, for the reasons explained by the plurality, for the Board to interpret section 1153(h)(3) to provide relief only to a child who was a principal or derivative beneficiary of an F2A petition. That interpretation is consistent with the ordi- nary meaning of the statutory terms, with the established meaning of automatic conversion in immigration law, and with the structure of the family-based immigration sys- tem. Ante, at 15–20. It also avoids the problems that would flow from respondents’ proposed alternative inter- pretations, including the suggestion that retention of the original priority date provides a benefit wholly separate from automatic conversion. Ante, at 18–19, 22–32. I concur in the judgment. —————— 4 JUSTICE SOTOMAYOR’s dissent is wrong that “the relief promised in §1153(h)(3) (priority date retention and automatic conversion) can be given” to every aged-out child in every preference category, post, at 21, and it therefore follows that the statute is ambiguous. Cite as: 573 U. S. ____ (2014) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 12–930 _________________ LORI SCIALABBA, ACTING DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, ET AL., PETITIONERS v. ROSA- LINA CUELLAR DE OSORIO ET AL.

I agree with much of the plurality’s opinion and with its conclusion that the Board of Immigration Appeals reason- ably interpreted 8 U.S. C. I write separately because I take a different view of what makes this provi- sion “ambiguous” under U. S. A. As the plurality reads section 1153(h)(3), the statute’s two clauses address the issue before the Court “in diver- gent ways” and “do not easily cohere with each other.” Ante, at 14. For the plurality, the first clause looks “to- ward the sweeping relief the respondents propose, which would reach every aged-out beneficiary of a family prefer- ence petition,” while the second clause offers narrower relief that can help “only a subset of those beneficiaries.” Such “ill-fitting clauses,” the plurality says, “left the Board with a choice—essentially of how to reconcile the statute’s different commands.” Ante, at 21. To the extent the plurality’s opinion could be read to suggest that deference is warranted because of a direct conflict between these clauses, that is wrong. Courts defer to an agency’s reasonable construction of an ambiguous 2 SCIALABBA v. CUELLAR DE OSORIO ROBERTS, C. J., concurring in judgment statute because we presume that Congress intended to assign responsibility to resolve the ambiguity to the agency. at –844. But when Congress assigns to an agency the responsibility for deciding whether a particular group should get relief, it does not do so by simultaneously saying that the group should and that it should not. Direct conflict is not ambiguity, and the reso- lution of such a conflict is not statutory construction but legislative choice. is not a license for an agency to repair a statute that does not make sense.1 I see no conflict, or even “internal tension,” ante, at 14, in section 1153(h)(3). See (we must “inter- pret the statute ‘as a symmetrical and coherent regulatory scheme,’ and ‘fit, if possible, all parts into a[ ] harmonious whole’ ” (citation omitted)). The statute reads: “If the age of an alien is determined under [section 1153(h)(1)] to be 21 years of age or older for the pur- poses of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the origi- nal petition.” The first clause states a condition—one that beneficiar- ies from any preference category can meet—and thereby —————— 1 National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007), is not to the contrary. There the Court confronted two different statutes, enacted to address different problems, that pre- sented “seemingly categorical—and, at first glance, irreconcilable— legislative commands.” We deferred to an agency’s reason- able interpretation, which “harmonize[d] the statutes,” in large part because of our strong presumption that one statute does not impliedly repeal another. at 662–669. Home Builders did not address the consequences of a single statutory provision that appears to give divergent commands. Cite as: 573 U. S. (2014) 3 ROBERTS, C. J., concurring in judgment defines the persons potentially affected by this provision. But the clause does not grant anything to anyone. I disa- gree with the plurality that the first clause “points toward broad-based relief,” ante, at 21, because I do not think the first clause points toward any relief at all.2 Imagine a provision of the Tax Code that read: “If a student is determined to be enrolled at an accredited university, the student’s cost of off-campus housing shall be deductible on her tax return.” It would be immediately apparent from that provision that an enrolled student who lives on campus is not entitled to the deduction, even though the student falls within the conditional first clause. And yet no one would describe the two clauses as being in tension. If the Internal Revenue Service then interpreted the term “cost of off-campus housing” to ex- clude payments by a student who rents a home from his parents, a court would determine whether that interpreta- tion was reasonable. The same is true in this case.3 The particular benefit provided by section 1153(h)(3) is found exclusively in the second clause—the only operative —————— 2 For the same reason, I do not agree with the contention in JUSTICE SOTOMAYOR’s dissent that the first clause of section 1153(h)(3) unam- biguously “answers the precise question in this case.” Post, at 6. 3 JUSTICE SOTOMAYOR’s dissent accuses me of “ignor[ing]” the first clause of section 1153(h)(3), “treating [that] clause as a nullity,” and denying the clause “effect.” Post, at 20–21. But that point is correct only if the reader adopts JUSTICE SOTOMAYOR’s own premise, that the first clause has operative effect on its own. I give the statute’s first clause precisely the (limited) effect it is meant to have: it defines who is potentially affected by section 1153(h)(3). JUSTICE SOTOMAYOR’s re- sponse to the campus housing example proves my point by acknowledg- ing that who gets relief under a statute depends entirely on the mean- ing of the statute’s operative provision, not on the reach of the introductory clause. See post, at 21. The Court would not reject a reasonable interpretation of the term “cost of off-campus housing,” as JUSTICE SOTOMAYOR’s dissent would, simply because the IRS could have interpreted the term to cover more students who fall within the prefa- tory clause. 4 SCIALABBA v. CUELLAR DE OSORIO ROBERTS, C. J., concurring in judgment provision. There we are told what an aged-out beneficiary (from whatever preference category) is entitled to: His petition “shall automatically be converted to the appropri- ate category and the alien shall retain the original priority date.” But automatic conversion is not possi- ble for every beneficiary in every preference category, as the plurality convincingly demonstrates. Ante, at 15–19. Automatic conversion requires, at minimum, that the beneficiary have his own sponsor, who demonstrates that he is eligible to act as a sponsor, and who commits to providing financial support for the beneficiary. Ante, at 18. Some aged-out children will not meet those prerequi- sites, and they cannot benefit from automatic conversion even under respondents’ interpretation of the statute.4 Beyond those requirements, however, Congress did not speak clearly to which petitions can “automatically be converted.” Whatever other interpretations of that provision might be possible, it was reasonable, for the reasons explained by the plurality, for the Board to interpret section 1153(h)(3) to provide relief only to a child who was a principal or derivative beneficiary of an F2A petition. That interpretation is consistent with the ordi- nary meaning of the statutory terms, with the established meaning of automatic conversion in immigration law, and with the structure of the family-based immigration sys- tem. Ante, at 15–20. It also avoids the problems that would flow from respondents’ proposed alternative inter- pretations, including the suggestion that retention of the original priority date provides a benefit wholly separate from automatic conversion. Ante, at 18–19, 22–32. I concur in the judgment. —————— 4 JUSTICE SOTOMAYOR’s dissent is wrong that “the relief promised in (priority date retention and automatic conversion) can be given” to every aged-out child in every preference category, post, at 21, and it therefore follows that the statute is ambiguous. Cite as: 573 U. S. (2014) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 12–930 LORI SCIALABBA, ACTING DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, ET AL., PETITIONERS v. ROSA- LINA CUELLAR DE OSORIO ET AL.

Justice Souter

majority

Lopez v. Gonzales

https://www.courtlistener.com/opinion/145772/lopez-v-gonzales/

https://www.courtlistener.com/api/rest/v3/clusters/145772/

2006-003

The question raised is whether conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a "felony punishable under the Controlled Substances Act." 18 U.S.C. § 924(c)(2). We hold it is not. I A The Immigration and Nationality Act (INA) defines the term "aggravated felony" *628 by a list that mentions "illicit trafficking in a controlled substance ... including a drug trafficking crime (as defined in section 924(c) of title 18)." § 101(a)(43)(B), as added by § 7342, 102 Stat. 4469, and as amended by § 222(a), 108 Stat. 4320, 8 U.S.C. § 1101(a)(43)(B). The general phrase "illicit trafficking" is left undefined, but § 924(c)(2) of Title 18 identifies the subcategory by defining "drug trafficking crime" as "any felony punishable under the Controlled Substances Act" or under either of two other federal statutes having no bearing on this case. Following the listing, § 101(a)(43) of the INA provides in its penultimate sentence that "[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law" or, in certain circumstances, "the law of a foreign country." 8 U.S.C. § 1101(a)(43). An aggravated felony on a criminal record has worse collateral effects than a felony conviction simple. Under the immigration statutes, for example, the Attorney General's discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony. § 1229b(a)(3). Nor is an aggravated felon eligible for asylum. §§ 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i). And under the sentencing law, the Federal Guidelines attach special significance to the "aggravated felony" designation: a conviction of unlawfully entering or remaining in the United States receives an eight-level increase for a prior aggravated felony conviction, but only four levels for "any other felony." United States Sentencing Commission, Guidelines Manual § 2L1.2 (Nov.2005) (hereinafter USSG); id., comment., n. 3 (adopting INA definition of aggravated felony). B Although petitioner Jose Antonio Lopez entered the United States illegally in 1986, in 1990 he became a legal permanent resident. In 1997, he was arrested on state charges in South Dakota, pleaded guilty to aiding and abetting another person's possession of cocaine, and was sentenced to five years' imprisonment. See S.D. Codified Laws § 22-2-5 (1988); § 22-6-1 (Supp.1997); § 22-3-3 (1988). He was released for good conduct after 15 months. After his release, the Immigration and Naturalization Service (INS)[1] began removal proceedings against Lopez, on two grounds: that his state conviction was a controlled substance violation, see 8 U.S.C. § 1227(a)(2)(B)(i), and was also for an aggravated felony, see § 1227(a)(2)(A)(iii). Lopez conceded the controlled substance violation but contested the aggravated felony determination, which would disqualify him from discretionary cancellation of removal. See § 1229b(a)(3). At first, the Immigration Judge agreed with Lopez that his state offense was not an aggravated felony because the conduct it proscribed was no felony under the Controlled Substances Act (CSA). But after the Board of Immigration Appeals (BIA) switched its position on the issue, the same judge ruled that Lopez's drug crime was an aggravated felony after all, owing to its being a felony under state law. See Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 2002 WL 993589 (2002) (announcing that BIA decisions would conform to the applicable Circuit law); United States v. Briones-Mata, 116 F.3d 308 (C.A.8 1997) (per curiam) (holding state felony possession offenses are aggravated felonies). That left Lopez ineligible for cancellation of removal, and the judge ordered him *629 removed. The BIA affirmed, and the Court of Appeals affirmed the BIA, 417 F.3d 934 (C.A.8 2005).[2] We granted certiorari to resolve a conflict in the Circuits about the proper understanding of conduct treated as a felony by the State that convicted a defendant of committing it, but as a misdemeanor under the CSA.[3] 547 U.S. 1054, 126 S. Ct. 1651, 164 L. Ed. 2d 395 (2006). We now reverse. II The INA makes Lopez guilty of an aggravated felony if he has been convicted of "illicit trafficking in a controlled substance ... including," but not limited to, "a drug trafficking crime (as defined in section 924(c) of title 18)." 8 U.S.C. § 1101(a)(43)(B). Lopez's state conviction was for helping someone else possess cocaine in South Dakota, which state law treated as the equivalent of possessing the drug, S.D. Codified Laws § 22-3-3, a state felony, § 22-42-5. Mere possession is not, however, a felony under the federal CSA, see 21 U.S.C. § 844(a), although possessing more than what one person would have for himself will support conviction for the federal felony of possession with intent to distribute, see § 841 (2000 ed. and Supp. III); United States v. Kates, 174 F.3d 580, 582 (C.A.5 1999) (per curiam) ("Intent to distribute may be inferred from the possession of a quantity of drugs too large to be used by the defendant alone"). Despite this federal misdemeanor treatment, the Government argues that possession's felonious character as a state crime can turn it into an aggravated felony under the INA. There, it says, illicit trafficking includes a drug trafficking crime as defined in federal Title 18. Title 18 defines "drug trafficking crime" as "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)," § 924(c)(2), and the CSA punishes possession, albeit as a misdemeanor, see 21 U.S.C. § 844(a). That is enough, says the Government, because § 924(c)(2) requires only that the offense be punishable, not that it be punishable as a federal felony. Hence, a prior conviction in state court will satisfy the felony element because the State treats possession that way. There are a few things wrong with this argument, the first being its incoherence with any commonsense conception of "illicit trafficking," the term ultimately being *630 defined. The everyday understanding of "trafficking" should count for a lot here, for the statutes in play do not define the term, and so remit us to regular usage to see what Congress probably meant. FDIC v. Meyer, 510 U.S. 471, 476, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994). And ordinarily "trafficking" means some sort of commercial dealing. See Black's Law Dictionary 1534 (8th ed.2004) (defining to "traffic" as to "trade or deal in (goods, esp. illicit drugs or other contraband)"); see also Urena-Ramirez v. Ashcroft, 341 F.3d 51, 57 (C.A.1 2003) (similar definition); State v. Ezell, 321 S.C. 421, 425, 468 S.E.2d 679, 681 (App.1996) (same). Commerce, however, was no part of Lopez's South Dakota offense of helping someone else to possess, and certainly it is no element of simple possession, with which the State equates that crime. Nor is the anomaly of the Government's reading limited to South Dakota cases: while federal law typically treats trafficking offenses as felonies and nontrafficking offenses as misdemeanors, several States deviate significantly from this pattern.[4] Reading § 924(c) the Government's way, then, would often turn simple possession into trafficking, just what the English language tells us not to expect, and that result makes us very wary of the Government's position. Cf. Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S. Ct. 377, 160 L. Ed. 2d 271 (2004) ("[W]e cannot forget that we ultimately are determining the meaning of the term `crime of violence'"). Which is not to deny that the Government might still be right; Humpty Dumpty used a word to mean "`just what [he chose] it to mean—neither more nor less,'"[5] and legislatures, too, are free to be unorthodox. Congress can define an aggravated felony of illicit trafficking in an unexpected way. But Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.[6] First, an offense that necessarily counts as "illicit trafficking" under the INA is a "drug trafficking crime" under § 924(c), that is, a "felony punishable under the [CSA]," § 924(c)(2). And if we want to know what felonies might qualify, the place to go is to the definitions of crimes punishable as felonies under the CSA; where else would one naturally look? Although the Government would have us look to *631 state law, we suspect that if Congress had meant us to do that it would have found a much less misleading way to make its point. Indeed, other parts of § 924 expressly refer to guilt under state law, see §§ 924(g)(3), (k)(2), and the implication confirms that the reference solely to a "felony punishable under the [CSA]" in § 924(c)(2) is to a crime punishable as a felony under the federal Act. See Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (alteration in original; internal quotation marks omitted)). Unless a state offense is punishable as a federal felony it does not count. The Government stresses that the text does not read "punishable as a felony," and that by saying simply "punishable" Congress left the door open to counting state felonies, so long as they would be punishable at all under the CSA. But we do not normally speak or write the Government's way. We do not use a phrase like "felony punishable under the [CSA]" when we mean to signal or allow a break between the noun "felony" and the contiguous modifier "punishable under the [CSA]," let alone a break that would let us read the phrase as if it said "felony punishable under the CSA whether or not as a felony." Regular usage points in the other direction, and when we read "felony punishable under the ... Act," we instinctively understand "felony punishable as such under the Act" or "felony as defined by the Act."[7] Without some further explanation, using the phrase to cover even a misdemeanor punishable under the Act would be so much trickery, violating "the cardinal rule that statutory language must be read in context." General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 596, 124 S. Ct. 1236, 157 L. Ed. 2d 1094 (2004) (internal quotation marks and brackets omitted). That is why our interpretive regime reads whole sections of a statute together to fix on the meaning of any one of them, and the last thing this approach would do is divorce a noun from the modifier next to it without some extraordinary reason. The Government thinks it has a good enough reason for doing just that, in the INA provision already mentioned, that the term "aggravated felony" "applies to an offense described in this paragraph whether in violation of Federal or State law." 8 U.S.C. § 1101(a)(43). But before this provision is given the Government's expansive treatment, it makes sense to ask whether it would have some use short of wrenching the expectations raised by normal English usage, and in fact it has two perfectly straightforward jobs to do: it provides that a generic description of "an offense... in this paragraph," one not specifically couched as a state offense or a federal one, covers either one, and it confirms that a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony. Thus, if Lopez's state crime actually fell within the *632 general term "illicit trafficking," the state felony conviction would count as an "aggravated felony," regardless of the existence of a federal felony counterpart; and a state offense of possessing more than five grams of cocaine base is an aggravated felony because it is a felony under the CSA, 21 U.S.C. § 844(a).[8] The Government's reliance on the penultimate sentence of 8 U.S.C. § 1101(a)(43) is misplaced for a second reason. The Government tries to justify its unusual reading of a defined term in the criminal code on the basis of a single sentence in the INA. But nothing in the penultimate sentence of § 1101(a)(43) suggests that Congress changed the meaning of "felony punishable under the [CSA]" when it took that phrase from Title 18 and incorporated it into Title 8's definition of "aggravated felony." Yet the Government admits it has never begun a prosecution under 18 U.S.C. § 924(c)(1)(A) where the underlying "drug trafficking crime" was a state felony but a federal misdemeanor. See Tr. of Oral Arg. 33-36. This is telling: the failure of even a single eager Assistant United States Attorney to act on the Government's interpretation of "felony punishable under the [CSA]" in the very context in which that phrase appears in the United States Code belies the Government's claim that its interpretation is the more natural one.[9] Finally, the Government's reading would render the law of alien removal, see 8 U.S.C. § 1229b(a)(3), and the law of sentencing for illegal entry into the country, see USSG § 2L1.2, dependent on varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose. It may not be all that remarkable that federal consequences of state crimes will vary according to state severity classification when Congress describes an aggravated felony in generic terms, without express reference to the definition of a crime in a federal statute (as in the case of "illicit trafficking in a controlled substance"). But it would have been passing strange for Congress to intend any such result when a state criminal classification is at odds with a federal provision that the INA expressly provides as a specific example of an "aggravated felony" (like the § 924(c)(2) definition of "drug trafficking crime"). We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies *633 and misdemeanors if it meant courts to ignore it whenever a State chose to punish a given act more heavily. Two examples show the untoward consequences of the Government's approach. Consider simple possession of marijuana. Not only is it a misdemeanor under the CSA, see 21 U.S.C. § 844(a), but the INA expressly excludes "a single offense involving possession for one's own use of 30 grams or less" from the controlled substance violations that are grounds for deportation, 8 U.S.C. § 1227(a)(2)(B)(i). Yet by the Government's lights, if a State makes it a felony to possess a gram of marijuana the congressional judgment is supplanted, and a state convict is subject to mandatory deportation because the alien is ineligible for cancellation of removal. See § 1229b(a)(3).[10] There is no hint in the statute's text that Congress was courting any such state-by-state disparity. The situation in reverse flouts probability just as much. Possessing more than five grams of cocaine base is a felony under federal law. See 21 U.S.C. § 844(a). If a State drew the misdemeanor-felony line at six grams plus, a person convicted in state court of possessing six grams would not be guilty of an aggravated felony on the Government's reading, which makes the law of the convicting jurisdiction dispositive. See Brief for Respondent 48. Again, it is just not plausible that Congress meant to authorize a State to overrule its judgment about the consequences of federal offenses to which its immigration law expressly refers. True, the argument is not all one-sided. The Government points out that some States graduate offenses of drug possession from misdemeanor to felony depending on quantity, whereas Congress generally treats possession alone as a misdemeanor whatever the amount (but leaves it open to charge the felony of possession with intent to distribute when the amount is large). Thus, an alien convicted by a State of possessing large quantities of drugs would escape the aggravated felony designation simply for want of a federal felony defined as possessing a substantial amount. This is so, but we do not weigh it as heavily as the anomalies just mentioned on the other side. After all, Congress knows that any resort to state law will implicate some disuniformity in state misdemeanor-felony classifications, but that is no reason to think Congress meant to allow the States to supplant its own classifications when it specifically constructed its immigration law to turn on them. In sum, we hold that 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. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

The question raised is whether conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a "felony punishable under the Controlled Substances Act." (c)(2). We hold it is not. I A The Immigration and Nationality Act (INA) defines the term "aggravated felony" *628 by a list that mentions "illicit trafficking in a controlled substance including a drug trafficking crime (as defined in section 924(c) of title 18)." 101(a)(43)(B), as added by 7342, and as amended by 222(a), 8 U.S.C. 01(a)(43)(B). The general phrase "illicit trafficking" is left undefined, but 924(c)(2) of Title 18 identifies the subcategory by defining "drug trafficking crime" as "any felony punishable under the Controlled Substances Act" or under either of two other federal statutes having no bearing on this case. Following the listing, 101(a)(43) of the INA provides in its penultimate sentence that "[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law" or, in certain circumstances, "the law of a foreign country." 8 U.S.C. 01(a)(43). An aggravated felony on a criminal record has worse collateral effects than a felony conviction simple. Under the immigration statutes, for example, the Attorney General's discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony. 1229b(a)(3). Nor is an aggravated felon eligible for asylum. 58(b)(2)(A)(ii), 58(b)(2)(B)(i). And under the sentencing law, the Federal Guidelines attach special significance to the "aggravated felony" designation: a conviction of unlawfully entering or remaining in the United States receives an eight-level increase for a prior aggravated felony conviction, but only four levels for "any other felony." United States Sentencing Commission, Guidelines Manual 2L1.2 (hereinafter USSG); comment., n. 3 (adopting INA definition of aggravated felony). B Although petitioner Jose Antonio Lopez entered the United States illegally in 1986, in 1990 he became a legal permanent resident. In he was arrested on state charges in South Dakota, pleaded guilty to aiding and abetting another person's possession of cocaine, and was sentenced to five years' imprisonment. See S.D. Codified Laws 22-2-5 (1988); 22-6-1 ; 22-3-3 (1988). He was released for good conduct after 15 months. After his release, the Immigration and Naturalization Service (INS)[1] began removal proceedings against Lopez, on two grounds: that his state conviction was a controlled substance violation, see 8 U.S.C. 1227(a)(2)(B)(i), and was also for an aggravated felony, see 1227(a)(2)(A)(iii). Lopez conceded the controlled substance violation but contested the aggravated felony determination, which would disqualify him from discretionary cancellation of removal. See 1229b(a)(3). At first, the Immigration Judge agreed with Lopez that his state offense was not an aggravated felony because the conduct it proscribed was no felony under the Controlled Substances Act (CSA). But after the Board of Immigration Appeals (BIA) switched its position on the issue, the same judge ruled that Lopez's drug crime was an aggravated felony after all, owing to its being a felony under state law. See Matter of Yanez-Garcia, WL 993589 ; United (holding state felony possession offenses are aggravated felonies). That left Lopez ineligible for cancellation of removal, and the judge ordered him *629 removed. The BIA affirmed, and the Court of Appeals affirmed the BIA,[2] We granted certiorari to resolve a conflict in the Circuits about the proper understanding of conduct treated as a felony by the State that convicted a defendant of committing it, but as a misdemeanor under the CSA.[3] We now reverse. II The INA makes Lopez guilty of an aggravated felony if he has been convicted of "illicit trafficking in a controlled substance including," but not limited to, "a drug trafficking crime (as defined in section 924(c) of title 18)." 8 U.S.C. 01(a)(43)(B). Lopez's state conviction was for helping someone else possess cocaine in South Dakota, which state law treated as the equivalent of possessing the drug, S.D. Codified Laws 22-3-3, a state felony, 22-42-5. Mere possession is not, however, a felony under the federal CSA, see 21 U.S.C. 844(a), although possessing more than what one person would have for himself will support conviction for the federal felony of possession with intent to distribute, see 841 (2000 ed. and Supp. III); United ("Intent to distribute may be inferred from the possession of a quantity of drugs too large to be used by the defendant alone"). Despite this federal misdemeanor treatment, the Government argues that possession's felonious character as a state crime can turn it into an aggravated felony under the INA. There, it says, illicit trafficking includes a drug trafficking crime as defined in federal Title 18. Title 18 defines "drug trafficking crime" as "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)," 924(c)(2), and the CSA punishes possession, albeit as a misdemeanor, see 21 U.S.C. 844(a). That is enough, says the Government, because 924(c)(2) requires only that the offense be punishable, not that it be punishable as a federal felony. Hence, a prior conviction in state court will satisfy the felony element because the State treats possession that way. There are a few things wrong with this argument, the first being its incoherence with any commonsense conception of "illicit trafficking," the term ultimately being *630 defined. The everyday understanding of "trafficking" should count for a lot here, for the statutes in play do not define the term, and so remit us to regular usage to see what Congress probably meant. And ordinarily "trafficking" means some sort of commercial dealing. See Black's Law Dictionary 1534 (defining to "traffic" as to "trade or deal in (goods, esp. illicit drugs or other contraband)"); see also ; (App.1996) (same). Commerce, however, was no part of Lopez's South Dakota offense of helping someone else to possess, and certainly it is no element of simple possession, with which the State equates that crime. Nor is the anomaly of the Government's reading limited to South Dakota cases: while federal law typically treats trafficking offenses as felonies and nontrafficking offenses as misdemeanors, several States deviate significantly from this pattern.[4] Reading 924(c) the Government's way, then, would often turn simple possession into trafficking, just what the English language tells us not to expect, and that result makes us very wary of the Government's position. Cf. Which is not to deny that the Government might still be right; Humpty Dumpty used a word to mean "`just what [he chose] it to mean—neither more nor less,'"[5] and legislatures, too, are free to be unorthodox. Congress can define an aggravated felony of illicit trafficking in an unexpected way. But Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.[6] First, an offense that necessarily counts as "illicit trafficking" under the INA is a "drug trafficking crime" under 924(c), that is, a "felony punishable under the [CSA]," 924(c)(2). And if we want to know what felonies might qualify, the place to go is to the definitions of crimes punishable as felonies under the CSA; where else would one naturally look? Although the Government would have us look to *631 state law, we suspect that if Congress had meant us to do that it would have found a much less misleading way to make its point. Indeed, other parts of 924 expressly refer to guilt under state law, see 924(g)(3), (k)(2), and the implication confirms that the reference solely to a "felony punishable under the [CSA]" in 924(c)(2) is to a crime punishable as a felony under the federal Act. See ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (alteration in original; internal quotation marks omitted)). Unless a state offense is punishable as a federal felony it does not count. The Government stresses that the text does not read "punishable as a felony," and that by saying simply "punishable" Congress left the door open to counting state felonies, so long as they would be punishable at all under the CSA. But we do not normally speak or write the Government's way. We do not use a phrase like "felony punishable under the [CSA]" when we mean to signal or allow a break between the noun "felony" and the contiguous modifier "punishable under the [CSA]," let alone a break that would let us read the phrase as if it said "felony punishable under the CSA whether or not as a felony." Regular usage points in the other direction, and when we read "felony punishable under the Act," we instinctively understand "felony punishable as such under the Act" or "felony as defined by the Act."[7] Without some further explanation, using the phrase to cover even a misdemeanor punishable under the Act would be so much trickery, violating "the cardinal rule that statutory language must be read in context." General Dynamics Land Systems, 124 S. Ct. 16, 1 L. Ed. 2d 1094 That is why our interpretive regime reads whole sections of a statute together to fix on the meaning of any one of them, and the last thing this approach would do is divorce a noun from the modifier next to it without some extraordinary reason. The Government thinks it has a good enough reason for doing just that, in the INA provision already mentioned, that the term "aggravated felony" "applies to an offense described in this paragraph whether in violation of Federal or State law." 8 U.S.C. 01(a)(43). But before this provision is given the Government's expansive treatment, it makes sense to ask whether it would have some use short of wrenching the expectations raised by normal English usage, and in fact it has two perfectly straightforward jobs to do: it provides that a generic description of "an offense. in this paragraph," one not specifically couched as a state offense or a federal one, covers either one, and it confirms that a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony. Thus, if Lopez's state crime actually fell within the *632 general term "illicit trafficking," the state felony conviction would count as an "aggravated felony," regardless of the existence of a federal felony counterpart; and a state offense of possessing more than five grams of cocaine base is an aggravated felony because it is a felony under the CSA, 21 U.S.C. 844(a).[8] The Government's reliance on the penultimate sentence of 8 U.S.C. 01(a)(43) is misplaced for a second reason. The Government tries to justify its unusual reading of a defined term in the criminal code on the basis of a single sentence in the INA. But nothing in the penultimate sentence of 01(a)(43) suggests that Congress changed the meaning of "felony punishable under the [CSA]" when it took that phrase from Title 18 and incorporated it into Title 8's definition of "aggravated felony." Yet the Government admits it has never begun a prosecution under (c)(1)(A) where the underlying "drug trafficking crime" was a state felony but a federal misdemeanor. See Tr. of Oral Arg. 33-36. This is telling: the failure of even a single eager Assistant United States Attorney to act on the Government's interpretation of "felony punishable under the [CSA]" in the very context in which that phrase appears in the United States Code belies the Government's claim that its interpretation is the more natural one.[9] Finally, the Government's reading would render the law of alien removal, see 8 U.S.C. 1229b(a)(3), and the law of sentencing for illegal entry into the country, see USSG 2L1.2, dependent on varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose. It may not be all that remarkable that federal consequences of state crimes will vary according to state severity classification when Congress describes an aggravated felony in generic terms, without express reference to the definition of a crime in a federal statute (as in the case of "illicit trafficking in a controlled substance"). But it would have been passing strange for Congress to intend any such result when a state criminal classification is at odds with a federal provision that the INA expressly provides as a specific example of an "aggravated felony" (like the 924(c)(2) definition of "drug trafficking crime"). We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies *633 and misdemeanors if it meant courts to ignore it whenever a State chose to punish a given act more heavily. Two examples show the untoward consequences of the Government's approach. Consider simple possession of marijuana. Not only is it a misdemeanor under the CSA, see 21 U.S.C. 844(a), but the INA expressly excludes "a single offense involving possession for one's own use of 30 grams or less" from the controlled substance violations that are grounds for deportation, 8 U.S.C. 1227(a)(2)(B)(i). Yet by the Government's lights, if a State makes it a felony to possess a gram of marijuana the congressional judgment is supplanted, and a state convict is subject to mandatory deportation because the alien is ineligible for cancellation of removal. See 1229b(a)(3).[10] There is no hint in the statute's text that Congress was courting any such state-by-state disparity. The situation in reverse flouts probability just as much. Possessing more than five grams of cocaine base is a felony under federal law. See 21 U.S.C. 844(a). If a State drew the misdemeanor-felony line at six grams plus, a person convicted in state court of possessing six grams would not be guilty of an aggravated felony on the Government's reading, which makes the law of the convicting jurisdiction dispositive. See Brief for Respondent 48. Again, it is just not plausible that Congress meant to authorize a State to overrule its judgment about the consequences of federal offenses to which its immigration law expressly refers. True, the argument is not all one-sided. The Government points out that some States graduate offenses of drug possession from misdemeanor to felony depending on quantity, whereas Congress generally treats possession alone as a misdemeanor whatever the amount (but leaves it open to charge the felony of possession with intent to distribute when the amount is large). Thus, an alien convicted by a State of possessing large quantities of drugs would escape the aggravated felony designation simply for want of a federal felony defined as possessing a substantial amount. This is so, but we do not weigh it as heavily as the anomalies just mentioned on the other side. After all, Congress knows that any resort to state law will implicate some disuniformity in state misdemeanor-felony classifications, but that is no reason to think Congress meant to allow the States to supplant its own classifications when it specifically constructed its immigration law to turn on them. In sum, we hold that 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. 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 Stevens

dissenting

Boyle v. United States

https://www.courtlistener.com/opinion/145864/boyle-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/145864/

2008-067

In my view, Congress intended the term “enterprise” as it is used in the Racketeer Influenced and Corrupt Or ganizations Act (RICO), 18 U.S. C. §1961 et seq., to refer only to business-like entities that have an existence apart from the predicate acts committed by their employees or associates. The trial judge in this case committed two significant errors relating to the meaning of that term. First, he instructed the jury that “an association of indi viduals, without structural hierarchy, form[ed] solely for the purpose of carrying out a pattern of racketeering acts” can constitute an enterprise. App. 112. And he allowed the jury to find that element satisfied by evidence showing a group of criminals with no existence beyond its intermit tent commission of racketeering acts and related offenses. Because the Court’s decision affirming petitioner’s convic tion is inconsistent with the statutory meaning of the term enterprise and serves to expand RICO liability far beyond the bounds Congress intended, I respectfully dissent. I RICO makes it “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct 2 BOYLE v. UNITED STATES STEVENS, J., dissenting or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” §1962(c). The statute defines “enterprise” to include “any individual, partnership, corporation, associa tion, or other legal entity, and any union or group of indi viduals associated in fact although not a legal entity.” §1961(4). It is clear from the statute and our earlier decisions construing the term that Congress used “enterprise” in these provisions in the sense of “a business organization,” Webster’s Third New International Dictionary 757 (1976), rather than “a ‘venture,’ ‘undertaking,’ or ‘project,’ ” ante, at 6 (quoting Webster’s Third New International Diction ary, at 757). First, the terms “individual, partnership, corporation, association, or other legal entity” describe entities with formal legal structures most commonly es tablished for business purposes. §1961(4). In context, the subsequent reference to any “union or group of individuals associated in fact although not a legal entity” reflects an intended commonality between the legal and nonlegal entities included in the provision. Ibid. (emphasis added). “The juxtaposition of the two phrases suggests that ‘asso ciated in fact’ just means structured without the aid of legally defined structural forms such as the business corporation.” Limestone Development Corp. v. Lemont, 520 F.3d 797, 804–805 (CA7 2008).1 —————— 1 To be sure, we have read RICO’s enterprise term broadly to include entities with exclusively noneconomic motives or wholly unlawful purposes. See National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 252 (1994) (NOW); United States v. Turkette, 452 U.S. 576, 580–581 (1981). But those holdings are consistent with the conclusion that an enterprise is a business-like entity. Indeed, the examples of qualifying associations cited in Turkette—including loan-sharking, property-fencing, drug-trafficking, and counterfeiting operations— satisfy that criterion, as each describes an organization with continuing operations directed toward providing goods or services to its customers. See id., at 589–590 (citing 84 Stat. 923; 116 Cong. Rec. 592 (1970)). Cite as: 556 U. S. ____ (2009) 3 STEVENS, J., dissenting That an enterprise must have business-like characteris tics is confirmed by the text of §1962(c) and our decision in Reves v. Ernst & Young, 507 U.S. 170 (1993). Section 1962(c) creates liability for “conduct[ing] or participat[ing] . . . in the conduct of [an] enterprise’s affairs through a pattern of racketeering activity.” In Reves, we examined that provision’s meaning and held that, “[i]n order to ‘participate, directly or indirectly, in the conduct of such enterprise’s affairs,’ one must have some part in directing those affairs.” Id., at 179 (quoting §1962(c)). It is not enough for a defendant to “carry on” or “participate in” an enterprise’s affairs through a pattern of racketeering activity; instead, evidence that he operated, managed, or directed those affairs is required. See id., at 177–179. This requirement confirms that the enterprise element demands evidence of a certain quantum of business-like organization—i.e., a system of processes, dealings, or other affairs that can be “directed.” Our cases also make clear that an enterprise “is an entity separate and apart from the pattern of activity in which it engages.” United States v. Turkette, 452 U.S. 576, 583 (1981). As with the requirement that an enter prise have business-like characteristics, that an enterprise must have a separate existence is confirmed by §1962(c) and Reves. If an entity’s existence consisted solely of its members’ performance of a pattern of racketeering acts, the “enterprise’s affairs” would be synonymous with the “pattern of racketeering activity.” Section 1962(c) would then prohibit an individual from conducting or participat ing in “the conduct of [a pattern of racketeering activity] through a pattern of racketeering activity”—a reading —————— Similarly, the enterprise at issue in NOW was a nationwide network of antiabortion groups that had a leadership counsel and regular confer ences and whose members undertook an extensive pattern of extortion, arson, and other racketeering activity for the purpose of “shut[ting] down abortion clinics.” 510 U. S., at 253. 4 BOYLE v. UNITED STATES STEVENS, J., dissenting that is unbearably redundant, particularly in a case like this one in which a single pattern of activity is alleged. The only way to avoid that result is to require that an “enterprise’s affairs” be something other than the pattern of racketeering activity undertaken by its members.2 Recognizing an enterprise’s business-like nature and its distinctness from the pattern of predicate acts, however, does not answer the question of what proof each element requires. In cases involving a legal entity, the matter of proving the enterprise element is straightforward, as the entity’s legal existence will always be something apart from the pattern of activity performed by the defendant or his associates. Cf. Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001). But in the case of an association-in-fact enterprise, the Government must ad duce other evidence of the entity’s “separate” existence and “ongoing organization.” Turkette, 452 U. S., at 583. There may be cases in which a jury can infer that exis tence and continuity from the evidence used to establish the pattern of racketeering activity. Ibid. But that will be —————— 2 The other subsections of 18 U.S. C. §1962 further demonstrate the business-like nature of the enterprise element and its necessary dis tinctness from the pattern of racketeering activity. Subsection (a) prohibits anyone who receives income derived from a pattern of racket eering activity from “us[ing] or invest[ing], directly or indirectly, any part of such income . . . in acquisition of any interest in, or the estab lishment or operation of, any enterprise.” And subsection (b) prohibits anyone from “acquir[ing] or maintain[ing]” any interest in or control of an enterprise through a pattern of racketeering activity. We noted in NOW that the term enterprise “plays a different role in the structure” of those subsections than it does in subsection (c) because the enter prise in those subsections is the victim. 510 U. S., at 258–259. We did not, however, suggest that the term has a substantially different meaning in each subsection. To the contrary, our observation that the enterprise in subsection (c) is “the vehicle through which the unlawful pattern of racketeering activity is committed,” id., at 259, indicates that, as in subsections (a) and (b), the enterprise must have an exis tence apart from the pattern of racketeering activity. Cite as: 556 U. S. ____ (2009) 5 STEVENS, J., dissenting true only when the pattern of activity is so complex that it could not be performed in the absence of structures or processes for planning or concealing the illegal conduct beyond those inherent in performing the predicate acts. More often, proof of an enterprise’s separate existence will require different evidence from that used to establish the pattern of predicate acts. Precisely what proof is required in each case is a more difficult question, largely due to the abundant variety of RICO predicates and enterprises. Because covered enter prises are necessarily business-like in nature, however, proof of an association-in-fact enterprise’s separate exis tence will generally require evidence of rules, routines, or processes through which the entity maintains its continu ing operations and seeks to conceal its illegal acts. As petitioner suggests, this requirement will usually be satis fied by evidence that the association has an “ascertainable structure beyond that inherent in the pattern of racketeer ing activity in which it engages.” Pet. for Cert. i. Exam ples of such structure include an organizational hierarchy, a “framework for making decisions,” an “internal disci pline mechanism,” “regular meetings,” or a practice of “reinvest[ing] proceeds to promote and expand the enter prise.” Reply Brief for Petitioner 31–34. In other cases, the enterprise’s existence might be established through evidence that it provides goods or services to third parties, as such an undertaking will require organizational ele ments more comprehensive than those necessary to per form a pattern of predicate acts. Thus, the evidence needed to establish an enterprise will vary from case to case, but in every case the Government must carry its burden of proving that an alleged enterprise has an exis tence separate from the pattern of racketeering activity undertaken by its constituents. 6 BOYLE v. UNITED STATES STEVENS, J., dissenting II In some respects, my reading of the statute is not very different from that adopted by the Court. We agree that “an association-in-fact enterprise must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s pur pose.” Ante, at 6. But the Court stops short of giving content to that requirement. It states only that RICO “demands proof that the enterprise had ‘affairs’ of suffi cient duration to permit an associate to ‘participate’ in those affairs through ‘a pattern of racketeering activity,’ ” before concluding that “[a] trial judge has considerable discretion in choosing the language of an instruction” and need not use the term “structure.” Ante, at 7. While I agree the word structure is not talismanic, I would hold that the instructions must convey the requirement that the alleged enterprise have an existence apart from the alleged pattern of predicate acts. The Court’s decision, by contrast, will allow juries to infer the existence of an enterprise in every case involving a pattern of racketeer ing activity undertaken by two or more associates. By permitting the Government to prove both elements with the same evidence, the Court renders the enterprise requirement essentially meaningless in association-in-fact cases. It also threatens to make that category of §1962(c) offenses indistinguishable from conspiracies to commit predicate acts, see §371, as the only remaining difference is §1962(c)’s pattern requirement. The Court resists this criticism, arguing that §1962(c) “demands much more” than the inchoate offense defined in §371. Ante, at 10. It states that the latter “may be completed in the brief period needed for the formation of the agreement and the com mission of a single overt act in furtherance of the conspir acy,” whereas the former requires the creation of “a group with a common purpose and course of conduct—and the Cite as: 556 U. S. ____ (2009) 7 STEVENS, J., dissenting actual commission of a pattern of predicate offenses.” Ibid. Given that it is also unlawful to conspire to violate §1962(c), see §1962(d), this comment provides no assur ance that RICO and §371 offenses remain distinct. Only if proof of the enterprise element—the “group with a com mon purpose and course of conduct”—requires evidence of activity or organization beyond that inherent in the pat tern of predicate acts will RICO offenses retain an identity distinct from §371 offenses. This case illustrates these concerns. The trial judge instructed the jury that an enterprise need have only the degree of organization necessary “for carrying out its objectives” and that it could “find an enterprise where an association of individuals, without structural hierarchy, forms solely for the purpose of carrying out a pattern of racketeering acts.” App. 112.3 These instructions were plainly deficient, as they did not require the Government to prove that the alleged enterprise had an existence apart from the pattern of predicate acts. Instead, they permit ted the Government’s proof of the enterprise’s structure and continuing nature—requirements on which all agree—to consist only of evidence that petitioner and his associates performed a pattern of racketeering activity. Petitioner’s requested instruction would have required the jury to find that the alleged enterprise “had an ongo ing organization, a core membership that functioned as a continuing unit, and an ascertainable structural hierarchy distinct from the charged predicate acts.” Id., at 95. That instruction does not precisely track my understanding of the statute; although evidence of “structural hierarchy” can evidence an enterprise, it is not necessary to establish that element. Nevertheless, the proposed instruction would have better directed the jury to consider whether —————— 3 For the full text of the relevant portion of the instructions, see ante, at 3, n. 1. 8 BOYLE v. UNITED STATES STEVENS, J., dissenting the alleged enterprise possessed the separate existence necessary to expose petitioner to liability under §1962(c), and the trial judge should have considered an instruction along those lines. The trial judge also erred in finding the Government’s evidence in this case sufficient to support petitioner’s RICO convictions. Petitioner was alleged to have partici pated and conspired to participate in the conduct of an enterprise’s affairs through a pattern of racketeering activity consisting of one act of bank robbery and three acts of interstate transportation of stolen funds. Id., at 15–19. The “primary goals” of the alleged enterprise “included generating money for its members and associ ates through the commission of criminal activity, includ ing bank robberies, bank burglaries and interstate trans portation of stolen money.” Id., at 14. And its modus operandi was to congregate periodically when an associate had a lead on a night-deposit box that the group could break into. Whoever among the associates was available would bring screwdrivers, crowbars, and walkie-talkies to the location. Some acted as lookouts, while others re trieved the money. When the endeavor was successful, the participants would split the proceeds. Thus, the group’s purpose and activities, and petitioner’s participation therein, were limited to sporadic acts of taking money from bank deposit boxes. There is no evidence in RICO’s text or history that Congress intended it to reach such ad hoc associations of thieves. III Because the instructions and evidence in this case did not satisfy the requirement that an alleged enterprise have an existence separate and apart from the pattern of activity in which it engages, I respectfully dissent

In my view, Congress intended the term “enterprise” as it is used in the Racketeer Influenced and Corrupt Or ganizations Act (RICO), 18 U.S. C. et seq., to refer only to business-like entities that have an existence apart from the predicate acts committed by their employees or associates. The trial judge in this case committed two significant errors relating to the meaning of that term. First, he instructed the jury that “an association of indi viduals, without structural hierarchy, form[ed] solely for the purpose of carrying out a pattern of racketeering acts” can constitute an enterprise. App. 112. And he allowed the jury to find that element satisfied by evidence showing a group of criminals with no existence beyond its intermit tent commission of racketeering acts and related offenses. Because the Court’s decision affirming petitioner’s convic tion is inconsistent with the statutory meaning of the term enterprise and serves to expand RICO liability far beyond the bounds Congress intended, I respectfully dissent. I RICO makes it “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct 2 BOYLE v. UNITED STATES STEVENS, J., dissenting or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” The statute defines “enterprise” to include “any individual, partnership, corporation, associa tion, or other legal entity, and any union or group of indi viduals associated in fact although not a legal entity.” (4). It is clear from the statute and our earlier decisions construing the term that Congress used “enterprise” in these provisions in the sense of “a business organization,” Webster’s Third New International Dictionary 757 (1976), rather than “a ‘venture,’ ‘undertaking,’ or ‘project,’ ” ante, at 6 (quoting Webster’s Third New International Diction ary, at 757). First, the terms “individual, partnership, corporation, association, or other legal entity” describe entities with formal legal structures most commonly es tablished for business purposes. (4). In context, the subsequent reference to any “union or group of individuals associated in fact although not a legal entity” reflects an intended commonality between the legal and nonlegal entities included in the provision. “The juxtaposition of the two phrases suggests that ‘asso ciated in fact’ just means structured without the aid of legally defined structural forms such as the business corporation.” Limestone Development Corp. v. Lemont, 520 F.3d 797, 804–805 (CA7 2008).1 —————— 1 To be sure, we have read RICO’s enterprise term broadly to include entities with exclusively noneconomic motives or wholly unlawful purposes. See National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 252 (1994) (NOW); United 580–581 (1981). But those holdings are consistent with the conclusion that an enterprise is a business-like entity. Indeed, the examples of qualifying associations cited in —including loan-sharking, property-fencing, drug-trafficking, and counterfeiting operations— satisfy that criterion, as each describes an organization with continuing operations directed toward providing goods or services to its customers. See at 589–590 (citing ; 116 Cong. Rec. 592 (1970)). Cite as: 556 U. S. (2009) 3 STEVENS, J., dissenting That an enterprise must have business-like characteris tics is confirmed by the text of and our decision in Section 1962(c) creates liability for “conduct[ing] or participat[ing] in the conduct of [an] enterprise’s affairs through a pattern of racketeering activity.” In Reves, we examined that provision’s meaning and held that, “[i]n order to ‘participate, directly or indirectly, in the conduct of such enterprise’s affairs,’ one must have some part in directing those affairs.” (quoting ). It is not enough for a defendant to “carry on” or “participate in” an enterprise’s affairs through a pattern of racketeering activity; instead, evidence that he operated, managed, or directed those affairs is required. See at 177–179. This requirement confirms that the enterprise element demands evidence of a certain quantum of business-like organization—i.e., a system of processes, dealings, or other affairs that can be “directed.” Our cases also make clear that an enterprise “is an entity separate and apart from the pattern of activity in which it engages.” United 452 U.S. 576, 583 (1981). As with the requirement that an enter prise have business-like characteristics, that an enterprise must have a separate existence is confirmed by and Reves. If an entity’s existence consisted solely of its members’ performance of a pattern of racketeering acts, the “enterprise’s affairs” would be synonymous with the “pattern of racketeering activity.” Section 1962(c) would then prohibit an individual from conducting or participat ing in “the conduct of [a pattern of racketeering activity] through a pattern of racketeering activity”—a reading —————— Similarly, the enterprise at issue in NOW was a nationwide network of antiabortion groups that had a leadership counsel and regular confer ences and whose members undertook an extensive pattern of extortion, arson, and other racketeering activity for the purpose of “shut[ting] down abortion clinics.” 4 BOYLE v. UNITED STATES STEVENS, J., dissenting that is unbearably redundant, particularly in a case like this one in which a single pattern of activity is alleged. The only way to avoid that result is to require that an “enterprise’s affairs” be something other than the pattern of racketeering activity undertaken by its members.2 Recognizing an enterprise’s business-like nature and its distinctness from the pattern of predicate acts, however, does not answer the question of what proof each element requires. In cases involving a legal entity, the matter of proving the enterprise element is straightforward, as the entity’s legal existence will always be something apart from the pattern of activity performed by the defendant or his associates. Cf. Cedric Kushner Promotions, Ltd. v. King, But in the case of an association-in-fact enterprise, the Government must ad duce other evidence of the entity’s “separate” existence and “ongoing organization.” There may be cases in which a jury can infer that exis tence and continuity from the evidence used to establish the pattern of racketeering activity. But that will be —————— 2 The other subsections of 18 U.S. C. further demonstrate the business-like nature of the enterprise element and its necessary dis tinctness from the pattern of racketeering activity. Subsection (a) prohibits anyone who receives income derived from a pattern of racket eering activity from “us[ing] or invest[ing], directly or indirectly, any part of such income in acquisition of any interest in, or the estab lishment or operation of, any enterprise.” And subsection (b) prohibits anyone from “acquir[ing] or maintain[ing]” any interest in or control of an enterprise through a pattern of racketeering activity. We noted in NOW that the term enterprise “plays a different role in the structure” of those subsections than it does in subsection (c) because the enter prise in those subsections is the –259. We did not, however, suggest that the term has a substantially different meaning in each subsection. To the contrary, our observation that the enterprise in subsection (c) is “the vehicle through which the unlawful pattern of racketeering activity is committed,” indicates that, as in subsections (a) and (b), the enterprise must have an exis tence apart from the pattern of racketeering activity. Cite as: 556 U. S. (2009) 5 STEVENS, J., dissenting true only when the pattern of activity is so complex that it could not be performed in the absence of structures or processes for planning or concealing the illegal conduct beyond those inherent in performing the predicate acts. More often, proof of an enterprise’s separate existence will require different evidence from that used to establish the pattern of predicate acts. Precisely what proof is required in each case is a more difficult question, largely due to the abundant variety of RICO predicates and enterprises. Because covered enter prises are necessarily business-like in nature, however, proof of an association-in-fact enterprise’s separate exis tence will generally require evidence of rules, routines, or processes through which the entity maintains its continu ing operations and seeks to conceal its illegal acts. As petitioner suggests, this requirement will usually be satis fied by evidence that the association has an “ascertainable structure beyond that inherent in the pattern of racketeer ing activity in which it engages.” Pet. for Cert. i. Exam ples of such structure include an organizational hierarchy, a “framework for making decisions,” an “internal disci pline mechanism,” “regular meetings,” or a practice of “reinvest[ing] proceeds to promote and expand the enter prise.” Reply Brief for Petitioner 31–34. In other cases, the enterprise’s existence might be established through evidence that it provides goods or services to third parties, as such an undertaking will require organizational ele ments more comprehensive than those necessary to per form a pattern of predicate acts. Thus, the evidence needed to establish an enterprise will vary from case to case, but in every case the Government must carry its burden of proving that an alleged enterprise has an exis tence separate from the pattern of racketeering activity undertaken by its constituents. 6 BOYLE v. UNITED STATES STEVENS, J., dissenting II In some respects, my reading of the statute is not very different from that adopted by the Court. We agree that “an association-in-fact enterprise must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s pur pose.” Ante, at 6. But the Court stops short of giving content to that requirement. It states only that RICO “demands proof that the enterprise had ‘affairs’ of suffi cient duration to permit an associate to ‘participate’ in those affairs through ‘a pattern of racketeering activity,’ ” before concluding that “[a] trial judge has considerable discretion in choosing the language of an instruction” and need not use the term “structure.” Ante, at 7. While I agree the word structure is not talismanic, I would hold that the instructions must convey the requirement that the alleged enterprise have an existence apart from the alleged pattern of predicate acts. The Court’s decision, by contrast, will allow juries to infer the existence of an enterprise in every case involving a pattern of racketeer ing activity undertaken by two or more associates. By permitting the Government to prove both elements with the same evidence, the Court renders the enterprise requirement essentially meaningless in association-in-fact cases. It also threatens to make that category of offenses indistinguishable from conspiracies to commit predicate acts, see as the only remaining difference is ’s pattern requirement. The Court resists this criticism, arguing that “demands much more” than the inchoate offense defined in Ante, at 10. It states that the latter “may be completed in the brief period needed for the formation of the agreement and the com mission of a single overt act in furtherance of the conspir acy,” whereas the former requires the creation of “a group with a common purpose and course of conduct—and the Cite as: 556 U. S. (2009) 7 STEVENS, J., dissenting actual commission of a pattern of predicate offenses.” Given that it is also unlawful to conspire to violate see (d), this comment provides no assur ance that RICO and offenses remain distinct. Only if proof of the enterprise element—the “group with a com mon purpose and course of conduct”—requires evidence of activity or organization beyond that inherent in the pat tern of predicate acts will RICO offenses retain an identity distinct from offenses. This case illustrates these concerns. The trial judge instructed the jury that an enterprise need have only the degree of organization necessary “for carrying out its objectives” and that it could “find an enterprise where an association of individuals, without structural hierarchy, forms solely for the purpose of carrying out a pattern of racketeering acts.” App. 112.3 These instructions were plainly deficient, as they did not require the Government to prove that the alleged enterprise had an existence apart from the pattern of predicate acts. Instead, they permit ted the Government’s proof of the enterprise’s structure and continuing nature—requirements on which all agree—to consist only of evidence that petitioner and his associates performed a pattern of racketeering activity. Petitioner’s requested instruction would have required the jury to find that the alleged enterprise “had an ongo ing organization, a core membership that functioned as a continuing unit, and an ascertainable structural hierarchy distinct from the charged predicate acts.” That instruction does not precisely track my understanding of the statute; although evidence of “structural hierarchy” can evidence an enterprise, it is not necessary to establish that element. Nevertheless, the proposed instruction would have better directed the jury to consider whether —————— 3 For the full text of the relevant portion of the instructions, see ante, at 3, n. 1. 8 BOYLE v. UNITED STATES STEVENS, J., dissenting the alleged enterprise possessed the separate existence necessary to expose petitioner to liability under and the trial judge should have considered an instruction along those lines. The trial judge also erred in finding the Government’s evidence in this case sufficient to support petitioner’s RICO convictions. Petitioner was alleged to have partici pated and conspired to participate in the conduct of an enterprise’s affairs through a pattern of racketeering activity consisting of one act of bank robbery and three acts of interstate transportation of stolen funds. at 15–19. The “primary goals” of the alleged enterprise “included generating money for its members and associ ates through the commission of criminal activity, includ ing bank robberies, bank burglaries and interstate trans portation of stolen money.” And its modus operandi was to congregate periodically when an associate had a lead on a night-deposit box that the group could break into. Whoever among the associates was available would bring screwdrivers, crowbars, and walkie-talkies to the location. Some acted as lookouts, while others re trieved the money. When the endeavor was successful, the participants would split the proceeds. Thus, the group’s purpose and activities, and petitioner’s participation therein, were limited to sporadic acts of taking money from bank deposit boxes. There is no evidence in RICO’s text or history that Congress intended it to reach such ad hoc associations of thieves. III Because the instructions and evidence in this case did not satisfy the requirement that an alleged enterprise have an existence separate and apart from the pattern of activity in which it engages, I respectfully dissent

Justice Kennedy

majority

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n

https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/

https://www.courtlistener.com/api/rest/v3/clusters/4507882/

In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop’s owner told the couple that he would not create a cake for their wedding because of his religious opposition to same- sex marriages—marriages the State of Colorado itself did not recognize at that time. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimina- tion on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act. The Commission determined that the shop’s actions violated the Act and ruled in the couple’s favor. The Colo- rado state courts affirmed the ruling and its enforcement order, and this Court now must decide whether the Com- mission’s order violated the Constitution. The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to pro- tect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek 2 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amend- ment, as applied to the States through the Fourteenth Amendment. The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning. One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defin- ing whether a baker’s creation can be protected, these details might make a difference. The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decora- tions on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless. Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was incon- sistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. The Court’s precedents make clear that the baker, in his capac- ity as the owner of a business serving the public, might Cite as: 584 U. S. ____ (2018) 3 Opinion of the Court have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be de- termined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involv- ing facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside. I A Masterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb of Denver. The shop offers a variety of baked goods, ranging from everyday cookies and brownies to elaborate custom-designed cakes for birthday parties, weddings, and other events. Jack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips is a devout Chris- tian. He has explained that his “main goal in life is to be obedient to” Jesus Christ and Christ’s “teachings in all aspects of his life.” App. 148. And he seeks to “honor God through his work at Masterpiece Cakeshop.” Ibid. One of Phillips’ religious beliefs is that “God’s intention for mar- riage from the beginning of history is that it is and should be the union of one man and one woman.” Id., at 149. To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs. 4 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of 2012. Craig and Mul- lins were planning to marry. At that time, Colorado did not recognize same-sex marriages, so the couple planned to wed legally in Massachusetts and afterwards to host a reception for their family and friends in Denver. To pre- pare for their celebration, Craig and Mullins visited the shop and told Phillips that they were interested in order- ing a cake for “our wedding.” Id., at 152 (emphasis de- leted). They did not mention the design of the cake they envisioned. Phillips informed the couple that he does not “create” wedding cakes for same-sex weddings. Ibid. He ex- plained, “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” Ibid. The couple left the shop without further discussion. The following day, Craig’s mother, who had accompa- nied the couple to the cakeshop and been present for their interaction with Phillips, telephoned to ask Phillips why he had declined to serve her son. Phillips explained that he does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage, and also because Colorado (at that time) did not recognize same-sex marriages. Id., at 153. He later explained his belief that “to create a wedding cake for an event that celebrates something that directly goes against the teach- ings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.” Ibid. (emphasis deleted). B For most of its history, Colorado has prohibited discrim- ination in places of public accommodation. In 1885, less than a decade after Colorado achieved statehood, the General Assembly passed “An Act to Protect All Citizens Cite as: 584 U. S. ____ (2018) 5 Opinion of the Court in Their Civil Rights,” which guaranteed “full and equal enjoyment” of certain public facilities to “all citizens,” “regardless of race, color or previous condition of servi- tude.” 1885 Colo. Sess. Laws pp. 132–133. A decade later, the General Assembly expanded the requirement to apply to “all other places of public accommodation.” 1895 Colo. Sess. Laws ch. 61, p. 139. Today, the Colorado Anti-Discrimination Act (CADA) carries forward the state’s tradition of prohibiting discrim- ination in places of public accommodation. Amended in 2007 and 2008 to prohibit discrimination on the basis of sexual orientation as well as other protected characteris- tics, CADA in relevant part provides as follows: “It is a discriminatory practice and unlawful for a per- son, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital sta- tus, national origin, or ancestry, the full and equal en- joyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public ac- commodation.” Colo. Rev. Stat. §24–34–601(2)(a) (2017). The Act defines “public accommodation” broadly to include any “place of business engaged in any sales to the public and any place offering services . . . to the public,” but excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes.” §24–34–601(1). CADA establishes an administrative system for the resolution of discrimination claims. Complaints of dis- crimination in violation of CADA are addressed in the first instance by the Colorado Civil Rights Division. The Divi- sion investigates each claim; and if it finds probable cause that CADA has been violated, it will refer the matter to the Colorado Civil Rights Commission. The Commission, 6 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court in turn, decides whether to initiate a formal hearing be- fore a state Administrative Law Judge (ALJ), who will hear evidence and argument before issuing a written decision. See §§24–34–306, 24–4–105(14). The decision of the ALJ may be appealed to the full Commission, a seven- member appointed body. The Commission holds a public hearing and deliberative session before voting on the case. If the Commission determines that the evidence proves a CADA violation, it may impose remedial measures as provided by statute. See §24–34–306(9). Available reme- dies include, among other things, orders to cease-and- desist a discriminatory policy, to file regular compliance reports with the Commission, and “to take affirmative action, including the posting of notices setting forth the substantive rights of the public.” §24–34–605. Colorado law does not permit the Commission to assess money damages or fines. §§24–34–306(9), 24–34–605. C Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips in September 2012, shortly after the couple’s visit to the shop. App. 31. The complaint alleged that Craig and Mullins had been denied “full and equal service” at the bakery because of their sexual orientation, id., at 35, 48, and that it was Phillips’ “standard business practice” not to provide cakes for same-sex weddings, id., at 43. The Civil Rights Division opened an investigation. The investigator found that “on multiple occasions,” Phillips “turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception” because his religious beliefs prohibited it and because the potential customers “were doing something illegal” at that time. Id., at 76. The investigation found that Phillips had de- clined to sell custom wedding cakes to about six other Cite as: 584 U. S. ____ (2018) 7 Opinion of the Court same-sex couples on this basis. Id., at 72. The investiga- tor also recounted that, according to affidavits submitted by Craig and Mullins, Phillips’ shop had refused to sell cupcakes to a lesbian couple for their commitment celebra- tion because the shop “had a policy of not selling baked goods to same-sex couples for this type of event.” Id., at 73. Based on these findings, the Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission. Id., at 69. The Commission found it proper to conduct a formal hearing, and it sent the case to a State ALJ. Finding no dispute as to material facts, the ALJ entertained cross- motions for summary judgment and ruled in the couple’s favor. The ALJ first rejected Phillips’ argument that declining to make or create a wedding cake for Craig and Mullins did not violate Colorado law. It was undisputed that the shop is subject to state public accommodations laws. And the ALJ determined that Phillips’ actions constituted prohibited discrimination on the basis of sex- ual orientation, not simply opposition to same-sex marriage as Phillips contended. App. to Pet. for Cert. 68a–72a. Phillips raised two constitutional claims before the ALJ. He first asserted that applying CADA in a way that would require him to create a cake for a same-sex wedding would violate his First Amendment right to free speech by com- pelling him to exercise his artistic talents to express a message with which he disagreed. The ALJ rejected the contention that preparing a wedding cake is a form of protected speech and did not agree that creating Craig and Mullins’ cake would force Phillips to adhere to “an ideolog- ical point of view.” Id., at 75a. Applying CADA to the facts at hand, in the ALJ’s view, did not interfere with Phillips’ freedom of speech. Phillips also contended that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion, also protected by the First 8 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court Amendment. Citing this Court’s precedent in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), the ALJ determined that CADA is a “valid and neutral law of general applicability” and therefore that applying it to Phillips in this case did not violate the Free Exercise Clause. Id., at 879; App. to Pet. for Cert. 82a– 83a. The ALJ thus ruled against Phillips and the cakeshop and in favor of Craig and Mullins on both consti- tutional claims. The Commission affirmed the ALJ’s decision in full. Id., at 57a. The Commission ordered Phillips to “cease and desist from discriminating against . . . same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples.” Ibid. It also ordered additional remedial measures, including “comprehensive staff training on the Public Accommodations section” of CADA “and changes to any and all company policies to comply with . . . this Order.” Id., at 58a. The Commission additionally required Phillips to prepare “quarterly com- pliance reports” for a period of two years documenting “the number of patrons denied service” and why, along with “a statement describing the remedial actions taken.” Ibid. Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission’s legal determinations and remedial order. The court rejected the argument that the “Commission’s order unconstitutionally compels” Phillips and the shop “to convey a celebratory message about same sex marriage.” Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 283 (2015). The court also rejected the argu- ment that the Commission’s order violated the Free Exer- cise Clause. Relying on this Court’s precedent in Smith, supra, at 879, the court stated that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicabil- ity” on the ground that following the law would interfere with religious practice or belief. 370 P.3d, at 289. The Cite as: 584 U. S. ____ (2018) 9 Opinion of the Court court concluded that requiring Phillips to comply with the statute did not violate his free exercise rights. The Colo- rado Supreme Court declined to hear the case. Phillips sought review here, and this Court granted certiorari. 582 U. S. ___ (2017). He now renews his claims under the Free Speech and Free Exercise Clauses of the First Amendment. II A Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances pro- tected forms of expression. As this Court observed in Obergefell v. Hodges, 576 U. S. ___ (2015), “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Id., at ___ (slip op., at 27). Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applica- ble public accommodations law. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n. 5 (1968) (per curiam); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572 (1995) (“Provisions like these are well within the State’s usual power to enact when a legislature has reason to 10 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments”). When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma in- consistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations. It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumera- ble goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court’s prece- dents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law. See Tr. of Oral Arg. 4–7, 10. Phillips claims, however, that a narrower issue is pre- sented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in Cite as: 584 U. S. ____ (2018) 11 Opinion of the Court his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way con- sistent with his religious beliefs. Phillips’ dilemma was particularly understandable given the background of legal principles and administra- tion of the law in Colorado at that time. His decision and his actions leading to the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize the validity of gay marriages performed in its own State. See Colo. Const., Art. II, §31 (2012); 370 P.3d, at 277. At the time of the events in question, this Court had not issued its decisions either in United States v. Windsor, 570 U.S. 744 (2013), or Obergefell. Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State. At the time, state law also afforded storekeepers some latitude to decline to create specific messages the store- keeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers’ creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned 12 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court gay persons or gay marriages. See Jack v. Gateaux, Ltd., Charge No. P20140071X (Mar. 24, 2015); Jack v. Le Bak- ery Sensual, Inc., Charge No. P20140070X (Mar. 24, 2015); Jack v. Azucar Bakery, Charge No. P20140069X (Mar. 24, 2015). There were, to be sure, responses to these arguments that the State could make when it contended for a differ- ent result in seeking the enforcement of its generally applicable state regulations of businesses that serve the public. And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs say- ing “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case. B The neutral and respectful consideration to which Phil- lips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection. That hostility surfaced at the Commission’s formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips’ case. At several points during its meet- ing, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the Cite as: 584 U. S. ____ (2018) 13 Opinion of the Court state.” Tr. 23. A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.” Id., at 30. Standing alone, these statements are susceptible of different inter- pretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappro- priate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely. On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated: “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimi- nation throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Tr. 11–12. To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetori- 14 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court cal—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappro- priate for a Commission charged with the solemn respon- sibility of fair and neutral enforcement of Colorado’s anti- discrimination law—a law that protects against discrimina- tion on the basis of religion as well as sexual orientation. The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540– 542 (1993); id., at 558 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the re- marks were made in a very different context—by an adju- dicatory body deciding a particular case. Another indication of hostility is the difference in treat- ment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission. As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refus- ing service. It made these determinations because, in the Cite as: 584 U. S. ____ (2018) 15 Opinion of the Court words of the Division, the requested cake included “word- ing and images [the baker] deemed derogatory,” Jack v. Gateaux, Ltd., Charge No. P20140071X, at 4; featured “language and images [the baker] deemed hateful,” Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or displayed a message the baker “deemed as discriminatory, Jack v. Azucar Bakery, Charge No. P20140069X, at 4. The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be at- tributed to the customer, not to the baker. Yet the Divi- sion did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depict- ing Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brown- ies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections. Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers’ conscience- based objections as legitimate, but treated his as illegiti- mate—thus sitting in judgment of his religious beliefs themselves. The Court of Appeals addressed the disparity 16 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court only in passing and relegated its complete analysis of the issue to a footnote. There, the court stated that “[t]his case is distinguishable from the Colorado Civil Rights Division’s recent findings that [the other bakeries] in Denver did not discriminate against a Christian patron on the basis of his creed” when they refused to create the requested cakes. 370 P.3d, at 282, n. 8. In those cases, the court continued, there was no impermissible discrimi- nation because “the Division found that the bakeries . . . refuse[d] the patron’s request . . . because of the offensive nature of the requested message.” Ibid. A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam, 582 U. S. ___, ___–___ (2017) (opinion of ALITO, J.) (slip op., at 22–23). The Colorado court’s at- tempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs. The court’s footnote does not, therefore, answer the baker’s concern that the State’s practice was to disfavor the religious basis of his objection. C For the reasons just described, the Commission’s treat- ment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hos- tility to a religion or religious viewpoint. In Church of Lukumi Babalu Aye, supra, the Court made clear that the government, if it is to respect the Constitution’s guarantee of free exercise, cannot impose Cite as: 584 U. S. ____ (2018) 17 Opinion of the Court regulations that are hostile to the religious beliefs of af- fected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion. Id., at 534. Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remem- ber their own high duty to the Constitution and to the rights it secures.” Id., at 547. Factors relevant to the assessment of governmental neutrality include “the historical background of the deci- sion under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contempo- raneous statements made by members of the decisionmak- ing body.” Id., at 540. In view of these factors the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phil- lips’ religious beliefs. The Commission gave “every ap- pearance,” id., at 545, of adjudicating Phillips’ religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it. Id., at 537. It hardly requires restating that government has no role in deciding or even suggest- ing whether the religious ground for Phillips’ conscience- based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires. While the issues here are difficult to resolve, it must be concluded that the State’s interest could have been 18 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners’ com- ments—comments that were not disavowed at the Com- mission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires. The Commis- sion’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside. III The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. How- ever later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated. The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be re- solved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market. The judgment of the Colorado Court of Appeals is re- versed. It is so ordered. Cite as: 584 U. S. ____ (2018) 1 KAGAN, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 16–111 _________________ MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION, ET AL.

In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop’s owner told the couple that he would not create a cake for their wedding because of his religious opposition to same- sex marriages—marriages the State of Colorado itself did not recognize at that time. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimina- tion on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act. The Commission determined that the shop’s actions violated the Act and ruled in the couple’s favor. The Colo- rado state courts affirmed the ruling and its enforcement order, and this Court now must decide whether the Com- mission’s order violated the Constitution. The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to pro- tect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek 2 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amend- ment, as applied to the States through the Fourteenth Amendment. The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning. One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defin- ing whether a baker’s creation can be protected, these details might make a difference. The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decora- tions on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless. Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was incon- sistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. The Court’s precedents make clear that the baker, in his capac- ity as the owner of a business serving the public, might Cite as: 584 U. S. (2018) 3 Opinion of the Court have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be de- termined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involv- ing facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside. I A Masterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb of Denver. The shop offers a variety of baked goods, ranging from everyday cookies and brownies to elaborate custom-designed cakes for birthday parties, weddings, and other events. Jack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips is a devout Chris- tian. He has explained that his “main goal in life is to be obedient to” Jesus Christ and Christ’s “teachings in all aspects of his life.” App. 148. And he seeks to “honor God through his work at Masterpiece Cakeshop.” One of Phillips’ religious beliefs is that “God’s intention for mar- riage from the beginning of history is that it is and should be the union of one man and one woman.” To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs. 4 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of 2012. Craig and Mul- lins were planning to marry. At that time, Colorado did not recognize same-sex marriages, so the couple planned to wed legally in Massachusetts and afterwards to host a reception for their family and friends in Denver. To pre- pare for their celebration, Craig and Mullins visited the shop and told Phillips that they were interested in order- ing a cake for “our wedding.” (emphasis de- leted). They did not mention the design of the cake they envisioned. Phillips informed the couple that he does not “create” wedding cakes for same-sex weddings. He ex- plained, “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” The couple left the shop without further discussion. The following day, Craig’s mother, who had accompa- nied the couple to the cakeshop and been present for their interaction with Phillips, telephoned to ask Phillips why he had declined to serve her son. Phillips explained that he does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage, and also because Colorado (at that time) did not recognize same-sex marriages. He later explained his belief that “to create a wedding cake for an event that celebrates something that directly goes against the teach- ings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.” B For most of its history, Colorado has prohibited discrim- ination in places of public accommodation. In 1885, less than a decade after Colorado achieved statehood, the General Assembly passed “An Act to Protect All Citizens Cite as: 584 U. S. (2018) 5 Opinion of the Court in Their Civil Rights,” which guaranteed “full and equal enjoyment” of certain public facilities to “all citizens,” “regardless of race, color or previous condition of servi- tude.” 1885 Colo. Sess. Laws pp. 132–133. A decade later, the General Assembly expanded the requirement to apply to “all other places of public accommodation.” 1895 Colo. Sess. Laws ch. 61, p. 139. Today, the Colorado Anti-Discrimination Act (CADA) carries forward the state’s tradition of prohibiting discrim- ination in places of public accommodation. Amended in 2007 and 2008 to prohibit discrimination on the basis of sexual orientation as well as other protected characteris- tics, CADA in relevant part provides as follows: “It is a discriminatory practice and unlawful for a per- son, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital sta- tus, national origin, or ancestry, the full and equal en- joyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public ac- commodation.” –34–601(2)(a) (2017). The Act defines “public accommodation” broadly to include any “place of business engaged in any sales to the public and any place offering services to the public,” but excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes.” CADA establishes an administrative system for the resolution of discrimination claims. Complaints of dis- crimination in violation of CADA are addressed in the first instance by the Colorado Civil Rights Division. The Divi- sion investigates each claim; and if it finds probable cause that CADA has been violated, it will refer the matter to the Colorado Civil Rights Commission. The Commission, 6 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court in turn, decides whether to initiate a formal hearing be- fore a state Administrative Law Judge (ALJ), who will hear evidence and argument before issuing a written decision. See 24–4–105(14). The decision of the ALJ may be appealed to the full Commission, a seven- member appointed body. The Commission holds a public hearing and deliberative session before voting on the case. If the Commission determines that the evidence proves a CADA violation, it may impose remedial measures as provided by statute. See Available reme- dies include, among other things, orders to cease-and- desist a discriminatory policy, to file regular compliance reports with the Commission, and “to take affirmative action, including the posting of notices setting forth the substantive rights of the public.” Colorado law does not permit the Commission to assess money damages or fines. 24–34–605. C Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips in September 2012, shortly after the couple’s visit to the shop. App. 31. The complaint alleged that Craig and Mullins had been denied “full and equal service” at the bakery because of their sexual orientation, and that it was Phillips’ “standard business practice” not to provide cakes for same-sex weddings, The Civil Rights Division opened an investigation. The investigator found that “on multiple occasions,” Phillips “turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception” because his religious beliefs prohibited it and because the potential customers “were doing something illegal” at that time. The investigation found that Phillips had de- clined to sell custom wedding cakes to about six other Cite as: 584 U. S. (2018) 7 Opinion of the Court same-sex couples on this basis. The investiga- tor also recounted that, according to affidavits submitted by Craig and Mullins, Phillips’ shop had refused to sell cupcakes to a lesbian couple for their commitment celebra- tion because the shop “had a policy of not selling baked goods to same-sex couples for this type of event.” at 73. Based on these findings, the Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission. The Commission found it proper to conduct a formal hearing, and it sent the case to a State ALJ. Finding no dispute as to material facts, the ALJ entertained cross- motions for summary judgment and ruled in the couple’s favor. The ALJ first rejected Phillips’ argument that declining to make or create a wedding cake for Craig and Mullins did not violate Colorado law. It was undisputed that the shop is subject to state public accommodations laws. And the ALJ determined that Phillips’ actions constituted prohibited discrimination on the basis of sex- ual orientation, not simply opposition to same-sex marriage as Phillips contended. App. to Pet. for Cert. 68a–72a. Phillips raised two constitutional claims before the ALJ. He first asserted that applying CADA in a way that would require him to create a cake for a same-sex wedding would violate his First Amendment right to free speech by com- pelling him to exercise his artistic talents to express a message with which he disagreed. The ALJ rejected the contention that preparing a wedding cake is a form of protected speech and did not agree that creating Craig and Mullins’ cake would force Phillips to adhere to “an ideolog- ical point of view.” at 75a. Applying CADA to the facts at hand, in the ALJ’s view, did not interfere with Phillips’ freedom of speech. Phillips also contended that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion, also protected by the First 8 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court Amendment. Citing this Court’s precedent in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), the ALJ determined that CADA is a “valid and neutral law of general applicability” and therefore that applying it to Phillips in this case did not violate the Free Exercise Clause. ; App. to Pet. for Cert. 82a– 83a. The ALJ thus ruled against Phillips and the cakeshop and in favor of Craig and Mullins on both consti- tutional claims. The Commission affirmed the ALJ’s decision in full. at 57a. The Commission ordered Phillips to “cease and desist from discriminating against same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples.” It also ordered additional remedial measures, including “comprehensive staff training on the Public Accommodations section” of CADA “and changes to any and all company policies to comply with this Order.” at 58a. The Commission additionally required Phillips to prepare “quarterly com- pliance reports” for a period of two years documenting “the number of patrons denied service” and why, along with “a statement describing the remedial actions taken.” Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission’s legal determinations and remedial order. The court rejected the argument that the “Commission’s order unconstitutionally compels” Phillips and the shop “to convey a celebratory message about same sex marriage.” Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 283 (2015). The court also rejected the argu- ment that the Commission’s order violated the Free Exer- cise Clause. Relying on this Court’s precedent in Smith, the court stated that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicabil- ity” on the ground that following the law would interfere with religious practice or The Cite as: 584 U. S. (2018) 9 Opinion of the Court court concluded that requiring Phillips to comply with the statute did not violate his free exercise rights. The Colo- rado Supreme Court declined to hear the case. Phillips sought review here, and this Court granted certiorari. 582 U. S. (2017). He now renews his claims under the Free Speech and Free Exercise Clauses of the First Amendment. II A Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances pro- tected forms of expression. As this Court observed in Obergefell v. Hodges, 576 U. S. (2015), “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” at (slip op., at 27). Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applica- ble public accommodations law. See (per curiam); see also (1995) (“Provisions like these are well within the State’s usual power to enact when a legislature has reason to 10 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments”). When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma in- consistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations. It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumera- ble goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court’s prece- dents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law. See Tr. of Oral Arg. 4–7, 10. Phillips claims, however, that a narrower issue is pre- sented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in Cite as: 584 U. S. (2018) 11 Opinion of the Court his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way con- sistent with his religious beliefs. Phillips’ dilemma was particularly understandable given the background of legal principles and administra- tion of the law in Colorado at that time. His decision and his actions leading to the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize the validity of gay marriages performed in its own State. See Colo. Const., Art. II, (2012); At the time of the events in question, this Court had not issued its decisions either in United States v. Windsor, 570 U.S. 744 (2013), or Obergefell. Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State. At the time, state law also afforded storekeepers some latitude to decline to create specific messages the store- keeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers’ creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned 12 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court gay persons or gay marriages. See Jack v. Gateaux, Ltd., Charge No. P20140071X (Mar. 24, 2015); Jack v. Le Bak- ery Sensual, Inc., Charge No. P20140070X (Mar. 24, 2015); Jack v. Azucar Bakery, Charge No. P20140069X (Mar. 24, 2015). There were, to be sure, responses to these arguments that the State could make when it contended for a differ- ent result in seeking the enforcement of its generally applicable state regulations of businesses that serve the public. And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs say- ing “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case. B The neutral and respectful consideration to which Phil- lips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection. That hostility surfaced at the Commission’s formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips’ case. At several points during its meet- ing, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the Cite as: 584 U. S. (2018) 13 Opinion of the Court state.” Tr. 23. A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.” Standing alone, these statements are susceptible of different inter- pretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappro- priate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely. On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated: “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimi- nation throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Tr. 11–12. To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetori- 14 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court cal—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappro- priate for a Commission charged with the solemn respon- sibility of fair and neutral enforcement of Colorado’s anti- discrimination law—a law that protects against discrimina- tion on the basis of religion as well as sexual orientation. The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu 540– 542 (1993); (Scalia, J., concurring in part and concurring in judgment). In this case, however, the re- marks were made in a very different context—by an adju- dicatory body deciding a particular case. Another indication of hostility is the difference in treat- ment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission. As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refus- ing service. It made these determinations because, in the Cite as: 584 U. S. (2018) 15 Opinion of the Court words of the Division, the requested cake included “word- ing and images [the baker] deemed derogatory,” Jack v. Gateaux, Ltd., Charge No. P20140071X, at 4; featured “language and images [the baker] deemed hateful,” Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or displayed a message the baker “deemed as discriminatory, Jack v. Azucar Bakery, Charge No. P20140069X, at 4. The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be at- tributed to the customer, not to the baker. Yet the Divi- sion did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depict- ing Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brown- ies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections. Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers’ conscience- based objections as legitimate, but treated his as illegiti- mate—thus sitting in judgment of his religious beliefs themselves. The Court of Appeals addressed the disparity 16 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court only in passing and relegated its complete analysis of the issue to a footnote. There, the court stated that “[t]his case is distinguishable from the Colorado Civil Rights Division’s recent findings that [the other bakeries] in Denver did not discriminate against a Christian patron on the basis of his creed” when they refused to create the requested n. 8. In those cases, the court continued, there was no impermissible discrimi- nation because “the Division found that the bakeries refuse[d] the patron’s request because of the offensive nature of the requested message.” A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam, 582 U. S. – (2017) (opinion of ALITO, J.) (slip op., at 22–23). The Colorado court’s at- tempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs. The court’s footnote does not, therefore, answer the baker’s concern that the State’s practice was to disfavor the religious basis of his objection. C For the reasons just described, the Commission’s treat- ment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hos- tility to a religion or religious viewpoint. In Church of Lukumi Babalu the Court made clear that the government, if it is to respect the Constitution’s guarantee of free exercise, cannot impose Cite as: 584 U. S. (2018) 17 Opinion of the Court regulations that are hostile to the religious beliefs of af- fected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion. Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remem- ber their own high duty to the Constitution and to the rights it secures.” Factors relevant to the assessment of governmental neutrality include “the historical background of the deci- sion under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contempo- raneous statements made by members of the decisionmak- ing body.” In view of these factors the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phil- lips’ religious beliefs. The Commission gave “every ap- pearance,” of adjudicating Phillips’ religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it. It hardly requires restating that government has no role in deciding or even suggest- ing whether the religious ground for Phillips’ conscience- based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires. While the issues here are difficult to resolve, it must be concluded that the State’s interest could have been 18 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners’ com- ments—comments that were not disavowed at the Com- mission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires. The Commis- sion’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside. III The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. How- ever later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated. The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be re- solved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market. The judgment of the Colorado Court of Appeals is re- versed. It is so ordered. Cite as: 584 U. S. (2018) 1 KAGAN, J., concurring SUPREME COURT OF THE UNITED STATES No. 16–111 MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION, ET AL.

Justice Brennan

majority

Lake Carriers' Assn. v. MacMullan

https://www.courtlistener.com/opinion/108546/lake-carriers-assn-v-macmullan/

https://www.courtlistener.com/api/rest/v3/clusters/108546/

1971-118

This is an appeal from the judgment of a three-judge District Court, convened under 28 U.S. C. §§ 2281, 2284, dismissing a complaint to have the Michigan Watercraft Pollution Control Act of 1970, Mich. Comp. Laws Ann. § 323.331 et seq. (Supp. 1971), declared invalid and its enforcement enjoined. 336 F. Supp. 248 (1971). We noted probable jurisdiction, 404 U.S. 982 (1971), and affirm the District Court's determination to abstain from decision pending state court proceedings. The Michigan statute, effective January 1, 1971, provides in pertinent part: "Sec. 3. (1) A person [defined in § 2 (i) to mean "an individual, partnership, firm, corporation, association or other entity"] shall not place, throw, deposit, discharge or cause to be discharged into or onto the waters of this state, any . . . sewage [defined in § 2 (d) to mean "all human body wastes, treated or untreated"] . . . or other liquid or solid materials *501 which render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes. "(2) It is unlawful to discharge, dump, throw or deposit . . . sewage . . . from a recreational, domestic or foreign watercraft used for pleasure or for the purpose of carrying passengers, cargo or otherwise engaged in commerce on the waters of this state. "Sec. 4. (1) Any pleasure or recreational watercraft operated on the waters of this state which is moored or registered in another state or jurisdiction, if equipped with a pollution control device approved by that jurisdiction, may be approved by the [State Water Resources Commission of the Department of Natural Resources] to operate on the waters of this state. "(2) A person owning, operating or otherwise concerned in the operation, navigation or management of a watercraft [defined in § 2 (g) to include "foreign and domestic vessels engaged in commerce upon the waters of this state" as well as "privately owned recreational watercraft"] having a marine toilet shall not own, use or permit the use of such toilet on the waters of this state unless the toilet is equipped with 1 of the following pollution control devices: "(a) A holding tank or self-contained marine toilet which will retain all sewage produced on the watercraft for subsequent disposal at approved dock-side or onshore collection and treatment facilities. "(b) An incinerating device which will reduce to ash all sewage produced on the watercraft. The ash shall be disposed of onshore in a manner which will preclude pollution. ..... *502 "Sec. 8. . . . Commercial docks and wharfs designed for receiving and loading cargo and/or freight from commercial watercraft must furnish facilities, if determined necessary, as prescribed by the commission, to accommodate discharge of sewage from heads and galleys . . . [of] the watercraft which utilize the docks or wharfs. ..... "Sec. 10. The commission may promulgate all rules necessary or convenient for the carrying out of duties and powers conferred by this act. "Sec. 11. Any person who violates any provision of this act is guilty of a misdemeanor and shall be fined not more than $500.00. To be enforceable, the provision or the rule shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations." Appellees—the State Attorney General, the Department of Natural Resources and its Director, and the Water Resources Commission and its Executive Secretary—read these provisions as prohibiting the discharge of sewage, whether treated or untreated, in Michigan waters and as requiring vessels with marine toilets to have sewage storage devices. Appellants—the Lake Carriers' Association and individual members who own or operate federally enrolled and licensed Great Lakes bulk cargo vessels—challenge the Michigan law on a variety of grounds. They urge that the Michigan law is beyond the State's police power and places an undue burden on interstate and foreign commerce, impermissibly interferes with uniform maritime law, denies them due process and equal protection of the laws, and is unconstitutionally vague. They also contend that the Michigan statute conflicts with or is *503 pre-empted by federal law, primarily[1] the Federal Water Pollution Control Act, as amended by the Water Quality Improvement Act of 1970, and is therefore invalid under the Supremacy Clause. Under the Water Quality Improvement Act, the Administrator of the Environmental Protection Agency[2] is directed "[a]s soon as possible, after April 3, 1970, . . . [to] promulgate Federal standards of performance for marine sanitation devices . . . which shall be designed to prevent the discharge of untreated or inadequately treated sewage into or upon the navigable waters of the United States from new vessels and existing vessels, except vessels not equipped with installed toilet facilities." 84 Stat. 100, 33 U.S. C. § 1163 (b) (1).[3] These standards, which as of now are not issued,[4] are to become effective for new vessels two years after promulgation and for existing vessels five years after promulgation. 84 Stat. 101, 33 U.S. C. § 1163 (c) (1). Thereafter, "no State . . . shall adopt or enforce any statute or regulation . . . with respect to the *504 design, manufacture, or installation or use of any marine sanitation device on any vessel subject to the provisions of this section." Id., § 1163 (f). However, "[u]pon application by a State, and where the Administrator determines that any applicable water quality standards require such a prohibition, he shall by regulation completely prohibit the discharge from a vessel of any sewage (whether treated or not) into those waters of such State which are the subject of the application and to which such standards apply." Ibid. Thus, the federal law appears to contemplate sewage control through onboard treatment before disposal in navigable waters, unless the Administrator provides on special application for a complete prohibition on discharge in designated areas. The District Court below did not reach the merits of appellants' complaint on the ground that "the lack of a justiciable controversy precludes entry of this Court into the matter." 336 F. Supp., at 253.[5] "An overview of the factual situation presented by the evidence in this case," said the District Court, "compels but one conclusion: that the plaintiffs here are seeking an advisory *505 opinion . . . ." Ibid. The District Court also found "compelling reasons to abstain from consideration of the matter in its present posture," ibid.—namely, "the attitude of Michigan authorities who seek the co-operation of the industry in the implementation of its program and have not instigated, nor does it appear, threatened criminal prosecutions," id., at 252;[6] the availability of declaratory relief in Michigan courts; the possibility of a complete prohibition on the discharge of sewage in Michigan's navigable waters under federal law;[7] the absence of existing conflict between the Michigan requirements and other state laws;[8] and the publication *506 of proposed federal standards that might be considered by Michigan in the interpretation and enforcement of its statute.[9] Appellants now urge that their complaint does present an "actual controversy" within the meaning of the Declaratory Judgment Act, 28 U.S. C. § 2201, that is ripe for decision. We agree. The test to be applied, of course, is the familiar one stated in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941): "Basically, the question in each case is whether . . . there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Compare, e. g., ibid., with, e. g., Golden v. Zwickler, 394 U.S. 103 (1969). Since, as appellees concede, [10] the Michigan requirements on the discharge of sewage will be preempted when the federal standards become effective, the gist of appellants' grievance is that, according to Michigan authorities, they are required under Michigan law to install sewage storage devices that (1) may become unnecessary once federal standards, authorizing discharge of treated sewage, become applicable or (2) may, in any event, conflict with other state regulations pending the promulgation and effective date of the federal *507 standards. The immediacy and reality of appellants' concerns do not depend, contrary to what the District Court may have considered, on the probability that federal standards will authorize discharge of treated sewage in Michigan waters or that other States will implement sewage control requirements inconsistent with those of Michigan. They depend instead only on the present effectiveness in fact of the obligation under the Michigan statute to install sewage storage devices. For if appellants are now under such an obligation, that in and of itself makes their attack on the validity of the law a live controversy, and not an attempt to obtain an advisory opinion. See, e. g., Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945) (existing burden on interstate commerce justiciable controversy in absence of federal pre-emption or other conflicting state laws). Regarding the present effectiveness in fact of a statutory obligation, the plurality opinion in Poe v. Ullman, 367 U.S. 497, 508 (1961), stated that a justiciable controversy does not exist where "compliance with [challenged] statutes is uncoerced by the risk of their enforcement." That, however, is not this case. Although appellees have indicated that they will not prosecute under the Michigan act until adequate land-based pump-out facilities are available to service vessels equipped with sewage storage devices, they have sought on the basis of the act and the threat of future enforcement to obtain compliance as soon as possible. The following colloquy that occurred on oral argument here is instructive, Tr. of Oral Arg. 34-35: "[Appellees]: . . . We urge that the leadtime for the construction or erection of pump-out facilities is necessary, and there would be no enforcement until pump-out facilities were available. ..... *508 "Q. But you're insisting that the carriers get ready to comply and____ "[Appellees]: Yes, sir. "Q. —because if you wait until pump-out stations are ready to begin [servicing] tanks, then there will be another great delay? "[Appellees]: Oh, yes, sir. "Q. So you have a rather concrete confrontation with these carriers now, don't you? "[Appellees]: Yes, sir, we do. . . ." Thus, if appellants are to avoid prosecution, they must be prepared, according to Michigan authorities, to retain all sewage on board as soon as pump-out facilities are available, which, in turn, means that they must promptly install sewage storage devices.[11] In this circumstance, compliance is coerced by the threat of enforcement, and the controversy is both immediate and real. See, e. g., Pierce v. Society of Sisters, 268 U.S. 510 (1925); City of Altus, Oklahoma v. Carr, 255 F. Supp. 828, aff'd per curiam, 385 U.S. 35 (1966). See generally, e. g., Comment, 62 Colo. L. Rev. 106 (1962).[12] *509 Appellants next argue that the District Court erred in abstaining from deciding the merits of their complaint.[13] We agree that abstention was not proper on the majority of grounds given by the District Court, but hold that abstention was, nevertheless, appropriate for another reason suggested but not fully articulated in its opinion. Abstention is a "judge-made doctrine . . . , first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U.S. 496, [that] sanctions . . . escape [from immediate decision] only in narrowly limited `special circumstances,' Propper v. Clark, 337 U.S. 472, 492," Zwickler v. Koota, 389 U.S. 241, 248 (1967), justifying "the delay and expense to which application of the abstention doctrine inevitably gives rise." England v. Medical Examiners, 375 U.S. 411, 418 (1964). The majority of circumstances relied on by the District Court in this case do not fall within that category. First, the absence of an immediate threat of prosecution does not argue against reaching the merits of appellants' complaint. In Younger v. Harris, 401 U.S. 37 (1971), and Samuels v. Mackell, 401 U.S. 66 (1971), this Court held that, apart from "extraordinary circumstances," a federal court may not enjoin a pending state prosecution or declare invalid the statute under which the prosecution was brought. The decisions there were premised on considerations of equity practice and comity in our federal system that have little force in the absence of a pending state proceeding. In that circumstance, exercise of federal court jurisdiction ordinarily is appropriate if the conditions for declaratory or injunctive relief are met. See generally *510 Perez v. Ledesma, 401 U.S. 82, 93 (1971) (separate opinion). Similarly, the availability of declaratory relief in Michigan courts on appellants' federal claims is wholly beside the point. In Zwickler v. Koota, supra, at 248, we said: "In thus [establishing jurisdiction for the exercise of] federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, `. . . to guard, enforce, and protect every right granted or secured by the Constitution of the United States . . . ,' Robb v. Connolly, 111 U.S. 624, 637." Compare, e. g., Askew v. Hargrave, 401 U.S. 476 (1971). The possibility that the Administrator of the Environmental Protection Agency may upon Michigan's application forbid the discharge of even treated sewage in state waters and the asserted absence of present conflict between the Michigan requirements and other state laws are equally immaterial. Just as they do not diminish the immediacy and reality of appellants' grievance, they do not call for abstention. The last factor relied on by the District Court—the publication of proposed federal standards that might be considered by Michigan in the interpretation and enforcement of its statute—does, however, point toward considerations that fall within the "special circumstances" permitting abstention. The paradigm case for abstention arises when the challenged state statute is susceptible of "a construction by the state courts that would avoid or modify the [federal] constitutional question. Harrison *511 v. NAACP, 360 U.S. 167. Compare Baggett v. Bullitt, 377 U.S. 360." Zwickler v. Koota, supra, at 249. More fully, we have explained: "Where resolution of the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law, abstention may be proper in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication . . . . The doctrine . . . contemplates that deference to state court adjudication only be made where the issue of state law is uncertain." Harman v. Forssenius, 380 U.S. 528, 534 (1965). That is precisely the circumstance presented here. The Michigan Watercraft Pollution Control Act of 1970 has not been construed in any Michigan court, and, as appellants themselves suggest in attacking it for vagueness, its terms are far from clear in particulars that go to the foundation of their grievance. It is indeed only an assertion by appellees that the Michigan law proscribes the discharge of even treated sewage in state waters. Section 3 (2) of the Act does state that "[i]t is unlawful to discharge . . . sewage . . . from a recreational, domestic or foreign watercraft used for pleasure or for [commerce] . . . ," and § 4 (2) does require vessels equipped with toilet facilities to have sewage storage devices.[14] Yet § 3 (1) seemingly contemplates the discharge *512 of treated sewage by merely prohibiting any person from emitting sewage "which [renders] the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes." Moreover, § 11 provides that "[t]o be enforceable, the provision [of the Act] or the rule [presumably promulgated thereunder] shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations." Michigan has thus demonstrated concern that its pollution control requirements be sufficiently flexible to accord with federal law. We do not know, of course, how far Michigan courts will go in interpreting the requirements of the state Watercraft Pollution Control Act in light of the federal Water Quality Improvement Act[15] and the constraints of the United States Constitution.[16] But we are satisfied that authoritative resolution of the ambiguities in the Michigan law is sufficiently likely to avoid or significantly modify the federal questions appellants raise to warrant abstention, particularly in view of the absence of countervailing considerations that we have found compelling in prior decisions. See, e. g., Harman v. Forssenius, supra, at 537; Baggett v. Bullitt, 377 U.S. 360, 378-379 (1964). In affirming the decision of the District Court to abstain, we, of course, intimate no view on the merits of appellants' claims. We do, however, vacate the judgment below and remand the case to the District Court *513 with directions to retain jurisdiction pending institution by appellants of appropriate proceedings in Michigan courts. See Zwickler v. Koota, 389 U. S., at 244 n. 4. It is so ordered. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE REHNQUIST joins, concurring in the result. I agree that the complaint presents an actual controversy and that the District Court properly abstained. I therefore concur in the result and join the judgment of the Court. MR.

This is an appeal from the judgment of a three-judge District Court, convened under 28 U.S. C. 2281, 2284, dismissing a complaint to have the Michigan Watercraft Pollution Control Act of 1970, et seq. declared invalid and its enforcement enjoined. We noted probable jurisdiction, and affirm the District Court's determination to abstain from decision pending state court proceedings. The Michigan statute, effective January 1, provides in pertinent part: "Sec. 3. (1) A person [defined in 2 (i) to mean "an individual, partnership, firm, corporation, association or other entity"] shall not place, throw, deposit, discharge or cause to be discharged into or onto the waters of this state, any sewage [defined in 2 (d) to mean "all human body wastes, treated or untreated"] or other liquid or solid materials *501 which render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes. "(2) It is unlawful to discharge, dump, throw or deposit sewage from a recreational, domestic or foreign watercraft used for pleasure or for the purpose of carrying passengers, cargo or otherwise engaged in commerce on the waters of this state. "Sec. 4. (1) Any pleasure or recreational watercraft operated on the waters of this state which is moored or registered in another state or jurisdiction, if equipped with a pollution control device approved by that jurisdiction, may be approved by the [State Water Resources Commission of the Department of Natural Resources] to operate on the waters of this state. "(2) A person owning, operating or otherwise concerned in the operation, navigation or management of a watercraft [defined in 2 (g) to include "foreign and domestic vessels engaged in commerce upon the waters of this state" as well as "privately owned recreational watercraft"] having a marine toilet shall not own, use or permit the use of such toilet on the waters of this state unless the toilet is equipped with 1 of the following pollution control devices: "(a) A holding tank or self-contained marine toilet which will retain all sewage produced on the watercraft for subsequent disposal at approved dock-side or onshore collection and treatment facilities. "(b) An incinerating device which will reduce to ash all sewage produced on the watercraft. The ash shall be disposed of onshore in a manner which will preclude pollution. *502 "Sec. 8. Commercial docks and wharfs designed for receiving and loading cargo and/or freight from commercial watercraft must furnish facilities, if determined necessary, as prescribed by the commission, to accommodate discharge of sewage from heads and galleys [of] the watercraft which utilize the docks or wharfs. "Sec. 10. The commission may promulgate all rules necessary or convenient for the carrying out of duties and powers conferred by this act. "Sec. 11. Any person who violates any provision of this act is guilty of a misdemeanor and shall be fined not more than $500.00. To be enforceable, the provision or the rule shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations." Appellees—the State Attorney General, the Department of Natural Resources and its Director, and the Water Resources Commission and its Executive Secretary—read these provisions as prohibiting the discharge of sewage, whether treated or untreated, in Michigan waters and as requiring vessels with marine toilets to have sewage storage devices. Appellants—the Lake Carriers' Association and individual members who own or operate federally enrolled and licensed Great Lakes bulk cargo vessels—challenge the Michigan law on a variety of grounds. They urge that the Michigan law is beyond the State's police power and places an undue burden on interstate and foreign commerce, impermissibly interferes with uniform maritime law, denies them due process and equal protection of the laws, and is unconstitutionally vague. They also contend that the Michigan statute conflicts with or is *503 pre-empted by federal law, primarily[1] the Federal Water Pollution Control Act, as amended by the Water Quality Improvement Act of 1970, and is therefore invalid under the Supremacy Clause. Under the Water Quality Improvement Act, the Administrator of the Environmental Protection Agency[2] is directed "[a]s soon as possible, after April 3, 1970, [to] promulgate Federal standards of performance for marine sanitation devices which shall be designed to prevent the discharge of untreated or inadequately treated sewage into or upon the navigable waters of the United States from new vessels and existing vessels, except vessels not equipped with installed toilet facilities." 33 U.S. C. 1163 (b) (1).[3] These standards, which as of now are not issued,[4] are to become effective for new vessels two years after promulgation and for existing vessels five years after promulgation. 33 U.S. C. 1163 (c) (1). Thereafter, "no State shall adopt or enforce any statute or regulation with respect to the *504 design, manufacture, or installation or use of any marine sanitation device on any vessel subject to the provisions of this section." 1163 (f). However, "[u]pon application by a State, and where the Administrator determines that any applicable water quality standards require such a prohibition, he shall by regulation completely prohibit the discharge from a vessel of any sewage (whether treated or not) into those waters of such State which are the subject of the application and to which such standards apply." Thus, the federal law appears to contemplate sewage control through onboard treatment before disposal in navigable waters, unless the Administrator provides on special application for a complete prohibition on discharge in designated areas. The District Court below did not reach the merits of appellants' complaint on the ground that "the lack of a justiciable controversy precludes entry of this Court into the matter."[5] "An overview of the factual situation presented by the evidence in this case," said the District Court, "compels but one conclusion: that the plaintiffs here are seeking an advisory *505 opinion" The District Court also found "compelling reasons to abstain from consideration of the matter in its present posture," ibid.—namely, "the attitude of Michigan authorities who seek the co-operation of the industry in the implementation of its program and have not instigated, nor does it appear, threatened criminal prosecutions," ;[6] the availability of declaratory relief in Michigan courts; the possibility of a complete prohibition on the discharge of sewage in Michigan's navigable waters under federal law;[7] the absence of existing conflict between the Michigan requirements and other state laws;[8] and the publication *506 of proposed federal standards that might be considered by Michigan in the interpretation and enforcement of its statute.[9] Appellants now urge that their complaint does present an "actual controversy" within the meaning of the Declaratory Judgment Act, 28 U.S. C. 2201, that is ripe for decision. We agree. The test to be applied, of course, is the familiar one stated in Maryland Casualty : "Basically, the question in each case is whether there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Compare, e. g., ib with, e. g., Since, as appellees concede, [10] the Michigan requirements on the discharge of sewage will be preempted when the federal standards become effective, the gist of appellants' grievance is that, according to Michigan authorities, they are required under Michigan law to install sewage storage devices that (1) may become unnecessary once federal standards, authorizing discharge of treated sewage, become applicable or (2) may, in any event, conflict with other state regulations pending the promulgation and effective date of the federal *507 standards. The immediacy and reality of appellants' concerns do not depend, contrary to what the District Court may have considered, on the probability that federal standards will authorize discharge of treated sewage in Michigan waters or that other States will implement sewage control requirements inconsistent with those of Michigan. They depend instead only on the present effectiveness in fact of the obligation under the Michigan statute to install sewage storage devices. For if appellants are now under such an obligation, that in and of itself makes their attack on the validity of the law a live controversy, and not an attempt to obtain an advisory opinion. See, e. g., Southern Pacific Regarding the present effectiveness in fact of a statutory obligation, the plurality opinion in stated that a justiciable controversy does not exist where "compliance with [challenged] statutes is uncoerced by the risk of their enforcement." That, however, is not this case. Although appellees have indicated that they will not prosecute under the Michigan act until adequate land-based pump-out facilities are available to service vessels equipped with sewage storage devices, they have sought on the basis of the act and the threat of future enforcement to obtain compliance as soon as possible. The following colloquy that occurred on oral argument here is instructive, Tr. of Oral Arg. 34-35: "[Appellees]: We urge that the leadtime for the construction or erection of pump-out facilities is necessary, and there would be no enforcement until pump-out facilities were available. * "Q. But you're insisting that the carriers get ready to comply and "[Appellees]: Yes, sir. "Q. —because if you wait until pump-out stations are ready to begin [servicing] tanks, then there will be another great delay? "[Appellees]: Oh, yes, sir. "Q. So you have a rather concrete confrontation with these carriers now, don't you? "[Appellees]: Yes, sir, we do." Thus, if appellants are to avoid prosecution, they must be prepared, according to Michigan authorities, to retain all sewage on board as soon as pump-out facilities are available, which, in turn, means that they must promptly install sewage storage devices.[11] In this circumstance, compliance is coerced by the threat of enforcement, and the controversy is both immediate and real. See, e. g., ; City of Altus, See generally, e. g., Comment, 62 Colo. L. Rev. 106 (1962).[12] *509 Appellants next argue that the District Court erred in abstaining from deciding the merits of their complaint.[13] We agree that abstention was not proper on the majority of grounds given by the District Court, but hold that abstention was, nevertheless, appropriate for another reason suggested but not fully articulated in its opinion. Abstention is a "judge-made doctrine first fashioned in 1941 in Railroad justifying "the delay and expense to which application of the abstention doctrine inevitably gives rise." The majority of circumstances relied on by the District Court in this case do not fall within that category. First, the absence of an immediate threat of prosecution does not argue against reaching the merits of appellants' complaint. In and this Court held that, apart from "extraordinary circumstances," a federal court may not enjoin a pending state prosecution or declare invalid the statute under which the prosecution was brought. The decisions there were premised on considerations of equity practice and comity in our federal system that have little force in the absence of a pending state proceeding. In that circumstance, exercise of federal court jurisdiction ordinarily is appropriate if the conditions for declaratory or injunctive relief are met. See generally *510 Similarly, the availability of declaratory relief in Michigan courts on appellants' federal claims is wholly beside the point. In at we said: "In thus [establishing jurisdiction for the exercise of] federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, `. to guard, enforce, and protect every right granted or secured by the Constitution of the United States'" Compare, e. g., The possibility that the Administrator of the Environmental Protection Agency may upon Michigan's application forbid the discharge of even treated sewage in state waters and the asserted absence of present conflict between the Michigan requirements and other state laws are equally immaterial. Just as they do not diminish the immediacy and reality of appellants' grievance, they do not call for abstention. The last factor relied on by the District Court—the publication of proposed federal standards that might be considered by Michigan in the interpretation and enforcement of its statute—does, however, point toward considerations that fall within the "special circumstances" permitting abstention. The paradigm case for abstention arises when the challenged state statute is susceptible of "a construction by the state courts that would avoid or modify the [federal] constitutional question. Harrison Compare" More fully, we have explained: "Where resolution of the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law, abstention may be proper in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication The doctrine contemplates that deference to state court adjudication only be made where the issue of state law is uncertain." That is precisely the circumstance presented here. The Michigan Watercraft Pollution Control Act of 1970 has not been construed in any Michigan court, and, as appellants themselves suggest in attacking it for vagueness, its terms are far from clear in particulars that go to the foundation of their grievance. It is indeed only an assertion by appellees that the Michigan law proscribes the discharge of even treated sewage in state waters. Section 3 (2) of the Act does state that "[i]t is unlawful to discharge sewage from a recreational, domestic or foreign watercraft used for pleasure or for [commerce]" and 4 (2) does require vessels equipped with toilet facilities to have sewage storage devices.[14] Yet 3 (1) seemingly contemplates the discharge *512 of treated sewage by merely prohibiting any person from emitting sewage "which [renders] the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes." Moreover, 11 provides that "[t]o be enforceable, the provision [of the Act] or the rule [presumably promulgated thereunder] shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations." Michigan has thus demonstrated concern that its pollution control requirements be sufficiently flexible to accord with federal law. We do not know, of course, how far Michigan courts will go in interpreting the requirements of the state Watercraft Pollution Control Act in light of the federal Water Quality Improvement Act[15] and the constraints of the United States Constitution.[16] But we are satisfied that authoritative resolution of the ambiguities in the Michigan law is sufficiently likely to avoid or significantly modify the federal questions appellants raise to warrant abstention, particularly in view of the absence of countervailing considerations that we have found compelling in prior decisions. See, e. g., ; In affirming the decision of the District Court to abstain, we, of course, intimate no view on the merits of appellants' claims. We do, however, vacate the judgment below and remand the case to the District Court *513 with directions to retain jurisdiction pending institution by appellants of appropriate proceedings in Michigan courts. See n. 4. It is so ordered. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE REHNQUIST joins, concurring in the result. I agree that the complaint presents an actual controversy and that the District Court properly abstained. I therefore concur in the result and join the judgment of the Court. MR.

Justice Ginsburg

concurring

Ohio v. Robinette

https://www.courtlistener.com/opinion/118066/ohio-v-robinette/

https://www.courtlistener.com/api/rest/v3/clusters/118066/

1996-005

Robert Robinette's traffic stop for a speeding violation on an interstate highway in Ohio served as prelude to a search of his automobile for illegal drugs. Robinette's experience was not uncommon in Ohio. As the Ohio Supreme Court related, the sheriff's deputy who detained Robinette for speeding and then asked Robinette for permission to search his vehicle "was on drug interdiction patrol at the time." 73 Ohio St. 3d 650, 651, 653 N.E.2d 695, 696 (1995). The deputy testified in Robinette's case that he routinely requested permission to search automobiles he stopped for traffic violations. Ibid. According to the deputy's testimony in another prosecution, he requested consent to search in 786 traffic stops in 1992, the year of Robinette's arrest. State v. Retherford, 93 Ohio App. 3d 586, 594, n. 3, 639 N.E.2d 498, 503, n. 3, dism'd, 69 Ohio St. 3d 1488, 635 N.E.2d 43 (1994). From their unique vantage point, Ohio's courts observed that traffic stops in the State were regularly giving way to contraband searches, characterized as consensual, even when officers had no reason to suspect illegal activity. One Ohio appellate court noted: "[H]undreds, and perhaps thousands of Ohio citizens are being routinely delayed in their travels and asked to relinquish to uniformed police officers their *41 right to privacy in their automobiles and luggage, sometimes for no better reason than to provide an officer the opportunity to `practice' his drug interdiction technique." 93 Ohio App. 3d, at 594, 639 N. E. 2d, at 503 (footnote omitted). Against this background, the Ohio Supreme Court determined, and announced in Robinette's case, that the federal and state constitutional rights of Ohio citizens to be secure in their persons and property called for the protection of a clear-cut instruction to the State's police officers: An officer wishing to engage in consensual interrogation of a motorist at the conclusion of a traffic stop must first tell the motorist that he or she is free to go. The Ohio Supreme Court described the need for its first-tell-then-ask rule this way: "The transition between detention and a consensual exchange can be so seamless that the untrained eye may not notice that it has occurred. . . . . . . . . "Most people believe that they are validly in a police officer's custody as long as the officer continues to interrogate them. The police officer retains the upper hand and the accouterments of authority. That the officer lacks legal license to continue to detain them is unknown to most citizens, and a reasonable person would not feel free to walk away as the officer continues to address him. . . . . . "While the legality of consensual encounters between police and citizens should be preserved, we do not believe that this legality should be used by police officers to turn a routine traffic stop into a fishing expedition for unrelated criminal activity. The Fourth Amendment to the federal Constitution and Section 14, Article I of the Ohio Constitution exist to protect citizens against such an unreasonable interference with their liberty." 73 Ohio St. 3d, at 654-655, 653 N. E. 2d, at 698-699. *42 Today's opinion reversing the decision of the Ohio Supreme Court does not pass judgment on the wisdom of the first-tell-then-ask rule. This Court's opinion simply clarifies that the Ohio Supreme Court's instruction to police officers in Ohio is not, under this Court's controlling jurisprudence, the command of the Federal Constitution. See ante, at 39— 40. The Ohio Supreme Court invoked both the Federal Constitution and the Ohio Constitution without clearly indicating whether state law, standing alone, independently justified the court's rule. The ambiguity in the Ohio Supreme Court's decision renders this Court's exercise of jurisdiction proper under Michigan v. Long, 463 U.S. 1032, 1040-1042 (1983), and this Court's decision on the merits is consistent with the Court's "totality of the circumstances" Fourth Amendment precedents, see ante, at 39. I therefore concur in the Court's judgment. I write separately, however, because it seems to me improbable that the Ohio Supreme Court understood its firsttell-then-ask rule to be the Federal Constitution's mandate for the Nation as a whole. "[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards." Oregon v. Hass, 420 U.S. 714, 719 (1975).[*] But ordinarily, when a state high court grounds a rule of criminal procedure in the Federal Constitution, the *43 court thereby signals its view that the Nation's Constitution would require the rule in all 50 States. Given this Court's decisions in consent-to-search cases such as Schneckloth v. Bustamonte, 412 U.S. 218 (1973), and Florida v. Bostick, 501 U.S. 429 (1991), however, I suspect that the Ohio Supreme Court may not have homed in on the implication ordinarily to be drawn from a state court's reliance on the Federal Constitution. In other words, I question whether the Ohio court thought of the strict rule it announced as a rule for the governance of police conduct not only in Miami County, Ohio, but also in Miami, Florida. The first-tell-then-ask rule seems to be a prophylactic measure not so much extracted from the text of any constitutional provision as crafted by the Ohio Supreme Court to reduce the number of violations of textually guaranteed rights. In Miranda v. Arizona, 384 U.S. 436 (1966), this Court announced a similarly motivated rule as a minimal national requirement without suggesting that the text of the Federal Constitution required the precise measures the Court's opinion set forth. See id., at 467 ("[T]he Constitution [does not] necessarily requir[e] adherence to any particular solution" to the problems associated with custodial interrogations.); see also Oregon v. Elstad, 470 U.S. 298, 306 (1985) ("The Miranda exclusionary rule . . . sweeps more broadly than the Fifth Amendment itself."). Although all parts of the United States fall within this Court's domain, the Ohio Supreme Court is not similarly situated. That court can declare prophylactic rules governing the conduct of officials in Ohio, but it cannot command the police forces of sister States. The very ease with which the Court today disposes of the federal leg of the Ohio Supreme Court's decision strengthens my impression that the Ohio Supreme Court saw its rule as a measure made for Ohio, designed to reinforce in that State the right of the people to be secure against unreasonable searches and seizures. *44 The Ohio Supreme Court's syllabus and opinion, however, were ambiguous. Under Long, the existence of ambiguity regarding the federal- or state-law basis of a state-court decision will trigger this Court's jurisdiction. Long governs even when, all things considered, the more plausible reading of the state court's decision may be that the state court did not regard the Federal Constitution alone as a sufficient basis for its ruling. Compare Arizona v. Evans, 514 U.S. 1, 7-9 (1995), with id., at 31-33 (Ginsburg, J., dissenting). It is incumbent on a state court, therefore, when it determines that its State's laws call for protection more complete than the Federal Constitution demands, to be clear about its ultimate reliance on state law. Similarly, a state court announcing a new legal rule arguably derived from both federal and state law can definitively render state law an adequate and independent ground for its decision by a simple declaration to that effect. A recent Montana Supreme Court opinion on the scope of an individual's privilege against self-incrimination includes such a declaration: "While we have devoted considerable time to a lengthy discussion of the application of the Fifth Amendment to the United States Constitution, it is to be noted that this holding is also based separately and independently on [the defendant's] right to remain silent pursuant to Article II, Section 25 of the Montana Constitution." State v. Fuller, 276 Mont. 155, 167, 915 P.2d 809, 816, cert. denied, post, p. 930. An explanation of this order meets the Court's instruction in Long that "[i]f the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, [this Court] will not undertake to review the decision." 463 U.S., at 1041. On remand, the Ohio Supreme Court may choose to clarify that its instructions to law enforcement officers in Ohio find *45 adequate and independent support in state law, and that in issuing these instructions, the court endeavored to state dispositively only the law applicable in Ohio. See Evans, 514 U. S., at 30-34 (Ginsburg, J., dissenting). To avoid misunderstanding, the Ohio Supreme Court must itself speak with the clarity it sought to require of its State's police officers. The efficacy of its endeavor to safeguard the liberties of Ohioans without disarming the State's police can then be tested in the precise way Our Federalism was designed to work. See, e. g., Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N. Y. U. L. Rev. 1, 11-18 (1995); Linde, First Things First: Rediscovering the States' Bills of Rights, 9 U. Balt. L. Rev. 379, 392-396 (1980).

Robert Robinette's traffic stop for a speeding violation on an interstate highway in Ohio served as prelude to a search of his automobile for illegal drugs. Robinette's experience was not uncommon in Ohio. As the Ohio Supreme Court related, the sheriff's deputy who detained Robinette for speeding and then asked Robinette for permission to search his vehicle "was on drug interdiction patrol at the time." The deputy testified in Robinette's case that he routinely requested permission to search automobiles he stopped for traffic violations. According to the deputy's testimony in another prosecution, he requested consent to search in 786 traffic stops in 1992, the year of Robinette's arrest. From their unique vantage point, Ohio's courts observed that traffic stops in the State were regularly giving way to contraband searches, characterized as consensual, even when officers had no reason to suspect illegal activity. One Ohio appellate court noted: "[H]undreds, and perhaps thousands of Ohio citizens are being routinely delayed in their travels and asked to relinquish to uniformed police officers their *41 right to privacy in their automobiles and luggage, sometimes for no better reason than to provide an officer the opportunity to `practice' his drug interdiction technique." Against this background, the Ohio Supreme Court determined, and announced in Robinette's case, that the federal and state constitutional rights of Ohio citizens to be secure in their persons and property called for the protection of a clear-cut instruction to the State's police officers: An officer wishing to engage in consensual interrogation of a motorist at the conclusion of a traffic stop must first tell the motorist that he or she is free to go. The Ohio Supreme Court described the need for its first-tell-then-ask rule this way: "The transition between detention and a consensual exchange can be so seamless that the untrained eye may not notice that it has occurred. "Most people believe that they are validly in a police officer's custody as long as the officer continues to interrogate them. The police officer retains the upper hand and the accouterments of authority. That the officer lacks legal license to continue to detain them is unknown to most citizens, and a reasonable person would not feel free to walk away as the officer continues to address him. "While the legality of consensual encounters between police and citizens should be preserved, we do not believe that this legality should be used by police officers to turn a routine traffic stop into a fishing expedition for unrelated criminal activity. The Fourth Amendment to the federal Constitution and Section 14, Article I of the Ohio Constitution exist to protect citizens against such an unreasonable interference with their liberty." -699. *42 Today's opinion reversing the decision of the Ohio Supreme Court does not pass judgment on the wisdom of the first-tell-then-ask rule. This Court's opinion simply clarifies that the Ohio Supreme Court's instruction to police officers in Ohio is not, under this Court's controlling jurisprudence, the command of the Federal Constitution. See ante, at 39— 40. The Ohio Supreme Court invoked both the Federal Constitution and the Ohio Constitution without clearly indicating whether state law, standing alone, independently justified the court's rule. The ambiguity in the Ohio Supreme Court's decision renders this Court's exercise of jurisdiction proper under and this Court's decision on the merits is consistent with the Court's "totality of the circumstances" Fourth Amendment precedents, see ante, at 39. I therefore concur in the Court's judgment. I write separately, however, because it seems to me improbable that the Ohio Supreme Court understood its firsttell-then-ask rule to be the Federal Constitution's mandate for the Nation as a whole. "[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards."[*] But ordinarily, when a state high court grounds a rule of criminal procedure in the Federal Constitution, the *43 court thereby signals its view that the Nation's Constitution would require the rule in all 50 States. Given this Court's decisions in consent-to-search cases such as and however, I suspect that the Ohio Supreme Court may not have homed in on the implication ordinarily to be drawn from a state court's reliance on the Federal Constitution. In other words, I question whether the Ohio court thought of the strict rule it announced as a rule for the governance of police conduct not only in Miami County, Ohio, but also in Miami, Florida. The first-tell-then-ask rule seems to be a prophylactic measure not so much extracted from the text of any constitutional provision as crafted by the Ohio Supreme Court to reduce the number of violations of textually guaranteed rights. In this Court announced a similarly motivated rule as a minimal national requirement without suggesting that the text of the Federal Constitution required the precise measures the Court's opinion set forth. See ; see also Although all parts of the United States fall within this Court's domain, the Ohio Supreme Court is not similarly situated. That court can declare prophylactic rules governing the conduct of officials in Ohio, but it cannot command the police forces of sister States. The very ease with which the Court today disposes of the federal leg of the Ohio Supreme Court's decision strengthens my impression that the Ohio Supreme Court saw its rule as a measure made for Ohio, designed to reinforce in that State the right of the people to be secure against unreasonable searches and seizures. *44 The Ohio Supreme Court's syllabus and opinion, however, were ambiguous. Under Long, the existence of ambiguity regarding the federal- or state-law basis of a state-court decision will trigger this Court's jurisdiction. Long governs even when, all things considered, the more plausible reading of the state court's decision may be that the state court did not regard the Federal Constitution alone as a sufficient basis for its ruling. Compare with It is incumbent on a state court, therefore, when it determines that its State's laws call for protection more complete than the Federal Constitution demands, to be clear about its ultimate reliance on state law. Similarly, a state court announcing a new legal rule arguably derived from both federal and state law can definitively render state law an adequate and independent ground for its decision by a simple declaration to that effect. A recent Montana Supreme Court opinion on the scope of an individual's privilege against self-incrimination includes such a declaration: "While we have devoted considerable time to a lengthy discussion of the application of the Fifth Amendment to the United States Constitution, it is to be noted that this holding is also based separately and independently on [the defendant's] right to remain silent pursuant to Article II, Section 25 of the Montana Constitution." cert. denied, post, p. 930. An explanation of this order meets the Court's instruction in Long that "[i]f the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, [this Court] will not undertake to review the decision." On remand, the Ohio Supreme Court may choose to clarify that its instructions to law enforcement officers in Ohio find *45 adequate and independent support in state law, and that in issuing these instructions, the court endeavored to state dispositively only the law applicable in Ohio. See -34 To avoid misunderstanding, the Ohio Supreme Court must itself speak with the clarity it sought to require of its State's police officers. The efficacy of its endeavor to safeguard the liberties of Ohioans without disarming the State's police can then be tested in the precise way Our Federalism was designed to work. See, e. g., Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N. Y. U. L. Rev. 1, 11-18 ; Linde, First Things First: Rediscovering the States' Bills of Rights,

Justice Scalia

concurring

Barnes v. Glen Theatre, Inc.

https://www.courtlistener.com/opinion/112635/barnes-v-glen-theatre-inc/

https://www.courtlistener.com/api/rest/v3/clusters/112635/

1990-117

I agree that the judgment of the Court of Appeals must be reversed. In my view, however, the challenged regulation must be upheld, not because it survives some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not subject to First Amendment scrutiny at all. I Indiana's public indecency statute provides: "(a) A person who knowingly or intentionally, in a public place: "(1) engages in sexual intercourse; "(2) engages in deviate sexual conduct; "(3) appears in a state of nudity; or "(4) fondles the genitals of himself or another person; commits public indecency, a Class A misdemeanor. "(b) `Nudity' means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state." Ind. Code § 35-45-4-1 (1988). On its face, this law is not directed at expression in particular. As Judge Easterbrook put it in his dissent below: "Indiana *573 does not regulate dancing. It regulates public nudity.. . . Almost the entire domain of Indiana's statute is unrelated to expression, unless we view nude beaches and topless hot dog vendors as speech." Miller v. Civil City of South Bend, 904 F.2d 1081, 1120 (CA7 1990). The intent to convey a "message of eroticism" (or any other message) is not a necessary element of the statutory offense of public indecency; nor does one commit that statutory offense by conveying the most explicit "message of eroticism," so long as he does not commit any of the four specified acts in the process.[1] Indiana's statute is in the line of a long tradition of laws against public nudity, which have never been thought to run afoul of traditional understanding of "the freedom of speech." Public indecency—including public nudity—has long been an offense at common law. See 50 Am. Jur. 2d, Lewdness, Indecency, and Obscenity § 17, pp. 449, 472-474 (1970); Annot., Criminal offense predicated on indecent exposure, 93 A. L. R. 996, 997-998 (1934); Winters v. New York, 333 U.S. 507, 515 (1948). Indiana's first public nudity statute, Rev. Laws of Ind., ch. 26, § 60 (1831), predated by many years the appearance of nude barroom dancing. It was general in scope, directed at all public nudity, and not just at public nude expression; and all succeeding statutes, down to *574 the present one, have been the same. Were it the case that Indiana in practice targeted only expressive nudity, while turning a blind eye to nude beaches and unclothed purveyors of hot dogs and machine tools, see Miller, 904 F. 2d, at 1120, 1121, it might be said that what posed as a regulation of conduct in general was in reality a regulation of only communicative conduct. Respondents have adduced no evidence of that. Indiana officials have brought many public indecency prosecutions for activities having no communicative element. See Bond v. State, 515 N.E.2d 856, 857 (Ind. 1987); In re Levinson, 444 N.E.2d 1175, 1176 (Ind. 1983); Preston v. State, 259 Ind. 353, 354-355, 287 N.E.2d 347, 348 (1972); Thomas v. State, 238 Ind. 658, 659-660, 154 N.E.2d 503, 504-505 (1958); Blanton v. State, 533 N.E.2d 190, 191 (Ind. App. 1989); Sweeney v. State, 486 N.E.2d 651, 652 (Ind. App. 1985); Thompson v. State, 482 N.E.2d 1372, 1373-1374 (Ind. App. 1985); Adims v. State, 461 N.E.2d 740, 741-742 (Ind. App. 1984); State v. Elliott, 435 N.E.2d 302, 304 (Ind. App. 1982); Lasko v. State, 409 N.E.2d 1124, 1126 (Ind. App. 1980).[2] The dissent confidently asserts, post, at 590-591, that the purpose of restricting nudity in public places in general is to protect nonconsenting parties from offense; and argues that since only consenting, admission-paying patrons see respondents dance, that purpose cannot apply and the only remaining purpose must relate to the communicative elements of the performance. Perhaps the dissenters believe that "offense to others" ought to be the only reason for restricting nudity in public places generally, but there is no *575 basis for thinking that our society has ever shared that Thoreauvian "you-may-do-what-you-like-so-long-as-it-does-not-injure-someone-else" beau ideal—much less for thinking that it was written into the Constitution. The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosier Dome to display their genitals to one another, even if there were not an offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, "contra bonos mores," i. e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy. While there may be great diversity of view on whether various of these prohibitions should exist (though I have found few ready to abandon, in principle, all of them), there is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate "morality." See Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (upholding prohibition of private homosexual sodomy enacted solely on "the presumed belief of a majority of the electorate in [the jurisdiction] that homosexual sodomy is immoral and unacceptable"). See also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68, n. 15 (1973); Dronenburg v. Zech, 239 U. S. App. D. C. 229, 238, and n. 6, 741 F.2d 1388, 1397, and n. 6 (1984) (opinion of Bork, J.). The purpose of the Indiana statute, as both its text and the manner of its enforcement demonstrate, is to enforce the traditional moral belief that people should not expose their private parts indiscriminately, regardless of whether those who see them are disedified. Since that is so, the dissent has no basis for positing that, where only thoroughly edified adults are present, the purpose must be repression of communication.[3] *576 II Since the Indiana regulation is a general law not specifically targeted at expressive conduct, its application to such conduct does not in my view implicate the First Amendment. The First Amendment explicitly protects "the freedom of speech [and] of the press"—oral and written speech—not "expressive conduct." When any law restricts speech, even for a purpose that has nothing to do with the suppression of communication (for instance, to reduce noise, see Saia v. New York, 334 U.S. 558, 561 (1948), to regulate election campaigns, see Buckley v. Valeo, 424 U.S. 1, 16 (1976), or to prevent littering, see Schneider v. State (Town of Irvington), 308 U.S. 147, 163 (1939)), we insist that it meet the high, First Amendment standard of justification. But virtually every law restricts conduct, and virtually any prohibited conduct can be performed for an expressive purpose—if only expressive of the fact that the actor disagrees with the prohibition. See, e. g., Florida Free Beaches, Inc. v. Miami, 734 F.2d 608, 609 (CA11 1984) (nude sunbathers challenging public indecency law claimed their "message" was that nudity is not indecent). It cannot reasonably be demanded, therefore, that every restriction of expression incidentally produced by a general law regulating conduct pass normal First Amendment scrutiny, or even—as some of our cases have suggested, see, e. g., United States v. O'Brien, 391 U.S. 367, 377 (1968)—that it be justified by an "important or substantial" *577 government interest. Nor do our holdings require such justification: We have never invalidated the application of a general law simply because the conduct that it reached was being engaged in for expressive purposes and the government could not demonstrate a sufficiently important state interest. This is not to say that the First Amendment affords no protection to expressive conduct. Where the government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional. See, e. g., United States v. Eichman, 496 U.S. 310 (1990) (burning flag); Texas v. Johnson, 491 U.S. 397 (1989) (same); Spence v. Washington, 418 U.S. 405 (1974) (defacing flag); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969) (wearing black arm bands); Brown v. Louisiana, 383 U.S. 131 (1966) (participating in silent sitin); Stromberg v. California, 283 U.S. 359 (1931) (flying a red flag).[4] In each of the foregoing cases, we explicitly found that suppressing communication was the object of the regulation of conduct. Where that has not been the case, however—where suppression of communicative use of the conduct was merely the incidental effect of forbidding the conduct for other reasons—we have allowed the regulation to stand. O'Brien, supra, at 377 (law banning destruction of draft card upheld in application against card burning to protest *578 war); FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411 (1990) (Sherman Act upheld in application against restraint of trade to protest low pay); cf. United States v. Albertini, 472 U.S. 675, 687-688 (1985) (rule barring respondent from military base upheld in application against entrance on base to protest war); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (rule barring sleeping in parks upheld in application against persons engaging in such conduct to dramatize plight of homeless). As we clearly expressed the point in Johnson: "The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It may not, however, proscribe particular conduct because it has expressive elements. What might be termed the more generalized guarantee of freedom of expression makes the communicative nature of conduct an inadequate basis for singling out that conduct for proscription." 491 U.S., at 406 (internal quotation marks and citations omitted; emphasis in original). All our holdings (though admittedly not some of our discussion) support the conclusion that "the only First Amendment analysis applicable to laws that do not directly or indirectly impede speech is the threshold inquiry of whether the purpose of the law is to suppress communication. If not, that is the end of the matter so far as First Amendment guarantees are concerned; if so, the court then proceeds to determine whether there is substantial justification for the proscription." Community for Creative Non-Violence v. Watt, 227 U. S. App. D. C. 19, 55-56, 703 F.2d 586, 622-623 (1983) (en banc) (Scalia, J., dissenting), (footnote omitted; emphasis omitted), rev'd sub nom. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). Such a regime ensures that the government does not act to suppress communication, without requiring that all conduct-restricting regulation *579 (which means in effect all regulation) survive an enhanced level of scrutiny. We have explicitly adopted such a regime in another First Amendment context: that of free exercise. In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), we held that general laws not specifically targeted at religious practices did not require heightened First Amendment scrutiny even though they diminished some people's ability to practice their religion. "The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, `cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.'" Id., at 885, quoting Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 451 (1988); see also Minersville School District v. Gobitis, 310 U.S. 586, 594-595 (1940) (Frankfurter, J.) ("Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs"). There is even greater reason to apply this approach to the regulation of expressive conduct. Relatively few can plausibly assert that their illegal conduct is being engaged in for religious reasons; but almost anyone can violate almost any law as a means of expression. In the one case, as in the other, if the law is not directed against the protected value (religion or expression) the law must be obeyed. III While I do not think the plurality's conclusions differ greatly from my own, I cannot entirely endorse its reasoning. The plurality purports to apply to this general law, insofar as it regulates this allegedly expressive conduct, an intermediate level of First Amendment scrutiny: The government interest in the regulation must be "`important or substantial,'" ante, at 567, quoting O'Brien, supra, at 377. As I have indicated, *580 I do not believe such a heightened standard exists. I think we should avoid wherever possible, moreover, a method of analysis that requires judicial assessment of the "importance" of government interests—and especially of government interests in various aspects of morality. Neither of the cases that the plurality cites to support the "importance" of the State's interest here, see ante, at 569, is in point. Paris Adult Theatre I v. Slaton, 413 U. S., at 61, and Bowers v. Hardwick, 478 U. S., at 196, did uphold laws prohibiting private conduct based on concerns of decency and morality; but neither opinion held that those concerns were particularly "important" or "substantial," or amounted to anything more than a rational basis for regulation. Slaton involved an exhibition which, since it was obscene and at least to some extent public, was unprotected by the First Amendment, see Roth v. United States, 354 U.S. 476 (1957); the State's prohibition could therefore be invalidated only if it had no rational basis. We found that the State's "right. . . to maintain a decent society" provided a "legitimate" basis for regulation—even as to obscene material viewed by consenting adults. 413 U.S., at 59-60. In Bowers, we held that since homosexual behavior is not a fundamental right, a Georgia law prohibiting private homosexual intercourse needed only a rational basis in order to comply with the Due Process Clause. Moral opposition to homosexuality, we said, provided that rational basis. 478 U.S., at 196. I would uphold the Indiana statute on precisely the same ground: Moral opposition to nudity supplies a rational basis for its prohibition, and since the First Amendment has no application to this case no more than that is needed. * * * Indiana may constitutionally enforce its prohibition of public nudity even against those who choose to use public nudity as a means of communication. The State is regulating conduct, not expression, and those who choose to employ conduct *581 as a means of expression must make sure that the conduct they select is not generally forbidden. For these reasons, I agree that the judgment should be reversed. JUSTICE SOUTER, concurring in the judgment. Not all dancing is entitled to First Amendment protection as expressive activity. This Court has previously categorized ballroom dancing as beyond the Amendment's protection, Dallas v. Stanglin, 490 U.S. 19, 24-25 (1989), and dancing as aerobic exercise would likewise be outside the First Amendment's concern. But dancing as a performance directed to an actual or hypothetical audience gives expression at least to generalized emotion or feeling, and where the dancer is nude or nearly so the feeling expressed, in the absence of some contrary clue, is eroticism, carrying an endorsement of erotic experience. Such is the expressive content of the dances described in the record. Although such performance dancing is inherently expressive, nudity per se is not. It is a condition, not an activity, and the voluntary assumption of that condition, without more, apparently expresses nothing beyond the view that the condition is somehow appropriate to the circumstances. But every voluntary act implies some such idea, and the implication is thus so common and minimal that calling all voluntary activity expressive would reduce the concept of expression to the point of the meaningless. A search for some expression beyond the minimal in the choice to go nude will often yield nothing: a person may choose nudity, for example, for maximum sunbathing. But when nudity is combined with expressive activity, its stimulative and attractive value certainly can enhance the force of expression, and a dancer's acts in going from clothed to nude, as in a striptease, are integrated into the dance and its expressive function. Thus I agree with the plurality and the dissent that an interest in freely engaging in the nude dancing at issue here is subject to a degree of First Amendment protection. *582 I also agree with the plurality that the appropriate analysis to determine the actual protection required by the First Amendment is the four-part enquiry described in United States v. O'Brien, 391 U.S. 367 (1968), for judging the limits of appropriate state action burdening expressive acts as distinct from pure speech or representation. I nonetheless write separately to rest my concurrence in the judgment, not on the possible sufficiency of society's moral views to justify the limitations at issue, but on the State's substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by respondents' establishments. It is, of course, true that this justification has not been articulated by Indiana's Legislature or by its courts. As the plurality observes, "Indiana does not record legislative history, and the State's highest court has not shed additional light on the statute's purpose," ante, at 568. While it is certainly sound in such circumstances to infer general purposes "of protecting societal order and morality . . . from [the statute's] text and history," ibid., I think that we need not so limit ourselves in identifying the justification for the legislation at issue here, and may legitimately consider petitioners' assertion that the statute is applied to nude dancing because such dancing "encourag[es] prostitution, increas[es] sexual assaults, and attract[s] other criminal activity." Brief for Petitioners 37. This asserted justification for the statute may not be ignored merely because it is unclear to what extent this purpose motivated the Indiana Legislature in enacting the statute. Our appropriate focus is not an empirical enquiry into the actual intent of the enacting legislature, but rather the existence or not of a current governmental interest in the service of which the challenged application of the statute may be constitutional. Cf. McGowan v. Maryland, 366 U.S. 420 *583 (1961). At least as to the regulation of expressive conduct,[1] "[w]e decline to void [a statute] essentially on the ground that it is unwise legislation which [the legislature] had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a `wiser' speech about it." O'Brien, supra, at 384. In my view, the interest asserted by petitioners in preventing prostitution, sexual assault, and other criminal activity, although presumably not a justification for all applications of the statute, is sufficient under O'Brien to justify the State's enforcement of the statute against the type of adult entertainment at issue here. At the outset, it is clear that the prevention of such evils falls within the constitutional power of the State, which satisfies the first O'Brien criterion. See 391 U.S., at 377. The second O'Brien prong asks whether the regulation "furthers an important or substantial governmental interest." Ibid. The asserted state interest is plainly a substantial one; the only question is whether prohibiting nude dancing of the sort at issue here "furthers" that interest. I believe that our cases have addressed this question sufficiently to establish that it does. In Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), we upheld a city's zoning ordinance designed to prevent the occurrence of harmful secondary effects, including the crime associated with adult entertainment, by protecting approximately 95% of the city's area from the placement of motion picture theaters emphasizing "`matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" . . . for observation by patrons therein.'" Id., at 44. Of particular importance to the present enquiry, we held that the city of Renton was not compelled to justify its restrictions by studies specifically relating to the problems *584 that would be caused by adult theaters in that city. Rather, "Renton was entitled to rely on the experiences of Seattle and other cities," id., at 51, which demonstrated the harmful secondary effects correlated with the presence "of even one [adult] theater in a given neighborhood." Id., at 50; cf. Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, n. 34 (1976) (legislative finding that "a concentration of `adult' movie theaters causes the area to deteriorate and become a focus of crime"); California v. LaRue, 409 U.S. 109, 111 (1972) (administrative findings of criminal activity associated with adult entertainment). The type of entertainment respondents seek to provide is plainly of the same character as that at issue in Renton, American Mini Theatres, and LaRue. It therefore is no leap to say that live nude dancing of the sort at issue here is likely to produce the same pernicious secondary effects as the adult films displaying "specified anatomical areas" at issue in Renton. Other reported cases from the Circuit in which this litigation arose confirm the conclusion. See, e. g., United States v. Marren, 890 F.2d 924, 926 (CA7 1989) (prostitution associated with nude dancing establishment); United States v. Doerr, 886 F.2d 944, 949 (CA7 1989) (same). In light of Renton's recognition that legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects, the State of Indiana could reasonably conclude that forbidding nude entertainment of the type offered at the Kitty Kat Lounge and the Glen Theatre's "bookstore" furthers its interest in preventing prostitution, sexual assault, and associated crimes. Given our recognition that "society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate," American Mini Theatres, supra, at 70, I do not believe that a State is required affirmatively to undertake to litigate this issue repeatedly in every *585 case. The statute as applied to nudity of the sort at issue here therefore satisfies the second prong of O'Brien.[2] The third O'Brien condition is that the governmental interest be "unrelated to the suppression of free expression," 391 U.S., at 377, and, on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression. The dissent contends, however, that Indiana seeks to regulate nude dancing as its means of combating such secondary effects "because . . . creating or emphasizing [the] thoughts and ideas [expressed by nude dancing] in the minds of the spectators may lead to increased prostitution," post, at 592, and that regulation of expressive conduct because of the fear that the expression will prove persuasive is inherently related to the suppression of free expression. Ibid. The major premise of the dissent's reasoning may be correct, but its minor premise describing the causal theory of Indiana's regulatory justification is not. To say that pernicious secondary effects are associated with nude dancing establishments is not necessarily to say that such effects result from the persuasive effect of the expression inherent in nude dancing. It is to say, rather, only that the effects are correlated with the existence of establishments offering such dancing, without deciding what the precise causes of the correlation *586 actually are. It is possible, for example, that the higher incidence of prostitution and sexual assault in the vicinity of adult entertainment locations results from the concentration of crowds of men predisposed to such activities, or from the simple viewing of nude bodies regardless of whether those bodies are engaged in expression or not. In neither case would the chain of causation run through the persuasive effect of the expressive component of nude dancing. Because the State's interest in banning nude dancing results from a simple correlation of such dancing with other evils, rather than from a relationship between the other evils and the expressive component of the dancing, the interest is unrelated to the suppression of free expression. Renton is again persuasive in support of this conclusion. In Renton, we held that an ordinance that regulated adult theaters because the presence of such theaters was correlated with secondary effects that the local government had an interest in regulating was content neutral (a determination similar to the "unrelated to the suppression of free expression" determination here, see Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298, and n. 8 (1984)) because it was "justified without reference to the content of the regulated speech." 475 U.S., at 48 (emphasis in original). We reached this conclusion without need to decide whether the cause of the correlation might have been the persuasive effect of the adult films that were being regulated. Similarly here, the "secondary effects" justification means that enforcement of the Indiana statute against nude dancing is "justified without reference to the content of the regulated [expression]," ibid. (emphasis omitted), which is sufficient, at least in the context of sexually explicit expression,[3] to satisfy the third prong of the O'Brien test. *587 The fourth O'Brien condition, that the restriction be no greater than essential to further the governmental interest, requires little discussion. Pasties and a G-string moderate the expression to some degree, to be sure, but only to a degree. Dropping the final stitch is prohibited, but the limitation is minor when measured against the dancer's remaining capacity and opportunity to express the erotic message. Nor, so far as we are told, is the dancer or her employer limited by anything short of obscenity laws from expressing an erotic message by articulate speech or representational means; a pornographic movie featuring one of respondents, for example, was playing nearby without any interference from the authorities at the time these cases arose. Accordingly, I find O'Brien satisfied and concur in the judgment.

I agree that the judgment of the Court of Appeals must be reversed. In my view, however, the challenged regulation must be upheld, not because it survives some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not subject to First Amendment scrutiny at all. I Indiana's public indecency statute provides: "(a) A person who knowingly or intentionally, in a public place: "(1) engages in sexual intercourse; "(2) engages in deviate sexual conduct; "(3) appears in a state of nudity; or "(4) fondles the genitals of himself or another person; commits public indecency, a Class A misdemeanor. "(b) `Nudity' means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state." On its face, this law is not directed at expression in particular. As Judge Easterbrook put it in his dissent below: "Indiana *573 does not regulate dancing. It regulates public nudity. Almost the entire domain of Indiana's statute is unrelated to expression, unless we view nude beaches and topless hot dog vendors as speech." The intent to convey a "message of eroticism" (or any other message) is not a necessary element of the statutory offense of public indecency; nor does one commit that statutory offense by conveying the most explicit "message of eroticism," so long as he does not commit any of the four specified acts in the process.[1] Indiana's statute is in the line of a long tradition of laws against public nudity, which have never been thought to run afoul of traditional understanding of "the freedom of speech." Public indecency—including public nudity—has long been an offense at common law. See 50 Am. Jur. 2d, Lewdness, Indecency, and Obscenity 17, pp. 449, 472-474 (1970); Annot., Criminal offense predicated on indecent exposure, 93 A. L. R. 996, 997-998 (1934); Indiana's first public nudity statute, Rev. Laws of Ind., ch. 26, 60 (1831), predated by many years the appearance of nude barroom dancing. It was general in scope, directed at all public nudity, and not just at public nude expression; and all succeeding statutes, down to *574 the present one, have been the same. Were it the case that Indiana in practice targeted only expressive nudity, while turning a blind eye to nude beaches and unclothed purveyors of hot dogs and machine tools, see Miller, 904 F. 2d, at 1121, it might be said that what posed as a regulation of conduct in general was in reality a regulation of only communicative conduct. Respondents have adduced no evidence of that. Indiana officials have brought many public indecency prosecutions for activities having no communicative element. See N.E.2d 856, ; In re Levinson, ; ; ; ; ; ; ; ;[2] The dissent confidently asserts, post, at 590-591, that the purpose of restricting nudity in public places in general is to protect nonconsenting parties from offense; and argues that since only consenting, admission-paying patrons see respondents dance, that purpose cannot apply and the only remaining purpose must relate to the communicative elements of the performance. Perhaps the dissenters believe that "offense to others" ought to be the only reason for restricting nudity in public places generally, but there is no *575 basis for thinking that our society has ever shared that Thoreauvian "you-may-do-what-you-like-so-long-as-it-does-not-injure-someone-else" beau ideal—much less for thinking that it was written into the Constitution. The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosier Dome to display their genitals to one another, even if there were not an offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, "contra bonos mores," i. e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy. While there may be great diversity of view on whether various of these prohibitions should exist (though I have found few ready to abandon, in principle, all of them), there is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate "morality." See See also Paris Adult Theatre ; The purpose of the Indiana statute, as both its text and the manner of its enforcement demonstrate, is to enforce the traditional moral belief that people should not expose their private parts indiscriminately, regardless of whether those who see them are disedified. Since that is so, the dissent has no basis for positing that, where only thoroughly edified adults are present, the purpose must be repression of communication.[3] *576 II Since the Indiana regulation is a general law not specifically targeted at expressive conduct, its application to such conduct does not in my view implicate the First Amendment. The First Amendment explicitly protects "the freedom of speech [and] of the press"—oral and written speech—not "expressive conduct." When any law restricts speech, even for a purpose that has nothing to do with the suppression of communication to regulate election campaigns, see or to prevent littering, see 3 ), we insist that it meet the high, First Amendment standard of justification. But virtually every law restricts conduct, and virtually any prohibited conduct can be performed for an expressive purpose—if only expressive of the fact that the actor disagrees with the prohibition. See, e. g., Florida Free Beaches, It cannot reasonably be demanded, therefore, that every restriction of expression incidentally produced by a general law regulating conduct pass normal First Amendment scrutiny, or even—as some of our cases have suggested, see, e. g., United (8)—that it be justified by an "important or substantial" *577 government interest. Nor do our holdings require such justification: We have never invalidated the application of a general law simply because the conduct that it reached was being engaged in for expressive purposes and the government could not demonstrate a sufficiently important state interest. This is not to say that the First Amendment affords no protection to expressive conduct. Where the government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional. See, e. g., United ; ; ; (9) ; (6) ;[4] In each of the foregoing cases, we explicitly found that suppressing communication was the object of the regulation of conduct. Where that has not been the case, however—where suppression of communicative use of the conduct was merely the incidental effect of forbidding the conduct for other reasons—we have allowed the regulation to stand. O', at ; ; cf. United ; As we clearly expressed the point in Johnson: "The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It may not, however, proscribe particular conduct because it has expressive elements. What might be termed the more generalized guarantee of freedom of expression makes the communicative nature of conduct an inadequate basis for singling out that conduct for proscription." All our holdings (though admittedly not some of our discussion) support the conclusion that "the only First Amendment analysis applicable to laws that do not directly or indirectly impede speech is the threshold inquiry of whether the purpose of the law is to suppress communication. If not, that is the end of the matter so far as First Amendment guarantees are concerned; if so, the court then proceeds to determine whether there is substantial justification for the proscription." Community for Creative (Scalia, J., dissenting), (footnote omitted; emphasis omitted), rev'd sub nom. Such a regime ensures that the government does not act to suppress communication, without requiring that all conduct-restricting regulation *579 (which means in effect all regulation) survive an enhanced level of scrutiny. We have explicitly adopted such a regime in another First Amendment context: that of free exercise. In Employment Div., Dept. of Human Resources of we held that general laws not specifically targeted at religious practices did not require heightened First Amendment scrutiny even though they diminished some people's ability to practice their religion. "The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, `cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.'" quoting ; see also Minersville School ("Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs"). There is even greater reason to apply this approach to the regulation of expressive conduct. Relatively few can plausibly assert that their illegal conduct is being engaged in for religious reasons; but almost anyone can violate almost any law as a means of expression. In the one case, as in the other, if the law is not directed against the protected value (religion or expression) the law must be obeyed. III While I do not think the plurality's conclusions differ greatly from my own, I cannot entirely endorse its reasoning. The plurality purports to apply to this general law, insofar as it regulates this allegedly expressive conduct, an intermediate level of First Amendment scrutiny: The government interest in the regulation must be "`important or substantial,'" ante, at 567, quoting O', at As I have indicated, *580 I do not believe such a heightened standard exists. I think we should avoid wherever possible, moreover, a method of analysis that requires judicial assessment of the "importance" of government interests—and especially of government interests in various aspects of morality. Neither of the cases that the plurality cites to support the "importance" of the State's interest here, see ante, at 569, is in point. Paris Adult Theatre and 478 U. S., at did uphold laws prohibiting private conduct based on concerns of decency and morality; but neither opinion held that those concerns were particularly "important" or "substantial," or amounted to anything more than a rational basis for regulation. involved an exhibition which, since it was obscene and at least to some extent public, was unprotected by the First Amendment, see ; the State's prohibition could therefore be invalidated only if it had no rational We found that the State's "right. to maintain a decent society" provided a "legitimate" basis for regulation—even as to obscene material viewed by consenting -60. In Bowers, we held that since homosexual behavior is not a fundamental right, a Georgia law prohibiting private homosexual intercourse needed only a rational basis in order to comply with the Due Process Clause. Moral opposition to homosexuality, we said, provided that rational 478 U.S., at I would uphold the Indiana statute on precisely the same ground: Moral opposition to nudity supplies a rational basis for its prohibition, and since the First Amendment has no application to this case no more than that is needed. * * * Indiana may constitutionally enforce its prohibition of public nudity even against those who choose to use public nudity as a means of communication. The State is regulating conduct, not expression, and those who choose to employ conduct *581 as a means of expression must make sure that the conduct they select is not generally forbidden. For these reasons, I agree that the judgment should be reversed. JUSTICE SOUTER, concurring in the judgment. Not all dancing is entitled to First Amendment protection as expressive activity. This Court has previously categorized ballroom dancing as beyond the Amendment's protection, and dancing as aerobic exercise would likewise be outside the First Amendment's concern. But dancing as a performance directed to an actual or hypothetical audience gives expression at least to generalized emotion or feeling, and where the dancer is nude or nearly so the feeling expressed, in the absence of some contrary clue, is eroticism, carrying an endorsement of erotic experience. Such is the expressive content of the dances described in the record. Although such performance dancing is inherently expressive, nudity per se is not. It is a condition, not an activity, and the voluntary assumption of that condition, without more, apparently expresses nothing beyond the view that the condition is somehow appropriate to the circumstances. But every voluntary act implies some such idea, and the implication is thus so common and minimal that calling all voluntary activity expressive would reduce the concept of expression to the point of the meaningless. A search for some expression beyond the minimal in the choice to go nude will often yield nothing: a person may choose nudity, for example, for maximum sunbathing. But when nudity is combined with expressive activity, its stimulative and attractive value certainly can enhance the force of expression, and a dancer's acts in going from clothed to nude, as in a striptease, are integrated into the dance and its expressive function. Thus I agree with the plurality and the dissent that an interest in freely engaging in the nude dancing at issue here is subject to a degree of First Amendment protection. *582 I also agree with the plurality that the appropriate analysis to determine the actual protection required by the First Amendment is the four-part enquiry described in United (8), for judging the limits of appropriate state action burdening expressive acts as distinct from pure speech or representation. I nonetheless write separately to rest my concurrence in the judgment, not on the possible sufficiency of society's moral views to justify the limitations at issue, but on the State's substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by respondents' establishments. It is, of course, true that this justification has not been articulated by Indiana's Legislature or by its courts. As the plurality observes, "Indiana does not record legislative history, and the State's highest court has not shed additional light on the statute's purpose," ante, at 568. While it is certainly sound in such circumstances to infer general purposes "of protecting societal order and morality from [the statute's] text and history," ib I think that we need not so limit ourselves in identifying the justification for the legislation at issue here, and may legitimately consider petitioners' assertion that the statute is applied to nude dancing because such dancing "encourag[es] prostitution, increas[es] sexual assaults, and attract[s] other criminal activity." Brief for Petitioners 37. This asserted justification for the statute may not be ignored merely because it is unclear to what extent this purpose motivated the Indiana Legislature in enacting the statute. Our appropriate focus is not an empirical enquiry into the actual intent of the enacting legislature, but rather the existence or not of a current governmental interest in the service of which the challenged application of the statute may be constitutional. Cf. (1). At least as to the regulation of expressive conduct,[1] "[w]e decline to void [a statute] essentially on the ground that it is unwise legislation which [the legislature] had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a `wiser' speech about it." O', In my view, the interest asserted by petitioners in preventing prostitution, sexual assault, and other criminal activity, although presumably not a justification for all applications of the statute, is sufficient under O' to justify the State's enforcement of the statute against the type of adult entertainment at issue here. At the outset, it is clear that the prevention of such evils falls within the constitutional power of the State, which satisfies the first O' criterion. See 391 U.S., at The second O' prong asks whether the regulation "furthers an important or substantial governmental interest." The asserted state interest is plainly a substantial one; the only question is whether prohibiting nude dancing of the sort at issue here "furthers" that interest. I believe that our cases have addressed this question sufficiently to establish that it does. In we upheld a city's zoning ordinance designed to prevent the occurrence of harmful secondary effects, including the crime associated with adult entertainment, by protecting approximately 95% of the city's area from the placement of motion picture theaters emphasizing "`matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" for observation by patrons therein.'" Of particular importance to the present enquiry, we held that the city of Renton was not compelled to justify its restrictions by studies specifically relating to the problems *584 that would be caused by adult theaters in that city. Rather, "Renton was entitled to rely on the experiences of Seattle and other cities," which demonstrated the harmful secondary effects correlated with the presence "of even one [adult] theater in a given neighborhood." ; cf. ; The type of entertainment respondents seek to provide is plainly of the same character as that at issue in Renton, American Theatres, and LaRue. It therefore is no leap to say that live nude dancing of the sort at issue here is likely to produce the same pernicious secondary effects as the adult films displaying "specified anatomical areas" at issue in Renton. Other reported cases from the Circuit in which this litigation arose confirm the conclusion. See, e. g., United ; United In light of Renton's recognition that legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects, the State of Indiana could reasonably conclude that forbidding nude entertainment of the type offered at the Kitty Kat Lounge and the Glen Theatre's "bookstore" furthers its interest in preventing prostitution, sexual assault, and associated crimes. Given our recognition that "society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate," American Theatres, I do not believe that a State is required affirmatively to undertake to litigate this issue repeatedly in every *585 case. The statute as applied to nudity of the sort at issue here therefore satisfies the second prong of O'.[2] The third O' condition is that the governmental interest be "unrelated to the suppression of free expression," 391 U.S., at and, on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression. The dissent contends, however, that Indiana seeks to regulate nude dancing as its means of combating such secondary effects "because creating or emphasizing [the] thoughts and ideas [expressed by nude dancing] in the minds of the spectators may lead to increased prostitution," post, at 592, and that regulation of expressive conduct because of the fear that the expression will prove persuasive is inherently related to the suppression of free expression. The major premise of the dissent's reasoning may be correct, but its minor premise describing the causal theory of Indiana's regulatory justification is not. To say that pernicious secondary effects are associated with nude dancing establishments is not necessarily to say that such effects result from the persuasive effect of the expression inherent in nude dancing. It is to say, rather, only that the effects are correlated with the existence of establishments offering such dancing, without deciding what the precise causes of the correlation *586 actually are. It is possible, for example, that the higher incidence of prostitution and sexual assault in the vicinity of adult entertainment locations results from the concentration of crowds of men predisposed to such activities, or from the simple viewing of nude bodies regardless of whether those bodies are engaged in expression or not. In neither case would the chain of causation run through the persuasive effect of the expressive component of nude dancing. Because the State's interest in banning nude dancing results from a simple correlation of such dancing with other evils, rather than from a relationship between the other evils and the expressive component of the dancing, the interest is unrelated to the suppression of free expression. Renton is again persuasive in support of this conclusion. In Renton, we held that an ordinance that regulated adult theaters because the presence of such theaters was correlated with secondary effects that the local government had an interest in regulating was content neutral ) because it was "justified without reference to the content of the regulated speech." We reached this conclusion without need to decide whether the cause of the correlation might have been the persuasive effect of the adult films that were being regulated. Similarly here, the "secondary effects" justification means that enforcement of the Indiana statute against nude dancing is "justified without reference to the content of the regulated [expression]," which is sufficient, at least in the context of sexually explicit expression,[3] to satisfy the third prong of the O' test. *587 The fourth O' condition, that the restriction be no greater than essential to further the governmental interest, requires little discussion. Pasties and a G-string moderate the expression to some degree, to be sure, but only to a degree. Dropping the final stitch is prohibited, but the limitation is minor when measured against the dancer's remaining capacity and opportunity to express the erotic message. Nor, so far as we are told, is the dancer or her employer limited by anything short of obscenity laws from expressing an erotic message by articulate speech or representational means; a pornographic movie featuring one of respondents, for example, was playing nearby without any interference from the authorities at the time these cases arose. Accordingly, I find O' satisfied and concur in the judgment.

Justice White

concurring

Coleman v. Thompson

https://www.courtlistener.com/opinion/112640/coleman-v-thompson/

https://www.courtlistener.com/api/rest/v3/clusters/112640/

1990-122

I concur in the judgment of the Court and I join in its opinion, but add a few words concerning what occurred below. Harris v. Reed, 489 U.S. 255 (1989), stated that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `"clearly and expressly"' states that its judgment rests on a state procedural bar." Id., at 263, quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985), in turn quoting Michigan v. Long, 463 U.S. 1032, 1041 (1983). If there were nothing before us but the order granting the State's motion to dismiss for untimeliness, it would be clear enough that the dismissal was based on a procedural default. But the state court did not grant the State's explicit request for an early ruling on the motion. Instead, the court delayed ruling on the motion to dismiss, and hence briefs on both the motion and the merits were filed. Six months later, the court "upon consideration whereof" granted the State's motion to dismiss the appeal. Hence petitioner's argument that the court studied the merits of the federal claims to determine whether to waive the procedural default, found those claims lacking, and only then granted the motion to dismiss; it is as though the court had said that it was granting the motion to dismiss the appeal as untimely because the federal *758 claims were untenable and provided the court no reason to waive the default. The predicate for this argument is that on occasion the Virginia Supreme Court waives the untimeliness rule. If that were true, the rule would not be an adequate and independent state ground barring direct or habeas review. Cf. Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The filing of briefs and their consideration would do no more than buttress the claim that the rule is not strictly enforced. Petitioner argues that the Virginia court does in fact waive the rule on occasion, but I am not now convinced that there is a practice of waiving the rule when constitutional issues are at stake, even fundamental ones. The evidence is too scanty to permit a conclusion that the rule is no longer an adequate and independent state ground barring federal review. The fact that merits briefs were filed and were considered by the court, without more, does not justify a different conclusion.

I concur in the judgment of the Court and I join in its opinion, but add a few words concerning what occurred below. stated that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `"clearly and expressly"' states that its judgment rests on a state procedural bar." quoting in turn quoting If there were nothing before us but the order granting the State's motion to dismiss for untimeliness, it would be clear enough that the dismissal was based on a procedural default. But the state court did not grant the State's explicit request for an early ruling on the motion. Instead, the court delayed ruling on the motion to dismiss, and hence briefs on both the motion and the merits were filed. Six months later, the court "upon consideration whereof" granted the State's motion to dismiss the appeal. Hence petitioner's argument that the court studied the merits of the federal claims to determine whether to waive the procedural default, found those claims lacking, and only then granted the motion to dismiss; it is as though the court had said that it was granting the motion to dismiss the appeal as untimely because the federal *8 claims were untenable and provided the court no reason to waive the default. The predicate for this argument is that on occasion the Virginia Supreme Court waives the untimeliness rule. If that were true, the rule would not be an adequate and independent state ground barring direct or habeas review. Cf. The filing of briefs and their consideration would do no more than buttress the claim that the rule is not strictly enforced. Petitioner argues that the Virginia court does in fact waive the rule on occasion, but I am not now convinced that there is a practice of waiving the rule when constitutional issues are at stake, even fundamental ones. The evidence is too scanty to permit a conclusion that the rule is no longer an adequate and independent state ground barring federal review. The fact that merits briefs were filed and were considered by the court, without more, does not justify a different conclusion.

Justice Stevens

dissenting

Harbor Tug & Barge Co. v. Papai

https://www.courtlistener.com/opinion/118110/harbor-tug-barge-co-v-papai/

https://www.courtlistener.com/api/rest/v3/clusters/118110/

1996-054

During the 2-year period immediately before his injury, respondent Papai worked as a maintenance man and a deckhand for various employers who hired out of the Inland Boatman's *561 Union hiring hall. He testified that about 70 percent of his work was as a deckhand, and that "most of that work [was] done while the boats were moving on the water." App. 34. If all of that deckhand work had been performed for petitioner, there would be no doubt about Papai's status as a seaman. Petitioner, however, did not maintain a permanent crew on any of its vessels. 67 F.3d 203, 204 (CA9 1995). Instead, like other tugboat operators in the San Francisco Bay area, it obtained its deckhands on a job-by-job basis through the union hiring hall. Under these circumstances, I believe the Court of Appeals correctly concluded that Papai's status as a seaman should be tested by the character of his work for the group of vessel owners that used the same union agent to make selections from the same pool of employees. In Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), the Court rejected a "voyage test" of seaman status, concluding that an employee who was injured while performing his duties on a vessel on the high seas was not necessarily a Jones Act seaman. Id., at 358-364. The Court instead adopted a status-based inquiry that looked at the nature and duration of the employee's relationship to a vessel—or an identifiable group of vessels—in navigation to determine whether that employee received Jones Act coverage. Id., at 370-371. Today, the majority apparently concludes that an employee is not necessarily protected by the Jones Act even if he was injured aboard a vessel in navigation and his work over the preceding two years was primarily seaman's work. I believe this conclusion is unsupported by either the reasoning or the language in the Chandris opinion. Chandris ` status-based test requires a maritime worker to have a relationship that is substantial in duration and nature with a vessel, or an identifiable group of vessels, in navigation. See id., at 376. Nothing in the Court's holding there intimated that the "identifiable group of vessels" need all be *562 owned by the same person.[1] Particularly in a labor market designed to allow employers to rely on temporary workers for a range of jobs, there is "no reason to limit the seaman status inquiry . . . exclusively to an examination of the overall course of a worker's service with a particular employer." Id., at 371-372. As the Court of Appeals observed in this case: "If the type of work a maritime worker customarily performs would entitle him to seaman status if performed for a single employer, the worker should not be deprived of that status simply because the industry operates under a daily assignment rather than a permanent employment system." 67 F.3d, at 206. The unfairness created by the Court's rule is evident. Let us assume that none of the tugboat operators in the bay area have permanent crews and that all of them obtain their deckhands on a more or less random basis through the same hiring hall. Further, assume that about 70 percent of the work performed by the employees thus obtained is seaman's work, while the remainder is shore-based maintenance work. A typical employee working for a typical employer in that pool would have the status of a seaman, and both the employees and the employers would be aware of this reality about their work environment. But under the Court's reasoning, even if over 70 percent of his randomly selected assignments during a 2-year period were seaman assignments, an injured worker would not be a seaman for Jones Act purposes if he happened to receive only a few assignments with the owner of the particular boat on which he was injured and those assignments were not seaman's work. *563 The majority tries to justify this conclusion with the argument that a rule acknowledging an employee's status as a seaman based on the work he does for a number of employers who hire out of the same hiring hall would create uncertainties for employers. Ante, at 558. The Court's concern is that an employer might not realize that an employee he had selected to chip paint on a docked boat had spent most of the past year as a deckhand on a neighboring vessel. This fear is exaggerated, since an employer who hires its workers out of a union hiring hall should be presumed to be familiar with the general character of their work. Moreover, surely the unfairness created by the majority's rule outweighs this concern. Of course, in order to hold a particular employer liable, an employment relationship must have existed between the worker and the particular vessel owner at the time of the injury. Chandris teaches us, however, that the specific activity being performed at the time of the injury is not sufficient to establish the employee's status under the Jones Act. Rather, we must determine whether an employee has seaman status by looking at his work history. The character of that history in the market from which a vessel owner obtains all of its crews seems to me just as relevant as the assignments to the particular operator for whom work was being performed when the injury occurred. Accordingly, I would affirm the judgment of the Court of Appeals.[2]

During the 2-year period immediately before his injury, respondent Papai worked as a maintenance man and a deckhand for various employers who hired out of the Inland Boatman's *561 Union hiring hall. He testified that about 70 percent of his work was as a deckhand, and that "most of that work [was] done while the boats were moving on the water." App. 34. If all of that deckhand work had been performed for petitioner, there would be no doubt about Papai's status as a seaman. Petitioner, however, did not maintain a permanent crew on any of its vessels. Instead, like other tugboat operators in the San Francisco Bay area, it obtained its deckhands on a job-by-job basis through the union hiring hall. Under these circumstances, I believe the Court of Appeals correctly concluded that Papai's status as a seaman should be tested by the character of his work for the group of vessel owners that used the same union agent to make selections from the same pool of employees. In Chandris, the Court rejected a "voyage test" of seaman status, concluding that an employee who was injured while performing his duties on a vessel on the high seas was not necessarily a Jones Act seaman. The Court instead adopted a status-based inquiry that looked at the nature and duration of the employee's relationship to a vessel—or an identifiable group of vessels—in navigation to determine whether that employee received Jones Act coverage. Today, the majority apparently concludes that an employee is not necessarily protected by the Jones Act even if he was injured aboard a vessel in navigation and his work over the preceding two years was primarily seaman's work. I believe this conclusion is unsupported by either the reasoning or the language in the Chandris opinion. Chandris ` status-based test requires a maritime worker to have a relationship that is substantial in duration and nature with a vessel, or an identifiable group of vessels, in navigation. See Nothing in the Court's holding there intimated that the "identifiable group of vessels" need all be *562 owned by the same person.[1] Particularly in a labor market designed to allow employers to rely on temporary workers for a range of jobs, there is "no reason to limit the seaman status inquiry exclusively to an examination of the overall course of a worker's service with a particular employer." As the Court of Appeals observed in this case: "If the type of work a maritime worker customarily performs would entitle him to seaman status if performed for a single employer, the worker should not be deprived of that status simply because the industry operates under a daily assignment rather than a permanent employment system." The unfairness created by the Court's rule is evident. Let us assume that none of the tugboat operators in the bay area have permanent crews and that all of them obtain their deckhands on a more or less random basis through the same hiring hall. Further, assume that about 70 percent of the work performed by the employees thus obtained is seaman's work, while the remainder is shore-based maintenance work. A typical employee working for a typical employer in that pool would have the status of a seaman, and both the employees and the employers would be aware of this reality about their work environment. But under the Court's reasoning, even if over 70 percent of his randomly selected assignments during a 2-year period were seaman assignments, an injured worker would not be a seaman for Jones Act purposes if he happened to receive only a few assignments with the owner of the particular boat on which he was injured and those assignments were not seaman's work. *563 The majority tries to justify this conclusion with the argument that a rule acknowledging an employee's status as a seaman based on the work he does for a number of employers who hire out of the same hiring hall would create uncertainties for employers. Ante, at 558. The Court's concern is that an employer might not realize that an employee he had selected to chip paint on a docked boat had spent most of the past year as a deckhand on a neighboring vessel. This fear is exaggerated, since an employer who hires its workers out of a union hiring hall should be presumed to be familiar with the general character of their work. Moreover, surely the unfairness created by the majority's rule outweighs this concern. Of course, in order to hold a particular employer liable, an employment relationship must have existed between the worker and the particular vessel owner at the time of the injury. Chandris teaches us, however, that the specific activity being performed at the time of the injury is not sufficient to establish the employee's status under the Jones Act. Rather, we must determine whether an employee has seaman status by looking at his work history. The character of that history in the market from which a vessel owner obtains all of its crews seems to me just as relevant as the assignments to the particular operator for whom work was being performed when the injury occurred. Accordingly, I would affirm the judgment of the Court of Appeals.[2]

Justice Douglas

concurring

DH Overmyer Co. v. Frick Co.

https://www.courtlistener.com/opinion/108474/dh-overmyer-co-v-frick-co/

https://www.courtlistener.com/api/rest/v3/clusters/108474/

1971-064

I agree that the heavy burden against the waiver of constitutional rights, which applies even in civil matters, Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U.S. 292, 307 (1937); Aetna Ins. Co. v. Kennedy, 301 U. S. *189 389, 393 (1937), has been effectively rebutted by the evidence presented in this record. Whatever procedural hardship the Ohio confession-of-judgment scheme worked upon the petitioners was voluntarily and understandingly self-inflicted through the arm's-length bargaining of these corporate parties. I add a word concerning the contention that opening of confessed judgments in Ohio is merely discretionary and requires a higher burden of persuasion than is ordinarily imposed upon defendants. As I read the Ohio law of cognovit notes, trial judges have traditionally enjoyed wide discretion in vacating confessed judgments. 32 Ohio Jur. 2d, Judgments § 558 (1958). In Livingstone v. Rebman, 169 Ohio St. 109, 158 N.E.2d 366 (1959), however, the Ohio Supreme Court imposed certain safeguards on the exercise of a judge's discretion in opening confessed judgments. That case also involved a petition to open a confessed judgment where, as here, the debtor alleged the affirmative defense of failure of consideration. Using the preponderance-of-the-evidence test, the trial court had found insufficient support for the debtor's claim and had dismissed the motion to open. On appeal, however, the Ohio Supreme Court reversed on the degree of proof needed to vacate a confessed judgment. Said the court: "[I]f there is credible evidence supporting the defense. . . from which reasonable minds may reach different conclusions, it is then the duty of the court to suspend the judgment and permit the issue raised by the pleadings to be tried by a jury or, if a jury is waived, by the court." Id., at 121-122, 158 N.E.2d, at 375. (Emphasis supplied.) Thus it would appear that the Ohio confessed judgment may be opened if the debtor poses a jury question, that *190 is, if his evidence would have been sufficient to prevent a directed verdict against him. That standard is a minimal obstacle.[*] The fact that a trial judge is dutybound to vacate judgments obtained through cognovit clauses where debtors present jury questions is a complete answer to the contention that unbridled discretion governs the disposition of petitions to vacate. See also Goodyear v. Stone, 169 Ohio St. 124, 158 N.E.2d 376 (1959); McMillen v. Willard Garage Inc., 14 Ohio App. 2d 112, 115, 237 N.E.2d 155, 158 (1968); Central National Bank of Cleveland v. Standard Loan & Finance, 5 Ohio App. 2d 101, 104, 195 N.E.2d 597, 600 (1964). The record shows that the petitioners were given every opportunity after judgment to explain their affirmative defense to the state courts and that the defense was rejected solely because the evidence adduced in support thereof was too thin to warrant further presentation to a jury.

I agree that the heavy burden against the waiver of constitutional rights, which applies even in civil matters, Ohio Bell Tel. ; Aetna Ins. Co. v. Kennedy, 301 U. S. *189 389, 393 has been effectively rebutted by the evidence presented in this record. Whatever procedural hardship the Ohio confession-of-judgment scheme worked upon the petitioners was voluntarily and understandingly self-inflicted through the arm's-length bargaining of these corporate parties. I add a word concerning the contention that opening of confessed judgments in Ohio is merely discretionary and requires a higher burden of persuasion than is ordinarily imposed upon defendants. As I read the Ohio law of cognovit notes, trial judges have traditionally enjoyed wide discretion in vacating confessed judgments. 32 Ohio Jur. 2d, Judgments 558 (1958). In however, the Ohio Supreme Court imposed certain safeguards on the exercise of a judge's discretion in opening confessed judgments. That case also involved a petition to open a confessed judgment where, as here, the debtor alleged the affirmative defense of failure of consideration. Using the preponderance-of-the-evidence test, the trial court had found insufficient support for the debtor's claim and had dismissed the motion to open. On appeal, however, the Ohio Supreme Court reversed on the degree of proof needed to vacate a confessed judgment. Said the court: "[I]f there is credible evidence supporting the defense. from which reasonable minds may reach different conclusions, it is then the duty of the court to suspend the judgment and permit the issue raised by the pleadings to be tried by a jury or, if a jury is waived, by the court." (Emphasis supplied.) Thus it would appear that the Ohio confessed judgment may be opened if the debtor poses a jury question, that *190 is, if his evidence would have been sufficient to prevent a directed verdict against him. That standard is a minimal obstacle.[*] The fact that a trial judge is dutybound to vacate judgments obtained through cognovit clauses where debtors present jury questions is a complete answer to the contention that unbridled discretion governs the disposition of petitions to vacate. See also ; ; Central National Bank of The record shows that the petitioners were given every opportunity after judgment to explain their affirmative defense to the state courts and that the defense was rejected solely because the evidence adduced in support thereof was too thin to warrant further presentation to a jury.

per_curiam

per_curiam

Espinosa v. Florida

https://www.courtlistener.com/opinion/112788/espinosa-v-florida/

https://www.courtlistener.com/api/rest/v3/clusters/112788/

1991-119

Under Florida law, after a defendant is found guilty of a capital felony, a separate sentencing proceeding is conducted to determine whether the sentence should be life imprisonment or death. Fla. Stat. § 921.141(1) (1991). At the close of a hearing at which the prosecution and the defense may present evidence and argument in favor of and against the death penalty, ibid., the trial judge charges the jurors to consider "[w]hether sufficient aggravating circumstances exist," "[w]hether sufficient mitigating circumstances exist which outweigh the aggravating circumstances," and "[b]ased on these considerations, whether the defendant should be sentenced to life imprisonment or death." § 921.141(2). The verdict does not include specific findings of aggravating and mitigating circumstances, but states only the jury's sentencing recommendation. "Notwithstanding the recommendation of a majority of the jury," the trial court itself must then "weig[h] the aggravating and mitigating circumstances" to determine finally whether the sentence will be life or death. § 921.141(3). If the trial court fixes punishment at death, the court must issue a written statement of the circumstances found and weighed. Ibid. A Florida jury found petitioner Henry Jose Espinosa guilty of first-degree murder. At the close of the evidence in the penalty hearing, the trial court instructed the jury on aggravating factors. One of the instructions informed the jury that it was entitled to find as an aggravating factor that the murder of which it had found Espinosa guilty was "especially wicked, evil, atrocious or cruel." See § 921.141(h). The jury recommended that the trial court impose death, and the court, finding four aggravating and two mitigating factors, did so. On appeal to the Supreme Court of Florida, petitioner argued that the "wicked, evil, atrocious or cruel" instruction was vague and therefore left the jury with insufficient guidance when to find the existence of the aggravating factor. The court rejected this argument and affirmed, saying: *1081 "We reject Espinosa's complaint with respect to the text of the jury instruction on the heinous, atrocious, or cruel aggravating factor upon the rationale of Smalley v. State, 546 So. 2d 720 (Fla. 1989)." 589 So. 2d 887, 894 (1991). Our cases establish that, in a State where the sentencer weighs aggravating and mitigating circumstances, the weighing of an invalid aggravating circumstance violates the Eighth Amendment. See Sochor v. Florida, 504 U.S. 527, 532 (1992); Stringer v. Black, 503 U.S. 222, 232 (1992); Parker v. Dugger, 498 U.S. 308, 319-321 (1991); Clemons v. Mississippi, 494 U.S. 738, 752 (1990). Our cases further establish that an aggravating circumstance is invalid in this sense if its description is so vague as to leave the sentencer without sufficient guidance for determining the presence or absence of the factor. See Stringer, supra, at 235. We have held instructions more specific and elaborate than the one given in the instant case unconstitutionally vague. See Shell v. Mississippi, 498 U.S. 1 (1990); Maynard v. Cartwright, 486 U.S. 356 (1988); Godfrey v. Georgia, 446 U.S. 420 (1980). The State here does not argue that the "especially wicked, evil, atrocious or cruel" instruction given in this case was any less vague than the instructions we found lacking in Shell, Cartwright, or Godfrey. Instead, echoing the State Supreme Court's reasoning in Smalley v. State, 546 So. 2d, at 722, the State argues that there was no need to instruct the jury with the specificity our cases have required where the jury was the final sentencing authority, because, in the Florida scheme, the jury is not "the sentencer" for Eighth Amendment purposes. This is true, the State argues, because the trial court is not bound by the jury's sentencing recommendation; rather, the court must independently determine which aggravating and mitigating circumstances exist, and, after weighing the circumstances, enter a sentence "[n]otwithstanding the recommendation of a majority of the jury," Fla. Stat. § 921.141(3). *1082 Our examination of Florida case law indicates, however, that a Florida trial court is required to pay deference to a jury's sentencing recommendation, in that the trial court must give "great weight" to the jury's recommendation, whether that recommendation be life, see Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975), or death, see Smith v. State, 515 So. 2d 182, 185 (Fla. 1987), cert. denied, 485 U.S. 971 (1988); Grossman v. State, 525 So. 2d 833, 839, n. 1 (Fla. 1988), cert. denied, 489 U.S. 1071 (1989). Thus, Florida has essentially split the weighing process in two. Initially, the jury weighs aggravating and mitigating circumstances, and the result of that weighing process is then in turn weighed within the trial court's process of weighing aggravating and mitigating circumstances. It is true that, in this case, the trial court did not directly weigh any invalid aggravating circumstances. But, we must presume that the jury did so, see Mills v. Maryland, 486 U.S. 367, 376-377 (1988), just as we must further presume that the trial court followed Florida law, cf. Walton v. Arizona, 497 U.S. 639, 653 (1990), and gave "great weight" to the resultant recommendation. By giving "great weight" to the jury recommendation, the trial court indirectly weighed the invalid aggravating factor that we must presume the jury found. This kind of indirect weighing of an invalid aggravating factor creates the same potential for arbitrariness as the direct weighing of an invalid aggravating factor, cf. Baldwin v. Alabama, 472 U.S. 372, 382 (1985), and the result, therefore, was error. We have often recognized that there are many constitutionally permissible ways in which States may choose to allocate capital sentencing authority. See id., at 389; Spaziano v. Florida, 468 U.S. 447, 464 (1984). Today's decision in no way signals a retreat from that position. We merely hold that, if a weighing State decides to place capital sentencing authority in two actors rather than one, neither actor must be permitted to weigh invalid aggravating circumstances. *1083 The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Supreme Court of Florida is reversed. We remand for proceedings not inconsistent with this opinion. So ordered. The Chief Justice and Justice White dissent and would grant certiorari and set the case down for oral argument.

Under Florida law, after a defendant is found guilty of a capital felony, a separate sentencing proceeding is conducted to determine whether the sentence should be life imprisonment or death. (1) At the close of a hearing at which the prosecution and the defense may present evidence and argument in favor of and against the death penalty, ib the trial judge charges the jurors to consider "[w]hether sufficient aggravating circumstances exist," "[w]hether sufficient mitigating circumstances exist which outweigh the aggravating circumstances," and "[b]ased on these considerations, whether the defendant should be sentenced to life imprisonment or death." 921.141(2). The verdict does not include specific findings of aggravating and mitigating circumstances, but states only the jury's sentencing recommendation. "Notwithstanding the recommendation of a majority of the jury," the trial court itself must then "weig[h] the aggravating and mitigating circumstances" to determine finally whether the sentence will be life or death. 921.141(3). If the trial court fixes punishment at death, the court must issue a written statement of the circumstances found and weighed. A Florida jury found petitioner Henry Jose Espinosa guilty of first-degree murder. At the close of the evidence in the penalty hearing, the trial court instructed the jury on aggravating factors. One of the instructions informed the jury that it was entitled to find as an aggravating factor that the murder of which it had found Espinosa guilty was "especially wicked, evil, atrocious or cruel." See 921.141(h). The jury recommended that the trial court impose death, and the court, finding four aggravating and two mitigating factors, did so. On appeal to the Supreme Court of Florida, petitioner argued that the "wicked, evil, atrocious or cruel" instruction was vague and therefore left the jury with insufficient guidance when to find the existence of the aggravating factor. The court rejected this argument and affirmed, saying: *1081 "We reject Espinosa's complaint with respect to the text of the jury instruction on the heinous, atrocious, or cruel aggravating factor upon the rationale of" Our cases establish that, in a where the sentencer weighs aggravating and mitigating circumstances, the weighing of an invalid aggravating circumstance violates the Eighth Amendment. See ; ; ; Our cases further establish that an aggravating circumstance is invalid in this sense if its description is so vague as to leave the sentencer without sufficient guidance for determining the presence or absence of the factor. See We have held instructions more specific and elaborate than the one given in the instant case unconstitutionally vague. See ; ; The here does not argue that the "especially wicked, evil, atrocious or cruel" instruction given in this case was any less vague than the instructions we found lacking in Shell, Cartwright, or Godfrey. Instead, echoing the Supreme Court's reasoning in the argues that there was no need to instruct the jury with the specificity our cases have required where the jury was the final sentencing authority, because, in the Florida scheme, the jury is not "the sentencer" for Eighth Amendment purposes. This is true, the argues, because the trial court is not bound by the jury's sentencing recommendation; rather, the court must independently determine which aggravating and mitigating circumstances exist, and, after weighing the circumstances, enter a sentence "[n]otwithstanding the recommendation of a majority of the jury," (3). *1082 Our examination of Florida case law indicates, however, that a Florida trial court is required to pay deference to a jury's sentencing recommendation, in that the trial court must give "great weight" to the jury's recommendation, whether that recommendation be life, see Tedder v. or death, see Smith v. cert. denied, ; Grossman v. cert. denied, Thus, Florida has essentially split the weighing process in two. Initially, the jury weighs aggravating and mitigating circumstances, and the result of that weighing process is then in turn weighed within the trial court's process of weighing aggravating and mitigating circumstances. It is true that, in this case, the trial court did not directly weigh any invalid aggravating circumstances. But, we must presume that the jury did so, see just as we must further presume that the trial court followed Florida law, cf. and gave "great weight" to the resultant recommendation. By giving "great weight" to the jury recommendation, the trial court indirectly weighed the invalid aggravating factor that we must presume the jury found. This kind of indirect weighing of an invalid aggravating factor creates the same potential for arbitrariness as the direct weighing of an invalid aggravating factor, cf. and the result, therefore, was error. We have often recognized that there are many constitutionally permissible ways in which s may choose to allocate capital sentencing authority. See ; Today's decision in no way signals a retreat from that position. We merely hold that, if a weighing decides to place capital sentencing authority in two actors rather than one, neither actor must be permitted to weigh invalid aggravating circumstances. *1083 The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Supreme Court of Florida is reversed. We remand for proceedings not inconsistent with this opinion. So ordered. The Chief Justice and Justice White dissent and would grant certiorari and set the case down for oral argument.

Justice Stewart

second_dissenting

United States v. Janis

https://www.courtlistener.com/opinion/109539/united-states-v-janis/

https://www.courtlistener.com/api/rest/v3/clusters/109539/

1975-180

The Court today holds that evidence unconstitutionally seized from the respondent by state officials may be introduced against him in a proceeding to adjudicate his *461 liability under the wagering excise tax provisions of the Internal Revenue Code of 1954. This result, in my view, cannot be squared with Elkins v. United States, 364 U.S. 206. In that case the Court discarded the "silver platter doctrine" and held that evidence illegally seized by state officers cannot lawfully be introduced against a defendant in a federal criminal trial. Unless the Elkins doctrine is to be abandoned, evidence illegally seized by state officers must be excluded as well from federal proceedings to determine liability under the federal wagering excise tax provisions. These provisions, constituting an "interrelated statutory system for taxing wagers," Marchetti v. United States, 390 U.S. 39, 42, operate in an area "permeated with criminal statutes" and impose liability on a group "inherently suspect of criminal activities." Albertson v. SACB, 382 U.S. 70, 79, quoted in Marchetti v. United States, supra, at 47. While the enforcement of these provisions results in the collection of revenue, "we cannot ignore either the characteristics of the activities" which give rise to wagering tax liability "or the composition of the group" from which payment is sought. Grosso v. United States, 390 U.S. 62, 68. The wagering provisions are intended not merely to raise revenue but also to "assist the efforts of state and federal authorities to enforce [criminal] penalties" for unlawful wagering activities. Marchetti v. United States, supra, at 47. Federal officials responsible for the enforcement of the wagering tax provisions regularly cooperate with federal and local officials responsible for enforcing criminal laws restricting or forbidding wagering. See 390 U.S., at 47-48. Similarly, federal and local law enforcement personnel regularly provide federal tax officials with information, obtained in criminal investigations, indicating *462 liability under the wagering tax.[*] The pattern is one of mutual cooperation and coordination, with the federal wagering tax provisions buttressing state and federal criminal sanctions. *463 Given this pattern, our observation in Elkins is directly opposite: "Free and open cooperation between state and federal law enforcement officers is to be commended and encouraged. Yet that kind of cooperation is hardly promoted by a rule that . . . at least tacitly [invites federal officers] to encourage state officers in the disregard of constitutionally protected freedom." 364 U.S., at 221-222. To be sure, the Elkins case was a federal criminal proceeding and the present case is civil in nature. But our prior decisions make it clear that this difference is irrelevant for Fourth Amendment exclusionary rule purposes where, as here, the civil proceeding serves as an adjunct to the enforcement of the criminal law. See Plymouth Sedan v. Pennsylvania, 380 U.S. 693. The Court's failure to heed these precedents not only rips a hole in the fabric of the law but leads to a result that cannot even serve the valid arguments of those who would eliminate the exclusionary rule entirely. For under the Court's ruling, society must not only continue to pay the high cost of the exclusionary rule (by forgoing criminal convictions which can be obtained only on the basis of illegally seized evidence) but it must also forfeit the benefit for which it has paid so dearly. If state police officials can effectively crack down on gambling law violators by the simple expedient of violating their constitutional rights and turning the illegally seized evidence over to Internal Revenue Service agents on the proverbial "silver platter," then the deterrent *464 purpose of the exclusionary rule is wholly frustrated. "If, on the other hand, it is understood that the fruit of an unlawful search by state agents will be inadmissible in a federal trial, there can be no inducement to subterfuge and evasion with respect to federal-state cooperation in criminal investigation." Elkins v. United States, supra, at 222.

The Court today holds that evidence unconstitutionally seized from the respondent by state officials may be introduced against him in a proceeding to adjudicate his *461 liability under the wagering excise tax provisions of the Internal Revenue Code of 1954. This result, in my view, cannot be squared with In that case the Court discarded the "silver platter doctrine" and held that evidence illegally seized by state officers cannot lawfully be introduced against a defendant in a federal criminal trial. Unless the Elkins doctrine is to be abandoned, evidence illegally seized by state officers must be excluded as well from federal proceedings to determine liability under the federal wagering excise tax provisions. These provisions, constituting an "interrelated statutory system for taxing wagers," operate in an area "permeated with criminal statutes" and impose liability on a group "inherently suspect of criminal activities." quoted in While the enforcement of these provisions results in the collection of revenue, "we cannot ignore either the characteristics of the activities" which give rise to wagering tax liability "or the composition of the group" from which payment is sought. Grosso v. United The wagering provisions are intended not merely to raise revenue but also to "assist the efforts of state and federal authorities to enforce [criminal] penalties" for unlawful wagering activities. Federal officials responsible for the enforcement of the wagering tax provisions regularly cooperate with federal and local officials responsible for enforcing criminal laws restricting or forbidding wagering. See 390 U.S., -48. Similarly, federal and local law enforcement personnel regularly provide federal tax officials with information, obtained in criminal investigations, indicating *462 liability under the wagering tax.[*] The pattern is one of mutual cooperation and coordination, with the federal wagering tax provisions buttressing state and federal criminal sanctions. *463 Given this pattern, our observation in Elkins is directly opposite: "Free and open cooperation between state and federal law enforcement officers is to be commended and encouraged. Yet that kind of cooperation is hardly promoted by a rule that at least tacitly [invites federal officers] to encourage state officers in the disregard of constitutionally protected freedom." -222. To be sure, the Elkins case was a federal criminal proceeding and the present case is civil in nature. But our prior decisions make it clear that this difference is irrelevant for Fourth Amendment exclusionary rule purposes where, as here, the civil proceeding serves as an adjunct to the enforcement of the criminal law. See Plymouth The Court's failure to heed these precedents not only rips a hole in the fabric of the law but leads to a result that cannot even serve the valid arguments of those who would eliminate the exclusionary rule entirely. For under the Court's ruling, society must not only continue to pay the high cost of the exclusionary rule (by forgoing criminal convictions which can be obtained only on the basis of illegally seized evidence) but it must also forfeit the benefit for which it has paid so dearly. If state police officials can effectively crack down on gambling law violators by the simple expedient of violating their constitutional rights and turning the illegally seized evidence over to Internal Revenue Service agents on the proverbial "silver platter," then the deterrent *464 purpose of the exclusionary rule is wholly frustrated. "If, on the other hand, it is understood that the fruit of an unlawful search by state agents will be inadmissible in a federal trial, there can be no inducement to subterfuge and evasion with respect to federal-state cooperation in criminal investigation."

Justice Douglas

majority

Ciba Corp. v. Weinberger

https://www.courtlistener.com/opinion/108821/ciba-corp-v-weinberger/

https://www.courtlistener.com/api/rest/v3/clusters/108821/

1972-148

Petitioner manufactures a drug called Ritonic Capsules[†] for which it filed a new drug application (NDA) that became effective in 1959. Under the Act then in force, an NDA for a "new drug" required the manufacturer to submit to the Food and Drug Administration (FDA) adequate proof of the drug's safety. This *642 particular NDA became effective on the basis of the drug's safety. As we have noted in the companion cases, the 1962 amendments to the Federal Food, Drug, and Cosmetic Act of 1938, 52 Stat. 1040, as amended, 76 Stat. 780, directed FDA to withdraw approval for NDA's which became effective prior to that time if, after notice and opportunity for hearing, it found a lack of "substantial evidence" that the drug involved was effective as claimed in its labeling. And, as we have noted, "substantial evidence" as used in the Act, §§ 505 (d) and 505 (e) (3), 21 U.S. C. §§ 355 (d) and 355 (e) (3), means "adequate and well-controlled investigations" from which experts may conclude that the drug will have the claimed effect. A panel of the National Academy of Sciences-National Research Council (NAS-NRC) reviewed the claims made for Ritonic Capsules and found it "ineffective" for each of the claims. FDA concluded there was a lack of substantial evidence of its efficacy and gave notice of its intent to withdraw the NDA, offering petitioner an opportunity to submit the required kind of data bearing on the efficacy of the drug and stating that withdrawal of approval of the NDA would cause the Ritonic Capsules to be a "new drug" for which no NDA was in effect, thereby making future sales unlawful. Petitioner responded, submitting data on the issue of efficacy and maintained that Ritonic Capsules was not a "new drug" for purposes of the Act as amended. FDA concluded that petitioner's evidence was insufficient to establish effectiveness and gave notice of a hearing on the withdrawal of the NDA. Petitioner responded, contested FDA's authority to proceed further, and claimed that the product was not a "new drug" under the 1962 Act. It reserved the right to establish its position in the administrative proceedings, in judicial proceedings, or in both. Petitioner filed no more data to support its *643 position; and accordingly FDA withdrew approval of the NDA on the ground that there was no substantial evidence that the drug was effective as claimed. Petitioner sought review of the withdrawal order in the Court of Appeals for the Second Circuit, as provided in § 505 (h), 21 U.S. C. § 355 (h). The Court of Appeals affirmed the withdrawal order. CIBA-Geigy Corp. v. Richardson, 446 F.2d 466. Meanwhile, and prior to the issuance of the withdrawal order, petitioner brought suit in the District Court for the District of New Jersey seeking declaratory and injunctive relief. After hearing, the District Court granted the Government's motion to dismiss the complaint for lack of jurisdiction. On appeal, the Court of Appeals for the Third Circuit affirmed, 463 F.2d 225, holding that FDA was authorized to decide the jurisdictional question as an incident of its power to approve or withdraw approval for NDA's, that its decision on that issue was reviewable on direct appeal by a court of appeals, and since the Court of Appeals for the Second Circuit had ruled against petitioner on that appeal, the jurisdictional question could not be relitigated in a separate suit for a declaratory judgment. We affirm the Court of Appeals. We have stated in Weinberger v. Bentex Pharmaceuticals, Inc., post, p. 645, our reasons for concluding that FDA has jurisdiction in an administrative proceeding to determine whether a drug product is a "new drug" within the meaning of § 201 (p) of the Act, 21 U.S. C. § 321 (p). A decision that FDA lacks authority to determine in its own proceedings the coverage of the Act it administers, subject of course to judicial review, would seriously impair FDA's ability to discharge the responsibilities placed on it by Congress. As we said in Weinberger v. Hynson, Westcott & Dunning, Inc., ante, p. 609, and the Bentex case, supra, the definition of "new drug" as used in § 201 (p) (1) involves *644 a determination of technical and scientific questions by experts. The agency is therefore appropriately the arm of Government to make the threshold determination of the issue of coverage. Cf. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 210-211, n 47. It is, of course, true that the Act gives FDA a second line of defense—civil injunction proceedings, criminal penalties, and in rem seizure and condemnation. See §§ 302 (a), 303, 304, 21 U.S. C. §§ 332 (a), 333, 334. Those are sanctions to enforce the prohibition of the Act against the sale in commerce of any article in violation of § 505. But the Act does not create a dual system of control—one administrative, and the other judicial. Cases may arise where there has been no formal administrative determination of the "new drug" issue, it being first tendered to a district court. Even then, however, the district court might well stay its hand, awaiting an appropriate administrative determination of the threshold question. See the Bentex case, supra. Where there is, however, an administrative determination, whether it be explicit or implicit in the withdrawal of an NDA, the tactic of "reserving" the threshold question (the jurisdictional issue) for later judicial determination is not tolerable. There is judicial review of FDA's ruling. But petitioner, having an opportunity to litigate the "new drug" issue before FDA and to raise the issue on appeal to a court of appeals, may not relitigate the issue in another proceeding. Yakus v. United States, 321 U.S. 414, 444-446. Affirmed. MR. JUSTICE BRENNAN took no part in the consideration or decision of this case. MR. JUSTICE STEWART took no part in the decision of this case.

Petitioner manufactures a drug called Ritonic Capsules[†] for which it filed a new drug application (NDA) that became effective in 1959. Under the Act then in force, an NDA for a "new drug" required the manufacturer to submit to the Food and Drug Administration (FDA) adequate proof of the drug's safety. This *642 particular NDA became effective on the basis of the drug's safety. As we have noted in the companion s, the 1962 amendments to the Federal Food, Drug, and Cosmetic Act of 1938, as amended, directed FDA to withdraw approval for NDA's which became effective prior to that time if, after notice and opportunity for hearing, it found a lack of "substantial evidence" that the drug involved was effective as claimed in its labeling. And, as we have noted, "substantial evidence" as used in the Act, 505 (d) and 505 (e) (3), 21 U.S. C. 355 (d) and 355 (e) (3), means "adequate and well-controlled investigations" from which experts may conclude that the drug will have the claimed effect. A panel of the National Academy of Sciences-National Research Council (NAS-NRC) reviewed the claims made for Ritonic Capsules and found it "ineffective" for each of the claims. FDA concluded there was a lack of substantial evidence of its efficacy and gave notice of its intent to withdraw the NDA, offering petitioner an opportunity to submit the required kind of data bearing on the efficacy of the drug and stating that withdrawal of approval of the NDA would cause the Ritonic Capsules to be a "new drug" for which no NDA was in effect, thereby making future sales unlawful. Petitioner responded, submitting data on the issue of efficacy and maintained that Ritonic Capsules was not a "new drug" for purposes of the Act as amended. FDA concluded that petitioner's evidence was insufficient to establish effectiveness and gave notice of a hearing on the withdrawal of the NDA. Petitioner responded, contested FDA's authority to proceed further, and claimed that the product was not a "new drug" under the 1962 Act. It reserved the right to establish its position in the administrative proceedings, in judicial proceedings, or in both. Petitioner filed no more data to support its *643 position; and accordingly FDA withdrew approval of the NDA on the ground that there was no substantial evidence that the drug was effective as claimed. Petitioner sought review of the withdrawal order in the Court of Appeals for the Second Circuit, as provided in 505 (h), 21 U.S. C. 355 (h). The Court of Appeals affirmed the withdrawal order. CIBA-Geigy Meanwhile, and prior to the issuance of the withdrawal order, petitioner brought suit in the District Court for the District of New Jersey seeking declaratory and injunctive relief. After hearing, the District Court granted the Government's motion to dismiss the complaint for lack of jurisdiction. On appeal, the Court of Appeals for the Third Circuit affirmed, holding that FDA was authorized to decide the jurisdictional question as an incident of its power to approve or withdraw approval for NDA's, that its decision on that issue was reviewable on direct appeal by a court of appeals, and since the Court of Appeals for the Second Circuit had ruled against petitioner on that appeal, the jurisdictional question could not be relitigated in a separate suit for a declaratory judgment. We affirm the Court of Appeals. We have stated in Weinberger v. Bentex Pharmaceuticals, Inc., post, p. 645, our reasons for concluding that FDA has jurisdiction in an administrative proceeding to determine whether a drug product is a "new drug" within the meaning of 201 (p) of the Act, 21 U.S. C. 321 (p). A decision that FDA lacks authority to determine in its own proceedings the coverage of the Act it administers, subject of course to judicial review, would seriously impair FDA's ability to discharge the responsibilities placed on it by Congress. As we said in Weinberger v. Hynson, Westcott & Dunning, Inc., ante, p. 609, and the Bentex the definition of "new drug" as used in 201 (p) (1) involves *644 a determination of technical and scientific questions by experts. The agency is therefore appropriately the arm of Government to make the threshold determination of the issue of coverage. Cf. Oklahoma Press Publishing It is, of course, true that the Act gives FDA a second line of defense—civil injunction proceedings, criminal penalties, and in rem seizure and condemnation. See 302 (a), 303, 304, 21 U.S. C. 332 (a), 333, 334. Those are sanctions to enforce the prohibition of the Act against the sale in commerce of any article in violation of 505. But the Act does not create a dual system of control—one administrative, and the other judicial. Cases may arise where there has been no formal administrative determination of the "new drug" issue, it being first tendered to a district court. Even then, however, the district court might well stay its hand, awaiting an appropriate administrative determination of the threshold question. See the Bentex Where there is, however, an administrative determination, whether it be explicit or implicit in the withdrawal of an NDA, the tactic of "reserving" the threshold question (the jurisdictional issue) for later judicial determination is not tolerable. There is judicial review of FDA's ruling. But petitioner, having an opportunity to litigate the "new drug" issue before FDA and to raise the issue on appeal to a court of appeals, may not relitigate the issue in another proceeding. Affirmed. MR. JUSTICE BRENNAN took no part in the consideration or decision of this MR. JUSTICE STEWART took no part in the decision of this

per_curiam

per_curiam

Wyrick v. Fields

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

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

1982-005

In this case, the United States Court of Appeals for the Eighth Circuit, over a dissent by Judge Ross, directed that respondent Edward Fields' petition for a writ of habeas corpus be granted; it did so on the ground that Fields had been convicted with evidence obtained in violation of his Fifth Amendment right to have counsel present at an interrogation. 682 F.2d 154 (1982). We have concluded that the Court of Appeals' majority misconstrued this Court's recent decision in Edwards v. Arizona, 451 U.S. 477 (1981), and imposed a new and unjustified limit on police questioning of a suspect who voluntarily, knowingly, and intelligently waives his right to have counsel present. I Respondent, a soldier then stationed at Fort Leonard Wood, Mo., was charged with raping an 81-year-old woman on September 21, 1974. After his arrest on September 25, Fields was released on his own recognizance. He retained *44 private defense counsel. After discussing the matter with his counsel and with a military attorney provided him by the Army, Fields requested a polygraph examination. This request was granted and the examination was conducted on December 4 by an agent of the Army's Criminal Investigation Division (CID) at the fort. Prior to undergoing the polygraph examination, Fields was given a written consent document, which he signed, informing him of his rights, as required by Miranda v. Arizona, 384 U.S. 436 (1966), and of his rights under the Uniform Code of Military Justice and the Eighth Amendment. In addition, the CID agent read to Fields the following detailed statement: "Before I ask you any questions, you must understand your rights. You do not have to answer my questions or say anything. Anything you say or do can be used against you in a criminal trial. You have a right to talk to a lawyer before questioning or have a lawyer present with you during the questioning. This lawyer can be a civilian lawyer of your own choice, or a military lawyer, detailed for you at no expense to you. Also, you may ask for a military lawyer of your choice by name and he will be detailed for you if superiors determine he's reasonably available. If you are now going to discuss the offense under investigation, which is rape, with or without a lawyer present, you have a right to stop answering questions at any time or speak to a lawyer before answering further, even if you sign a waiver certificate. Do you want a lawyer at this time?" See State v. Fields, 538 S.W.2d 348, 350, n. 1 (Mo. App. 1976) (emphasis added). Fields answered: "No." At the conclusion of the polygraph examination, which took less than two hours, the CID agent told Fields that there had been some deceit, and asked him if he could explain why his answers were bothering him. Fields then admitted having *45 intercourse with the victim on September 21, but said that she had instigated and consented to it. The agent asked Fields if he wished to discuss the matter further with another CID agent and with the Waynesville, Mo., Chief of Police. Fields said that he did. Then, in his turn, the Police Chief read Fields his Miranda warnings once again before questioning him. Fields repeated that he had had sexual contact with the victim, but that it had been consensual. Respondent was tried before a jury in the Circuit Court, Pulaski County, Mo. He sought to suppress the testimony of the two CID agents and the Police Chief regarding his "confessions" to voluntary intercourse. The trial court denied the motion, ruling that Fields had waived his rights. The testimony was admitted. Fields was convicted, and was sentenced to 25 years in prison. The Missouri Court of Appeals affirmed the judgment on the ground that Fields "had been repeatedly and amply advised of his rights and . . . voluntarily, knowingly and intelligently waived his rights." 538 S.W.2d, at 350. Eventually, Fields sought a writ of habeas corpus in the United States District Court for the Eastern District of Missouri. The District Court, agreeing with the Missouri Court of Appeals that Fields had voluntarily, knowingly, and intelligently waived his right to counsel, denied respondent's petition. On appeal, however, the Eighth Circuit reversed and remanded the case with directions to order the State either to release Fields or to afford him a new trial. 682 F.2d, at 162. II The Court of Appeals found that the police conduct in question contravened the "clear import" of this Court's decision in Edwards v. Arizona: "a defendant's right to have counsel present at custodial interrogations must be zealously guarded." 682 F.2d, at 158. In Edwards, this Court had held that once a suspect invokes his right to counsel, he may not be subjected to further interrogation until counsel is provided *46 unless the suspect himself initiates dialogue with the authorities. 451 U.S., at 484-487. The Eighth Circuit recognized that what it called the "per se rule" of Edwards "does not resolve the issue present here." 682 F.2d, at 158. Fields and his counsel had agreed that Fields should take the polygraph examination, and Fields appeared voluntarily and stated that he did not want counsel present during the interrogation. Thus, the Court of Appeals conceded that "Fields thereby `initiated' further dialogue with the authorities after his right to counsel had been invoked." Ibid. When the suspect has initiated the dialogue, Edwards makes clear that the right to have a lawyer present can be waived: "If, as frequently would occur in the course of a meeting initiated by the accused, the conversation is not wholly one-sided, it is likely that the officers will say or do something that clearly would be `interrogation.' In that event, the question would be whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities." 451 U.S., at 486, n. 9. Citing this language, the Eighth Circuit acknowledged — as it had to — that "[t]here is no question that Fields waived his right to have counsel present while the [polygraph] examination itself was being conducted." 682 F.2d, at 160. Yet that court found that the State had failed to satisfy its burden of proving that "Fields knowingly and intelligently waived his right to have counsel present at the post-test interrogation." Ibid. The court suggested that had the CID agent merely "paus[ed] to remind the defendant" of his rights, thus *47 providing "meaningfully timed Miranda warnings" (emphasis in original), there would have been no violation. Ibid. III In reaching this result, the Court of Appeals did not examine the "totality of the circumstances," as Edwards requires. Fields did not merely initiate a "meeting." By requesting a polygraph examination, he initiated interrogation. That is, Fields waived not only his right to be free of contact with the authorities in the absence of an attorney, but also his right to be free of interrogation about the crime of which he was suspected. Fields validly waived his right to have counsel present at "post-test" questioning, unless the circumstances changed so seriously that his answers no longer were voluntary, or unless he no longer was making a "knowing and intelligent relinquishment or abandonment" of his rights. 451 U.S., at 482. The Court of Appeals relied on two facts indicating the need for a new set of warnings: the polygraph examination had been discontinued, and Fields was asked if he could explain the test's unfavorable results. To require new warnings because of these two facts is unreasonable. Disconnecting the polygraph equipment effectuated no significant change in the character of the interrogation. The CID agent could have informed Fields during the examination that his answers indicated deceit; asking Fields, after the equipment was disconnected, why the answers were bothering him was not any more coercive. The Court of Appeals stated that there was no indication that Fields or his lawyer anticipated that Fields would be asked questions after the examination. But it would have been unreasonable for Fields and his attorneys to assume that Fields would not be informed of the polygraph readings and asked to explain any unfavorable result. Moreover, Fields had been informed that he could stop the questioning at any time, and could request at any time that *48 his lawyer join him. Merely disconnecting the polygraph equipment could not remove this knowledge from Fields' mind.[*] The only plausible explanation for the court's holding is that, encouraged by what it regarded as a per se rule established in Edwards, it fashioned another rule of its own: that, notwithstanding a voluntary, knowing, and intelligent waiver of the right to have counsel present at a polygraph examination, and notwithstanding clear evidence that the suspect understood that right and was aware of his power to stop questioning at any time or to speak to an attorney at any time, the police again must advise the suspect of his rights before questioning him at the same interrogation about the results of the polygraph. The court indicated that this rule was needed because it thought that the use of polygraph "results" in questioning, although it does not necessarily render a response involuntary, is inherently coercive. But Courts of Appeals, including a different panel of the Eighth Circuit itself, and state courts, have rejected such a rule. See, e. g., United States v. Little Bear, 583 F.2d 411, 414 (CA8 1978); Keiper v. Cupp, 509 F.2d 238, 241-242 (CA9 1975); People v. Barreto, 256 Cal. App. 2d 392, 64 Cal. Rptr. 211 (1967); State v. Henry, 352 So. 2d 643 (La. 1977). Cf. Henry v. Dees, 658 F.2d 406 (CA5 1981) (waiver not voluntary, knowing, and intelligent in the total circumstances of the case, including mental retardation of suspect). The Eighth Circuit's rule certainly finds no support in Edwards, which emphasizes that the totality of the circumstances, including the fact that the suspect initiated the questioning, is controlling. Nor is the *49 rule logical; the questions put to Fields after the examination would not have caused him to forget the rights of which he had been advised and which he had understood moments before. The rule is simply an unjustifiable restriction on reasonable police questioning. IV According to the dissent, a substantial question as to the admissibility of Fields' statements may be raised under the Sixth Amendment. Post, at 52-55. The Sixth Amendment issues raised by the dissent, however, are not before us. The Court of Appeals rested its judgment exclusively on the Fifth Amendment "right to have counsel present during a custodial interrogation" and on its interpretation of this Court's decision in Edwards. 682 F. 2d, at 158. That interpretation was flawed and the judgment of the Court of Appeals must be reversed. We express no view as to whether any constitutional safeguards not mentioned by the Court of Appeals bear on this case. Because the Court of Appeals misapplied Edwards and created an unjustified per se rule, the petition for a writ of certiorari is granted and that court's judgment is reversed and the case is remanded. It is so ordered.

In this case, the United States Court of Appeals for the Eighth Circuit, over a dissent by Judge Ross, directed that respondent Edward Fields' petition for a writ of habeas corpus be granted; it did so on the ground that Fields had been convicted with evidence obtained in violation of his Fifth Amendment right to have counsel present at an interrogation. We have concluded that the Court of Appeals' majority misconstrued this Court's recent decision in and imposed a new and unjustified limit on police questioning of a suspect who voluntarily, knowingly, and intelligently waives his right to have counsel present. I Respondent, a soldier then stationed at Fort Leonard Wood, Mo., was charged with raping an 81-year-old woman on September 21, 1974. After his arrest on September 25, Fields was released on his own recognizance. He retained *44 private defense counsel. After discussing the matter with his counsel and with a military attorney provided him by the Army, Fields requested a polygraph examination. This request was granted and the examination was conducted on December 4 by an agent of the Army's Criminal Investigation Division (CID) at the fort. Prior to undergoing the polygraph examination, Fields was given a written consent document, which he signed, informing him of his rights, as required by and of his rights under the Uniform Code of Military Justice and the Eighth Amendment. In addition, the CID agent read to Fields the following detailed statement: "Before I ask you any questions, you must understand your rights. You do not have to answer my questions or say anything. Anything you say or do can be used against you in a criminal You have a right to talk to a lawyer before questioning or have a lawyer present with you during the questioning. This lawyer can be a civilian lawyer of your own choice, or a military lawyer, detailed for you at no expense to you. Also, you may ask for a military lawyer of your choice by name and he will be detailed for you if superiors determine he's reasonably available. If you are now going to discuss the offense under investigation, which is rape, with or without a lawyer present, you have a right to stop answering questions at any time or speak to a lawyer before answering further, even if you sign a waiver certificate. Do you want a lawyer at this time?" See Fields answered: "No." At the conclusion of the polygraph examination, which took less than two hours, the CID agent told Fields that there had been some deceit, and asked him if he could explain why his answers were bothering him. Fields then admitted having *45 intercourse with the victim on September 21, but said that she had instigated and consented to it. The agent asked Fields if he wished to discuss the matter further with another CID agent and with the Waynesville, Mo., Chief of Police. Fields said that he did. Then, in his turn, the Police Chief read Fields his Miranda warnings once again before questioning him. Fields repeated that he had had sexual contact with the victim, but that it had been consensual. Respondent was tried before a jury in the Circuit Court, Pulaski County, Mo. He sought to suppress the testimony of the two CID agents and the Police Chief regarding his "confessions" to voluntary intercourse. The trial court denied the motion, ruling that Fields had waived his rights. The testimony was admitted. Fields was convicted, and was sentenced to 25 years in prison. The Missouri Court of Appeals affirmed the judgment on the ground that Fields "had been repeatedly and amply advised of his rights and voluntarily, knowingly and intelligently waived his rights." Eventually, Fields sought a writ of habeas corpus in the United States District Court for the Eastern District of Missouri. The District Court, agreeing with the Missouri Court of Appeals that Fields had voluntarily, knowingly, and intelligently waived his right to counsel, denied respondent's petition. On appeal, however, the Eighth Circuit reversed and remanded the case with directions to order the State either to release Fields or to afford him a new II The Court of Appeals found that the police conduct in question contravened the "clear import" of this Court's decision in : "a defendant's right to have counsel present at custodial interrogations must be zealously guarded." In Edwards, this Court had held that once a suspect invokes his right to counsel, he may not be subjected to further interrogation until counsel is provided *46 unless the suspect himself initiates dialogue with the -487. The Eighth Circuit recognized that what it called the "per se rule" of Edwards "does not resolve the issue present here." Fields and his counsel had agreed that Fields should take the polygraph examination, and Fields appeared voluntarily and stated that he did not want counsel present during the interrogation. Thus, the Court of Appeals conceded that "Fields thereby `initiated' further dialogue with the authorities after his right to counsel had been invoked." When the suspect has initiated the dialogue, Edwards makes clear that the right to have a lawyer present can be waived: "If, as frequently would occur in the course of a meeting initiated by the accused, the conversation is not wholly one-sided, it is likely that the officers will say or do something that clearly would be `interrogation.' In that event, the question would be whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the " n. 9. Citing this language, the Eighth Circuit acknowledged — as it had to — that "[t]here is no question that Fields waived his right to have counsel present while the [polygraph] examination itself was being conducted." Yet that court found that the State had failed to satisfy its burden of proving that "Fields knowingly and intelligently waived his right to have counsel present at the post-test interrogation." The court suggested that had the CID agent merely "paus[ed] to remind the defendant" of his rights, thus *47 providing "meaningfully timed Miranda warnings" (emphasis in original), there would have been no violation. III In reaching this result, the Court of Appeals did not examine the "totality of the circumstances," as Edwards requires. Fields did not merely initiate a "meeting." By requesting a polygraph examination, he initiated interrogation. That is, Fields waived not only his right to be free of contact with the authorities in the absence of an attorney, but also his right to be free of interrogation about the crime of which he was suspected. Fields validly waived his right to have counsel present at "post-test" questioning, unless the circumstances changed so seriously that his answers no longer were voluntary, or unless he no longer was making a "knowing and intelligent relinquishment or abandonment" of his rights. The Court of Appeals relied on two facts indicating the need for a new set of warnings: the polygraph examination had been discontinued, and Fields was asked if he could explain the test's unfavorable results. To require new warnings because of these two facts is unreasonable. Disconnecting the polygraph equipment effectuated no significant change in the character of the interrogation. The CID agent could have informed Fields during the examination that his answers indicated deceit; asking Fields, after the equipment was disconnected, why the answers were bothering him was not any more coercive. The Court of Appeals stated that there was no indication that Fields or his lawyer anticipated that Fields would be asked questions after the examination. But it would have been unreasonable for Fields and his attorneys to assume that Fields would not be informed of the polygraph readings and asked to explain any unfavorable result. Moreover, Fields had been informed that he could stop the questioning at any time, and could request at any time that *48 his lawyer join him. Merely disconnecting the polygraph equipment could not remove this knowledge from Fields' mind.[*] The only plausible explanation for the court's holding is that, encouraged by what it regarded as a per se rule established in Edwards, it fashioned another rule of its own: that, notwithstanding a voluntary, knowing, and intelligent waiver of the right to have counsel present at a polygraph examination, and notwithstanding clear evidence that the suspect understood that right and was aware of his power to stop questioning at any time or to speak to an attorney at any time, the police again must advise the suspect of his rights before questioning him at the same interrogation about the results of the polygraph. The court indicated that this rule was needed because it thought that the use of polygraph "results" in questioning, although it does not necessarily render a response involuntary, is inherently coercive. But Courts of Appeals, including a different panel of the Eighth Circuit itself, and state courts, have rejected such a rule. See, e. g., United ; ; ; Cf. The Eighth Circuit's rule certainly finds no support in Edwards, which emphasizes that the totality of the circumstances, including the fact that the suspect initiated the questioning, is controlling. Nor is the *49 rule logical; the questions put to Fields after the examination would not have caused him to forget the rights of which he had been advised and which he had understood moments before. The rule is simply an unjustifiable restriction on reasonable police questioning. IV According to the dissent, a substantial question as to the admissibility of Fields' statements may be raised under the Sixth Amendment. Post, at 52-55. The Sixth Amendment issues raised by the dissent, however, are not before us. The Court of Appeals rested its judgment exclusively on the Fifth Amendment "right to have counsel present during a custodial interrogation" and on its interpretation of this Court's decision in Edwards. 682 F. 2d, at 158. That interpretation was flawed and the judgment of the Court of Appeals must be reversed. We express no view as to whether any constitutional safeguards not mentioned by the Court of Appeals bear on this case. Because the Court of Appeals misapplied Edwards and created an unjustified per se rule, the petition for a writ of certiorari is granted and that court's judgment is reversed and the case is remanded. It is so ordered.

Justice Powell

concurring

Complete Auto Transit, Inc. v. Reis

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

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

1980-083

The Court's opinion makes clear that Congress, in enacting the Taft-Hartley amendments to the National Labor Relations Act, did not intend to hold individuals liable in damages for wildcat strikes. I therefore join the Court's judgment and most of its opinion. I do not, however, share the Court's view that there remains to management a "significant array of other remedies," ante, at 416, n. 18, with which to deter or obtain compensation for illegal strikes. In fact, the "remedies" said to be available are largely chimerical. I Collective-bargaining agreements typically contain a promise by the union not to strike during the agreement's term. Unions agree to these no-strike clauses in exchange for the employer's promise to arbitrate disputes arising in contract *418 administration. Textile Workers v. Lincoln Mills, 353 U.S. 448, 449, 455 (1957). Each promise is the "quid pro quo" for the other, Steelworkers v. American Mfg. Co., 363 U.S. 564, 567 (1960), because the employer yields traditional managerial autonomy in exchange for industrial peace. Despite the mutual benefits of the no-strike/grievance-arbitration pact, strikes in breach of contract occur with disturbing frequency. In some cases, these strikes are encouraged or even instigated by union leaders.[1] Often, however, they are true "wildcats"—strikes that arise spontaneously to protest grievances against the company and, occasionally, against the union leadership itself. Responsible unions disapprove of such strikes, but some officials, especially those at the local level, may acquiesce in them because of the fervor of intransigent members. Whatever the cause, strikes in breach of contract frequently injure all concerned: the employer,[2] employees, and the public. Strikes and lockouts by their nature squander human working capacity, the full use of which is essential to the enjoyment of the Nation's productive potential. To be sure, the national labor policy recognizes that, in some circumstances, the use of weapons of strike and lockout is consistent *419 with and protected by law. Labor, management, and the public nevertheless share a "common goal of uninterrupted production." Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). The essential tenet of our labor policy is that "a system of industrial self-government" based on consensual (albeit vigorously negotiated) labor contracts, see Steelworkers v. American Mfg. Co., supra, at 570 (BRENNAN, J., concurring), is preferable to "strikes, lockouts, or other self-help," Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 249 (1970). When the Taft-Hartley amendments were enacted in 1947, the Nation had experienced a wave of labor unrest.[3] Congress found that "the balance of power in collective-bargaining" had been destroyed because employers, who had promised to arbitrate disputes in exchange for no-strike promises, often failed to obtain the industrial peace for which they bargained. S. Rep. 14.[4] II It is increasingly clear that the 1947 Taft-Hartley amendments did not provide employers with an effective remedy for wildcat strikes. The Court today holds, properly I think, that Congress intended to foreclose a damages remedy against individual wildcat strikers. The Court states, however, that *420 there remains a number of legal weapons with which to deter or terminate illegal strikes, or to obtain compensation when they occur. Ante, at 416-417, n. 18. In support of its view, the Court contends that the employer may (i) obtain an injunction, (ii) discharge the strikers, (iii) request the union to use its internal disciplinary powers, or (iv) sue the union entity for damages. Ibid. In reality, more often than not, each of these remedies is illusory. Injunctions in labor disputes are generally prohibited by the Norris-LaGuardia Act.[5] In Boys Markets, Inc. v. Retail Clerks, supra, the Court recognized a limited exception to the anti-injunction provisions of that Act. Boys Markets permits injunctions to terminate strikes pending arbitration if the grievance underlying the strike is arbitrable. However, Boys Markets offers only "narrow" relief, 398 U.S., at 253, because injunctions cannot be obtained in strikes of other kinds. E. g., Buffalo Forge Co. v. Steelworkers, 428 U.S. 397 (1976) (injunctions not available in sympathy strikes). Moreover, even when an injunction is available, workers on strike often are disinclined to obey it.[6] Courts may be reluctant to impose contempt penalties on individual workers; if ordered, such penalties are difficult to enforce. Nor is discharge a realistic remedy in most cases. Because a strike in breach of contract is unprotected conduct under the National Labor Relations Act, see NLRB v. Sands Mfg. Co., 306 U.S. 332 (1939), workers who strike illegally may be terminated. It therefore has been argued that discharge *421 effectively deters strikes and punishes wrongdoers because discharge is "the industrial equivalent of capital punishment." M. Jay Whitman, Wildcat Strikes: The Union's Narrowing Path to Rectitude?, 50 Ind. L. J. 472, 481 (1975). There are at least three reasons why this remedy in practice often is not effective. First, in a large wildcat strike, wholesale discharges are not practical because an employer cannot terminate all or most of his labor force without crippling production. See Boys Markets, supra, at 248-249, n. 17.[7] Second, certain kinds of selective discharges arguably are illegal. The National Labor Relations Board takes the position that an employer may not discipline a union officer more severely than other strike participants, even where the union officer failed to fulfill a contractual undertaking to help terminate strikes.[8] In any event, discharging only selected strikers is unlikely to influence the rank and file to return to work. Such discharges actually may aggravate worker discontent and thereby prolong the strike. Cedar Coal Co. v. United Mine Workers, 560 F.2d 1153, 1157 (CA4 1977), cert. denied, 434 U.S. 1047 (1978); see 86 Harv. L. Rev. 447, 454, *422 n. 33 (1972). At a minimum, strikers may insist that their discharged colleagues be reinstated as a condition to returning to work. Fishman & Brown, Union Responsibility for Wildcat strikes, 21 Wayne L. Rev. 1017, 1022 (1975). Third, arbitrators not infrequently refuse to sustain discharges of strikers. See Handsaker & Handsaker, Remedies and Penalties for Wildcat Strikes: How Arbitrators and Federal Courts Have Ruled, 22 Cath. U. L. Rev. 279, 284 (1973). The union itself normally will not discipline its striking members. Most unions have the legal authority to take such action, see Summers, Legal Limitations on Union Discipline, 64 Harv. L. Rev. 1049, 1065 (1951), but the power seldom is used. In a wildcat strike, worker recalcitrance sometimes is directed at the incumbent union leadership as much as at company management. In these circumstances, the Union's attempt to discipline is unlikely to be effective and may be counterproductive. Moreover, under this Court's decision in Carbon Fuel Co. v. Mine Workers, 444 U.S. 212 (1979), a parent union normally is not obligated to take affirmative steps to prevent or terminate a wildcat strike. Absent such an obligation, there is little incentive for the union to intervene, even where intervention would be useful. Finally, a suit for damages against the union entity rarely is feasible.[9] Last Term, in Carbon Fuel, supra, we largely *423 foreclosed this possibility when we held that liability normally may not be imposed on a parent union [10] absent proof that it authorized or ratified the strike.[11] It is a foolish union that would invite a damages suit by explicitly endorsing a strike in this manner. See n. 1, supra. III The Court plainly is unrealistic, therefore, when it suggests that employers have at their disposal a battery of alternative remedies for illegal strikes. Ante, at 416-417, n. 18. The result of the absence of remedies is a lawless vacuum. Despite a no-strike clause, a plant may be closed with adverse consequences that often are far-reaching. The strike injures the employer, other companies and their employees, and consumers in general. Frequently, the strike is harmful even to the majority of strikers, who feel obligated to honor the picket line of minority wildcatters. It is, of course, the province of Congress to set the Nation's labor policy. I do not suggest that authorizing a damages remedy against individual wildcat strikers would be desirable. I do believe, however, that the absence of an effective *424 remedy leaves such strikes undeterred and the public interest unprotected. The National Labor Relations Act, as amended in 1947, was intended to further broader national interests than those of either labor or management. It was conceived not only as a charter for labor rights but also as a framework of law to promote orderly labor relations. Wildcat strikes are at war with these objectives.

The Court's opinion makes clear that Congress, in enacting the Taft-Hartley amendments to the National Labor Relations Act, did not intend to hold individuals liable in damages for wildcat strikes. I therefore join the Court's judgment and most of its opinion. I do not, however, share the Court's view that there remains to management a "significant array of other remedies," ante, at 46, n. 8, with which to deter or obtain compensation for illegal strikes. In fact, the "remedies" said to be available are largely chimerical. I Collective-bargaining agreements typically contain a promise by the union not to strike during the agreement's term. Unions agree to these no-strike clauses in exchange for the employer's promise to arbitrate disputes arising in contract *48 administration. Textile Each promise is the "quid pro quo" for the other, because the employer yields traditional managerial autonomy in exchange for industrial peace. Despite the mutual benefits of the no-strike/grievance-arbitration pact, strikes in breach of contract occur with disturbing frequency. In some cases, these strikes are encouraged or even instigated by union leaders.[] Often, however, they are true "wildcats"—strikes that arise spontaneously to protest grievances against the company and, occasionally, against the union leadership itself. Responsible unions disapprove of such strikes, but some officials, especially those at the local level, may acquiesce in them because of the fervor of intransigent members. Whatever the cause, strikes in breach of contract frequently injure all concerned: the employer,[2] employees, and the public. Strikes and lockouts by their nature squander human working capacity, the full use of which is essential to the enjoyment of the Nation's productive potential. To be sure, the national labor policy recognizes that, in some circumstances, the use of weapons of strike and lockout is consistent *49 with and protected by law. Labor, management, and the public nevertheless share a "common goal of uninterrupted production." The essential tenet of our labor policy is that "a system of industrial self-government" based on consensual (albeit vigorously negotiated) labor contracts, see is preferable to "strikes, lockouts, or other self-help," Boys When the Taft-Hartley amendments were enacted in 947, the Nation had experienced a wave of labor unrest.[3] Congress found that "the balance of power in collective-bargaining" had been destroyed because employers, who had promised to arbitrate disputes in exchange for no-strike promises, often failed to obtain the industrial peace for which they bargained. S. Rep. 4.[4] II It is increasingly clear that the 947 Taft-Hartley amendments did not provide employers with an effective remedy for wildcat strikes. The Court today holds, properly I think, that Congress intended to foreclose a damages remedy against individual wildcat strikers. The Court states, however, that *420 there remains a number of legal weapons with which to deter or terminate illegal strikes, or to obtain compensation when they occur. Ante, at 46-47, n. 8. In support of its view, the Court contends that the employer may (i) obtain an injunction, (ii) discharge the strikers, (iii) request the union to use its internal disciplinary powers, or (iv) sue the union entity for damages. In reality, more often than not, each of these remedies is illusory. Injunctions in labor disputes are generally prohibited by the Norris-LaGuardia Act.[5] In Boys the Court recognized a limited exception to the anti-injunction provisions of that Act. Boys permits injunctions to terminate strikes pending arbitration if the grievance underlying the strike is arbitrable. However, Boys offers only "narrow" because injunctions cannot be obtained in strikes of other kinds. E. g., Buffalo Forge v. Steelworkers, Moreover, even when an injunction is available, workers on strike often are disinclined to obey it.[6] Courts may be reluctant to impose contempt penalties on individual workers; if ordered, such penalties are difficult to enforce. Nor is discharge a realistic remedy in most cases. Because a strike in breach of contract is unprotected conduct under the National Labor Relations Act, see NLRB v. Sands Mfg. workers who strike illegally may be terminated. It therefore has been argued that discharge *42 effectively deters strikes and punishes wrongdoers because discharge is "the industrial equivalent of capital punishment." M. Jay Whitman, Wildcat Strikes: The Union's Narrowing Path to Rectitude?, 50 Ind. L. J. 472, 48 There are at least three reasons why this remedy in practice often is not effective. First, in a large wildcat strike, wholesale discharges are not practical because an employer cannot terminate all or most of his labor force without crippling production. See Boys at 248-, n. 7.[7] Second, certain kinds of selective discharges arguably are illegal. The National Labor Relations Board takes the position that an employer may not discipline a union officer more severely than other strike participants, even where the union officer failed to fulfill a contractual undertaking to help terminate strikes.[8] In any event, discharging only selected strikers is unlikely to influence the rank and file to return to work. Such discharges actually may aggravate worker discontent and thereby prolong the strike. Cedar Coal v. United Mine Workers, cert. denied, ; see *422 n. 33 (972). At a minimum, strikers may insist that their discharged colleagues be reinstated as a condition to returning to work. Fishman & Brown, Union Responsibility for Wildcat strikes, Third, arbitrators not infrequently refuse to sustain discharges of strikers. See Handsaker & Handsaker, Remedies and Penalties for Wildcat Strikes: How Arbitrators and Federal Courts Have Ruled, The union itself normally will not discipline its striking members. Most unions have the legal authority to take such action, see Summers, Legal Limitations on Union Discipline, but the power seldom is used. In a wildcat strike, worker recalcitrance sometimes is directed at the incumbent union leadership as much as at company management. In these circumstances, the Union's attempt to discipline is unlikely to be effective and may be counterproductive. Moreover, under this Court's decision in Carbon v. Mine Workers, a parent union normally is not obligated to take affirmative steps to prevent or terminate a wildcat strike. Absent such an obligation, there is little incentive for the union to intervene, even where intervention would be useful. Finally, a suit for damages against the union entity rarely is feasible.[9] Last Term, in Carbon we largely *423 foreclosed this possibility when we held that liability normally may not be imposed on a parent union [0] absent proof that it authorized or ratified the strike.[] It is a foolish union that would invite a damages suit by explicitly endorsing a strike in this manner. See n. III The Court plainly is unrealistic, therefore, when it suggests that employers have at their disposal a battery of alternative remedies for illegal strikes. Ante, at 46-47, n. 8. The result of the absence of remedies is a lawless vacuum. Despite a no-strike clause, a plant may be closed with adverse consequences that often are far-reaching. The strike injures the employer, other companies and their employees, and consumers in general. Frequently, the strike is harmful even to the majority of strikers, who feel obligated to honor the picket line of minority wildcatters. It is, of course, the province of Congress to set the Nation's labor policy. I do not suggest that authorizing a damages remedy against individual wildcat strikers would be desirable. I do believe, however, that the absence of an effective *424 remedy leaves such strikes undeterred and the public interest unprotected. The National Labor Relations Act, as amended in 947, was intended to further broader national interests than those of either labor or management. It was conceived not only as a charter for labor rights but also as a framework of law to promote orderly labor relations. Wildcat strikes are at war with these objectives.

Justice Blackmun

majority

Dixon v. Love

https://www.courtlistener.com/opinion/109651/dixon-v-love/

https://www.courtlistener.com/api/rest/v3/clusters/109651/

1976-098

The issue in this case is whether Illinois has provided constitutionally adequate procedures for suspending or revoking the license of a driver who repeatedly has been convicted of traffic offenses. The statute and administrative regulations provide for an initial summary decision based on official records, with a full administrative hearing available only after the suspension or revocation has taken effect. *107 I The case centers on § 6-206 of the Illinois Driver Licensing Law (c. 6 of the Illinois Vehicle Code). The section is entitled "Discretionary authority to suspend or revoke license or permit." It empowers the Secretary of State to act "without preliminary hearing upon a showing by his records or other sufficient evidence" that a driver's conduct falls into any one of 18 enumerated categories. Ill. Rev. Stat., c. 95 1/2, § 6-206 (a) (1975). Pursuant to his rulemaking authority under this law, § 6-211 (a),[1] the Secretary has adopted administrative regulations that further define the bases and procedures for discretionary suspensions. These regulations generally provide for an initial summary determination based on the individual's driving record.[2] The Secretary has established a comprehensive system of assigning "points" for various kinds of traffic offenses, depending on severity, to provide an objective means of evaluating driving records. One of the statutorily enumerated circumstances justifying *108 license suspension or revocation is conviction of three moving traffic offenses within a 12-month period. § 6-206 (a) (2).[3] This is one of the instances where the Secretary, by regulation, has provided a method for determining the sanction according to the driver's accumulated "points."[4] Another circumstance, specified in the statute, supporting suspension or revocation is where a licensee "[h]as been repeatedly involved as a driver in motor vehicle collisions or has been repeatedly convicted of *109 offenses against laws and ordinances regulating the movement of traffic, to a degree which indicates lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for the traffic laws and the safety of other persons upon the highway." § 6-206 (a) (3). Here again the Secretary has limited his broad statutory discretion by an administrative regulation. This regulation allows suspension or revocation, where sufficient points have been accumulated to warrant a second suspension within a 5-year period.[5] The regulation concludes flatly: "A person who has been suspended thrice within a 10 year period shall be revoked." Section 6-206 (c) (1)[6] requires the Secretary "immediately" to provide written notice of a discretionary suspension or revocation under this statute, but no prior hearing is required. Within 20 days of his receiving a written request from the licensee, the Secretary must schedule a full evidentiary hearing *110 for a date "as early as practical" in either Sangamon County or Cook County, as the licensee may specify. § 2-118 (a). The final decision of the Secretary after such hearing is subject to judicial review in the Illinois courts. § 2-118 (e). In addition, a person whose license is suspended or revoked may obtain a restricted permit for commercial use or in case of hardship. §§ 6-206 (c) (2) and (3).[7] II Appellee Love, a resident of Chicago, is employed as a truck-driver. His license was suspended in November 1969, under § 6-206 (a) (2), for three convictions within a 12-month period. He was then convicted of a charge of driving while his license was suspended, and consequently another suspension was imposed in March 1970 pursuant to § 6-303 (b). Appellee received no further citation until August 1974, when he was arrested twice for speeding. He was convicted of both charges and then received a third speeding citation in February 1975. On March 27, he was notified by letter that he would lose his driving privileges if convicted of a third offense. On March 31 appellee was convicted of the third speeding charge. *111 On June 3, appellee received a notice that his license was revoked effective June 6.[8] The stated authority for the revocation was § 6-206 (a) (3); the explanation, following the language of the statute, was: "This action has been taken as a result of: Your having been repeatedly convicted of offenses against laws and ordinances regulating the movement of traffic, to a degree which indicates disrespect for the traffic laws." App. 13. Appellee, then aged 25, made no request for an administrative hearing. Instead, he filed this purported class action[9] on June 5 against the Illinois Secretary of State in the United States District Court for the Northern District of Illinois. His complaint sought a declaratory judgment that § 6-206 (a) (3) was unconstitutional, an injunction against enforcement of the statute, and damages. Appellee's application for a temporary restraining order was granted on condition that he apply for a hardship driving permit. He applied for that permit on June 10, and it was issued on July 25. A three-judge District Court was convened to consider appellee's claim that the Illinois statute was unconstitutional. On cross-motions for summary judgment, the court held that a license cannot constitutionally be suspended or revoked under § 6-206 (a) (3) until after a hearing is held to determine whether the licensee meets the statutory criteria of "lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for the traffic laws *112 and the safety of other persons upon the highway." The court regarded such a prior hearing as mandated by this Court's decision in Bell v. Burson, 402 U.S. 535 (1971). Accordingly, the court granted judgment for appellee and enjoined the Secretary of State from enforcing § 6-206 (a) (3). The Secretary appealed, and we noted probable jurisdiction sub nom. Howlett v. Love, 429 U.S. 813 (1976). III It is clear that the Due Process Clause applies to the deprivation of a driver's license by the State: "Suspension of issued licenses . . . involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment." Bell v. Burson, 402 U. S., at 539. It is equally clear that a licensee in Illinois eventually can obtain all the safeguards procedural due process could be thought to require before a discretionary suspension or revocation becomes final. Appellee does not challenge the adequacy of the administrative hearing, noted above, available under § 2-118. The only question is one of timing. This case thus presents an issue similar to that considered only last Term in Mathews v. Eldridge, 424 U.S. 319, 333 (1976), namely, "the extent to which due process requires an evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter." We may analyze the present case, too, in terms of the factors considered in Eldridge: "[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and *113 probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id., at 335. The private interest affected by the decision here is the granted license to operate a motor vehicle. Unlike the social security recipients in Eldridge, who at least could obtain retroactive payments if their claims were subsequently sustained, a licensee is not made entirely whole if his suspension or revocation is later vacated. On the other hand, a driver's license may not be so vital and essential as are social insurance payments on which the recipient may depend for his very subsistence. See Goldberg v. Kelly, 397 U.S. 254, 264 (1970). The Illinois statute includes special provisions for hardship and for holders of commercial licenses, who are those most likely to be affected by the deprival of driving privileges. See n. 7, supra. We therefore conclude that the nature of the private interest here is not so great as to require us "to depart from the ordinary principle, established by our decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action." Mathews v. Eldridge, 424 U. S., at 343. See Arnett v. Kennedy, 416 U.S. 134 (1974). Moreover, the risk of an erroneous deprivation in the absence of a prior hearing is not great. Under the Secretary's regulations, suspension and revocation decisions are largely automatic. Of course, there is the possibility of clerical error, but written objection will bring a matter of that kind to the Secretary's attention. In this case appellee had the opportunity for a full judicial hearing in connection with each of the traffic convictions on which the Secretary's decision was based. Appellee has not challenged the validity of those convictions or the adequacy of his procedural rights at the time they were determined. Tr. of Oral Arg. 41, 47. Since appellee *114 does not dispute the factual basis for the Secretary's decision, he is really asserting the right to appear in person only to argue that the Secretary should show leniency and depart from his own regulations.[10] Such an appearance might make the licensee feel that he has received more personal attention, but it would not serve to protect any substantive rights. We conclude that requiring additional procedures would be unlikely to have significant value in reducing the number of erroneous deprivations. Finally, the substantial public interest in administrative efficiency would be impeded by the availability of a pretermination hearing in every case. Giving licensees the choice thus automatically to obtain a delay in the effectiveness of a suspension or revocation would encourage drivers routinely to request full administrative hearings. See Mathews v. Eldridge, 424 U. S., at 347. Far more substantial than the administrative burden, however, is the important public interest in safety on the roads and highways, and in the prompt removal of a safety hazard. See Perez v. Campbell, 402 U.S. 637, 657, 671 (1971) (opinion concurring in part and dissenting in part). This factor fully distinguishes Bell v. Burson, supra, where the "only purpose" of the Georgia statute there under consideration was "to obtain security from which to pay any judgments against the licensee resulting from the accident." 402 U.S., at 540.[11] In contrast, the Illinois statute at *115 issue in the instant case is designed to keep off the roads those drivers who are unable or unwilling to respect traffic rules and the safety of others. We conclude that the public interests present under the circumstances of this case are sufficiently visible and weighty for the State to make its summary initial decision effective without a predecision administrative hearing. The present case is a good illustration of the fact that procedural due process in the administrative setting does not always require application of the judicial model. When a governmental official is given the power to make discretionary decisions under a broad statutory standard, case-by-case decisionmaking may not be the best way to assure fairness. Here the Secretary commendably sought to define the statutory standard narrowly by the use of his rulemaking authority.[12] The decision to use objective rules in this case provides drivers with more precise notice of what conduct will be sanctioned and promotes equality of treatment among similarly situated drivers. The approach taken by the District Court would have the contrary result of reducing the fairness of the system, by requiring a necessarily subjective inquiry in each case as to a driver's "disrespect" or "lack of ability to exercise ordinary and reasonable care." The second count of appellee's complaint challenged § 6-206 (a) (3) on the grounds of vagueness and inadequacy of standards. The three-judge court did not reach the issue. *116 App. 22. We regard the claim, in the light of Love's record, as frivolous. The judgment of the District Court is reversed. It is so ordered. MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR. JUSTICE STEVENS, with whom MR.

The issue in this case is whether Illinois has provided constitutionally adequate procedures for suspending or revoking the license of a driver who repeatedly has been convicted of traffic offenses. The statute and administrative regulations provide for an initial summary decision based on official records, with a full administrative hearing available only after the suspension or revocation has taken effect. *10 I The case centers on 6-206 of the Illinois Driver Licensing Law (c. 6 of the Illinois Vehicle Code). The section is entitled "Discretionary authority to suspend or revoke license or permit." It empowers the Secretary of State to act "without preliminary hearing upon a showing by his records or other sufficient evidence" that a driver's conduct falls into any one of 18 enumerated categories. Ill. Rev. Stat., c. 95 1/2, 6-206 (a) (195). Pursuant to his rulemaking authority under this law, 6-211 (a),[1] the Secretary has adopted administrative regulations that further define the bases and procedures for discretionary suspensions. These regulations generally provide for an initial summary determination based on the individual's driving record.[2] The Secretary has established a comprehensive system of assigning "points" for various kinds of traffic offenses, depending on severity, to provide an objective means of evaluating driving records. One of the statutorily enumerated circumstances justifying *108 license suspension or revocation is conviction of three moving traffic offenses within a 12-month period. 6-206 (a) (2).[3] This is one of the instances where the Secretary, by regulation, has provided a method for determining the sanction according to the driver's accumulated "points."[4] Another circumstance, specified in the statute, supporting suspension or revocation is where a licensee "[h]as been repeatedly involved as a driver in motor vehicle collisions or has been repeatedly convicted of *109 offenses against laws and ordinances regulating the movement of traffic, to a degree which indicates lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for the traffic laws and the safety of other persons upon the highway." 6-206 (a) (3). Here again the Secretary has limited his broad statutory discretion by an administrative regulation. This regulation allows suspension or revocation, where sufficient points have been accumulated to warrant a second suspension within a 5-year period.[5] The regulation concludes flatly: "A person who has been suspended thrice within a 10 year period shall be revoked." Section 6-206 (c) (1)[6] requires the Secretary "immediately" to provide written notice of a discretionary suspension or revocation under this statute, but no prior hearing is required. Within 20 days of his receiving a written request from the licensee, the Secretary must schedule a full evidentiary hearing *110 for a date "as early as practical" in either Sangamon County or Cook County, as the licensee may specify. 2-118 (a). The final decision of the Secretary after such hearing is subject to judicial review in the Illinois courts. 2-118 (e). In addition, a person whose license is suspended or revoked may obtain a restricted permit for commercial use or in case of hardship. 6-206 (c) (2) and (3).[] II Appellee Love, a resident of Chicago, is employed as a truck-driver. His license was suspended in November 1969, under 6-206 (a) (2), for three convictions within a 12-month period. He was then convicted of a charge of driving while his license was suspended, and consequently another suspension was imposed in March 190 pursuant to 6-303 (b). Appellee received no further citation until August 194, when he was arrested twice for speeding. He was convicted of both charges and then received a third speeding citation in February 195. On March 2, he was notified by letter that he would lose his driving privileges if convicted of a third offense. On March 31 appellee was convicted of the third speeding charge. *111 On June 3, appellee received a notice that his license was revoked effective June 6.[8] The stated authority for the revocation was 6-206 (a) (3); the explanation, following the language of the statute, was: "This action has been taken as a result of: Your having been repeatedly convicted of offenses against laws and ordinances regulating the movement of traffic, to a degree which indicates disrespect for the traffic laws." App. 13. Appellee, then aged 25, made no request for an administrative hearing. Instead, he filed this purported class action[9] on June 5 against the Illinois Secretary of State in the United States District Court for the Northern District of Illinois. His complaint sought a declaratory judgment that 6-206 (a) (3) was unconstitutional, an injunction against enforcement of the statute, and damages. Appellee's application for a temporary restraining order was granted on condition that he apply for a hardship driving permit. He applied for that permit on June 10, and it was issued on July 25. A three-judge District Court was convened to consider appellee's claim that the Illinois statute was unconstitutional. On cross-motions for summary judgment, the court held that a license cannot constitutionally be suspended or revoked under 6-206 (a) (3) until after a hearing is held to determine whether the licensee meets the statutory criteria of "lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for the traffic laws *112 and the safety of other persons upon the highway." The court regarded such a prior hearing as mandated by this Court's decision in Accordingly, the court granted judgment for appellee and enjoined the Secretary of State from enforcing 6-206 (a) (3). The Secretary appealed, and we noted probable jurisdiction sub nom. III It is clear that the Due Process Clause applies to the deprivation of a driver's license by the State: "Suspension of issued licenses involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment." It is equally clear that a licensee in Illinois eventually can obtain all the safeguards procedural due process could be thought to require before a discretionary suspension or revocation becomes final. Appellee does not challenge the adequacy of the administrative hearing, noted above, available under 2-118. The only question is one of timing. This case thus presents an issue similar to that considered only last Term in namely, "the extent to which due process requires an evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter." We may analyze the present case, too, in terms of the factors considered in : "[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and *113 probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." The private interest affected by the decision here is the granted license to operate a motor vehicle. Unlike the social security recipients in who at least could obtain retroactive payments if their claims were subsequently sustained, a licensee is not made entirely whole if his suspension or revocation is later vacated. On the other hand, a driver's license may not be so vital and essential as are social insurance payments on which the recipient may depend for his very subsistence. See The Illinois statute includes special provisions for hardship and for holders of commercial licenses, who are those most likely to be affected by the deprival of driving privileges. See n. We therefore conclude that the nature of the private interest here is not so great as to require us "to depart from the ordinary principle, established by our decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action." See (194). Moreover, the risk of an erroneous deprivation in the absence of a prior hearing is not great. Under the Secretary's regulations, suspension and revocation decisions are largely automatic. Of course, there is the possibility of clerical error, but written objection will bring a matter of that kind to the Secretary's attention. In this case appellee had the opportunity for a full judicial hearing in connection with each of the traffic convictions on which the Secretary's decision was based. Appellee has not challenged the validity of those convictions or the adequacy of his procedural rights at the time they were determined. Tr. of Oral Arg. 41, 4. Since appellee *114 does not dispute the factual basis for the Secretary's decision, he is really asserting the right to appear in person only to argue that the Secretary should show leniency and depart from his own regulations.[10] Such an appearance might make the licensee feel that he has received more personal attention, but it would not serve to protect any substantive rights. We conclude that requiring additional procedures would be unlikely to have significant value in reducing the number of erroneous deprivations. Finally, the substantial public interest in administrative efficiency would be impeded by the availability of a pretermination hearing in every case. Giving licensees the choice thus automatically to obtain a delay in the effectiveness of a suspension or revocation would encourage drivers routinely to request full administrative hearings. See 424 U. S., at 34. Far more substantial than the administrative burden, however, is the important public interest in safety on the roads and highways, and in the prompt removal of a safety hazard. See 402 U.S. 63, 65, 61 This factor fully distinguishes where the "only purpose" of the Georgia statute there under consideration was "to obtain security from which to pay any judgments against the licensee resulting from the accident."[11] In contrast, the Illinois statute at *115 issue in the instant case is designed to keep off the roads those drivers who are unable or unwilling to respect traffic rules and the safety of others. We conclude that the public interests present under the circumstances of this case are sufficiently visible and weighty for the State to make its summary initial decision effective without a predecision administrative hearing. The present case is a good illustration of the fact that procedural due process in the administrative setting does not always require application of the judicial model. When a governmental official is given the power to make discretionary decisions under a broad statutory standard, case-by-case decisionmaking may not be the best way to assure fairness. Here the Secretary commendably sought to define the statutory standard narrowly by the use of his rulemaking authority.[12] The decision to use objective rules in this case provides drivers with more precise notice of what conduct will be sanctioned and promotes equality of treatment among similarly situated drivers. The approach taken by the District Court would have the contrary result of reducing the fairness of the system, by requiring a necessarily subjective inquiry in each case as to a driver's "disrespect" or "lack of ability to exercise ordinary and reasonable care." The second count of appellee's complaint challenged 6-206 (a) (3) on the grounds of vagueness and inadequacy of standards. The three-judge court did not reach the issue. *. We regard the claim, in the light of Love's record, as frivolous. The judgment of the District Court is reversed. It is so ordered. MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR. JUSTICE STEVENS, with whom MR.

Justice Rehnquist

dissenting

Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, PC

https://www.courtlistener.com/opinion/111694/three-affiliated-tribes-of-fort-berthold-reservation-v-wold-engineering/

https://www.courtlistener.com/api/rest/v3/clusters/111694/

1985-110

North Dakota law provides that in order for an Indian tribe such as petitioner to avail itself of the jurisdiction of North Dakota courts as a plaintiff, it must also accept the jurisdiction of those courts when it is properly named as a defendant *894 in them. This Court holds that such a rule — which would commend itself to most people as eminently fair — is pre-empted by federal law. To support this conclusion the Court advances two arguments: first, pre-emption by Pub. L. 280, and, second, the "overshadowing" of the state interest by "longstanding federal and tribal interests." Ante, at 884. Neither by themselves nor in the rather awkward juxtaposition in which the Court places them are these arguments persuasive. The Court's argument based on Pub. L. 280 consists of two assertions: (1) Pub. L. 280 pre-empts Chapter 27-19's disclaimer of pre-existing jurisdiction because the federal statute establishes a "comprehensive" legislative plan to govern Indian matters, and Chapter 27-19's disclaimer is incompatible with the plan's general purpose to authorize the assumption of state jurisdiction over Indian country, ante, at 884-885; and (2) the initial failure of Pub. L. 280 to authorize a disclaimer of jurisdiction, combined with the subsequent authorization of such disclaimer in the 1968 amendments with respect to jurisdiction assumed pursuant to Pub. L. 280, evidence a congressional intent to forbid the disclaimer of jurisdiction assumed prior to the passage of Pub. L. 280. Ante, at 885-887. The Court provides no support for its assertion that Pub. L. 280 establishes a "comprehensive" federal scheme that pre-empts any state law that may inhibit the accomplishment of its general purpose. The Court's citation to Kennerly v. District Court of Montana, 400 U.S. 423, 427 (1971) (per curiam), is unhelpful; the Court there was describing the "comprehensive and detailed" scrutiny that Congress appeared to give in deciding whether or not to eliminate federal barriers to state jurisdiction over Indian matters, and not the nature of Pub. L. 280. In addition, the brevity of Pub. L. 280, its 1968 amendments, and the relevant legislative history belie the Court's assertion that these statutes establish a "comprehensive" plan like statutes that occupy a given field *895 of regulation. Cf. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984). Public Law 280 does little more than make a general pronouncement that certain federal barriers to state jurisdiction have been eliminated. See Act of Aug. 15, 1953, ch. 505, § 7, 67 Stat. 590. Nor does the legislative history, the 1968 amendments, or their legislative history provide any additions that transform the general pronouncement into a "comprehensive" plan. See S. Rep. No. 699, 83d Cong.. 1st Sess. (1953); Pub. L. 90-284, Title IV, §§ 402, 403, 82 Stat. 79; S. Rep. No. 721, 90th Cong., 1st Sess. (1967). There is also nothing inconsistent between the State's disclaimer of pre-existing jurisdiction and the purpose of Pub. L. 280. Congress stated that Pub. L. 280 was designed to accomplish two general purposes: "First, withdrawal of Federal responsibility for Indian affairs wherever practicable; and second, termination of the subjection of Indians to Federal laws applicable to Indians as such." S. Rep. No. 699, supra, at 3. The statute's elimination of certain federal barriers to the assertion of state jurisdiction over Indian country was an important means of furthering these goals. But the statute's complete silence on the disclaimer of state jurisdiction cannot reasonably be taken to imply an intent to forbid such disclaimer. This is especially true with respect to jurisdiction lawfully assumed before the passage of Pub. L. 280, since disclaimer of such jurisdiction would certainly have been entirely proper before passage of the Act. Nor can any congressional intent to forbid the disclaimer of jurisdiction asserted prior to the passage of Pub. L. 280 be reasonably inferred from the subsequent authorization of such disclaimer with respect to jurisdiction asserted pursuant to Pub. L. 280. This Court has long recognized that federal law has a "generally interstitial character," Richards v. United States, 369 U.S. 1, 7 (1962), in the sense that Congress generally enacts legislation against the background of existing state law. See, e. g., Burks v. Lasker, 441 U. S. *896 471, 478 (1979), citing P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 470-471 (2d ed. 1973). An appreciation for this traditional understanding of the nature of state power does not render superfluous the congressional authorization of disclaimer in the 1968 amendments to Pub. L. 280. See Pub. L. 90-284, Title IV, §§ 402, 403, 82 Stat. 79. Since the 1968 amendments were generally designed to impose a limitation on the ability of state legislatures to assert jurisdiction over Indian country, Congress could reasonably have intended the provision authorizing the disclaimer of previously asserted jurisdiction to encourage such disclaimer with a concomitant retention of a more limited form of jurisdiction. That the disclaimer provision referred only to jurisdiction asserted pursuant to Pub. L. 280 says nothing about congressional intent as to jurisdiction lawfully asserted in some other way. Given the traditional powers of state government, it is unreasonable to interpret such silence as evidence of an intent to forbid the States to disclaim jurisdiction asserted in another way. I find the Court's pre-emption analysis to be quite unconvincing. I think the Court's reasoning supporting its conclusion that federal and tribal interests "overshadow" the State's interest in fair play for litigants fares no better than its reasoning about Pub. L. 280. The requirement that a tribe consent to the general civil jurisdiction of state courts as a quid pro quo for access to those courts as a plaintiff seems entirely fair and evenhanded to me. Nothing in Pub. L. 280 or any other federal statute requires a State to accept jurisdiction over Indian country in the first place. Nor has such an obligation been created as a matter of federal case law dealing with the Indians. To the contrary, all the cases and statutes with which I am familiar speak only to the limitations on the assertion of jurisdiction over these matters. Thus, because Congress and this Court have left the States free to bar access entirely by simply not asserting jurisdiction over Indian *897 country at all, I do not see how any "federal interest" precludes them from establishing conditions on the assertion of jurisdiction, and thereby on access to state courts, as North Dakota has done here: the employment of the North Dakota courts in matters in which the tribe has an interest shall not be solely at the option of the tribe. I think there is nothing in Pub. L. 280 nor in federal Indian policy that prohibits North Dakota from applying its statute in the manner in which it did in this case, and I therefore dissent from the Court's contrary conclusion.

North Dakota law provides that in order for an Indian tribe such as petitioner to avail itself of the jurisdiction of North Dakota courts as a plaintiff, it must also accept the jurisdiction of those courts when it is properly named as a defendant *894 in them. This Court holds that such a rule — which would commend itself to most people as eminently fair — is pre-empted by federal law. To support this conclusion the Court advances two arguments: first, pre-emption by Pub. L. 280, and, second, the "overshadowing" of the state interest by "longstanding federal and tribal interests." Ante, at 884. Neither by themselves nor in the rather awkward juxtaposition in which the Court places them are these arguments persuasive. The Court's argument based on Pub. L. 280 consists of two assertions: (1) Pub. L. 280 pre-empts Chapter 2-19's disclaimer of pre-existing jurisdiction because the federal statute establishes a "comprehensive" legislative plan to govern Indian matters, and Chapter 2-19's disclaimer is incompatible with the plan's general purpose to authorize the assumption of state jurisdiction over Indian country, ante, at 884-885; and (2) the initial failure of Pub. L. 280 to authorize a disclaimer of jurisdiction, combined with the subsequent authorization of such disclaimer in the 1968 amendments with respect to jurisdiction assumed pursuant to Pub. L. 280, evidence a congressional intent to forbid the disclaimer of jurisdiction assumed prior to the passage of Pub. L. 280. Ante, at 885-88. The Court provides no support for its assertion that Pub. L. 280 establishes a "comprehensive" federal scheme that pre-empts any state law that may inhibit the accomplishment of its general purpose. The Court's citation to is unhelpful; the Court there was describing the "comprehensive and detailed" scrutiny that Congress appeared to give in deciding whether or not to eliminate federal barriers to state jurisdiction over Indian matters, and not the nature of Pub. L. 280. In addition, the brevity of Pub. L. 280, its 1968 amendments, and the relevant legislative history belie the Court's assertion that these statutes establish a "comprehensive" plan like statutes that occupy a given field *895 of regulation. Cf. Public Law 280 does little more than make a general pronouncement that certain federal barriers to state jurisdiction have been eliminated. See Act of Aug. 15, 1953, ch. 505, Nor does the legislative history, the 1968 amendments, or their legislative history provide any additions that transform the general pronouncement into a "comprehensive" plan. See S. Rep. No. 83d Cong. 1st Sess. (1953); Title IV, 402, 403, ; S. Rep. No. 21, 90th Cong., 1st Sess. (196). There is also nothing inconsistent between the State's disclaimer of pre-existing jurisdiction and the purpose of Pub. L. 280. Congress stated that Pub. L. 280 was designed to accomplish two general purposes: "First, withdrawal of Federal responsibility for Indian affairs wherever practicable; and second, termination of the subjection of Indians to Federal laws applicable to Indians as such." S. Rep. No. The statute's elimination of certain federal barriers to the assertion of state jurisdiction over Indian country was an important means of furthering these goals. But the statute's complete silence on the disclaimer of state jurisdiction cannot reasonably be taken to imply an intent to forbid such disclaimer. This is especially true with respect to jurisdiction lawfully assumed before the passage of Pub. L. 280, since disclaimer of such jurisdiction would certainly have been entirely proper before passage of the Act. Nor can any congressional intent to forbid the disclaimer of jurisdiction asserted prior to the passage of Pub. L. 280 be reasonably inferred from the subsequent authorization of such disclaimer with respect to jurisdiction asserted pursuant to Pub. L. 280. This Court has long recognized that federal law has a "generally interstitial character," in the sense that Congress generally enacts legislation against the background of existing state law. See, e. g., Burks v. Lasker, 441 U. S. *896 41, 48 (199), citing P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 40-41 (2d ed. 193). An appreciation for this traditional understanding of the nature of state power does not render superfluous the congressional authorization of disclaimer in the 1968 amendments to Pub. L. 280. See Title IV, 402, 403, Since the 1968 amendments were generally designed to impose a limitation on the ability of state legislatures to assert jurisdiction over Indian country, Congress could reasonably have intended the provision authorizing the disclaimer of previously asserted jurisdiction to encourage such disclaimer with a concomitant retention of a more limited form of jurisdiction. That the disclaimer provision referred only to jurisdiction asserted pursuant to Pub. L. 280 says nothing about congressional intent as to jurisdiction lawfully asserted in some other way. Given the traditional powers of state government, it is unreasonable to interpret such silence as evidence of an intent to forbid the States to disclaim jurisdiction asserted in another way. I find the Court's pre-emption analysis to be quite unconvincing. I think the Court's reasoning supporting its conclusion that federal and tribal interests "overshadow" the State's interest in fair play for litigants fares no better than its reasoning about Pub. L. 280. The requirement that a tribe consent to the general civil jurisdiction of state courts as a quid pro quo for access to those courts as a plaintiff seems entirely fair and evenhanded to me. Nothing in Pub. L. 280 or any other federal statute requires a State to accept jurisdiction over Indian country in the first place. Nor has such an obligation been created as a matter of federal case law dealing with the Indians. To the contrary, all the cases and statutes with which I am familiar speak only to the limitations on the assertion of jurisdiction over these matters. Thus, because Congress and this Court have left the States free to bar access entirely by simply not asserting jurisdiction over Indian *89 country at all, I do not see how any "federal interest" precludes them from establishing conditions on the assertion of jurisdiction, and thereby on access to state courts, as North Dakota has done here: the employment of the North Dakota courts in matters in which the tribe has an interest shall not be solely at the option of the tribe. I think there is nothing in Pub. L. 280 nor in federal Indian policy that prohibits North Dakota from applying its statute in the manner in which it did in this case, and I therefore dissent from the Court's contrary conclusion.